§ 11.22 a.m.
§ Report teceived.
§ Clause 1 [Indecent Displays]:
§ Lord Houghton of Sowerby moved Amendment No. 1:
Page 1, line 7, at end insert—
(" ( ) In this Act "indecent matter" means matter (other than the printed word) whose unrestricted display is seriously and widely offensive by reason of the manner in which it portrays or deals with or relates to sexual, faecal, urinary functions, or genital organs.").
§ The noble Lord said: My Lords, I beg to move the first amendment standing in my name. The amendment that I moved at the Committee stage was based on the recommendations of the Williams Committee. They wanted to get rid of the word "indecent" altogether and they thought it better to substitute a term with a wider meaning—the word "offensive". That appaers not to have been acceptable to the sponsors of the Bill, either in another place or in this House, so I am reconciled to the inclusion of the term "indecent". The question, however, is whether we attempt to give some statutory meaning to the term for the information of the public, traders, producers, and the courts themselves.
§ I think myself that the term "indecent" can mean different things to different people; and it is desirable, I think, to draw the line on a moving canvas. We do not know what any court will say about the word "indecent" because, quite obviously, there have as yet been no prosecutions on this basis. Indecent displays have not been unlawful up till now. There have been laws about the import of indecent material and about the use of postal services for the carriage of indecent material, and these matters have been dealt with under Acts of Parliament, but indecent material seized by the Customs and Excise or stopped by the postal authorities may be, and in many cases is, of an entirely different character. We are concerned in this Bill with display, with what people can see, but elsewhere the construction of the word "indecent" has included the content and not only what it looks like.
§ I make no apology for trying to make a better Bill of the Bill introduced by the noble Lord, Lord Nugent. I do not think your Lordships' House should be indifferent to the quality of legislation merely because 1244 it has something to do with bad people and bad things. Most law has to do with the protection of rights and with the administration of justice impartially as between one citizen and another, and I do not dismiss those who are in the business of so-called indecent displays as the enemies of society or as corrupting the minds of the young, or anything of that kind. We may object to them, we may thoroughly dislike them, but they are entitled to be treated as fairly as they can be under the law we make.
§ That is why the substance of this amendment has been under debate for the last eight years. It really began when the Society of Conservative Lawyers sought to find an answer to the question, not only of indecency but of obscenity, which had been bothering people for some time before they produced their report in 1972. The chairman of the Society of Conservative Lawyers' committee on this subject was Sir Michael Havers, who is the present Attorney-General; and other members of the committee were Mr. Rees-Davies, a Member of another place, and Mr. Temple-Morris, also now a Member of another place. They proposed a new offence, and so far as I can tell this is where the idea of a new offence originated. That new offence is the one upon which this Bill is based.
§ It was to deal with the public nuisance of indecent displays, and their recommendation was that any material displayed in a public place shall be indecent if it is grossly offensive to the public at large. That was the attempt of that committee, under the conspicuous auspices of its chairman and members, to find the answer to this question; and it was along similar lines that the Williams Committee ultimately developed their own recommendations. But in between was the introduction by the Government of the day, through the noble Lord, Lord Carr, who was then Home Secretary, of a Government Bill on this subject, among other things—the Cinematograph and Indecent Displays Bill of 1973.
However, in 1973 the Government did not accept the recommended formula of the Society of Conservative Lawyers. Indeed, the Home Secretary of the time was reported in the Daily Telegraph of 5th October 1973 as giving his explanation of why no attempt was made to define or draw the boundaries of the term "indecent" or "indecency" in the Government Bill. He said—and I am quoting:
On the whole, we have found in this country that the courts do not find it at all difficult to decide as a matter of common sense and current standards of taste what is indecent and what is not indecent. The courts, whether magistrates' courts or courts with judge and jury, are better determiners of current standards than any precise words I can possibly think of to write into an Act''.
That seems to be the philosophy that has prevailed in the introduction of legislation since, with the exception of the Bill introduced by Mr. Rees-Davies as a Private Member's Bill in the last Parliament, who followed his own recommendation as a member of the Society of Conservative Lawyers.
§ In any case, the Government Bill of 1973 fell. The Labour Government decided not to take it up, the Labour Home Secretary Mr. Roy Jenkins said that the word "indecent" had lost its useful meaning for this purpose and his view was confirmed by the Williams Committee. Nothing was done by the 1245 Labour Government. They appointed the Williams Committee and it reported in October 1979. The present Government have had the benefit of the Williams Committee report since October 1979. There has been no debate on that report in another place; the Government have done nothing to introduce further legislation. The noble Lord, Lord Belstead, has shied away from the suggestion made by the noble Lord, Lord Nugent, and by myself that it is about time the Government tackled this more comprehensively in Government legislation; he has not responded to that suggestion at all. The Government seem to have left it to the hazards and frustrations of the Private Member's Bill procedure.
§ We now have the same problem before us, and I think that we must consider what we do about the word "indecent". Do we leave it alone, to the construction of the courts and to the judgment of the public or of those concerned with it, including the police and the traders; or do we try to give some fuller, statutory meaning for the purposes of the law? Except for once, we have not introduced into our law-making the word "indecent" for 21 years. Never since the Obscene Publications Act 1959 have we introduced the word "indecent" into any legislation except at the time of the introduction of the Protection of Children Bill which was passed into law in 1978. When that was done I thought that on all sides we would agree that the need to legislate for that particular purpose at that particular time was so urgent that we could not wait for the Williams Committee to complete their report before taking action upon it.
§ The Protection of Children Bill 1978 was a makeshift, stopgap measure. All the attempts that were made to define the word "indecent" for the purpose of that Bill were rejected on the grounds that it would do to be getting along with and that the more comprehensive review of the situation would not be long delayed after the report of the Williams Committee. But, alas! nothing has been done. There is no promise of Government action, no expectation of it, I should imagine; and I think the House today has to decide, probably conclusively and for a long time to come, whether the word "indecent" shall be given some statutory meaning. I know that it can be argued that we do not need telling what indecency is; we know what it is. It is like some other things: we know it when we see it.
§ But that is never a satisfactory basis for legislation unless we are satisfied that the absence of a definition would be more useful and more convenient than the existence of one. But it is not what Ministers say; it is not what members of the public say, or even what Members of Parliament say as to what a term means in legislation; it is for the courts to decide. If the Acts do not give any meaning to words, the courts themselves put meaning into words used in statute law. That is why we have such an array of case law. We have had some judgments in the past, not in this context, although relating to indecent material under Post Office restrictions and also the right of seizure by Customs and Excise. Some judges—and I quoted them at the time of the Committee stage—have said that the word "indecent" goes very wide. Others have said that it is what the average man thinks is 1246 indecent. We all know that there is no such thing as the average man. There is, however, a consensus of opinion, if it is obtainable that can be used for the purpose of the construction of words in a court of law.
§ This amendment is an attempt to define the boundaries of those matters which we find indecent for the purposes of this Bill. If we want the meaning of "indecent" to go beyond what many people think it means, then we must use a different word. That is why the Williams Committee suggested using the word "offensive". The version of my amendment on the Marshalled List, I should explain, is derived from two sources. First, I have taken some words from the formula of the Williams Committee which were defining the wider offence of offensiveness and narrowed it down to relate to what I believe is intended by the word "indecent".
I have also drawn from The Times newspaper, a most reputable source (as your Lordships know) of wisdom and guidance in these difficult matters. I came across a leading article in The Times of 3rd November 1973. That article was about the Government's own Bill at that time. It dealt with displays which were then in Part II of the Government's proposals. I quote:
… it is not clear that indecency will be any easier to recognise".—
having referred to the difficulty of recognising obscenity—
On balance it was probably wise not to attempt to provide a definition in the Bill and to leave it to magistrates and juries to use their common sense; although the Bill should be amended to make it clear that the indecency must be of a kind that is seriously and widely offensive …".
That is why I have included in my amendment the term suggested by The Times newspaper—which was not adopted in the course of the discussion on the Bill of 1973, and, as the Bill fell, it was never tested finally in Parliament. The words "seriously and widely offensive" could be combined with a somewhat clearer definition of what, for our purpose here, is indecency—and we are dealing with display and not with the written word or with the human body.
§ I think that it should meet the common sense of the matter and should give more precision to what we mean by the term. This definition should meet the wishes of the sponsor of the Bill in another place, because when he was asked whether he had in mind violence as being covered by the word "indecent" in his Bill, he said that the sort of display that this Bill is about does not include violence; so he evidently distinguished indecency which might be regarded as flowing from offensive portrayal of violence and that (although he objected to it as we all do) was not within the scope of this aim under this Bill. It is "indecency" in its narrower sense that the sponsors of the Bill had in mind. To me, that seems to be fully set out in the amendment itself. I am not going to dwell on the variety of public attitudes to what the public see. We all have our different responses according to our upbringing, our outlook on life, our sense of what is becoming, our sense of taste, whether we are puritans or whether we are liberals. We all have a different approach to what we see. I believe that is why it is desirable to say in the statute that when one is looking 1247 at something that offends, it should be fitted within this broad definition of what is unlawful in order to provide a case for legal proceedings.
§ There are some extraordinary differences in the public's attitude. How on earth can we justify putting on television, for example, a picture of the foulest murders, even for children to see, and yet be affronted by an act of love on the screen which in marriage is called a sacrament, but outside marriage is called a sin, but which never seems to be called indecent by those who look at the matter broadly? Yet, many people regard it as grossly indecent to portray an explicit act of love anywhere. As I have said, these matters are for individuals to decide, but I believe that your Lordships' House should now decide what are the actual offences to which the sanctions apply.
The working paper of the Law Commissioners, No. 50, states in Paragraph 9:
Legal rules imposing serious criminal sanctions should be stated with the maximum clarity which the imperfect medium of language can attain.
I hope your Lordships' House will continue to believe that common sense is not so plentiful on the Bench, in the courts, among the public, and among traders and retailers, that there is no reason to tell people what is indecent. I therefore move this amendment with some confidence, because this is perhaps the last genuine attempt to improve the Bill in this respect and to end the controversy over an issue which has been under debate for the past decade.
§ Baroness Gaitskell
My Lords, for once I disagree with my noble friend Lord Houghton of Sowerby about this amendment. Perhaps I am wrong, but I regard this Bill as a good Bill but a limited Bill. It was not intended that this Bill should cover the whole area of pornography; it was meant to help children by stopping displays that children might see. It seems to me that this amendment is making very heavy weather of this Bill, at a serious time in our country. The amendment would not work. I should like to ask the noble Lord the Minister, am I not right in thinking that while this is a good Bill, it is the Government's intention that it should be a limited Bill, with limited objectives, and not a wide-spreading Bill at all?
§ 11.44 a.m.
§ Lord Nugent of Guildford
My Lords, as I am responsible for this Bill, perhaps I should say a few words in reply to the question that the noble Baroness, Lady Gaitskell, has so aptly asked. The noble Baroness is perfectly right: this Bill is of very limited scope; it deals simply with indecent display and nothing more. The greater part of the interesting and perceptive speech made by the noble Lord, Lord Houghton of Sowerby, was directed towards a different definition of the offence of obscenity. As those of your Lordships who have read the Williams Report will know, that particular aspect is the one which the Williams Committee was dealing with in the definition which it suggested. In this context, which is a much more limited context, the general thought up until now—certainly in the House of Commons—has been 1248 that "indecent" was the best description, and one well understood.
In fact, the noble Lord, Lord Houghton of Sowerby, was incorrect when he said that this would be a new departure, because this is already the law. True, it is the law based on very ancient laws of the past century, which are couched in archaic language and are somewhat confusing. The effect of the Bill now before your Lordships is not so much to make new laws as to consolidate and modernise old laws. The word "indecent" has been well understood by the courts for many years. I should like to refer to a leading case, also mentioned at Committee stage, which was that of R. v. Knuller in 1972, from which I quote Lord Reid: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 shocking, disgusting or revolting".That understanding, apparently, is the correct one in the courts, but of course I agree with the noble Lord when he says that it is a matter of taste and of judgment what definition one puts on the offence.
If one were talking about a case of obscenity, I would entirely agree with the noble Lord that something much more precise was needed. We have all seen the failure of the 1959 Act. We know that a new definition is needed and that the law has really collapsed. Just the word "indecent" certainly would not be sufficient. Perhaps I may give the noble Lord opposite this crumb of comfort about the Government's intentions, about which I know no more than he: it is that the House of Commons is in fact debating the Williams Report today, so perhaps we shall hear something that will indicate that progress is being made. At any rate, it indicates that my right honourable friend the Home Secretary is seriously concerned about this matter. I know him to be seriously concerned, but he needs some kind of consensus behind him before he tackles what everybody knows to be an extremely controversial and difficult subject.
I am with the noble Lord, Lord Houghton of Sowerby, in wanting to see a clearer, stronger and better definition of obscenity and a review of the law in that connection to cover the major offence; but in the contest of this Bill we are dealing with the very narrow offence of "indecent displays", particularly in regard to sex shops and, to some extent, to newsagents, which is a very narrow context indeed. I should also like to make the point that if we change the definition today in the way that the noble Lord has suggested, and given the very limited scope there is for a Private Member's Bill, it is almost certain that there simply would not be time to debate something which has already been very fully debated and upon which agreement was reached in the end. If the whole debate were opened up again, it is almost certain that the Bill would be lost. I personally feel that that would be a serious loss, because we have the advantage of knowing that a great many of the sex shops which have been creating the major offence are in fact conforming with the new law already. They are already taking their displays out of their shop windows, putting them in a back room, and putting up a warning notice.
We are making progress—it may be a narrow form of progress, but it is progress and it is putting indecent 1249 display out of sight of parents and of young children walking down the street, where the children's curiosity is aroused by seeing these unpleasant displays—something which undoubtedly disturbs very many people up and down the country, Having given this very interesting topic a further airing, before a fuller House than that at Committee stage, I hope that the noble Lord, Lord Houghton of Sowerby, will feel that it would be better now to withdraw his amendment and to reserve his fire until we have a chance in the future, with Government legislation on the major issue, to deal with the matter again. I believe that 75 per cent. of what the noble Lord said would be entirely appropriate in that respect, because there must be a clearer, stronger, and more comprehensive definition then. In that spirit, I hope that the noble Lord will feel that the right thing to do now is to withdraw his amendment.
§ Lord Robbins
My Lords, I shall not detain your Lordships' House for more than a moment. I confess to very great sympathy with the object of Lord Houghton's amendment. But I suggest to him that the wording is liable to run into very great danger, especially in regard to the reference to genital organs. My recollection of the history of the arts is that all sorts of people through the centuries have made fools of themselves by painting out depictions of genital organs. Indeed, if I am not mistaken, at one stage a painting by Michelangelo was thus defaced.
§ Lord Monson
My Lords, I think that it is time that somebody gave some more unqualified support to this amendment. I think that my noble friend Lord Robbins is wrong in his reference to genital organs. Lord Houghton's amendment talks about the manner in which it depicts and not just simply the display. When we are creating yet another new criminal offence—because hardly a day seems to go by when we are not doing so—we must be extremely careful to be precise in order to avoid injustice. The noble Lord, Lord Nugent, said that everybody is more or less agreed on what is indecent. I submit that indecency means a thousand different things to a thousand different people.
At the risk of possibly offending some of your Lordships, let me give an example. Let me take a case of that well known "soft porn" cliché to be seen practically every day in television commercials which shows a girl in a bikini or otherwise scantily clad eating a banana or possibly a cylindrically shaped bar of chocolate with a look of rapturous ecstasy on her face. A child—whom this Bill is presumably designed first and foremost to protect—is not going to be offended because a child will not understand the implications. For the same reasons, elderly people, brought up in a pre-Freudian era, will not be offended. However, many people between the ages of 16 and 60 may be offended to some degree and it is certain that some of them will find it positively indecent.
If this Bill goes through as it stands and they are allowed to bring private prosecutions, they will do so and some poor shopkeeper will have to bear the consequences, while at the same time scenes such as I have described can be viewed every day on the films and television. For that reason, I think Lord Houghton's amendment deserves support.
§ Lord Sainsbury
My Lords, I hope that this amendment to my honourable kinsman's Bill is rejected. This is another attempt to attach a definition to the word "indecent". I think that there are many advantages in keeping the simple word "indecent" in preference to any other word or phrase. This has been discussed, as your Lordships know, at great length in the other place. It has been discussed at great length here at Second Reading and Committee stage.
I think that "indecent" is a word that is part of our everyday language and therefore its meaning is easily understood. It is defined as offending against recognised standards of decency. Also—as has already been mentioned—the word has been used in legal statutes for over 100 years. As the noble Lord, Lord Nugent, has just said, the Bill is an attempt to simplify the laws of indecent display. To introduce new words and phrases untried in the courts and without precedent would be a complication and not a simplification. The more one tries to define the term in this most controversial of areas, the greater difficulty the courts will have in applying it, leading to lengthy litigation and the frustration of the purpose of the Bill.
Concern over the use of the word "indecent" sterns from the rejection by the Williams Committee of the term; but it cannot be said too often that the Williams Committee was considering a much wider subject. Their brief was to review the laws concerning obscenity, indecency and violence in publications, entertainment and films as well as displays. I regret the confusion that arises from bringing the Williams Report in all the time. I hope your Lordships will reject this amendment.
§ Lord Mishcon
My Lords, I promise the noble Lord the Minister that I shall not prevent for long the speech which I know the House will want to hear him make. At all stages I have tried to make it clear that, this being a Private Member's Bill, if I venture to address your Lordships, it is upon the basis that it does not bind any of my noble friends sitting behind me. I feel that the House in the main wishes this Bill well. It hopes that the evil that it is trying to deal with—and it is a small and limited evil—will be dealt with as soon as possible, without the complication of definitions which may cause lawyers greater difficulty than the simple word which has stood the test of time in our courts ever since it has been discussed after the Vagrancy Act 1824.
There is only one other observation that I wish to make. There is no need at all, in my judgment, for floods of mercy to pour out regarding the difficulty that some sex shops or other such vendors may be in in deciding whether or not they are creating an indecent display. I have said before regarding this Bill that if they are in doubt then they can err the wrong way. Personally—as I have said before—I am not prepared to weep because they have erred the wrong way.
It is in that spirit that we ought to look at this amendment. We ought to get on with passing a Bill which most of us would like to see on the statute book as soon as possible.
§ 11.59 p.m.
§ Lord Belstead
My Lords, I shall detain your Lordships for only one moment for this reason: the noble Baroness, Lady Gaitskell, opened up the point that the formula used in the Williams Report was really dealing with a much wider ambit than the much narrower scope of this Bill. That point was taken up with great effect by my noble friend Lord Nugent and has been referred to other by noble Lords, including the noble Lord, Lord Sainsbury. I shall not therefore go over that ground because it would be tedious.
The reason I wanted to intervene was that the noble Lord, Lord Monson, said let us be accurate. As I understood the noble Lord, he felt this amendment would lead to accuracy. I wonder whether that really is so. I would suggest that in one very important respect the amendment which the noble Lord, Lord Houghton, is asking us to consider now differs from the amendment which the noble Lord tabled at Committee stage in that it would be necessary under this amendment for the prosecution to prove that the matter was "seriously and widely offensive". That would place a significantly greater burden on the prosecution than either the Williams formula of "offensive to reasonable people" or the noble Lord's formula which he put earlier of "offensive to the public at large and to the general public". I do not know whether it is the intention of the noble Lord, Lord Houghton, to want to make the test even harder, but certainly it does so and I have not heard any arguments put forward as to why it does.
There is one other point I should like to mention. For some reason, which again has been unexplained, the amendment does not deal with the printed word. I think the noble Lord, Lord Houghton, judging by the remarks he made at Second Reading, may have assumed that the Bill only applies to pictorial material. That is not the case; this is a Bill which also deals with the display of things which would be indecent which are printed. If that really were the intention of the noble Lord, we ought to be made aware of it and to be sure that that is exactly what the noble Lord means. So, on grounds of detail as well as on grounds of principle, I hope the noble Lord will feel it would be right to reconsider the amendment.
§ Lord Houghton of Sowerby
My Lords, I shall not take more than a couple of minutes now on this amendment. It may be that we are in search of a solution to the insoluble, but that suggests that this is probably a bad Bill anyway. If one cannot legislate in terms which are meaningful in the construction of the Statute Law for the purposes of public consumption and the administration of the courts, then we are probably on bad legislation and we ought not be be passing a Bill of this kind at all. But that is not the point before the House this morning.
The Bill has reached this stage. I do not think that what happened in another place is necessarily conclusive from our point of view. We are a revising Chamber and are entitled to look closely at what the other place may do, especially on matters as difficult and complex as this. I can only leave it to the judgment of the House—which, after all, is the function of your Lordships' House. I would be content if that judgment were expressed by the noble Lord on the 1252 Woolsack collecting the voices on this amendment. But I think that, having proceeded so far, the noble Lords present this morning—and they are more numerous today than Members were when we last considered this Bill—would be able to express a judgment which would be regarded as the voice of the House of Lords in this matter.
§ On Question, amendment negatived.
§ Clause 2 [Powers of arrest, seizure and entry]:
§ 12.4 p.m.
§ Lord Houghton of Sowerby moved Amendment No. 2:
Page 3, line 25, at end insert—
("(4) A list and form of receipt of goods seized under this section shall be given by the police to the occupier of the premises from which the goods were removed not later than five clear days after the date of removal.").
§ The noble Lord said: This, my Lords, is a much simpler amendment which refers to a matter which has been the subject of grievances expressed by many people whose premises have been raided by the police under the Obscene Publications Act 1959. This Bill provides in certain circumstances for seizure and for compulsory entry and seizure. I think those who have their goods taken away under the right of seizure given to the police are entitled to a receipt for the material which has been removed.
In the case of raids under the Obscene Publications Act 1959, the volume of goods removed can often be very considerable indeed. If something is obscene there may be hundreds or possibly thousands of copies of that publication on certain premises. The whole lot may be seized, and in some cases the police have almost cleared out the shop to make sure they have all the incriminating evidence needed against the trader. But here we are dealing with a much narrower circumstance. An indecent display is usually not a voluminous display involving thousands of pieces of material and publications. It would be within bounds to expect the police to account for it within a matter of days after removal. I therefore propose in the amendment that—
A list and form of receipt of goods seized under this section shall be given by the police to the occupier of the premises from which the goods were removed not later than five clear days after the date of removal".
I think that the man whose goods are taken is entitled to know what was taken away and to have a list of it, so that he may know the loss he has suffered and exactly what material has been removed from his premises and which may be used in evidence against him. I beg to move.
§ Lord Nugent of Guildford
I think I can, my Lords, give the noble Lord some comfort in this matter. First, as I think he knows, the seizure in this instance is not the wholesale seizure he has spoken of under the 1959 Act, which would be a seizure under a court order where the material is to be confiscated. "Seizure" in this case is to take a sample sufficient as evidence to bring a prosecution. Therefore, the amount taken is tiny and will not endanger in any way the shopkeeper's business.
In addition to that, I am told that the practice of 1253 the police varies a bit from one place to another, but certainly the Metropolitan Police do just what the noble Lord is asking for. They do require station officers to issue receipts as quickly as possible on the request of the owner and, of course, after a court case the owner would get the material back again. I think there is some objection to putting a minor provision of this kind into legislative form, especially, as I say, when it is the normal practice of the police to give just such a receipt.
In addition, I am told that if the shopkeeper concerned has not received a receipt and did not receive his goods back again, he has an action against the police for the recovery of his property under the 1897 Act, and of course if his case was made out he would get a judgment from the court in his favour. So I hope that the noble Lord will feel that in practice his point is substantially covered and therefore it will not be necessary for him to press the amendment now.
§ Lord Sainsbury
My Lords, I should like to support the noble Lord, Lord Nugent. I am told there is no precedent for introducing such a clause. In other legislation of this nature the requirement is not made. I am also informed that the Law Commission has this procedure on receipt under review, and therefore surely it would be better to wait for the outcome of their deliberations if changes are thought necessary. Would it not be more effective to pass separate legislation rather than tinker with it in this Bill? I hope that the amendment will not be pressed.
§ Lord Houghton of Sowerby
My Lords, this is not a substantial matter, though it is important. I do not wish to trespass on the time of the House any longer than is necessary, because there is an important amendment to follow. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 12.10 p.m.
Lord Houghton of Sowerby had given notice of his intention to move Amendment No. 3:
After Clause 2, insert the following new clause:
§ "Protection from vexatious prosecutions
§ (". Proceedings for an offence under this Act shall not be instituted except with the consent of a justice of the peace.").
§ The noble Lord said: My Lords, I told my noble friend Lord Jenkins of Putney that I would move his amendment in his absence. I seem to have allies on this Bill who disappear on the appointed day. In the Committee stage, I stood in for two other noble Lords on both sides of the House. I now stand in for my noble friend Lord Jenkins. I am, however, in some difficulty about this amendment in that it is in the wrong order, from the point of view of my own strategy on protection from vexatious prosecutions. It would be inconvenient to debate this amendment and have a decision on it, and then go on to the amendment that follows. So with the utmost affection for my noble friend Lord Jenkins, now I see the place of his amendment on the Marshalled List, I am bound to give first preference to my own amendment which follows. In the circumstances, may I move and, at the same time, beg leave to withdraw the amendment?1254
§ The Deputy Speaker (Lord Derwent)
My Lords, I think it would probably be more in order if the amendment was not moved.
§ [Amendment No. 3 not moved.]
Lord Houghton of Sowerby moved Amendment No. 4:
After Clause 2, insert the following new clause:
"Protection against vexatious prosecution
(". Proceedings for an offence under this Act shall not be instituted except by a constable, a local authority, or the Director of Public Prosecutions.").
§ The noble Lord said: My Lords, we now come to the question of the right to prosecute. This carries further the amendment that I put down in Committee. I then proposed that a prosecution should be instituted only by a constable of the rank of superintendendent or above. The noble Lord, Lord Belstead, in an intervention in the debate on the matter, suggested at col. 300 of the Official Report for the Committee stage on 10th June, that this was an unusual condition to put into the law on proceedings; that he was unaware that constables below the rank of superintendent had been barred from undertaking prosecutions in any other connection and that, therefore, it was probably an unsuitable proviso to make in this Bill. I took that straight away. He asked that I should consider the matter further, which I have now done. So I propose to put the right to prosecute in the hands of the police, to follow their normal procedure, but I have added the local authority and, as a longstop, the Director of Public Prosecutions.
§ I am not expecting for a single moment that the Director of Public Prosecutions would have to intervene, except in the most unusual circumstances, but I have put him there in case he may be needed. It may be that I need not put him there to be needed, and that he is probably there all the time. I am afraid that I am not sufficiently familiar with the structure of judicial proceedings to know. Nevertheless, he is there in my amendment.
§ The circumstances in which he might come into play would be if, for some extraordinary reason, there was default or neglect on the part of the police to prosecute in a case which was a clear one for proceedings, and the DPP might undertake the prosecution himself. There, again, I do not know whether that is a feasible hypothesis. But if there is any difficulty about having the DPP in, there will be no difficulty in taking him out.
§ The other addition that I make is the local authority. I am advised that the local authority come into the scheme of proceedings in a number of connections. The local authority, being responsive to local opinion and open to representations from citizens, might respond to pressures of that kind rather more freely than the police. The police might feel that they have a national duty, a national obligation, not to bow too readily to the Methodist conscience, or any other conscience, somewhere, but to look at the matter more broadly from the point of view of the national duty of the police. In those circumstances, a local authority could under my amendment themselves undertake proceedings. The important point about this amendment is the deprivation of the right of private proceedings by the ordinary citizen. In another place—1255
§ Lord Hale
My Lords, my noble friend was rather less clear in the last few minutes than he normally is. Am I to understand that the local council of Sodom and Gomorrah, or of Sodom or Gomorrah, are to be entrusted with the investigation of their type of offence, while what my noble friend, with rather less than his usual discretion, was referring to as the Methodist conscience might be found in some of the hills of Wales? Does it not rather mitigate against the proposition of even justice? Unless he has himself dismissed the Director of Public Prosecutions, could he tell your Lordships—because some of us do not know much about the Director of Public Prosecutions—how many cases of various kinds go through his hands at the moment, how many he sees himself and how many are dealt with by staff, who may or may not be able, and may or may not have special qualities, but certainly do not have those which were specifically required when the institution of Director of Public Prosecutions was established by this House?
§ Lord Houghton of Sowerby
My Lords, that was a long intervention. I thought that my noble friend had taken over the rest of my speech. I am not familiar with the district council of Sodom and Gomorrah, so I really cannot say what they would do, if they were entrusted with the authority which this amendment gives them. As for the Methodist conscience, I had one myself for a very long time and felt able to refer to it without offence to others. But I would certainly withdraw that reference, if it caused my noble friend or anyone else any deep feelings of distress.
I thought I was being clear enough in giving a local authority power to institute proceedings on behalf of the citizen. After all, if the citizen is to be given the right of taking proceedings, an elected local authority could well stand in for the citizen or for a number of citizens in embarking upon a prosecution under this amendment, if they felt it was justified and the police were, for some reason or another, not ready to take it up. That is really what I am driving at here. I am anxious not to deprive the layman entirely of the right to take proceedings. But I thought it was better to transfer the right of the individual citizen to an elected local authority. That seemed to be the repository of local democracy, and it would express a more collective view than might be put forward by one single individual or small groups of individuals. That is pretty clear. It seems to me to be a rational development of my argument that it is better not to have a private citizen taking proceedings in a difficult and delicate matter of this kind. At the same time, however, we must protect the interests of the citizen to have proceedings taken on his behalf. That is why to give this right to the police and to nobody else, apart from the ultimate right of the Director of Private Prosecutions, might be felt to be unsatisfactory.
We have to be careful about the activities of pressure groups. Here I must tread warily, I have no doubt. But there are pressure groups around which have assumed responsibility for public morality, for public taste and so forth. They have, under present circumstances (and would have under this Bill) the right of personal prosecution: not under the Protection of Children Act 1978 (they are all ruled out from that) 1256 but under the Obscene Publications Act 1959, where the right of individual prosecution still remains and has been exercised in a few notorious cases. We have seen how laws which we thought had long ago gone into limbo have been revived by ingenious organisations on behalf of citizens, and proceedings have been taken upon them. When I was in another place I remember the activities of the Lord's Day Observance Society who were the praetorian guard over the observance of what was called "the English Sabbath". Many people who wished to embark on activities on Sundays found themselves being proceeded against by persons sponsored by the Lord's Day Observance Society.
One has to be careful about harassment, threats of prosecution, blackmail, almost intimidation. Some horrible things can happen when people get worked up over things of this kind. I am seeking in particular to protect the retailer from having people come into his shop, complain bitterly at what they see, create a fuss and a row, threaten proceedings, walk out again and probably go off to the police. As my subsequent amendment suggests, some people make threats and do not carry them out, which may be even worse than if they carry on with the threat of proceedings. I think that the arguments of the Williams Committee, which everybody can read on pages 128 and 129, against retaining the right of private prosecution are very persuasive indeed. In this field we ought to continue some protection against those who might be accused. We did it under under the Protection of Children Bill in 1978. I think there are strong grounds for questioning whether this right ought to be retained under the Obscene Publications Act 1959.
I hope that the House will give serious attention to this matter. We want indecent displays to be banned, but we do not want to set people upon those who probably believe that they are not transgressing and expose them to unreasonable action and offensiveness by citizens at large. We must not cloud our judgment by a feeling about those who are making fortunes in Soho out of the sex shops. This is a different problem. These are traders throughout the country who are in the hands of producers, wholesalers and publishers.
We find as time goes on that people are taking a bolder line not only with the written word but with the portrayal of things on television. The word "bloody" used first a year or two ago on television, was a shock, but it is now commonplace; you hear it every day on television. Even more offensive words are now coming into common currency. I think I have heard one word perhaps only once on television but I have certainly seen it in print a number of times. Who is to know what will be the next move forward by editors, producers and wholesalers in whose hands the trader largely carries out his business? He cannot be sure what stage the level of public taste has reached in his particular locality and he must tread warily. But at least he has to try to carry on his business. We see many things. The covers on the most classical of works are suggestive these days. You look at a cover and may hope or expect to find something interesting inside, but you find it is the same old thing that you read when you were at school. These are the problems. We must be realistic and take notice of them.
Therefore, if I may say so with the greatest respect, 1257 to let the individual citizen loose to function and operate under this Bill can be accompanied by the infliction of some very unpleasant experiences and injustices upon traders and retailers. Therefore, in a Bill of this kind, at this date, I hope the House will not think that we should, as it were, reintroduce the right of private prosecution. We struck it out of the 1978 Bill on obscenity and indecency relating to children. When it was put there in 1959, which was a long time ago, it was in a much more comprehensive measure than this narrower Bill. In the circumstances, I think it would be retrogressive if we were to restore the right of private prosecution by including a new offence in this Bill when we are satisfied that the law can be enforced and that adequate steps can be taken to protect the public from this nuisance without the aid of the private citizen. We have got it in the police. Under my amendment we would have it in the local authority, too. But if the House were of the opinion that it should be left with the police, I would settle for that.
It must remain for my noble friend's own judgment as to what he may wish to do with his amendment which we have just passed over, if the need should arise later on. However, if my amendment is carried, or if any hope is held out that this matter can be dealt with by means of a more satisfactory amendment at the later stage of the Bill, then I should feel that it was unnecessary to proceed with at least the next amendment on the Marshalled List. I beg to move.
§ 12.29 p.m.
§ Lord Nugent of Guildford
My Lords, as the noble Lord will remember, we had a very long and interesting debate on this point during the Committee stage. Once again the noble Lord has put the arguments forward very cogently. The first point which I ought to make to the House is that the right of private prosecution is a common law right which belongs to every citizen of this country now, and always has. Nothing is being put into the Bill. What the noble Lord is proposing is that that common law right should be removed. Therefore, the onus is absolutely on his shoulders— and broad they are—to show why it should be removed.
The noble Lord referred us to the Williams Committee as being his authority for removing this right, but that committee was discussing the offence of obscenity, which is a very different offence from that which we are discussing now—this narrower offence of indecent display. Obscenity, because it goes so wide and covers so many things, has in it a big element of censorship. It is because of that element, according to my understanding, that the Williams Committee felt that these safeguards should be put in and that prosecution should not be brought without reference either to the Attorney General or to the Director of Public Prosecutions.
But in this particular case we have this very limited offence of indecent display, and I really do not think that the noble Lord has made out a case for this right to be taken away from the private citizen—a right that he now has. The danger on which the noble Lord focused our eyes, of newsagents being persecuted by pressure groups, is not a reality. It is not the scene that we are discussing today; it is not the scene that we all know exists in the country. These things are always 1258 a matter of balance and we have to use our judgment. Of course I do not want to see small newsagents being persecuted and pursued by anybody. The fact is that under the law as it now exists action could be taken. The private citizen may not be very familiar with 19th century vagrancy Acts on which he could proceed, but he has the right, and the fact is that these prosecutions are rarely brought. They are onerous for the private citizen to bring; they are costly and probably pretty unpleasant, so people do not readily take them; but it is a safeguard if the police do not act.
I acknowledge that the noble Lord accepts that something is needed here, and his gesture of including the local authority in his amendment shows that he is aware that something is needed, but of course the local authority is often the police authority. There are some areas in the country where a local authority will say, "We will leave that area; let them do what they like there"—and they jolly well do, and the sex shops proliferate. There are cases—not often, because our police forces are very good, but there are cases—where the police are suborned by pornographers. There is huge money in this business, as noble Lords may well know. Pornography goes right up to the margins of crime—indeed it goes into crime. So we are in a field where action does not always take place, and if the private citizen has the right (which he now has) to take action if he feels that the police are not taking action, I should have thought that that was a reasonable safeguard to preserve the balance in this matter.
The noble Lord will remember that we had an interesting short debate when he boldly took up the amendment tabled by his noble friend Lord Donaldson (who again was not present), which was a proposal that instead of the offence being one of indecency it should be of public nuisance where an offensive display existed in a shop. It is quite an interesting thought that these sex shops which display themselves at the side of the street are creating a public nuisance; they are polluting the place. It is that thought that I have in my mind, that the private citizen, going along the street with his children who are upset by a display, is dealing with what is in fact a public nuisance. He is allowed to go and complain about that and to "have a go" at the local authority, and they take action. It is necessary in this particular field that the private citizen should retain his status. We are not giving him a status; he already has one. He should retain that status and be allowed to take action where he feels that the authorities are not willing to do so for reasons of their own or are not courageous enough to do so.
I say again, the private citizen will not do this often, because it is a jolly unpleasant job to take on a prosecution of this kind. Therefore, I would urge your Lordships not to take this right away from the private citizen. It is his right now and there really is not a case here. We are not dealing with an element of censorship. The kind of Acts where Parliament has taken this right away from the private citizen are Acts where there has been some element of censorship or major importance which was at stake and therefore that safeguard was needed. In this case nothing of the kind is at stake; we are dealing with a simple matter of display. Therefore I very much hope that although the noble Lord has heard these arguments from me before without being persuaded, on this occasion he 1259 may be persuaded and may feel that he should withdraw his amendment.
§ 12.35 p.m.
§ Lord Monson
My Lords, I should like to support this amendment. I do not share the optimism of the noble Lord, Lord Nugent, that if this amendment is not carried there will be no vexatious prosecutions. Indeed, I believe that if it is not agreed to the small shopkeeper will be at the mercy of every latter-day Savonarola in the country. I believe he will be intimidated in the same way that small businessmen and businesswomen are intimidated by—
§ Lord Nugent of Guildford
My Lords, may I interrupt the noble Lord, merely to remind him that Savonarola was burnt in the end.
§ Lord Monson
Well, my Lords, we shall see what happens in this case. I believe they will be intimidated in the same way that so many small businessmen and women are intimidated by the unfair dismissal proceedings. I know of several cases where small businesses have paid substantial sums of money to dishonest, lazy or grossly incompetent employees in order to get rid of them, because they could not spare the time to go to court and did not want the publicity, even though they were in the right.
The noble Lord, Lord Nugent, has spoken about the right of citizens to prosecute and particularly in cases of pollution and public nuisance, but I am sure that he was not correct in saying that the citizen has an unqualified right to prosecute. For instance, if the owner of a large dog allows it to foul the pavement outside my house I believe I have no right to prosecute. Indeed, it is not even an arrestable offence. I know this because I once asked a police constable to arrest a dog owner who allowed his dog to foul the pavement outside an old people's home where many partially sighted and disabled people passed by, and he replied that he had no power to do so. I considered the offence in question to be positively an indecent one, and there was no right for the citizen to prosecute there or for the police constable to arrest the owner of the dog. So I do not think the right is unqualified and I consider this amendment has a great deal of merit.
§ Lord Robertson of Oakridge
My Lords, I should like to oppose this amendment. I am grateful to the noble Lord, Lord Nugent of Guildford, for drawing attention to the right of the citizen to invoke the criminal law as an important constitutional right and constitutional safeguard. Clearly, this is a right which from time to time has to be limited in, for example, such matters as national security, but I think we should look very closely at any attempt to widen the deprivation of the citizen of the right to invoke the criminal law. In fact I think it was a mistake to do it with the Protection of Children Bill and I think there were other cases where it could well have been left where it was—the citizen with his right. Otherwise we run the danger that this kind of matter will be decided behind the closed doors of officialdom rather than in a court of law.
Lord de Clifford
My Lords, I should like to oppose this amendment as well. I am very touched by the faith that the noble Lord, Lord Houghton, has that local authorities will act on behalf of the citizen. May I give a small example? On one occasion I discovered two dead sheep in somebody's water supply, so, filled with indignation, I rushed to the local authority—in fact to the environmental health authority—and they said, "How very interesting! We cannot do anything about that. You will have to proceed under the Dogs Act 1906". I have a feeling that if you go to the local authority you are liable to get an argument like that thrown at you. Further, the basic principle of whittling away citizens' rights to my mind is wrong. Far too many people are trying to do it on every side. I stand up for the citizen's having a right under common law to do exactly what he considers fit.
§ Baroness Hornsby-Smith
My Lords, I should like to support my noble friend Lord Nugent of Guildford. I rather think that the amendment of the noble Lord, Lord Houghton, drives a coach and horses through the purpose of this Bill, because if somebody is outraged by a display which he sees and, possibly misguidedly, voices his opinion loudly enough for the owner of the premises to hear it, and then whips off to the local council, presumably, if this amendment were passed, an officer of the local authority would have to come and view the display for himself. By the time he got round to that the whisper would probably have gone round; the display would probably have been removed, or an alternative one which did not apply would have taken its place. Equally, if you have to bring in a policeman, if he is uniformed he will be seen a mile off and, again, the display will be temporarily changed.
I am very surprised that the noble Lord, who in many debates is so vehement about the rights of individual citizens, should seek to exclude them in this matter on something which is of very real concern to people who live in London or any of the other great metropolitan cities where these unfortunate displays are more common, particularly when one considers the many tourists who come here and are appalled at what they see in some of these displays. I think it quite wrong that it has to be limited so closely that it would cause great evasion, and take heaven knows how long, because if it was thought to be a fairly serious case by the local authority once they had seen it—if they did see it—then presumably they would have to refer it to a senior officer; it might even go before a council committee. The result would be not what the noble Lord requires, that we should take action, but such delay that action would never be taken.
§ 12.42 p.m.
§ The Earl of Longford
My Lords, I do not want to detain the House, but I really feel I can hardly keep altogether silent. I must join with those who are appealing to my much revered friend Lord Houghton, to do the decent thing, to use that word as interpreted earlier, and withdraw this amendment. I agree very much with what was said just now by the noble Baroness opposite. Anyone who tries to tackle pornography or indecency or any such unpleasant activities is met with the argument, "You must not 1261 interfere with liberty". Now the boot is being worn on the other foot. We are told that this fundamental right of the citizen must be interfered with. There is nothing more fundamental in the way of interference with liberty that can be imagined.
Let me base my appeal to my noble friend Lord Houghton on another aspect. He spoke sharply, though he tried to restrain himself, about people who set themselves up as supplying the moral conscience for the nation. No one does that more effectively than the noble Lord, who has aroused our sympathies for animals, in this House and elsewhere, so intensely. In another connection, where I felt he was misguided but where he himself was animated by the highest moral principles, who has done more for the cause regarding abortion than the noble Lord, Lord Houghton? He has fought those causes, he has stirred up the moral conscience when it happens to suit his high ideals. May he not do the same for others?
§ Baroness Macleod of Borve
My Lords, I want to tell only briefly of my own experience. In 25 years as a magistrate I have only had two cases of indecent pornography in large windows, both brought about by private citizens for the reason that my noble friend Lord Nugent gave. Both felt that not only they but their friends' children were being harmed by these two particular window displays. The matter was brought to court, and I am happy to say that the magistrates felt overwhelmingly that there was a case and the offender was fined. Without the private prosecution it might have gone by default.
My Lords, my main objection to this amendment lies in this question. How come that a local authority could possibly know better whether a person is harmed than that person himself? Why is it that nanny must always know best? I agree entirely with all other speakers who have spoken against this amendment, and I believe it would be very wise to withdraw it.
§ Lord Houghton of Sowerby
My Lords, while listening to the debate I have wondered why I am torturing myself so much. I am obviously espousing unpopular causes in your Lordships' House this morning. But there are some things that I feel keenly about. One is that matters of this kind should go through the mincer of Parliament with critical care so that we know what we are doing. We are looking with every care to the creation of new offences, with a new set of penalties, with new rights of seizure, entry and so forth. That, I feel, is the inspiration behind this good-natured martyrdom.
This amendment really deals with whether or not the private citizen shall have the common law rights of proceedings. That is the real issue here. As the noble Lord, Lord Nugent, said, the citizen has these rights under the common law and the question is: Do we deprive him of these rights in this connection? That is the issue. If we decide to do that, we can consider where the rights shall go, whether they shall be extended or rest wholly with the police. We did, of course, take the common law right away from the citizen in the Protection of Children Act 1978. We were not dealing there wholly with a public nuisance; 1262 we were dealing with a different form of pornographic activity in the use of children, which could be private. One had to be very careful in connection with that Bill that we did not give prying people rights of proceeding against possibly innocent people; before prosecutions were taken care had to be exercised as to whether it was a suitable case coming within the provisions of the Act. I acknowledge that freely.
However, we do do it where we feel it to be necessary. That is what that experience showed. So the question is, should we do it now, feeling it to be necessary, or even strongly desirable? I think that is the issue. The judgment of noble Lords is, with great respect, as good as mine. I have said all I can usefully say about the dangers of the individual citizen being allowed to retain his common law rights, and we may have to see whether they are exercised with discretion and with suitable restraint.
Another reflection which occurred to me during the morning was this. Does it not show how remiss the Government have been by keeping their hands free of this difficult problem in the two years they have been in office, leaving it to all of us to find a solution one way or another? It has been left to the Private Member's Bill procedure; it has come to your Lordships' House so that we may fight it out between ourselves. The Government ought to have given more attention to this matter earlier. However, they have had a lot of others things on their hands and their burdens appear to be getting heavier and heavier. Again, in the circumstances, I do not think I ought to insist on your Lordships traipsing through the Division Lobbies, but I would ask the noble and learned Lord on the Woolsack to put the Question and collect the voices.
§ On Question, amendment negatived.
§ [Amendment No. 5 not moved.]
§ 12.50 p.m.
Lord Houghton of Sowerby moved Amendment No. 6:
After Clause 3, insert the following new clause:
"Right of trial by jury
((" ) A person charged with an offence under this Act may elect to be dealt with summarily, or be tried by a judge and jury.").
§ The noble Lord said: My Lords, I beg to move Amendment No. 6 which deals with the right of trial by jury. I confess that I am not very clear as to what are the rights of a citizen, an offender, to have a trial by jury under the provisions of the Bill. However, I want to make sure, if I can, that they are there. After all, the jury has been referred to in many comments on this Bill and related matters. We hear such things as, "the jury will decide", and, "it is a matter for the jury to consider". I think that when it is a matter of judgment which goes little more deeply than a matter of taste then one can rely on the judgment of a body of people rather more so than on the judgment of a few. Therefore, I think that an offender, a person charged with an offence, should be able to elect to be dealt with summarily or to go before a jury. If I can be assured that such a right is there then there will be no need to pursue the amendment. However, I feel that that right should exist.1263
§ I have not had time to investigate all these matters, but I may be told that if a person is convicted in a magistrates' court his right of appeal would take him before a jury. That might be a satisfactory safeguard against a conviction that might be challengeable. In any event, I move the amendment feeling that the right of trial by jury is also the right of the citizen in cases of the criminal law where a sentence of imprisonment or a heavy fine, or both, may follow. I seek a more expert opinion on this particular dilemma than I can myself express. I beg to move.
§ Lord Nugent of Guildford
My Lords, I can give the noble Lord the assurance that he requires, that the defendant does have an absolute right under the Criminal Law Act 1977 to opt for trial by jury. It is for the magistrates to decide whether they would wish to take the trial summarily; if they think that it is a lie defence they then put to the defendant whether he would wish to be tried summarily or prefer to go for trial by jury. He then has the choice. Therefore, the option and the right are firmly his. He cannot opt to be tried summarily if the magistrate decides that in its nature it is a serious offence and should go to the higher court; but he always has the right to opt for trial by jury if he wishes it.
§ Amendment, by leave, withdrawn.