HL Deb 21 July 1977 vol 386 cc485-97

64A Line 13, after (" where ") insert (" the article in question is a moving picture film of a width of not less than sixteen millimetres and ").

5.22 p.m.

Lord BEAUMONT of WHITLEY

My Lords, I would congratulate the Government on putting together a very useful, temporary solution to this problem. It is not a permanent solution and some of the objections to it can be seen from this Amendment as it is: for instance, the exclusion of 8mm film. I see why the Government have clone it. It seems to me a rather ingenious way of meeting the problem. But there is really no logic or justification for this division. Super Eight films are now used quite a lot as a serious art form, and in film societies—not in cinemas—by people who are studying the film as an art. It would be a pity that, if this kind of law applied for any length of time, there should be this division and that perfectly serious film societies producing Super Eight films for production might find themselves victims of this loophole in the law from the kind of frivolous products which have been spoken of. Therefore, it is limited support that I want to give to this Amendment. I think it is very useful and I am delighted that the Government have gone this way. It is no substitute for what we hope to see happen after the report of the Williams Committee, which we hope will be as soon as possible.

The Lord Bishop of LEICESTER

My Lords, I am sorry to delay the House and the Minister when he is having something so much similar to a clear round, but am going to ask the House to disagree both with him and with the Commons in this particular Amendment. I must admit that when I saw the headline in the Press that cinemas were to be brought under the law of obscenity I was temporarily pleased because this is what some of us argued for at the time of the discussions on the Longford committee on pornography. But the more one looks into it, the more doubtful one becomes about whether what is proposed is really going to be helpful or the reverse.

To begin with, as has been said, the proposal is to bring cinematograph displays under the Obscene Publications Act 1959. Many noble and learned Lords and other high legal luminaries have admitted the extremely unsatisfactory nature of that Act; and that is one of the reasons why the Special Departmental Committee is sitting at this moment on the whole question of the law of obscenity.

The weakness of the present Act hardly needs to be emphasised but it all turns on the phrase that the material "must tend to deprave or corrupt". This leaves a way out at both ends. You can always say that the people likely to see it are already so depraved and corrupted that it is impossible to do them any more harm; or, alternatively, that they are so mature and integrated that nothing could befoul them on the principle of purrs omnia pura. But it is proved that this is just about the most unsatisfactory way of giving a jury anything clear to settle when they get these cases brought before them.

There are other objections. The rights of the citizen under common law are very much restricted. They were so, to some extent, under the Obscene Publications Act 1959 because there, although it was an Act to deal with obscene publications, it was specifically stated that there was to be no prosecution under the common law if the principle thing objected to in the article under consideration was its obscenity. But the present Amendment has done a good deal further than that. It has said now that it is not only the question of obscenity that shall make an action under common law impossible, but that it is also forbidden if the material is said to be obscene, indecent, offensive, disgusting or injurious to morality …". Anyone looking at this casually would immediately think that these are the bad things, but these are the things which are to extract the cinemas from any action under common law. So there is a whole range of material there for serious discussion. The whole matter is brought again under the personal control of the Director of Public Prosecutions, and one can see here again that there is a very considerable limitation put upon the likelihood of any effective action being taken because the Director of Public Prosecutions himself is in an embarrassing position. He has to deal, to some extent, with the Board of Film Censors. It would be extremely embarrassing for him to have to bring a case against something that had escaped the eye of that particular Board.

On the whole, I, and I think some other Members of this House, feel that it would be better not to bring in this wholly new clause at this late stage in the consideration of the Bill but to wait until the departmental committee has produced its report on the law of obscenity and, if there are cases urgently needing attention in the meanwhile, to hope that they can be dealt with under what is still left of the common law provisions.

I would respectfully ask your Lordships to adhere to the decision you made on 1st March when a similar proposal was made in this House and rejected. I hope very much that we shall not agree with the Commons in this particular step.

Lord ROBERTSON of OAKRIDGE

My Lords, I feel that this is an important Amendment and I should like to support the right reverend Prelate the Bishop of Leicester in what he said in opposing it. I do so for two reasons. First, I believe that it carries the distinct risk of increased indecency in films exhibited to the public. Secondly, it seems to me inopportune to make such a change just when a general review of the laws on obscenity is about to be made by a Home Office Committee.

On the first point, I would draw your Lordships' attention to the fact that we would be replacing the clear, common law standards of what is or what is not an indecent public exhibition—and I understand that this is a standard which can easily he applied by a jury—by the requirements of a law of which the right reverend Prelate has already pointed out the defects. If any further evidence were required as to the limitations of the Obscene Publications Act, I believe that this evidence was given in remarks made by Mr. John Lindsay last week, who had just been cleared on three counts of possessing obscene articles for publication for gain. The Times quoted him as saying: This makes pornographic films legal in this country at long last". It is therefore to be welcomed that the Home Secretary has set up the Williams Committee to review the laws concerning obscenity, indecency and violence in publications, displays and entertainments, and to review the arrangements for film censorship. But to make such a substantial change in the law as is now envisaged, with all the risks involved, just before this committee gets down to work would, in my view, be unwise and inopportune.

Lord SUDELEY

My Lords, I should like to support the right reverend Prelate in his remarks about the unsatisfactory statutory definition of obscenity as opposed to the common law. In everything that the legal luminaries have said, criticism of the 1959 Obscene Publications Act has been well borne out by the recent cases reported in the Press. The film trade journal entitled Screen International may have reported on 11th June that a fear of contravening not the statute law but the common law persuaded the British Board of Film Censors to make some cuts in a "soft porn" film called "Phantasm", from Australia. The producer of the film, who did not like the cuts, had to content himself with showing the film in film clubs for the time being. On the other hand, there is the case of Mr. John Lindsay to which the noble Lord, Lord Robertson of Oakridge, referred. There the test for obscenity under the statutory test of obscenity was applied and a jury at the Old Bailey overturned an attempt by the Director of Public Prosecutions to secure a conviction on three pornographic films. The three pornographic films showed lesbianism, intercourse and oral sex.

5.34 p.m.

The Lord Bishop of NORWICH

My Lords, I hope that the noble Lord will give full account to what has been said because this matter is something which cannot really be thought to be in the public good. The very description used on page 21, showing that we are thinking about films which could be considered, in whatever way they are looked at under common law or in this new system under the new Amendment, in any way related to being obscene, indecent, offensive, disgusting, or injurious to morality, shows that we are thinking not so ranch of what the noble Lord referred to as serious art forms, but this area. If so, then surely for the public good we ought not to go further down this rather slippery slope, which it is easy for us to go down, in the sacred name of what is called freedom. But whose freedom? Freedom to do what, and freedom for which people? I hope very much that we shall seek to continue what we are doing this evening, which is not to deny freedom for the public good, but to deny freedom for those who are seeking to spoil the public good.

I listened carefully to the clear way in which the noble Lord, Lord Harris of Greenwich, set out most of the other Amendments; nearly all of them have been designed—take the matter of the bomb hoax situation—to maintain the breadth of public freedom and only to contain the narrowness of freedom of those who will not do the country good, but harm. I take comfort from this because, so far as I can tell, this Amendment was not brought forward originally in another place as a piece of serious Government thinking, but I think it came through in other ways. Therefore, I hope that if a matter of this importance is pressed to a Division there will be no question of the Government asking their supporters to support this Amendment. Quoting from the noble Lord, Lord Donaldson of Kingsbridge, a week or two ago, when we were discussing a film so disgusting that a Member of this House had to refer to what happened in it in Latin (which unfortunately most of us were able to translate), means that we should have a free and conscience vote on this particular Amendment.

Lord DONALDSON of KINGS-BRIDGE

My Lords, it so happens that I have spoken to somebody who has seen the film, and the "Latin event" did not occur in it.

The Lord BISHOP of NORWICH

My Lords, I thank the noble Lord for that. I am sorry that I was able to translate what was meant to take place; but I am encouraged to hear that it did not. None the less, it sounded as though the nuances of the film might come in the broadest terms within page 21 in which we are considering these words

This reinforces the point that I was seeking to make, that enough is enough and we ought not to weaken the rather gentle controls that are already put on this type of film, which we know produces a great deal of money for people who are in the film business not only for great and serious art forms but for the money. After those of us who are innocent about matters of law have heard of how difficult it is to get a jury to be ready to act and, following the rather terrifying revelations from the Opposition Front Bench about which the noble Earl, Lord Mansfield, told us about the jury system, we would be most unwise in common sense to pass this Amendment. I hope therefore that all noble Lords of good will—which I gather all of us are—will in good sense object to this Amendment.

Viscount DILHORNE

My Lords, there are two aspects which worry me. I am grateful to the right reverend Prelate the Bishop of Leicester for drawing my attention to these provisions, which I confess I had not studied at all closely. The first is the reference to the Obscene Publications Act. That definition to corrupt and deprave is of course taken from the case of Hickling which was a common law case. It has been the defect throughout that that definition was retained in that Obscene Publications Act. That has led to all the trouble. I do not think it is just confined to statutory law. Instead of letting the word "obscene" be given its ordinary, natural meaning, there has been a growing tendency in this country of seeking to define in strict language the meaning to be attached to ordinary English words.

I am glad to hear that the whole scope of that Act is being reconsidered. That being the case, it seems to me very undesirable to extend its operation at the present time. I can see no case for doing that now. But the other objection that I have is perhaps more fundamental. In this country, apart from a few exceptions, it has been the general rule that anyone can institute a prosecution for a criminal offence. The exceptions are always exceptions created by Statute, requiring the consent—and we have had it already today—of either the Attorney General or the Director of Public Prosecutions. Each time you make that exception, my Lords, you are departing from what has been the general practice, the general rule, of our law.

Sometimes it is very desirable. Some of your Lordships may remember publications which were called horror comics. They were, in fact, incapable of definition. In, I think, my time in the Commons, a Bill was introduced to make the publication of those horror comics an offence. It not being possible to define them, the requirement was inserted that there should be no prosecution without the Attorney-General's consent. That Bill was passed. The Attorney-General has never had to give his consent, there has been no prosecution and there have been no more horror comics. I mention that as an instance.

Some of your Lordships may remember a case fairly recently where comments were made, which received widespread publicity, about denying access to the courts. On this occasion, I shall not make any observations with regard to that. But if you are to let this provision operate to the effect that you are taking away the right that an individual now has to institute a prosecution for an offence at common law for something obscene, indecent, offensive, disgusting or injurious to morality, you are by Act of Parliament denying that individual's access to the courts.

It is a great safeguard for there not to be that restriction. After all, if it is left to the Attorney-General to decide whether or not a case warrants a prosecution, he may be subjected to a great deal of fair or unfair criticism. It is much better that he should be able to say "I do not think this case warrants a prosecution. I do not think the evidence is strong enough. But, of course, it is open to you if you wish to start your own prosecution, with the risk that that may entail to you of, perhaps, a subsequent action for malicious prosecution on your part, with your being ordered to pay the costs of the prosecution." This is taking away what is a generally established right, and I see no reason for it.

I do not know what pressures have been put upon the Home Office to introduce in the Commons this clause which was not in the original Bill. I hope this House will say that there should be second thoughts on this matter, and if the right reverend Prelate proposes to divide the House upon it I shall certainly find myself in the same Lobby with him.

5.43 p.m.

Lord SIMON of GLAISDALE

My Lords, may I express three misgivings about this Amendment? The first is that it was quite advisedly that cinematograph exhibitions were left out of the ambit of the Obscene Publications Act 1959. I had myself the privilege of being a Home Office representative on the Select Committee of 1957, which heard extensive evidence leading to the Bill which became the Act and drafted the Bill. In short, the reason why cinematograph films were left out was this. Although there was considerable evidence that the law was illiberal, so far as works of literature, works of science and scientific works were concerned, and, on the other hand, allowed hard pornography to be purveyed, the evidence was overwhelming that, so far as cinematograph exhibitions were concerned, the law and the administrative back-up of the law operated successfully and satisfactorily. There was virtually no demand for change there. I have been out of touch with the problem ever since, but I have heard nothing to suggest that there is any need now to change the decision which was come to in 1959, after extensive debate and after a Select Committee of the other House had heard widespread and weighty evidence.

The second misgiving I have is the one that has been adverted to by my noble and learned friend Lord Dilhorne. The right of the private citizen to invoke the criminal law is an important constitutional right and constitutional safeguard. It has, of course, sometimes to be limited. Your Lordships earlier today, in relation to Clause 9 which affects trespasses on foreign embassies, made it incumbent that the consent of the Attorney-General should be given to prosecutions. That is perfectly understandable. That is perfectly the kind of area in which consent is called for, in which the citizen's right might just be limited, but it should be quite exceptional. If the decision is otherwise, it should be taken seriously, solemnly and advisedly over a wide front, and not haphazardly leading to a gradual erosion of what has long been regarded as an important constitutional right of the private citizen in this country.

The third reason was adverted to by the noble Lord, Lord Robertson, and the right reverend Prelate. It is surely ill-advised, at a moment when a departmental committee is considering the whole of this problem, to pre-empt it on one narrow aspect. In view of the controversial nature of this Amendment, I did not put down a Motion that the Amendment should be disagreed to. But if the House is divided, I shall myself go into the Lobby against the Amendment.

5.48 p.m.

Lord BESWICK

My Lords, it would seem to me that this is a case where it would be entirely proper for this House to ask the Government to think again. In the first place, the Bill was fully considered in your Lordships' House. It then went to the other place. Apparently, the Opposition there suggested for certain reasons that there should be an Amendment at this point in the Bill, and the Government produced a form of words. But according to the spokesman of the Opposition in the other place, the form of words here is not entirely appropriate and is not entirely satisfactory. Indeed, it was suggested that, in the meantime, there might be amendments to this Amendment before it came to your Lordships' House. As I understand it, apart from the narrow point which my noble friend mentioned, there has been no attempt to meet the doubts which were expressed in the other place.

We are now left with a very extensive Amendment, which Government Ministers affirmed more than once in the other place is only an interim solution, or, as one Minister described it, a temporary solution. I look at this temporary solution in a quite simple way. I have listened with enormous respect to the views that have been put by the noble and learned Lords on the Cross-Benches here, but my own attitude is somewhat less learned than theirs and, one might say, more simple.

I ask myself the simple question: Does this help, as I believe a growing majority of people in this country would wish it to help, to curb that process which started as freedom of expression but which has degenerated into licence? Does it help to curb that process or not? On all the evidence that I am given, it does not curb that process. Indeed, it would facilitate a process which, as I say, I think a growing majority of people in this country would now like to see reversed. If the right reverend Prelate presses this Amendment I, for one, would certainly go into the Division Lobby with him.

Lord HARRIS of GREENWICH

My Lords, I will deal with one point at the outset. The noble and learned Viscount, Lord Dilhorne, asked why this Amendment had come before us. The reason is that we were subjected to substantial pressure from both sides in another place and promised to do what is in effect now before us. The language of these Amendments is clearly something for which the Government accept responsibility, but there is no doubt that very substantial feeling was expressed in another place. That is why the Amendment is now before the House.

I certainly understand the argument—and indeed we had a discussion on it when the matter was last before us—that, as the present law of obscenity is found by many to be profoundly unsatisfactory, any proposal to extend it is bound to be controversial. It is for that reason, as I explained to your Lordships during earlier stages of the Bill, that we had wished to keep the existing law unchanged for the time being. But there was this considerable feeling expressed in another place on both sides; that is, that it is anomalous for the cinema to be singled out for a form of regulation which does not apply to plays or books. The argument runs that there is a good case for these media to be equated under the law while the Committee is deciding what form of law should apply generally in future. In addition, the argument was adduced that in the present law there might be a discouragement for local authorities to continue exercising their censorship functions. It is those arguments, coming from very different quarters, which led to the Commons Amendment which we now have before us.

What is proposed in the new clause is not an unconsidered, last-minute thought. It is based on the thorough review which the Law Commission carried out into the common law on public morals and decency. Generally, as I have said, it follows the Law Commission's recommendations. They concluded that some kind of consent provision to protect cinemas and film societies from frivolous and vexatious proceedings was desirable; and the clause represents a sensible rationalisation of the law. It is difficult to argue that the cinema ought to be in a wholly different position from publications and theatre plays. That is the argument which was put to us. Nevertheless, even with the enactment of this clause, the cinema will continue to be, of course, more tightly controlled by virtue of the film censorship system, with which the clause does not interfere in any way.

Lord SIMON of GLAISDALE

My Lords, I am grateful to the noble Lord for giving way. I wanted merely to ask this. Did not the Government fail to accept the recommendations of the Law Commission as to the conspiracy to corrupt public morals and conspiracy to outrage public decency, and instead refer the matter to the Williams Committee? Surely this falls precisely within that class of case.

Lord HARRIS of GREENWICH

Yes, my Lords, I understand precisely the argument of the noble and learned Lord. It is the view of those who have spoken that in fact this matter should be put off and considered by the Williams Committee. But the Williams Committee, although I am sure it will work with diligence, will clearly take some time to report: and I must repeat that it was the view of both sides in another place that it was desirable to move at the moment on this question and to clear up what was regarded as a highly anomalous situation.

As for the present position, with great respect to all those who have spoken, I should like to draw their attention to one very remarkable statistic. That is, that there has only once ever been a conviction in respect of an indecent film shown in a cinema; and the prevention of prosecutions in relation to indecency can hardly be said, therefore, to have had a substantial effect on the way in which the law will apply in practice. Moreover, the clause will clear up a confused situation in relation to what may be shown in cinema clubs and will bring them within the law on obscenity.

Certainly, I agree at once that we have to bear in mind that we are not here legislating for the long term, as the noble and learned Viscount has pointed out. It is very much an interim solution which will be subject to revision in the light of the conclusions of the Williams Committee.

5.56 p.m.

On Question, Whether the said Amendment (No. 64A), as an Amendment to Commons Amendment No. 64, shall be agreed to?

Their Lordships divided: Contents, 70; Not-Contents, 68.

CONTENTS
Alexander of Tunis, E. Elton, L. Morris, L.
Amherst, E. Emmet of Amberley, B. Mottistone, L.
Amherst of Hackney, L. Falkland, V. Mountgarret, V.
Arran, E. Gainford, L. Newall, L.
Auckland, L. Geoffrey-Lloyd, L. Northchurch, B.
Avon, E. Granville of Eye, L. Platt, L.
Barrington, V. Hailsham of Saint Marylebone, L. St. Aldwyn, E.
Beaumont of Whitley, L. St. Davids, V.
Belstead, L. Hanworth, V. Sandford, L.
Berkeley, B. Hawke, L. Sandys, L.
Bledisloe, V. Henley, L. Simon, V.
Boyd-Carpenter, L. Hornsby-Smith, B. Simon of Glaisdale, L.
Brougham and Vaux, L. Hylton-Foster, B. Spens, L.
Campbell of Croy, L. Inglewood, L. Stamp, L.
Carr of Hadley, L. Killearn, L. Strathclyde, L.
Cathcart, E. Limerick, E. Strathcona and Mount Royal, L.
Colwyn, L. Lloyd of Kilgerran, L. Swinfen, L.
Cullen of Ashbourne, L. Long, V. Terrington, L.
Daventry, V. Luke, L. Trefgarne, L.
de Clifford, L. Lyell, L. [Teller.] Vickers, B.
De Freyne, L. Macleod of Borve, B. Vivian, L.
Denham, L. Mansfield, E. Wade, L.
Derwent, L. Margadale, L. Wakefield of Kendal, L.
Dilhorne, V. Merrivale, L. Ward of North Tyneside, B.
Dormer, L. Mills, V. Wedgwood, L.
Drumalbyn, L. Monck, V. Westbury, L.
Elliot of Harwood, B. Monson, L. Wigoder, L. [Teller.]
NOT-CONTENTS
Ardwick, L. George-Brown, L. Peddie, L.
Aylestone, L. Gifford, L. Phillips, B.
Birk, B. Gordon-Walker, L. Pitt of Hampstead, L.
Blyton, L. Gosford, E. Ponsonby of Shulbrede, L.
Boston of Faversham, L. Hale, L. Ritchie-Calder, L.
Brimelow, L. Harris of Greenwich, L. Segal, L.
Brockway, L. Henderson, L. Shepherd, L.
Bruce of Donington, L. Houghton of Sowerby, L. Stedman, B. [Teller.]
Burton of Coventry, B. Kagan, L. Stewart of Alvechurch, B.
Champion, L. Kirkhill, L. Stone, L.
Collison, L. Leatherland, L. Stow Hill, L.
Cooper of Stockton Heath, L. Llewelyn-Davies of Hastoe, B. Strabolgi, L.
Crook, L. Longford, E. Wallace of Coslany, L. [Teller.]
Davies of Leek, L. Lovell-Davis, L. White, B.
Delacourt-Smith of Alteryn, B. McCluskey, L. Willis, L.
Donaldson of Kingsbridge, L. Melchett, L. Winterbottom, L.
Elwyn-Jones, L. (L. Chancellor.) Milner of Leeds, L. Wootton of Abinger, B.
Faithfull, B. Murray of Gravesend, L. Wynne-Jones, L.
Gaitskell, B. Oram, L.
Gardiner, L. Peart, L. (L. Privy Seal.)

On Question, Motion agreed to.

Resolved in the affirmative, and Amendment to the Amendment agreed to accordingly.

On Question, Amendment No. 64, as amended by Amendment No. 64A, agreed to.