HL Deb 28 May 1968 vol 292 cc1044-104

3.13 p.m.


My Lords, I beg to move that this Bill be now read a second time. At the outset, may I say that I feel extremely privileged at having the honour of standing here to present to your Lordships the fruits of the labour of a Joint Committee presided over, as it was, by my old and valued friend, Mr. George Strauss, and composed of such a very distinguished membership, largely of this House and of the other place. It is a most important Bill, and I feel that your Lordships will all want to join me in saying a word of appreciation of the work of that Committee. I respectfully submit to your Lordships' House that what they have done as a result of their deliberations is to find a civilised, modern, up-to-date answer to the age-long problem of what we can and what we cannot show on the stage.

It is an important debate. In the free air of this great country anybody who uses the word "censorship" at once treads on highly controversial ground, and when we discuss the theatre, we are discussing a theatre in the land of Shakespeare. Hamlet said: Wherein I'll catch the conscience of the king. "… the play's the thing. If, instead of referring to his reprobate and wicked uncle he had referred to our artistic conscience and susceptibility, to our whole social and ethical make-up, I think he would have come nearer to putting the function of the playwright and the play in its proper context in the organisation of our society. One's approach to a Bill of this sort is, I suppose, largely conditioned by one's own personal standpoint. Speaking for myself, I feel very strongly that the artist, whether playwright, poet, novelist, painter, musician, or whatever the expression his art form may be, should always be given the maximum freedom to express himself that society can allow him without sustaining injury itself as the result of the exercise by him of that freedom.

There are always risks inherent in the enjoyment of free speech, and I think I should have the assent of all your Lordships if I said that those risks must be undertaken so far as we can permit ourselves to take them. Starting with that premise, I approach this Bill with the feeling that when the playwright presents his work to the judgment of public taste, we should, unless we feel bound as a society to inhibit him and to impose limits on the freedom which he exercises in his expression, presentation, and generally in the conception of his subject, give him all that he desires in the way of that freedom. That is my general approach, and a little later on in what I have to say to your Lordships I shall discuss some of the serious issues which I think this Bill raises.

Perhaps it would he for the convenience of the House if, at the outset, I travelled shortly through the main provisions of the Bill. Your Lordships may well have had an opportunity of looking at it before or of following the debates in another place, but by way of reminder it perhaps would be convenient if I went shortly through the clauses. Clause 1 is, in a sense, the most important. It brings to an end the censorship—whether one calls it censorship or pre-censorship I do not think matters—at the moment exercised by the Lord Chamberlain under the provisions of the Theatres Act 1843. Under the provisions of that Act the Lord Chamberlain censors, in effect, all plays in this country. He has a dual function, because within the precincts of London and at Windsor he is also invested with the function of licensing theatres, Outside Windsor and those precincts that function is exercised by licensing authorities who themselves have the right to a sort of subsidiary censorship, since in deciding whether or not they will license a theatre they can impose requirements that certain standards of decency shall be maintained in the presentation of the play which takes place at that theatre.

Clause 1 not only abolishes the censorship powers of the Lord Chamberlain but also brings to an end that subsidiary power of censorship at present exercised by the licensing authorities in other parts of the country. Censorship therefore goes completely and entirely. Instead of censorship, Clauses 2, 5 and 6 impose objective tests setting out in the terms of the Statute (as I hope it will become) what it is a playwright may not do.

May I deal first with Clauses 5 and 6, because so far as I am aware little controversy has arisen in regard to them. Clause 5 adapts to theatres the existing provisions of the Race Relations Act 1965 prohibiting the deliberate dissemination of race hatred by the use of threatening, offensive, abusive or insulting language. Clause 6 performs a somewhat similar function. It adapts the provisions of the Public Order Act 1936 to the theatre, prohibiting representations on the stage of matter which either is intended to provoke a breach of the peace or may, when one considers its whole effect, have the result of provoking a breach of the peace. I am sure your Lordships would agree that it would be quite intolerable if the theatre were used as a medium for the dissemination of race hatred; and, so far as I am aware, there has been little objection or criticism voiced in regard to Clauses 5 and 6 of the Bill.

The important clause is Clause 2, supplemented as it is by Clause 3. Clause 2 makes it an offence for a person to produce or direct an obscene play. It defines obscenity by saying 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. There is a most important qualification to that definition contained in Clause 3, which provides that: … if it is proved that the giving of the performance in question was justified as being for 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". that should constitute a defence to any charge brought under Clause 2. That is, in effect, the central clause of the Bill. It contains the objective definition of obscenity as a definition taken from the Obscene Publications Act 1959, as is also the qualification which appears in Clause 3 of the Bill. That definition has now been on the Statute Book for nine years. It has been used on a number of occasions and by general consent has been found to be eminently workable.

The next important clause is Clause 7. There has been difficulty about performances in what are called theatre clubs. Clause 2 undoubtedly would include a performance which takes place in a theatre club, but Clause 7 excludes from the operation of the Act plays which are given on a domestic occasion in a private dwelling. Clause 8 is the next important clause. It provides that a prosecution under the Act shall be undertaken in England and Wales only by the Attorney General or with his consent; that is to say, either the Attorney General himself must prosecute, or if some private prosecutor wishes to institute proceedings under Clauses 2, 5 or 6 of the Bill, that private prosecutor can do so only if the Attorney General gives his consent.

Clauses 9 and 10 contain certain enforcement provisions, with which I do not need to trouble your Lordships at any length. The script on which a play is based can be used in any proceedings as evidence of what was shown to the public. Clause 10 provides that a person who produces a play is, in effect, on an order being made by an officer of police of or above the rank of superintendent, to hand over to the police a script of the play. It would be very difficult indeed to try to enforce the law without those two provisions.

I do not need to trouble your Lordships with Clauses 11 to 13. They deal with provisions relating to the licensing of theatres throughout the country. The Lord Chamberlain's functions in regard to the licensing of theatres in London have been transferred from him to the Greater London Council. Outside London the function is exercised by the councils of counties or county boroughs. Clause 14 is of some importance. It gives a justice of the peace a right to issue a warrant empowering a police officer in effect to enter and witness a performance.

Clause 17 is the definition clause. The important definition is the definition of a play, which in effect means: Any dramatic piece … which is given wholly or in part by one or more persons actually present and performing and in which the whole or a major proportion of what is done by the person or persons performing, whether by way of speech, singing or action, involves the playing of a role … The second paragraph of that definition includes the presentation of a ballet. So that one is dealing with live performances in the theatre, whether of a comedy or tragedy—that is to say, any dramatic piece of any sort in which the roles are played by live performers. The Schedule contains transitional provisions, with which I shall not trouble your Lordships.

That is the scope of the Bill. The first major question of principle that arises is: should we have censorship of the theatre or should we not? Would it be right if, as this Bill proposes, we seek to bring it to an end for all purposes? There are differing views about this. The theatrical managers would like to see the Lord Chamberlain's censorship system retained. They say that if the Lord Chamberlain's imprimatur is received it affords a measure of security and safety to the dramatist and the theatrical management responsible for the presentation and direction of the play in that they know where they are. It is no doubt true that even if the Lord Chamberlain's imprimatur is obtained, the playwright and those who produce and direct the play can still be proceeded against, under the Common Law, if they produce obscene plays or plays which otherwise offend against the Common Law. But in practice it is said that once you have the Lord Chamberlain's imprimatur, you know where you are; you are safe.

Almost all the rest of opinion in the theatre, I think I am right in saying, is entirely against the continuation of the Lord Chamberlain's system of censorship. It is a view which I personally share, and I should like to place before your Lordships the reasons why I share it. How does that system operate? A subsidiary point is whether, even if it is continued, it should ever be operated by the head of the Royal Household. Very few voices would be raised to say that the head of the Royal Household should operate a system of censorship, if there is to be one. It may be that there is not much risk of its being thought that the Sovereign is in any way indirectly or directly associated with the decision of the Lord Chamberlain in this regard; but even any possibility of such a suspicion should obviously be eliminated.

If the censorship is not exercised by the Lord Chamberlain should it be transferred to some other body; and, if so, what body? Under the system it is the ipse dixit of the Lord Chamberlain, or whoever may replace him, which tells the playwright what he may or may not produce; there is no appeal whatsoever. It is the judgment of one man, plus his advisers; and however experienced he is —and 1 should like to pay tribute to the discrotion, tact and judgment of the present Lord Chamberlain, in whose presence I speak—however wise and careful he is in the decisions he makes, I submit to your Lordships that he is confronted with an absolutely impossible task.

He actually exercises his discretion under the terms of Section 14 of the Theatres Act 1843. He is given a general power to prohibit the presentation of a play, or any part of the play, if in his opinion it may offend against good manners, decorum or the public peace. The public peace is an expression which I think we can all understand. It is in point of fact reproduced, in effect, in Clause 6 of the present Bill. But the words "decorum" and "good manners" —what gorgeous Victorian terminology! They might have come straight out of Mrs. Gaskell. How on earth can anybody, in the context of 1968, amid the controversies which now rage as to what is good art, what is bad art, what ought to be allowed, what ought not to be allowed, even if he possesses the wisdom of Solomon, arrive at judgments and decisions which are not bound to excite violent dislike on the part of large numbers of members of the community, on one side or the other? I should have thought it was an impossible phrase to apply.

On what is good manners or decorum people differ. People of equal sincerity, of equal acumen and taste, take wholly different views of a given piece of artistic presentation. One critic may think that it is pure and unadulterated dirt. Another may view precisely the same performance and, bringing his judgment to bear, may think, "Well, after all, it is a most penetrating and well-balanced analysis of human emotion in certain given situations". What is the Lord Chamberlain to do? Is he to take, in effect (I am sure that the noble Lord, Lord Cobbold, will know that I use this phrase with the very greatest respect to him, because he knows how much I admire his work) a "pot shot" at it? He has no guidance. He simply has the general phrase of that Statute which I have quoted.

I believe I am right in saying that in fact he and his predecessors have in general paid regard to certain criteria which were laid down by a Parliamentary Committee which went into the whole subject in 1909. There were some seven points which were emphasised, and of which I should like to remind your Lordships. The Select Committee of 1909 proposed the following tests. They said that a play should be forbidden: (a) if it is indecent; (b) if it contains offensive personalities; (c) if it represents on the stage in an invidious manner a living person or any person recently dead; (d) if it does violence to the sentiment of religious reverence; (e) if it is calculated to conduce to crime or vice; (f) if it is calculated to impair friendly relations with any foreign Power; (g) if it is calculated to cause a breach of the peace. Holders of that great office have to wrestle with the problems which a represented to them, day in day out, and they have either to bring their judgment to bear in accordance with the general formula of the 1843 Act, or to adopt one or other of those criteria which I have just read out.

But, my Lords, public taste shifts. It changes almost from year to year; indeed, it is not exaggerating to say even from month to month. Standards which were accepted ten years ago, five years ago, one year ago, are constantly subject to challenge and question. It right that they should be; and it is right that on matters of taste, on matters of artistic presentation, people should hold the strongest views. That is how our civilisation develops. But I should have thought it was almost impossible, however hard one tried, to keep pace with that continuously evolving scene. I was told, I do not know whether apocryphally, that Sir Harry Lauder in his time, in order not to offend the susceptibilities of his audience, caused the bare legs of a grand piano which stood on the stage to be discreetly enclosed with stiff calico drawers. Such caution, I should have thought, would probably be regarded as supererogatory in the day of the miniskirt and the mini-mini-skirt.

After all, in a great country with whose difficulties I know all of us sympathise Madame Bovary was at one time binned, and people were not allowed to read it. A question has been raised in our life time in this country as to whether we should be allowed to read Boccaccio. If one looks at the evidence which is appended to the Select Committee's work, one finds that earlier on, when the predecessors of the present Lord Chamberlain exercised his functions, Bernard Shaw had great difficulties with them. So did Pirandello; so did Ibsen. When Richard Wagner was introduced to this country he was regarded as a monstrosity; so were the French Impressionist painters. Taste changes, and I should have thought that it was quite impossible by a purely arbitrary standard, to try to devise any means of saying what ought to be allowed, having regard to modern standards of thought, or what ought to be prohibited.

Therefore, I ask your Lordships to say that the Bill is entirely right when it says that such limitation as is imposed on the freedom of the artist should not depend upon the ipse dixit of one man, or one man and his advisers, or a committee. It is for Parliament, surely, after mature deliberation, after going through all its processes for that purpose, after listening to the public discussion on the subject in the Press and elsewhere in the course of the great public debate, to formulate deliberately and after careful reflection what it regards in its judgment, objectively, as the tests which should be imposed to limit the complete freedom of the author. That is what this Bill does, in Clauses 2, 5 and 6.

May I just say one word on the argument that the imprimatur of the Lord Chamberlain protects the playwright and the producer? That really depends on whether or not the formula which is found, and which is now embodied in Clause 2, would give him equal protection. I respectfully submit to your Lordships that the formula in Clause 2 gives the playwright ample elbow room, within reasonable limits, to do anything he should possibly want to do in presenting his work to the public. I ask your Lordships to consider for a moment the language of that definition. It is not a definition which is in any way related to the viewer's being shocked or being offended. It is a purely objective definition which provides, in effect, that no play is to be prohibited and no offence is committed unless it can be shown, and shown to a jury (because anybody charged under Clause 2 and Clause 5 has the right to be tried by a jury) that the effect of the play, if taken as a whole—that is to say, irrespective of any chance expression in it, or any unfortunate gesture in any part of the performance—was such as to tend to deprave and corrupt persons who were likely, having regard to all relevant circumstances, to attend it.

What has one to envisage? Suppose that a playwright unfortunately has to make his appearance before a jury of 12 sensible people, picturing to themselves the more or less sophisticated audience which would go to a theatre in the West End or a theatre in the Provinces, no doubt in somewhat festive and receptive mood, and picturing to themselves the reaction of that audience to the play which is brought before them; it will not be enough for the jury simply to say, "We think this is rather an offensive play; it might have offended a number of members of that audience." After all, if the play is in bad taste and does offend, the playwright suffers a quite different punishment. The box office receipts are low, and his work is not acceptable to theatrical managers on subsequent occasions.

Before they can decide that an offence has been committed, the jury have to come to the conclusion and it has to be affirmatively proved to them that the effect of the play as a whole is likely to deprave and to corrupt. That language has been defined judicially, and no doubt it will be defined over and over again. But can it mean anything less than this: that the play as a whole must exercise such an influence on the viewers—that is to say, the generality of the viewers, not the individual prurient youth who happens to find his place among them—that they will be less disposed or less able to restrain anti-social impulses which they may have?

My Lords, those are very strong words. It is not easy to prove that offence; and, even if you do prove that those words are applicable to the particular play, the extremely important qualifications in Clause 3 have to be borne in mind. Even if those words are found to be satisfied, nevertheless no conviction can result if it is proved that the giving of the performance in question was justified as being for 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". Clause 3 goes on to provide that a jury shall be assisted, if the parties desire it, by the evidence of experts as to the artistic, literary or other merits of a performance of a play". In other words, the jury, if they themselves may feel uncertain as to the quality of the play—unable, perhaps, to detect merits in it which may be apparent to somebody who has devoted more study to that sort of theatrical presentation—will hear the views of persons who are highly qualified to give evidence with regard to it.

The answer, therefore, that I would give to those who say that the Lord Chamberlain's imprimatur should not be removed from the playwright is this. What has been put in place of that imprimatur is a definition, contained in Clauses 2 and 3, which will not leave the playwright at risk. He has to go very far indeed, quite beyond the bounds of reason, before he can find himself in any real risk at the hands of a jury, in the face of a definition of that sort.

It may be, as I think a memorandum from the theatrical managers suggested, that for a time producers of plays may be somewhat hesitant and reluctant to go as far as they might have gone if the Lord Chamberlain's imprimatur had been available to them. Nevertheless, I believe that when they understand the structure of the definition embodied in this Bill, when and if it becomes an Act, they will feel perfectly secure; and that one will have, instead of the ipse dixit which can prevent a playwright from putting before the public what he wants to, a sensible definition which corresponds to modern thinking and which is sufficiently strict to prevent any real harm coming to society from the exercise of a new licence, and which at the same time gives the playwright all the elbow room that he can possibly want. If I may add a footnote to that, it is that the definition in the Obscene Publications Act which has been embodied in Clause 2 has been defined as relating to performances likely to provoke not only to sexual depravity but to other types of depravity. A performance which is likely to lead to an increase in vice or crime in general is also within the scope of that clause.

Those are the general reasons on which I would base the case which I put before your Lordships' House in support of this Bill, but there are one or two other observations I should like to make. I would refer to Clause 8, which is the clause which requires the Attorney General's consent. The Attorney General, in exercising his discretion, cannot override Parliament. It is for Parliament to formulate the criminal offence; it is for the Attorney General, in the exercise of his supervisory jurisdiction over the Director of Public Prosecutions, simply to see to it that prosecutions are not instituted which, owing to the circumstances of a given case, may be oppressive or capricious, or for some other reason not in the public interest. The object of that clause, which I think is a valuable safeguard, is to prevent irrational application of the Act by Inconsistent prosecutions up and down the country. They would have to conform to a general approach; and that is the object of that clause.

I should like to make one or two further observations on this Bill. It has been said—and believe I am right in thinking that the noble Lord, Lord Cobbold, is somewhat anxious on this point; so I gather from a speech which he made in your Lordships' House and the evidence which he gave to the Committee—that if the Lord Chamberlain's censorship powers are removed there, may be an abuse of the licence that results, in that there may be offensive references to living persons, references to the heads of foreign States which are undesirable in the public interest and references, in particular, to our own Sovereign. If there were such a reference, of course it is impossible for the Sovereign in practice to exercise the rights which are open to anybody else who is defamed on the stage. She cannot in practice go to the Courts and ask for the relief which other people can ask for.

To take other people first, if you defame them on the stage they can, through their legal advisers, after issuing a writ, go straight to a Judge in Chambers and ask for an interim injunction, which is an extremely powerful weapon to stop defamatory references to people who are the victims of that sort of thing by stage presentations. Clause 4 makes their path easier by saying that words spoken should count as written words, in effect, so as to remove certain defences which are open in the case of slander and which are not open in the case of libel proceedings.

My Lords, what of the Sovereign? I feel myself that anybody who made references to the Sovereign would very soon find that public taste would punish them in a very appropriate way. But there may be the sort of person who still is not deterred by that; an obstinate or vicious-minded person who, nevertheless, thinks it appropriate to continue. I would simply say this. First, one has to measure the danger of the abuse against the undesirability of taking further steps to limit the sphere of tree speech. One has to ask: what does the existing law say with regard to references of that sort to the Sovereign?

I will read Out to your Lordships, if I may, a short quotation from Russell on Crime, an extremely authoritative textbook, in which he defines one aspect of the law of sedition 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. There is also Clause 6, which, as I have reminded your Lordships, prohibits the display on the stage of matter which is either intended to have or may have the effect of creating a breach of the peace. One can picture all sorts of unpleasant and irresponsible references. I should have thought that the great majority of those would come within one or the other of those two limbs of the law. "Vilify" is a very wide term; and "disgrace the Queen in her private conduct" is a very wide expression. I hope that in practice one will find that no reference to the Sovereign which may be used on the stage will in fact disturb the public taste.

I have spoken of living persons who are defamed, of the Heads of other States. Are we not to be allowed to criticise heads of other States like Hitler or Stalin? I would, with the greatest respect, take issue with those who think that we should not be allowed freely, and I hope responsibly, to make reference to heads of other States. It is permitted in other countries and I do not see the case for inhibition in our own country against references of that sort. The noble Lord, Lord Cobbold, is, I know, somewhat con cerned on the question of religious references. Without going into the law of blasphemy, I would remind your Lordships that that is a law which is general in extent and which can be applied. It is part of the Common Law. I know that he is concerned because, as he points out in his evidence, he has been informed that it is a branch of the law which is rarely invoked. But it is there and it can be revoked.

I would respectfully say that once we have embodied the safeguards in Clauses 5 and 6 and added to them the whole body of Common Law which could be invoked to restrain excesses of the sort that the noble Lord is anxious about, in practice there would be comparatively little opportunity for abuse. If there is such abuse then I should have thought—as I have said once earlier, and I apologise for saying so again—that public taste would soon show its resentment. For those general reasons I commend this Bill to your Lordships on Second Reading and I hope that you will feel it is one that should be enacted. I beg to move.

Moved, That the Bill be now read 2a. —(Lord Stow Hill.)

3.52 p.m.


My Lords, the House will be grateful to the noble Lord, Lord Stow Hill, for introducing this Bill and for the clarity and comprehension with which he has done it. I should like to add a word of thanks personally to him for the kind things that he said about my Office and myself. With most of his speech and with the main lines of the Bill I find myself in agreement, and I shall support the Second Reading. But I have certain reservations on one or two points and I have one suggestion to put forward for your Lordships' consideration. As I was only an hour or so ago presenting to your Lordships a Message from Her Majesty the Queen, I should perhaps make it clear that I am now wearing a slightly different hat—or, more literally, a different coat—and the observations which I have to make in this debate arise from the personal views which I have formed during five years' experience of theatre censorship.

My Lords, in the earlier debate in this House and in evidence to the Select Committee, I gave three reasons for my view that, while existing arrangements have on balance served the theatre and public well over the centuries, the time has come for a change. The first of these three reasons, and the most compelling, is the development in the past few decades of films, broadcasting and television, and, more particularly, the increasing extent to which plays are nowadays produced on radio and television. Secondly, it is not consistent with present-day ideas—and the noble Lord, Lord Stow Hill, made a good deal of this point —that these responsibilities should fall on any one individual with no provision for appeal. Thirdly (and again this point was raised by the noble Lord), I do not think it in the national interest that these powers should nowadays be exercised by the person who for the time being is head of the Sovereign's Household.

Turning to the broader question of the merits and demerits of stage censorship, I should like to put the record straight on one point. It has been suggested in some quarters that in earlier speeches, and in evidence, I have advocated a continuation of the existing arrangements with only one change: that the power should be exercised by somebody else and not by me. What in fact I advocated in evidence to the Select Committee was something quite different. It was that some public body (I suggested an appropriate committee of the Arts Council; but that suggestion scored no marks from the noble Lord, Lord Goodman, and I think not many from anybody else) should be entrusted with general supervision over the theatre. They should have wide powers to experiment over the next few years, in close liaison with the film censors, the B.B.C. and the Independent Television Authority, with limited forms of pre-censorship, forms of post-production censorship and possibly complete reliance on the ordinary laws of the land. I felt that this would have left room for experiment by trial and error while the public attitude towards censorship of the arts is in the present state of flux and uncertainty.

It was argued in another place that if this Bill is passed and does not work out quite rightly, Parliament can always pass an amending Act. Perhaps so. But your Lordships will remember that, despite recommendations by various Committees over the centuries, it has taken 215 years to get a Bill before Parliament to amend the existing Theatres Act and no less than 230 years to put forward a Bill which alters fundamentally the principle of Walpole's original Act.

As I said in the debate in your Lordships' House two years ago, when considering the pros and cons of pre-censorship, if there wore only the question of obscenity I should incline to let things find their own level and to leave managements to decide how far they can go without inviting prosecution. People do not have to go to the theatre, and I personally do not believe that indecency on the stage is often likely to have a corrupting influence. It may well prove that obscenity for obscenity's sake will lose much of its vogue when there is no publicity or box office advantage to be gained out of "cuts by the Lord Chamberlain".

I was, and still am, much more concerned about some other things, particularly violence and religious questions, and the offensive treatment of personalities. The Select Committee took the view that violence and religious questions could be adequately looked after by the ordinary law of the land. I do not wish to dispute this view; but there is much evidence, particularly in the case of violence, of anxiety in the public mind about current trends in films and television, ever after the efforts of the Board of Film Censors and even under the codes now laid down by the B.B.C. and I.T.A. Under the Bill before your Lordships there will be no supervisory body for the theatre and no such codes to guide producers. It is to be hoped that if this Bill becomes law the Attorney General will be vigilant in matters of violence, sadism and the more horrific types of crime. This is, surely, an area in which positive harm could be done and where licence could be abused for mercenary ends.

My Lords, I come to the point which especially disturbs me about the Bill in its present form, the treatment of living persons and those recently dead. The Select Committee gave much attention to this matter and recognised its difficulty. The noble Lord who introduced this Bill has dealt with it in some considerable detail to-day. I would not presume to argue with the noble Lord on the legal issues. I hope he is right in the amount of protection that is given. I ant sure that he is right on the legal matter; but I still feel some unease on this point. The business of taking proceedings for libel or slander is expensive, lengthy and bothersome, and, as the noble Lord said, although the law of blasphemy is on the Statute Book, it has not been used very frequently in modern times. Again, as I understand it, the law gives no protection to the widows or families of persons recently dead. And, finally, there are categories of people (including many besides Heads of States and the Royal Families—for example, the dignitaries of the Church) who cannot in practice seek the protection of the laws of libel and slander. I would not wish to put too much emphasis on this question of foreign Heads of State in general—I agree with what the noble Lord said: although I think there may be cases where something might be done or said about a foreign Head of State which might be regarded as regrettable in the national interest.

In considering the special position of the Sovereign and the Royal Family the Select Committee concluded, rightly as I think, that a specific statutory exception was undesirable. They felt that the matter could be left to the judgment and good taste of managements, playwrights and public opinion. Although this is doubtless true in a great majority of cases, I cannot, with a fair weight of experience behind me, share the Committee's confidence on this point. If the Bill is passed without any amendment in this respect, I see considerable risk of productions exploiting this freedom for profit and notoriety, with no concern about good taste and with much offence to public feeling. It is in these last words—offence to public feeling—that I see some possibility of a solution. The Television Act, passed by Parliament as recently as 1964, requires the Independent Television Authority to satisfy itself: that nothing is included in the programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling. In the Bill before your Lordships the question of obscenity and disorder is covered, albeit somewhat differently, but there is nothing about offence to public feeling.

I suggest, my Lords, that at least so far as representation of and reference to living people is concerned, the theatre is far more akin to television than to the written word and that it would be eminently reasonable for a similar degree of protection to be afforded in both media, stage and television. No one would wish to restrict genuine political satire, and indeed it could never be held to be offensive to public feeling. But a clause making it an offence to represent or refer to living persons and those recently dead in a way calculated to offend public feeling would bring the standard that applies on the stage into line with that for plays on television and would afford, in my judgment, much needed protection to certain categories of people.

I suggest for your Lordships' consideration that some amendment on these lines would improve the Bill without damaging its general concept, and would allay what I believe to be widespread concern on this matter. I am encouraged in this connection by words used by a Government spokesman in another place when Amendments on this subject were being discussed in Committee. He said: The Government are not committed to opposing every Amendment and if a practicable proposal were put forward at a later stage we should be prepared to examine it. I hope that this undertaking may be confirmed by the noble Lord, Lord Stonham, and that at the Committee stage a satisfactory formula may be found, whether on these or on some other lines, which would be acceptable to Her Majesty's Government and to the sponsors of the Bill.

My Lords, I do not feel disposed to ring down the curtain on this aspect of the work of the Lord Chamberlain's Office in any spirit of apology. I would claim, and it is a claim which has received generous support in your Lordships' House and in another place, that over the years it has carried out the duties imposed upon it by Parliament to the benefit of the public and of the theatre; and if proof were needed it lies in the strength of the English theatre. Although I agree that the time has come for a change, the holder of my Office must have some regret at the ending of a relationship between that Office and the theatre, and indeed between the Crown and the theatre, which has existed for several centuries. To judge from articles and comments by our more voluble critics, one might suppose that it has been a relationship full of rancour and ill-temper. On the contrary, it has on the whole been most happy. During my term as Lord Chamberlain, the friendship and co-operation which my officers and I have had from the theatrical world have much more than made up for the brickbats which every censor must expect to receive. Over a period of five years I can count on the fingers of one hand the occasions on which discussions, even when they did not result in complete agreement, have been conducted on anything but friendly and understanding terms. My Lords, I repeat my thanks to the noble and learned Lord, Lord Stow Hill, and hope that your Lordships will give this Bill a Second Reading.

4.5 p.m.


My Lords, so far as I know, it is unlikely that any of your Lordships will wish to vote against the Second Reading of this Bill and, speaking on behalf of my noble friends, there is very little that I wish to say about it. I do not think it is right that we should have any kind of special censorship of the theatre, whether by the Lord Chamberlain's Office or by the noble Lord, Lord Goodman, beyond the restraints which are imposed by the Common Law and the Statute Law which may be judged in court.

We are continually told that this statutory duty was imposed in 1737 because Sir Robert Walpole desired to stop the satire in the theatre on himself and his Ministers and his political supporters. That may have been one reason; I think it is possible that there may have been others, too. In the 1730s comic plays on the London stage were far more permissive than they are now and very often they were less tedious. Possibly the portrayal of licentiousness on the stage is often more amusing when the majority of the audience thinks that the licentiousness is wrong than it is when most of the audience think it is all right. But I am quite sure that these powers given by the Lord Chamberlain in 1737 would not have continued to exist in the 19th and the 20th centuries had it not been for the great convenience which they provided for theatre producers, giving them a high degree of protection against the legal penalties which they might otherwise have incurred either from libel actions or from prosecutions for indecency.

I am sure, my Lords, that the noble Lord, Lord Cobbold, is not the first Lord Chamberlain who has wished to be delivered from an extremely tiresome and thankless duty. The good relations which have existed between the Lord Chamberlain's Office and the theatre are hardly ever mentioned in public because the Press is not interested in reporting good relations. The only things which are reported in public are the slips and errors which are occasionally made; and it is pitiable to think of the vast number of bad plays which the Lord Chamberlain and his staff have been obliged to read through, whether they liked it or not. It would not be possible for any human being, or committee of human beings, to carry out this work without occasionally making mistakes of one kind or another; and if you watch for them, as the Press does, it is very easy to find examples of slips or errors of judgment by any Lord Chamberlain or his subordinates which can be made to look very silly even when there may have been a reasonable motive.

I remember the time, more than 40 years ago, I think in 1923, when the second part of Bernard Shaw's play, Back to Methuselah, was produced. It contained two characters, Mr. Lubin and Mr. Burge, who were parodies of Mr. Asquith and Mr. Lloyd George, and there was a good deal of dialogue about the future of the Liberal Party. Mr. Lloyd George was made to say, "You can't lead a progressive Party without movement." To which Mr. Asquith was made to reply, "You mean you can't do it. I have done it for ten years without the slightest difficulty." When Mr. Lloyd George was made to show outrage and indignation at Mr. Asquith's confession that he had played 66 rubbers of bridge on a Sunday Mr. Asquith replied, "No doubt you sang 66 hymns."

The Lord Chamberlain decided that he would licence this play only on condition that the actor who was to represent Mr. Asquith should not be dressed up to look like Mr. Asquith, and the actor who was to represent Mr. Lloyd George should not be dressed up to look like Mr. Lloyd George. Bernard Shaw got round this by making the actor who took the part of Mr. Asquith dress up exactly like Mr. Lloyd George and the actor who took the part of Mr. Lloyd George dress up exactly like Mr. Asquith. It was quite a stimulating intellectual exercise for the audience to keep remembering who was really supposed to be whom. It is these slips or, as in this case, the entirely reasonable condition imposed by the Lord Chamberlain which are always reported.

I think that successive Lord Chamberlains have carried out their unpopular duty, which Parliament has imposed upon them and which they never asked for, with understanding, with tolerance and with a great and devoted care in the interests of both the public and the theatre. I think that this should be stated and a tribute should he paid to the Lord Chamberlain's Office for the way in which they have carried out this very unacceptable, I should have thought, and sometimes odious duty.

The Bill provides, after Clause 1, a number of penalties, which I am not going to go into because I have no adverse criticisms to make of them. Clause 2 provides that: … a performance of a play shall be deemed to be 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. And Clause 3 provides that: A person shall not be convicted of an offence under section 2 of this Act if it is proved that the giving of the performance in question was justified as being for 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. That is a distinction we have often heard before in connection with other matters, and it will be interesting to see how cases are determined by juries, if they arise, and how juries reconcile these two clauses of the Bill.

I want to ask only two questions. The first is probably an easy one to answer, and it may be that I ought to have understood the Bill better. Clause 2(2) provides that … if an obscene performance of a play is given, whether in public or private, any person who (whether for gain or not) presented or directed that performance shall he liable— to a fine of £400 or six months' imprisonment. That is subject to Clause 7, which says: Nothing in sections 2 to 4 of this Act shall apply in relation to a performance of a play given on a domestic occasion in a private dwelling. The noble Lord, Lord Stow Hill, read this out, but I am still not clear what is the difference between "a domestic occasion in a private dwelling" and a performance in a private dwelling which is not a domestic occasion? How do we distinguish between them? Is it that the people who come to a private building are asked to pay money? How do we distinguish between a private party and an occasion which is not a domestic one in a private dwelling? I think it is important that we should know the answer, because we do not want to give too extensive powers to the police to inquire into what people are doing in their own homes.

The other question I would ask is this. No doubt some of your Lordships, including myself, may find it a little difficult to understand how far Clauses 2 to 6 merely define the existing Common Law or repeat the Statute Law for the purposes of clarification and how far they extend or strengthen the law. I gather from what the noble Lord, Lord Stow Hill, says that Clauses 2 and 4 extend and strengthen the Common Law of obscenity and of defamation as they apply to the theatre. I should like to ask either the noble Lord or the noble Lord, Lord Stonham, whether these extensions apply only to the theatre or whether they apply also, for instance, to B.B.C. Television, because it seems to me that B.B.C. Television is a far more potent and dangerous potential disseminator of defamation and depravity than any play in any theatre.

In the case of the theatre there may be one rotten play and two dozen good ones going at the same time. The bad play, the licentious or indecent play, may attract a certain amount of audience, but it does not weigh very much in comparison with the audiences at all the good ones. On the other hand, on B.B.C. Television, when looked at as a whole, a hundred good features may be spoiled and their general good effect damaged by one wretched "sick" performance, in which depraved ideas are spread and defamation against all sorts of people is uttered, with loud applause and laughter all the time from a selected studio audience. In a play in an open theatre, it is very different. The audience is not selected and is free to express its own feelings in its own way.

In his speech the noble Lord, Lord Cobbold, referred to the Charter of the I.T.A. I do not think it justifiable that there should be this distinction between I.T.A. and B.B.C.; that I.T.A. should be prohibited by its own Charter from disseminating depraved features, whereas the B.B.C. is not. I should like the noble Lord, Lord Stonham, to tell me how far this Bill discriminates between the theatre and the B.B.C., because I think that the B.B.C. is a far greater potential danger to the things we want to discourage by law.

In conclusion, may I say that I support the suggestion which the noble Lord, Lord Cobbold, made at the end of his speech. When I looked at this Bill and the debates on it in another place, I thought a good deal about this, and it seems to me that his suggestion, in principle, is a good one. He put it on the ground that there should be general protection for the living and for people who have recently died; but he also drew a distinction, which I think is perhaps even more important, between people who can, with the consent perhaps of the Attorney General, bring an action for defamation on their own, and people who, whatever position they may occupy, are, in practice, debarred from doing so—people like the Head of the State, and others who may not be in a position to get redress of their own accord. I would therefore ask the promoters of the Bill—and I hope the Government—to consider carefully the suggestion which the noble Lord, Lord Cobbold, made at the end of his speech, with a view to introducing some Amendment at a later stage in the Bill, either in Committee or, after discussion, on Report, which would give effect to this, in my view, most desirable and reasonable suggestion.

4.22 p.m.


My Lords, some two years ago 1 spoke, at what I realised on reading through my copy of Hansard was at inordinate length, about this matter and introduced a great many arguments why I thought censorship of the theatre, according to its present form, should no longer continue. I do not want to bore your Lordships with a repetition of those arguments this afternoon. Since then, however, I have had the honour to be a member of the Select Committee which was set up to inquire into the matter. I have thought about it a great deal, and I should like, if I may, to take up a few minutes of your Lordship" time with one or two reflections which seem to me to be important.

This was the first Select Committee that I have sat on, so I could not compare it with any others; but the one thing that struck me was the fact that on the principal point we were all in agreement from the very first meeting. This was that, whatever we might think about the desirability of some sort of censorship, such a responsibility should not fill on the Lord Chamberlain. We were equally unanimous in appreciating that the present Lord Chamberlain and his immediate predecessors had exercised this unenviable function with understanding, sensitivity and perception. At the same time, we all accepted the fact that it was basically anachronistic and illogical, and made just about as much sense as if one were to hand over the administration of the Queen's Household to Sir Laurence Olivier.

That being the case, we then looked into the general question of the broad, overall situation of censorship in this country today. As it at present stands, we are faced with the extraordinary situation by which the more widespread and universal the medium of communication, the less censorship is imposed upon it. The most universal of all mediums of communication, the written word, is subject to no pre-censorship. The next most universal one, and surely the most significant innovation in the world of communications since the invention of printing—television—also has virtually no censorship, except a certain amount of what could be called self-imposed censorship by the Board of the B.B.C. or of the Independent Television Authority, who are themselves Government appointees.

We next come to the cinema—rather less widespread, but still enormously popular and highly influential—where we have the British Board of Film Censors, a voluntary body, once again extremely enlightened but, although voluntary, almost universal in its application in this country. Finally, we come to the theatre, I the smallest and most restricted, the most sophisticated, the least likely, one would have thought, to deprave or corrupt, and we find this great machine of pre-censorship which, as has already been said this afternoon, brooks of no appeal and is, fortunately, one of the last vestiges of autocracy and totalitarianism in this country.

The Bill which we are discussing this afternoon will have the effect not only of abolishing the present system as we know it, but of abolishing all forms of official pre-censorship for the theatre. In other words, it will put the theatre more or less on a level with the degree of censorship which now applies to the written word. As I see it, once this Bill is passed the theatre will be controlled, broadly speaking, by the provisions of four pieces of legislation; that is, the Obscene Publications Act, the Defamation Act, the Race Relations Act, and, rather surprisingly, the Hypnotism Act. This would seem to me to be an enormous improvement on what we had before.

But just what is it going to mean, in practice, so far as we can tell? When this question was being discussed in another place, it was suggested that after a brief period of glorious freedom things might well become rather worse than they were before. I take exactly the opposite view. I think that to begin with there will be an instinctive drawing in of horns all round. It was made very clear by Mr. Emile Littler and the representatives of the Theatre Managers' Association when they came and gave evidence before our Committee: that, if we were going to abolish all forms of censorship, the theatre managers would find themselves obliged to impose their own censorship. Mr. Littler also made absolutely no bones about the fact that if this were done it was only to be expected that the theatre managers, who, after all, stood to lose many tens of thousands of pounds if they guessed wrongly, would impose a form of censorship which would be just as binding (in that without money it is impossible to put on a play) and at the same time a good deal more stringent than that which at present exists.

I think we must accept the probability that this will be the case for a certain period of time. Fortunately, the play- wrights, producers, directors and actors to whom we spoke and who gave evidence also admitted that this might be the case, but were still prepared to accept that risk rather than to continue with the existing system, or anything like it. It may be that we shall find that this will prove to be a more serious danger than we thought. It may be that we shall find a great many first-class plays which do not get accepted by theatre managers. If this is the case, I suppose it is possible that we may have to think of some form of advisory committee which would be able to give some sort of semi-official imprimatur or indication that a prosecution would not occur if such a play were put on. I hope that this will not be necessary, and I do not think it will be.

There is already an enormous body of precedents than can be used—plays which Lord Chamberlains over the past ten or fifteen years have accepted and licensed, as well as those to which they have refused licences—which all give some indication about what can and what cannot be done. And the fact remains that nearly all the countries of Western Europe—all the non-totalitarian countries; those which have nothing to fear—manage to get on extremely well without any system of this kind. I cannot believe that we are less responsible than any of our neighbours and that, when they succeed, we shall be unable to get by.

The one thing that frightens me a little is that I think two of the speeches we have heard this afternoon have referred to the possibility of prosecutions being heard before a jury. I am not enough of a lawyer to know to what extent it will be necessary for such cases to be tried before a jury, but I should like to say that I am extremely worried about whether any case of this kind tried before a jury will get the treatment it deserves. I yield to no one in my admiration for the jury system as such. But we are not talking in this case about right or wrong; we are not looking for common sense. What we are looking for is artistic or literary appreciation, sensitivity and taste. I very much doubt whether 12 men good and true, picked out at random from one of forty telephone directories, will be able to give the sort of judgment that we need.

We saw this the other day in the case of Last Exit to Brooklyn, where there was an enormous quantity of admirable evidence given in favour of a book which seemed to me certainly to be strong and powerful, utterly sincere and worth a hundred Lady Chatterleys. Nevertheless, the case was decided by 12 people, many of whom, I suspect, had not read a book for a very long time and had very little idea of what they were in fact passing judgment about. I am afraid that this might happen, and I am therefore delighted to see written into this Bill that no prosecution, in England and Wales at least, can be introduced without a fiat of the Attorney General.

I understand that at a later stage in the proceedings on this Bill an Amendment is going to be proposed which will make it necessary for anyone putting on a play to lodge a copy of that play with the British Museum or some other responsible body. There is one disadvantage in abolishing the system of censorship by the Lord Chamberlain as it stands at present. At present the Lord Chamberlain must receive and keep a copy of every play put on on the London stage. Perhaps I should declare my interest. As Chairman of the British Theatre Museum I am vitally interested in the question of British theatre history being preserved; and I am afraid that since a good many plays are not published, and therefore will not by terms of the Copyright Act go automatically to the British Museum, this will mean that an important archive of the British theatre will be lost, unless some sort of legislation is introduced to preserve it.

I would go further. What I should like ultimately to see (and this is another old hobby-horse of mine, although I have no intention of suggesting that it be included in the present Bill) is a system by which every play put on in this country publicly should in fact be recorded, in the simplest possible way, on film, by the simple expedient of putting a ciné camera in the front row of the dress circle and a tape recorder in the wings, switching them on when the curtain goes up and switching them off when the curtain falls, and lodging the recordings with the British Museum or the British Film Institute, (which has already offered to take them) in order that we should have a permanent record of the English theatre and its productions.

One of these days I hope that may have the privilege of introducing such a Bill in your Lordships' House, but that is not for the moment. At present, all I should like to say in conclusion is that this Bill seems to me to be extremely long overdue. I hope that, with or without Amendments, your Lordships will give it a Second Reading. Before sitting down, I should like to congratulate not only the noble Lord, Lord Stow Hill, and Mr. Strauss, who have been so instrumental in bringing it about, but also the noble Lord, Lord Annan, who two years ago introduced the debate which has brought this Bill about. We are very grateful to them all.

4.35 p.m.


My Lords, I rise to support the Second Reading of this Bill, and since, the speeches already made on it have explained it very adequately and lucidly, I can confine myself to two points, one of which has been mentioned already and the other of which, I think, has not. I should like to say a word first of all on the question of blasphemy. As has already been explained, the Bill contains nothing on this particular subject, although the matter was raised in the evidence given by the Archbishop of Canterbury to the Joint Committee. I would not argue that the omission of any particular section relating to blasphemy was wrong, because I think blasphemy is very hard to define. You will remember that Christ Himself was accused of blasphemy. Blasphemy certainly does not consist in depicting God upon the stage. Some of us will remember that very moving and reverent play, Green Pastures, in which the Deity is depicted as an old Negro with a white beard. But I believe that plays should not in general offend against religious convictions, and I have been thinking and wondering what is the way out.

The Joint Committee put on one side the idea of a pre-censorship body estabfished by Statute; and I think it was right in so doing. But there is something to be said—it has already been mentioned —for a non-statutory body, a voluntary body, to which playwrights and theatre managers could submit their plays. This would have two effects. It would, to some extent, although not in an entirely legal way, protect the manager and the playwright from vexatious prosecution, because a play which had passed and was agreed to by such a body would be unlikely to be prosecuted against. But it would also protect us against a competition in violence and obscenity, which is all too possible. It will be remembered that the standards of the B.B.C. declined very rapidly when I.T.A. came on the scene, and for a very obvious reason: because the B.B.C. had to appeal to a mass audience. So the standards declined and there were complaints, and the B.B.C. and I.T.A. had codes; in one case the codes were imposed, and in the other accepted voluntarily.

I think it is pure fantasy to believe that there are a whole lot of geniuses in the wings all ready to produce obscene plays which are sensitive and admirable in every way, and which the public is longing to see. There are no such people really. But there are men who know quite well that obscenity and Violence attract a certain type of audience and can be turned into good money. It is people like that against whom I think theatre managements must guard themselves. How can they do so? Only by the establishment of some kind of voluntary body composed of theatre managers, playwrights, actors and one or two lay people from outside as well, something analogous to, let us say, the Press Council. Increasingly it is necessary for professional bodies to have a code of conduct, not in order to inhibit and tie people down, but to prevent the evil element which is in every profession and vocation from coming to the top. So my first point is just simply this. Although I can see that we as a House can do nothing about the establishment of a purely voluntary body such as I have mentioned, I hope my words right reach outside the House and might have some influence on the creation of such a voluntary body to which plays might be submitted.

The second point is quite a small one. Increasingly to-day churches are being so designed as to allow a play being held in them—a religious play, a Nativity play, or some other kind of play. It seems to me—I have read the Bill with some care—. that once this Bill is passed every church which allows a play to be acted in it, unless it has a licence from the local authority, will be subject on prosecution to a fine of £200. I do not wish the incumbents in my diocese, where not a few Nativity and other plays are produced in the churches, to be subject to this penalty. Therefore, I hope that this matter can be looked at in Committee to see whether, if I am right, some provision could not be made for exempting churches from the provisions of the Bill.

4.41 p.m.


My Lords, having been a member of the Joint Committee of both Houses of Parliament, on whose Report this Bill is based, I do not find it difficult to give this Bill general support, and I too hope that your Lordships will give it a Second Reading. It has already been said that the Report of the Committee was unanimous, but I do not suppose that all the members of the Committee reached their conclusions for precisely the same reasons, though perhaps that makes their unanimity more impressive.

I should like to state briefly the main considerations which actuated me. I began with the view, to which I had given some expression in the earlier debate in your Lordships' House, that it was no longer appropriate that the censoring of stage plays—and only stage plays—should continue to be made by Parliament the responsibility of the Lord Chamberlain. Censorship in a free-speaking country, whatever is done or not done, never ceases, as has already been said, to be a controversial exercise; and the controversy does not come only from one side. I agree entirely with my noble friend Lord Cobbold that it is not a good thing (I think his words were, that "it is not in the national interest"; and I agree) that the head of the Sovereign's Household should be the central figure in what is in fact a continuing controversy.

No doubt there were quite different conditions when the Lord Chamberlain first, in history, began to take an interest in plays, more than 400 years ago. Your Lordships will perhaps pardon me if I make the observation that there has perhaps been something in the effort and prudence put into its administration over the years which has enabled it to survive for so long, and indeed to survive several previous Parliamentary inquiries. However, for my part I do not think it would be prudent to continue with it in the context of to-day.

Having reached that first conclusion, the main question, to my mind, which had to be resolved was whether there should be any other form of censorship. Here, if I may again express my own view, I thought there was great force in the argument that writers of plays which are to be performed on the stage should have the same freedom as the law allows to all other writers—including, it may be noted, the writers of plays for television. There is an argument that a performance on the living stage has a greater effect on people than what is written in books, or seen on films or on the television, and that that justifies a different form of control.

That may have been a well-founded argument when the play on the stage was almost the only form of dramatic expression, but it loses much of its force to-day, when the numbers who go to theatres are quite small compared to the multitudes who watch television or who read paperback books. If there is a need for a guardian of morals—and that is something which the Lord Chamberlain has never claimed to be—he would have to begin in those spheres rather than with stage plays. My conclusion is that if we do away with the administration of the Lord Chamberlain—and for the reasons I have given I think we should—we had better not give the job to anybody else. It might be more rigid; there might be more delays; it would certainly be more expensive; and it is only fair to add that there appears to be no rush of applicants for the job.

Following the Report of the Committee this Bill, if it becomes law, will do away with the censorship of plays. Of course there is a risk in taking this step, and I should like to look for a moment at the probable consequences. Looking first at the problems of theatre management, they were not anxious to see a change in the present system, and I hope that the changes with which this Bill will face them will not present them with great difficulties. The Committee were at pains to make proposals on two matters which are important to management: that there should not be harassment by trivial prosecutions, and that local authorities should not assume the powers of censoring if Parliament decides to abolish censorship.

My Lords, I believe that the Bill meets both those points. With the Lord Chamberlain's power removed, however, a larger responsibility will develop upon management. Some fears have been expressed that that may result in a greater restraint on the dramatist than the administration of the Lord Chamberlain. Time will show, but I doubt whether those fears will prove to be justified. Theatre managements must be expected to know their own business, and I think they would be restrained less by fear of prosecution under the law than by their experience of what the playgoing public is prepared to endure.

Turning to the dramatists, under this Bill they will get, I think, what many of them—apparently not all, but many have been asking for for many years: the same freedom as other writers. That freedom is not unlimited because, to quote from the Report of the Committee, Parliament recognises the possibility of causing "intolerable offence". Hence the laws of obscenity, blasphemy, libel and so on. To my mind, the real risk in this Bill is that the law may not be quick enough or effective enough to deal with "intolerable offence". Again, time will show, but I think it is a risk which has to be taken. It is already taken with regard to newspapers, books and television, and I do not think that stage plays need be regarded as being more prone to cat sing intolerable offence than they are.

However, I should like to say here that I listened with a good deal of sympathy to the suggestion made by my noble friend Lord Cobbold. One of the principles implicit in this Bill' is that the law can be used to protect people from intolerable offence, but there are just a few categories of persons, including the recently deceased, who cannot in fact go to law. I believe that this Bill will be more complete if an Amendment can be made to meet that point, and I hope that the noble Lord, Lord Stonham, will give consideration to such an Amendment.

My Lords, for better or for worse this Bill, if it passes into law, will bring to an end the censorship of plays. It will do more than that. It will bring to an end, as my noble friend Lord Cobbold said, the close link that has for so long existed between the stage and the Lard Chamberlain. That has been much more than the shackle of censorship which some unhistorically minded critics would have it. Some of your Lordships will know that for at least nine years Shakespeare himself was one of the Lord Chamberlain's Players, and I think I am right in saying that a First Folio of Shakespeare was dedicated to the Lord Chamberlain of the day. That kind of link with the theatre has persisted in different ways for centuries. I should not like to be numbered among those who are happy to see old things and old traditions pass away; and although this Bill will, I expect, become law—and I think it should—I hope that that long and honourable relationship between the stage and the Lord Chamberlain will not be entirely lost and that some way of continuing it will be found.

4.52 p.m.


My Lords, I begin by thanking the noble Viscount, Lord Norwich, for the generous way in which he referred to the fact that two years ago I was given the opportunity to open a debate on the subject of theatre censorship. But of course the praise, in the case of this Bill, goes to the noble Lord, Lord Stow Hill, for introducing it to your Lordships' House, and, of course to Mr. Strauss for having fought the battle through in another place. I do not want to go over any of the ground that was covered in that last debate which we had two years ago. I will just try to respond to one or two points that have been made this afternoon.

I think those who are in favour of this Bill's passing have to admit that the theatre will take a little time to settle down after it has passed. And perhaps I may disagree on one point that was made by the noble Viscount, Lord Norwich. He said that it might lead immediately to a drawing in of horns; that is to say, that we should find that some theatre managements would be extremely rigorous in their pre-censorship. I think this may be the case; but it may also be the case, as the noble Lord, Lord Cobbold, said, that one of the ways in which theatre managements have advertised their plays in the past has been by saying that they have been severely "blue-pencilled" by the Lord Chamberlain, and consequently when this Bill becomes law, it may be that they will say, "Come and see this play, which the Lord Chamberlain would have 'blue-pencilled'." It will take a little time for the public and the theatre to accustom themselves to new conditions. I am not worried about this. But when we have before us, if this Bill becomes law, cases in which there have been in the opinion of many, the mass of people in this country, a breach of taste, this Bill should not be regarded as an example of rash and ill-prepared legislation.

There will always, I think, on any issue of liberty, be difficulties of this kind. The shocking case of the "Moors murder" some time ago, provided admirable ammunition for the censorship of books, because there was no doubt that the convicted had in fact been influenced in their actions by reading what many people would call sadistic literature; yet we all know that these are the risks which any free society has to run. I feel that the kind of risk we are running in relation to censorship of the theatre is really very small.

I wondered whether I could meet one point which was raised by the noble Earl, Lord Scarbrough; that was, that this Bill may be a little slow in its operations. I wondered whether the noble Lord, Lord Stow Hill, would agree with this. I think there are provisions in the Bill by which it would be possible to secure quick action, and certainly with the appeal to the Attorney General I should have hoped it would be possible to get action reasonably quickly—that is to say, within the comparatively short time of a week. Perhaps the noble Lord, Lord Stonham, when he replies, can clear our minds on this point.

Then there is the point raised by the noble Lord, Lord Cobbold. He wanted what I might call a "good taste" clause. Is it possible to devise some clause which would protect the recently dead, and living personages, from abuse upon the stage? I must confess that I shall scrutinise any such Amendment very carefully indeed, because I think such an Amendment will run into insuperable difficulties. Where you have the case of the B.B.C. and the I.T.A., here are two Authorities, and an Authority is perfectly capable. without legal interpretations, of deciding what is or is not good taste. But unless you set up a Theatres Authority I do not see how it is possible to have a clause of this kind governing questions of good taste.


My Lords, if I may intervene, I think there is a slight distinction between good taste and the phrase which I used, which was, "an offence to public feeling". I see a slight difference.


My Lords, I take the noble Lord's point. As I say, if an Amendment of this kind is to come before us, I should like to see the Amendment when it is drafted.

Finally, perhaps I may comment on the suggestion to which the noble Viscount, Lord Norwich, referred, and to which I understand the noble Lord, Lord Faringdon, will be referring in his speech. Here I declare an interest, as a Trustee of the British Museum. I hope very much that it will be possible to have an Amendment of the kind suggested, which, if I understand it rightly, would simply require theatre managements to do exactly what they do now, but to change the address on the envelope. Instead of posting the script to the Lord Chamberlain's Office it would be a matter of posting it to the British Museum. I think this is of value from the point of view of our national archives. If we have had an archive of this kind going on for 200 years I feel very much about it as I feel about the situation of the British Museum Library: if you have had a Library next to the Museum why separate them? But I hope that the noble Lord, Lord Stonham, will take the first point, rather than the second.

May I make one other point?—and it is this. We may face, I think, with theatre managements a desire not to fall foul of the law in the early stages, and this could lead to an undesirable form of pre-censorship. Moreover, there is the risk that any case which comes before the courts may be treated harshly by a jury. But this is something that those who sponsor this Bill have got to accept. You cannot have it both ways: if you wish there to be no censorship, you have to accept the consequences in the courts.

I remember two years ago the noble and learned Lord, the Lord Chancellor, delivering a really impassioned address, which moved me very greatly, in favour of freedom of the theatre. He asked sim- ply why this country should be different from any other country, why we should not allow the normal operation of the Common Law to take its course. He was right and I believe that the Joint Select Committee backed this Opinion, though it necessarily has some drawbacks. The drawbacks are that you will, inevitably I think, in the more fluid situation of Common Law have a tendency among theatre managements to pre-censorship.

Pre-censorship takes this form. A theatre management, having a script before it which it thinks is a little doubtful, gets legal advice. It is of course the duty of any counsel who is consulted in this way to consider the interests of his client, and that client is here, of course, the theatre management, not the author of the play. The theatre management might well be advised by counsel that although they could not be certain that a particular play in its present form might escape prosecution, nevertheless there are in the script various risky passages. This kind of advice, which counsel would be bound professionally to give, may well have an inhibiting effect. Nevertheless, this again is a risk that we have to take, and I think that again it will, in the end, work itself out. Over the course of the years, we shall discover that although, like other countries, we have no censorship of any formal kind over the theatre, we shall get used to this curious form of walking naked.

5.0 p.m.


My Lords, I must first of all declare an interest, in that I am a member of—I was going to say "much maligned", but having listened to the debate I do not think this is so—the body known as the Society of West End Theatre Managers, various references to which have been made by some noble Lords who have spoken. Surprisingly perhaps, in the light of the evidence given to the Select Committee mentioned by the noble Viscount, Lord Norwich, I rise to support the Bill. In that I am supported by something that I discovered in my researches in an Act of 1736, which refers admittedly to an earlier Act, to the effect: That all persons pretending themselves to be patent gatherers or collectors for prisons, gaols, or hospitals, and wandering abroad for that purpose, all fencers, bearwards, common players of interludes, and other persons therein named and expressed, shall be deemed rogues and vagabonds. I do not think that anybody would now say that an actor, or perhaps I should say a common player of interludes, was a rogue or vagabond.

The Society of West End Theatre Managers' attitude to the Bill has altered somewhat since the evidence which we gave to the Select Committee. In the evidence the Society submitted a memorandum containing a text of the resolution passed at a special emergency meeting in September, 1966, expressing the hope that the Lord Chamberlain would continue in office as censor of plays. This decision was almost unanimous, because the three State-subsidised theatres were not present at the meeting. The Society has now had the opportunity to consider that Report, and still later the Bill based on the Report. Some members of the Society still hold the view that some form of pre-censorship is necessary, but the majority of theatrical managers no longer do so. The right reverend Prelate the Bishop of Manchester advocated some form of pre-censorship body, and I am not sure that one will not be necessary. As a theatre manager, I am not so worried about obscenity and, as opposed to the right reverend Prelate, I am not so worried about blasphemy. But I am worried about libel, particularly as it refers to living persons and persons recently dead.

I am not so sure—and here I am treading a little on ground covered by the noble Lord, Lord Annan—that the West End Theatre Managers or the Theatrical Managers' Association, or at least some body representing managers, will not need to have a panel of legal experts to whom they can perhaps privately present plays for vetting. This would have no official sanction, but managers must have some protection. Until this Bill becomes law they have quite a degree of protection by paying a two guinea fee to the Lord Chamberlain. I am not sure that the fee will not go up, but I feel that some degree of protection will be necessary.

In any event, in supporting the Bill I am sure that I speak for all theatrical interests when I say that they are most grateful to the right honourable Member for Lambeth for introducing it, and particularly for his helpful attitude regard- ing meeting the theatrical managers' points in the Committee stage in another place. I am sure that we are equally grateful to the noble Lord, Lord Stow Hill, for introducing this Bill in your Lordships' House, and that he will take an equally sympathetic line when it comes to possible Amendments although I myself have no intention of moving any.

My noble friend Lord Dundee referred to Clause 4, the clause relating to the law of defamation. Probably I should know the law of Scotland better than I do. I do not know the law of England at all well. But I see that Clause 4(4) says, "This section shall not apply to Scotland". I should be grateful if the noble Lord, Lord Stonham, or some other noble Lord, could tell me why that is so. Why should not this clause apply to Scotland as it applies to other parts of the United Kingdom?

The suggestion made by the noble Viscount, Lord Norwich, and echoed by the noble Lord, Lord Annan, that copies of plays should be deposited with the British Museum or with somebody else fills me with great joy, because I have a complete set of scripts of plays that I have produced, copies of most of which the Lord Chamberlain has, but one of which I knew would not be acceptable to him and was never even submitted to him. It was performed in a club theatre. I should like to find a happy home for them somewhere. To conclude, may I say that far from being rogues and vagabonds, actors, playwrights and managers have progressed and are now accepted as responsible citizens. Many members of the profession have been honoured by the Sovereign. This Bill will free the theatre from specific censorship. With this Bill, I think the theatre will have grown up.

5.7 p.m.


My Lords, I was privileged to be a member of the Joint Committee on Censorship, and though I started with an ingrown abhorrence of any censorship of the arts and literature, I nevertheless had some reservations about the total abolition of the Lord Chamberlain's Office and his functions. I was afraid that such an act, without any change in our legislation, would expose playwrights to the hazards of the Common Law and the prejudices of an uninformed public. In fact, I was afraid that authors would be worse off under the illogical but increasingly benevolent institution, the Lord Chamberlain's Office; and we have other such institutions in our country. Recent Lord Chamberlains have done a good job. It is not an enviable job, as many noble Lords have pointed out, and our special thanks are due to two holders of that office who are here present, the Earl of Scarbrough and Lord Cobbold.

I myself do not share the morbid dislike of Lord Chamberlains, as expressed by those who regard them as oppressive despots who persecute great artists. It is true that sometimes they have rationed four-letter words in plays, but I personally do not find these words either liberating or revealing, and I could dispense with them altogether. The often biased political blue-pencilling I regard as more disquieting, and slightly more serious. If MacBird can be acted in America, why should it be banned here? —ostensibly, to shield the President of the United States.

As the evidence was unfolded in the Committee for and against the abolition of pre-censorship, I had to improvise a kind of mental pair of scales, putting the arguments for abolition on one side and the arguments against abolition on the other side, and weighing the risks in each. In this context it was interesting to find that those playwrights and managers who ran the biggest risk if this Bill were passed, were the ones wholly for abolition, and those who wrote and presented more straightforward, less avant garde, and lighter entertainment, were for keeping pre-censorship and even for hanging on to the Lord Chamberlain. It was his permission they still sought and longed for.

So in spite of my opposition to all forms of censorship in literature or the arts, I did not come to the unanimous decision of the Joint Committee easily. But after listening to all the arguments and the evidence I was convinced that the principle of freedom of speech and expression—the principle I steadfastly defend in the Human Rights Committee at the United Nations—must apply equally to the theatre as to literature, and at this moment when the Lord Chamberlain has found the contradictions of his office unbearable it was time to have an experi- ment, at least, in the total abolition of theatre censorship.

This, my Lords, I think is the first step, even if further legislation may be necessary to meet and counter any grave risks. This is a recurrent risk in any advanced democracy where we are continually challenged to back the principle of freedom and to take a risk on its practice. After all, satire is the best safeguard against tyranny and bureaucracy. But here, my Lords, I must slightly disagree with the noble Lord, Lord Cobbold, who said that satire was never offensive to the public generally. I think it is sometimes very offensive. However, if Stalin and Hitler and all the other dictators could have been lampooned in their own countries, the history of the last fifty years would have made lighter reading.

To-day we speak of the permissive society, and we have become very explicit about sex on the stage; and yet we think that the main task for censorship, for the censor, is concerned with sexual licence. But I believe, like many others, that to-day the greater danger to society is not how an author deals with sex relations in a play, but how he presents the problems of violence in human nature. There was recently a most revealing and instructive example on the B.B.C. of the different way in which people react to sex and violence on the screen. It was in a programme called "Talk Back", in which viewers were invited to come and voice their opinions about a particular film which had been shown, and criticise this film. It was a Swedish film, and a very frank Swedish film, containing a scene in which a near nude young couple made love.

The predominant reaction was one of disapproval and prudishness in varying degrees. They attacked the producer very hard and he then counter-attacked. The producer showed them a film of some horrifying scenes from the newsreels of the Vietnam war. He asked them whether they minded these being shown. None of the people who had been so prudish about the sex film raised any objection about the horror and the cruelty which had been plainly depicted on the screen. They did not disapprove of it at all, and they were not shocked. My Lords, this must make us seriously consider the way in which we shall have to deal with the presentation of violence in the theatre if this Bill is passed, as it is not sex which is going to be our major anxiety in the near future, but subjects like violence and racial hatred which will preoccupy our dramatists. That is why I am in favour of including Clause 5, and do not agree with those who think it is out of place in this Bill and should be confined to the Race Relations Bill.

One problem that taxed even those members of the Committee who were in favour of no censorship was that of the Monarchy. Many people feel, and many Lords have expressed this feeling this afternoon, that a special provision should be made in this Bill for the Queen and members of the Royal Family, if they are attacked or pilloried on the stage. I myself, I must confess, have few qualms about this, because I believe that only a robust Monarchy can survive in the 20th century, and it is the respect, the admiration and the affection in which the Queen is held that protects her more than any special piece of legislation we might devise.

As a matter of fact, I was thinking during this debate of the time when I met the recent Queen of Greece—now the Queen Mother— at a party a few years ago. She had been very shocked because there had been a demonstration against her outside Claridges. I must contrast this with the attitude of Her Majesty the other day when the students protested on a visit she made to some university. It just shows the difference between a strong monarchy and a good one, and a weak one. If the Queen were subjected to a mean and spiteful attack she would have countless advocates among the public and in the Press to defend her. We are now, as a matter of fact, witnessing the revulsion against an attitude of unquestioning reverence for General de Gaulle in France.

Then there is the question of the presentation on the stage of living persons and those recently dead in a harmful or hurtful way. They are not exempt in books and newspapers. and it seems to me that it would be an anomaly if we excluded them from the theatre. I do not believe that we could possible do so. We cannot guarantee the fairness or the saintliness of playwrights—they can be as nasty as any other human beings—but, my Lords, just as indecency can be dealt with by the Common Law, so can the libelling of living persons; so can the protection of the Monarch and the Constitution so can offences against religious beliefs and against order and peace. All of these should be capable of being dealt with by the contemporary or future legislation of our country.

Other comparable countries, as many Lords have pointed out, have done away with censors. Surely we are not more liable to depravity or corruption than they are. The theatre is not just a vehicle for entertainment it is a method of exploring the truth about human behaviour and personality. As other noble Lords have pointed out, it cannot be confined within the bounds of what we call good taste. It has to be as free as possible so long as it does not incite to hatred or violence. Finally, my Lords, I should like to thank my noble friend Lord Stow Hill for his most lucid introduction of the Bill, and I give it my wholehearted support.

5.19 p.m.


My Lords, like the previous speaker I, too, was a member of the Joint Select Committee, and accordingly I naturally welcome this Bill, though with certain reservations which I shall mention in a moment. I should like to begin by adding my tribute to the skill with which the Chairman of our Committee, Mr. Strauss, steered the Committee to its unanimous conclusion, and indeed for the skill with which he has sponsored and brought this Bill successfully through its various stages in another place. I also should like to pay tribute to the Government, who have earned considerable credit for supporting a libertarian measure of this kind among their many other weighty preoccupations.

The argument for the abolition of pre-censorship is expounded in the Report simply and decisively, and I do not propose to repeat it. But if pre-censorship in the theatre is quite indefensible and ought to be abolished, there are still certain practical problems which remain. I feel that authors and dramatists have somewhat under-rated this matter. I have noted from the speeches this afternoon that noble Lords also seem to have played down these risks. I listened with interest to the observations made by the noble Viscount, Lord Furness, and to his intimation that there had been some change of view on the part of the Society of Theatre Managers. One must recognise that in recent years the Office of Lord Chamberlain, especially under the enlightened direction which it has enjoyed during the reign of its last two incumbents, has afforded valuable protection to theatre managers and dramatists alike. There are considerable dangers to the theatre if a state of timidity is allowed to prevail as a result of the abolition of censorship. One must bear in mind that the drama involves the investment of considerable sums of money. When large sums of money are at risk in staging plays, one can hardly blame theatre managers and producers if they take account of the possible risks and deterrents which are involved if there are possible threats or fears of prosecution. It is not an exaggeration to say that for some considerable time authors may find that they have exchanged a relatively enlightened régime for a comparatively severe form of pre-censorship.

In the Bill, a good deal of trust is placed in two so-called safeguards. The first safeguard is the defence of public good in Clause 3, which is borrowed from Section 4 of the Obscene Publications Act 1959. This is a shield of doubtful efficacy. My own personal experience as a member of the defence team in the case relating to the book Last Exit to Brooklyn brought home to me the small value which can be attached to the provisions of that section. That case showed what can happen when a book with a distasteful theme and a distastefully frank treatment of that theme is exposed to the icy wind of a jury—which I say, without any disrespect to the jury involved, may be one of little or no literary background. One may find all too easily that a book may be condemned, despite a formidable body of eminent literary and sociological opinion as to its merits. One then has the position of a gallant defender of literature finding himself with a condemned and unpublishable book on his hands, with his investment and property destroyed, and indeed with a huge bill of costs to meet. The position with regard to plays may in many ways be even more vulnerable. There is far more money at risk, and there is also a con- siderable amount of employment involved. So the dangers inherent in this situation in regard to a play may be much greater than is the case with a book.

In this context I would draw attention to the provisions of Clause 3 of the Bill which, rather surprisingly, is framed in narrower terms than Section 4 of the 1959 Act. The 1959 Act provides not only for the defence of public good in the interests of science, literature, art or learning but—and these are the crucial general words— of other objects of general concern. These words are omitted from the present clause. I am not clear why they have been omitted, but I would point out that in regard to cases under section 4 of the 1959 Act it has been accepted that these general words cover what is sometimes described as cases involving sociological or ethical merit. One may well have the same situation in regard to a play. One may have a play with relatively small literary merit, or not sufficient merit to come within the definition of Section 4, but which nevertheless is an important social document. Consideration ought to be given to whether this safeguard might not be enlarged by re-introducing those general words.

The second safeguard; namely, the fiat of the Attorney General (who was preferred for this purpose by the Committee to a Judge in Chambers, which was the original suggestion) as a necessary pre-condition of a prosecution, is a safeguard of some importance. The fact remains that, although the Attorney General of the day can be relied upon to apply his mind dispassionately to this question, in matters of this kind many pressures may be engendered which may put him in a delicate situation. In the well-recorded instance of Last Exit to Brooklyn one knows how a change of mind was induced as a result of certain steps which were taken. Admittedly the private proceedings, which no doubt had the initiating effect in that instance, can now no longer be brought, as a remit of an amendment which has since been introduced, quite rightly in my view, into the law. But one would have thought that this was a difficult matter to leave to a person in the situation of the Attorney General. I am still disposed to the view that it would be better, and a more satisfactory safeguard, to entrust this role to some kind of independent committee on which dramatists and producers might be adequately represented. I hope that some further consideration may be given to this matter.

I also suggest that the safeguards might be strengthened if it were the rule that before a prosecution was launched the responsible authority first provided full information to the producers of the play threatened with proceedings as to what was regarded as objectionable in order to afford an adequate opportunity to the producers and managers to consider the matter and to modify the play, it' they so wished, in order to avoid a prosecution. I do not know whether it would be possible to reduce this approach to a precise legal formula to be introduced into the Bill, but I submit that it is something which deserves serious consideration at a later stage.

The drama in this country is undoubtedly one of our greatest cultural achievements, and in recent years it has flourished to an extraordinary degree despite the activities of the Lord Chamberlain, whose restrictive influence has in my opinion been somewhat exaggerated. Indeed, as I have already suggested, he has in fact afforded considerable protection to many serious contributors to our modern stage.

This is a liberal, progressive measure and I support it in that spirit, but I still think it contains certain dangers to the theatre which we ought realistically to have in mind. My hope is that when this Bill becomes law it will be operated in a spirit which will allow full scope to the free expression of the creative talent in our theatre. Such talent can surely only flourish in an atmosphere of genuine freedom unhampered by petty-minded prosecutions.

5.31 p.m.


My Lords, I shall detain your Lordships for only a very few minutes, but I wish to stress a point which has already been made, and, I am sure, made better than I can make it by the noble Viscounts, Lord Norwich and Lord Furness, and by my noble friend Lord Annan. I refer to the documents which have for centuries been in the charge of the Lord Chamberlain. They form what is possibly the finest theatrical library in the world, and they were collected, as it were, by a side wind, being the result of a rule in Walpole's Act of 1737 that all scripts must be submitted and handed over to the Lord Chamberlain. But with the abolition of the Lord Chamberlain's position as Censor, the supply of documents for this unique collection will cease unless something is done to see that it is continued.

I suggest that the collection is well worth continuing, not only for the sake of the scholars, the students and all who are interested in drama or sociology, but also because it has a practical use even now, as it is laid down in Clause 9 that scripts should be accepted as evidence in prosecutions brought under Clauses 2, 5 and 6. It is therefore to be expected that the continued collection of these scripts would be of infinite value to any producer who was likely to find himself in difficulties with the law. It would be a major disaster if this wonderful collection, which is almost complete since 1737, were to cease to obtain accretions during the future.

I hope that when I move an Amendment at a later stage it will have the benevolent consideration of my noble friends Lord Stonham and Lord Stow Hill. The wording of my Amendment may be faulty, but if it is I ask for the tolerance of your Lordships' House and for the assistance of Her Majesty's Government. But it seems impossible that there should be any objection to it. As my noble friend Lord Annan said, there is nothing new in this. All we are asking is that on the envelopes containing the scripts there shall be the address of the British Museum instead of that of the Lord Chamberlain's Office. There is everything to be said for the continuation of this collection which has only one gap in it—due, I believe, to the action of a Lord Chamberlain whose views on these documents was uncertain, or not the same as those of other people, and the document in question has now found its way to Harvard University. So we may say that, apart from that, the collection is complete from 1737 to the present day. To see such a collection cut off and ended would be a major disaster, certainly for all students and scholars. So I hope that I may have the kindly benevolence of my noble friends who will be taking charge of this Bill.

5.37 p.m.


My Lords, I had not intended to join in this debate, and I ask your Lordships' forgiveness if I leave before the end of it as I have an appointment at 6 p.m.; but I want to say just one or two words. The noble Baroness, Lady Gaitskell, spoke of her desire for freedom in regard to the stage. I agree that freedom is a very desirable quality, but one must remember that it can be abused. The noble Baroness quoted the contrast between sexual irregularity on the stage—


My Lords, it was not sexual irregularity; it was really a quite harmless shot in a Swedish film showing two beautiful lovers making love.


I am sorry, my Lords. The noble Baroness contrasted that with a film showing the violence of Vietnam. Of course, what has been overlooked is the fact that some films or plays glamourise immorality or violence, whereas the news merely shows it, and shows it to be horrific. I quite agree that if the news glamourised violence it would be a bad thing; but it does not.

Secondly, I heartily agree with my noble friend Lord Dundee that television is a far more dangerous mode of conveying undesirable things to the public than is the stage. For one thing, television is available to everybody throughout the country, whereas theatres are not. In addition, television plays come on at a time when children are likely to look at them, which is not the case with the theatre. Moreover, the audience for television plays is equal to that of all the theatres in the country. Therefore I think that this excessive exclusion in Clause 7 of the B.B.C. from any liability so far as the previous clauses are concerned is a great mistake, and if nothing is done I shall certainly hope to put down an Amendment myself to deal with it. Those are the two points I wished to raise, my Lords, and I hope that they will be considered.

5.41 p.m.


My Lords, I join with other noble Lords in thanking my noble friend Lord Stow Hill for the service he has rendered to this House in moving the Second Reading of this Bill; for his very clear exposition of the details of the Bill; and, above all, for his extremely eloquent and at times passionate advocacy of its main constituents. This is a somewhat special occasion in many ways. Like many important occasions, it is witnessed by the select few —almost the selected few, because the twelve speakers so far have included no fewer than four members of the Select Committee and the star witness, a id for a considerable period we have even had the presence of my right honourable friend who sponsored it in another place "in the wings", as it were.

It is a very important occasion also because to-day we are beginning—we are in the final stages, as I think—to make a change in a system which basically has endured for 250 years and which has existed in its present form for 125 years, and yet we are virtually unanimously agreed. I have heard all the speeches, including, of course, those of the noble Lord, Lord Cobbold, the present Lord Chamberlain, and of his immediate predecessor, the noble Earl, Lord Scarbrough, who basically have said the same things and have been in agreement. The main essential of what they have said is that the post they have both held should come to an end; and the noble Earl, Lord Scarbrough, was quite explicit in saying that when his noble friend gave up the duties of Lord Chamberlain no other person should assume them.

I think this is another of a growing list of what I regard as progressive measures which have seen their beginning in your Lordships' House, and I am quite sure it must be a great satisfaction to my noble friend Lord Annan, who proposed the original Motion for the setting up of a Joint Committee, that he should now see what amounts to the fruition of his hopes in the Bill we are now considering. Furthermore, as my noble friend Lord Lloyd of Hampstead suggested—and it is nice to hear these things—the Government are entitled to take some credit, not only for finding some time for this Bill but for the fact that they announced their support in principle of the Joint Committee's recommendations as long ago as last summer—indeed, immediately the Committee reported—and I am glad to say that nothing has happened since then which has led the Government to modify that position. We helped to draft the Bill, and we wholeheartedly support it; and I am glad to think that we are about to do something which a great many informed people have wanted to see done for a long time.

My Lords, there may be one or two points on which the Government will wish to table Amendments in Committee, and it is obvious from the speeches we have heard to-day that other noble Lords may also wish to table Amendments. I shall have a word or two to say later on some of the suggestions which have been made. So far as the Government are concerned, we consider that any Amendments which are needed are only for the purpose of tidying up loose ends in the field of consequentials and I have no need to trouble your Lordships with them now. In our view the structure of the Bill is right, both in what it does and in how it does it. It is right, perhaps, that at this point I should pay my tribute to the (as I regard it) outstanding work of the Joint Committee under the chairmanship of my right honourable friend Mr. George Strauss. They were not faced with an easy task. They were being asked to take a fresh look at a system that had been in operation for centuries, and a system, moreover, which was concerned with one of the most important aspects of individual liberty—that is, freedom of expression. This is a field in which it is fair to say that there are seldom any quick or easy answers because of the very difficult balance to be drawn between liberty and licence.

I think that this Bill draws that line firmly and well and in the right place. Its effect is to put stage plays on the same footing as books; and, as with books, the test of what is not to be allowed is whether or not it is obscene in the sense of tending to deprave and corrupt. It will be an offence to put on such a play and there will be penalties which the courts will impose for so doing. But this will be something which is decided on the basis of the actual performance. There will be no statutory "blue pencil" beforehand; and the presenters and directors of plays will be free to act in accordance with their own judgment and artistic sense within the general framework of this new criminal offence—as, indeed, we ail do in relation to the criminal law generally. This seems to me to be entirely right, because if being an adult means anything it means being allowed to make up one's own mind about what one thinks and about what one does, and within the law, about what one thinks of what other people do. The pre-censorship of stage plays cuts across that freedom, and I entirely agree with my noble friend Lord Stow Hill—and, indeed, with the whole tenor of this debate—that the time has come when the people who put on stage plays and the people who go to see them should, so to speak, be allowed to come of age and be treated as no less responsible than those who publish books and those who buy and read them.

Anxieties have been expressed during the debate lest this lifting of the barriers of pre-censorship should result in a spate of grossly offensive dramatic presentations and, of course, that is an understandable anxiety. It would be idle to pretend that it could not happen. There is always the risk that freedom will be abused, but it is a risk that this country has been taking, in other contexts, for centuries, and I for one have not so poor an opinion of the generality of the people of these Islands as to reckon that they are less to be trusted when it comes to plays than they are to be trusted with books and paintings, with newspapers and satirical cartoons. No doubt plays will be put on which some of us find offensive —we do now—to our personal standards of good taste. The same can he said of some of the books that are published and the pictures that are painted to-day. But the law should not require work to be submitted for prior approval.

I was very glad to hear the several tributes which were paid during the debate to the work of the noble Lord the Lord Chamberlain, who has striven, in my view very successfully and I believe to general satisfaction, with a task which no man, however accomplished, objective and progressive, should be asked to perform. We are grateful to him for what he has done, but we agree with him, not only that he should be relieved of this burden but that no other person or body of persons should be asked to assume this burden or part of it.

Let us be trusted to act responsibly. and let the law step in when any one of us does something which may do serious harm to someone else. That is why in the Bill the criteria for obscenity are drawn in terms of the tendency to deprave and corrupt. A line must be drawn and the Bill draws it. In the same way, and for the same reason, a line must be drawn where stage performances may be conductive to a breach of the peace or incitement to racial hatred; and the Bill does this, too. That, in the view of the Government, is as far as we need to go.

My Lords, quite a number of questions were put (for clarification and otherwise) including three from the noble Earl, Lord Dundee. He raised a point about Clause 2 in relation to the distinction between public and private performances and performances in a private dwelling which are not caught by the Bill, and performances in a private dwelling which are subject to the penalty provisions. The answer to his question is that this is a formula which, incidentally, is also used in Section 2 of the Gaming Act to take what might be described as family events outside the scope of the Bill. But apart from this the Bill applies to both private and public occasions. It will have the effect of ensuring that Clause 2 will apply to club performances as well as to the ordinary commercial theatre. This follows the recommendations of the Joint Select Committee. In our view it was not possible or desirable to formalise the distinction between family charades and club performances. But in practice the distinction is fairly easily recognised and I do not think there will be much difficulty in practice.

The noble Earl also raised a point on defamation. Clause 4 does not extend the law of libel to broadcasting and television because the Defamation Act, 1952, has already done just that. If the noble Earl will study Clause 4 he will find that that is so.


My Lords, the noble Lord has mentioned only Clause 4, which deals with defamation. I asked also about Clause 2, which deals with depravity.


My Lords, I think the purpose of Clause 4 is perfects clear. I am coming to another question of the noble Earl—I do not know whether that is the one he has in mind. Clause 4(1) indicates that: For the purposes of the law of libel and slander (including the law of criminal libel …) the publication of words in the course of a performance of a play shall, subject to section 7 of this Act, be treated as publication in permanent form. It goes on to say: The foregoing … shall apply for the purposes of … the Defamation Act 1952 This confirms what I have said with regard to the noble Earl's point on defamation: Clause 4 does not extend the law of libel to broadcasting and television because the Defamation Act 1952 has already done so.


My Lords. I am grateful to the noble Lord. Could he say whether Clause 2, which deals with performances whose effects are such as to … deprave and corrupt persons who were likely, having regard to all relevant circumstances, to attend it applies to the B.B.C. as well as to the theatre?


My Lords, I was coming to that question. The Bill does not penalise, or affect in any way, television performances. Clause 7(2) exempts performances given to enable performances to be broadcast. It is clear if the noble Earl looks at that subsection. The reason for that exemption is, first, that the Bill is intended to apply only to the live theatre. Only the live theatre is at present subject to the Lord Chamberlain's censorship. Secondly, the B.B.C. and I.T.A., as the noble Earl is aware, have their own methods of securing the maintenance of standards. Both the B.B.C. and I.T.A. have powers to control the content of their programmes The B.B.C. have it under the general power conferred by their Charter and the I.T.A. have it under the provisions of the Television Act, which specifies that the Authority must ensure that nothing in the broadcasts put out under their ægis should be offensive to public feelings and decency. These words are almost exactly those used by the noble Lord, Lord Cobbold. Both bodies exercise a considerable degree of control over the content of their programmes.

The case for taking performances that provide the basis for films or broadcasts outside the scope of the Bill is chiefly that the end product, to which the live performance is only a means, is already subject to the degree of control that I have mentioned. For that reason it has always been outside the scope of the Obscene Publications Act and similar Acts. It would be illogical for the performance in a television studio to be subject to the Bill when the play as broadcast is not so subject. Section 1 of the Obscene Publications Act 1959 specifically excludes from its scope anything done in the course of television or broadcasting, and nothing in the clauses of the Bill that I have mentioned alters that.

My Lords, the right reverend Prelate the Bishop of Manchester raised the point that performance of a play in a church should not attract the licensing requirements of Clause 11. But Clause 11 requires a theatre licence in respect of any premises in which a public performance of a play is to be given. The justification for this licensing system is its desirability in the interests of public safety: because certain safeguards and precautions must be taken against the risk of accidents on occasions when stage equipment, lighting, inflammable scenery, and so forth may present a serious risk, particularly when the premises are not designed for the purpose. These considerations are surely no less compelling when the performance is in a church than when it is in a village hall.

The noble Viscount, Lord Norwich, foreshadowed, and my noble friend Lord Annan confirmed, that a suggestion might be canvassed by way of an Amendment in Committee that it should become, as it were, compulsory under this Bill to deposit in the British Museum or in other libraries the scripts of all plays performed. I am afraid that this is not a proposal which the Government can support. As we shall be considering this in Committee I will go no further this evening than to mention some of the arguments against it. First, many plays are, in any case, published and printed. Further, publication in written form of that which the author intends is not necessarily the form in which the play is presented on stage. We feel that we should resort to compulsion in a matter of this kind only if it is essential.


My Lords, I take the noble Lord's point. But in fact this proposal is nothing new. This is merely a reinstitution of an arrangement by which in the past all scripts had to be deposited with the Lord Chamberlain.


My Lords, I can assure my noble friend that my interpretation of the suggestion, as made, is that it is very much something new—at least new in the sense that its effect would be very much larger than at present, because it would mean that every play performed would have to be published, even the little Puddlecombe village pageant or some transcient sketch—all would have to be published and go to the British Museum and libraries. There would be tremendous administrative difficulties, quite apart from any other questions.

For example, who deposits them? The author, the impressario, the director? And what script shall be deposited?—because plays change during the run. I am aware that my noble friend Lord Faringdon made a detailed proposal which I shall look at in particular to see whether it has any special features, but I hope that your Lordships will forgive me if I do not pursue this point further now, because I am dealing with the matter by just picking it up from the speeches which I have heard.


My Lords, as the noble Lord, Lord Stonham, mentioned my name, I should like to point out that the Amendment, as I understand it—and I have seen the draft—would not go any further than the present practice, under which a copy of any play is sent to the Lord Chamberlain. As the noble Lord, Lord Annan, explained, it would be merely a matter of changing the address on the envelope. Whoever in the past sent a play to the Lord Chamberlain would in future send it to the British Museum, where, as I understand from the noble Lord, Lord Annan, who spoke as a Trustee, they would be happy to receive it. It is as simple as that.


My Lords, I think that we had better wait until we receive the Amendment, and then we can consider it.

My noble friend Lord Annan asked whether there could be quick action when aggrieved persons thought they had cause for action. Of course there could be quick action under the law: it is always open to an aggrieved person to seek an injunction in the High Court from a Judge in Chambers, and certainly all concerned would appreciate the dangers of delay to which he referred.

The noble Viscount, Lord Furness, asked why the provisions of Clause 4(4) would not apply in Scotland. The effect of Clause 4 is that things said or done in the course of the performance of a play become grounds for proceedings for libel rather than for slander. As the noble Viscount is probably aware, the distinction between libel—that is, written defamation—and slander, verbal defamation, has no practical significance in Scottish law, and therefore there is no point in applying the provisions of Clause 4 to Scotland.


My Lords, I was not aware of that, but I take the noble Lord's point.


At least, my Lords, I have achieved something.

My noble friend Lady Gaitskell mentioned the position of the Queen in terms with which I am wholly in agreement. I hope, and I firmly believe, that what she said will be the case. My noble friend Lord Lloyd of Hampstead, and other noble Lords, mentioned the question of an advisory committee for prosecutions. I think this is scarcely a proposal which should commend itself to your Lordships. Presumably the object would be to ensure that the existence and importance of any literary or dramatic merit in a production shall be fully appreciated before charges are made. That is an object with which one would sympathise, but it would amount virtually to asking the committee to advise upon the extent to which a defence of public good could be raised. Not only would that be incompatible with the normal processes of justice, but the very question before the court would be argued in advance, and argued before a non-judicial body, probably in public. It would also take a great deal of time. And if the deliberations of such a committee were in private, it would, I think, give rise to a great deal of dissatisfaction and suspicion, and we might find ourselves in a very much worse case than we are now.

My Lords, I come now to the major point, if there be a major point, which is at issue in this debate. It has been suggested that an exception ought to be made in respect of the representation of living persons in a stage performance. This concern has been expressed regarding a number of people, including the man-in-the-street and Heads of State. Reference was also made to the recently dead. A number of possible ways in which protection might be secured have been suggested. The Government have had this problem very much in mind, not over the last few days or weeks, but for months, and it seems right that at this stage I should indicate the conclusions which the Government have reached about it.

To put it quite bluntly, our conclusion is that the Bill is right as it stances, and that the protection provided by Clause 8 which makes defamation in the stage performance of a play count as libel instead of slander, is as much as it would be right to provide. The right of free speech is one of the most cherished traditions in this country; and rightly so. It is not something which we should lightly jeopardise or erode, even in a small way, except for the most compelling reasons. It is only right therefore to make clear here and now that the kind of protection that seems to be envisaged. or has been envisaged, by some noble Lords, can scarcely be secured except by what would amount to substantial inroads on the principle of free speech.

I ask your Lordships: is the case for such protection really as compelling as has been suggested? It must be remembered that in respect of the written word, and even more so in respect of the satirical cartoon, the inducemert and temptation to indulge in hurtful and tasteless references to living people is surely quite as great as it would be in relation to a stage play, but no special safeguards have been found necessary. In our view—and here I speak for the Government—there is not a sufficient case for drawing a distinction in this respect between the written and the spoken word, between the line drawing and the acted gesture.

The noble Lord, Lord Cobbold, suggested a possible solution to the problem posed by the portrayal of living persons. He suggested a provision making it an offence to portray on the stage living people, or people who had recently died, in a manner offensive to public feeling. This would be similar to the terms under which the I.T.A. operate. The noble Earl, Lord Dundee, supported that suggestion. This kind of criterion for what should not be allowed on the stage was one which was considered in the general examination by the Government of the whole problem of whether living people should be protected from portrayal in plays. The inescapable conclusion we reached was that it would not be a suitable, or even practicable, formula on which to found a criminal offence. It was too elusive a criterion to serve as a proper basis for criminal proceedings.

The other major disadvantage in all attempts to provide against offences less than defamation is that it would be necessary to place on the shoulders of the Attorney General the responsibility as an arbiter of public taste which this Bill proposes to remove from the shoulders of the Lord Chamberlain. As I have already made clear, it is not in our view a matter where the answer ought to lie with the criminal law. The law of defamation already exists to deal with this kind of thing. The noble Lord, Lord Cobbold, may well ask: if the test of public feeling is all right for television, why will it not do for the theatre? The answer is that the cases are different. In the Act governing Independent Television the words are used to describe the standards which the Authority are to observe, and it is up to them to so arrange matters that these standards are observed. In this situation some generality of description is permissible, but it would be quite different to use the words to describe a criminal offence in the Theatres Bill. Here there must be a high degree of precision and I do not think that for this purpose the words are precise enough.

On the question of persons recently dead, I can only say that the law of defamation does not extend to the dead. And if it is right, as we believe, that plays be put on the same footing as books, and if, as again we believe, reliance for protection against defamatory matter is to rest on the existing law of libel, then it is difficult to see on what grounds one could justify singling out stage plays for special treatment in this respect. The noble Lord, Lord Cobbold, invited me to repeat the assurance given by my honourable friend Mr. Morgan, at the Committee stage in another place, that if a practicable proposal were put forward we should be prepared to examine it. This, of course, stands, but in view of the many unavailing efforts we have made in this direction I am bound to say that there is little prospect of a practicable solution.

In our view the proper remedy for offensive portrayal on the stage should be by way of civil action for defamation, as in any other field of communication or entertainment. This is not an easy matter to resolve and the Government have not come lightly to this conclusion. I know that there are special cases and special circumstances where access to the courts may in practice be ruled out. But special cases make notoriously bad law; and in respect of those particular special cases I have more faith perhaps than some in the sense of fair play and just ordinary decency of the public at large. In this I agree with my noble friend Lady Gaitskell. I do not believe that they would for long, or in any significant numbers, take advantage of the vulnerability of people in that position to make crude or vicious mockery of them, or indeed tolerate that anyone else should do so. It is in the firm belief that this Bill is just about right and will perform a valuable function that I commend it to your Lordships.


My Lords, before the noble Lord sits down, would your Lordships allow me to express from these Benches the great appreciation we have of the Government support for this measure? I was in error in thinking that such tributes were paid at Third Reading. Obviously this is something in which the noble Lord himself has had a part. We know that without this support, both in this Chamber and behind the scenes, not only this but many other libertarian measures would not have been passed; and we associate this very much with the view of the Government and of the Labour Party.

6.14 p.m.


My Lords, I believe that it is consonant with your Lordships' practice that a Member of your Lordships' House who introduces a Bill on Second Reading replies briefly to the debate. At the outset may I associate myself with what my noble friend Lord Annan has just said? My noble friend Lord Stonham very kindly referred to me. I sincerely reciprocate what he said. He has always been a champion of libertarian changes and I think the House is deeply indebted to him. The House will be more indebted to him when I tell your Lordships that because of the comprehensive range of his speech my own speech will be very short, because he has said almost everything I should want to say.

Looking back on the debate, and picking up some points that were raised, I would supplement what my noble friend has said by saying this. The noble Lord, Lord Cobbold, and the noble Earl, Lord Scarbrough, were concerned about living persons and those recently dead. The noble Earl asked whether the law was quick enough to intervene. I might say a word on that. Suppose there is a case in which a person is represented in a defamatory sense in a play on the stage. He is spoken of as being corrupt or depraved or licentious or something of that sort. How would the law intervene? The person defamed goes straight to a solicitor, which he can do the same day, as soon as the matter comes to his notice. A writ for libel (it would be libel in view of the provisions of Clause 4 of the Bill) could be issued the same day. In a very short space of time he could instruct his legal representatives to apply to a judge in Chambers for an interim injunction, and if the learned judge felt there was a strong prima fade case to show that the person had been defamed and that in all the circumstances it was appropriate to do so, he could issue an interim injunction which would have the effect practically of the play being stopped. It could not go on so long as it contained the defamatory matter of which the person defamed complained. It could go on without the defamatory matter being reproduced in the play, but that would be for those responsible for the play to decide. But the law can act extremely effectively and quickly.

Clause 4 of the Bill equates for this purpose the spoken with the written word, so that a number of defences which could have been raised if the person defamed had sued for slander can no longer be raised. Therefore any live person has an effective and drastic remedy which lie can put into effect in a few clays. If it is a question of prosecution, that also can be initiated at short notice. If the material is clear and it is plain that an offence has been committed a prosecution can be launched at once. It very soon conies before an examining magistrate and is soon committed for trial. In cases ,of this sort, which do not have the enormous complications of cases of financial fraud, the law can operate quickly and effectively.

The noble Viscount, Lord Furness, the noble Viscount, Lord Norwich, and my noble friends, Lord Annan and Lady Gaitskell, were apprehensive that if the imprimatur of the Lord Chamberlain were removed there would be, at any rate for a time, considerable hesitation and anxiety on the part of theatre managers. Noble Lords are much better qualified to judge than I am on that point, and I listened with interest to the expression of opinion that proceeded from their experience. I would offer simply this comment. The author who writes a book or the writer of a newspaper article is now inhibited by the Obscene Publications Act. If the writer of a novel is salaciously minded, or if the writer of a poem is so inclined, he is in exactly the same position as the producer of a play. He is at risk of prosecution under the Obscene Publications Act, and he has to make up his mind, taking legal advice from his legal advisers if necessary, as to whether he is safe or not. I should not have thought that experience shows that the Obscene Publications Act operates as such a repressive measure, discouraging authors from expressing themselves on sensitive matters, if I may so describe them,as they choose.

It may well be as your Lordships say—and I accept it at once—that for the time being there may be anxiety on the part of theatrical managers. But I should hope that, as they became more acquainted with the form and the effect of the definition contained in Clause 2, and the reasonable length to which it permits them to go, they would discard their anxieties and be more bold in the productions which they thought it appropriate to put on for the delectation of the public. So far as playwrights are concerned, one knows from watching their resistance to authority in other countries, and from their record in this country, that they are brave people. I believe that theatrical managers are also equally brave when they put on a play which they believe it is in the public interest should appear on the stage. That is the only observation I have to make in regard to that.

Before I sit down, there is one matter that I think it is necessary to take up, arising from an observation made by my noble friend Lord Lloyd of Hampstead. If I understood him correctly, he said that he thought the exercise by the Attorney General of the powers vested in him by Clause 8 of this Bill—namely, the duty to institute proceedings and to give or withhold his consent to the institution of proceedings by some private person—had better be transferred away from him to some body which would advise on the institution of prosecutions, because the Attorney General (I think these were his words) was subject to pressures. I do not know how those words should be interpreted, but if their implication is that the Attorney General gives way to pressures, I think I need say no more than that it is language for which I do not very much care, and I can assure the noble Lord that he need have not the slightest apprehension on that score. 1 have known intimately every Attorney General who has held office over the last 23 years, and I have had some responsibility, and no Attorney General of whom I have ever heard has acted in this way.


My Lords, in view of the observations that have fallen from my noble and learned friend, I feel I should say that, if he will be kind enough to look in Hansard tomorrow, it will be apparent to him that what I was seeking to indicate was that an Attorney General in this situation would find himself in a very delicate and difficult position, and it seemed to me that it would be far better and more satisfactory, from the point of view both of the public and of the theatre, that an independent committee, which had adequate representation on it of producers—


I hope that my noble friend is not going to make another speech.


No; I shall not make another speech. But in view of the observations that fell from my noble and learned friend, I thought it appropriate that I should make clear that I was not for one moment seeking to suggest that any Attorney General would yield to improper pressure. On the contrary, I think I made it plain that of course any Attorney General could be relied upon to approach such a question entirely dispassionately —in fact, those were my actual words.


I can only say that I am extremely grateful to my noble friend for his intervention. I was misled possibly by the use of the word "pressures". I am delighted to hear that I misinterpreted him, and if I did, as he assures me I did, then I think the observations I made were unnecessary, and they are withdrawn.

I need only say, in conclusion, that the debate has, from my point of view, been one of great interest. I shall of course study it with the greatest of care. I would not seek to attempt to pick up all the points made by noble Lords, but I will certainly go through each point and examine it with interest and anxious attention.

On Questiton, Bill read 2a, and committed to a Committee of the Whole House.