§ 5.28 p.m.
§ The Secretary of State for the Home Department and Lord Privy Seal (Mr. R. A. Butler)
I beg to move,That this House takes note of the Report from the Select Committee on Obscene Publications of Session 1957–58 (H.C. 123).I am glad that we have an opportunity to debate this subject. I want to say at the start that on present form it is not proposed that more than one speech should be made from the Government Front Bench, so as to give the maximum time for hon. Members to take part in the debate. [Interruption.] This is a big subject, and I want to discuss it in my own way.
I was about to say that my hon. Friend who is now Financial Secretary to the Treasury was a member of the Select Committee during the first part of its proceedings, when he was a Joint Under-Secretary of State to the Home Department, and my hon. Friend who is now Joint Under-Secretary was a member of the Committee during the latter part of its proceedings. If necessary he will reply very shortly to any points raised, but our object is that there should not be any long intervention from the Government, except for the explanation that I now have to give, which, unfortunately, will have to be fairly detailed because this is a difficult subject.
This movement to reform the law was initiated towards the end of 1954 by the Society of Authors, following some prosecutions earlier in the year, of which I have particulars, and of which the House may be aware. The Society.of Authors established a committee which produced a draft of a Bill and the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) was given leave under the Ten Minutes Rule to introduce that Bill in March, 1955. However, it made no further progress.
The hon. Member has throughout been closely associated with the subject and with the movement in favour of a change and he reintroduced this Bill under the Ballot in November of that same year. The Bill was low down in the Ballot and there was not time for it to be adequately debated. My hon. Friend the Member for Berwick-upon-Tweed (Viscount 993 Lambton) was successful in the Ballot and brought the Bill in again. After that, there was a discussion in the House when my hon. and learned Friend who is now Financial Secretary to the Treasury, and who was then Under-Secretary of State to the Home Department, advised the House that the Bill could not readily be made, as we thought, workable. The eventual result of that was the establishment of the Select Committee, whose Reports we have in the two blue volumes which I have in my hand.
That indicates that the subject has been before us for some time and that it has been the subject of the Report of the Select Committee, whose work spread over two Sessions and whose Report was published only in March this year. I express the thanks of the House for the work of the Members of that Select Committee, one or two of whom I see present on either side of the House. We need not reproach ourselves for the length of time taken, because this is a controversial subject upon which it is very difficult to get agreement and on which it has been difficult to get agreement between authors and laymen, laymen and lawyers, and, especially, authors and lawyers. This is not only a controversial but a technical and complex subject, and it is therefore all the more to the credit of the Select Committee that we have received so clear a Report.
Before describing the Government's attitude to the Select Committee's Report, I remind the House that one of the major issues, that is, the definition of artistic merit, was decided only narrowly in a Division of the Committee itself, and only by the casting vote of the Chairman. That again indicates that those people, some of whom have written in a major newspaper today, who say how easy it is to describe these matters, are underestimating the difficulties.
The House should approach the difficulties with as much care as possible and should remember that the Report is primarily concerned with two main headings. One is an aspect of the common law. Under that, the publication of any obscene matter is a misdemeanour punishable on indictment and, in certain circumstances, summarily. The facet of this common law which has attracted most attention, especially from the Society 994 of Authors and the Committee, is the definition of obscenity laid down by Mr. Justice Cockburn in the case of Regina v. Hicklin in 1868. He laid down the test of obscenity—as members of the Committee will remember—as:Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.The second type of proceeding, leaving aside the common law, is contained in the Obscene Publications Act, 1857. That provides a summary procedure against the publications themselves and enables a magistrates' court to order the seizure of obscene matter from places where it is kept for sale or distribution and to summon the occupier of the premises to appear and to show why the articles should not be destroyed and to order the destruction of the articles if it appears that they are obscene. That is a rather unusual procedure intended as a preventive measure against the distribution of obscene material and without in itself involving the punishment of any person. Despite the nature of that procedure, the Select Committee found the method useful and justifiable and made several recommendations designed to improve its effectiveness.
So far I have dealt only with the origins, the common law, and the Act of 1857, but before I give the Government's opinion on the detailed recommendations of the Select Committee, we ought to pause for a moment to think why we have a law of obscene publications. We are all agreed that the object is to protect from corruption those whose minds are open to immoral influences, quoting again from the Hicklin definition, not to protect the strong, but to protect the relatively weak. That is the necessary and legitimate object of the law.
That means that in seeking to protect the weak we must take care to place the minimum restrictions on creative work. The difficulty, which the House will have to examine in this matter is this. The area between truly creative work which some might find offensive or immoral, and the depths of pornography is vast. It is somewhere between those two extremes that the law has to place a limit to define what is permitted and what is not. The problem is how to set the limit 995 right, and the hon. Member for Stechford has made an effort in his Bill.
It is important to clear this out of the way: the obscene publications law is not concerned with all obscenity as understood by the ordinary man or as defined in the dictionary, that is, that which is offensive to modesty or decency. Even if it were, there would be considerable room for differences of opinion as to what constituted obscenity. The keen nose of Dr. Bowdler found in the words of Shakespeare things to which to object which had not been found before and which, perhaps, have not been found since. Times and tastes change, and The Times itself has also changed. We have lately seen printed on its leader page words which a few years ago were thought unprintable.
The law of obscene publications does not operate against all obscenity. It operates if there is a tendency to corrupt. The Select Committee recommended, rightly in the Government's view, that that criterion should be retained. Inevitably, that increases the scope for difference of opinion. The mere use of Anglo-Saxon monosyllables may be obscene, but hardly corruptive. Everybody knows, schoolboys particularly, how the Bible and even the Oxford Dictionary can be used to serve the purposes of prurient curiosity. The nude can be used in lectures, such as those which I attended in Washington and which were given by Sir Kenneth Clark, to provide inspiration for the painter or photographer or, on the other hand, be degraded for the purposes of the pornographer's wares.
At what point does corruption begin? These are matters for subjective judgment, and our difficulty in legislation is that the law ought to be objective and ought to be capable of objective application. Only a censor could give certainty and consistency. That device has been adopted in one way or another for the theatre and the cinema, but I would most violently rebel at the idea of a censor or board of censors applying his or its activities to literature and art. It would not only be complex, but utterly unacceptable in a free country. Therefore, at the very start, before coming to examine the legal details, we have to face the obvious difficulty of trying to find a limit for the law and trying to make it 996 objective in an entirely subjective matter, and trying to make it effective in this very difficult matter.
I said earlier that the movement for reform started as a result of five prosecutions of novels in 1954. The results of those prosecutions were one plea of guilty, one conviction, and three acquittals. From that we cannot deduce very much. Some people may say that that shows that there is no need to alter the law, but others, including the Society of Authors, the hon. Member for Stechford, my noble Friend the Member for Berwick-upon-Tweed, and others have taken the view that that means that the law should be altered. The case for changing the law is summarised in the Report of the Select Committee.
If the law is to be codified with Amendments, as the Select Committee recommended, we must consider the Amendments with the greatest care, so that they do not offer shelter for the unscrupulous, because a widening of the law might have an effect precisely opposite to that which the Select Committee had in mind, and might open up the way to unscrupulous publishers to sail as close to the wind as they were able. It is against that background of care and those difficulties which I have shortly outlined that I come to consider the recommendations of the Select Committee.
It will be found that we accept most of the recommendations. In the cases where we are critical, to which I shall draw attention later, it is not because we do not recognise that the Select Committee made a sincere attempt to provide security for reputable work, but because we fear that it may have provided a loophole which could be exploited by the unscrupulous. The Government accept the first recommendation, that the criterion of obscene matter should continue to be its tendency to deprave and corrupt.
In its second recommendation, the Committee discussed the class of persons by reference to which the tendency to deprave or corrupt should be judged. I have already deliberately drawn attention to the Hicklin definition. That definition refers to the class comprising persons whose minds are open to immoral influences and into whose hands a publication of the kind in question might fall. That has sometimes been interpreted by the courts as referring to young 997 and immature persons, and the Select Committee quoted with approval a charge given to a jury by Mr. Justice Stable in Regina v. Secker, which the House will remember was the case of "The Philanderer," in which Mr. Justice Stable suggested that a work of the kind before him should not he judged by the standards of schoolchildren.
Against that background and those judgments, the Committee recommended that in any new statutory definition that explanation of the law should be followed and in paragraph 19 suggested a definition in the following terms:Any matter shall be deemed to be obscene if its effect as a whole is such as to tend to deprave and corrupt persons to or among whom it was likely to be distributed, circulated or offered for sale.Mr. Justice Stable's summing up related to a particular kind of work judged in a particular manner. The Government would not accept that all that he said would necessarily apply or be appropriate in different circumstances, but they are prepared to agree in principle to a definition designed to achieve the objects of the definition which I have just read. If it is to have legislative effect, in the Government's view it would need some technical alterations to which I shall refer later.
Before summarising the sort of definition which the Government think would be more effective, I ought to allude to another element of the common law. One of the elements of the common law which the Government think valuable is that the question whether the distributor of a work should be convicted or the work destroyed depends on the circumstances of distribution. For example, a work which might properly be sold at a specialist bookshop might not be suitable for distribution directly to schoolchildren. The Government therefore suggest that the definition proposed by the Committee should be qualified by some such phrase as:In determining what persons are likely to read, hear or see the work in question, regard shall be had to the circumstances in which it was found and to the manner in which it was proposed to be, or was, published.That leads me to sum up that part of what I was going to say by reading out the definition which, including these words, would be an improvement upon the Committee's definition. Even if the 998 hon. Member who is interested in this matter and others who speak cannot apprehend it at first sight, they will, I think, see that it follows broadly the same lines. This would be the suggested definition:For the purposes of this Act, any matter shall be deemed to be obscene if its effect in its context is such as to tend to deprave or corrupt or further to deprave or corrupt those persons who are likely to read, hear or see it.I then add what I have just introduced:In determining what persons are likely to read, see or hear it, regard should be had to the circumstances in which the matter was found and to the manner in which it was proposed to he, or was published.
§ Mr. Roy Jenkins (Birmingham, Stechford)
May I interrupt for a matter of clarity? As far as I can understand at first hearing, one matter that the right hon. Gentleman has not dealt with in his argument is that the effect "as a whole", to which the Select Committee attached considerable importance, has been left out. Substituted for it is "in its context". the meaning of which is not immediately clear to me. It is obviously somewhat distinct from "as a whole".
§ Mr. Butler
The hon. Member's intervention will enable me to bring out the difference even more clearly than I had intended. I was just going on to say that right hon. and hon. Members will observe that there is one difference between the Committee's definition and what I have read out. What I have read out uses the words "in its context". The reason why I bring out at this stage the whole definition which we think is the best is because I now want to come to the Committee's third recommendation and deal with its recommendation that the work as a whole should be considered. The words "as a whole" are included in the Committee's suggested definition in paragraph 19, to which I have already referred. Therefore, I come logically to the point which the hon. Member has so quickly perceived.
This is already the practice of the courts in prosecutions of the kind of work with which the Society of Authors is particularly concerned. Here we must go back to a case in the High Court, that of Paget Publications Ltd. v. Watson. I am not, of course, referring to the hon. and learned Member for Northampton (Mr. Paget). In that case, the High Court 999 ruled that in destruction order proceedings it is not necessary to show that a publication is obscene on every page. A publication can be obscene because part of it is obscene. That case did not relate to a work of the kind in which the Society of Authors is interested and it may well be that such a work ought to be taken as a whole in such proceedings, also. The High Court has not had an opportunity of deciding that issue.
The Government see danger in using the expression or phrase "as a whole" in a definition that is applicable to all kinds of material. How, for example, would a court judge a collection of short stories, only one of which was obscene? There is a risk that if the words "as a whole" are included in the definition, such a book might escape or, what is, perhaps, more dangerous, that an unscrupulous publisher might use a largely respectable magazine as a vehicle and shield for a small quantity of pornography. I believe that to be a real danger. What we want to ensure is that if an obscene passage is to be excused it shall be because its obscenity is justified not by its relative brevity, but by the nature of the work of which it is a part: that is, by its context.
This is a technical matter, which I throw out at the opening of the debate and on which hon. Members can comment and which will need to be examined. I think, however, that it would be safer and better, rather than using the words "as a whole", to use the words "in its context", because that would give a jury, who would have to decide these matters, a much better opportunity of testing not only the intention, but also the fact, in relation to the inclusion of a passage of obscene material in a particular work. Therefore, it is in that aspect that the Government propose an amendment of the Committee's recommendation and to that extent would need to recommend an amendment of the hon. Member's Bill. I do not believe that there is sufficient difference of opinion for us to regard that as a major difference, but I shall be glad to hear the argument upon it and, no doubt, if there are later opportunities, we can go into it further.
Recommendation (iv), however, is the most crucial and difficult of the issues discussed in the Select Committee's Report. It is that 1000A definition of literary or artistic merit should be afforded.This is linked with the views of supporters of reform that expert evidence as to the literary or other merit of a work should be admitted.
Paragraph 20 of the Committee's Report records the statement of the Society of Authors that this is a point upon which the supporters feel perhaps the most strongly. Nevertheless, this recommendation appears to be one upon which the Select Committee itself had misgivings, because reference to the Minutes of Proceedings shows that the concluding sentence of paragraph 20, in which the recommendation of a defence of literary or artistic merit was included, was included only on the casting vote of the Chairman after the Committee had divided evenly. The Government share the misgiving obviously felt by the Committee. In fact, I go so far as to say that we regard this particular recommendation as unworkable and, therefore, unacceptable.
I have already said that we do not underrate the importance attached to it by the Society of Authors. After giving our reasons, I shall make some suggestions. Our reasons are two. First, the idea that literary merit can justify obscenity requires a qualification. An essentially obscene book is none the less corrupting because it is well written. The inclusion of such a defence in any legislation would, as the Government fear, encourage the production of well-written pornography which would be beyond the reach of the law. The ingenuity of commercial and unscrupulous interests in making use of such a loophole should not be underrated.
The second difficulty, upon which, on examination, I hardly think there will be much difference of opinion, lies in the great practical difficulty of determining what is literary or artistic merit. This difficulty was well illustrated in the evidence given to the Select Committee by Mr. T. S. Eliot. He was asked by my hon. and learned Friend the Joint Under-Secretary:can you offer us any broad criterion as to how the court should decide whether there is literary merit or not?This distinguished writer replied:I cannot, except by the court receiving expert evidence. Now, what is expert evidence with regard to literary or artistic merit? Obviously "—1001 continued Mr. Eliot in answering his own question—expert evidence is a definite thing with regard to the medical, legal or scientific character of a book, but as to the literary, artistic merit, it will all depend on getting the opinion of the right people, and who can say absolutely who are the right people? Some distinguished authors, well-known authors, have been in my experience extremely prudish: others have been, perhaps, too lax…He concluded:but on the whole I should think this would work well.That, however, is not the deduction that the Government draw from this witness.
Mr. Eliot was then asked:It might result in one side calling, for example, James Joyce as an expert witness and the other side calling one of the authors…whom you regard as prudish?Mr. Eliot answered:Yes. I think cases might arise in which this would not completely solve the case, but I do not see how you could do better.The view of the Government is that here is one of the best witnesses that could be called, who, although he thinks that it might work, comes to the conclusion that it would not completely solve the case. That, I believe, represents the truth.
That takes me back to what I said earlier, that if we are to have a better definition of the law—and I have already moved quite a long way on the major definitions in answer to the Committee's recommendations—and if we are to respond to this request for what is called by the lawyers a special defence, we cannot have something that is inaccurate. Above all, when the House has to consider that this matter would have to be decided by a jury, it would be inappropriate, in a difficult matter of this sort, to have a censor or an expert body deciding it. We have, therefore, to approach a solution, which I hope we may be able to do, realising that it is a jury who must decide; and if Mr. T. S. Eliot himself finds it difficult, what on earth will a jury do in trying to decide what is artistic or literary merit in answer to the plea of a special defence?
I realise that the aim of those who make this proposal is to ensure that a writer of integrity who expresses the truth as he sees it shall not be liable to prosecution for obscene libel, and that we all want to achieve. The problem is how to 1002 secure this without opening a loophole for evil. It must be very galling for a firm of publishers who decide to take a risk with a book which they think is artistic and which, in fact, contains subject matter which some of us might regard as somewhat alarming—it has been my duty to read some of these works and some of them certainly cause me to open my eyes—to find itself in the dock and finally convicted, or, indeed, even if acquitted, to have to undergo that experience. Therefore, we must try to see what we can do, by way of constructive suggestions, to help.
I approach this matter from the basis of the evidence of the Home Office case before the Committee started its work. It is held in some quarters that it is a good defence under the present law to show that the publication of matter prima facie obscene is for the public good because it is necessary or advantageous to religion, science, literature or art, provided that the manner and extent of publication do not exceed what the public good requires. That is held. The advice which I have been given is that it can be derived from the corpus and the digest of law. No authoritative decision, however, has been given by the courts on the question of whether such a defence is now available. That shows the complexity of the subject.
In fact, the definition which I have read to the House would prima facie appear to cover all that is necessary to protect the work of literary quality. It is possible, therefore, to hold that if we adhere to the definition I read earlier, with the words "in its context" and then the wordsIn determining what persons are likely to read, hear or see it…that would cover the whole case and the law would be improved by that definition. If, however, it is felt that something extra is wanted, I can only draw attention again to the suggestions in the Home Office evidence. They drew attention to the possibility of providing explicitly for this defence of the public good or the public interest. Under this, the defence would be based upon the general wellbeing of society as well as on the excellence of the publication in its kind.
This should appeal to those who fear that the Committee's recommendation 1003 might encourage "high-class" pornography. It might thus be possible to give some measure of reassurance to the Society of Authors by making it clear that "public good" includes the advancement of literature or art. I put that forward for discussion and I shall value any comments by hon. Members, not only in this debate, but afterwards. We may well need to have consultations as a result of the proposals that I have put forward in my speech.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
Would my right hon. Friend deal with two points which arise from what he has been saying? First, does not this proviso merely deal with the right to call expert evidence and not provide a special defence? Therefore, is he really suggesting that, whatever the outcome of that, there should be a second and further proviso which would be wider and would raise a special defence, namely, that of the public good? Are they not really two quite separate issues?
§ Mr. Butler
That is precisely the sort of thing that we shall have to decide after this debate, when we have had the comments of hon. Members. I should not like to deny the interpretation given by my hon. Friend, but I think that the way I have put it indicates that we think there is a possibility of legislation based on the definition which I gave earlier in my speech and confined to that. We think that the Society of Authors and certain hon. Members would like to go further and, if so, we should like the approach based on the evidence given by the Home Office as reported in the first part of the Report and should like to combine with literary or other merit that amendment made to the Bill proposed by the hon. Member for Stechford.
I will deal with the other recommendations quite shortly. I have been over the first four. I must reserve the Government's position on the first part of Recommendation (v) and need not go into it in detail. I think we can agree in general to Recommendation (vi). We may have proposals to enlarge the limits of Recommendation (vii). Recommendation (viii) recommends that the consent of the Director of Public Prosecutions should be required for the initiation of proceedings. That is a burden which, in the view of the Government, should not 1004 be imposed on him unless there is a very strong case for doing so. We are not persuaded that such a case exists. Again, I do not regard that as a matter of breaking, but I am giving the opinion of the Government. Recommendations (ix) to (xiii) are mostly procedural matters on which, in general, we agree. I do not think that any special comment is required on them on this occasion.
To give others the opportunity of commenting. I should like to conclude as follows. The Government are grateful for the Report of the Select Committee and accept it as a possible basis for legislation. Before approving any legislation, we must be satisfied that the points I have put forward are either met or that alternative methods of meeting them are found. We must have an eye to the effect of the legislation on the distribution of pornography as well as the distribution of serious works.
The hon. Member for Stechford has followed closely the recommendations of the Select Committee and it may well be that he will be able to agree with us the recommendations that I have made as to amendment of the Committee's Report, and hence of the contents of his Bill. If there is such agreement, I think that we can hope for progress with his Bill. As the matters have been confined to one important one and one or two which I think less important, I am hopeful that it may be possible to make progress with legislation on this subject.
§ Mr. Kenneth Younger (Grimsby)
I wonder whether it would be too inconvenient to ask the right hon. Gentleman to repeat the definition he proposed earlier in his speech. He gave it in advance and I cannot say that I grasped it. Would he read it again?
§ Mr. Butler
Yes, I will. The definition I had in mind was this:For the purposes of this Act, any matter shall be deemed to be obscene if its effect in its context is such as to tend to deprave or corrupt or further to deprave or corrupt those persons who are likely to read, hear or see it. In determining what persons are likely to read, hear or see the work in question, regard shall be had to the circumstances in which it was found and to the manner in which it was proposed to be, or was, published.I hope that that will be of some help to hon. Members in making up their minds about the future of this important subject.
§ Mr. Ede (South Shields)
In paragraph 19 of the Report the words are "deprave and corrupt". As the right hon. Gentleman read his new definition, the phrase was "deprave or corrupt". Did I hear him correctly?
§ Mr. Butler
I do not think that there is very much in that. I read out, "deprave or corrupt", but I do not think we need quarrel too much over that. We had better look at it, but I definitely read out "deprave or corrupt".
§ 6.5 p.m.
§ Mr. Roy Jenkins (Birmingham, Stechford)
I greatly welcome the fact that this debate is taking place today and I welcome, on the whole, the approach that the Home Secretary has made to the subject. Perhaps we should not inquire too closely as to why there has, apparently, been a rather sudden change of heart on the part of the Government. Certainly, I regard the plant of liberalism at the Home Office, even under the care of the right hon. Gentleman the Home Secretary, as of such a delicate growth that one had better not do anything at all to discourage it.
At the beginning of his speech, the right hon. Gentleman made some points by way of background and perhaps I may be allowed to make one or two myself. I do not want to go further into the long and rather unhappy story of attempts over nearly four years to make progress with this legislation, but I think that there are several points to be borne in mind in considering it. The first is this which I do not think emerged entirely clearly from the speech of the right hon. Gentleman. In this difficult, delicate and important matter of striking a balance between not allowing licence for pornography and, at the same time, giving reasonable security to literature of value, I do not think that anyone could claim that we in this country are at present in a particularly happy position.
On the contrary, I think that in this country there is probably a more flourishing pornography trade than in most other countries and, at the same time, a greater lack of security for genuine literature than in most parts of the civilised world. Therefore, we start not from an extremely 1006 fortunate position which we must be very cautious about not upsetting, but, as I think the right hon. Gentleman will agree, from a thoroughly unsatisfactory position judged from both aspects of the matter concerned.
Therefore, let us not be too perfectionist or worried that we are not getting everything absolutely right, provided we can make some real progress in the right direction. The other point we should have in mind is the extraordinary unanimity of informed interested opinion outside on this whole subject. Last time the right hon. Gentleman stood at the Dispatch Box to deal with a subject roughly analogous to this he spoke in extremely sympathetic terms about the problem of the homosexual as related to the Wolfenden Committee Report. He then said, "I can do nothing. because I do not think that public opinion is ripe" but the position over the matter we are debating now is exactly the reverse. Public opinion is well ahead of the Government.
On this matter we have had sustained and clearly expressed support from The Times, the Manchester Guardian, the Daily Telegraph, the News Chronicle, the Sunday Times, the Observer, the Spectator, the New Statesman and the Economist. I can think of no other single issue which would promote unanimity among all those publications, yet this support has been achieved and maintained. Nor let this be thought a narrow little affair of writers, because the Public Morality Council, in its evidence before the Select Committee, was extremely sympathetic to a change, and a liberal change.
Therefore, we are not dealing with a situation in which we have an outraged public opinion which we might offend, but with a situation in which there has been considerable demand for action. The next background point is this. In stating the 1954 position and saying that there were three acquittals, one plea of guilty and one conviction, the right hon. Gentleman, perhaps unwittingly, gave a slightly false impression of what happened. After all, in the most important of those cases, the one which, I think it is true to say, concerned the most eminent and respectable publisher, the acquittal was arrived at because the jury had twice 1007 disagreed, after long trials, with the chairman of the company in the dock. On the third occasion, in accordance with custom, the prosecution offered no evidence. Therefore, there was an extremely evenly balanced decision.
There is evidence that in this and other matters the position is better than it was in 1954. The year 1954, when Lord Kilmuir handed the torch of liberty at the Home Office to Lord 'Tenby, was not a particularly bright year in the annals of British liberalism. I think that there has been an improvement since then, particularly under the present Home Secretary. But the present position is certainly not entirely satisfactory. The right hon. Gentleman and the House know that in dealing with these matters—matters which may have a long-term effect—it is the state of the law and not the intention of Government spokesmen, however well inclined they may be, that counts. Hon. Members who follow this will be familiar with the fact that Lord Campbell, when introducing his Bill in 1857, made it clear that there was no intention of applying it to publications which anyone could consider as coming within the realm of literature, yet under that Act The Decameron was ordered to be destroyed only a few years ago.
This is not a dead issue. There is a proposal for a firm to publish in the spring a book called Lolita which has sold 240,000 copies in the United States of America and has been published and well received in many other countries.
§ Mr. Jenkins
The hon. Member, who has great certainty in these matters, says it is thoroughly obscene. I do not happen to think that it is as good a book as a great many people think, but I certainly would not say that it is thoroughly obscene. I think that probably it is of considerable merit. I should certainly not wish to stand absolutely and certainly on a position in which the hon. Member says it is thoroughly obscene, in spite of the fact that to many it is a major work of art.
§ Sir G. Nicholson
I do not wish to go into sordid details. I have read only accounts in the newspapers, but apparently it goes uncontradicted that the book 1008 deals with a peculiarly disgusting and cruel form of vice and tends to encourage it. If the hon. Member does not think that obscene I should like him to say what he thinks is obscene.
§ Mr. Jenkins
My respect for the hon. Member's certainty is even greater since his intervention, because I had imagined that before making such a judgment he would base his remarks on a careful study of the book and not on an article in a newspaper, published with the object of dragging the sensationalism out of the book, while, at the same time, having the hypocritical satisfaction of saying that it should not be published. I hoped that the hon. Member would apply himself more closely to the subject before laying down these absolute literary judgments.
§ Mr. Charles Doughty (Surrey, East)
Page 73 of the evidence of the Committee, of which the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) was a member, deals with the book to which he has referred. It was the subject of two successful prosecutions at Bow Street, in 1956. It deals in detail with the seduction of the 13-year old girl by her stepfather. Is the hon. Member saying that that is a book which ought to be published in this country?
§ Mr. Jenkins
I am saying that, in the first place, it is very difficult to accept automatically, although we accept a great deal of evidence from them, the evidence of the police as necessarily saying the last word on a subject of this sort when, for instance, an extremely distinguished critic, Mr. Trilling, has taken a different view. I am saying that, it being announced that a book is to be published here in the spring, this matter is not a dead one and that it should not be left alone because nothing very much appears to have happened since 1954.
In the course of his speech the Home Secretary made detailed proposals for dealing with our recommendations. I am grateful to him for having done so. I am sure he will recognise that it is difficult, having heard those proposals for the first time today, to pronounce upon them. Without finally committing myself, let alone anyone else, I would say that some of his suggestions would be acceptable, at any rate, as compromise proposals, to those of us who are desperately anxious to make some progress in this matter.
1009 The right hon. Gentleman dealt with the proposal to change the "work-as-a-whole" approach into that of "judged-in-its-context." I do not think that we necessarily wish to quarrel with this, although it is difficult to know for certain what is the correct approach. In our first draft of the Bill we used not the "work-as-a-whole" approach but the "dominant-effect" approach, and it was as a result of advice from the Home Office that we made the change at that stage. In my view, provided that we can get broad agreement we should not quarrel too much about particular drafts, and on this point I should not suggest that there is a great deal between us.
The right hon. Gentleman next suggested that there are difficulties about merely substituting for "those into whose hands it may fall," the approach "likely to be distributed." His suggestion was that a proviso should be made by which regard would be had of the shops in which the hook would be sold and thereby the people among whom it was likely to be distributed. I can see certain difficulties about this approach.
For instance, if it is to be judged that an author may write a book to be circulated in a certain kind of shop which would make the book all right from the right hon. Gentleman's point of view, what is the position of that author or his publisher if the book finds its way into shops of a very different sort, in which, I understand, the right hon. Gentleman would object to it being sold?
There is also the difficulty that while, in practice, there may be something to be said for this approach, in theory it is difficult to say that a book is pornographic if it is sold for 5s. but quite all right if it is sold for 65s. Subject to these considerations, however, which come immediately to my mind, I do not think that there is any difference of principle here, and we should certainly wish to try to meet the right hon. Gentleman as far as we can.
The point of major importance is whether literary or artistic merit should be a defence and whether, as a result, expert evidence on this point could be called. The right hon. Gentleman based his argument here very largely on the evidence of Mr. T. S. Eliot to the Select Committee. Mr. Eliot is a literary figure 1010 of immense distinction, and we were extremely glad to have his evidence before the Select Committee, but I think that it would be right to say that the evidence which he gave was all given in an extremely modest way, in which he constantly sought to put it to the Committee that we were probably rather better literary judges than he was—a proposition which, on the whole, I should not be inclined to accept on behalf of any hon. Member.
It would be wrong to imagine that his evidence was given in a sceptical way, saying, "It is impossible to do anything". It was given in a way of saying, "I do not wish to lay down the law to you on this or any other matter, but, on the whole, I think that the system which I am supporting"—and which the right hon. Gentleman quoted—"would provide a fair and workable system".
It is important that a method should be found of bringing expert evidence into court. Expert witnesses, of course, may disagree. Everybody who has ever written a book knows that literary critics are not infallible, although some are no doubt less fallible than others. The mere fact that one might have expert evidence which was not infallible, and the mere fact that one might have one literary critic on one side and another literary critic on the other side does not seem to me to create an overwhelming argument against expert evidence. There are, after all—and many hon. Members know this better than I—many fields in which expert witnesses differ, but it would not be argued, none the less, that they did riot often perform a valuable function in directing the minds of the jury to the issues between which they ought to decide. I certainly think that it would be extremely helpful in this field.
This brings us to the crux of the problem, which the right hon. Gentleman fully recognised. In our literary tradition, a good deal of material is published which could genuinely be regarded as of the highest aesthetic qualities but which, if it were not to have those qualities and were to be published today for the first time, particularly by an unknown author, would be regarded as having a pornographic content. This applies to a great deal of work—Shakespeare, Swift, Smollett, Sartre, to take only a few names which come to mind when considering only one letter of the alphabet.
1011 How is one to try to draw a borderline? How, also—and this is very important—is one to try to do that which ought to be done-to give as much protection to the unknown author today as would automatically be accorded to well known authors who wrote some time ago, or even to those who write today? Here, I think that expert evidence is likely to be of immense importance and of very great value and I hope that, as he said, the right hon. Gentleman will in no way close his mind on this subject.
I think that the solution which we presented from the Select Committee was workable. Although, as he said, one of the important divisions in this issue was a tie, with the Chairman giving a casting vote, I am not sure that one hon. Member of the Committee would not immediately afterwards have liked to change his vote in our direction, which would have given a slightly different balance to the picture. I do not make a great point of that. I would point out, however, that the section as a whole was accepted by the overwhelming majority of the Select Committee. I think that only two hon. Members voted against it, and, of course, none voted against the Report as a whole.
The right hon. Gentleman should not place too much weight on the fact that literary or artistic merit, or, for that matter, the public good, would be rather vague matters for a jury to have to determine. Nothing can be more vague than "to deprave and to corrupt". We are, therefore, not introducing a new element of vagueness into a clear picture; we are introducing what I think would be an improvement into a picture which is extremely vague already and which has shown itself in a great number of cases to be highly uncertain.
I will comment on one other point—our wish that the permission of the Director of Public Prosecutions should be necessary for a prosecution to be undertaken. I know that the problems of placing extra burdens on officials who are already hard worked are difficult. But it was made clear in the evidence that the Director of Public Prosecutions, under the law as it stands, already has sifted in his office a vast amount of matter which might lead to prosecution and that he deals with a mass of these matters of 1012 which complaint was made. We are here asking only for legal sanction to be given to what is, in practice, to an overwhelming extent, the situation already.
I hope that on all these matters on which there is some difference in point of view between the Select Committee, those who tried to sponsor the Bill and the Home Secretary, the right hon. Gentleman will not close his mind. We certainly have not closed our minds at any stage. There have been immense changes, and, I think, to some extent improvements, in the Bill as we have gone along. The whole system in respect of a non-controversial question, dealing with the suppression of pornographic trade in accordance with the desires of the police as expressed in their evidence, was changed, and that was quite new to the Bill at that stage. Great changes have been made as time has passed.
The right hon. Gentleman said that it was difficult to obtain agreement between authors and the general public-I am not sure about that—and between authors and lawyers. It is extremely difficult to get agreement between lawyers themselves on this or any other matter. That has always been the case, particularly when dealing with this subject. When the 1857 Act was introduced there was such a bitter quarrel between those great Victorian Lord Chancellors, Lord Lyndhurst and Lord Campbell, that they did not speak to each other for several years afterwards. I hope that similar difficulties will not arise out of this Bill.
Those who have been anxious to get a Bill on the Statute Book and to make progress in a liberal direction have been ready to make all the practical changes which he has suggested. Now, after three-and-a-half years, we hope we are nearer to the possibility of getting a Bill on to the Statute Book. Certainly, in those circumstances, we should not wish to reject the overtures which the right hon. Gentleman has made. Equally, some of the points in his speech are difficult for us to accept. He talked about the possibility of the Bill being amended as it went along. I think that there will be a possibility of negotiation and of working out an agreed, practical and liberal Measure, and I hope that he will approach the question in this spirit, as we shall.
I hope, above all, that the right hon. Gentleman will not regard this debate 1013 as something by which he has shown good liberal intent and that he need not, therefore, worry too much about the matter for some time to come. The debate will be very valuable and useful if it leads to early legislation, but it will not be valuable and useful unless it does that; and in that spirit I thank the right hon. Gentleman for his speech.
§ 6.26 p.m.
§ Mr. R. H. Turton (Thirsk and Malton)
May I, first, explain why I am making a contribution to the debate? I was a member of the Select Committee examining the Bill of my hon. Friend the Member for Berwick-upon-Tweed (Viscount Lambton). When that Session ended, without the Committee having made any decisions, I was appointed to the new Select Committee to recommend on the existing law and the need for amendment or consolidation. I took the Chair of that Committee.
I came to the subject with no preconceived opinions of any kind, except for my natural reluctance to make any unnecessary changes, which is possibly a common attitude both to hon. Members of my party and to the great majority of people in this country. The evidence which we heard, however, convinced me arid, I think, the whole Committee that the present law was uncertain and that there were many gaps in it.
I believe that in considering our Report there is one point which my right hon. Friend did not realise. I should like to remind him of it. The second Committee, of which I was Chairman, was not looking at a Bill or drafting a Bill. We carefully avoided putting forward a draft Bill. We were trying to recommend to the House what type of amendment should be made to the existing law, which, in our view, was unsatisfactory and incomplete. I therefore do not personally feel wedded in any way to the wording which we have used in the draft Report. When we used those words, we were not drafting a Bill but were trying to convey an impression to the House.
There is one fact which we should all remember. As my right hon. Friend said, this is a subject which is liable to cause controversy. We made that quite clear in our Report. The controversy is that if one goes too far in one direction one infringes the freedom to publish; and if one goes too far in the other direction 1014 one encourages pornography. Although a number of attractive alternatives were put forward as definitions, especially an attractive alternative by Sir Alan Herbert when he gave evidence, we felt that it was wise to keep as close as possible to the Hicklin interpretation and the words of Mr. Justice Stable.
I am alarmed by my right hon. Friend's suggestion that the Hicklin judgment should be altered by altering the phrase "deprave and corrupt" into "intended to deprave or corrupt", or "further to deprave or corrupt". My right hon. Friend must interrupt me if I am wrong in quoting what he said, because I took it down very roughly and it is not very easy to remember the full details of what he said.
That will mean that the whole body of case law that rests upon Hicklin will once again have to be reconsidered by the courts. In our attempt to give a suggested definition in paragraph 19 we tried to keep as closely as possible to the Hicklin judgment, to avoid that possibility and so as not to arouse controversy. I am not going into the different arguments again.
§ Mr. R. A. Butler
May I interrupt my right hon. Friend? if he would withdraw the word "alarm," perhaps it would give a better picture. I think that it is upon this sort of matter that further thought is necessary, and, while I think that he has been right to draw the difference between his own words and what I have said, just as the right hon. Gentleman opposite was, I think that this is a matter that should be considered most rationally.
§ Mr. Turton
I am much obliged to my right hon. Friend. Let me substitute the word "concerned". The point that we were making in our Report, and I think that it was fully accepted by right hon. and hon. Members on both sides of the House, was that we were trying to keep as closely as possible to the Hicklin judgment. I think that it would be a great pity, if, when drafting these important words, at this stage we left Hicklin for some new words.
As to the other recommendations which my right hon. Friend made, when he talks of the "public good," I think that I am betraying no secret when I say that this question was in the minds of the Committee when we were considering it. 1015 I think that there was a little misunderstanding in reading our Report. When we were dealing with the defence of artistic merit, what we were saying was that, where the evidence of literary or artistic merit is so great—in other words, we were really saying that where it is a public interest that something of literary or artistic merit should be published, even although it might be going a little bit nearer to the border, it should be permitted. I personally cannot see any difference at all in the attitude which my right hon. Friend has taken up on the "public good" from that of the recommendation in our Report.
I do not want to go—indeed, I do not think it would be proper for me to go—into all the points of detail. These are much more for those hon. Members who have been pressing for legislation. Why I have intervened in the debate is to say that, personally, I was gravely concerned by the evidence that we received on the failure of the present law to deal effectively with pornography. I should like to remind the House of some of the evidence that we received. We received evidence from the Commissioner of Police for the Metropolis that in two years, businesses dealing with the sale of obscene publications in Soho had increased by 80 per cent. We were told that it was not possible, under the existing law, to attack the wholesale sources of supply; in other words, that the big men in the trade of pornography were, under the existing law, getting off scot-free.
I was delighted when my right lion. Friend, when he went through our recommendations and particularly those dealing with the measures to try to prohibit this trade in pornography, accepted them all without any qualification at all. We were told that at present, if the sale of pornographic literature on stalls or vehicles continues, the police have no power to deal with it at all, because the 1857 Act, drafted 100 years ago, has not been modernised, and, as a result, there is more pornography for sale.
We were, in fact, told that the police, because of this failure of the present law, have to carry out this system of disclaimer, under which the shopkeeper pretends that he has no concern with the property. They have originated this 1016 system because, otherwise, they could not seize the pornographic books. I was not at all happy that the police had to use this method of disclaimer merely because the law was defective, and I think that the sooner we rectify it the better it will be, both for the police and for Parliament.
We were also told that, taking the year 1956, 500 pornographic books were seized and destroyed out of an estimated number of 25,000 pornographic books in circulation. Nobody in the House can be satisfied with that position. We were told that the trade in suggestive photographs was growing rapidly year by year. For this reason, I paid considerable attention to the evidence of the Public Morality Council, which stated that a great deal of pornography is being circulated, and that the council was anxious that Parliament should give greater powers to stop that trade, and that, in its view, "something pretty strong was needed to deal with pornography."
In my view, having started with no preconceived ideas, in the end I regarded as most important the present uncertainty of the law, in which we have different judges appearing to give different rulings of law in the matter, and the greater and more important fact that there were clearly great gaps in the law against pornography. For these reasons, I came to the conclusion that the sooner we could get an agreed Bill through the House the better.
Personally, I think that my right hon. Friend has made a most helpful speech towards achieving that end, because he has promised his support to all measures to stamp out pornography. That I would expect of him, and those hon. Members who have the Minutes of Evidence before them will see that the first words of the Home Secretary's memorandum are:It is the accepted function of Government to suppress pornography.At present, pornography is not being suppressed, and I therefore hope that my right hon. Friend and the hon. Member for Stechford (Mr. Roy Jenkins) will work together in securing that a Bill to achieve this purpose is passed into law as soon as possible.
§ 6.38 p.m.
§ Mr. Mark Bonham Carter (Torrington)
I am very grateful to have the opportunity to speak in this debate this 1017 evening, and although what I may say may be liable to misunderstanding, I must declare my interest in the subject, being associated with a firm of publishers, one I may say, with an impeccable reputation.
We are concerned from time to time with this question of obscenity, particularly since 1954, when for some absolutely unaccountable reason the Home Office decided that it was going to clean up the world of literature. Indeed, recently we have taken our courage in both hands and we have published a book by the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) himself, which is, I must say, a cautionary tale for all politicians who feel that they have a reputation for depravity or corruption.
I am also very glad that the Government have found time at last to debate this Report of the Select Committee. Whatever their motives for doing so may be, the circumstances in which they have found time must be somewhat of a lesson to those of us interested in producing a more liberal society in this country. It would appear that the only way in which we can make the Government consider liberal measures of this kind is by frightening them, by fighting elections against them or by threatening to discuss matters which are even more distasteful to them. However, we must be thankful for small mercies and simply take note of this fact for future reference. In particular, we should be grateful to the Select Committee for its Report, to the hon. Member for Stechford for his persistence, and also, I think, to Sir Alan Herbert.
Speaking in one sense as a publisher, I think that I can say that it would be the almost unanimous opinion of publishers, printers and authors that it is necessary to change the law in some respects. I agree with the hon. Member for Steohford in saying that we should not consider that the present situation is a relatively satisfactory one which we can go on living with. It is at present, from a practical point of view, extremely unsatisfactory, as I hope to show, and it is a matter of some importance and urgency that we should take this opportunity of making progress.
The guidance given to the publisher, author or, indeed, to the police in this matter is extremely vague. The prosecutions of 1954 indicated how arbitrary and unpredictable can be the way in which the 1018 law is enforced. The evidence given by the Public Morality Council to the Select Committee brings that out very well The Council in its evidence said;One justice will interpret the law in one direction and may come straight out with a very strong denunciation of the matter.…Before another justice, the magazine may very well get away with it.This is a very unsatisfactory state of affairs for all concerned with the publication, the writing or the printing of literature.
§ Mr. Peter Rawlinson (Epsom)
Does the hon. Gentleman appreciate that, whatever happens, it will always be principally an issue of fact? A jury may decide one way or another. There are many cases of postcards and photographs, for instance, which, put before one jury, will result in acquittal and, put before another jury, will lead to conviction. It seems that that would always happen, though I appreciate much of what the hon. Gentleman says.
§ Mr. Bonham Carter
I accept the point made by the hon. Member for Epsom (Mr. Rawlinson). All I am saying is that it seems to me that the suggestions made by the Select Committee, which have been embodied in the Bill introduced by the hon. Member for Stechford, help us to make the vagueness slightly less vague, and they do represent an advance on the present situation. I should not like to go further than that. It is clearly a matter which will always be open to different judgments. We found, particularly in 1954, that it was very difficult to tell why one book had been chosen for prosecution rather than another. One reason for this, I think, is that the English law in this matter appears to work on a curious kind of pleasure principle: anything which has anything to do with sex is automatically dangerous, while anything which describes brutality, violence or pain is, for some reason, outside the scope of the law altogether. In this connection, I should like to mention something from my own experience.
In 1954, we were publishing a book which, in the light of the Home Office campaign, we regarded as possibly dangerous. We thought it a remarkably sincere and compelling work, even if it was at times, to use the jargon of the trade, 1019 somewhat frank. However, we took expert advice on it. At the same time, I read the book myself, with this particular aspect of obscenity in mind. The experts were particularly worried by the frequent use of one four-letter word and by a scene in a brothel. I, on the other hand, found that the use of the word was inevitable in the context, which was a military one, and one could not tell the story and omit the scene in the brothel. I was horrified and shocked by a scene in which a man was kicked to death. This did not worry the experts at all. That passage in the book I should not have wanted any adolescent to read. The other passages seemed to me, depending on the person, the circumstances and age, relatively speaking, harmless. I recount that experience simply as an example of the extreme vagueness of the way in which the law works at present and of the need for taking every step that we can to improve the existing state of affairs.
I wish to emphasise the importance in our view of, in the original words of the Select Committee, considering the effect of the work as a whole, which I think the Home Secretary now suggests altering to "taken in its context." I am not sufficient of a lawyer to know what difference this may make. Passages taken in isolation or out of context can almost always be misinterpreted. There are passages in the Old Testament which, if taken out of context, a publisher would hesistate to publish today. It is only in the context of the work as a whole that these matters can be judged.
If the context is important, even more important is this very difficult matter of the artistic merit of the work as a whole. Although it is easy to tell the difference between the "Song of Solomon" and, let us say, a collection of salacious photographs, it is, as has been said already, in the borderline cases that the problem arises. It seems to me, therefore, that there are three problems which we must discuss today.
The first is how to decide this question of artistic merit. The second is what is meant by depraving and corrupting." Third, and closely linked with the second, is the question of who one has in mind as the object of the depraving and corrupting. This last question raises a point made by Mr. E. M. Forster in his evidence, when he spoke of 1020the trouble of the average man and his sense of decency.I cannot help thinking that works of art are not created by average men, that some of them are not intended for average men, and, lastly, in a liberal society, one of the things which is to be assumed is that average men should be responsible for themselves. No one is forced to buy or forced to read a book which shocks him Literature is far less intrusive than the television screen. Nor can the law take over the responsibility of parents and teachers for supervising the reading matter of adolescents. As Mr. Justice Stable pointed out, literature cannot be reduced to the levelthat is suitable for a 14-year-old school girl.We are reduced, therefore, to the problem of defining "depraving and corrupting" and defining artistic merit.
In defining depraving and corrupting," it is important to eliminate one idea which also is based on what I call the English pleasure principle, the idea that anything which is erotically stimulating is automatically depraving and corrupting. This is a point dealt with extremely effectively in Mr. Trilling's essay on the book Lolita and dealt with extremely effectively also by Sir Kenneth Clark in his work The Nude. After all, what the law must be primarily concerned with is not people's thoughts, or even their fantasies, but their actions. Therefore, in discussing this question of depraving and corrupting, what we are primarily concerned with is literature which will make people actually do depraved and corrupt things. This is one of the many reasons that it has always seemed to me that the action taken against Ulysses was particularly idiotic. Although Ulysses may disgust and it may lead to unpleasant thoughts, I cannot believe that anyone who has ever read Ulysses has been prompted by it to indulge the lusts of the flesh.
Lastly, I come to the question of artistic merit and the cases on the borderline. If it is accepted that literature need not take into account on every occasion the average man's sense of decency, need not be designed on every occasion for a 14-year-old schoolgirl, that it should not be judged as depraving and corrupting unless it makes people act in a depraved and corrupt fashion, how, then, is one to judge 1021 artistic merit? I cannot see any criterion other than the consensus of the experts. Although it is much more difficult in the arts to assess the expertise of the experts—and, as has been said, expert witnesses such as doctors and lawyers often disagree in a court of law and in politics, if they are economists—no one would deny that there is a body of opinion which is recognised as being in some sense expert in this matter. Certainly, publishers recognise that certain people have expertise in this matter. I would have thought it reasonable to hope that in any amendment of the existing law a defendant would be allowed to call on expert witnesses to defend the artistic merit of the work which he has written or published.
Finally, together with the hon. Member for Stechford, I hope that as a result of the debate hon. Members will not think that we have done our job. Unless the debate leads to a consolidated and improved legislation, I think that we will have failed.
§ 6.51 p.m.
§ Mr. Peter Rawlinson (Epsom)
agree with a great deal of what the hon. Member for Torrington (Mr. Bonham Carter) said. I was interested to hear him declare his interest, and as a lawyer I, too, should declare mine, because any changes in the criminal law affect the business and practice of the lawyer,
There is overshadowing this debate the knowledge and appreciation of the vast quantities of pornographic matter, which has been referred to already by my right hon. Friend, which are displayed and sold and which are rightly the subject of continuous police action. Anyone who has been concerned with cases involving these books of sheer pornography would realise the great duty that rests upon the law to ensure that this filth is stamped out as quickly and efficiently as possible.
While I strongly support what the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) said, and the general principles he enunciated, there are grave difficulties, which I think he appreciates perhaps better than Sir Alan Herbert or the Editor of The Times, who seem to think that this is a simple matter which can he easily settled by a decision of this House. The criminal law needs clarity and certainty. This is a very 1022 difficult sphere in which to find that certainty and to discover that clarity. There are the two problems which have been already discussed, namely, what is artistic and literary merit and what is obscenity.
I observed with interest what Mr. T. S. Eliot said in his evidence to the Select Committee:I think books of literary merit which are of some antiquity and fame seem to me to free themselves of the taint merely by the passage of time. That is a difficult point of view to defend, but I think we do feel it when we see the rather absurd objections raised to well known works like Boccaccio.Most hon. Members would agree with what Mr. Eliot said, for it is in many ways hard to say that merely the passage of time cleanses something which may be said to have in it a certain amount of obscenity. I thoroughly agree with hon. Members who say that the only possible way of solving the problem whether a work has artistic and literary merit is by the production of expert evidence.
With regard to the definition of obscenity, I am glad that the Select Committee rested itself four—square upon the judgment in Regina v. Hicklin. But, here again, there are difficulties. The Director of Public Prosecutions objected when it was suggested that an alteration should be made and the question of intent should be considered. He said that if the intention was merely to publish for homosexuals or prostitutes that might be a valid defence. And what is the test of "likelihood" which the court has to decide? These are very grave and difficult matters which are not so easily solved as has been suggested.
Another suggestion has been made about which I cannot recollect the view of my right hon. Friend, namely, the right of the author to be heard. But how is an author to be heard unless he is one of the persons charged? If he is not charged, then it must be of his own volition that he appears to give evidence. But does the Society of Authors, Playwrights and Composers accept the position that it may be that an author is not available and cannot possibly give evidence for the defence? It might then be inferred that he is not prepared to defend his own work.
I am very much against the suggestion made by the Select Committee that an author should, somehow, be brought in 1023 as a third party to give evidence, as happens in civil actions. If he wishes to give evidence, he should certainly give evidence, but that should be part of the expert evidence called on behalf of the defence.
§ Mr. Sydney Silverman (Nelson and Colne)
Let us assume that a given work comes well within the definition which brings the publication of it into conflict with the criminal law. If such a work is not published the question does not arise, but if it is published it must be with the consent and the co-operation of the author. Can the hon. Gentleman imagine a case where it would be proper to prosecute the publisher, but not the author?
§ Mr. Rawlinson
That does happen. There have been prosecutions in which the publisher has been prosecuted but not the author. Why that should be so is one of the evils which those of us who are in favour of legislation would try to prevent. I think that the author should be called to give evidence in his defence. However, I do not think that it is practicable, in the administration of the criminal law, that he should be given some status before the court independent of the accused, namely, of the publisher and the persons standing accused.
§ Mr. Roy Jenkins
In a prosecution under the Obscene Publications Act, 1857, the author can be treated as an aggrieved person and would, therefore, have the opportunity, if he so wished, to give evidence in his own defence. What does the hon. Member say about that?
§ Mr. Rawlinson
It would not be very difficult if he wished to give evidence in his own defence. It is quite right that in any prosecution the author should be permitted to give evidence and, if he wishes, explain why he wrote in the way he did. But I do not think that he can be brought in in the informal way which I understand is suggested by the Select Committee.
I want now to turn to what my right hon. Friend said about expert evidence. He referred to what Mr. Eliot said and was well answered by the hon. Member for Stechford. Mr. Eliot said that there may be the more liberal-minded authors on the one side and, on the other side, the 1024 more prudish authors, and the jury must eventually decide. Surely that is what the jury always has to do.
Juries continually listen to doctors who speak with great authority, many years of experience and many degrees after their names, and who give, maybe, categorically different evidence, mainly, of course, before judges sitting alone, but sometimes before juries. Equally, engineers give categorically different evidence as to why a machine broke or failed at a particular moment, and the tribunal has to make up its mind which evidence it prefers. This would be an issue of fact for a jury to decide and I think that a jury is entitled to have, which it is now prevented from having, the benefit of expert evidence which, I understand, could quite feasibly be provided.
The influence of judges on juries will not be overlooked, certainly by hon. Members who practise the profession of the law. A juryman listening to a dispute between two parties knows that Mr. X, on the one side, has been paid a fat fee to appear for the plaintiff or prosecution and that Mr. Y, on the other side, has been paid a fat fee to appear on behalf of the defence. If a jury is in any doubt or is swayed by the magic of these gentlemen it will listen to the words of the judge.
As there are different views among right hon. and hon. Gentlemen, so there are differences in judgments. There are many hon. Gentlemen opposite with whose political views I disagree, but I may have the greatest sympathy with some of their other views, as expressed on matters which we discuss in this House. I am sure that we are all flabbergasted at the differences that are expressed on matters such as vice, or drink, from hon. Gentlemen for whose judgment in other respects we have the highest regard. So it is with judges.
I had the good fortune to be present in court when Mr. Justice Stable made that tremendous charge to the jury. I had the good fortune to hear it and to see the manner in which it was delivered. It created an impression on my mind which certainly had never been created on it in the courts before. It made me feel emotionally excited to hear a judge so charge a jury in the middle of the twentieth century.
1025 The only equivalent impression of that kind, but on a different level, was when I heard the late Sir Patrick Hastings crossexamine the late Professor Laski. But when juries are liable to be charged by judges with such different views they are surely entitled to hear the expert evidence of people who can give them some impression whether there is artistic or literary merit in the work upon which they have to decide.
There is also in this class of case picture postcards, in which there is a very big and robust English trade. In the English seaside resort there are quantities of these postcards of a very frank nature, to use the technical expression employed by the hon. Member for Torrington (Mr. Bonham Carter). These postcards have very frank depiction and very frank comment underneath, which sometimes results in prosecution. A jury is perfectly fitted to decide whether these postcards are obscene or not. I have had cases where about 60 cards have been gone through by the jury, perhaps with entertainment, and the jury has decided to convict in only some of the cases. We could not get a better tribunal than an English jury looking at the English picture postcard. But when it comes to questions of artistic and literary merit, juries should have expert evidence before them. I hope that my right hon. Friend the Home Secretary will think again on this matter, that there should be that special evidence.
I come back to what I have said before. This is a matter in which the Attorney-General should give a lead to prosecution. I appreciate the incredible amount of labour which is laid upon the back of an Attorney-General. He has the task of advising, as principal Law Officer of the Crown, of explaining in this House, and of appearing for the Crown. It is a tremendous burden, but, nevertheless, it has to be undertaken. The Report says that in his memorandum to the Select Committee my right hon. and learned Friend the Attorney-General said;It is a fundamental principle of English criminal law that proceedings may be instituted by private individuals.I would certainly agree with that to a limited extent. But this is not the kind of proceeding in criminal law which should be brought by private individuals.
1026 The Attorney-General is assisted by one qualified secretary and two qualified assistant secretaries. It seems precious little assistance to enable him to conduct the vast business that he has, and, therefore, it is the duty of Parliament to provide him with the staff which will enable my right hon. and learned Friend to bear the responsibilities we lay upon him, and to take over these other matters which are of great public concern and which should be responsibly accepted by him.
These are all the matters which I wish to raise in support of the Select Committee's Report. I am glad that the Home Secretary has adopted so much of it as deals with pornography. There are other matters in which I think he should go further, and I believe that it would ultimately be of very great assistance to the courts if my right hon. Friend could change his mind over the admission of expert evidence.
§ 7.6 p.m.
§ Mr. Ede (South Shields)
I am not quite sure whether we have to thank my right hon. Friend the Member for Dudley (Mr. Wigg) or Sir Alan Herbert for the fact that we are discussing this matter this evening. The speech of the Home Secretary was so inconclusive on many points that I see no reason for Sir Alan Herbert to feel that he should now withdraw from the East Harrow by-election.
I was a member of this Select Committee. By one of those curious things that happen, I find I am the only one here now of the four who voted on the side on which the Home Secretary has come down this afternoon. One has become an Under-Secretary in the Government, another has been called to the House of Peers, the hon. Member for Aylesbury (Sir S. Summers) is not here so I alone am left to say to the right hon. Chairman of the Committee that second thoughts on the part of the Committee may prove to be better. I am not going to stress the point.
About the whole issue we had, when we were discussing the Report, very frank and friendly exchanges between hon. Gentlemen who, on this matter, differ very considerably. We argued under the right hon. Chairman's direction at some length. When we came to decisions, we accepted them. Although I felt very strongly at the time on the issue on which there was a tie, I did not feel—and I 1027 gather that the other three hon. Members who voted with me on that occasion did not feel either—in the atmosphere which had been created that it would have been right for us to vote against the Report as a whole. It may be there were other matters on which the decision was taken the other way by some members who loyally accepted at the end the general conclusion we had reached. We presented the Report to the House as a whole as the result of serious and conscientious discussion of a matter on which differences of opinion are quite legitimate.
We were anxious to submit a constructive Report to the House that would make easy the task of getting legislation at the earliest possible moment. I hope that as the result of this debate it may be possible for the Home Secretary, my hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins) and other persons keenly interested in the matter to have a discussion that will enable a Bill to be presented at an early date with the intention of securing its enactment during the current Session. I do not know how long the winter will be, but I hope that this will not he one of those matters which will be left over for some future Parliament to deal with. I myself do not know what authority the hon. Member for Torrington (Mr. Bonham Carter) had for saying that the prosecutions in 1954 were part of a Home Office campaign. That is a charge against a Government Department which, I assume, he is capable of proving, if put to the test.
§ Mr. Bonham Carter
I thought that what I said was that it had the appearance of being part of a Home Office campaign to clean up the literary world. Perhaps my words were rather highly-coloured, but I do not think that anyone in that world at that time would have felt it as being anything very different. Certainly a series of prosecutions were initiated, such as could not have happened for many years before, against a series of books which most of us, in the normal course of events, would have thought were perfectly respectable hooks.
§ Mr. Ede
I was not responsible in 1954, and I should like to have known exactly what was happening in the Home Office at that time. Of course, many people who are the subject of prosecution 1028 imagine that they are also the subject of persecution by people in high places. I myself would be surprised to hear that it was the result of any direction from the Home Office. Certainly, any chief constable or any private citizen is able to initiate prosecutions on these matters. In fact, I recollect during my own Home Secretaryship that a young woman who was a member of a Catholic Women's Guild in Birmingham brought before the Birmingham stipendiary magistrate a number of prosecutions which resulted in convictions. It may very well have been that the prosecutions in 1954 were originated by different chief constables on their own responsibility.
§ Mr. Bonham Carter
The prosecutions to which I referred and to which the Home Secretary referred earlier were, I think, on the initiative of the Metropolitan Police.
§ Mr. Ede
In that respect I know that the Home Secretary is responsible for the Metropolitan Police, but the solicitors of the Metropolitan Police do not ask him whether they shall initiate prosecutions against various people. That is not one of the matters on which the Home Secretary has the power to intervene, owing to the particular way in which his powers as the police authority of the Metropolitan Police are decided.
§ Mr. Roy Jenkins
In view of the generous remarks of my hon. Friend earlier, the last thing I would wish to do today is to get involved in a difficult argument with him. When the Permanent Secretary from the Home Office was before us, the hon. Member for Berwick-upon-Tweed (Viscount Lambton) and myself questioned him very closely on this point. I think that on reading that evidence it is at least open to the interpretation which the hon. Member for Torrington gave it.
§ Mr. Ede
I am not going to dispute that. I do not intend to get involved in these questions of doubt. But a definite statement was made that these prosecutions were the result of a Home Office campaign. When the hon. Gentleman reads his speech tomorrw, I think he will find that he did not put in the qualifying words which he subsequently did.
I think it is important that, as far as possible, there shall be equality of treatment throughout the country on this 1029 matter, and that is why I supported the view that the Director of Public Prosecutions should initiate prosecutions. The standards of chief constables on these matters differ very considerably. The standards adopted by watch committees also differ very considerably, and it is highly desirable that publishers and authors should not be left in the position that a prosecution might be successful in one part of the country but not in another.
While we shall always have the difficulty that judges and juries will take different views, I think it is less likely that there will be disparity of treatment if the prosecutions are in the hands of the Director of Public Prosecutions rather than left to the initiative of chief constables and of private citizens.
I share the view that was expressed by the hon. Member for Epsom (Mr. Rawlinson) that the direction given to the jury by Mr. Justice Stable gives, as far as I can ascertain from conversations, the ordinary enlightened view of the British public on this matter at the present time. I do not think that it would have been the view of a similar public fifty years ago. I think that it stated in modern terms the feelings people have in regard to this matter at the present time. I have no doubt myself that it would be advantageous if we could get the spirit of that pronouncement in legal phraseology into an Act in a form which would be comprehensible to jurors. I admit that is a very difficult thing to do, because it is astonishing when we ask Parliamentary draftsmen to put thoughts—whether commonsense or sublime—into Language suitable to a Parliamentary Bill, how differently they sound to the ear and look to the eye when the draftsmen have finished with them.
There is one other thing which I wish to say about this question of artistic and literary merit. I did on several occasions ask some of my colleagues on the Committee whether it was necessary to have some obscenity in order that a work should have literary or artistic merit. I do not hold that view myself. I think that we have to be very careful how far we emphasise the need for pardoning some obscenity with the general argument on which the case for a Bill of this kind is based. I will say no more about it than that. My hon. colleagues who 1030 served on the Committee will know that from time to time that appeared to be one of the issues we were considering.
I have tried to give to the House my idea of the spirit in which the Committee worked. I voted for the Report as a whole. There were one or two points, which I have indicated, upon which I had slight misgivings, but I know that on some of the things where the argument seemed to go my way in the Committee some members had their own misgivings about the decisions reached on those issues. Apart from myself, I think that the Committee was so representative of the House that the right hon. Gentleman should be able to feel that if he goes forward on the basis of the Committee's Report he ought to be assured of a reasonable majority in the House on the major issues that may be involved. I hope that we shall have a Bill during the current Session.
§ 7.20 p.m.
§ Viscount Lambton (Berwick-upon-Tweed)
I should like to welcome the debate and also to welcome rather more warmly than have hon. Members opposite the conciliatory speech of my right hon. Friend the Home Secretary today. I wish to say only a few words, but I should like to point out what was my purpose in introducing the Bill last year which resulted in the Select Committee's Report that we are now discussing.
Every so often during the last 100 years, as hon, Members have pointed out, we have had what one might almost call a false wave of morality throughout the countryside. The Decameron is burned in some provincial towns, libraries are closed to certain books, and a few comparatively innocent authors and publishers suddenly find themselves in the law courts, charged with publishing an obscene libel. Then the fuss slowly dies down again. I think that the real cause of this trouble and of this wave of morality is that the publication of a vast amount of genuinely obscene literature goes on throughout the length and breadth of the country and is in no way abated. In other words, while genuine literature suffers, obscenity itself comes to very little harm.
As has been made apparent in the evidence put before the Select Committee, certain authors, printers and publishers find themselves constrained and 1031 hampered by a law which nobody understands and which enables anyone to bring an action for obscene libel gainst a publisher or author if he wishes to do so. This state of affairs appears to be so ridiculous that I think it was the Committee's intention to see whether it could not be remedied. At least, it was the intention of myself and some hon. Members opposite to see whether we could not produce a Bill which would allow reasonable literature and, at the same time, would deal far more ruthlessly and effectively with the undeniably obscene.
There were many distinguished members on the Committee, from both sides of the House, and we managed, in the end, to agree on a Report which we thought achieved those aims. It may well be that we were optimistic and that the effect of our recommendations might not have been successful. I must say here that I am always very disconcerted by any dealings that I have with the law, because what appears to be one thing in plain English may apparently mean something else in legal language.
I should like to make two references to the emendations made or suggestions put forward by the Home Secretary. The tirst referred to "in the context". I do not see how that is more satisfactory than "taken as a whole", but I am sure that it would be far wiser to leave this matter to further discussion. As to the calling of expert witnesses, the Home Secretary quoted from the summary of the Select Committee's recommendations the words:A defence of literary or artistic merit should be afforded.And he said that this was impossible.
But I should like to draw attention to the recommendation put forward by the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) in his Obscene Publications Bill which came before the House recently. It is quite different. It reads:Provided that in deciding whether or not a publication is obscene the court shall take into consideration any evidence proffered, whether by the defence or by the prosecution, as to the literary, artistic, scientific or other merits of the said publication.I certainly agree with the Home Secretary that Recommendation (iv) is perhaps difficult to operate and that it would be more satisfactory if we had some mention of his 1032 opinion of that paragraph which I have just read from the Obscene Publications Bill.
I cannot help thinking that this is an opportunity for the Law Officers to put right any defects that may have been in the Committee's recommendation, and I hope that we may still have a Bill presented, after discussion or perhaps after a further Committee has met upstairs. For surely it is desirable to encourage literature, and desirable to increase the penalties which can be levied on authors and publishers who merely write and sell the very basest of literature. I hope that eventually we shall have a Bill which will serve those two desirable ends.
§ 7.25 p.m.
§ Mr. Eric Fletcher (Islington, East)
Like other hon. Members who have spoken, I very much welcome the fact that the Home Secretary has afforded us this opportunity of ventilating this subject. I was not a member of the Select Committee but, like the hon. Member for Epsom (Mr. Rawlinson), I have from time to time to advise professionally on whether a certain intended publication may or may not offend against the law of obscene libel, and from time to time I have had to defend prosecutions under that law.
I think that we are all agreed that the law is in a state of very great uncertainty which makes it very difficult for practitioners to advise and for authors and publishers and others to know how to act. There is common agreement that the law is in need of change. I hope that the Home Secretary will not take the view that because there are numerous technical difficulties and differences of opinion between us as to what the law should be, the difficulty of attaining perfection in a revised law is any excuse for not acting at all. It seems to me that any change in the law, whether on the lines recommended by the Select Committee, on the lines of the Obscene Publications Bill introduced by my hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins), or as contemplated by the Home Secretary, would be an improvement on the present situation.
If, subsequently, it were found that there were defects, further changes could be made, but it has now become almost a scandal in the country that the law of 1033 obscene publication has remained unchanged and has given rise to so much uncertainty. As has been pointed out, we are in the absurd situation that there is no real security for the authors and publishers of serious literature which may contain doubtful passages, whereas on the other hand there is a vast and increasing volume of plainly pornographic literature. It is high time that something was done to deal with both aspects of this serious situation.
We have been told that out of about 20,000 pornographic books produced a year, only 506 were destroyed last year. If that is the fact, then, with that background, it seems to me slightly academic that we should be mainly concerned with the point which troubles the Home Secretary so much—whether the defence of literary and artistic merit should be afforded. I can quite understand my right hon. Friend the Member for South Shields (Mr. Ede) having some doubts whether or not such a defence should be afforded. I might have had the same doubt at one stage but, having read the Select Committee's Report, and having heard the debate, I have no doubt whatever that it is desirable that such a defence should be available.
If we get some reform in the present law which enables the Home Secretary to deal effectively with the growing abuse of pornographic literature which has no literary or artistic merit, does it much matter whether other literature, which may have some literary or artistic merit, and about which there may be a conflict of view, is allowed to be published and distributed with impunity? That seems to me to be a relatively small matter. I should have thought that not only in the interests of liberalism, but in the interests of the Home Office in dealing with pornographic literature, it would have been much more important to have had a reform of the law to enable the Home Secretary satisfactorily and firmly to deal with the clearly pornographic publications than to cavil about reputable literature which, on evidence, could be said to have literary and artistic merit.
There are two other points of detail on which I want to comment. In the draft which he read out, the Home Secretary seemed to think that the phrase "in its context" would be preferable to the phrase used in the text of my hon. Friend's Bill which introduces into the 1034 definition of obscenity words to the effect that a publication should be deemed obscene only if its effect as a whole tends to deprave and corrupt. My opinion, for what it is worth, is that the use of the words "as a whole" would he a considerable improvement on the present state of the law, and would remove the existing risk to an author or publisher of being judged and perhaps convicted on isolated passages, or parts of a book, intended to be read as a whole.
The Home Secretary gave us as an illustration the case of a compilation of short stories, one of which was clearly obscene. He seemed to think that the publisher might try to put a thoroughly obscene story in the midst of a larger volume of short stories and, on that ground, try to escape liability. I should have thought that was very unlikely. If there were such a risk, I should have thought it worth taking, but I should have thought that under the definition in the Bill, if there were any short story obscene in itself, it would not escape condemnation merely because there were other stories which were not obscene in the same volume. As there is a difficulty about these verbal definitions in the Bill, will the Home Secretary consider the desirability of using both phrases so that the definition includes the words "as a whole" and the words "in its context"?
The other point to which I invite the Home Secretary's attention is the position of the printer. One omission from my hon. Friend's Bill-I do not know whether it is deliberate-is that in Clause 2, which is the Clause providing penalties, there is no mention of the printer. It is made an offence to distribute, circulate, sell, or offer for sale an obscene publication, but apparently it is not an offence to print an obscene publication.
It is notorious that many glaringly obscene publications are printed by a particualr type of printer and would not be printed by reputable printers. It is sometimes easier to find and deal with a printer than with anybody else. It is also significant that the British Federation of Master Printers in giving evidence before the Select Committee was apparently concerned that its members should not enjoy any special relief. I understand that it is the view of reputable 1035 printers that if there is to be a liberalising Measure which protects them as printers of reputable books, they see no objection to printers of obscene publications being punished in the same way as the vendors or authors.
§ Mr. Ede
Did my hon. Friend notice that one of the difficulties is that at present printers occasionally act as censors of books, although there may be considerable claims of literary and artistic merit for those books, and that they say that they will not print a book because of the risks they will run?
§ Mr. Fletcher
I had not noticed that, but I am aware of the fact. It is one of the difficulties in the present uncertainty of the law. Because the law is so uncertain, printers feel obliged to impose a kind of censorship on themselves.
§ Mr. Fletcher
They impose it on an author because, as the law now stands, printers are equally guilty with authors and are often easier to deal with since a printer generally has an establishment, with plant and machinery, and can often be dealt with more easily than an author who may not be easily found.
§ Mr. Kenneth Robinson (St. Pancras, North)
Is my hon. Friend suggesting that a printer should be guilty of obscene libel if he prints something which is not for sale and not for general circulation, and which is not offered for sale?
§ Mr. Fletcher
No. I was suggesting that the offence should apply in the case of an obscene publication which is printed for sale. I must admit that I have not considered the case of something which was printed not for sale. If it is something printed privately and not for sale, I would not have thought it necessary to create an offence. [An HON. MEMBER: "How would the printer know?"] In normal cases, the printer would know.
In conclusion, I ask the Home Secretary to clarify a remark towards the end of his speech which appeared to be ambiguous with regard to his future intentions. We all welcome his general benevolent attitude towards the proposals 1036 of the Select Committee and the Bill. He then said that there would be negotiations. This is a matter of great interest to all hon. Members. I hope that the Home Secretary will go further than he did in his opening speech and will tell us one of two things. I hope that he will tell us that he will find time for my hon. Friend's Bill to be debated on Second Reading so that it can go to Committee, and, as a non—party Measure, receive that kind of careful consideration by a Select Committee which is required.
If the right hon. Gentleman is not prepared to find time to enable my hon. Friend's Bill to be given a Second Reading, can he undertake that he will introduce a Bill of his own which the House could consider during the present Session? I am sure that that is the general wish of the House.
§ 7.38 p.m.
§ Mr. Ronald Bell (Buckinghamshire, South)
I agree with previous speakers that the House should be very grateful to the Select Committee for the work it did in presenting its Report. We should be grateful to hon. Members who have prepared Bills and put them before us. I am disposed to support the recommendations of the Select Committee and the Bill of the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins).
I do so with some reluctance and only as supporting an improvement in the law which will still remain unsatisfactory after it has been improved in that way. I am impressed most by the disadvantages which attach to the present state of the law and to those disadvantages which will persist if we alter the law as proposed.
The present disadvantages are obvious enough. Works which are reputable literary productions are imperilled. At the same time, products of undoubted obscenity and pornography proliferate substantially unchecked. That is the position under the present law, and I do not think that anybody disputes that this is so.
Certain proposals to change the law have been put before us. I support them for what they are worth, but when one considers the disadvantages, some mentioned by my right hon. Friend the Home Secretary, one is impressed by the difficulty and complication of the process which will remain.
1037 One first has to consider whether a work tends to corrupt and deprave. What constitutes corruption is itself a matter of perennial controversy. We live in an age which tends to take for granted most of the great disputes in human affairs, an age of declarations of human rights on this, that and the other. People sometimes assume that all the great moral questions have now been decided one way or another and that we have to worry about only the administration and application of the great charters of human thought.
§ Mr. Niall MacDermot (Lewisham, North)
Can the hon. Member inform us if any evidence was received by the Select Committee tending to show one way or another whether the increase in pornography—which all sides agree to have taken place—has produced any increase in corruption, and, if so, what its nature is?
§ Mr. Bell
I am grateful for that intervention. I speak with reservation, because the evidence has come in two bits which has made many of us lose track of the first part as we have read the second. As I remember it, and others will remember better, there was no evidence on that point. My impression is that no increase in corruption has resulted or will result from any fluctuations in the output of pornographic literature.
What tends to corrupt is itself a matter of legitimate controversy, and opinions on it change from time to time. Having decided that, one has to decide to whom a work was likely to be distributed, circulated, sold, offered for sale, and so forth. My right hon. Friend put forward a suggested change in the wording. to which I am not at all attracted. He suggested that in determining that question, regard should be had for the circumstances in which the book was found, or was to be published.
That appears to me to be harking back to the celebrated case in 1954 which started all the controversy. In passing. I remind hon. Members that the prosecution for the destruction of The Decameron had been referred to the Director of Public Prosecutions and presumably proceeded on that recommendation. In that sense, it was a Director of Public Prosecutions prosecution. The argument put forward on appeal in The 1038 Decameron case clearly was that The Decameron was not an indecent book in certain places—perhaps in certain libraries—possibly in certain shops—while in others it was.
What my right hon. Friend's suggestion comes to in practice is that the Government—or the Establishment, if one may use that phrase—are to control the avenues of sale of certain kinds of works. If they go a little lower in the hierarchy of shops, the books become obscene publications with all the implications that has for the man who wrote the book and the man who published it. It is an extraordinary doctrine that a book may he an obscene publication in one shop and a fine example of literature in another. One reflects in passing that it did not save Jean Genet's works that they were to be sold by Blackwell's when seized and that their ultimate destination was the Birmingham Municipal Library. That, however. is merely a passing reflection.
Then, having coped with these two indeterminate questions, we come to the third one, a further defence that the book is possessed of literary merit. That is a matter of keen controversy between different people, and, I think, between my right hon. Friend and the supporters of the Bill. That is something that I am prepared to support as an avenue of necessity, but I see great disadvantages. I am quite sure that each side would be able to get an author as expert witness—we never fail to get a doctor on both sides; and I am sure that both give their evidence in the utmost sincerity. No doubt, courts manage to reach decisions, but when we come to literary merit we are coming into a rather rarefied atmosphere.
The question which comes to my mind is this. When one first looks at the work and decides whether it tends to deprave or corrupt, one then decides into the hands of what kind of person it is likely to fall. Then one decides whether it has enough literary merit to counterbalance any element of obscenity that one finds in it. Have we not by now begun to pass out of that sphere in which the criminal law can exercise a useful function?
I am forced by the argument to say that the conclusion to which I have come is that the right course is to wipe out the whole law of obscenity in relation of 1039 books. I do not think that any disadvantage would be encountered by doing so. I do not believe that the flow of pornography would be in any way increased, just as I do not see that it is at present checked by a law which, we all admit, goes too far.
I know that as a sort of makeweight in the Bill two—possibly three-provisions are included which, it is said, will tighten up the administration of the law so that while allowing greater freedom for literature at least there will be greater severity in publishing pornography, assuming, of course, that it is possible to decide between the two.
While I appreciate the motives of those who have put forward these proposals, do they seriously contend that being able to search booths and vans as well as shops and not having to swear on oath that at least one sale has already taken place will really check the unchecked flood? I do not blame them for putting forward those suggestions. I am sure that they were put forward helpfully and that it was felt that they would be a counterpoise. I view them, however, with considerable scepticism and so, in their hearts, I think, do many other hon. Members also.
We all know that the stuff we deplore-the picture postcards, and so on—will continue unchecked. In any case, what I propose is only that in relation to books should the law of obscenity go. If I am asked how I distinguish between books and other publications, I reflect that when the Bill dealing with horror comics was in Committee and many hon. Members, including myself, felt the same difficulty in the opposite direction, we were assured by the Home Office that no practical difficulty would arise. Therefore, I assume that no practical difficulty will arise in distinguishing between books and other forms of publication.
My right hon. Friend the Home Secretary proposed another test, the public interest. I feel more doubt about that than about any other method that is put forward. My right hon. Friend is, I know, genuinely interested in this and has put forward this suggestion after long thought and to meet the obvious practical objections that lie embedded in the other courses of conduct. Again, however, is a criminal court, whether a magistrates' court or an appeal court, really able to 1040 judge the balance of public interest that lies in whether a work of literature shall be published? I said just now that the prosecution in The Decameron case came from the Director of Public Prosecutions. That in itself makes one pause in front of the proposal of the Committee, which my right hon. Friend the Home Secretary supported, that the Director should scrutinise all prosecutions before they are made. I support that—it is a safeguard; but how inadequate a safeguard it is.
Counsel on behalf of the Director argued for nearly two hours in The Decameron case that The Decameron was an obscene publication.
§ Mr. Bell
The hon. Member anticipates me. Counsel said:It deals very considerably with sexual gratification. It consists of a series of tales supposed to have been told by a party of persons, male and female, who took themselves away from the city of plague. It exhibited an inordinate interest in the sexual topic and introduced time after time characters whose main interest appeared to be to gratify sexual lusts.
§ Mr. Bell
And like many others. That is an accurate description of The Decameron. Of course The Decameron is obscene. It is riotously indecent. It consists of a number of separate short stories hung together by a rather thin connection. If one has to look at one of those short stories in its context what is its context? It is the same as in the Thousand and One Nights.
§ Mr. Bell
That may be a little different. If one is to consider the work as a whole, can one take out one of the stories of The Decameron entirely self-contained and publish that alone? It then does not have a context. Those stories, however, have been published in extract or in toto for over six centuries. If we are to ban The Decameron, we must ban Rabelais, which is far coarser; it has none of the spirituality of The Decameron.
§ Mr. Bell
It was not so many years ago that a magistrates' court in this country ordered to be destroyed a book written 1041 by the father of Italian prose, a great Hellenist, the friend of Petrarch, a man whose works were drawn upon by Chaucer, Dryden, Keats and Tennyson, and yet there was found a court in England to order that his work should be destroyed. There was nothing special about the edition. It was an edition already in the Swindon Municipal Library, and a copy was being sold in a bookshop in Swindon.
In those circumstances, what is the good of trying to arrive at a definition of obscenity that will exempt works of genuine literary merit? Some of them are undoubtedly obscene. I defy anyone to read Rabelais and say that it is not an obscene work. Therefore, we are thrust back as our only protection upon the question of what is literary merit. That is the crux of the whole thing. Why submit that to the arbitration of a criminal court?
On the broadest grounds, it is possible to justify the course that I suggest. What is needed nowadays is not less temptation, but more moral preaching. I was brought up on such excellent works as those of John Bunyan. I remember that in Bunyan's great work Apollyon was found straddling across the path, not suitably fenced off it.
I doubt very much whether Parliament fulfils its proper function or does anything for the public good when it seeks by Act of Parliament to make works illegal on the ground that they tend to deprave and corrupt. That is not a matter for the legislature. It is a matter to be taken care of by others. Therefore, while I support the Report and the Bill, they are not the change in the law that I should like to see effected.
§ 7.56 p.m.
§ Mr. Kenneth Younger (Grimsby)
After the near unanimous speeches that we have had in this debate, there is nothing I would wish to do except to reinforce the plea, which has already been made by several right hon. and hon. Members, that we should pass now from the stage of near unanimity to action. It may be that the Home Secretary was a little vague when he told us in his opening statement about his intentions for the future because he wished to hear what was said in this debate. If that is what will make up the right hon. Gentleman's mind for him, I do not think that he 1042 can be left in any doubt that there is broadly, and, indeed, to a large extent, even on detail, agreement in this House. certainly sufficient agreement to enable action now to be taken.
As far as I have been able to understand from the debate, agreement is complete on the later recommendations—that is to say, those purporting to strengthen the law against the trade in pornography. Although I am inclined to agree with the hon. Member for Buckinghamshire, South (Mr. Ronald Bell) that some of these alterations may not make a great difference, there is a general feeling on all sides of the House that for what they are worth, they should be implemented. They may be worth a little.
I cannot imagine that the Home Secretary would wish to deal with that part of the Report, about which he has little technical difficulty to face, without also dealing with those other earlier recommendations which have what I might call a general liberalising effect. Having listened to the right hon. Gentleman's speech and having served on the Select Committee, I feel no doubt whatever that an adjustment can now be made between the formulae chosen by the Committee and those put forward by the Home Secretary.
The only recommendation on which I want to comment is the one which seems to me the last remaining major point of controversy, that concerning the introduction of the question of literary or artistic merit. As I understand it, the present position is that juries are liable to be told categorically that they must disregard anything of this kind; strictly speaking, it is not relevant to the question which they have to decide, and anybody who wishes to give evidence only on that point would be ruled out. If the Home Secretary's general definition of obscenity which he offered us is wide enough to permit evidence to be given on this, simply as being part of the context within which the words complained of are being published, I would accept it; but it is important that this issue, however difficult it may be to define, should be capable of being put to the jury.
In the case of old works, classics, and so on, I do not think there is any doubt whatever that artistic merit is something which is treated as relevant. That is why 1043 we so rarely get a prosecution. The matter hardly ever reaches the courts. The reason why we regard The Decameron case as so absurd is precisely because it is acknowledged to have artistic merit and it is acknowledged that this is relevant, not to its obscenity—we all know that it is obscene—but to the question of whether it should be subject to prosecution. Of course, when judging a contemporary work, it is much more difficult than when one is considering something which has been judged by many generations of men.
§ Mr. Ronald Bell
Not in this country. but in the United States, works by Aristophanes have also been impounded.
§ Mr. Younger
I do not know whether the hon. Member expects me to approve of that. I do not think that we can take that as an argument one way or the other in connection with what I am saying. I am saying that it is different when there is no doubt about the artistic merit of a work because for centuries it has been recognised. Contemporary works are more difficult and there is the question whether evidence of their literary or artistic merit should be admissible or not. I do not think that if evidence of this kind were put before juries there would be much danger of juries erring on the side of undue modernism or acceptance of shockingly new standards. Those who sought to set new standards would find that very difficult.
I ask the Government not to be deterred by the remaining disagreement on this matter from taking early action. I do not think that this is one of those issues which it is fair for a Government to regard as purely a subject for a Private Member's Bill or as one of those special issues on which a Government from time to time may quite correctly show impartiality even to the point of immobility. This, after all, is part of the criminal law and involves serious criminal offences. Quite apart from that, it gravely affects the character and reputation of citizens.
It is perfectly true that this is not a party matter. When it comes to this House on a future occasion it may or may not be regarded as proper to have a free vote on it, but that does not alter the fact that there is a Government responsibility. When the Home Secretary has had as clear an indication as he has 1044 had from the Select Committee's Report and from the HOUSE-which, I believe, reflects opinion outside, showing what the country wants—I ask him to give an assurance that early action will be taken
§ 8.3 p.m.
§ Mr. Charles Doughty (Surrey, East)
We have had a most interesting debate today. We are not in complete agreement, but we are trying to approach the subject from different points of view. One thing which is clear is that this is a highly controversial and very difficult subject. Although I congratulate the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) on his audacity—perhaps I should say courage—in trying to deal with this matter by means of a Bill under the Ten Minutes Rule, that procedure is, of course, wholly unsuitable to this type of very controversial and difficult legislation.
§ Mr. Roy Jenkins
For three and a half years I have tried to deal with it by every known procedure of the House of Commons.
§ Mr. Doughty
I was congratulating the hon. Member on his courage in dealing with this problem, his latest effort being by a Ten Minutes Rule Bill, but he must know that that is not suitable to this procedure in any way. For reasons I shall give, I do not agree with some of the main points in that Bill and I could not possibly let it go through on the nod at four o'clock on a Friday afternoon. A controversial matter of this kind is not suitable for a Private Member's Bill at all, even if the hon. Member had been first in the Ballot for Private Members' Bills. This is a matter which has to be tackled by the Government sooner or later, and sooner rather than later.
There are a few points I want to bring out which occur both in the Report of the Select Committee and in the Bill introduced by the hon. Member. For a long time we had the definition of what is an obscene publication. Cases have been referred to and the definition has certainly had the sanctity of a century of law behind it, but it is still a very weak definition, a very vague one and one which throws the whole matter at the jury or the magistrate and says, "Use your common sense; do your best." The Home Secretary is to be congratulated on trying to make a better definition of this 1045 type of publication and whether it is an offence or not an offence.
The hon. Member's Bill says, in Clause I:Provided that in deciding whether or not a publication is obscene the court shall take into consideration any evidence proffered, whether by the defence or by the prosecution, as to the literary, artistic, scientific or other merits of the said publication.What does that mean? It does not mean anything at all. If it is a defence to say that although it is apparently somewhat pornographic it is really an article of great literary or artistic merit, let us say so, but the Bill does not say so. To put it mildly, it is a matter which must he cleared up and settled one way or the other. Is it a defence to say that a book which has stood the test of time is pornographic? That is one of the problems we have to face.
There are one or two other matters wish to point out to show why this Bill which was, and apparently still is, before the House should not be allowed to go through in its present form. First, Clause 4 deals with the author being allowed to give evidence as of right. As probably the hon. Member knows, there he takes a completely different view from the recommendations of the Committee as stated in paragraphs 23 and 24. The Select Committee clearly said that that should only be done if the person summoned objected and the defence did not object. The Bill says that that is all right, but it might be most embarrassing to the defence.
In a prosecution of this kind it is the accused person, whether he be the distributor or publisher, who is before the court and if he can he has to get himself acquitted. For a person who has no part in the proceedings at all—he is not in any direct way interested in the result and is not going to prison or to have to pay a fine—to give his views about the book might be embarrassing to the defence. That person might say things which irritate the jury and persuade them, in spite of what the defendant said, that the book is highly indecent and pornographic.
§ Mr. Roy Jenkins
In spite of what the hon. and learned Member says, he would not suggest that this is a Second Reading rather than a Committee point?
§ Mr. Doughty
I entirely agree with the hon. Member that it is a matter for 1046 a Committee, but it is one of the reasons why we cannot allow a Bill of this kind to go through on the nod as though it is merely a tidying up matter. It is a very difficult, long and controversial subject. Those are the principal points I wish to make quite clear to show that we should not deal with the problem in this way in trying to bring the method of dealing with the problem more up to date.
I have listened to every speech made in the debate, and practically every hon. Member, although having views of his own and having fully expressed them, has not tackled the problem of how this should be done. We thank the Select Committee for dealing with the question and we thank the hon. Member for Stechford for bringing in his Bill. although we knew that it would not get very far. This matter must be tackled by the Government. I do not think that they can take over the Bill with which they disagree so much in detail and with which hon. Members disagree and which in one important respect is quite contrary to the view of the Select Committee.
It will have to be tackled by the Government in the near future and I hope that before that happens there will be consultations regardless of the political parties to which those interested belong so as to get some measure of agreement between them so that when a Bill is finally presented to the House there will be the maximum amount of agreement, even though some may reserve a few points of disagreement. The Government, of course, being responsible for all legislation of this nature, should have the final word on the matter.
With these observations and few criticisms, I conclude what I have to say to the House. I repeat that I hope that we shall get a change in the law in the near future so as to get a better definition of obscenity whereby those who publish books, and authors, will know better where they stand and know fully the risks they run if they decide to steer a little too close to the line.
§ 8.12 p.m.
§ Mr. Nigel Nicolson (Bournemouth. East and Christchurch)
Like the hon Member for Torrington (Mr. Bonham Carter), I must disclose an interest as a partner in a firm of publishers. Very often hon. Members disclose such an 1047 interest without specifying what the interest exactly is. The interest in this case is a double one, that the publisher wishes the protection of the law against those of his less scrupulous competitors, and that the publisher wishes to be able to publish books of serious literary worth without the threat of prosecution.
About the first interest I need say very little. It is surely quite obvious that the publishing profession, like any other profession, wishes to invoke the protection of the law in defence of its own standards. If there are a few publishers who will make easy, ill-gotten money by publishing works of pornography, it is in the interests of the profession as a whole that they should be suppressed. It would be quite wrong to imagine that the publishing profession is against a censorship. It demands a censorship, because it shares with all hon. Members who have spoken in the debate a desire to eradicate pornography. Its second interest is perhaps even more important. It wishes to publish works which it considers contribute towards the stock of literature. It does not wish to be deterred from such publications by the fear of a law which in the opinion of every enlightened person is already out of tune with public opinion.
The question could be asked: Is "an obscene work of art" a contradiction in terms? I would answer the question by saying, no, it is not. It is quite possible for a work of art to be obscene. It is right that such works should be banned on the ground of the harm they might do, but that applies to very few books indeed. What we are concerned with are the borderline cases, where some critics claim that a book contains a great deal of literary merit and others claim that it contains so little that it cannot possibly excuse any obscenity it contains. I have had recently to make a decision of that sort and it has not been at all easy.
My firm was given the opportunity to publish a novel called Lolita, which has already been mentioned in the debate. It was written by a Russian emigré called Vladimir Nabokov, who is Professor of Literature at Cornell University, in the United States. There is no question but that he is a man with an already very high literary reputation. He has been described as a second Boris Pasternak. 1048 His books, some of which have been translated into English and some not, have been acclaimed by distinguished literary critics all over the world. Lolita is the first of his books which has been challenged on the grounds of obscenity.
It had an unhappy beginning. In the first place, it was published by a Paris firm called the Olympia Press, which was carrying on a running fight with the French police and the British Home Office over various other publications that it had put out under its imprint. As Sir John Nott-Bower admitted in his evidence to the Select Committee, Lolitais nothing at all like all the rest of the books emanating from that source.He went on to say that itis very much in the borderline category.When the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) asked him whether he would have prosecuted Lolita had it appeared from a more reputable press in Paris or this country, he replied,I should think probably much less likely.Since that date, Lolita has been published in the United States and has sold a large number of copies—about 250,000 to date. It is about to be published by the leading houses in Paris—not, of course, the Olympia Press—in Western Germany and in Italy.
The question arose whether it should be published in England. That was the question which my colleagues and I had to answer. When we considered what our answer should be we had regard to what had been said about it by critics all over the world—critics whose opinion we trusted—and we based our judgment upon our own opinion of the book. It is upon this latter aspect that I want to dwell for a moment.
Lolita deals with a perversion. It describes the love of a middle—aged man for a girl of 12. If this perversion had been depicted in such a way as to suggest to any reader of middle age or, for that matter, any little girl—could she understand it—that the practices were pleasant and could lead to happiness, I should have had no hesitation in advising my colleagues that we ought not to publish this book. But, in fact, Lolita has a built—in condemnation of what it describes. It leads to utter misery, suicide, prison, murder and great unhappiness, 1049 both to the man and to the little girl whom he seduces.
I put to myself the same question which I should have put had I been confronted with the opportunity to publish the work of the Marquis de Sade. I should not have published his work and I am glad that it is banned today from England. He described flagellation and other perversions in terms which suggested to the reader that they were something which he might imitate and enjoy. On the other hand, if I had to decide whether to publish the work of Marcel Proust in this country I should have argued that all his characters are desperately unhappy, largely because of their perversion.
This was the reasoning I applied to Lolita. I asked myself whether the loss to literature in declining to publish this book would be smaller or greater than the risk of offending certain people.
§ Mr. Emrys Hughes
Would the hon. Member publish the London Diary by one of my constituents, Boswell?
§ Mr. Nicolson
I prefer not to get sidetracked into Boswell. I have little time. I asked myself whether the loss to literature in this country through the non publication of Lolita was greater than the risk which one ran of offending certain people by its publication. In the end, I came to the conclusion that it was probably right to publish this book.
I always remember a remark made to the mother of the hon. Member for Torrington by Lord Grey. She asked him what was the right place of morality in public life, and after a long pause, he answered, "I have always considered that to do the right thing is probably the right thing to do". I think that it was the right thing to do in the case of Lolita.
§ Mr. Ede rose—
§ Mr. Nicolson
I cannot give way, because I have little time. I want to put two points to the Home Secretary which emerge out of this case.
First, there is apparently no method by which a book which has been banned can be taken off the list of banned books, except by publishing a new edition of the book and waiting to see whether the Director of Public Prosecutions will prosecute or not. That was the only possible way in which Ulysses could be 1050 freely sold in this country after its original condemnation, and it was the way in which The Well of Loneliness was once more allowed to be sold.
The second difficulty is this. I should like to discover from my right hon. Friend—but I know he cannot tell me—whether, if such a book as Lolita were published, there is a danger of prosecution for having published it. If I were the producer of a play I could go to the Lord Chamberlain and ask him precisely that question, and he would answer me; if I were a producer of a film I could go to the British Board of Film Censors and ask them the same question, and they would answer. I should like to ask my right hon. Friend the same question before I have gone to the expense of producing an edition and, what is much more important, before copies were available in this country which might later be said to have corrupted somebody.
Let me put it in the form of an analogy. If I want a basket of apples I can hop over the garden wall and collect the apples from the farmer's trees and hope to get away with it. Alternatively, I can knock on the farmer's door, and ask him whether he would mind if I take a basket full of apples from his orchard.
I want to use the second method, but I am obliged to use the first. I think that my right hon. Friend muttered "Censorship". I would far rather have his advice beforehand on such a borderline case as this than take the undeniable risk of offending against the law and risking a prosecution. The advice to "Publish and be damned" is very bad advice. I do not in the very least want to be damned. But I feel that this particular work is one of such outstanding merit, and has been so widely acclaimed all over the world, that a publisher must have the courage to make it available to British readers.
§ 8.25 p.m.
§ The Joint Under-Secretary of State for the Home Department (Mr. David Renton)
We have had a most valuable and worthwhile debate, revealing complete agreement on the desirability of amending the law, broad agreement as to the way in which it might be done and considerable controversy on several important details. The controversy on 1051 those details indeed reflects the disagreements which occurred in the Select Committee.
My right hon. Friend and the hon. Member for Birmingham, Stechford (Mr. Roy Jenkins), who is not in his place at the moment, have shown that their views on the matter are close enough to enable the outstanding differences on detail to be resolved amicably and with mutual understanding. We regard the hon. Member's Bill as one which could be made a suitable vehicle for amending the law. We should like to discuss with him the details of it in the light of the views expressed in the debate, and we hope that our discussion will result in fruitful understanding.
§ Question put and agreed to.
That this House takes note of the Report from the Select Committee on Obscene Publications of Session 1957–58 (H.C. 123).