HL Deb 10 June 1981 vol 421 cc273-308

6.56 p.m.

Lord Nugent of Guildford

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Nugent of Guildford.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ALPORT in the Chair.]

Clause 1 [Indecent displays]:

Lord Houghton of Sowerby moved Amendment No. 1: Page 1, line 5, leave out (" indecent matter ") and insert (" matter offensive to the public at large ").

The noble Lord said: With permission, I shall make a few preliminary observations before coming to the terms of the amendment. First, I apologise to the Minister of State for prolonging what I am sure has been an arduous day's work. Nevertheless, I am sure he is stimulated by yesterday's resolution of your Lordships' House and feels quite excited about dealing with this measure after his long sitting on the previous debate. The second is that I regret to say that some noble Lords who have tabled amendments are unfortunately not able to be here, and I was persuaded, out of goodness of heart and conviction, to underwrite them. The result is—and I must acquaint the Committee of this so that noble Lords may be braced for it—that it looks as if I shall have to make 10 speeches during the Committee stage. That must be as appalling to your Lordships as it is burdensome to me, but that looks to be how it is.

The only other preliminary matter I would make is that this issue of indecent displays went through its Committee stage in another place in five sittings with only three Divisions in the course of those five sittings, and in the end to pretty general agreement. On the other hand, the Williams Committee sat for 35 meetings and came out with a unanimous report, and there are differences between the Bill sent to us from another place and the recommendations of the Williams Committee. The question is: Who has got it right and can it be got right?

The Labour Government appointed the Williams Committee after the collapse of the Conservative Government's Indecent Displays Bill of 1973. The Williams Committee reported in 1978 and, as far as I know, there was no debate on the Williams Report in another place, and there has not been even yet. However, in your Lordships' House we had a debate on the report shortly after it came out.

Another observation that I must make is that the Government have chosen to leave this matter to the hazards and difficulties of the Private Member's Bill procedure. This is not a Government Bill. The Government are entitled to advise the Committee, as they did in another place. However, each of us is entitled to express our own point of view, and I presume that the noble Lord, Lord Nugent of Guildford, is in charge of the Bill and is the noble Lord to whom I ought to address my persuasive remarks.

Some noble Lords may think that I am making rather heavy weather of the Bill. Why should I be making any fuss about it? The reason is that I consider that every erosion of individual liberty and freedom should be challenged as a matter of policy and as a matter of principle. I do not think that liberties should be curtailed without adequate debate. When I was a Member of the House of Commons, I always took the view that a timetable Motion should always be opposed, regardless of who introduced it, regardless of whether or not one had sponsored the matter in question. No timetable Motion should be allowed to go through without challenge. I have no interest whatsoever in this Bill. I have managed to get through liffe without falling into some of the temptations to which it relates; but I declare that I am a persuaded supporter of the Williams approach.

So I can spare the Committee those remarks on the debate on clause stand part, or at any other stage of this evening's proceedings, and come to the first amendment. The amendment, although linked to Amendment No. 3, does not necessarily stand or fall with it. However, it may be convenient to refer to the fact that the definition contained in Amendment No. 3 relates to the proposed change in the use of words in the earlier part of Clause 1. This proposal to substitute, offensive to the public at large ", for the word "indecent" has quite a respectable history. It was strongly advocated in another place during the debate on this Bill by a Conservative Queen's Counsel. It was strongly advocated in the Williams Report itself. In fact nowhere in the whole of the debate on this issue—in another place or in the Williams Committee Report—can one find many good words for what is indecent.

When I was reading in the newspaper the other day a report of the speech made in another place by a Minister who had relinquished his position, I noticed that it was said that he had made quite a "decent defence ", and I wondered whether the word "decent" in that context had any bearing on what we are talking about in this Bill. The truth of the matter is that "indecent" has attracted a common connotation that is not connected with our general use of the word "decent ".

One of the aims of the Bill is to make the law more easily enforceable. However, it does not give any clearer guidance than earlier Bills have done, or have attempted to do, on the question of what is indecent, and the police, private citizens, and shopkeepers will all have their own ideas about what is indecent and they will be excused from being in doubt about the construction placed on the word "indecent" from a statutory point of view if they read the authorities on the subject. In the case of R. v. Stanley in 1965 Chief Justice Parker said that indecent matter was something that offends the ordinary modesty of the average man". By 1972, in R. v. Knuller, Lord Reid said: Indecency is not confined to sexual indecency: indeed it is difficult to find any limit short of saying that it includes anything which an ordinary man or woman would find to be shocking, disgusting or revolting".

Then in 1974, closer to the present time, Mr. Roy Jenkins, when Home Secretary, said that, the term ' indecent ' has no meaningful definition and should not be part of any criminal statute ". Then in 1979 there was the Williams Report, which said that the word "indecent" was now useless and was the source of vagueness and confusion in the law. The committee expressed the view that the word should not be used any further in the law without definition.

Notwithstanding that, we renewed our faith in the use of the word "indecent" in the Protection of Children Act 1978, but I regarded that as a legislative aberration because we passed that Act through your Lordships' House, through Parliament, while the Williams Committee was still sitting, and we repeated the use of the word "indecent" which the committee was then considering to be unsuitable.

The question is, shall we leave the word "indecent" in the Bill, or shall we replace it with something else? Looking at the situation in other countries, I noticed that in Queensland, Australia, the word used is "objectionable ". Well, one can have one's choice of words to express a feeling about what one sees or hears. One of the arguments put forward in another place—indeed, it was put forward by the sponsor of the Bill himself—was that the antiquity of the word was a strong reason for continuing to use it. But that view was of course decisively and unanimously rejected by the Williams Committee. When a Bill similar to the present Bill was before another place on 7th December 1979, the then Minister of State at the Home Office, Mr Brittan, said, as reported at column 821 of the Official Report: I do not find it persuasive to say that the term has remained on the statute book for a century and a half ". He went on to say, somewhat wryly, that, One wishes many terms removed from the statute book precisely because they have been there for a century and a half "— and this word appears to be one of them.

I shall not quote the Williams Report in extenso on this matter, since it is all there for noble Lords to read, but it criticised in detail, and at length, the use of the word "indecent ". The committee came to the conclusion that the word "offensive" should be used. It may be that we have a political judgment about this, or we may feel that we have a better judgment from a public point of view. But I think it is very difficult with respect, to set aside the unanimous recommendations of a committee of the composition of the Williams Committee. It was a very impressive committee indeed; it sat for a long time; and it produced one of the best written reports, I think, that any of us had read for a long time. I noticed that in another place one Member thought it was the most sensible pronouncement on obscenity that we have yet had. Yet we are proposing the third addition to the statute law using the word "indecent ".

In the minds of most people, "indecency" has a sexual meaning. It is something to do with the exposure of genitals, or explicit acts of sex. Yet there are some things which affront members of the public just as much as this kind of indecency. I have already explained, on the Second Reading of this Bill, that some things affront me and disgust me far more than any display of pictures relating to sexual activity. They go far deeper into my nature; and violence and cruelty I regard as the deepest obscenities of all. But apparently we want to keep this on the plain of what people do not like to see, in its shallowest form. That I think is a mistake. I do not believe, as a matter of fact, that there is any real urgency to deal with this matter at all in advance of the Government's own clear duty to look at the whole question and to bring forward a responsible measure of their own over a wider field than this one covers.

The Protection of Children Act 1978 was advanced by the Minister of State in another place as being a purely stop-gap measure to hold a position, which was regarded as urgent and important at the time but which turned out not to be so. It was a holding operation pending the Government's consideration of the Williams Report when it came out; but the Government have shown no disposition to tackle the Williams Report at all. This is another bite at a very difficult cherry; and I sincerely hope that, notwithstanding the view of another place, we shall pay more regard to the recommendations and the convincing arguments of the Williams Committee in looking at the use of the word in this Bill.

" Indecent displays "may to some people reflect what they have it in mind to deal with and to convey, but this to others, and to me, at any rate, is not enough. It has to go deeper than the conventional attitude towards indecency, and therefore I propose to introduce into the Bill the words "matter offensive to the public at large "in place of "indecent matter" on page 1, line 5. I beg to move.

Lord Spens

I do not propose to keep your Lordships very long on this matter, but I would say that I support the noble Lord, Lord Houghton, in his initial statement, in that I would hate to see any more of our very restricted liberties further restricted. If I may make a very short aside to the noble Lord, Lord Nugent of Guildford, I shall not be able to be present tomorrow afternoon when a very important amendment is going to be debated because I shall be attending a meeting of a Select Committee, but I shall apply that policy to any vote that takes place.

Having said that, I wonder whether the noble Lord, Lord Houghton, is really following up that policy by introducing this amendment, because it seems to me that unless Amendment No. 3 is also agreed by the Committee the words "matter offensive to the public at large "carry a very much broader meaning than" indecent matter ". We might be landed with something which could cause enormous confusion in the courts—what is offensive to the public at large?—whereas I would have thought that "indecent matter" can be much more narrowly defined.

I want to ask just one question, which it is probably for the noble Lord, Lord Belstead, to answer. It is: What is going to be the timetable for the rest of this Bill? If we amend it, are we going to lose it? I should like to know that because it has to go back to the other place, and I would think that, unless Government time were to be given to dealing with any amendments, we here must be very careful as to what amendments we make.

Lord Sainsbury

I hope your Lordships' Committee will reject this amendment. This question of definition was debated at length in another place, and I think there are at least four or five reasons why this phrase should remain in the Bill. First, "indecent" has the advantage, not only of being in common usage but also of being easily understood. The dictionary definition of "offensive" is: disgusting; ill-smelling; nauseous; repulsive". It is thus, as the previous noble Lord said, a much wider term than "indecent". The purpose of this Bill is to legislate against displays which offend people. This purpose, in my view, will be defeated if the term "offensive" is used, with its wider implications. Fourthly, "offensive" can be extended to cover political opinions. Fifthly, violence could be said to be offensive. While violence is a problem, it is not against such displays that this Bill is aimed. Therefore, for all these reasons, I hope that your Lordships will both speak against this amendment and, if it goes to the Division Lobbies, vote against it.

Lord Mishcon

This is a Private Member's Bill, and as such, as my noble friend Lord Houghton knows, nothing that is said from this Front Bench in any way commits any one of my noble friends sitting either by the side of me or behind me. Having said that, may I challenge the view that in regard to this Bill and in regard to the specific amendment that we are discussing the question of the liberty of the individual is an essential matter for us to consider. To confuse the word "liberty" with the word "licence" is a mistake which has often been made; and you do not preserve liberty by confusing it with licence. To talk in terms of preserving liberty when you are dealing with people who are making a fortune out of exhibiting pornographic literature to the offensive reaction (if I may use my noble friend's own words) of the large majority of people subjected to that exhibition is denigrating the word "liberty ".

Having said that, may I say that this Bill stands or falls, as I see it, by being supported by your Lordships' House within the narrow ambit within which it was drawn. Therefore, to extend questions to violence or matters which are generally offensive—and this is the only amendment before the Committee at the moment—is, in my judgment, to kill the Bill; and I do not want to see it killed. I hope that my noble friend will not regard me as being in the slightest degree rude when I say to him that some people might regard it as offensive in this House to read an announcement which might be exhibited that any one of the noble Peers present tonight is going to make 10 speeches. It is in those circumstances that one can realise how broad this word "offensive" can be.

This is a term which has been used in our law over a very long period of time. My noble friend Lord Houghton in fact read from Lord Reid's judgment in 1972 when he defined what was an indecent exhibition; and I feel that one can deal with this amendment perfectly simply by saying this. I am not impressed, as I said at Second Reading, by the doubt which is supposed to be put in people's minds, be they newsagents or general exhibitors of pornographic literature or whatever, as to what really is "indecent". Most of us know almost instinctively what is indecent and what will give offence as a result of that indecency to the public. If people are in any doubt, let them err on the careful side. I then will rejoice that they have done so and will shed no tears because they have been put in doubt.

7.22 p.m.

Lord Nugent of Guildford

There remains little for me to say after that admirable speech by the noble Lord, Lord Mishcon. However, I should begin by saying to the noble Lord, Lord Houghton, that I welcome his amendment on the Marshalled List for giving this Committee the opportunity to discuss the most important point in the Bill, but I agree with the analysis of the noble Lord, Lord Mishcon, that if we altered the Bill substantially then probably—and I emphasise "probably" and not "possibly "—the Bill would be lost. Time is so short for the return of a Private Member's Bill to the Commons, where there must be complete agreement, and there simply would not be time to re-open the major issues. However, 10 speeches from the noble Lord I would find in no way daunting. I imagine that they will not all be 17 minutes long, but I am sure they will be very interesting. I would say this about the amendments on the Marshalled List in the names of some of his noble friends who cannot be here: that for a Private Member's Bill, where a good deal of work must be done to deal with technical amendments, they should have been on the Marshalled List before this morning.

Turning to the points that Lord Houghton has made, I agree with the noble Lord, Lord Mishcon, that while we are all concerned with the defence of liberty, here we are very much concerned with a matter of balance. We are concerned not only with people's liberty to express themselves artistically or through literature or however else; we are concerned also with the freedom of citizens to be able to walk down the street without being offended by showcases or shop fronts full of disgusting material. This is what this is about. There is an urgency. Every day one reads in the newspapers of more provincial towns where local citizens are being seriously disturbed because sex shops are arriving and they seem to be unable to check the proliferation. And as the noble Lord, Lord Mishcon, said, behind it are very substantial financial interests who are proliferating these outlets because they are making large sums of money from it.

I welcome the enterprise and enormous skill of my honourable friend Mr. Timothy Sainsbury in the other place who conducted this Bill successfully through it. Coming to the specific point which the noble Lord, Lord Houghton, put forward, that we should use the Williams Report definition of "offensive material" instead of "indecent", I am sure that he will recognise that, without going into the merits of the Williams Committee which we are not concerned with now, that Committee was seeking a definition for a much wider purpose than this. Here we are concerned solely with display, what is acceptable and what is not acceptable, and a definition of what is not acceptable and therefore where the law should come down and action be taken. This is quite different from trying to find a definition which will be effective in law dealing with the whole spectrum of obscenity. We can have different views on that but it is a different problem.

I would think that "offensive" has very many meanings indeed, beyond the sphere of sex and violence—all kinds of meanings in the field that the noble Lord is particularly interested in, in blood sports. Think how offensive blood sports are to many members of the community. We can think of so many things where "offensive" has a general application. Even with the noble Lord's definition in his Amendment No. 3, which gives us a more specific idea of how he thinks "offensive" should be used, I doubt very much whether it would cover such matters as the apparatus of the sex shop. If that were all displayed in a window—it is extraordinary stuff, intriguing to the young, but certainly indecent. But his definition—even the two put together—would not catch it. No one would be more ready than I to agree with him that this is a matter of opinion. It must be tried out. But it is true to say, as has already been said by the noble Lord, Lord Sainsbury, that the word "indecent" is part of existing law, has been reasonably successful and effective within a limited sphere over the years, is understood by the courts and is generally understood by everybody.

On the whole, exprience shows that if one can find a single term which will do that and give general satisfaction and confidence, then I think one ought to stick to it and certainly not to try to give a definition to it. We learned from the 1959 Act that the more one attempted to give definition to a term in this particularly controversial field, the more likely one is to cause problems when it gets to court. I should have thought, in this particular context of this narrow issue of display, the word "indecent" will serve well. It is understood well. Here we are not so much making new law. This Bill is really modernising the existing law, bringing it together, codifying it into one Act which everybody can understand. Therefore, this is a term which is already tested and tried and works pretty well in court. It is better to stick to that than to take a chance and put in a new definition which is not sound for this particular purpose and hope that that would he more effective. The odds are that it will not.

On those arguments I hope that the noble Lord, having given this a very helpful and lucid airing, will feel on balance that it is best to leave it as it is. It is quite marvellous that it should have got through the Commons. It is a highly controversial subject. Nevertheless, it got through the Commons with general agreement, with interesting debates in the Committee stage; it went through the Commons on Report with complete agreement. If we have got something like that, then surely this is something that we should accept and send it back with our blessing and the fervent hope that it will work. I earnestly hope that the noble Lord, having given this particular point a good airing, may accept that the Bill as it is on the whole has the best chance of working, and that he may withdraw his amendment.

Lord Belstead

I am sure that the Committee will acquit me of any discourtesy if I say I shall try not to speak on very many of the amendments. On this first one, it is important that from the Government Benches I should make clear what is our attitude. I should like strongly to support the words of my noble friend Lord Nugent when he asked the Committee to take serious account of the consequences of making a substantial amendment to a Bill of narrow but extremely useful scope.

I shall not try to improve upon what my noble friend has said, and, indeed, what was said most eloquently by the noble Lord, Lord Mishcon, about the difficulties, as both noble Lords see it, with the amendment, except to say this. One wonders whether in dealing with a relatively straightforward matter such as public display it is wise to saddle the courts with involved and potentially troublesome definitions of the kind upon which this amendment would embark. I am sure that the noble Lord, Lord Houghton, will not mind if I say that on Second Reading the noble Lord said said that the mischief of this Bill is that it adapts the Williams remedy to the old formula; but if he will forgive me saying so, I think the mischief of his amendments is that they adapt the Williams formula to an old remedy. I hope that the noble Lord may consider whether it may be right to withdraw the amendments.

Lord Houghton of Sowerby

I am grateful for the comments that have been made. The noble Lord, Lord Spens, has a point that the relevance of the change in Amendment No. 1 depends on the acceptance of a definition in Amendment No. 3. This is a problem of the Marshalled List. Sometimes we put the cart before the horse because the Bill is drafted that way.

Another thought has occurred to me: it has been suggested that even though the word "indecent" was left in the early part of the clause, the definition proposed in Amendment No. 3 could still be relevant to the word "indecent" if that were put in the definition in Amendment No. 3 instead of the word "offensive", That is something which might be worth consideration when we try to enlarge on the word "indecent" and attempt at long last, after many urgings and refusals, to give a definition to the word. My noble friend Lord Mischon was not indecent in what he said. He came close to being offensive. Occasionally, I am ill-served by noble Lords on my own Front Bench. I sometimes wish on occasions like this that noble Lords who sit on the Front Bench and speak only for themselves would get off the Front Bench and go on to the Back-Benches so that there would be no misunderstanding as to where the words were coming from.

To suggest that I do not know the difference between the words "liberty" and "licence" I find unacceptable. I read in the Daily Telegraph only today that there were 5,000 petitioners who tried to prevent a sex shop opening in Eastbourne. The shop was opened and it had pickets outside demanding to know the names and addresses of people who went in the shop. This shop was boarded up. There was nothing on display in the window, according to the report. The notice was there that nobody was allowed in under the age of 18. Yet this demonstration of militant action outside the shop took place on the day of opening. Where is liberty in this situation? People are entitled to go in that sex shop in Eastbourne as they are entitled to go into Sainsbury's shop in Eastbourne. In those circumstances, one has to get this into perspective.

I have no more patience than the noble Lord, Lord Mishcon, with the profiteers in pornography; but there are some respectable booksellers who have been harried, harrassed and driven out of business by the activities of the police, who believed they were fulfilling their duty under the existing legislation. One has to be careful in providing new conditions of trading or of living and in giving the police the right of enforced entrance—because that is what we come to in the end—in order to see whether there are any grounds to suspect that the law is being broken. That is where liberty comes in. There can be no pretence that enforced entrance by the police to a person's home or business premises is under any circumstances a light matter. It is not.

So I am sorry to say that T find the noble Lord, Lord Nugent, much more persuasive than my noble friend Lord Mishcon. He has put it to me—and I accept it—that this is a matter of judgment and opinion. There is perhaps a balance of argument one way or another. The Williams Committee unanimously—with the very varied composition of the committee—came to the conclusion that the balance of opinion was on the side of offensive ". Others, believing that this is to deal—at the present time at any rate—with a narrow issue, feel we need not widen the field of offensiveness beyond what is conventionally believed to be indecent. I see that point straightaway. This is not a Bill that tries to deal with the wider aspects of what is offensive but it is trying to deal with what is believed to be at the present moment, as the committee described it, almost a public nuisance. When I come to the next amendment, that is the point at issue.

I am sorry to have taken more time, but if I am provoked I shall hit back. In rather more temperate spirit, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.38 p.m.

Lord Houghton of Sowerby moved Amendment No. 2:

Page 1, line 5, leave out from (" displayed ") to end of line 7 and insert (" that display shall be deemed to be a statutory nuisance ").

The noble Lord said: This is my first act of obliging my noble friend Lord Donaldson of Kingsbridge. It is probably unreasonable to unload a new approach altogether on to this Bill at this stage. This amendment introduces the whole concept of public nuisance. It is worth spending a minute or two on the different approach which might have been made by the Williams Committee but which was not. On page 114, paragraph 9.7, they said that they were convinced by the evidence that they had received that an approach directed primarily at curbing a public nuisance would command very wide support. They thought that this approach would be appropriate and acceptable in principle. They moved on into the direction of this Bill rather than into the direction of preventing a public nuisance under alternative legislation.

I think that there are attractions about using the techniques of the Public Health Act 1936 and the Public Health (Recurring Nuisances) Act 1969 to insist on the abatement of a nuisance, that being within the responsibility of the local authority. I admit, however, that local authorities may not be happy to have this wished upon them. They would probably say they have quite enough public nuisances to deal with already without picking up this very prickly one. I would understand that point of view. However, it does remove the nuisance from the criminal law which this Bill emphasises too much—that this is part of the criminal law. This is a pity in a way, because some of it can be almost inadvertent, some of it can be deliberate and some can be brash and repulsive. There are differences in different localities that could be dealt with under the two statutes I have mentioned, which would require adaptation and which could be reflected in the attitudes of local authorities rather than be in the hands of the police.

However, I do not think I can presume on the time of the Committee to do more than mention this and to give it a short airing as a possible line of thought on some future occasion when a matter of this sort comes to be reconsidered, as I believe it will have to be one day. I do not think we can go on with this kind of patchwork legislation, hoping that we can overcome the difficulties as they arise, and building up more and more chaos in the law that we have already.

I shall understand if the noble Lord, Lord Nugent, is not in a position to deal with this late proposal of a rather radical nature; perhaps I ought to have had second thoughts about agreeing to underwrite it, but I do feel that there is a line of thought here which is worthy of noting as we go along. I certainly shall not seek to press this amendment. That would be quite unfair. I shall leave it to the noble Lord, Lord Donaldson, to decide for himself what to do with it later on. However, I beg to move the amendment at this stage, hoping at least that passing notice can be given that there is probably a different remedy available here at some future time which would give local authorities in this field, as they have in so many others, a responsibility and a power to reflect the attitude of local citizens.

Lord Nugent of Guildford

I certainly congratulate the noble Lord, Lord Houghton, on handling this major issue so skilfully and at such short notice. It is an ingenious idea and I congratulate the noble Lord, Lord Donaldson, on producing it. Certainly it is worth further consideration, but of course it would fundamentally change the whole structure of the Bill and, as the noble Lord, Lord Houghton, rightly says, it depends on whether the local authorities would be willing to operate it.

It so happens that I approached the local authorities about this Indecent Displays Bill, to ask whether they would take on an additional responsibility which I thought might strengthen the Bill; and the reply was that they were not keen on it at all and did not wish to have any further responsibilities in this field. I consulted all three of the national associations, and the answer was the same from all of them. So I am pretty sure that their answer to this would also be the same: they would not be willing to take it on.

Therefore, it really falls down at the first fence, but it does not alter the fact that the noble Lord made a very valid point from the legislative point of view when he said that this is an alternative approach which is worth thinking about in the general context. I hope—indeed, I know—that my noble friend Lord Belstead and his right honourable friend the Home Secretary are thinking that sooner or later (and the noble Lord, Lord Houghton, is quite right about this) the Home Secretary really must square his shoulders and bring forward general legislation in this field because legislation on obscenity itself has completely broken down on the 1959 Act and something is needed in its place.

But in this limited context I am grateful to the noble Lord for seeing that it would not be possible to contemplate this at this stage and if we did put it into the Bill it would wreck its prospects in another place. Having given it a brief airing, which is very worth while, and having brought it to the notice of the Committee—it would be interesting to hear what my noble friend has to say about it—I am pleased to hear that the noble Lord, Lord Houghton, would be willing to withdraw it.

Lord Belstead

I have nothing to add to what was said by my noble friend Lord Nugent, except that I am a little concerned about an alliance—not, of course, an unholy alliance—between my noble friend and the noble Lord, Lord Houghton, in pushing for more comprehensive legislation in this field. However, that is another matter and it falls well outside the scope of this limited but extremely useful Bill. I join with my noble friend in hoping that the noble Lord, Lord Houghton, as he has indicated to us, will not feel it is worth pressing this amendment to a Division.

Lord Houghton of Sowerby

Several references have been made to "this very useful Bill" and the narrow issue that it deals with. I am bound to say that the Government have shown no particular anxieties about this reform in recent years. A Bill was introduced in another place in 1979 which fell through lack of time. The Government refused to give special facilities for Bills to deal with this matter. They have regarded it as something to be left to the hazards of the Private Members' Bills procedures. Although from the Government's point of view it is a useful Bill, it is entirely fortuitous that this Bill comes to this Chamber at all. The sponsor of the Bill in another place had first thought about another subject entirely, and it was only by his own choice, after coming out well in the bran tub of legislative opportunity, that he decided to choose this Bill. So I think that, having left it to the luck of the draw, so to speak, one cannot put too much stress on the Government's interest in the usefulness of this Bill. It did not seem to matter too much until now.

However, I do not want to go on picking quarrels all round the Committee. As a lone person, with noble Lords of a different view in front of one and at the back of one, it probably brings out characteristics in my temperament which are not quite so pleasant as usual. I do not want to dwell further upon this. I quite understand that the local authorities would have to be consulted and that in present circumstances they would not want to take on this additional burden. But I think the idea of the local authority having the power to issue an abatement order, then a nuisance order, and if necessary a prohibition order, all dealing with local nuisance, with powers of enforcement only if there is failure or refusal to comply with the orders made, has its attractions from a theoretical point of view and it would not then be in the calendar of criminal offences in the same way as this Bill retains it. However, in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.50 p.m.

Lord Houghton of Sowerby had given notice of his intention to move Amendment No. 3:

Page 1, line 7, at end insert— (" ( ) In this Act "offensive matter" means matter (other than the printed word) whose unrestricted display is offensive to the general public by reason of the manner in which it portrays or deals with or relates to violence, cruelty or horror, or sexual, faecal, urinary functions or genital organs.").

The noble Lord said: In view of the fact that this amendment is now not strictly relevant to the earlier part of Clause 1, and will have to be changed in form slightly if it is to be converted into a definition of the word "indecent", I had better not move it so that the position can be kept open.

Lord Houghton of Sowerby moved Amendment No. 4:

Page 1, line 13, leave out from (" access ") to end of line 3 on page 2 and insert) "while that matter is displayed except premises or a part of premises having a separate access from the street—

  1. (a) which persons under the age of 18 years are not permitted to enter while the display in question is continuing; and
  2. (b) to which the public can gain access only by passing an adequate warning notice in the terms of subsection (6) below; and
  3. (c) which make no display visible to persons not passing beyond the warning notice, other than the name of the business and an indication of its nature.").

The noble Lord said: This amendment is almost drafting. I do not know whether the noble Lord, Lord Nugent, has had an opportunity of studying it. The wording in subsection (3), as amended in Committee in another place, seems to be unnecessarily complex. The exceptions to "public place" can be stated quite clearly by setting down three cumulative conditions, (a), (b) and (c), as in the amendment on the Marshalled List. This allows premises which would otherwise be a public place to exempt themselves, if they exclude young people from entering and allow other people to avoid offence. These conditions were recommended by the Williams Committee.

There was no discussion, either on Second Reading or in Committee, of the justification for paragraph (a) when people make payment for a display. However, there is no reason why such a situation should not be covered by the amendment proposed, provided that a warning notice is set up. It is perhaps a more orderly and tidier form of setting out this subsection. I do not think it makes any material change in the purport of the subsection, but it gets it a little clearer. I beg to move.

Lord Nugent of Guildford

I have to confess that I have not studied this point in great detail. I had rather imagined that it was attached to the earlier amendment of the noble Lord, Lord Donaldson, and would stand or fall with it. I am hopeful that my noble friend Lord Belstead may be able to express a view on it. But I am not absolutely clear how it will tie up with the very carefully worked out provisions in subsections (4), (5) and (6) in the Bill as it now stands. I should not like to disturb them, because I recollect the very detailed discussion which they were given, and a certain amount of amendment that they were given, at the Committee stage in the Commons. So I should like to hear what my noble friend has to say and, perhaps, I could then express a view to the noble Lord, Lord Houghton, as to how we might proceed.

Lord Belstead

After a rather brief glance, I think that this amendment could be said to be technically defective, and we ought to have another look at it before we decide whether to agree to it.

Lord Houghton of Sowerby

In those circumstances, I readily beg leave to withdraw the amendment. It is only fair that further thought should be given to it, to see whether it does what it is intended to do.

Amendment, by leave, withdrawn.

Lord Houghton of Sowerby moved Amendment No. 5:

Page 2, leave out lines 12 to 14.

The noble Lord said: The question here is whether we need to include in the Bill an exemption to authorities which may display indecent matter, which is visible only from within a building occupied by the Crown or any local authority. It is not clear why this is in the Bill, and perhaps the noble Lord will be able to tell us. Subsection (4) reads: Nothing in this section applies in relation to any matter … (c) displayed by or with the authority of, and visible only from within a building occupied by, the Crown or any local authority ". What is it that they want to stick up which would be exempted? I beg to move.

Lord Nugent of Guildford

The thought here is that a local authority or the Crown might allow its premises to be used for some artistic display which could be seen from outside and generally, and then there could be a charge of indecency. The thought is that public authorities of this kind should be trusted to ensure that their premises are used in a perfectly reasonable way for artistic displays, and that they ought to be protected in doing so. It is as simple as that and means exactly what it says. I imagine that this amendment was proposed by the noble Lord, Lord Donaldson. I think there must be a misunderstanding, because I am sure that he would be entirely in favour of the provision.

Lord Houghton of Sowerby

Here, again, it would be unfair to pursue the matter further now. If I beg leave to withdraw the amendment, that will give an opportunity to the prime mover and to the noble Lord, Lord Nugent, to consider the position. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Houghton of Sowerby moved Amendment No. 6:

Page 2, line 27, leave out (" includes ") and insert (" means ").

The noble Lord said: The point here is that we want to have a fairly close definition and we want the definition of "matter" to be a little clearer. Subsection (5) states that "matter" includes something, but it really ought to mean anything capable of being displayed. What is the significance of "matter" including something, which suggests that it could include something else? The word "matter" should mean something and should not just include "anything capable of being displayed." I hope that that is intelligible. I beg to move.

The Earl of Halsbury

Before the noble Lord, Lord Nugent, replies, may I draw your Lordships' attention to the fact that the word "includes" occurs twice in subsection (5), once in line 27 and a second time in line 28. It seems to me that the amendment is defective, in so far as it alters the word "includes" to "means" in line 27, but does nothing about its receurrence in line 28. I should have thought that, for an amendment tabled as late as this has been, to ask us to take this in our stride is wrong, and I appeal to the noble Lord, Lord Houghton of Sowerby, to withdraw this amendment and have another look at it, before it is brought forward again at a further state of the Bill.

Lord Nugent of Guildford

I cannot add very much. The noble Earl, Lord Halsbury, is perfectly right. The word "includes" is repeated in the next line for a specific purpose, and the two "includes" are linked to each other. If "means" is put in, instead of "includes ", the drafting will then be defective. I hope that the noble Lord will feel that he does not want to press the amendment.

Lord Houghton of Sowerby

I think that there should be a further opportunity to consider this point. The only matter which can possibly be subject to the Act is matter which is capable of being displayed. It does not include anything else. The point is that "matter" must mean something which is capable of being displayed. However, there is a point to consider. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Houghton of Sowerby moved Amendment No. 7:

Page 2, line 28, leave out from (" displayed ") to (" and ") in line 29.

The noble Lord said: The purpose of this amendment is to delete something which the section says is not to be included. Subsection (5) reads: In this section ' matter' includes anything capable of being displayed, except that it does not include an actual human body or any part thereof ". The sponsor of the Bill in another place suggested that there was no need to include in his Bill matters that were dealt with by other legislation. The human body is excluded from this Bill because it may be covered by alternative legislation. That is the point of this amendment.

While the Bill is at it, may I ask whether there is any reason why it should not deal with the display of the human form? Again there are many technical problems with which I confess I am not in a position to deal. It seems strange that if the Bill deals with the cover of a book in a shop window which could be called an indecent display it does not deal with a man and a woman in a compromising position in a shop window because that, presumably, is dealt with by some other legislation. Presumably the Vagrancy Act 1834 would deal with that situation, but I do not know.

There is a point about the exclusion of the human form if it is capable of being displayed in circumstances similar to those in which an indecent book or an indecent picture may be displayed. I understand that if a couple were indulging in sexual intercourse in a public park they could be prosecuted under one law. Whether if they did it in a shop window they could be prosecuted under the same law, I do not know. It has been suggested to me that there may be a little point worth considering here. I beg to move.

Lord Nugent of Guildford

The noble Lord, Lord Houghton of Sowerby, with unerring skill has put his finger on an anomaly in the Bill. The boundary of the Bill is to deal with indecent display, not with the general subject of obscenity. The sort of activity which one might think about in this context, an activity which is to be found in particular in the northern part of this country, is the strip show. Strip shows are often to be seen in public houses and the like. The Bill is not intended to deal with that situation, though it may be that some of them are obscene and ought to be checked.

As we have already acknowledged, the general law is in disarray in this field but this Bill is not designed to try to deal with it. The author of the Bill felt that he should make plain what were the limits which this Bill was trying to deal with. That, as I understand it, is why the structure of the Bill is as it is here: it is in order to define what are its limits. My noble friend may be able to shed a little more light on this matter, but that I think is the basic position.

Lord Belstead

My advice is that the noble Lord, Lord Houghton of Sowerby, is quite right and that other legislation of various kinds, of which the noble Lord mentioned one example, would cover the kinds of eventuality which he had in mind.

Lord Houghton of Sowerby

In those circumstances, I beg leave to withdraw the amendment in order to give my noble friend an opportunity to consider the matter further.

Amendment, by leave, withdrawn.

8.8 p.m.

The Earl of Listowel moved Amendment No. 8:

Page 2, line 32, leave out (" open ") and insert (" exposed ").

The noble Earl said: The purpose of this amendment is to remove a possibly dangerous ambiguity in the words "open to view ". The intention of the noble Lord, Lord Nugent of Guildford, in the Bill is to catch the covers, not the contents of books or magazines. But the contents of a book would be open to view if a customer took a book down from the bookshelves of a shop and turned over the pages. This would be literally opening the book to view, even if the only viewer was the potential purchaser and he was only looking at the printed pages. This is a very real difficulty, but I do not underestimate the difficulty of finding a satisfactory alternative wording.

If the words "exposed to view" were used instead of the words "open to view ", which is what I am suggesting in my amendment, they would make clear that the law is only concerned when some part of a book or a magazine is deliberately exposed for customers to see. This ambiguity would not be so dangerous if proceedings required the consent of the Attorney-General. But the Bill as drafted would allow proceedings to be brought by private individuals and there are some who would certainly take advantage of an opportunity of this kind.

I am not at all sure that my amendment would prevent this risk of a sort of private censorship which no one, least of all the noble Lord, Lord Nugent of Guildford, would desire. But if it does not meet the point, I hope the noble Lord himself, or perhaps the Government, who have been helping him with the drafting, will attempt before the next stage of the Bill to find a form of words which would avoid what might be a dangerous ambiguity. I beg to move.

Lord Nugent of Guildford

I recognise the noble Earl's great parliamentary knowledge and therefore the value of his opinion on this point. The fact is that parliamentary counsel says that either form of words—either "open to view" or "exposed to view "—would mean the same. So it really is a matter of taste as to whether your Lordships wish to make the change. I feel quite neutral about it. I shall be interested to hear whether my noble friend Lord Belstead feels that there is any risk attached to it. From such advice as I have been given, I believe that there is not.

I would say to the noble Earl, Lord Listowel, that I should have felt obliged to resist the amendment on the ground that it would be far better if we did not amend the Bill at all, but for the fact that, as noble Lords will have seen, I have an amendment down in my name to correct a technical fault which was made in bringing the law in Scotland into line with the law in England. This amendment was put into the Bill at Report stage and therefore an amendment has to go into the Bill to get the law right in both countries. That being so, I would be prepared to accept the amendment which the noble Earl has moved.

Lord Jenkins of Putney

I hope it will not be felt indecent by your Lordships if I add a few words on this amendment so soon after making my maiden speech. My excuse for doing so is that in the other place I served on a committee dealing with a similar Bill and thus became slightly engaged in the esoteric discussion which this kind of Bill provokes. It seems to me that your Lordships should take advantage of the mover's kindness in suggesting that the change might be made. It seems to me that the word "exposed" has a more deliberate connotation than the word "open". The word "open" suggests an accidental display whereas the word "exposed" has a rather more deliberate connotation. If your Lordships feel that too, then there is much to be said for the amendment, and in view of the feeling which has been expressed by noble Lords opposite, perhaps your Lordships will feel disposed to accept the amendment.

Lord Houghton of Sowerby

I agree with what my noble friend Lord Jenkins of Putney has just said. The sponsor of the Bill in the other place assured the Committee on 4th March 1981 (col. 123): I see no risk that someone who goes into a bookshop, opens a copy of a magazine with a decent cover and looks at something indecent inside the magazine will be committing an offence. Such a person would not be making a display". I suppose this may be just a matter of semantics but the phrase "open to view" rather suggests something that is available to be looked at, whereas "exposed to view" suggests something that is openly there to see. In other words, "open" suggests opportunity but "exposed" suggests that the display is a fact. These are the fine differences between one and the other.

This point has caused concern outside. I have received a letter from a university professor on this very point. He says that he is not interested in sexy, glossy magazines but he is interested in scholarly works on Greek vases and is afraid that such works might be prosecuted. He comments: A scholarly work on Greek vases might well be prosecuted to the great embarrassment of reputable booksellers ". There seems to be some doubt even in high academic quarters and it is as well that any doubts should be removed. If the noble Lord, Lord Nugent of Guildford, admits that the words "open and" exposed "are mutually exchangeable, he might care to meet the representations which have been made to him and exchange one word for the other, because it will not make any substantial difference but will, for some of us, remove any shadow of doubt.

The Earl of Listowel

I was most anxious that your Lordships should have an opportunity to express opinions about this amendment because I was not myself certain whether it was suitable or not. But as all of those noble Lords who have spoken have supported the amendment, and since the noble Lord, Lord Nugent of Guildford, himself has been generous enough to say he would accept this amendment even though he says it makes no difference to the Bill, I believe it would be in accordance with your Lordships' wishes if I pressed my amendment.

On Question, amendment agreed to.

Lord Houghton of Sowerby moved Amendment No. 9:

Page 2, line 42, leave out (" 18 ") and insert (" 16 ").

The noble Lord said: This amendment covers the question about the age limit relating to permissible entry to the back of a shop. I admit straight away that the Williams Report is against the lower age but again it is a matter of judgment, in the light of' present circumstances, whether the age should be 18 or something lower. In support of reducing the age from 18 to 16 I would advance the argument that 16 is the age of consent, and also it is the age above which a marriage may be lawful. I am advised that it is more difficult to distinguish between persons aged 17 and 18 than it is to distinguish between persons aged 15 and 16.

I could not be certain about that argument but, to take an extreme example, it is conceivable that a girl of 17 might go into a shop wearing a wedding ring and be told by the shopkeeper when she asks to go into the back of the shop, "I do not think you are 18. Are you 18? ". She might reply, "No, but I am married and I am the mother of a small child, so I know all about it and please may I go into the back of the shop to see what there is to see? "is the shopkeeper then to say, "Run away, little girl. This is not fit for you to see. We do not want you to be corrupted by looking at this hard porn. In any case the law is against it so I cannot admit you to the back of the shop "?

That example may be a little far-fetched but there are quite a number of girls around these days who are married and become mothers before the age of 18. The relevant passage in the Williams Report is on page 125, paragraph 939, and noble Lords can read that for themselves. The noble Earl, Lord Kinnoull, asked me to move this amendment on his behalf and therefore I beg to do so.

Lord Nugent of Guildford

We must thank the noble Lord, Lord Houghton of Sowerby, once again for moving an amendment in the absence of its progenitor and for the very able way in which he did so; the example he gave of a 17-year-old marriea mother was a good one. Here again we are dealing with a matter of judgment. If one fixes the age at 18, then there may be some young men or girls of 17 or even 16 who will go into a shop, and the shopkeeper will find it very difficult to tell what age they are. Some young people look quite grown up. On the other hand, if one sets the age at 16 some children aged 14 or 13 may go into a shop. The noble Lord was good enough to give me part of the case against the advice given in the Williams Report that 18 was a good age to set—I would have thought that 18 was an appropriate age. I understand that the working party on vagrancy also recommended that 18 was the age that should be set, recognising that there is bound to be a bracket and nobody can tell absolutely what age a person is.

If one sets the age limit at 18 one at least ensures that younger boys and girls—if one can call them such at that age—are not freely mixing with hard porn of the kind we particularly want to keep them away from, and that the Bill therefore serves its purpose. There cannot be anything absolute about this, but I believe it would be a mistake to bring down the age to as low as 16. I hope that your Lordships will feel that it is better to leave the age limit at 18, knowing that in practice there will inevitably he a certain amount of flexibility in the interpretation of the age limit.

Lord Houghton of Sowerby

The arguments will go down on paper in the Official Report and they will be available to the noble Earl whose amendment it is. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Clause 2 [Powers of arrest, seizure and entry]:

8.20 p.m.

Lord Houghton of Sowerby moved Amendment No. 10:

Page 3, line 14, leave out from (" Act ") to end of line 15.

The noble Lord said: This amendment proposes to delete the words, "or in an attempt to commit such an offence ". I doubt whether this is appropriate to this subsection: A constable may seize any article which he has reasonable grounds for believing to be or to contain indecent matter and to have been used in the commission of an offence under this Act or in an attempt to commit such an offence". How does a person attempt to commit an offence under this clause? He is not being charged with handling pornography. There is no forbidden material in his hands. If it were, that is taken care of by the Obscene Publications Act or something else, but here is a person whose offence is putting something on display. How can it be attempting to put something on display in a certain part of the shop? I fail to understand the meaning of these words in terms of actual experience. Can the noble Lord give an example of the right of a constable to have reasonable grounds for believing that the article contains indecent matter that is going to be used in an attempt to commit an offence? I am puzzled about that, but I hope that I may be enlightened. I beg to move.

Lord Nugent of Guildford

I would suspect that this form of structure is fairly common in defining an offence of any kind, actually committing the offence or attempting to commit it, but how it applies in this particular case I would suggest is that if a shopkeeper was in the process of dressing his shop window with indecent material of this kind that would be attempting to make a display of the kind which is to be made illegal under this clause, and if a constable saw him doing this and entered the shop to take action against him, to charge him, he would then charge him with the attempt to commit the offence because the shopkeeper would not have completed his offence; he would only be in the process of starting to do it. That is the kind of action. I agree that it would not happen very often that the constable would be there at that critical moment and see the shopkeeper starting to dress the window but it could happen, and, because it could, the clause has been drafted in this way in order to cater for it.

Lord Jenkins of Putney

I share the concern of my noble friend Lord Houghton of Sowerby about the appropriateness of an attempt occurring in this type of offence. I found him very persuasive when he suggested that the offence was either committed or not committed and that an attempt to commit was hardly appropriate in this particular context. I was not entirely convinced by the answer and I hope that my noble friend will not be easily deterred from pressing his amendment.

Lord Mishcon

I wonder whether I might assist. As always the noble Lord, Lord Nugent of Guildford, gave a very clear exposition of a point of view with regard to attempt, but I would say to my noble friend Lord Houghton—who I know will forgive me for addressing him again and this time with considerable affection, as I always do—an attempt of course could be made in these circumstances. A constable is standing opposite a shop; the display, which is quite obviously an indecent one, has been nine-tenths put up. What is put up in fact is not at that moment indecent in regard to the nine-tenths but in the hands of the shopkeeper, or whoever it might be, there is the tenth part of this exhibition, which is just about to be put up and which makes it thoroughly indecent. Does the police constable have to wait in front of a crowd of people looking at the shop, or passers-by, while the shopkeeper puts up the one-tenth in order to make it thoroughly indecent so that the offence is committed, or is it obvious, because he is trying to put it up, that the attempt is about to be committed? Is it not right that the police constable should be able to seize the article—which is the right that is given under this clause? I think that is possibly an example which I might give to the Committee of what these words attempt to cover.

Lord Houghton of Sowerby

I am grateful to my noble friend for his helpful remarks and forgive him much. However, I am still not convinced that the example that he has given would be one in which the constable should enter the shop and say, "I see you have put two books up there which look very dicey to me. Have you any more like those which you are going to stick up?" The shopkeeper will say, "No, that is it" and the police constable will say "Well, I had better have a look round and see. What is in this box here? Were you thinking of putting those up?" "No, constable ", the shopkeeper will say, and the constable will say "Don't lie, you were just going to put these up. I am going to exercise my right to seize these books because I believe they were going to be used in an attempt to commit an offence ".

Seriously, we are dealing with a different kind of situation from the one where the attempt to commit an offence is common form in the Bills concerned. This is different and it is new, and I think one has to deal with the powers of the police with great care. This is not censorship. This is not dealing with obscenity; this is dealing with indecent display. The offence is to display to public view matters which they might regard as indecent and offensive. He is absolutely in the clear if he puts what he has got beyond the door with a notice prominently displayed, as the Bill provides. So this is a very fine point indeed, as to whether he is attempting to commit an offence, whether certain material was about to be used to commit an offence. The powers of the police are quite sufficient, I suggest, here without allowing a constable to throw his weight about to this extent. Although it might be a little inconvenient for the constable to wait until he has seen whether the shopkeeper was going to put up any more material in the window which might in cumulative form amount to an indecent display, I think it is better to wait until he sees more obvious signs that an offence has been committed or is being committed before we give him the right to go into the shop and seize material.

Very shortly we are coming to the question of forfeiture. I am very doubtful indeed whether the powers of the police should be extended a single inch beyond what is really necessary to enforce the law. I cannot believe that these words have any convincing relevance to the situation. I do beg of the noble Lord, Lord Nugent, to give further thought to this. I know he is a reasonable man and does not want this Bill to go any further than to deal with the narrow point the Bill is intended to cover. I will, therefore, beg leave—

Lord Nugent of Guildford

Before the noble Lord withdraws the amendment, I should like to say a further word. I regard this as very marginal, and I think we all do; it is a very fine point indeed. Bearing in mind the argument the noble Lord has just very effectively advanced, that if the constable waited a few more minutes the attempt would turn into reality, it really does seem that the case for including the attempted offence as part of the offence is not very justified when we are dealing with indecent display. So I feel that it would be right that I should advise your Lordships that this is not going to affect the strength of the Bill and the character of the Bill. The noble Lord has made a fair point, and if the noble Lord wishes to press his amendment I would advise your Lordships to accept it.

On Question, amendment agreed to.

8.33 p.m.

Lord Houghton of Sowerby moved Amendment No. 11:

Page 3, line 26, at end insert— (" ( ) Proceedings for an offence under this Act shall not be instituted except by or with the consent of a police officer of or above the rank of Superintendent.").

The noble Lord said: We now come to the question of proceedings. I beg to move to insert the words on the Marshalled List. This question of the right of prosecution was dealt with at considerable length by the Williams Committee. They came down against central control of prosecutions; that is, against the Director of Public Prosecutions being the sole authority to sanction proceedings. They recommended restricting the institution of proceedings to the ordinary police prosecuting machinery. Their recommendations are on page 129 of their report. But they were not—I repeat not—in favour of allowing individuals to invoke the law.

The offence under this Bill is not the committing of some breach of the law, like assault, which can be tried on evidence of the facts; it is an offence depending upon the varying views of what is indecent or offensive. It was on this part of the 1973 Bill, introduced by the Government of the day, that the Labour Opposition took such a strong line against private prosecutions. In fact I can say that the Shadow Cabinet at the time had decided to vote against the Third Reading of that Bill if it still contained, as it seemed likely it would, the right of private prosecution. As it turned out, the Bill fell in 1973 because of the General Election in 1974. The Labour Home Secretary, Mr. Roy Jenkins, set his face firmly against the reintroduction of that Bill in its original form.

I know that it can be argued that the right of private prosecution exists in the Obscene Publications Act 1959, but if the Committee wish to see the chaos in the list of statutes in which the right of prosecution is in different hands they will read the list on page 185 of the Williams Report. We did not include the right of individual prosecution at the time of the Protection of Children Act 1978. The Theatres Act 1968 reserved prosecution, at least in some important sections of the Bill, to the Director of Public Prosecutions. So we have not really given an open opportunity to private prosecution for a very long time. I think it is a retrograde step to revert to the provisions of the 1959 Act, which is outdated and unworkable and virtually a dead letter at the present time.

I know that the matter was debated in the Committee in another place, and Mr. Silkin made a very strong case there against the right of private prosecution. The Minister of State, Mr. Mayhew, said, at col. 156 of the Committee proceedings of 11th March: For my part I think that the principle is this, that the criminal prosecution is in essence an action of a special type in the Queen's courts whereby one person complains to the representatives of the Queen, who are the judges, magistrates and so on, that a breach has occurred of the Queen's law, and calls for a remedy in the shape of a criminal penalty.".

I stress the fact that in the Williams Report they argued very strongly against allowing the private citizen to exercise his own judgment and his own opinion as to what is an indecent display and to undertake a private prosecution. He can put a trader on the rack. He can expose him to public notice in an unfavourable light. He may even cause his business serious loss, and all because somebody is offended by what he sees in a shop window. Moreover, in many cases the private prosecution will be undertaken by somebody who is encouraged and financed by some moral vigilante organisation that conceives it to be its duty to pursue people wherever this alleged evil may arise.

This is a very important matter, probably much more important than many of the earlier amendments that we have already considered. I hope that the viewpoint of the Minister of State, as expressed in Committee in another place, will not prevail here. We as a House have a constitutional duty to safeguard the position and the rights of the citizen. If the citizen is to prosecute for an offence which is against the community—not against himself, but against the community—he is claiming to speak for others, not only for himself. An indecent display is not indecent merely because he personally thinks so; he must establish that it was indecent to many other viewers as well.

The amendment is a reasonable compromise. I do not believe that the right of prosecution should rest with the Director of Public Prosecutions or with the Attorney-General. It rests with the Attorney-General in the case of the Theatres Act and the Director of Public Prosecutions in the case of the Protection of Children Act. As far as I can trace, the only right of private prosecution in this particular field goes back to 1959 under the Obscene Publications Act. There were, of course, some private prosecutions, and some extremely costly ones, undertaken under the Obscene Publications Act.

Therefore, I attach great importance to this amendment and I sincerely hope that the noble Lord, Lord Nugent of Guildford, will give it the most urgent consideration. I draw his attention especially to paragraph 9.49 on page 129 of the Williams Report concerning whether it is in the public interest of people of a certain kind to be able to use the courts for the purposes of pursuing their own unrepresentative view of offensiveness, particularly as the offence of which they are complaining will not be against them in particular, and so on.

I do not know what to do about this amendment. I am moving it at the moment and hope that there will be some response to it. However, I do not think that the Committee should allow the Bill to stand unamended in this extremely important respect.

Lord Monson

I should like to support the amendment for the following reason. During the mid and late 1960s and early 1970s the pendulum swung much too far in favour of permissiveness, towards an almost intolerant permissiveness, if that is not rather self-contradictory. Now in the 1980s the pendulum, as always happens, is swinging back this time too far, I feel, in the direction of an almost intolerant puritanism. I think that this amendment would provide a reasonable safeguard for the middle ground, for the happy medium. For that reason I hope that the Committee will give it some earnest consideration.

Lord Jenkins of Putney

I also would like to add a few words in support of the amendment. I was on the joint parliamentary committee which decided to abolish the role of the Lord Chamberlain as censor. There was great concern among theatre managers at that time that the consequences of the abolition of the role of the Lord Chamberlain would be that a series of private prosecutions would be launched and that they would not know where they were—anything could happen to anybody, anywhere. No one knew when a show went on the road whether if in this, that or the other town it might suddenly be stopped. It was then decided, as the noble Lord, Lord Houghton, has said, that no prosecution should be launched without the fiat of the Attorney-General.

If that had not been done I think that the consequences of the abolition of the role of censorship by the Lord Chamberlain would have been absolutely disastrous. The consequence would have been that private prosecutions undoubtedly would have been launched throughout the country. I foresee that, without some such minimal protection as proposed by my noble friend, something similar would happen here. It seems to me that ordinary booksellers throughout the country would be placed in a position of gross uncertainty, a position verging on the impossible. I therefore echo my noble friend's words and hope that this amendment will be treated seriously and, if possible, accepted.

8.45 p.m.

Lord Nugent of Guildford

I agree with the noble Lord, Lord Houghton, that this is an important amendment, and of course it did receive a great deal of attention in the debates in another place which I have studied in the same way as the noble Lord has. We start from the position that the law now allows private prosecutions. Therefore, Lord Houghton's amendment would remove from private citizens a right that they have now. Let me remind the noble Lord, Lord Monson, that this is a right which the private citizen has at present and I would suggest that there should be a very strong case indeed before we take it away from him.

The case has been put eloquently by noble Lords on the other side about the danger that there might be to bookshops and newsagents if the right of private prosecution remains. We are talking here, of course, about public display in the context of this particular Bill where a certain machinery has been defined in the Bill whereby a pornographic display must be confined to the rear part of a shop with a suitable warning notice and so on. It is a very narrow context.

I make the point particularly cogently to the noble Lord, Lord Houghton, that the Williams Report in this context is talking about the offence of obscenity—a very much wider subject. In particular, it is talking about it in the context of limitations on expression, artistic, literary, dramatic, and so on. It is essentially in the field where legal action becomes censorship. That has no element whatever in this field of public display. That is the difference, I would suggest, as regards private prosecution in this particular field where it now exists—and I make this point very strongly.

We are required here to see that we have the right balance as regards the rights of the private citizen. The private citizen is just as entitled to be able to walk down the street without seeing disgusting displays in shop windows as the other private citizen is entitled to sell his wares in a shop. We are concerned with the balance, and the rights of the private citizen are not all on one side.

The point which the noble Lord, Lord Houghton, very effectviely made with his excellent command of dialectic, that there is a danger of persecution by morally motivated groups who can finance some private citizen to put up a private prosecution, may be one side of the matter, although there are none that I know of that have any great finance behind them. However, we are looking at the picture where the finance, if we are talking about finance, is on the other side. We all know jolly well the size of these publications; the millions that are sold every month; the huge sums of money that are being made out of pornography; the continuous effort to push out its boundaries to find new markets among children and to use material which becomes ever more reprehensible. The threat, if there is one, is not from the private citizen who is saying "I don't like this display; I shall take action against it ". Most private citizens who do that will jolly well have to finance it themselves, and there are not very many who have the courage or the money to do it. So the risks are not very great and the issues at stake are not very great.

I should have thought that the balance is about right in retaining, and I stress the point—and this should appeal to the noble Lord, Lord Monson, who, heaven knows, is a valiant warrior in the cause of the rights of the private citizen—the existing rights of private citizens to protect themselves from the pollution of the town or city in which they live. I should have thought that if we retain this particular right in the Bill and do not take it away from the private citizen, the balance would be about right.

Therefore, I most earnestly hope that the noble Lord, Lord Houghton—who I know, despite his powerful dialectic attacks on a particular subject, is very fair-minded at the end of the day—will see that there is a powerful case on the other side too, and that there really is no justification for taking away this particular right in this particular narrow context. I can only suppose that that was the reason that right honourable and honourable gentlemen in another place agreed that it should stay in, because they must have been at least as aware as the noble Lord of the history of this affair.

Lord Mishcon

I intervene only in order that I can emphasise an argument that was, in fact, before the Committee in another place but which has not been advanced this evening. I mention it only so that it can be considered by the Committee, and by my noble friend. I have a great deal of sympathy with the point that there can be oppressive prosecutions brought by private individuals who have some rather weird ideas about what is decent and what is indecent. I accept that completely.

However, one of the things that influenced the Committee in another place was, indeed, a point that was advanced in argument by the mover of the Bill, who of course, was the honourable Member, Mr. Sainsbury. He referred to the position which the Royal Commission on Criminal Procedure had reported, and which made major recommendations in regard to private prosecutions. If the Committee will permit me—and it will take only a moment or so—I should like to read its recommendation, which is to be found at paragraph 715 of its report. It says: We therefore recommend that if a private citizen wishes to initiate a prosecution, he should apply in the first instance to the Crown Prosecutor ". In parenthesis, that is a new idea that was advanced by the Royal Commission on Criminal Procedure. It goes on: If the latter is satisfied about the case, applying the same criteria as he would apply for any other prosecution, he should take the case on. If he is not, and the private citizen, after explanation, still wishes to proceed, the latter should be able to make an application for leave to commence proceedings to a magistrates' court; that is, to at least two justices attended by a clerk ". It is known, although I believe that no one anticipates that there will be Government action on the Royal Commission's report very soon, that these matters are under consideration, and under pretty urgent consideration.

However much one may sympathise with the view put forward by my noble friend Lord Houghton—and I certainly sympathise with him in this amendment—I think that it would be rather extraordinary if, in a Private Member's Bill, we excluded private prosecution before major legislation comes forward to Parliament dealing with the whole question of private prosecutions and how they should be dealt with. It is in those circumstances that I would personally recommend to the Committee that to exclude private prosecutions in this Bill would be rather extraordinary in view of the fact that the whole matter is under consideration.

Lord Spens

Before the noble Lord, Lord Houghton, decides what to do, I am—as I think all noble Lords know—a very keen supporter of the very small businessman and I must draw your Lordships' attention to the fact that very small newsagents generally carry some of this material in their shops. They probably make their profits by being able to sell this material. The small village shop certainly does not have the space to produce what is described in Clause 1 (3)(b) as: a shop or any part of a shop to which the public can only gain access by passing beyond an adequate warning notice ". There is probably only one counter in the shop. This material is displayed inside the shop, but it is not behind an adequate warning notice. I am afraid that if we wait for the Government to act on the Royal Commission's proposals, we shall probably have to wait for three or four years, and during that time a large number of these small village stationers may be put out of business unless we can protect them by making sure that this type of prosecution is not brought against them. Therefore, I very strongly support this amendment.

Lord Swinfen

In answer to the remarks made by the noble Lord, Lord Spens, on the small village shop, surely once this Bill becomes law, if the proprietors of the magazines that are sold in the small village shop want their magazines sold in those shops, they will produce inoffensive front covers so that the proprietors of the shops will not be committing an offence and will, therefore, continue to hold their magazines within their stocks.

Lord Houghton of Sowerby

The noble Lord, Lord Nugent, said that the right of private prosecution already exists. But what he did not tell the Committee is under what statute that right exists. Unless I am very much mistaken, he was relying on the Vagrancy Act 1834. I am advised that one could rely on the Vagrancy Act for almost anything in this Bill. Indeed, the Vagrancy Act was passed mostly in order to deal with the unruly behaviour of the soldiery returning from the Napoleonic wars and, indeed, anything went under that Act. However, we have chosen to legislate afresh—and we are doing so today—on matters that might be covered by the obsolete Vagrancy Act, because we want to update the law and provide something at which Parliament can look afresh.

Therefore, if I am right in assuming that no right of private prosecution exists anywhere in this field except in the Vagrancy Act 1834, I suggest that the noble Lord is not relying on anything very strong. I should like to draw the attention of the Committee to page 185 of the Williams Report. There, it sets out the authority for prosecution in a varied field. It says: Indecent display provisions. None of the 19th century enactments restricts the right of private individuals to institute proceedings for an offence ". But what are those enactments? Is the noble Lord relying on any of them, or is he relying on the common law? When we have dealt with specific matters in recent years—such as the Theatres Act, the Children and Young Persons (Harmful Publications) Act, customs Acts, the Unsolicited Goods and Services Act, the Judicial Proceedings (Regulation of Reports) Act, the Protection of Children Act—we have not allowed the right of individual prosecution. In these days of high pressure groups with a strong mission in life many of which think evil of anyone who does not agree with their own point of view—and I have had wide experience of societies in this field and know how strong can be their hostility towards those who do not agree with them; this is not only in the social field, either—and, bearing in mind that this kind of pursuit of alleged delinquency can become a form of persecution or blackmail, we have to be careful before leaving the private citizen, who may be egged on by somebody else, financed by somebody else, to embark on a private prosecution, a test case. That kind of thing we have to beware of. It is the responsibility of other people to decide a matter of that kind.

The Earl of Halsbury

I am feeling confused by what the noble Lord has been saying. Perhaps the noble Lord, Lord Mishcon, can come to my rescue here. I have always believed that the right of insisting that the law, if broken, should be defended was a common law right inherent in the subject. It does not vest in any particular statute. I do not know whether the noble Lord can help me?

Lord Houghton of Sowerby

We shall probably deal with that point in a moment. What I am stressing is that in previous Acts in this field we have not left the right of private prosecution in the hands of the ordinary citizen. We have deliberately taken it out of the hands of the ordinary citizen. Why have we done that, and why did we do it for the Protection of Children Act and the Theatres Act? Why did we take the right of private prosecution away from the citizen, and in this Bill propose to retain it? This is the important point.

I am beginning to see why it is that some reputable retailers in the publishing world have represented to me that there should be a moratorium on private prosecutions, if that is what Parliament decides, for long enough to enable the retailer to put his house in order. The idea that he can put innocuous covers on otherwise indecent display covers is not, I suggest, an easy one to accomplish. After all, he has to sell his books and he has not normally the means to put fresh covers on books that have already been delivered to him.

Lord Swinfen

I was not suggesting that the retailers should put covers on the books but the producer of the magazine, the publisher.

Lord Houghton of Sowerby

That is a perfectly valid suggestion, but that is on future deliveries. He may already have material in his possession. It is not all the girlie magazines and the sexy glossies that are involved here. There are other indecent displays too. There is point in some delay to enable people to put their shop in order. Indeed, in a later amendment I plead for an extension of the period between the passing of the Act and the date upon which it will come into operation from three months to six months. It strikes me as relevant to our consideration here that this chain of booksellers should expressly put it to me that it is desirable that the right of private prosecution should not be let loose upon us right from the time the Bill is passed.

I do not think that the noble Lords who have intervened so far understand what the pressures are. The pressures that have produced this Bill are the pressures which will pursue those who are alleged to be in default of its provisions. There is a campaign going on here in just the same way that there was a campaign at the time of the Protection of Children Bill. We legislated in 1978 by scare, by panic, and from that Bill since 1978 less than 30 prosecutions have taken place, which shows how big a scare it was. We have scarcely heard any more about it since the Bill was passed. Here is a fresh opportunity for that kind of campaign to continue.

I am sorry to express myself in these terms but they are there, and they cannot be ignored. I sincerely hope that they do not use this opportunity of picking out people. In many cases of course you do not need in those circumstances to prosecute. All you need do is to go into the shop and say, "I find this indecent, and if you don't take it out I shall launch a prosecution against you ". The bookseller says, "I don't want to get into trouble. I don't want my name in the papers. I don't want anybody to come in here and seize my goods. I will take it out immediately ". Are we going to put up with that kind of thing? Talk about liberty in these circumstances!

I beg the noble Lord to consider what we are being asked to do. We are being asked to do something in this Bill that this House has not done before on any of these questions since I came into the place eight years ago. We are advancing our views upon the basic right of citizens to exercise their right of going to the courts to get redress not on a personal grievance but on behalf of the community, of which they may be quite unrepresentative.

I come now to my noble friend Lord Mishcon. I accept what he has said, but are we prepared to put the right of private prosecution in this Bill while waiting for the implementation of recommendations of a Royal Commission on this subject, on which there is no early prospect of action being taken? I do not agree with him that it is appropriate to leave the right of private prosecution in the Bill, because later that will be converted into a different right if the recommendations of the Royal Commission are implemented. I do not think that is the way to do it.

If the recommendations of the Royal Commission are implemented, then it seems to me that one has an entirely new situation and a new status and new safeguards given to private prosecutions. In those circumstances one might legislate to incorporate in a number of existing statutes, including this one and including others that have gone before, the new form of the citizen taking proceedings in the community's interests, and not leave it to the caprice of an individual to do it in the circumstances in which they can. So I am sorry to say that I am not convinced at all on what is a very grave issue indeed. What does one do in a Chamber in which there are less than a dozen people with an important matter of this kind? I wait for some help, and I am not prepared to let it go by default.

Lord Belstead

The noble Lord has asked a question as to the course he should take on a matter about which there is clearly a difference of opinion. Would he see fit to look again at the amendment before Report? I was a little surprised to see that the right to bring a prosecution would be restricted under the amendment to a police officer of or above the rank of superintendent. I am advised that the Government do not know any precedent for a provision of that kind, and although I admit that I have not consulted the police, it would surprise me if that provision were not seen as an unjustifiably rigid requirement. On those grounds the noble Lord may be prepared to look at the terms of the amendment again and not press it now. I do not think that is an unreasonable request for me to make, and he may consider it a sensible course to take.

Lord Houghton of Sowerby

The noble Lord has scored a goal. It may be that the amendment is defective in specifying an officer of the rank of superintendent or above. That was, so to speak, an off-the-cuff judgment as to who might do it. I did not want to put it in the hands of the Director of Public Prosecutions, and it seemed unsuitable to raise it to the level of chief constable. The Williams Report referred to "normal police procedures" or some such phrase, which presumably would have left it in the hands of a constable in certain circumstances if he was advised by his superior officers that it was a suitable matter for a police prosecution. So long as the right of prosecution is removed from the citizen—however worthy or however mischievous—and goes into the hands of a public authority, which is the police, I should be very willing to consider the matter along those lines. Therefore, I readily accede to the suggestion of the Minister to look at it between now and Report, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.11 p.m.

Lord Houghton of Sowerby moved Amendment No. 12:

Page 3, line 26, at end insert— (" ( ) Unless articles seized under the provisions of subsections (2) and (3) above are made the subject of charges of offences under this Act within twenty-one days of the date of seizure, they shall be returned within seven days to the premises from which they were removed.").

The noble Lord said: This is another very important matter, that of forfeiture. The provisions for seizure and forfeiture under the Protection of Children Act 1978 were very stringent indeed because the whole point of that Act was that certain material was of itself, by being in existence, to be banned, to be forfeited, not to be put in circulation and so on. It was the material's existence which was the offence, not where it went; it was bad and should be banned because it was bad stuff. That was the argument behind the stringent forfeiture provisions in the 1978 Act.

But now we are dealing with an entirely different situation. The right of forfeiture really should not exist under this measure at all. The right of seizure, yes—because the justification for giving the police conditional powers of search and entry and their authority to remove restrictive material is the need to produce evidence in any proceedings subsequently taken—but there is no justification for these goods to be kept indefinitely by the police without any charge being laid. Clearly the police could retain the evidence, provided that the period is reasonable, until they had decided to make a charge of an offence. But under the provisions of seizure and forfeiture incorporated in other Acts of Parliament the police can seize, take away and retain, and yet bring no charges week after week after week. It is left to the citizen to apply to the magistrates for an order for the return of his goods; and all of that appears in the newspapers. The magistrates could refuse to grant an order for return. They could make an order for forfeiture.

But the goods seized under this Bill will not be in that category. It is not a raid for obscenity. That would take place, if it took place at all, under a different statute altogether. What the shopkeeper has is lawful material which becomes subject to this Bill if it is displayed in such a way that the public nuisance factor arises. I ask the Committee to bear in mind that we are dealing here with the question of public nuisance, not the question of obscenity. So material in the front shop would be lawful if it was in the back shop. It is all a question of where the goods are displayed. As the Williams Report says in paragraph 9.46: it is not the material itself which offends against the law but only its mode of sale ", and display.

I believe that there can be no grounds whatever for forfeiture under the Bill. That is why I seek to provide a reasonable period after seizure for the police to decide whether they are to make a charge of an offence. I hope the Committee is fully aware of this important point. We cannot allow goods to be seized and retained indefinitely without charges being made. Still less can we agree to any forfeiture of goods that are taken, in particular if no charge is subsequently made, and so I hope that the Committee will be persuaded to adopt the amendment, which I think is a very reasonable one.

However, the period that I propose might be in need of alteration. Perhaps it should be 21 days or some other number of days; there might be a question as to whether or not the stipulated period is appropriate. But certainly I want to overcome the possibility that goods seized may be retained, and still less shall they be forfeited where no charge is being made against the person. If a charge is made against him, it may well be that the magistrates will be able to make an order for forfeiture of the materials seized and made the subject of the offence, though I am not sure about this. In those circumstances the magistrates might decide that, as part of the penalty, the goods seized should be retained; but that is a legal point with which I am not qualified to deal. However the main issue must be very clear to the Committee, and I beg to move.

The Earl of Halsbury

Before the noble Lord sits down will he explain the reference in the amendment to seven days—within seven days of what starting day? Does it mean by the 28th day, there having been no prosecution?—because if that is what it means, it does not say so.

Lord Houghton of Sowerby

What I intend it to mean is that, if no charge has been made within 21 days of seizure, the goods must be returned from whence they came within seven days of the expiry of the 21 days. So it is the 28th day, as the noble Earl said. It means that there are seven days in which to return the goods after the lawful retention for up to three weeks.

The Earl of Halsbury

I must leave for another occasion the question of whether the amendment says what it means.

Lord Monson

I think that the noble Lord, Lord Houghton of Sowerby, has made out a good case for the amendment, though I agree that the wording is rather unclear, as has been indicated by my noble friend. I believe that the amendment would help to protect the rights of innocent individuals; I say "innocent" because if they were not innocent they would of course have been prosecuted. I have pleasure in supporting the amendment.

Lord Nugent of Guildford

I think that there is some misunderstanding in the noble Lord's mind. This is not at all a question of forfeiture. It is simply the removal of some of the material sufficient for purposes of evidence; that is all. There is no question of forfeiture. The police need to retain the material for a reasonable period in order to bring the case. No doubt my noble friend will be able to tell the Committee for how long the police might need it, but I would very much doubt whether the processes of the law could be completed within 21 days. We are not here dealing with forfeiture. The noble Lord has misunderstood the purpose of the clause. That would have to be dealt with under a completely different Act. This is simply to gather the necessary evidence in order to bring the charge of indecent display if the constable thinks that such a charge lies; and, of course, if the police retained the goods for an unreasonable period there would indeed be a legal remedy for the shopkeeper to take against the police.

So, really, there is a misunderstanding here. I suspect that my noble friend will say that it would be better not to put a term of days or weeks on the period for which the police might hold this material, but if one had to be put on then, of course, it would have to be a good deal longer than this. But the major point that the noble Lord I think had not taken on board—I hope he has now— is that this is not a question of forfeiture; this is simply a matter of gathering the evidence necessary to bring a charge.

Lord Houghton of Sowerby

I am a little perplexed about this. It is true that the Bill does not provide for retention or forfeiture as the Protection of Children Act did. If I am assured that when goods are seized, and when that seizure is not followed by a charge against the person complained of, they will he returned to him after a reasonable period, I think we come nearer to agreement. The question is: How long would be a reasonable period? I have known of cases where booksellers have lost half their stock and not been able to replace it because of the exposed position they were in, with a possible charge pending against them. I will ask leave to withdraw the amendment at the moment, and see whether I can get some greater reassurance than the noble Lord is able to give me on this matter.

Lord Nugent of Guildford

If the noble Lord will allow me to interrupt him, before he withdraws his amendment we might ask my noble friend whether he will confirm with much greater authority than I have that I have given the noble Lord a correct version of the law, so that he might then be completely reassured.

Lord Belstead

My advice on this amendment is that the power of seizure afforded to the police by subsections (2) and (3) of Clause 2 applies only to an article which a constable has reasonable grounds for believing to have been used for the commission of an offence. It applies, therefore, only to an article which is believed to be indecent and to have been publicly displayed within the meaning of the Bill, and in most cases, therefore, a single item, or only an item or two, would be seized. That is not exactly, I think, the same as my noble friend Lord Nugent said, but where my noble friend and I certainly meet in giving the same advice to the noble Lord, Lord Houghton, is in saying that what this certainly does not mean is the sort of situation which I know the noble Lord, Lord Houghton, fears—where, under the Obscene Publications Act, there are seizure and forfeiture provisions, the seizure involving thousands and thousands of pounds worth of goods. Nothing of that kind could conceivably happen, I think, under this particular provision in the Bill. Therefore, I think substantially, if I may say so with respect, the advice which my noble friend Lord Nugent gave in reply to this amendment was correct.

Lord Houghton of Sowerby

It may be that the whole case therefore rests upon the efficiency and diligence of the police. If they take anything away and take a long time before bringing a charge, then presumably the goods remain in their hands while they are either considering the matter or just shilly-shallying. Then it may become a case for the citizen to try to get redress by some means to recover his property because the police are doing nothing about it except sitting on it. I am not sure that that is a very satisfactory position in which to put a citizen. There is a lot of unfavourable publicity given to this kind of thing, and many innocent people, I am quite sure, have been very badly treated under the existing legislation.

I do not want to go into details on this. There is wide variation between one police area and another on how the police look at some of the alleged offences against existing legislation. Statistics will prove that. If one goes into the matter one can see where prosecutions have occurred and where raids have taken place in one police area to a much larger extent than anywhere else in the country. One has to spare the citizen from this strange behaviour of certain police authorities which seem to think that they have a special mission to be very active in this particular field. However, I beg leave to withdraw the amendment and will take further advice on it. This is regarded as a very important matter by those in the business.

Amendment, by leave, withdrawn.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4 [Penalties]:

9.27 p.m.

Lord Houghton of Sowerby moved Amendment No. 13:

Page 4, line 6, leave out (" two years ") and insert (" twelve months").

The noble Lord said: This is the question of penalties. I know that it can be suggested that in bad cases of persistent offences one should have a rod in pickle, so to speak; but we are trying to keep people out of prison and it seems to me that 12 months' imprisonment is enough. When one looks at the comparative degrees of punishment given under our different Acts of Parliament, one realises the great variety of social judgments existing in our laws today. I do not know whether there is any special significance attaching to two years or whether there is something unsuitable about 12 months.

I should have thought that, with financial penalties, it would be possible to check abuses or that to send somebody to prison for 12 months might be a salutary warning that this could not go on. I hate to think of our prisons being occupied by a few booksellers who had put a rather glossy magazine in their window and were treated as if they had picked somebody's pocket or had run somebody down while drunken driving. This is not a matter of life and death in the community; although, if we set out to stop something, we want to achieve that purpose. I would ask noble Lords to consider whether 12 months would be enough to achieve that purpose even in relatively bad cases. I beg to move.

Lord Nugent of Guildford

These punishments have been debated and approved in another place. I would not regard myself as an authority on what is the correct gradation of punishments for an offence of this kind. I should have thought that it would have been extremely rare that there would be imprisonment ever awarded for such cases, that fines would normally be sufficient and that it would be only where there was the most persistent, flagrant and continuing breaches that more than the monetary penalty would be considered. Whether two years is more correct than one year I would think is a matter for judgment and something on which I should like to hear my noble friend before we conclude this debate; but I see that it is related to some extent to the Obscene Publications Act which has a maximum penalty of three years. I suppose that the two years' maximum was fixed in relation to that. I would think it very rare indeed that the punishment of imprisonment would be inflicted at all and certainly a punishment of two years would be extremely exceptional.

Lord Belstead

It is worth noting that the working party on vagrancy and street offences which reported in 1976 recommended that this would be an appropriate maximum penalty. I underline my noble friend's remarks. This is a maximum penalty that we are talking about. I speak as a non-lawyer, but I apprehend that the courts take the view in these cases that they should be dealt with summarily and custody would not enter into it at all. What do you do if somebody continually breaks the law in this way? I do not know whether the noble Lord, Lord Mishcon, has a view on this matter, but I would have thought it was reasonable to have in reserve the maximum penalty which incidentally the working party in 1976 recommended as being appropriate.

Lord Mishcon

I must respond to such a courteous invitation but reply to the courtesy with brevity. There would possibly be cases not only of repetition but where huge profits were shown to have been made and therefore where the maximum fine was no deterrent. It may be sensible to have in reserve a prison sentence which is a real deterrent to cover such as case which I accept with the noble Lord, Lord Nugent, and the noble Lord the Minister would be an exception. But exceptions can arise. Many of us who are very troubled by what is happening in places like Soho at the moment would feel that a very severe deterrent in some major cases—not the average ones—is necessary.

Lord Houghton of Sowerby

I suppose an argument could made out in really bad cases that we could send them down for five years. But I will not press that. I beg leave to withdraw the amendment and I shall consider the matter further.

Amendment, by leave, withdrawn.

Lord Nugent of Guildford moved Amendments Nos. 14 to 17:

Page 4, line 10, leave out (" imprisonment for a term not exceeding 60 days or ");

Page 4, line 11, leave out (" or both ");

Page 4, line 13, leave out (" imprisonment for a term not exceeding 6 months or ");

Page 4, line 15, leave out (" or both ").

The noble Lord said: These amendments seek to bring the penalty provisions relating to Scotland into line with those relating to England and Wales by deleting the option of imprisonment on summary conviction in Scotland. The fact is, as noble Lords will recollect from reading Hansard of another place, that an amendment was made on Report stage there and, through some oversight, the Scottish position was not catered for in the amendment made. Therefore, it falls to us to make the amendments now. I do not think that I need trouble the Committee with the details. I beg to move.

Lord Belstead

It was put to my noble friend Lord Nugent by the Government, that it would be highly desirable to do this in the cause of keeping the laws of Scotland and England in line on this particular matter, they having got out of line for the reason that my noble friend has explained. We approached my noble friend and he agreed to put the amendments down. They went down a little late, the day before yesterday. I am afraid that I am entirely to blame for that and not my noble friend.

The effect of the amendments is to reduce the amount of penalty in these cases in Scotland. In the light of the discussion that we had on the previous amendment, I thought it was right to point that out as well.

Lord Houghton of Sowerby

Does this mean that the Scots can do it more cheaply than the English? Is this another grievance—England against Scotland again, or are the Scots more enlightened people than we are?

Lord Nugent of Guildford

I would say that they have a colder climate, but the answer to the noble Lord is that the effect of these amendments would be to bring us to the same level.

On Question, amendments agreed to.

[Amendments Nos. 18 and 19 not moved.]

Clause 4, as amended, agreed to.

Clause 5 [Short title, repeal, extent and commencement]:

Lord Houghton of Sowerby moved Amendment No. 20:

Page 4, line 41, leave out ("three") and insert ("six").

The noble Lord said: This is the point I referred to earlier, namely, that the Bill provides for these provisions to become operative three months after the Royal Assent. This amendment asks for that period to be extended to six months after the Royal Assent, for the reasons I gave—that in a number of cases physical changes will be necessary within the selling space of shops. Work may need to be done; there will be notices to be obtained and stuck up which an earlier clause in the Bill provides for—this warning notice, of kind a "Bo Peep" notice, has to go up. A partition may have to go up and there may need to be a cubicle to give privacy for those who are asked to produce their birth certificates: anything may be needed really to implement this Act, and I am asking for six months to do it in instead of three months. The world will not come to an end, with all the delays that have taken place, the hazards of the Private Members' Bills procedure, the Government not giving a damn. Now that we have got the Bill there is no reason why, to start off with, one should begin to harry the shopkeeper to get his notice up, while builders start charging exorbitant prices for erecting partitions, and so on. I think six months is very reasonable indeed and that it might easily be made nine months or 12. However, I will settle for six. I beg to move.

Lord Mischon

The noble Lord, Lord Houghton, who has a very definite memory and imagination can, I think, envisage, if his amendment is passed—another allowing nine months or 12 months will presumably come forward at Report stage—having a different kind of notice displayed, namely, one saying "Closing down sale of indecent exhibitions: buy early: we are closing in six months' time ". That is a situation which I do not think this Committee would like to see. I would have thought that a three-months term here was a very proper and appropriate one.

Lord Nugent of Guildford

I hope the noble Lord will accept that three months does not sound very much, but the noble Lord, Lord Houghton, well knows that all booksellers, newsagents and the like have been aware of this Bill for at least the last six months and many of them have made the necessary changes already, as again no doubt the noble Lord also knows. Three months from the date when the Bill reaches the statute book, which hopefully will be by the end of next month, gives them from the beginning of the year, when they certainly knew it was coming along, nine months. I would have thought that that is really quite adequate time. Once the Bill is on the statute book we had better let it go forward and become effective as soon as may be.

However, in saying that, may I just add that the noble Lord is a little over-painting the picture with his words about the persecution of shopkeepers. He knows very well that that is not the case. This is simply a reasonable measure of protection to every family in the country, and to many men and women who are most anxious about the present displays and the effects they are having on their children. I am sure that he is as much in touch with the other place as I am—probably more—and knows what a very large number of Members of Parliament are approached by their constituents on this matter. As regards the question of persecution, the noble Lord has really got the picture the wrong way round.

Lord Houghton of Sowerby

My noble friend Lord Mishcon has a more vivid imagination than I have. I should not have thought that it would happen in that way. We are not stopping selling. They are only selling in a different part of the shop. In fact, they are selling in a part of the shop that a lot of people, who would not have bothered otherwise, will want to go to. They will want to look around behind the notice board and, if they are over 18, they will have freedom of access to look at what is there.

There is a lot of nonsense being talked about this Bill and its provisions, and what it is attempting to stop. I believe that this is almost Cloud Cuckoo-land, from the point of view of stopping what people basically want to stop. In many cases, it is not so much the public nuisance that they want to stop; it is the material that they want to get rid of, which is not in this Bill. However, I must have a full survey of how we have got on in the course of this evening's Committee stage of the Bill. I beg leave to withdraw this amendment, along with others I have withdrawn, and will take stock for the next stage of the Bill. I am very grateful for the patience of most noble Lords here this evening and I feel satisfied that we have, at least, put some parts of the Bill that needed examination under closer examination than they have had before. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Schedule agreed to.

House resumed: Bill reported with the amendments.