§ Order for Second Reading read.9.36 am
§ Mr. Gerald Howarth (Cannock and Burntwood)
I beg to move, That the Bill be now read a Second time.
This is the second occasion in just over 14 months that the House has had the opportunity to debate the law on obscenity. Last year my hon. Friend the Member for Davyhulme (Mr. Churchill) presented the Obscene Publications (Protection of Children, Etc.) (Amendment) Bill. Although that Bill received its Second Reading by a majority of 161 votes to 31. it failed to make progress beyond the Committee stage. I want to take this opportunity to pay tribute to my hon. Friend the Member for Davyhulme for his work last year. I am quite sure that, even if his Bill failed, his endeavours resulted in the public and broadcasters taking a much closer look at the issues of obscenity and TV violence. I hope that the Obscene Publications Bill before the House today, which I am pleased to say is supported by right hon. and hon. Members on both sides of the House, will build on the foundations so ably prepared by my hon. Friend the Member for Davyhulme last year.
This Bill is evidence that these issues will not go away. There is increasing public concern about the rise in crimes of violence, the ever more ready availability of pornographic material in bookshops and the general decline in moral values. In all this, the press has a part to play. However, the central focus of attention must be the most powerful medium of all—television.
There is a sense that the existing law is not adequate to protect young people from ever more gratuitous violence and explicit sex. Of course, broadcasting was specifically excluded from the Obscene Publications Act 1959. Television is not the only influence at work creating the social climate in which we live. As we have seen very readily in recent weeks, the tabloid press is engaged in a dirty war as each paper vies with its rivals to produce the most lurid exposé of some sordid real or imaginary episode in the private lives of its victims. Hon. Members are not immune from that treatment.
§ Mr. Norman Buchan (Paisley, South)
As the hon. Gentleman takes as an example the horrors of the contemporary popular press, why are the Conservative party and, no doubt, the hon. Gentleman so keen to free television and radio, as they see it, to follow the pattern of the free press, which we so deplore?
§ Mr. Howarth
I trust that broadcasters will have heard what the hon. Gentleman said. They would be appalled to hear him say that broadcasters would act in the same vein as do some journalists in the popular press.
§ Mr. Howarth
My party has no wish to see the war that I mentioned repeated on the air waves.
There is a new Sunday newspaper ostensibly devoted to sport, more than one third of which is given over to pictures of busty women. The advertisements are for racy videos, naughty leather catalogues with a free bullwhip and devices that are euphemistically called love aids.
§ Mr. Howarth
The hon. Lady should bear with me for a little longer. I have great sympathy with what she says, and perhaps as I develop my speech she will come with me rather than be against me on this.
The publications that I have mentioned are readily available at local newsagents and on railway platforms. So, too, are the so-called soft porn magazines, although, thanks to my hon. Friend the Member for Hove (Mr. Sainsbury), they are now required to be placed out of reach of children and to present inoffensive covers. However, a glance inside reveals page after page of full frontal pictures of women in the crudest poses, with yet more pages of clinically illustrated sex aids. In one publication, which I bought at a motorway service station on my way down from my constituency at the weekend, there is a five page feature called "Readers' Wives", in which readers are invited to send in crude photographs of their wives. Even the most ardent culture vulture would think that there is not the least artistic merit in that.
There is a common strand in all this literature. Sex is a mechanical, self-gratifying business in which a loving relationship plays no part and marriage is just passé.
Is it any wonder that with the ready availability of such garbage children are struggling harder than ever to establish what constitutes proper moral values? Of course, some will say that parents must act responsibly and ensure that their children do not have access to such material, but why must parents be constantly on the lookout when going about their ordinary shopping business? What chance is there for the young adolescent who, out of natural curiosity, leafs through the sort of literature that I have described, which is available even at motorway service stations? Why should he not regard the behaviour illustrated in them as normal, sexual deviation as perfectly acceptable and marriage as an outmoded institution? Is he to regard girls as mere sex objects, and are girls—who are instinctively unwilling to be drawn into this "liberated" lifestyle—to regard themselves as abnormal if they do not comply?
I asked the Metropolitan police why such publications are so freely available and are not caught by the Obscene Publications Act 1959. They told me that, 18 months ago, the sort of magazines that I showed them would unquestionably have been declared obscene and been forfeited, but the porn merchants keep pressing further forward at the boundaries of what is acceptable. The police explained that when they go before the magistrates with the hard porn in the morning it is ruled unacceptable, but when they go before the magistrates in the afternoon with the softer porn that I have described, it is light relief for the magistrates.
§ Mr. Howarth
The hon. Gentleman may shake his head, but people become inured to such material, and that which was unacceptable 18 months ago is now acceptable. That is the problem.
It may be argued that some of the material has a therapeutic value for some people, but just as heroin addicts started with cannabis, so today's child porn consumer was yesterday's soft porn reader.
§ Mr. Mark Fisher (Stoke-on-Trent, Central)
The hon. Gentleman appears to be saying that the law is perfectly adequate, but that it is not being applied properly. He is making the unnecessary and unwarranted slur that magistrates are too soft, but in doing so he is conceding that the present law is perfectly adequate in relation to what he calls hard porn.
§ Mr. Howarth
The hon. Gentleman has completely misunderstood me. I believe that the law is incapable of proper interpretation and that magistrates have great difficulty. I dare say that some of them are soft, but I suspect that the vast majority of magistrates, who are so exposed to this material, find it difficult to interpret the existing law. That is why the Bill is before the House.
Let us leave the world of porn for a moment and consider the video shops that are springing up all over the country. One often finds videos for rent in garages or corner shops. They are stuffed with videos which have very salacious covers. Recently a constituent of mine, who is not a sensitive person and not necessarily a member of the silent majority—she is a journalist—told me that she had been shopping with her young son and had seen a huge poster advertising a video showing a dismembered hand dripping with blood. Her son had nightmares for two days after that. It illustrates the point that, as people go about their ordinary business, they must protect their children from such rubbish. Thanks to the valiant efforts of my hon. Friend the Member for Luton, South (Mr. Bright), I suspect that those who produce such videos are more likely to be prosecuted under the Trade Descriptions Act 1968 than under the Video Recordings Act 1984.
During the past 30 years in England and Wales recorded rape cases have increased by 560 per cent., from 480 in 1957 to 2,288 last year. Recorded cases of violence against the person have increased by 1,145 per cent., or twelvefold, from 10,960 to 125,500. No doubt the experts will say that the increase in rape cases can be accounted for by more sensitive policing, not only by the availability of the literature that I have mentioned. I prefer to take the commonsense view that, if women are increasingly portrayed as mere sex objects, it should surprise no one if the readers of such magazines are encouraged to treat them in that way.
§ Mr. Howarth
I hope that the hon. Gentleman will allow me to press on. I have given way a number of times.
§ Mr. Mikardo
The hon. Gentleman has saved some time by giving way, because had he not done so I should have had to spell out the point at length in a speech. In the light of what the hon. Gentleman said about women being portrayed as sex objects, why did many of his hon. Friends, including those who supported the Bill introduced by the hon. Member for Davyhulme (Mr.
1327 Churchill), and who no doubt support this Bill, shout down my hon. Friend the Member for Birmingham, Ladywood (Ms. Short) when she sought leave to bring in a ten-minute Bill to ban such publications?
§ Mr. Howarth
I cannot account for my right hon. and hon. Friends. I think that there is a marginal difference —this is why my Bill is phrased as it is—between some of the pictures that appear in the newspapers and the material about which I am talking. I have not brought it into the Chamber, but later I would be happy to show the hon. Gentleman some of the material that especially worries me. I have some sympathy with the hon. Lady. That is at one end of the spectrum. It goes down to a very deep cesspit of filth at the bottom.
Against the background of increasingly degenerate material, what can we do? No doubt some of my libertarian friends—who seem to have left the Chamber for the moment—will say, "Nothing," and will argue that after a while people will find all this stuff boring. As the threshold of acceptance falls, more and more porn passes on to the bookstands unchallenged. Despite that, in the past 10 years, the Metropolitan police have seized more than 9.5 million hooks, magazines, films, and so on.
As things stand, that slide will continue. I believe that Parliament should say that enough is enough and provide a more effective test for obscenity than that provided by the Obscene Publications Act 1959, which is not working as effectively as it should. The present test of whether material islikely to deprave or corruptis based on the 1868 definition of Lord Chief Justice Cockburn. That must be complemented by a definition more readily understood by today's jurors.
The Williams committee, in its report on obscenity and film censorship in 1979, considered that it wasessential…that the law should he responsive to flux in public opinion".The Bill seeks to extend the test for obscenity in the 1959 Act by adding to the existing depraved and corrupt test a new test based on gross offensiveness. This test will apply to all articles currently covered by the Obscene Publications Act — books, magazines, photographs, videos and so on — which a reasonable person would regard as grossly offensive by reason of the way in which they portray violence, horror, sex or drugs. Unlike the existing Obscene Publications Act, the new test would also apply to sex aids, bondage items and so on, but would exclude contraceptives. Any such article would be deemed to be obscene where a person publishes it and a reasonable person regards that publication as grossly offensive. Under existing law, a magazine that would not be grossly offensive to adults could be obscene when it was presented to a child.
The defence of public good in section 4 of the 1959 Act would continue to apply. Therefore, no offence would be committed if the defence could prove that the publication of the article in question was justified as being for the public good, on the ground that it was in the interests of science, literature, art, learning or objects of general concern.
The Williams committee proposed that material whose unrestricted availability was offensive to reasonable people should be supplied in premises to which persons under 18 were not admitted. The new test of gross offence to a reasonable person would be more strict than the test 1328 recommended by the Williams committee. Such material would be banned rather than be available in adult-only shops, as proposed by the Williams committee.
I readily concede that this is a difficult area in which to legislate and that it does not lend itself to easy black and white solutions. However, I must emphasise that the grossly offensive requirement requires grave affront to have been caused, and a jury would have to be persuaded of that. It is not sufficient for one person, who deems himself to be reasonable, and who says that he has been grossly offended, to persuade a jury. The case would have to be presented to a jury.
Inevitably, there is a degree of subjectivity about the matter. However, over a period of time case law would be built up which would assist. The concept has the vital merit of being able to respond to changes in public perception of what is acceptable or unacceptable, as proposed by the Williams committee.
Representations have been made to me concerning the "taken as a whole" provision in the 1959 Act. I believe that there is considerable merit in the argument that that should be spelt out. It is the intention of the Bill that items should not simply be taken as snapshots out of context.
§ Mr. Howarth
It does not. Perhaps it is not sufficiently spelt out. I propose that in Committee it will be sensible to ensure—
§ Mr. Buchan
On a point of order, Mr. Deputy Speaker. I was informed a moment ago that I should not intervene from a sedentary position. As the hon. Gentleman will observe, I am now standing and perhaps I am now entitled—
§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. The hon. Gentleman knows perfectly well that the mere fact of standing does not give him the right to intervene in another Member's speech.
§ Mr. Howarth
The absence of the "taken as a whole" provision in the new definition has led some to assert that it would be possible for material that is not grossly offensive in context to be separated from that context arid form the basis of a successful prosecution. There is no intention in the Bill to depart from the principle of the 1959 Act, which believes that the whole work should be considered. It seems doubtful whether, in practice, the court would interpret an article as applying to only part of a complete work of which it is an integral part. However, to put the matter beyond doubt an amendment could be discussed in Committee. I thank the members of the British Videogram Association and the Booksellers Association, who have made a forceful case to me on this matter.
The hon. Member for Paisley, South (Mr. Buchan), who has been attempting to interrupt, when discussing the Obscene Publications (Protection of Children. Etc.) (Amendment) Bill last year, said that it did not deal with the drip by drip technique of more and more violence on 1329 the television. It has been said to me that one cannot take an individual film and say that it is grotesque and a departure from the guidelines. However, by considering the matter as a whole people will be able to apply this Bill, when it is enacted, to deal with the drip by drip technique rather than isolated individual scenes. The Bill will affect books, magazines, videos and films. In the case of films, proceedings would continue, as now, to be subject to the consent of the Director of Public Prosecutions.
I have received representations from my hon. Friend the Member for Arundel (Mr. Marshall)—unfortunately he is unable to be here today—about the live theatre. I am pleased to confirm that the Bill will not affect theatres, which are governed by separate legislation. The test of obscenity in the Theatres Act 1968 is fairly similar to the definition contained in the Obscene Publications Act 1959. However, theatre productions are not dependent on the definition in the 1959 Act.
Television appears to be one of the most contentious issues in the Bill, with the proposal in clause 3 that broadcasts should become subject to the 1959 Act. There is no doubt in any quarter about the enormous power of television. As the BBC's late director general. Sir Hugh Greene, observed:Television is the most powerful medium ever to affect the thinking and behaviour of people.Clearly, that view is shared by advertisers, who would not be prepared to pay more than £1,000 per second for a 30-second slot on commercial television at peak time if they did not believe that that exposure promoted their products or enhanced their sales' prospects.
In recognition of the power at their disposal. broadcasters have accepted a responsibility for what they put out. The House is aware that the BBC is governed by the guidelines set out in the resolution of the board of governors dated 8 January 1981, which states:The Board accepts that so far as possible the programmes for which they are responsible should not offend against good taste or decency or be likely to encourage or incite to crime or lead to disorder, or be offensive to public feeling. While the Board recognise that in an ever-changing society it is impossible to ensure that what is inoffensive to one person will never offend another, they are determined to keep under constant review the standards of all broadcast programmes and the reaction of the public to them.Independent Television is governed by similar, but statutory, duties laid upon it by the Broadcasting Act 1981, which provided:nothing is included in the programmes which offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to he offensive to public feeling.
Complaints by the public about increasing foul language, gratuitous violence and explicit sex scenes are met every time by bland assurances from the authorities, whether the BBC or the IBA, such as, "Do not worry, old boy, we keep a close watch over the output." The guidelines are quoted and waved in front of us as evidence of the broadcasters' caring attitude and concern.
My hon. Friend the Member for Davyhulme said last year that the guidelines did not need reviewing, but that they needed to be upheld and observed. He was right then, and attitudes might have changed among the broadcasters, who recognise the attention that the House and the public have given to these matters.
1330 The guidelines are clear and must be upheld. The IBA guidelines are spelt out graphically. On language, they say:It is important if the freedom"—that is, the freedom of producers and the freedom of expression—is not to be jeopardised to avoid the gratuitous use of language likely to offend.A survey conducted last year by the National Viewers and Listeners Association found that of 450 programmes covered no fewer than 88 contained foul language, and that about one quarter of those were BBC1 programmes.
§ Mr. Tim Brinton (Gravesham)
My hon. Friend uses the phrase "foul language." If he is to persuade us of the value of his Bill, he must at least give us an indication of where foul language begins, and give us an example or two.
§ Mr. Howarth
I happened to watch "The Singing Detective" on video recently. In the episode that I saw the word "bloody" was used about 15 times.
§ Mr. Howarth
The hon. Lady may not think that the word "bloody" is offensive, but I hope that the House is not so out of touch that it believes that such language is now part of the accepted language of everyday people. There are worse words — [HON. MEMBERS: "Name them."] There are very much worse words, but it is not my intention to use them in the House so that they can be broadcast. I see no point in that. I hope that you, Mr. Deputy Speaker, would call me to order if I did that. We adhere more to our guidelines on good language in the House than do our friends in broadcasting.
§ Mr. Michael Forsyth (Stirling)
My hon. Friend does not have to define foul language, because the point of the Bill is to make the broadcasters accountable for their own guidelines. It is naughty of the Bill's opponents to try to press my hon. Friend into making judgments which, under the Bill, will be for the courts to make.
§ Mr. Howarth
As always, my hon. Friend hits the nub of the argument—whether broadcasters should be judge and jury in their own cause. They admit that they are the censors, and they do not like the idea of somebody else calling them to account.
The Bill is not based upon a fiction or upon the highly sensitive attitude of a minority of people whom we represent. One should go through the guidelines and spell them out.—[Interruption.] I am not going to use in the House the kind of words that I imagine Opposition Members would like me to use. I hope that the hon. Member for Crewe and Nantwich (Mrs. Dunwoody) will not press me to do that, because in her company I should find it difficult to use such language. I hope that she does not find that too sexist—[Interruption.] I do not think that the hon. Lady should be too firm in her attacks on sexism.
§ Mr. Howarth
If the hon. Gentleman will forgive me, I must press on.
I turn to the guidelines on sex and nudity. Much of the world's great drama and fiction has been concerned with love and passion. It would be wrong, if not impossible, to require writers to renounce all intention to shock or disturb, but the aim should be to move not to offend. The 1331 portrayal of sexual behaviour and nudity needs to be defensible in context and presented with tact and discretion. No hon. Member would disagree with that.
I shall give an example of what I mean, because the Bill contains nothing that I would not he anxious to defend. I promised my hon. Friend the Member for Gravesham (Mr. Brinton) and others that I would see "The Singing Detective" and not confine my viewing to the clip that Mrs. Whitehouse brought to the House. I saw the episode in context, and I remain firmly of the view that it is no part of the business of public service broadcasting, which goes directly into people's homes, to put on television explicit scenes of sexual intercourse. Why, suddenly, in 1986 did that become acceptable, when for the past 50 years such scenes have not been shown on television? The reason is that producers are always anxious to press further—
§ Mr. Howarth
I have just given an example. The hon. Gentleman was obviously not listening. If he listened instead of interrupting, I could make some progress.
§ Mr. Howarth
It was a splendid and artistic work. I accept that, but I do not accept the need to put it on television.
§ Mr. Howarth
I accept that. My argument is that the episode should not have contained that scene. This is probably the nub of the issue. I believe in the free society, but there are no absolute freedoms in a free society. Freedoms are constrained. The freedom of expression is constrained by the libel laws, by the laws on sedition and by the race relations law. We are discussing where to draw the line. One should not be too sidetracked by individual episodes, because principles are at stake, but one should know what one is talking about.
Another example is the Channel 4 red triangle programme, "No Mercy No Future" in which a mental patient is raped by her doctor. Another film shows a gang rape. We know that the people in the country are desperately worried by the increase in rape and crimes of violence. There is no division in the House on that issue and we know the strength of feeling in the country. Is it right that our television screens should portray scenes of gang rape which we and the broadcasters know can be imitated? Broadcasters know the power of television. They know that people imitate what they see on television.
§ Mr. Howarth
I shall give the hon. Gentleman the title of the programme, if he is so interested. Perhaps he wants to look at it.
The IBA's code on violence states:People seldom view just one programme. An acceptable minimum of violence in each individual programme may add up to an intolerable level over a period.1332Violence which is shown as happening long ago or far away may seem to have less impact on the viewer, but it remains violence. Horror in costume remains horror.
It is greatly to its credit that the BBC has set up a committee under Guy Cumberbatch to examine violence on television. The formation of that committee is in direct response to public pressure. The BBC has also introduced new guidelines for producers—
§ Mr. Howarth
It is the Wyatt committee. I have the guidelines here. They are unexceptionable. For example, it is stated:Will it shock to no good purpose? Will it frighten or alarm? Above all. is it justified in this context?
The BBC has rightly addressed those matters. It is because of public pressure and pressure from the House that it is doing so. I welcome that. It has a special responsibility, because, unlike other media, television is beamed straight into people's homes. We should never lose sight of that fact.
§ Mr. Eric Forth (Mid-Worcestershire)
I hope that in developing his point my hon. Friend will show that the difference between television and other media is that television is almost uniquely under the control of the user and owner of viewing equipment. That gives a special property which means that, in the exercise of individual freedom and responsibility—a concept which my hon. Friend and I share most profoundly — the owner and watcher of a television can control his viewing and exercise his judgment about what he will watch.
§ Mr. Howarth
I understand the force of my hon. Friend's argument. He must accept that television is a different medium. As he said, it has an on-off switch, but the fact is that 50 per cent. of households have video recorders. Although the stuff may be put on after the watershed, nevertheless, the kind of material that I have been talking about—particularly the Red Triangle stuff that is put out by Channel 4 — is videoed by adults. They may go to parties or retire early and leave the video running. Their children may pick up the video in the morning and use it. It is no good my hon. Friend saying that we have no responsibility. I know that parents have responsibilities. Television authorities know that parents have responsibilities. But even television authorities accept that, despite parents' responsibilities, they, too, have a profound responsibility. That is why they have produced the guidelines. If they did not believe that they had any influence or responsibility, they would not have produced the guidelines.
§ Mr. Howarth
I shall not give way. I must press on. The hon. Lady can make her speech in her own time. If she had been more courteous to me earlier, perhaps she might have got a look in.
As the BBC's new guidelines on violence claim, television goes straight into the homes of all kinds of people. I must advance that argument to my hon. Friend the Member for Mid-Worcestershire (Mr. Forth). The BBC says in its guidelines:We also know from audience research that there is a general audience for all programmes. It is never the case that only a targeted group of users is watching. Common politeness"—that is an old-fashioned expression and one that I welcome— 1333dictates that we always bear those other, chance viewers in mind. This does not and should not mean that programmes deal only with what is acceptable to all.Television authorities recognise that they are different from cinema authorities. Cinema people have rightly made that point. They control their audiences. They do not admit under 18-years-olds to films that have an 18 certificate. Television cannot do that. The point about late night videos is that an 18 film can be put on after the watershed, it can be videoed, and children can see it in the morning because their parents are perhaps irresponsible.
§ Mr. Brinton
I was accused of playing foul by asking my hon. Friend about foul language. Has he assessed—he owes it to the House to do so — how much of the present television schedules would remain if his Bill were to become an Act?
§ Mr. Howarth
My hon. Friend has missed the point. People are concerned about what is shown on the box. That is why, last year, for the first time in 30 years Parliament considered bringing broadcasting within the scope of the Obscene Publications Act 1959. Parliament does not believe that broadcasters have always exercised their judgment properly. The boundaries are being pushed forward year by year. There is more and more foul language. It may be that today's programmes will be caught. I do not seek to be a censor, unlike Mr. Grade, who is a censor, as he tells me every day of the week. According to a report in today's edition of The Times, he said:Broadcasters daily make responsible decisions on what to transmit based on guidelines born of experience.Broadcasters are the judges. They do not like the idea that their judgment should be criticised by somebody else and that they should be subject to the law of the land like every other medium in the country. It is perhaps because broadcasters have let these things go on that they have been pressed by scriptwriters and so on to go further and further. They are not following public, opinion; they are seeking to lead it.
§ Mr. Dubs
So that all hon. Members can understand the thrust of the hon. Gentleman's argument, I put this to him: he said that because young children have access to videos — that is not in dispute — in effect they can watch programmes no matter how late at night they are shown, and therefore broadcasters should take note of the likelihood that young children may watch any programme no matter how late it is broadcast. Does the hon. Gentleman, in effect, say that nothing should be shown on television that is not suitable for the youngest children? If he says that, the thrust of his argument has wide implications for a society in which adults watch the media.
§ Mr. Howarth
I do not say that, although the hon. Gentleman has made a fair point. We must recognise something that has not been recognised until now, and that is that the on-off switch is not the determinant factor. The widespread availability of video recorders has changed matters. In a sense, they have slightly overtaken broadcasting authorities. I am not sure that they know how to deal with that. I do not say that everything should be suitable for playschool children or anything like that. That is not the point. [Interruption.] The gist of my argument is that broadcasting should be encompassed 1334 within the general law of the land, from which, at the moment, it enjoys a special exemption. In the final analysis, such matters should be tested not by me or by Mr. Grade, but by the British people—
§ Mr. Howarth
—twelve randomly chosen men and ladies can decide such matters.
I am aware that news broadcasting causes special problems. That is recognised by the latest guidelines produced by the BBC, which state:News editors and producers are regularly confronted by incidents and stories of great horror"—such as in Lebanon—which they have to describe and interpret at speed. They must do so in the knowledge that there is increasing public awareness and concern about violence in the news and increasing sensitivity about the plight of those who suffer, whether in Britain or abroad.The guidelines make this further valid point:The more often viewers are shocked the more it will take to shock them.Broadcasters recognise their responsibilities. I do not think that the news warrants some of the criticism that has been levelled at other programmes, although increasingly, in some broadcasts, the camera is getting closer to the body that is being shown. One wonders whether there will be yet more explicit scenes following great tragedies.
I have spoken for some time, and I am conscious of the fact that other hon. Members want to intervene, so I shall conclude. The Bill does two things. First, it provides a more up-to-date test of obscenity by producing a definition capable of moving with changing social values and views of what is acceptable and what is not. That is the right way to proceed, given that an increasing amount of filth is available on bookstalls, at stations, and so on. Secondly, the Bill brings broadcasters within the scope of the general law of the land. I do not believe that any responsible broadcaster has anything to fear from the Bill. If the guidelines that I have set out to the House at some length, because I think that they are acceptable to all hon. Members as an exposition of what we expect from television, are enforced, broadcasters will have nothing to fear. They will not be subject to vexatious litigation. They know that action can be brought only with the consent of the Director of Public Prosecutions or by him. I do not like the principle that the Director of Public Prosecutions should stand between the people and the law of the land. That is not a sound principle of law, but one must provide some kind of protection against vexatious litigation. Therefore, reluctantly, I am prepared to accept that idea.
I hope the House will take the view that, in this new era in which AIDS has become of such great concern, it is odd that the Government are spending £20 million on AIDS advertising to point out the dangers of a particular way of life, yet those advertisements are often sandwiched between programmes which show people hopping into and out of bed with one another and whose moral values are at least questionable. I say that because people are beginning to make that important point. I hope, for all the reasons that I have given, that the House will support this modest measure.
§ Mr. Norman Buchan (Paisley, South)
We are again traversing unfamiliar ground. The difference is that this legislation is being considered at a time when there has been an almighty assault on the broadcasting authorities. This is not an isolated phenomenon, because it has occurred in America during the past decade, with the combination of the moral majority and the Right-wing attitudes to political, economic and philosophical thinking. We are seeing it again in relation to the Bill.
There is another characteristic of these events. Bills are introduced, yet before consideration is even a quarter under way, the sponsors are beginning to say, "We know that it is bad. We are ready to accept amendments." That is exactly what has happened with the Bill. Part of the argument put by the hon. Member for Cannock and Burntwood (Mr. Howarth) contradicted the Bill on a crucial matter — whether a play, film or documentary should be considered in its entirety or whether its purpose should be considered. He argued his case for some time. But the Bill is concerned with isolated episodes, as the hon. Gentleman revealed with his example from "The Singing Detective".
It is no use introducing a Bill and trying to make the best of two contradictory arguments. The hon. Gentleman should make up his mind. He pointed out the number of "bloodys" in "The Singing Detective" as being somehow offensive. There were those who attacked the programme because hare buttocks were shown in a sex scene. It was extremely important to show that the child in the programme had been affected by watching that event. Therefore, the hon. Gentleman's argument in defence of the Bill—that a film should he taken in its entirety—falls.
The hon. Member for Cannock and Burntwood cannot be dishonest with the House in this way, nor can he ask hon. Members to accept that a fundamental argument against the Bill — that a film, for example, should he taken in its entirety—can be left for consideration in Committee. No one knows what will happen in Committee. There is the famous court martial case in which the death penalty was imposed by a lower court, which expected it to be overturned on appeal. The appeal went all the way to the Court of Appeal, and then it was found that the final arbiter did not have the power to alter the decision. The hon. Gentleman cannot say, "I know that my Bill is lousy. I know that it is broken-backed and that there is a fundamental fault in it, but pass it because it can be changed in Committee."
§ Mr. Howarth
I did not say that the Bill was lousy. It is an excellent Bill. I said that a contextual element in it must be taken into account. To avoid doubt, and in view of representations, I am prepared to look at it again.
On Second Reading of the Obscene Publications (Protection of Children, Etc.) (Amendment) Bill the hon. Member for Paisley, South (Mr. Buchan) said that he was concerned about the drip technique of porn and violence, 1336 yet he voted against the Bill. It sounds as though he will vote against this Bill. Where does the hon. Gentleman stand on this matter?
§ Mr. Buchan
This is not my Bill. The hon. Gentleman should deal with his own defence instead of attacking me. [Interruption.] I am happy to answer the question, but have hon. Members forgotten that it is the hon. Gentleman's Bill and that questions are being put to him? Even in his intervention, the hon. Gentleman was saying, "Of course I am prepared to consider the whole contextual situation." If he says that he will look at the Bill further, he either knows that the Bill's central thesis is fundamentally flawed or is saying, "I shall consider it, but really I will not". The hon. Gentleman cannot have it both ways.
§ Mr. Mikardo
Is not the hon. Member for Cannock and Burntwood (Mr. Howarth) saying, "Give the Bill a Second Reading, so that in Committee I can get a Bill that is totally different"?
§ Mr. Buchan
We have traversed this ground before. That is what happened a year ago with the Obscene Publications (Protection of Children, Etc.) (Amendment) Bill. That Bill was considered in Committee and an entirely different Bill was proposed. [Interruption.] My hon. Friend the Member for Islington, South and Finsbury (Mr. Smith) has a copy of it. The hon. Member for Cannock and Burntwood wants the Bill to be given a Second Reading, then he wants it to be considered in Committee and totally changed. The House is entitled to know what is happening.
§ Mr. Howarth
If that is the case, is the hon. Gentleman saying that the Government propose Bills from the Dispatch Box and that on Second Reading they do not say that certain items can be looked at in Committee?
§ Mr. Buchan
We are saying that a different Bill is being suggested. Once the hon. Gentleman does that he is reverting to what already exists in the legislation—that the whole context must be taken into consideration. That is not what the Bill fundamentally says. If the hon. Gentleman is now saying that, he had better withdraw and be honest with the House, his supporters and the country.
§ Ms. Clare Short
Clearly, it was confusing when the hon. Member for Cannock and Burntwood (Mr. Howarth) said that he thought that context was important, which was one of the objections to the Bill as drafted. If I understood the hon. Gentleman correctly — it was impossible to get clarification because he would not give way very often in his speech—he meant that it would be possible, with regard to broadcasting, to look at the output of a day or week and deal with the point made by my hon. Friend the Member for Paisley, South (Mr. Buchan) about the drip effect of violence. The point that he made seemed to be a new one. No longer are we talking about individual programmes or offerings being considered as unacceptable. The extension that the hon. Member for Cannock and Burntwood was talking about would cover a day or a week's output, so that a cumulative objection should be looked for and action could then be taken. I think that the hon. Gentleman made that point in relation to my hon. Friend's previous point about the drip effect of violence.
§ Mr. Buchan
My hon. Friend has made an interesting point which illuminates the fundamental flaw in the Bill. 1337 What we had been talking about was the careless use of violence, usually with secondary programmes—not the ones that the hon. Member for Cannock and Burntwood has given as examples. The hon. Gentleman is now saying that individual aspects of that can be considered. The hon. Gentleman's thinking is pretty weak, and we are entitled to a little sterner thought than we are receiving.
The hon. Member for Cannock and Burntwood referred to one "bloody". I do not know where the hon. Gentleman has lived; he has not been living in Britain for the past 30 or 40 years. The word is now used as an intensitive and can be heard everywhere. Another word is used as a common intensitive rather than its popular use. If the hon. Gentleman wants an example, the obvious one is from the Scottish play, "Macbeth":What bloody man is that?Will that be banned because of that isolated episode, or will it be taken in its context?
§ Mr. Buchan
I am not being silly. The word "bloody" is continually used as an intensitive; that is what it has now degenerated into, because that is what has happened to language throughout history. Shakespeare used it correctly, he was a "bloody man". One thinks of "Ruddigore" and the problems that W.S.Gilbert faced at that time. The word has lost its significance. Language changes. It must not be taken as a fixed item. It changes as it gets absorbed into the total context.
Take the question of rape. The hon. Member for Cannock and Burntwood says that rapes should not be shown. I can think of one of the most respectable of broadcasting series. "The Forsyte Saga". The rape scene was very important; it was a husband and wife rape scene, so perhaps the hon. Gentleman thinks because they happened to be married that exonerates it. It made it infinitely worse because they were married. It said something about the relationship between the couple, about the character of the woman and about the character of the man, and it illuminated a human understanding. The hon. Gentleman fails to understand that art is not merely to titillate and entertain — art says something. When a scene such as that in "The Singing Detective" is used, it is intentional. The defence of intention does not come into the Bill. It is the act and detail that comes in, not the aim and purpose any more than the totality. Those are the two fundamental flaws.
§ Mr. William Cash (Stafford)
; Is the hon. Gentleman suggesting that what a reasonable man would regard as grossly offensive would be described as art? The cases put forward in the last Bill of the instances which would be caught under that Bill demonstrate that the hon. Gentleman is talking through his hat.
§ Mr. Buchan
The hon. Gentleman speaks with ease about a "reasonable man", and what is gross and offensive. It would take us a week to analyse and decide the nature of a reasonable man. One remembers the scene in the Bernard Shaw play, "Major Barbara". We are talking about the concept of a reasonable man, not about a man setting fire to a house, or what action may follow the behaviour of a reasonable man, but a reasonable man in terms of thoughts and conceptions. That is a very difficult matter to define. [Interruption.] I have been 1338 generous, Mr. Deputy Speaker, but I should at least be allowed a little time. We are trying to define a reasonable man and I was talking about the scene in "Major Barbara" when his old armaments manufacturer's son says to his mother, "I may not understand this, but I know the difference between right and wrong." This problem has puzzled philosophers, yet the hon. Member for Stafford (Mr. Cash) knows the difference between right and wrong. He can define a reasonable man in the context of poem or song—
§ The Minister of State, Home Office (Mr. David Mellor)
The hon. Gentleman knows that I have considerable respect for him. He is a man of considerable intellectual sophistication. He should help us by addressing his mind to the proposal that we are debating rather than one of his wilder imaginings. I shall make two points in this context. First, before he assaults the concept of the reasonable man, will he consider that the framework of English law and many of the tests which bear on the manner in which people behave towards one another in our society have, for centuries, been based on the objective test of the reasonable man?
Secondly, may I direct the hon. Gentleman to an even more profound point. The hon. Gentleman seems to imagine that "grossly offensive" to reasonable people is something which has sprung fully-armed from the fevered brow of my hon. Friend the Member for Stafford (Mr. Cash). The Williams committee, which consisted of such embittered Right wingers as Professor Williams, made a proposal that material that was offensive to reasonable people — not grossly offensive, merely offensive to reasonable people — should be available only in something akin to a licensed sex shop. When the hon. Gentleman talks about something being grossly offensive to reasonable people, will he not grossly offend reasonable people by pretending that matters such as Shaw's "Major Barbara" and Shakespeare's "Macbeth" are in any sense affected by the Bill?
§ Mr. Buchan
I was not using Shakespeare's "Macbeth" or Shaw's "Major Barbara" for any purpose other than for a couple of quotations — the word "bloody", and to distinguish between right and wrong. It was nothing to do with the Bill.
The concept of the reasonable man is the kernel of much of our law. There is a difference between a jury being asked to decide what a reasonable man would think about a line of poetry, a picture or a play, and a jury being asked to decide what a reasonable man might decide would be the consequences of his actions. One remembers the famous case of the man who set fire to a house. The question was whether a reasonable man might deduce that deaths may flow from that action, making it a murder case. I remember the case vividly. That is a different question. If Conservative Members want an example I can think of one—the metaphysical poems—Licence my roving hands, and let them go".I shall not continue because I may offend someone, but that was written by the Dean of St. Paul's, a good and noble priest.
I turn to the word "gross." This is a qualitative term about which I am not clear. That is why Professor 1339 Williams had more sense than to use the word gross in his report. He used the word "offensive" in a different context from the one with which we are dealing. "Grossly offensive?" How long is a piece of string? What jury will decide what is gross and what is not?
That point is important. It means that the broadcaster, the writer or the producer does not know whether his material will be gross or not. He may mean it to offend. Half of our civilisation consists of offending people. I hope that I have just offended Conservative Members, because I intend to be offensive to the promoter of a Bill that is wrong and stupid. However, while I hope that what I have said is grossly offensive to him, I do not think that I should get arrested for that. Hall the purpose of art is to shock and offend, because if it does not, I am not sure what the function of a painting, a poem, a play or a film is. Apparently, Conservative Members believe that it is only to entertain. I think that it is to offend and to shock.
§ Mr. Buchan
Before this great intellectual of the Conservative party interrupts, let me make one more point. I can think of the grossly offensive scene in Oedipus Rex. Do we want to ban Aeschylus, Euripides and Sophocles? What about the great howl that Olivier gave when the eye was gouged out in a welter of blood in "King Lear"? Will that be banned as being grossly offensive? It is grossly offensive, just as I can he grossly offensive, but if such things do not shock and offend, they are not worth having.
§ Mr. Dickens
Has the hon. Gentleman considered what the problem is today? On one hand we have a country in which violent and sexual crimes are rising, while on the other we have television channels daily screening programmes showing sex and violence. Many of us, and many of the general public, believe that that has resulted in a tremendous rise in violence and sexual crime. We are simply, on behalf of the general public, endeavouring to roll back the frontiers to bring this to an end. If television can have such an impact on advertising and selling products, it must also have an impact on the minds of people. This is what is concerning us.
§ Mr. Deputy Speaker
Order. It would be helpful to the debate if hon. Members saved their speeches until they were called by the Chair instead of making them during interventions.
§ Mr. Buchan
I am not sure that I understand, because the common assumption is that this is the problem with which we are dealing. I will grant the hon. Gentleman that, and I will accept that two and two make four and that broadcasting affects people, and that all of us are anxious about aspects of broadcasting and newspapers. It does not seem to worry him, although, as my hon. Friend the Member for Birmingham, Ladywood (Ms. Short) has shown, it worries some of us, that Murdoch, Maxwell, Stevenson and others can live by selling titillation. However, Conservative Members are using this as an argument to thwart the decent part of offensive expression. I believe that what is said matters more than 1340 the hon. Gentleman understands. I have given my life to trying to defend the concept of the importance of the arts, including broadcasting, as the hon. Gentleman should know.
Of course I am anxious about this when I see broadcasting misused in the way that the hon. Gentleman described. However, it is his party, despite its flaunting of its moral position, which seeks to hand over television to the private entrepreneur. It is not the bloke next door, the moral preacher, or the Dean of St. Paul's who will set up satellite broadcasting—it is Maxwell and Murdoch, who have bought it. The people whom the hon. Gentleman is criticising are those who are the next stage in television and broadcasting. The Tory Government are handing over to these people, without control or regulation, the future of television and broadcasting. The Home Secretary, despite his initial anxiety about the Peacock report—
§ Mr. Buchan
It matters a great deal. We are handing broadcasting over to the entrepreneurs and they will operate not from this country but from abroad. It is these people who have produced the daily pornography in the papers.
§ Mr. Buchan
This is a pleasure. To whom shall I give way? Shall we have a vote as to whether I shall give way to this apostle of free enterprise or this bold figure before me? I give way to the guy at the back.
§ Mr. Michael Forsyth
I find myself in agreement with the hon. Gentleman. He is right to point out that broadcasting will develop through satellites and through other people coming into the market place. However, does he not think that there should be regulation within the market place, as we do? Surely he should be supporting my hon. Friend the Member for Cannock and Burntwood (Mr. Howarth) in his attempt to do something to control the system.
§ Mr. Bill Walker
I regularly read the hon. Gentleman's columns in the Scottish press. Is he suggesting that, because he writes for a newspaper that is owned by a private sector enterprise, there is something wrong with that?
§ Mr. Buchan
I wish that the hon. Gentleman read my columns more often, but I do not get into the newspapers as much as I would like. I only wish that I had a regular column. I have forgotten the initial point made by the hon. Member for Stirling (Mr. Forsyth).
§ Mr. Michael Forsyth
It is important that the hon. Gentleman should see this point because it may encourage him to go through the Lobby in support of the Bill—
§ Mr. Buchan
I remember the point. It is whether I am in favour of the regulation of broadcasting. It is curious that this Tory party, which has declared that it is in favour of freedom of the market place, is also the party that wants the exact reverse when it comes to freedom of expression. It wants freeing-up for the entrepreneur, and it wants to hand over the development of technology in broadcasting so that the entrepreneur can make money by appealing to 1341 below the lowest common denominator. The only aspect that it sees in terms of regulatory powers over broadcasting is when it comes to repression of ideas. It sees a combination of freedom for the uncaring entrepreneur with repression of ideas.
We believe that regulation should be used not as a repressive measure but to ensure a diversity of programmes. The regulatory powers in broadcasting, through the IBA, the Broadcasting Act and the charter and the licensing agreement open up broadcasting and give diversity. The Conservative party is moving rapidly towards freeing television to the market place while at the same time introducing crippling regulation to prevent freedom of expression.
§ Mr. Mellor
I am giving the hon. Gentleman the credit of listening to his argument, even if I cannot accept it. Is the philosophy that he wishes to put before the country that people should be free to broadcast material that is grossly offensive to a reasonable man. Why cannot he grasp the self-evident proposition, as the Williams report made clear when advocating a much lower test, that there is plenty of room for diversity in an adult and mature society without producing such material?
§ Mr. Buchan
It is because of this that I accept the guidelines in broadcasting, and agree that the red triangle is a sensible suggestion. Because I accept that, I am defending the broadcasters against this Bill. The Bill does not try to give protection against what I believe the Minister might regard as grossly offensive. It has a vague definition which, of itself, will inhibit the freedom of the broadcaster because he will not know how the material will be treated. He will have no means of knowing whether that which he broadcasts intending to shock and to make a moral point might not be seen by a reasonable busybody who will object to it. He will find himself hauled in front of the court time after time.
The parallel of that is the attacks made by the Chancellor of the Duchy of Lancaster on the freedom of broadcasting in documentaries and news broadcasts. I can give an example of how this operates. Two years ago, when "Real Lives" was to be shown, the broadcasting authority held out against interference. The Home Secretary had to intervene — to interfere — by writing to the governors before "Real Lives" was banned. There followed two years of continual attacks upon the freedom of broadcasting, and in particular the freedom of the BBC, especially by the Chancellor of the Duchy of Lancaster. Then Duncan Campbell wrote his piece in the New Statesman about Zircon and the "Secret Society" programme, and the BBC itself intervened to ban it.
After those two years of pressure, the BBC had been pushed back to the extent that it was scared to resist that pressure. There are parallels in this Bill; it is attempting to bring about those circumstances again. The broadcaster will be inhibited: he will not know whether he can take risks to tell the truth as he knows it. The makers of programmes such as "The Singing Detective" will be afraid to make not just one particular scene, but others as well. That is what happens when such legislation is introduced. Broadcasters become inhibited and are forced to retreat, because they do not know how a judge will 1342 direct the jury on the test of a "reasonable man" and what is gross and offensive. It is a function of art to offend and to shock.
§ Ms. Clare Short
The definition of what is grossly offensive to a reasonable person is clearly an important point. The Minister may believe that that is a fair test, but I find it very worrying.
I saw a programme on television which discussed the portrayal of killings in South Africa in a television news programme. It debated how the vile killings of children should be portrayed. Clearly, it was a news item; but how close should the camera get to the bodies, for instance? Some felt that to show the dead children was grossly offensive. I do not agree with the Minister that it is a simple test. The gouging out of King Lear's eyes can be portrayed in a grossly offensive way, and perhaps it should be.
§ Mr. Buchan
I dread to ask where I have got to, but I shall do my best.
I think that we have exposed sufficiently the problem faced by the Bill's promoter — that his Bill does not make sense. It can be used only to prevent and terrorise; it is not the kind of measure on which a broadcaster can act knowing that if his case comes to the court he will receive a fair deal.
One of the main problems is the shift in the definition of what is objectionable. The merit of the product is not brought into consideration. Clause 4(1) brings in the question of the public good, but it does not open it up to the same extent as the original 1959 Act, which allows a defence to be made on the grounds of merit. The objection is to the effect that the test will have in authorising police and prosecution action, in itself preventing the broadcaster from taking risks that he should take. It is not really a question of the simple titillation of pornography. If it were, my hon. Friend the Member for Ladywood would be right to say that we should be considering the daily "sex object" aspect typified by page 3 of the popular press.
We must know before the day is out whether the Bill's promoter has consulted his colleagues on whether to change the Bill in Committee, because we must know with which Bill we shall be dealing, and whether it will repeat the fundamental aspect of the totality of the product being seen, rather than the individual items. We need clarity on that, or we cannot proceed to Committee. We also need to know to what extent the defence of the public good can be extended to allow expert witnesses to participate.
I can only repeat, perhaps in a slightly different way, that the real worry is about the proliferation of the actions of Conservative Members seeking to inhibit broadcasters. They have used the moral arguments to try to thwart and cripple the freedom of the broadcaster in a way that is paralleled by what has happened on the political front.
1343 The matter cannot be isolated from the future of broadcasting. Sadly, if the Government succeed in obtaining another term, radio and, especially television, will suffer. A Green Paper suggests the removal of regulatory powers that enable diversity of opinion and broadcasting freedom along with guidelines. Broadcasting will be handed over to an infinitely worse obscenity—the use of marvellous technology for the crude purpose of making profits. The person who will be hurt will not be the entrepreneur, who will use it to flog his product; it will be the serious broadcaster with something to say. When a man has something to say, he should be grossly offensive. For many people, the whole aim and purpose of art is to shock. If it does not, it has failed in any purpose that could justify it.
§ Sir Carol Mather (Esher)
What I have to say is not particularly new — it has all been said before — but I think that it bears being said once more, especially as I have been sitting here silent for so many years.
I support the Bill because I think that there is too much violence on television. It is not the job of television to go as far as it feels an audience can take, pushing the frontiers ever onward. By the same token, standards are not a moving target. They must relate to what is right and what is wrong. As my right hon. and learned Friend the Member for Southport (Sir I. Percival) said this week, a judge told a jury that it must decide what is honest and what is dishonest. In the same way, every television producer, manager or governor knows what is right and what is wrong.
Children love to see the sort of violence that takes place in Punch and Judy shows. However, there is a big difference between that sort of fun and the cold-blooded violence that we see on the television screen, where there is a degree of offensivenesss that cannot but deprave and sicken the beholder, removing the sense of right and wrong and leading to the sort of copycat actions about which we hear so much.
I am sorry that the right hon. Member for Wakefield (Mr. Harrison) has left the Chamber. He and I, and my hon. Friend the Member for Somerton and Frome (Mr. Boscawen), were trained during the war to commit acts of violence against an enemy, but there is a difference between that kind of violence and what we see on the screen, because of the completely different motives involved. In war, the good subsumes the evil.
There have been many studies on the effects of violence on young people. I shall give two examples. The first is the report in which Eric Moonman wrote about copycat hooligans. He said:The influence of television on their response"—he was referring to young people in Toxteth—to the situation could not be doubted—TV made it look easy, they new what kind of things to do.Secondly, on 29 June 1985 the Daily Telegraph quoted statistics from a study by the National Coalition on Television Violence in America. It said:Between the ages of two and 11, the typical American child spends 27.3 hours a week in front of the box. By the age of 16, the grand total will be about 20,000 hours. If programming stays the way it is now … the American teenager will have witnessed 200,000 acts of violence and 50,000 attempted murders by his 16th birthday. If there is cable television in the house the figures will be even higher.Those statistics are horrific and they could be applied to this country.
1344 I do not feel sorry for the victims of violence whom we see on the television screen. I feel sorry for the watchers, particularly the very young, whose senses are being bludgeoned and whose dignity is being trampled upon.
§ 11.1 am
§ Mr. Ian Mikardo (Bow and Poplar)
It is clear from the debate so far that there are substantial differences of view about the Bill. Those differences cut across party lines. It is entirely proper that that should be so in respect of a private Member's Bill, since it is not Government legislation. As further sharp differences will he expressed during the debate, I shall begin my speech by making at least one point on which we can all agree. It is that the present legislation is not entirely satisfactory. The sharpest evidence in favour of that contention is the fact that the present legislation has led to so much litigation.
It was said earlier that juries would settle the matter, but I have always felt that when we as Members of Parliament legislate we should ensure, as far as we humanly can, that the legislation is so clear that it will be unnecessary for people to have to go to court to find out what it means. If legislation is passed that contains phraseology that can be interpreted in two different ways, that is evidence, to me, of Parliament's failure to legislate clearly. Every time somebody has to go to court because different views are taken about the legislation that Parliament has passed, that is a black mark against us.
Furthermore, we should not pass defective legislation and then rely on the good sense of the prosecuting authorities to decide what is and what is not to be prosecuted. That makes the Director of Public Prosecutions, or, since he cannot consider every case himself, a lawyer in his office, the judge of what the law is. The hon. Member for Cannock and Burntwood (Mr. Howarth) suggested that ordinary people are reasonable, as the Minister of State himself said. Incidentally, I notice how different is the Minister's approach to this Bill from his approach last year. Perhaps that is because there is soon to be a general election.
§ Mr. Mellor
That is an unworthy suggestion, and I am surprised that the hon. Gentleman should make it. I made it very clear last time that my objection to the Bill was based on the list approach. If people wish to take issue with the concept ofgrossly offensive to reasonable people",they should realise how strong a test it is and also that a milder test was proposed by the Williams committee. Whatever else it was, that committee was not a collection of Monday Club supporters. I am changing my view in accordance with the change Ln what is being presented to the House. I suspect that the Opposition are not doing the same.
§ Mr. Mikardo
That is unworthy, too. If I have said something that impugns the Minister's integrity, of course I apologise for it absolutely and unreservedly. I shall deal later with the concept of the reasonable person and why something may be grossly offensive. The problem is that it is subjective; one man's meat is another man's entrecote maitre d'hotel. The difference is in taste—de gustibus non est disputandum. The test that one jury may apply may be utterly different from the test that is applied by another jury in a different court, or even in the same court. Hard decisions are left to people's objective judgment.
1345 I am sure that every hon. Member is strongly opposed to the gratuitous display of prurient sex and sadistic violence. To be opposed to that is easy. It is within the intellectual competence of even the hon. Member for Littleborough and Saddleworth (Mr. Dickens). That means that it is within the competence of almost anybody in the whole wide world. But what is not easy, and what is thunderingly difficult — dear me, I almost said "bloody difficult" and I should not say that, should I?—is to legislate against the kind of abuse that we all oppose with a degree of discrimination and precision that successfully avoids the creation of both intolerable anomalies and highly undesirable side effects and spin-offs.
The hon. Member for Cannock and Burntwood was right to say that there are no simple black and white solutions. We are not arguing as between people, some of whom have one sort of intention, and others who have another sort of intention. The argument between the supporters and the opponents of the Bill is not about whether it is desirable to get rid of scenes of gratuitous, prurient sex and sadistic violence, but about whether the Bill is the right way to go about it. We are not talking about ends; we are talking about means.
It is because I recognise that the present law is far from satisfactory that I voted in the last Session for the Second Reading of the Bill that was introduced by the hon. Member for Davyhulme (Mr. Churchill). I notice that the hon. Member for Davyhulme is not here today. Perhaps that is because his experience has reconciled him to the belief that it is an abortive exercise anyway. However, I voted for the Bill on Second Reading, even though I thought that in parts its wording was grossly defective and, indeed, in one part ludicrous. One may ask why I voted for a Bill when I thought that its wording was defective. The answer is that I had hoped that during the proceedings in Committee we would sort out the imperfections.
The Committee was strong in supporters and opponents of the hon. Gentleman's Bill and the Minister may recall how hard it worked. I had hoped that while kicking the Bill around we would be able to get rid of the manifest difficulties and perhaps arrive at some sort of formulation that would get over the imperfections of the present law without creating anomalies or undesirable spin-offs. Unfortunately, my hope was not fulfilled. What happened? The hon. Member for Davyhulme rewrote his Bill, not once, but twice. We started with a Bill based on what came to be known as the "laundry list", as the Minister will recall. The hon. Gentleman then abandoned that and changed the Bill radically so that it was a different Bill. We found during debates in Committee—very good debates, if I may say so—that that Bill would not do either. The hon. Member for Davyhulme himself recognised that that would not do. Therefore, he rewrote it again and we had a third Bill. In the end, the House decided, rightly, that even that third Bill would not do. If the hon. Gentleman's Bill was defective, as it proved to be, this one is even more seriously flawed.
§ Mr. Chris Smith (Islington, South and Finsbury)
Does my hon. Friend recall that not only did we have a third Bill that came back to the House, but that the hon. Member 1346 for Davyhulme then proceeded to accept every amendment that had been tabled which would, of course, have changed it a fourth time?
§ Mr. Mikardo
I had forgotten that, and I am grateful to my hon. Friend for reminding me. The hon. Member for Davyhulme said that he was willing to accept all the amendments. However, my hon. Friend is wrong in saying that it would have produced a fourth Bill, because accepting all the amendments would have produced a non-Bill, in that it would have taken all the content out of it.
§ Mr. Kenneth Hind (Lancashire, West)
What the hon. Gentleman has explained to the House shows the difficulty of creating a Bill of this nature. I appreciate that he has put forward and illustrated the problems of the past. Would he give us an idea of what he would propose in order to introduce some sensible control over broadcasting on the side of arbitration of taste, which is what this is really about? Will he say how he would develop that, because I am sure that many Conservative Members would be interested to hear it?
§ Mr. Mikardo
That is a perfectly fair question and it deserves a proper answer. During the course of my observations I shall give a proper answer.
I said that the Bill is much more seriously flawed than the measure that we considered last year. I must justify that, because it is a strong statement. I justify it on the basis of no fewer than 16 grounds, which I shall list briefly.
The first ground is that, among other things, it goes back to the laundry list which the hon. Member for Davyhulme—[Hon. Members: "Oh, no."] Yes, it does. I do not know why anybody says, "Oh, no." There is no subsection (2) to clause 1. Has anyone noticed that? It goes from subsection (1) to subsection (3), but I presume that the passage beginning at line 14 is supposed to be subsection (2). If I take that as being so, how can anybody seriously argue that subsection (2)(a), which lists (i), (ii), (iii), (iv) and (v), is not a laundry list?
§ Mr. Mikardo
Hold on a minute. I am waiting to hear the Minister's argument.
It is true that it is a different laundry list from that of the hon. Member for Davyhulme. This is all underwear, instead of outer wear, but it is certainly a laundry list.
§ Mr. Mellor
I am sorry to interrupt the hon. Gentleman, but it is only because I enjoy his contributions and want to take his argument seriously. The laundry list to which I objected every bit as profoundly, although perhaps not as eloquently, as did the hon. Gentleman is wrong because it sought to say that merely by looking at a list one could say what should or should not be obscene. This is not a laundry list in that sense. They are words of restriction on a test that suggests that material to be excluded has to be "grossly offensive" to reasonable people. If the hon. Gentleman wants the pedigree of that approach, it is to be found in paragraph 9.31 of the Williams report where it explicitly says that the notion of offensiveness needs to be qualified by reference to certain things. Therefore, it is not a laundry list as such. I hope that we can at least agree on that.
§ Mr. Mikardo
During interventions the Minister has twice mentioned the Williams report. There is much in that report with which I strongly disagree, and much that is of value. However, it is not written on tablets of stone handed 1347 down from Mount Sinai. I do not consider that in giving my thought to the merit or demerit of a Bill before the House I am bound to make my judgment solely on the basis of what the Williams report said.
§ Mr. Mellor
All I am trying to get across to the hon. Gentleman and his hon. Friends, so that we might use the time profitably, is that we should at least agree that whatever may be the demerits of the Bill, it is not something that has come merely from an isolated Right-wing faction on the Conservative Benches that is supportive of Mrs. Whitehouse and thinks of nothing else. Let us at least be clear that, whether or not the Bill is to be rejected, it has to be rejected on the basis that a number of people, well outside the ranks of the Conservative party, have from time to time considered that the test it is replacing is useless—that is the description applied by the Williams report—and that something along those lines would be better. At least we would then have a better debate.
§ Mr. Mikardo
I am grateful to the Minister. I know that he is trying to be helpful, but I am bound to say that the good intentions that he has in his interventions follow the road to which we know good intentions lead. The hon. Gentleman's performance is not up to his good will. He is not being helpful at all. I did not say anything about the Bill coming from some outrageous rabid Right-wing lot. It is my practice to judge issues, not on their origins, but on their merits.
The Minister has tempted me to digress. One of the troubles with politicians of all parties is that they are sometimes a bit prone to judge an issue on where it comes from rather than on its merits. I remember Arthur Deakin once saying to me at a Labour party conference that if I moved a resolution saying that the sun shines by day and the moon shines by night he would have no hesitation in casting his block vote against it because I had moved it. I do not operate on that basis. I am trying to take a close look at the Bill. I have been burning the midnight oil. I went to bed at 3.10 this morning, after taking a close look at its merits and demerits. I hope that what I say will faithfully and honestly reflect a serious analysis of the Bill and nothing else.
§ Mr. Buchan
I think that the Minister was referring to the comments that I made. I said that the Bill could not be taken in isolation. It must be taken against the background of political attacks on broadcasting which is especially significant and dangerous. That is different from saying that the Bill is only some isolated Right-wing crude manifestation.
§ Mrs. Dunwoody
I have no doubt that my hon. Friend's examination of the Bill is sincere and exhaustive, but I ask him not to abandon too lightly the theory that one should always look at the person who is moving the motion. Some of us were brought up on Ernest Bevin's dictum that one looked not at the wording of the motion but at the so-and-so who was moving it.
§ Mr. Mikardo
That is one of the many ways in which the late Mr. Ernest Bevin committed gross errors of judgment. There were many such errors.
The first of the 16 grounds on which I suggest that the Bill is more flawed than that of the hon. Member for 1348 Davyhulme is that it reproduces a laundry list that is not altogether dissimilar from the one that the hon. Gentleman and his supporters abandoned in the Committee on that Bill, because in debate they found that it was not practical and could not be implemented. So I ask myself whether we should burden a Standing Committee on this Bill with the fag of going through that abortive process all over again.
When I consider a private Member's Bill, I have it very much in mind that many others come after it. If we have a long Committee stage, as we had on the obscene publications Bill last year, to no effect at all, we are preventing other hon. Members in the ballot, some of whom have worthy Bills, from having the chance of proceeding with their Bills. That is the first of my grounds for saying how flawed the Bill is.
§ Mr. Cash
Both the hon. Gentleman and I sat on the Committee on the previous Bill. He said that it had no effect at all. Does he accept that there have been substantial changes in the guidelines as a result of what went on in that Committee, and that it did a great deal of good? We hope that this Bill will do even more.
§ Mr. Mikardo
The hon. Gentleman may be right, but he is only guessing. Of course there have been substantial changes in the guidelines, but the hon. Gentleman has no method of knowing—nor have I and nor has anybody else, except those who wrote the guidelines—to what extent those changes have been made as a result of the debate, in which the hon. Gentleman and I participated, on the previous obscene publications Bill. There is no effect that can be proven.
Secondly, the term "grossly offensive" is vague, indeterminate and subjective. It will be applied inconsistently according to the robustness of outlook of justices and juries in different courts in different parts of the country, or even in the same court. It involves subjective judgment. I have:t in mind that only two days ago the House rejected, in the context of the word "evil", the idea of basing the law upon a subjective judgment on a word the definition of which was inevitably imprecise. Today we should not try to do something that the House said it did not want to do the other day.
§ Mr. Patrick Nicholls (Teignbridge)
I acknowledge the danger in the idea that the words "grossly offensive" may be subjective, but surely the hon. Gentleman will agree that the concept of "depravity" and "likely to deprave" is also subjective? The logic of his argument is to go right back to the beginning and say that all the obscene publications Acts should be repealed. Is that what he is saying?
§ Mr. Mikardo
I was asked a few moments ago what I thought should be done. I promised that I would say so before I finished my speech, and I repeat my promise. I am glad to give way, even on a repetitious question such as that. I hope that no one will complain about the length of my speech, which so far has been about three times as long as it would have been had there not been all those interventions.
My third point again concerns the question: how long is a piece of string? What is meant by "a reasonable person"? Are we talking about one reasonable person, a lot of reasonable persons, a majority of reasonable persons, or a person as reasonable, shall we say, as some 1349 of the cranks who write a lot of letters to us? We all get them, do we not? They all think that they are reasonable, do they not? They do not think that they are cranks. We know that they are, but they do not. They all think that they are reasonable.
§ Mr. Neil Hamilton (Tatton)
There is no difficulty with that point. For example, the whole of the English law of negligence is based on the concept of reasonableness and the reasonable man. Individuals can take a different view of the reasonableness or otherwise of an action, but is the hon. Gentleman really saying that because we cannot provide a hard and fast rule, which everybody can accept, we should not have a law of negligence, just as he seems to be saying that there should be no law of censorship?
§ Mr. Mikardo
I am not saying that. I shall not be tempted to go too far in answering the hon. Gentleman, because I am not a lawyer. I do not want to talk about things that I have no competence or authority to talk about. I can only say that I read what seemed to me to be a learned piece the other day by a distinguished lawyer who argued that there is a difference between reasonableness in respect of a fact, such as negligence, and reasonableness in respect of perception. The Bill is about perception. Nothing is more indeterminate, vague and subjective than a perception. The very proverb thatBeauty is in the eye of the beholderis clear evidence of that.
§ Mr. Brian Sedgemore (Hackney, South and Shoreditch)
My hon. Friend says that he is looking for a definition of "a reasonable man." I am a barrister, and I cannot give it to him. However, the American definition of a "reasonable man" is the person who goes home at the weekend, takes off his jacket and mows the lawn. The British definition of a "a reasonable man" has been said hitherto to be the person who rides on the Clapham omnibus. The trouble with that is that there is no Clapham omnibus.
§ Mr. Mikardo
That is one trouble. The other trouble is that it excludes women from having any judgment at all. That is one of the problems with "a reasonable man".
There has been some discussion on my fourth point, notably in the speech by my hon. Friend the Member for Paisley, South (Mr. Buchan). He referred to the whole concept. Under the Bill as drafted the makers of a film could be convicted on a single frame—a split second. It could be said to be "grossly offensive". The hon. Member for Cannock and Burntwood says not to worry about that, that one often makes amendments to Bills, and that he will amend this Bill to include the whole concept. That is not an amendment.
§ Mr. Mikardo
That is right. The hon. Member for Cannock and Burntwood is seeking, as I ventured to say in an intervention, to persuade the House to vote today to give him leave to bring in a Bill that is different from this Bill. That is not just an amendment; it is a total rewriting of the Bill. It is going back to the experience last year, when a Bill was rewritten twice.
§ Mr. Mellor
The sponsor of the Bill has gone off to address a more august audience than us on the Jimmy Young programme, so I must represent him. [HON. MEMBERS: "Disgraceful."] The best legal advice that I have suggests that the item must be taken as a whole in the Bill as drafted. It is surely not rewriting the Bill to suggest that, in so far as there is any doubt in people's minds, those words could be added. The hon. Gentleman's point is not a terribly good one.
§ Mr. Mikardo
I am not a lawyer, and I shall not argue about the law with lawyers. I was surprised to hear what the Minister said in the intervention that he promised not to make.
The Bill specifically mentions items, and an item is not a thing taken as a whole. We do not want to repeat last year's experience of rewriting a Bill in Committee.
Fifthly, the new test does not allow the court to take into account the overall purpose and intent of a publication. For example, the makers of a film against the dangers of drug abuse may be convicted if a single scene is "grossly offensive", although the shock that it causes may be therapeutic and beneficial. The scene may have been put in deliberately for beneficial purposes.
§ Mr. Mikardo
The scene may be designed to deter people from taking drugs, but the film's makers can still be convicted on the basis of a single scene.
Sixthly, the new test does not require any viewer or reader to be grossly offended. A publisher, author or producer, or even a cameraman, can be charged and convicted even if no one has seen the material. The law could be applied by reference to a reasonable person's outrage at the very thought that a so-called shocking film was being shown privately to people who were not shocked by it. That is absolutely fantastic. In that respect, the Bill can be described only as a killjoy's charter.
Seventhly, the new test will convict persons not only for publications produced by them, but forany further publication that could reasonably be expected to follow".In the somewhat convoluted logic of the Bill, a television producer could be convicted by a court that is grossly offended, not by the film being screened on Channel 4, but by the possibility of its being screened elsewhere at some other time.
My eighth point is that clause 2 gives the prosecution a wholly unfair advantage in being able to proceed at the same time on the old test and the new test. It specifically allows evidence which is admissible only on the first test, and which is rejected on that score by the jury, to be used to obtain a conviction for infringing the second. I am told by a lawyer that that position is unparalleled and unprecedented in our law. It is legislation that permits conviction on inadmissible evidence, and if that is not a legal defect I do not know what is.
Ninthly, in applying the obscenity law to television and radio, the Bill incriminates an extraordinarily wide range of persons employed by, or associated with, television companies. Responsibility for the production of a film or documentary that is allegedly grossly offensive may, on the ordinary principles of complicity, reach the boards and general managements of the IBA and the BBC. In addition, clause 3(2) provides thata person also publishes an article if the matter recorded on it is included by him in a television or sound broadcast.1351 The matter is included in the television or sound broadcast by the studio floor manager. It is included by the cameraman and by the sound recordist. The clause would make a large number of people liable to procedure and prison sentences.
§ Mr. Cash
The hon. Gentleman is on the verge of an important point—the issue of a contractual relationship between the producers and, in the case of the IBA, the statutory authority or, in that of the BBC, the chartered body. I should be interested to see how the hon. Gentleman develops that point. The way in which the contract is drawn up and enforced needs careful examination.
§ Mr. Mikardo
I am sure that the hon. Gentleman has a point, but I rest on what the Bill says, and particularly on the two words "by him". Anything inserted by anyone in the film or documentary makes him liable.
My tenth point is that clause 4(2) declares that any person whohas an article in his ownership, possession or control with a view to the matter recorded on it being included in a television or sound broadcastis guilty of keeping an obscene article for gain if any part of it is regarded as grossly offensive. If one looks hard at that, it is objectionable for two reasons.
First, it treats television tapes and films with so-called offensive contents as if they were dangerous drugs that would incriminate anyone who possessed them even for a short period—such as the van driver, or the motorcycle courier who conveys the article in transit from one place to another. Such a person has it in his possession and control. He is taking it to be broadcast, and he certainly falls under the hammer of this part of the Bill.
The second objection to that phraseology is that, as a result of clause 1(1)(b), it covers not only finished film that is ready to be broadcast or shown in the cinema, but unprocessed film and edited film. We all know that when film is being shot film makers shoot 15 times as much footage as will be used in the end product. They then edit it and leave bits out—because they are blurred, did not come out right or did not fit in. Great changes can be made and large lumps are always left out.
Under the Bill a person is guilty if he has the original rush even though nobody has had a chance to look at it for the purposes of selection and editing. Just imagine the problems that that will cause for film makers dealing with laboratories and editors. The problems will be endless. In this respect the Bill is a blunt instrument which fails to take into account editorial processes in which so-called grossly offensive material may be reduced or eliminated prior to transmission. We cannot stop a person from going to court to prevent the showing of a film that would not be in the least offensive when it came to he shown because some offensive passages would have been edited out. There is no defence on the part of the producer. He is liable if there is anything that a person thinks offensive in the original rush.
My eleventh point is that the Bill provides a defence if the accused can prove,that he did not know and had no reason to suspectthat offensive matter would be included in a broadcast. That defence is largely ineffective, because, first, incredibly, it does not apply to the offence committed by possessing the tape or film prior to broadcasting. Therefore, it does not exculpate the motorcycle courier, 1352 the errand boy carrying the film. Secondly, it reverses the burden of proof in the case of material that has already been broadcast. We should all be concerned about that.
My twelfth point is that the Bill applies the public good defence to radio and television broadcasting. In a rather strange and curious way it applies only clause 4(1), which states the offence but does not apply clause 4(2), which permits experts to testify in support of the defence. This may be a mere oversight on the part of the hon. Member for Cannock and Burntwood, but it suggests that he is determined to ensure that no expert is ever allowed to testify for the defence in a case brought under his Bill.
My thirteenth point is that the Bill not only provides a new test which enormously broadens the area of the potentially obscene, but harnesses police powers in that broad area. We may well see reasonable policemen walking the beat in Charlotte street, which is the address of Channel 4, and in Shepherds Bush, which is the address of the BBC, empowered on occasion to enter the premises of the BBC or Channel 4 with obscenity warrants which entitle them to seize, if need be by force, not merely associated articles but an" documents found on the premises which relate to a trade or business carried on at the premises.
If there is a complaint, a policeman can go into Television Centre and seize anything in the place, because there is nothing in that place that is not associated with the trade or business carried on in the premises. The police can seize anything, even if it does not have the least connection with the so-called grossly offensive item. They can seize all that is in the can for the next 20 issues of the East Enders. I can put it another way. Even though there is not a complaint about a single item, we could go on having endless repeats of the farcical police raid on the Glasgow premises of the BBC in connection with the Zircon film.
One effect of all this would be a substantial increase in police time and public money devoted to detecting and prosecuting so-called gross offensiveness in films. books, magazines, videos, records and television studios. While the police are doing all that, they are using time that they could use to prevent people from being mugged or burgled and in apprehending the criminals who have committed those crimes.
My fourteenth point is that the Bill will create considerable problems for the existing film and video classification system. It will almost certainly mean the end of the 18R certificate category and will require further cuts in 18 category films to remove scenes to which a reasonable person, who might never choose to see the film in question, could conceivably take exception.
My penultimate point is that one very bad feature of the Bill is that it makes no provision for any right to jury trial. As I said earlier, there were a number of interventions from Conservative Members, who said that what I am saying may be right, but that it would sort itself out because juries are sensible. In the main juries are sensible and will see that no ridiculous things come about as a result of this Bill, but there is no right in the Bill to have a jury. The Director of Public Prosecutions, on his own say so, has discretion to proceed by way of a forfeiture summons in a local magistrates court, whereby a single stipendiary magistrate, or two or three plain justices, may order destruction of a film before it has been shown. There may be jury trials in some cases, but there is no guarantee of a jury trial. Hon. Members who support the Bill cannot rest on the argument that if there is any potential nonsense 1353 My last point is all-important. It is obvious from the speeches and interventions that the Bill will require lots of legislation. It will be an absolute bonanza for lawyers and there will be a great deal of time wasting in the courts.
I have listed the objections to the Bill, and perhaps I may be allowed, without detaining the House for too long, to expand a little on a few of those objections.
I want to say a little more about the so-called gross offensiveness test. This focuses on what might really be called gut reaction. It focuses upon the instant response of shock or disgust to particular pictures, either visual or conjured up in words. The party to the action is described as a reasonable person, but that is merely a code for a tribunal that will decide the issue. A reasonable person will not decide; the magistrate or jury—if there is a jury trial—will decide, and the term "reasonable person" is really a code name for them. As judges and juries will, of course, always regard themselves as reasonable, they will test the material according to their own personal, subjective and immediate responses.
"Offensive" really means that an offence is being caused or that offence is taken, whether on grounds of morals, politics or aesthetics. I find some programmes on television offensive because they are not very well made. I find some offensive because they are boring. I told the Committee during discussions on the Obscene Publications (Protection of Children, Etc.) (Amendment) Bill that the only item that I had seen that was mentioned throughout the proceedings was "Sebastiane". I said that that programme had no tendency to corrupt or deprave me, but had a very powerful tendency to bore the pants off me.
§ Mr. Cash
Is the hon. Gentleman aware that the wordsof a grossly offensive characterhave been adjudicated on in the courts? Is he aware that the courts stated that those wordsmust be calculated to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable man"?That was stated in Malvern v. Bradbury.
§ Mr. Mikardo
Well, well. The courts are saying that "offensive" means anything that causes offence. That is what that message means. I hope that the hon. Gentleman will think for a moment about that message. All that states is that anything is offensive if it causes offence. That does not take us much further.
There can be many definitions of the word "gross". I think that the hon. Member for Cannock and Burntwood thinks that, in the context of the Bill, it means "extreme". "Gross" does not have to mean extreme. It can mean obvious. Therefore, something that is "grossly offensive" may not be "extremely offensive".
§ Mr. Nicholls
Surely the problems that the hon. Gentleman foresees will be taken care of by the fact that the DPP will have to give his sanction for a prosecution to take place. Presumably the hon. Gentleman does not think that the average DPP will be quite so lilly-livered as other members of the public.
§ Mr. Mikardo
The hon. Gentleman must have missed part of the debate. I have already dealt with that point in some detail.
§ Mr. Neil Hamilton
The hon. Gentleman is creating difficulties that do not exist. The proposal in the Bill 1354 tightens up the rules that exist at the moment. Section 4 (1)(a) of the Broadcasting Act 1981 applies to independent television. It contains an obligation on the authority to ensure that no programme is broadcastwhich offends against good taste or decency.In its annex to the agreement and licence, the BBC accepts responsibility not to broadcast programmeswhich offend against good taste or decency.That obligation is either already imposed by statute or is voluntarily accepted by the broadcasting institutions. It involves a test that is less stringent than that proposed in the Bill. I am surprised that the hon. Member for Bow and Poplar (Mr. Mikardo) does not welcome that tightening up of the law.
§ Mr. Mikardo
I am surprised at the hon. Gentleman's intervention. If he is saying that the proposal already exists and is implemented, why do we need fresh legislation? That is a very simple question. The plain fact is that the use of such a broad test cannot justify protecting citizens from gratuitous offence which they do not seek out. That is the key.
The mischief of the Bill is that it applies the concept to material which citizens choose to read or view and judges that in accordance with the artificial reaction of someone who does not choose to see or read it. In all friendliness, I say to the hon. Member for Cannock and Burntwood that that is the basic defect in the Bill.
We can get some idea of the material that might be seized under the gross offensiveness definition from the practices of Customs and Excise officers. If we consider seizures under the prohibition against the importation of indecency, we can see how widely those officers interpret decency when they decide what to seize. Such seizures have included a vast array of homosexual literature. In the "Gay's the Word" case, the haul included novels by Gore Vidal, Jean Genet and Oscar Wilde. It included books warning against AIDS, books depicting the art of Rowlandson, Gillray, and Aubrey Beardsley, and a sex education manual promoted by the Unitarian Church. I do not know whether the Bill's supporters include any Unitarians. If so, they should think twice about the wickedness of the church of which they are members, which is a potential purveyor of material that would be considered grossly offensive under the Bill.
Those seizure proceedings serve as a warning that there will not necessarily be consistency in the approach of different courts, juries, policemen and lawyers in the office of the Director of Public Prosecutions.
There is a famous obiter dictum of an American judge, William O. Douglas, in a gross offensiveness case. He was a very wise old chap, although sometimes he sounded world-weary. I suppose that someone who sits on the United States Supreme Court for some years is bound to get a little world-weary. He said:People are offended by many offerings made by merchants in this area. They are also offended by political pronouncements, sociological themes, and by stories of official misconduct. The list of activities and publications and pronouncements that affect someone is endless. Life in this crowded modern technological world creates many offensive statements and many offensive deeds … There are regimes in the world where ideas 'offensive' to the majority … are suppressed. There life proceeds at a monotonous speed. Most of us would find that world offensive. One of the most offensive experiences in my life was a visit to a nation where bookstalls were filled only with books on mathematics and books on religion.1355 In short, the test of gross offensiveness is far too vague and subjective to be a fair or proper criterion of guilt for an offence which carries a penalty of three years in gaol. This vague definition could ruin a man's career and land him in gaol for three years. It is clearly aimed at regulating and limiting artistic freedom.
A fundamental principle of criminal law is that it should be sufficiently certain to enable citizens to know what the law is and to regulate their conduct so as to avoid committing any crimes. The gross offensiveness test would fail completely to provide that necessary certainty and predictability.
Against my contention it may be urged that the laundry list, set out in paragraph (a) of what I imagine is subsection (2) of clause 1, provides an element of definition and clarity. I wish to take a close look at the five items in that laundry list. The first of three items of the five would rule out large parts of classical literature, large sections of classical sculpture, all of which are a cherished part of our heritage.
§ Mr. Mikardo
If the hon. Gentleman wishes to intervene, I will gladly give way. I am not by any means the best speaker in this House, but I am the best one at giving way. I will gladly give way, but I wish that the hon. Gentleman would not sit there muttering because we may mishear him and do him the injustice of thinking that he has said something that he has not said.
§ Mr. Cash
The hon. Gentleman is very kind and he always gives way in a considerate manner. Does the hon. Gentleman accept that, if he is right, many of our classical publications could already have been proceeded against under the Obscene Publications Act 1959? They have not and they will not and that is that.
§ Mr. Mikardo
I do not know whether the hon. Gentleman is right, but I know that this licence to proceed against publications is extremely wide. It would embrace a great deal of our classical heritage. I assure the hon. Gentleman that I could spend — I will not because I know that we wish to proceed with the debate—the rest of today giving a huge list of all the items of literature, painting and sculpture that would fall foul of one or other of the first three definitions.
I confine myself to listing only a few of the many parts of the Bible and the works of William Shakespeare that will fall foul of those three provisions. The first provision states:acts of violence or cruelty (of any kind)".With regard to the Bible that would have ruled out the film—I do not know whether hon. Members remember this film; it must be all of 20 years ago — "Samson and Delilah". It was a pretty poor film, but it gave a lot of pleasure to a lot of people. As far as I am aware, it did not corrupt or deprave any of the viewers into going out and trying to kill a thousand people with the jawbone of an ass. However, that film would have been rules out by this Bill. The slaying of the first born, portrayed in one of the earlier biblical films—I cannot remember its title—would have caused that film to be ruled out.
As my hon. Friend the Member for Paisley, South has already said, the provisions would rule out the scene of the murder of the king in "Macbeth" and would rule out the scene in "Julius Caesar" when he was stabbed in the forum. Indeed, the hon. Member for Cannock and 1356 Burntwood has said that they would rule out a great deal of the news coverage of wars, civil wars, terrorist activities and so on.
The second item in the laundry list is:incidents of a horrific nature".That would rule out any depiction of the crucifixion and it would rule out "King Lear".
§ Mr. Gerald Howarth
The hon. Gentleman is seeking to rehearse the boring old arguments that he produced last year—
§ Mr. Howarth
The hon. Gentleman believes that it would be inconceivable that a jury would not convict if the crucifixion were portrayed or if Gloucester's eyes were gouged out on stage. Is he convinced that a jury would convict in such circumstances?
§ Mr. Mikardo
If the hon. Gentleman is bored by my speech he is at liberty to go back to Jimmy Young. If he had been in the Chamber all the time, he would not have asked that question because I have already answered it. — [Interruption.]
§ Mr. Howarth
There is no need for the usual rabble. Iam genuinely sorry that I was not here for all the hon. Gentleman's speech. He has been speaking for almost 25 minutes longer than I, and I took a long time. I left the Chamber briefly to convey the message to a wider audience and I apologise for being absent.
§ Mr. Mikardo
I do not mind the hon. Gentleman leaving. I confess that I did not even miss him. However, I do mind him wasting time by asking me to repeat an answer to a question.
The third of the five items in the laundry list issexual activity (of any kind)"—the words "of any kind" are weighty words—or acts of force or restraint which are associated with such activity".The inclusion of the words "of any kind" makes the ban very wide indeed since it applies to much more than fornication itself. The words would rule out in the Bible the story of Judah and Tamar and the story of David and Bathsheba and, in Shakespeare, it would rule out "The Rape of Lucrece."
The fourth item in the laundry list isgenital organs or urinary or excretory functions".The words "genital organs" would rule out many classical masterpieces and sculptures which depict genital organs.
The words "urinary or excretory functions" would rule out a travelogue on the city of Brussels, which includes the fountain in the Grande Place. Fancy ruling that out just because it shows that little fellow in the fountain.
§ Mr. Buchan
That is an important example. My hon. Friend will remember the marvellous suspense film "The Wages of Fear" in which the driver and his mate take a truck of dynamite to the mountains. When they are through with their tense and dangerous journey the men stop and stand at the side of the road and urinate together. It is a marvellous expression of companionship and relief and a most important part of the story.
§ Mr. Mikardo
I remember that sharp scene. It certainly had a message. A similar scene appears in Brecht's 1357 "Coriolanus", a very important play. It throws a totally new light on the Coriolanus story. One of the most important pieces of dialogue in the play takes place when two centurions talk while standing side by side, as hon. Members of the House sometimes talk, when standing side by side in the loo relieving themselves. Of course, in the hon. Gentleman's text, urinary or excretory functions are not confined to human beings. Therefore, the urinary or excretory functions of animals are included.
§ Mr. Mikardo
It would rule out polo at Windsor. It would also rule out pictures of mounted police attending demonstrations, any farmyard scenes, and a film about a day out at the zoo. The more that one examines the list, the more one realises that it is ridiculous.
The fifth item in the list is more serious and valid. It relates to the taking of controlled drugs. Unfortunately, that would rule out out—I am sure the hon. Gentleman did not intend this — any film designed to persuade people not to take or to stop taking drugs.
Perhaps the hon. Gentleman will explain to the House the words:Any article … made or intended fo use in connection with … sexual activity (of any kind).He properly added a proviso:other than an article manufactured for use primarily for the purposes of birth control or for use primarily for the purpose of preventing the transmission of sexually-transmissible diseases.In other words, the Bill will ban the showing of such an article unless it is shown for beneficial purposes. We would all go along with that, but there is no similar proviso in respect of item No. 5 in the shopping list. The Bill does not state:Provided that the scene does not have the intention of dissuading people from taking drugs.There is a considerable inconsistency. Taken literally, the text means that a film such as "Christiane F", which graphically depicts the degradation of drug addiction to warn against it, could be the subject of a prosecution.
I apologise to the House for speaking for so long. It is a terribly complex issue that needs to be analysed with great care.
There is a profound objection to a criminal sanction or a ban that, prima facie, would apply to many works of recognised cultural merit. As my hon. Friend the Member for Paisley, South pointed out, as he has done before— he has given much thought to this element of art—part of the function of art, literature, film, documentaries and, above all, satire, is precisely to jolt reasonable people, to make them re-examine complacent assumptions. A good deal of creative imagery makes use of sexual or violent themes as part of that process, frequently with a deeply moral purpose, which all of us would support.
By taking gross offensiveness as the yardstick of guilt, the Bill enables prosecutions to be brought against articles of recognised social or artistic merit, leaving publishers to exculpate themselves — if they can — by proving that merit outweighs offensiveness. Again, as my hon. Friend said, the possibility of prosecution is a deterrent to creating and publishing offensive art.
Few writers, few film makers and even fewer executives and adminstrators would welcome the prospect of a fortnight in the Old Bailey dock, however likely it is-that, 1358 at the end of the fortnight, they will be acquitted. That is the answer to the point put to me by the hon. Member for Stafford (Mr. Cash) who said that juries would not convict in a manifestly invalid case. It can take 18 months before a case comes to court. The poor chap is under a cloud for those 18 months. Then he has to spend a fortnight going through a tedious trial and cross-examination in the Old Bailey. He could be tempted to say, "If there is the least doubt that a Mrs. Grundy might get hold of this, let us not do it at all." The Bill will stifle a great deal of creative art.
I object to the Bill because of the chilling effect of the new test in authorising .police and prosecution action, an effect that will be particularly marked on institutions in the film and television industry. The Bill will create a climate of caution and fear in which works that are potentially offensive because they are radical will not be commissioned, made or broadcast because of possible risks. This is not a climate in which innovative and exciting television and cinema can flourish.
It must be appreciated that the breadth of the gross offensiveness test is a form of state power which is being extended to lawyers in the office of the Director of Public Prosecutions. It is they who can authorise police action, as the hon. Member for Cannock and Burntwood pointed out, on inscrutable subjective perceptions of anything on television or in literature that they think is offensive. The DPP, under the Prosecution of Offences Act 1979 which creates the office of the DPP, works under the "superintendence"— a strange word—of the Attorney-General who is, of course, a member of the Government and who may take into account the political considerations, in the widest sense of the word "political" rather than the party sense, in approving or encouraging prosecutions. It follows that the Bill creates a situation in which legal bureaucrats, working through police obscenity squads, will be given a new role in defining the limit of artistic freedom, a role for which they have no qualifications; hence, the scope for political censorship is greatly increased.
It is doubtful whether, if the Bill had been on the statute book in 1979, a programme such as "That Was The Week That Was" would ever have been made or shown. It is doubtful whether Mr. Jasper Carrott would be able to operate if the Bill had already been passed. There could easily be censorship of things which politicians find grossly offensive.
§ Mr. Gerald Howarth
Does the hon. Gentleman understand that the broadcasters accept that they are acting in the role of censor? All the Bill seeks to do as regards broadcasters is to say, "We want to give the public an opportunity to call your judgment to account." To do so the public have to persuade the DPP. There are enormous hurdles to overcome. If anything, the Bill is far more modest than it should be.
§ Mr. Mikardo
That may be what the hon. Gentleman thinks, but I do not think that that conclusion would be reached by any independent person studying the Bill. If a judgment about the potential offensiveness of an item has to be made, those who work in the media, who are subject to guidelines, and do a good deal of research to monitor and amend the guidelines, have more qualifications to judge than a lawyer in the office of the DPP who, knows nothing about the medium on which he is acting as a censor. If the hon. Gentleman is not willing to take my 1359 word for it, I shall quote a greater authority, Lord Reid, who was a most distinguished jurist. He warned against reactivating the old offence of conspiracy to outrage public decency—a concept to which the Bill gives a new lease of life. In a famous judgment, Lord Reid said:If there were in any book, new or old, a few pages or even a few sentences which any jury could find to be outrageously indecent, those who took part in its publication and sale would risk conviction. Notoriously many old works, commonly regarded as classics of the highest merit, contain passages which many jurymen might regard as outrageously indecent. It has been generally supposed that the days of bowdlerizing the classics were long past, but the introduction of this new crime"—I interpolate, the introduction of the Bill—might make publishers of such works think twice. It may be said that no prosecution would ever be brought except in a very bad case. But I have expressed on previous occasions my opinion that a bad law is not defensible on the ground that it would be judiciously administered.That point reinforces the one that I made some time ago.
§ Mr. Cash
The hon. Gentleman has placed a great deal of emphasis on that case. Will he also give weight to what the IBA says in the introduction to its television guidelines, in which it states:The guidelines are not necessarily the last word on the matters to which they refer. 'These guidelines are therefore not designed to fetter normal editorial discretion' and that they do not constitute a code under the Act itself.Therefore, the emphasis that the hon. Gentleman places on the guidelines is demonstrably false.
§ Mr. Mikardo
I am not putting emphasis on the guidelines. I am saying that the people who drew them up and agonised over them for years — they were always commissioning research to see if the guidelines were valid and altering them if the research pointed in that direction—were likely to be better judges of the matter than a lawyer in the DPP's office who went straight from the Inns of Court to that office and has been immured in it for several years.
It is not merely a question of bowdlerising the classics. The Bill would include many programmes of satirical and social importance. "Spitting Image" makes use of gross images which are offensive to many people, especially those who are being imaged. There is the particular instance of the Murdoch puppet, which directly contravenes clause 1(2)(a) (iv) of the Bill every time it breaks wind, because that is an excretory function. Documentaries about famine in Africa and "War on Want" advertisements may contravene clause 1(2)(a) (ii) by portraying incidents of a horrific nature, as they do.
I shall turn to the test of a reasonable person. The Bill judges gross offensiveness by reference to the sensibilities of a reasonable person. The immediate problem is that reasonable people have different thresholds of taking offence. Since the taking of offence is a subjective reaction, this standard merely adds to the uncertainty that I have mentioned. When punishment is measured by years in prison, it is wrong to judge an individual guilty by reference to artificial standards.
Most crimes are of guilty intention — a subjective appreciation in the mind of the defendent that his or her conduct is wrong. The Bill does not require any prosecution to prove mens rea—that is to say, it is not required to prove knowledge on the part of the defendant that the publications will shock. It imputes guilt whenever a tribunal retroactively decides that a publication would shock a hypothetical person were that person ever to see 1360 the publication. Publishers cannot know in advance what sort of reasonable person will be constructed by the tribunals judging the work and in consequence they cannot possibly foretell by what standard they will be judged.
§ Mr. Neil Hamilton
It seems that the only way in which we shall be able to get our points across is through making interventions in the speech of the hon. Gentleman, rather than making them in our own speeches. The hon. Gentleman seems to be advancing the argument of the universality of mens rea in any criminal act. I wonder whether he voted for making incitement to racial hatred an offence, notwithstanding that it was not the intention of the person uttering the words or taking the action 'to incite racial hatred. I would be surprised if I did not see the hon. Gentleman's name hn the list of those voting in favour of that provision, notwithstanding mens rea.
§ Mr. Mikardo
I cannot remember how I voted. However, the hon. Gentleman's intervention is irrelevant because the legal provisions in respect of incitement to racial hatred are useless. They are defective and not properly enforced because of the difficulty of bringing villains to justice under them. There is no comparison between what I am saying and the point that the hon. Gentleman makes.
The other objection to a reasonable person as a standard is that the Bill fails to give any direction as to quantity. The danger is that the direction of guilt or innocence could depend on what direction the judge gave to the jury as to the proportion of reasonable persons whom the prosecution had to prove were shocked. One judge might think it is sufficient if one person was shocked, while in a different court in another part of the country, or in the same court three weeks later, another judge might say that it needs more than one person, because that one person might just be a one off, or a person with a particularly low threshold for taking offence. There is an element of uncertainty hanging over the producer of the work.
§ Mr. Nicholls
That is precisely the point that I put to the hon. Gentleman at a time which now seems many hours ago. The whole drift of his argument would seem to call for the repeal of the Obscene Publications Act. I am sure that his constituents would be interested to hear that, and now would be a useful opportunity for him to fulfil the obligation that he accepted to answer that point.
§ Mr. Mikardo
The hon. Gentleman should not waste the time of the House, and should not unnecessarily lengthen my speech. He put that point to me earlier, and I said that before I finished I would answer it with precision. I say again that before I finish my speech I will answer that point with precision. If he is present to hear that, I shall welcome his presence.
I shall now say something about the return of what is called the purple passage—a single passage that causes offence. The most important and overdue reform that was achieved by the Obscene Publications Act 1959 was requiring works of art and literature to be judged "as a whole". It ended a century of forensic philistinism in which books by Zola, de Maupassant, D. H. Lawrence, James Joyce, Radclyffe Hall and others were deemed obscene because of a so-called "purple passage"—in some cases, a single sentence lifted out of context. That practice was 1361 obviously grossly unfair, and much of the freedom enjoyed by literature since the Act is a result of the dominant effect principle enshrined in section 1.
The new Bill ignores section 1(1), and applies the test only to articles described by section 1(2). The "taken-as-a-whole" qualification will not apply to articles alleged to be grossly offensive. This is where the hon. Member for Cannock and Burntwood will have difficulty in amending the Bill in the sense in which he says that he wishes to, when he returns from his interview with Jimmy Young. It follows that if any passage or sequence, or even a single frame in a film, is apt to cause shock and dismay, a prosecution can be brought.
In 1959, the Select Committee on the Obscene Publications Act stressed the importance of considering the dominant effect on the whole work. It stated:The contrary view, under which a work could be judged obscene by reference to isolated passages without considering the total effect, would, if taken to its logical conclusion, deprive the reading public of the works of Shakespeare, Chaucer, Fielding and Smollett, except in expurgated editions. We therefore recommend that regard should be paid in any legislation to the effect of the work as a whole.There is, I am told by a lawyer friend, a very clear and, in some respects, amusing illustration of that on the legal records. A long time ago, when Asquith was an eager junior counsel, he was hired by an organisation called the National Vigilance Association—it was the forerunner of the National Viewers and Listeners Association—to prosecute purveyors of "dangerous" French literature. He recalled the episode in his memoirs:I spent the best part of a fortnight in a long vacation with scissors and a pot of paste in hand in a diligent quest for the most objectionable passages in M. Zola's voluminous works".
Well, he did not waste his time. His summer of smut-spotting won the day. The purple passages from M. Zola, set down out of context in the indictment, so grossly offended the jury that they demanded that they should not be read aloud, and the poor old bookseller was gaoled. It is not without interest that Mrs. Whitehouse has adopted a similar tactic in screening extracts from television programmes to convince hon. Members of the need to pass the Bill.
The abandonment of the "taken as a whole" qualification and the absence of any requirememt for the prosecution to prove an intention to offend means that there is no scope, in applying the new test, for any consideration of the purpose. The theme, the message and the intention of the work. As my hon. Friend the Member for Paisley, South said, anger and outrage are entirely valid emotions to arouse in a cause as part of the political or social argument for a change in perceptions. Reactions of shock and outrage have been part of the prerogative and function of drama from the very early days of the classical Greek theatre.
When scenes that arouse these emotional responses are plucked out of context and dissected in a court room, the result is grossly unfair to the publisher or the broadcasters. That is particularly the case when the defendant's motive is good. Under the Bill, motive is irrelevant. Somebody who produces a work that is designed to raise the moral standards is as much a victim of this legislation as sombody whose purposes are objectionable or whose 1362 purposes are not decent. There is no scope for defendants to testify about their purpose. Surely nobody thinks that that is fair.
Another reform of fundamental importance to the proper operation of the obscenity laws, as established by Parliament under the 1959 Act, is the requirement that directs the court's attention to the effect of an article on its likely audience. We are referring to damage being done to people. If there is no damage, what are we worrying about? We worry about it only if damage is caused. No article is obscene per se. Its potential for causing harm must be judged according to the character and reactions of the persons who are likely to see or to read it. That is an obviously fair and reasonable approach.
For example, it seems that explicit material may be shown to particular interest groups who would not be affected by it. Doctors, research workers, lawyers and policemen may see it. The real question is whether the publisher of written or visual material is to be condemned as a criminal for causing harm to a reasonably foreseeable group of consumers. The Bill abandons that audience control approach in favour of a test that pivots on the causing of dismay to the person who might be termed the reasonable busybody. What is criminal is not the shock or disgust that are caused to the consumers, who may in no way be disturbed by exposure to this material, but the shock and disgust that are aroused in sombody by the very idea that other consumers may enjoy the material.
Subsections (3) and (4) of clause 1 deem an offence to have been committed where a reasonable person regards either a particular act of publication orany further publication that could reasonably be expected to follow from that publicationas grossly offensive. That makes it plain that the Bill seeks to protect people not from gratuitous exposure to outrageous material but from becoming angry or outraged at the thought that the material is being seen and enjoyed by others. That is nothing but a killjoy's charter.
That raises a fundamental philosophical problem for this legislation. It is aimed not at protecting anybody from direct assault by the depiction of physical acts, but at protecting the hypothetical individual from the thought that others may, of their own volition, be exposing themselves to ugly words and pictures. For example, a magistrate must ask himself not whether he is offended by the article in question but whether he is offended at the thought that such an article, even if it does not offend him, might be seen as offensive by others.
The liability goes further. Publishers are liable not merely for shocking the court by virtue of a particular publication, but for shocking it at the prospect of further publications for which they are not directly or morally responsible. Whenever republication, for example by third party copy, is reasonably foreseeable, conviction may follow even though the original publication is inoffensive. The result of such prosecutions will again be to impose a suffocating caution on film makers and television producers. They must exclude not only exclude material that magistrates might find to be grossly offensive, but must exclude footage that might be extracted by video techniques and become offensive when used in circumstances over which the publisher or producer has absolutely no control.
I have said a good deal about clause 1 and I shall deal much more briefly with clause 2. Clause 2 violates what I have been told is legally correct in three respects. First, it 1363 allows the prosecution to have two bites at the cherry of conviction by putting its case in alternative ways. It can allege that the article tends to deprave and corrupt and, if that allegation is rejected, the prosecution can invite the court to convict on the basis that the publication is, in any event, grossly offensive. Since those tests involve entirely different questions, the prosecution is manifestly given an unfair advantage.
Secondly, that unfairness is reinforced by the provision that allows evidence introduced in support of one ground to be used to obtain a conviction on the other ground. Such a situation, I am told, is unprecedented and unparalleled in English criminal law. It could work, and will work, in a thoroughly unsatisfactory way.
Evidence may be called under the existing law in relation to a film about drugs to show that the drug in question induces corrupt behaviour. The court may decide that the film does not promote drug-taking so test one is not made out. However, the court may go on to use that evidence to convict the film maker on test two on the basis of emotions of shock and disgust generated by hearing the otherwise inadmissible evidence.
Alternatively, the court may hear, pursuant to test two, all sorts of allegations made by complainants who have been offended by the film suggesting that it corrupts in insidious ways. The court may find that the film itself was not grossly offensive under test two but use the otherwise inadmissable hearsay allegations to bring in a conviction under test one.
What is grossly unfair about that procedure is that the defence, in contrast to the double open door of the prosecution, will be strictly limited to the orthodox rules of evidence and will not be able to call evidence to rebut the prejudicial allegations.
The third reason why the proposal is objectionable is that it is clearly a more serious crime to corrupt than to offend but the Bill makes no provision to distinguish between the two. Therefore, film makers, authors and television executives are in danger of being sent to prison for corruption after a trial in which the jury did not find them guilty of corruption but merely of causing offence.
One particularly offensive feature of the Bill is that it envisages and statutorily encourages raids on television studios, film laboratories, and private homes, to seize taken, unedited film, even unprocessed film, prior to its being broadcast. Clause 4(2) extends criminality under the new test to anyone who has offensive material in his possession or control. The Bill, unrealistically, in the context of what happens in film and television, fails to take any account of the changes that would have been made in the editing process and of the fact that a product that is proposed to be broadcast and is offensive would, by the time it was edited and came to be broadcast, not contain anything offensive.
Subsection (4)(b) provides a wholly inadequate defence for those who are within the range of criminal complicity but in reality are not responsible for the publication— that is, the ancillary staff, whom I mentioned. They have the burden of proving, first, that they did not know of, and — not "or" — secondly, that they had no reason to suspect the presence of offending material. The thing that is wrong with that in principle is that it reverses the burden of proof. There is no good reason why the prosecution should not be obliged to prove, as an element of charge, that the defendant knew of the impending shocking broadcast. Indeed, if the promoter of the Bill seeks to have 1364 a fair Bill, there is no good reason for him not to require the prosecution to prove mens rea, as it must in most other serious crimes. Were that the case, defendants could be convicted only if it were proved that they intended to cause gross offence.
In any event, the protection afforded in the Bill is minimal. A governor of the BBC could not avail himself of that protection, for example, if there had been stories in the press about the allegedly shocking contents of a film. The governor would have reason to suspect that it was offensive because a newspaper said that a television programme was coming that was offensive. The law would enable Mrs. Whitehouse to stop anything ever being shown, by calling a press conference and saying that a programme was coming up, and although she had not seen it and did not know what was in it, as a reasonable person, she would be grossly offended by it. It could be stopped, and everything else could be stopped.
§ Mr. Gerald Howarth
That is absolute nonsense, and the hon. Gentleman knows it. Mrs. Whitehouse, or any other concerned citizen, would have to prove to the satisfaction of a magistrate or ultimately a jury that a reasonable person would find such a programme grossly offensive. It is not a matter of whether one individual who goes along and sees the Director of Public Prosecutions finds it offensive. What is more, the hon. Gentleman knows it, and should have the honesty to tell the House that he knows it.
§ Mr. Mikardo
The hon. Gentleman has every right to say that what I am saying is nonsense. He has absolutely no right to say that I am putting forward nonsense knowing it to be nonsense. That is imputing motives to me in a manner that is inconsistent with the traditions of the House and the courtesies that Members of the House show to each other — at least, the courtesies that the decent Members of the House show to each other. After that, I shall not give way any further to the gentleman whom, out of courtesy, I must still call the hon. Gentleman.
It is too easy to obtain advance publicity for a forthcoming publication, which can then be blacked merely because of that publicity. It could then be said that everyone connected with the publication — even the motorcycle courier carrying it from the editing laboratory to Broadcasting House—knew that it was going to be offensive because a press conference had been told that it was, and they should have read the newspapers.
Clause 4(7) purports to extend the public good defence to television. Does it really do that? I doubt whether it does. By a remarkable oversight it includes only section 4(1) of the Obscene Publications Act 1959, which states the defence, and not section 4(2), which permits experts to testify in support of it.
Many people believe that Penguin Books would have been convicted for publishing "Lady Chatterley's Lover" if distinguished experts had not testified to its literary merit. In any event, the clause 4 defence does not provide satisfactory protection. Once again, the burden of proof is shifted to the defence, leaving the jury to cope with the wholly illogical exercise of balancing artistic merit against gross offensiveness. How does one measure offensiveness? How is it weighed against artistic merit? Section 4 of the 1959 Act was not designed for television and the cinema, but for literature. The specific grounds for defence arethe interests of science, literature, art or learning, or of other objects of general concern.1365 The word "learning" has been construed to mean the product of scholarship, so it is highly doubtful whether most documentaries or current affairs programmes could be defended under clause 4 because they do not claim to be works of scholarship.
Sex education has specifically been held by the courts to fall outside the clause 4 protection. Therefore, revelations made by anyone with the purpose, for example, of getting expert advice from properly authorised counsellors could fall foul of the law.
I want now to fill in a passing reference that I made earlier to police powers. It should be clearly recognised that extending the scope of the test of obscenity involves a concomitant and wide extension of police powers of search and seizure. Indeed, the enactment of new criminal law imposes a duty on police to investigate alleged breaches, either of their own volition, or as a result of public complaints. However, there can be no doubt that the enactment of the Bill would dramatically increase police activity, as bookshops, libraries, art galleries, museums, television studios and cinemas were scoured for evidence of material that caused gross offence to people who were as reasonable as a divinely inspired chief constable, such as Mr. James Anderton. Such are the inconsistencies of the law in its enforcement that films and dramas that are shown, for example, on the ITV network may require cuts when shown by Granada in the northwest but not when shown by TVS in Hampshire and Dorset.
The British Board of Film Classification, as we all know, operates a sophisticated system of censorship that is based on existing obscenity law and considerations that are applicable to audiences of different age groups. The Bill produces all sorts of difficulties for the board because the test of gross offensiveness will have to be adopted at every level of the classification system. The board is already required to have regard to a video's suitability for viewing in the home. The Bill requires the board to have further regard to whether a reasonable person might take offence at any scene being observed in the home. The penalty for failure might lead, conceivably, to prosecution of the British Board of Film Classification or to prosecution of its officers.
I wish to make a couple of final points and I renew my apologies for having detained the House for so long. The rhetoric in support of the Bill has assumed that all cases will be tried by jury and it is assumed that juries can be trusted to resist unreasonable prosecution. I think that the hon. Member for Stafford said that. I think that is so in many cases, but it is not invariably true. In any event, it should be recognised that the Bill, like the existing Act, does not provide any right to trial by jury. It is for the prosecuting authorities alone to decide how a prosecution shall proceed and, therefore, whether a jury will be empanelled.
For a lot of the time, perhaps for most of it, the trial will be before a stipendiary magistrate or two or three local justices of the peace. If they are grossly offended by the material, or at least by the thought that it might be published for persons other than themselves, they will make a forfeiture order requiring the police to destroy all copies of the article — not merely the offensive section but the whole item even if the offensive section is only 1 per cent, or less — and the police will be required to 1366 destroy the whole of the article found in their jurisdiction. A power exercised by local worthies to destroy artistic works on the grounds of offence of their own personal subjective sensibility is neither a satisfactory nor an acceptable procedure for censorship of films or televsion.
Finally, I shall answer the question put to me by two Conservative hon. Members. One of them put it once and the other put it twice in identical terms. I was asked what I would do about it. In answer to that, I shall repeat what I said earlier. This is an area of great complexity and great difficulty. The hon. Member for Cannock and Burntwood said that there are difficulties and he never said a truer word. The area is much too difficult and involved and concerns too many people in one way or another to be a proper subject for a private Member's Bill. It ought to be carefully researched and there should be wide consultation on the product of that research before legislation is introduced by the Government of the day.
I hope that the next Government will set up, either through the Law Commission or through some other appropriate body, an authoritative inquiry into the whole of this subject. I hope that the inquiry is not too long drawn-out. I understand that there is not enough time in this Session for such a procedure. On the basis of the findings of that inquiry the Government should produce a Green Paper for wide consultation. They should then take all the expert and non-expert views into account and produce a Government Bill that will avoid all the pitfalls that the hon. Members for Davyhulme and for Cannock and Burntwood have struggled with and have not managed to avoid. I believe that we need a fresh law on obscenity. However, we should not try to introduce that in a glib, superficial and therefore inevitably defective way.
§ The Minister of State, Home Office (Mr. David Mellor)
It is a great pleasure, and indeed a privilege, to follow the hon. Member for Bow and Poplar (Mr. Mikardo). He is a most distinguished Member of the House and will be much missed when he is no longer with us. I cannot for the life of me understand why he is giving up when, in his 79th year, he has treated us to such a tour de force. Although I did not agree with all that he said, I think—as I have said before in these debates—that we are in the presence of one of the foremost parliamentarians, certainly in my time in this House. I wish the hon. Gentleman well. I have not enjoyed a performance by a member of the older generation so much since I saw Bill Fraser as the drunken photographer in "When We Are Married" at the theatre at the other end of Whitehall. No other parallels must be drawn from that. Both were classic exponents of art. I am glad to have heard the hon. Gentleman speak. I am sorry if his speech kept a few other hon. Members from speaking, but the hon. Gentleman had obviously thought very carefully about what he wanted to say.
It was also a pleasure for me to hear the comments of my hon. Friend the Member for Esher (Sir C. Mather), who is elsewhere at the moment. He made his first speech in the Chamber for 10 years, not through any lack of diligence as a Member of Parliament, but because for that period he was rendering distinguished service in the Whips' Office. It was very good to hear my hon. Friend.
I congratulate also my hon. Friend the Member for Cannock and Burntwood (Mr. Howarth) on bringing forward the Bill and on the manner in which he presented it. This is a difficult subject on which to legislate. Many 1367 are called, but few are chosen. All of us would agree that a balance must be struck between the need to maintain freedom of expression and the need to inhibit those who abuse that freedom. As the debate has illustrated, difficulty is caused in agreeing upon where that balance should lie. However, we all agree that at the very least there is room for improvement in the present statutory arrangements.
We need not be reticent in coming to grips with the issue. Over the past eight years—largely it must be said, due to initiatives by Conservative Members—a number of measures have been introduced to strengthen the law on obscenity. They have not had dire consequences. Their consequences have been entirely beneficial. It is appropriate that my hon. Friend the Member for Hove (Mr. Sainsbury) is present in the Chamber, because he introduced the Indecent Displays (Control) Act 1981, which prohibits the display of indecent material in a public place, and has worked extremely well. No one would regard that as anything other than a most useful piece of legislation.
The same is true of the Cinematograph (Amendment) Act 1982 introduced by my hon. Friend the Member for Fareham (Mr. Lloyd), which removed the exemption of bogus cinema clubs from the licensing controls in the legislation on cinemas. The Government introduced the licensing of sex shops in the Local Government (Miscellaneous Provisions) Act 1982. Finally, I am glad that my hon. Friend the Member for Luton, South (Mr. Bright) is present in what otherwise is becoming rather a connoisseur's event. My hon. Friend the Member for Luton, South introduced what is now the Video Recordings Act 1984, and that represents one of my happiest memories of my time in this place. I believe that Parliament came to grips with a major problem at that time, in that we legislated on video nasties. We had support and help from both sides of the House. Whatever other problems we must face in society—and we must face many—the video nasty is certainly not the problem that it was. Indeed, if my area is anything to go by, the video nasty is no longer a problem of any dimension. For all that, we must be careful to steer between the Scylla of laxity and the Charybdis of repression. We must be clear that Parliament has begun to get down to serious work over the past decade and has made a number of major improvements.
This is not an issue on which only the narrow-minded are entitled to be heard, and it is not a subject about which only the narrow-minded are worried. I make that point especially to the hon. Member for Paisley, South (Mr. Buchan), who seemed to think that only a small fringe of people were worried about the subject. That is not the case at all. I hope that we can avoid a dialogue of the deaf in which verbal haymakers from those who believe that "EastEnders" is a threat to civilisation as we know it are matched by verbal haymakers from those who would claim that any change to the present law strikes at the heart of artistic endeavour. In my four years of responsibility for the obscenity laws I have heard much of each, and I have had enough of both. They do not illuminate a discussion that should take place on a more sensible and mainstream basis.
Perhaps I flatter myself excessively by claiming not to be narrow-minded, but I certainly know that I am worried, and I believe that we should all be worried. We should not focus on a narrow prurience about sex, but we should be 1368 worried about extreme and sadistic violence—especially extreme and sadistic sexual violence, of which far too much is depicted.
I have been a Home Office Minister for more than four years. Although I am not quite as old as the hon. Member for Bow and Poplar, I am old enough to be on my third Home Secretary, which is a sign of age creeping on. As a Home Office Minister, I have had to consider crime. Although I note that violent crime is not increasing as rapidly as other crime, and not as rapidly as it did in the late 1970s, it is still a major problem in our society, as perceived by all of us, not least by our constituents. Although it is true that under 1 per cent, of all offences are serious violent crimes, much of that 1 per cent, seems to be very nasty indeed and, in some respects, getting worse. I remember what that distinguished Metropolitan police woman, Thelma Wagstaff, said about rape becoming an increasingly nastier offence, with much more gratuitous violence being added. I cannot put out of my mind the thought that some of it must be influenced by the violence to which we have become so inured on the silver screen.
I appreciate that those matters are difficult to prove and that some people overdo the comparisons, but some of the material that we see tends to turn talkers into doers, or at least influences the way in which doers set about doing it. We should be worried about that.
§ Mr. Mellor
I shall not give way too much, because the only consequence would be to prevent other hon. Members from speaking, which I do not wish to do. I shall give way this once.
§ Mr. Cash
Did my hon. Friend note the remarks made by the right hon. Member for Plymouth, Devonport (Dr. Owen) about violence on television and the fact that, unlike my right hon. Friend the Prime Minister, the right hon. Gentleman did not vote for the Second Reading of the Obscene Publications (Protection of Children, Etc.) (Amendment) Bill last year? We have yet to discover whether he will turn up today, but it is clear that not one alliance Member has turned up at any point this morning.
§ Mr. Mellor
The right hon. Member for Plymouth, Devonport (Dr. Owen) said that broadcasters should consider halving the amount of sex and violence shown on television for an experimental period, and the suggestion attracted many people. Although I do not wish this to become a partisan debate, I do not believe that it is partisan to observe that there is no alliance representative here. It is very regrettable.
As I said, I cannot put out of my mind the thought that some serious crime, or the way in which it is carried out, might be influenced by the daily diet of ever-increasing scenes of violence on the screens to which we subject ourselves, whether in the cinema, on television or via video.
As the parent of young children I cannot avoid noting the compulsion of our youngsters to watch television and video. I cannot help reminding myself of how we set out with the good intention that our children would be different and would not be glued to the television all day. However, they are glued to the television too much, even if it is not all day.
As I staggered downstairs this morning, after a week of the Criminal Justice Bill and contemplated the exciting 1369 possibility of haranguing the House yet again on this issue, my two-year-old was glued to the television. At least he was watching "The Snowman", which is one of the many substantial achievements of Channel 4. It is a beautiful film and, although I was seeing it for the 30th time, I am bound to say that I enjoyed it.
Children have been faced with a cultural revolution. I know that when the hon. Member for Bow and Poplar was growing up there was no television. My parents got a set only when I was about 11. Now our children are brought up on that box. It is hard for us to be as fastidious as we would like in controlling what they see because, as they grow older, we face the realisation that it does not much matter how we run our own home — it is what our children watch when they go to other people's homes that is important. That is why we should be concerned.
One can overstate the case. It is not part of my case, either as a Minister or speaking as an individual—if the two can be differentiated — that everything must be geared to the remote or certain possibility that children will be watching. I do not believe that that is part of the case for this Bill. We must be conscious of the fact that many of the traits in our society that we most regret and deplore, such as crime, are particularly manifest among youngsters brought up in what one might call the television and video generation. Fifteen years of age is the peak age for offences by young males and 14 years for young females. That should not cast the blame on broadcasters, but it does suggest that to question where we are going with broadcasting is not just a fringe concern.
I shall deal briefly with the specific points in the Bill as I do not wish to stand at the Dispatch Box for too long. There are two proposals in the Bill. The first is the proposal that the Obscene Publications Act 1959 shall apply to broadcasting. The second is the proposed change of the depraved and corrupt test in the 1959 Act to the "grossly offensive to reasonable people" test.
I wish to make one point abundantly clear. Whether the Obscene Publications Act applies to television does not, in any sense, affect the broadcasters' obligations to impose conditions on themselves which are far tighter than anything contained in the Obscene Publications Act. Those obligations were imposed by Parliament, not by Government, on the ITV system by the Broadcasting Act 1981 and on the BBC by the royal charter. For that reason I am bound to say that I slightly regret the article that appeared in one of the papers today under the name of Mr. Grade, BBCTV director of programmes. I appreciate that Mr. Grade meant that article as a well-intentioned critique of the Bill, but it could be seen as a suggestion that the BBC should be free to show material that is grossly offensive to reasonable people and that Parliament is wrong to inhibit the BBC from doing so. We know that is not the case. The BBC has produced a report "Violence on Television. The Report of the Wyatt Committee" and, with a somewhat more lurid cover, the publication, "Violence on Television. The guidelines for Production Staff 1987." I believe that the BBC were prompted by the Bill put forward by my hon. Friend the Member for Davyhulme (Mr. Churchill) and it is welcome that the BBC has settled down to try to address this problem of the standards that are expected in relation to violence on television.
1370 One thing that has always troubled me about the proposal to make broadcasters subject to the Obscene Publications Act — I said this last time, but I wish to repeat it — is that it might be thought by production staff that the only criterion to which they had to apply their minds was the Obscene Publications Act. That would be wrong. It would be a spectacular own goal by Parliament if Parliament were to suggest that. For that reason I have always been somewhat agnostic on that point. However, since my last opportunity to discuss this matter in January 1986 my thinking has developed in one respect. I believe that we are opening up broadcasting much more than we were. That is right because it gives the public more choice. However, we cannot open up broadcasting more and still say that broadcasting should be left entirely on one side and not subject to the general law of the land.
In the new broadcasting environment there is a case for making broadcasting subject to the Obscene Publications Act 1959, but we should be clear about what we are doing. We must insist that the standards of taste and decency imposed by the broadcasting legislation and by the BBC charter are the first line of defence for the public. The best that even the most impassioned advocate of the Obscene Publications Act can say is that it applies to one or two of the fringe films on Channel 4.I do not think that too much should be made of that.
I would hate to think that we needed a change in the Obscene Publications Act to clean up television. I do not think that we do. What we do need to clean up television is a determination by the broadcasters to live up to the standards imposed upon them by Parliament. I am delighted that on this divisive subject I have the warmhearted support of Opposition Members.
I am trying not to do what I did at 2,30 am on Wednesday and speak for half an hour because that earned me any number of black marks in the Whips' book. I shall try to be reasonably concise.
Most people think that the Obscene Publications Act is out of date in its central particulars. That does not mean that this old blunderbuss is not often effective. The Act is not a dead letter. Between 1980 and 1984 the number of convictions under the Act increased from 162 to 429. Convictions fell back to 226 in 1985 and we do not yet have the 1986 figures to decide whether that was only a temporary phenomenon.
Over the same period almost 6.5 million obscene articles were seized by the Metropolitan police alone, so the Act is not a dead letter although in one or two material respects it is a rusty blunderbus. That is particularly true with the test oftend to deprave and corrupt".Although that test appears in an Act passed in 1959 it was not formulated in 1959. Those who want to retain the 1959 Act in all material particulars should remember that the test first emerged in the judgment by the then Lord Chief Justice in the Hicklin case — in 1868. The Lord Chief Justice said:The test of obscenity is this, 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".There is nothing new under the sun. It is difficult to formulate a definition of obscenity. Even when the right hon. Member for Glasgow, Hillhead (Mr. Jenkins) was in the flush of youth—the Obscene Publications Act began 1371 as his Bill — Parliament still had to find a modern definition of obscenity and had to reach back to 1868 to what the then Lord Chief Justice said.
I found it hard to suppress a snigger at one or two points made by Opposition Members. I wonder to how many other aspects of political, legal and social thought of 1868 they feel so much attachment. As it is, the thoughts of that long since deceased Lord Chief Justice still guide us today. I wonder whether we can do better than that.
The trouble with the wordstend to deprave and corruptis that they are redolent of another age. A modern jury rightly consists of men and women of all kinds over the age of 18 and, under the Criminal Justice Bill, under 70. When the judge advises them that they must ask whether the material has a tendency to deprave or to corrupt those who might be exposed to it they have to ask what does that mean in everyday language? Are we being fair to those fellow citizens whom we entrust with the task of deciding where the line should be drawn? It almost invites that most extraordinary moment of all the many extraordinary moments in British courts when, in the prosecution of "Lady Chatterley's Lover" Mr. Mervyn Griffiths-Jones QC, a prosecution counsel, rose to his full height and said to the jury:Ask yourselves the question, would you approve of your young sons, young daughters — because girls can read as well as boys—reading this book? Is it a book you would have lying around in your house? Is it a book that you would even wish your wife or your servants to read?At least the oratory matched the antiquity of the law, although one cannot say much else for it.
I consider that the laundry list — I have thought about this for a long time and I have in no sense changed my mind on the matter—advanced by my hon. Friend the Member for Davyhulme in a valiant effort to bring the matters before the House, had some use for the reasons that we have already considered. I have always thought that the laundry list was wrong because it sought to put out a tablet of stone with a list of things that one should not see, as though that was the end of the matter. My hon. Friend does not propose a laundry list in this measure. It is proposed that a jury should have to ask themselves whether what was shown was grossly offensive to a reasonable person, within limitations.
In defence of that proposition—I could say a lot, but again I wish my remarks to be brief—I repeat what I said in an intervention. Please do not let anyone, who is determined to reject the formulation, think that it is in any sense just the offering of a fringe group who are particularly obsessed and troubled by an issue that most people can otherwise take in their stride. I have already said that people should not too readily take this issue in their stride, but the truth of the matter is that the Bill is constructed on a formula first set forth in the report of the Williams committee. It was a well-balanced committee that was established by the last Labour Government because of their concern at the state of the law on obscenity. In defence of the material part of the definition, I shall quote from the report of the Williams committee. First, let us be clear that the concept of the reasonable person lies at the heart of British justice. The idea that there is something outlandish about proposing the test of a reasonable person in this matter simply does not begin to be credible. In case anyone thinks that what I say does not matter, the Williams committee said: 1372After a great deal of consideration, we decided in favour of the definition's referring to v/hat is offensive to reasonable people. The notion of a reasonable person … is already known to the law, in connection with judgments of responsibility, negligence, and reasonable foresight. While that is a rather different kind of matter, we thought it was appropriate to apply the term to the notion required here, which is that of a person who takes a balanced view of the material in question, and is neither excessively upset by each item nor totally indifferent to everything.I could quote further—there is an extended passage on this matter. The reasonable person is someone with some sense and some appreciation of art. A reasonable person will not throw overboard a whole performance of King Lear because somebody has his eye gouged out, or fail to recognise the considerable merit of Dennis Potter, whose achievements as a playwright I appreciate and accept. The reasonable person has an artistic sense. A reasonable person applies his mind and says that if we are dealing with a sexual scene in a work by a playwright such as Dennis Potter, we look at it differently from the kind of sexual scenes that we saw in that awful thing entitled "I Spit on Your Grave". A reasonable person can tell the difference between trash and art, and this system does not give the difference between trash and art, but the sensible application of commonsense judgments by a reasonable man does. That is why this is a good measure.
Williams formulated a scheme in a somewhat different context. I do not want to pray Williams in aid for every part of this matter—it is a different proposal. Williams came up with a proposal to restrict the availability to adults-only shops of material that is offensive to reasonable people. About offensiveness, he said:the notion of offensiveness needs further qualification. There are various kinds of matters which might prove in various ways offensive to reasonable people but which would not properly be caught by a law aimed at pornography and similar material. We need a provision to make it clear what kind of offensiveness is in question. To meet this point we propose that matter should be restricted only in virtue of offensiveness which arises"—this is relevant to the so-called laundry list—by reason of the manner in which it portrays, deals with or relates to violence, cruelty or horror, or sexual, faecal or urinary functions, or genital organs. The introduction of this specification does not mean a reversion to the list approach; it does not offer any ground of restriction independent of the notion of offensiveness. It merely makes clear what kind of dimension of offensiveness is in question. This clarification of the notion of offensiveness should, we propose, be spelled out in the law governing restriction.The Williams committee was aiming at what was offensive to reasonable people as a basis for restricting availability of material to what, in effect, became sex shops. I do not think that the members of the Williams committee thought in their wildest dreams that people would stand up and say, "Television broadcasters should have the right to show what is offensive to reasonable people." The assumption was that we were dealing only with a fringe matter. The committee envisaged that people could get what they wanted in a sex shop but the rest of us should not be bothered with it. It was inherent in the committee's argument that the committee did not, at least, have to worry about what was shown on television.
It is important to see the modesty, attractiveness and force of the Bill's proposition. The three concepts are closely inter-related. All that my hon. Friend the Member for Cannock and Burntwood has done is to go further than Williams and say that the test should be a prohibition, not just a confining provision, but, so that the move is 1373 balanced — this is a balanced proposition — instead of material being offensive to reasonable persons, it should be grossly offensive to reasonable persons.
Whatever other thought any hon. Member carries with him into the Lobby, please let him not think that he will be inhibiting the sensible range of entertainment and art that should come about in a reasonable society by voting for the Bill. That Parliament should sanction a broadcasting system pushing out material over the airwaves which is grossly offensive to reasonable people is a bold proposition to be advanced by even the most far-out hon. Member. That is a high level of prohibition. I am bound to say that I consider the article by Michael Grade to be fundamentally misconceived and regrettable. I think that most broadcasters, when they reflect, will make it clear, as did Alasdair Milne, at the time of our last debate on this matter, that there is nothing that the broadcasters want to do that would put them outwith the Obscene Publications Act. It is not part of their obligations under the charter or under the Broadcasting Act to put out material that is grossly offensive to reasonable people.
§ Mr. Brinton
My hon. Friend's last statement was emphatic, and I was happy to hear it. But how does he square it with the statement by my hon. Friend the Member for Cannock and Burntwood (Mr. Howarth), the Bill's promoter, when we discussed works such as "The Singing Detective"? Does my hon. Friend support the Bill's promoter or is he saying that we shall not go down that line?
§ Mr. Mellor
I am putting the best construction that I can as a lawyer and a Minister on what the Bill does. Other people may say what they think the Bill does. I can only give as objective a view as I can of what I think it does. I hope that I have made my position clear to the House vis-a-vis Mr. Dennis Potter.
This is an important Bill because, for the first time in a long time, this legislation seeks to hit the centre of the target. The 1959 Act is a blunderbuss. It can still be fired with considerable effect at a number of people who try to pollute our society with unacceptable filth. But for too long, the courts have been inhibited in making a sensible decision. We in Parliament have permitted the perpetuation of a situation whereby juries of ordinary men and women are forced to tie themselves up in the knots of an ancient and out-moded formulation — the tendency to deprave and corrupt. We have an opportunity to support a proposition which takes and uses much of the thinking in the Williams report, adapts it to a new use and which says that, in the end, all that we can do as decent and civilised members of society is to try to protect ourselves and others from matters which are grossly offensive to reasonable people.
We accept art; we accept the challenging role of art and nothing in the Bill inhibits the challenge that art has rightly down the centuries thrown at the feet of some of us who are not so inciteful. I hope that we shall give the Bill a Second Reading.
§ Mr. Alfred Dubs (Battersea)
The matters that we are discussing are of importance to many people in the 1374 country. While I agreed with the first part of what the Minister said, I did not stay with his arguments in the second part of his speech.
We are talking, to a large extent, about television. I accept that the Bill is not confined to that, but we all have television in mind. Hon. Members are less well qualified than others to discuss these matters, because I suspect that our average number of viewing hours a week is significantly less than those of the rest of the population. I am hard put to remember having seen a fraction of the films that are frequently talked about as I simply did not have the opportunity to watch them. However, we have a responsibility in this matter which I am happy to accept.
One of the concerns that has been raised is the effect that television viewing has on people's attitudes, and therefore on their values and behaviour. Those relationships are clear, and if we are convinced that viewing certain types of material leads to a form of behaviour which is reprehensible, we should say that if that relationship can be established such material should not be shown, although it is not as easy to establish that relationship in practice as it may be in theory.
Another matter is that of good taste. Programmes can be shown on television which will not affect attitudes or behaviour, but which some people dislike because they are not in good taste and would prefer such programmes not to be shown on television. The Bill covers both of those ways of looking at the material. I have been appalled by some of the material that has been around in recent years. I was happy to support the Video Recordings Act 1984, which was introduced by the hon. Member for Luton, South (Mr. Bright). I well remember my shock and amazement that such dreadful films could ever be made. Scotland Yard showed us some samples of those films when the Bill was proceeding through Parliament.
I have never believed that anything goes, but we are not talking about material that is normally as extreme as those video nasty items. There was no doubt about the right course of action to take in that case, and the House almost unanimously took it. We are talking about films and bits of material which are not normally objectionable enough to be caught by the Bill, if the Bill is to be interpreted in the way that the Minister suggested.
I share the view of my hon. Friend the Member for Paisley, South (Mr. Buchan), who talked about the drip effect of violence. Surely the problem is that we have on television a diet of films which do not portray violence to such an extent that any one of them would be caught by the Bill, but which show bits of violence which cumulatively, week in, week out, have an effect on people who are vulnerable to such matters. I do not like that, and most people do not like it, but I cannot easily see how we can draft legislation which will stop it without going too far and stopping other matters.
§ Mr. Chris Smith
I have been following my hon. Friend's argument with care and I agree with it wholeheartedly. However, is not the problem sometimes that the individual episode of, say the "A-Team" would not be in any way grossly offensive to any reasonable person, but, because of the way in which it sanitises violence and does so week after week, it has a potentially deleterious effect on the minds of the people watching it?
§ Mr. Dubs
I agree completely with my hon. Friend, and that is the nub of many of the concerns that people have.
1375 How can we devise legislation which will prevent that when, if we take one episode in a film, nobody could reasonably say that that ought not to be allowed? It is the cumulative effect that is so damaging. By that test, the Bill will not succeed.
§ Mr. Cash
Should there not be consistency as between the two wings of broadcasting organisations which this provision in the Bill achieves? I can give one example. There is a difference on acquired material as between the provisions of the BBC code and those of the IBA. Would the hon. Gentleman like to reflect on that?
§ Mr. Dubs
There may be merit in consistency. One of my concerns about the Bill is that it might result in even less consistency. I shall come more directly to that point later.
It is violence to which most people object, but particularly if it is violence associated with sex.
A second type of material to which many of us object — and my hon. Friend the Member for Birmingham, Ladywood (Ms. Short) will say something about that if she catches your eye, Mr. Deputy Speaker—is the treatment of women as sex objects. One might not necessarily take objection to every page 3 photograph, although many of us probably would. However, those pictures which I suspect would not be caught by the Bill have an effect on men's attitudes because they belittle women's bodies in the eyes of men. That is their intention. They say that women's bodies are there for the use of men. That is why many of us object to them, even if a single photograph might not have that effect. However, week in, week out, a steady diet of such pictures has such consequences.
§ Ms. Clare Short
By my reading of it, those page 3 pictures would not be touched by the Bill, which does not answer the clamour from women to get rid of page 3.
§ Mr. Dubs
I agree with my hon. Friend, I am making that point because this is a defect in the Bill, which does not address itself to the widely held public feeling that some action is necessary.
A distinction can be drawn between two other subjects that may be portrayed. There is a difference between portraying something that may offend good taste but is within the experience of most people — for example, ordinary sexual activity—and portraying violence, which is still outside the direct experience of most people. I do not believe that it corrupts people to show them something which normally happens, although their good taste may be offended. However, it may have a damaging effect on people's behaviour if one shows them pictures of something that has been outside their experience, but which television, by its powerful impact, encourages them to copy in their day-to-day behaviour.
The hon. Member for Cannock and Burntwood (Mr. Howarth), apart from saying that he disliked one scene in "The Singing Detective", said that he thought that his Bill had the advantage of giving the public more say. I beg to differ. I think that the public will have more say if we can get the television authorities to adhere to their guidelines. We can debate those guidelines, and pressurise the BBC and the IBA either to apply them more tightly or, if they are inadequate, to devise better ones.
§ Mr. Gerald Howarth
I agree that if we can apply pressure, it is so much the better. But has not the very fact that we are debating the issue put the broadcasting 1376 authorities under the microscope and made them examine the guidelines? All that we are proposing today is a long-stop.
§ Mr. Dubs
Debates are good, and if they make the BBC and the IBA think harder, that is a desirable outcome. It is the Bill that may not be a desirable outcome.
The danger, which the Minister mentioned, is that the BBC and the IBA will say, "The legislation is a sanction, so we need not worry so much about our guidelines." That would weaken the existing controls on the type of material that is put out. The consequence of the Bill would thus run counter to the hon. Gentleman's aims. That is another reason why I think that it goes down the wrong path.
I should much prefer us to say to the broadcasting authorities, "We do not like your guidelines; we want them tightened up." That would be a much better way of doing things, because the guidelines have the flexibility that no amount of drafting skill can achieve in legislation. That is why we are not of one mind on what we all object to.
I appreciate that hon. Members do not wish to hear a list of swear words; that would not be appropriate. Nevertheless, the programme producers need to know whether "bloody", or a certain type of scene, is permissible. Otherwise, how can they control the material that we see?
If the words in the Bill, and the speech by the hon. Member for Cannock and Burntwood, are not clear enough, we shall confuse the television producers and the broadcasting authorities who must decide whether the material should go out; we shall also cause confusion in the minds of the police, magistrates and juries. If we are not clear, how can they understand what we are talking about?
The hon. Member for Cannock and Burntwood did not make his position clear to me. One outcome of his argument, and of the Bill as drafted, is that because children can view anything that appears on television at any time of the day or night — whether on videos or directly — pressure will be put on the broadcasting authorities to keep in mind the likelihood that children are watching. I should not like children to be exposed to some of the material that is shown—quite rightly—in the late evening, but in the real world that cannot always be prevented. I should not like the more adult programmes that we can see later in the evenings on all four channels to be banned because children might be watching them.
We did not face that dilemma before television, because cinema classification worked fairly effectively, although, of course, children found it a challenge to go into films that they were not allowed to attend, and in most cinemas it was fairly easy for them to do so. We had controls then, at least in theory. Now we do not have them even in theory, except parental influence and sanctions which, as we know, are fairly difficult to apply.
There is a weakness in our approach, and we must resolve it. We cannot lay down legislation while saying, "We do not know what we will do about children. On the one hand, they should not watch; on the other hand, we concede that they are going to." We must decide, as a society, whether television should, at some time in the evening, show programmes for adults and run the risk that children may be watching.
My approach would be to remain in dialogue with the BBC and the IBA to ensure that the guidelines do what we believe they ought to do. If we do not speak with one voice, 1377 the IBA and the BBC will have difficulty in responding to the criticisms of Members of Parliament and members of the public. In the past I have complained to the broadcasting authorities about the films that they have shown, and it may have helped to take some of the violence out of some of the programmes. That is the right approach.
I am concerned about the fact that there would be two separate tests: the depraved and corrupt test and the grossly offensive test. They could not easily co-exist. We should be weakening the position of juries. If police action resulted in the forfeiture of material, juries might not even be able to look at it. We should be adding a greater element of unpredictability and inconsistency to what is already a difficult area. We might therefore be asking of the broadcasting authorities more than is reasonable.
I dislike violence on the television screen; I think that there is too much of it. However, by exerting pressure on the broadcasting authorities, I hope that we shall be able to reduce it.
One of the few television serials that I watched from start to finish was "The Singing Detective". The day after the scene referred to by the hon. Member for Cannock and Burntwood, I was astonished to find that it was the subject of speculation in the press and complaints. It is right that hon. Members should realise that there are differences of view about it. My view is that, set in context, it was a highly moral scene. A young boy saw his mother having sexual intercourse in the woods and was shaken by what he saw. From that point onwards in the serial one was aware of the traumatic effect that it had had on that young boy. The net effect of that scene, in context, was highly moral, and it takes a rather dirty mind to see it differently.
One consequence of the Bill would be that the publicity about AIDS would lack the freedom that it now has. There are people who believe that the answer to AIDS is one sexual partner, or abstinence from sexual activity. The policies of other people, such as the Secretary of State for Social Services, are more liberal. However, I fear that some of the useful publicity on television would no longer be permitted.
I echo what was said by my hon. Friend the Member for Bow and Popular (Mr. Mikardo) that Bills, year after year, on this important subject do not lead to sensible discussion and to the right answers. The starting point is whatever the private Member chooses to include in his Bill. We are not generating as much light as we should in such a difficult area. I should prefer a new Williams committee, or a Royal Commission, or another body to set out all the arguments relating to television, after which the House and the country would decide.
§ Mr. Dubs
It did not cover television. Television has changed the scene; so has cable, which was not even thought of when the Williams committee was considering the problem.
A dispassionate and objective approach is needed. Then we can debate the problem and decide how best to protect those who need to be protected. I do not like the Bill. I shall not support it.
§ Mr. Allan Stewart (Eastwood)
The hon. Member for Battersea (Mr. Dubs) made an interesting speech but I am sure that he and the House will forgive me if I do not pick up the many points he made because time is short. This is an important debate and a large number of hon. Members on both sides of the House wish to contribute. We have heard a two-hour contribution from the hon. Member for Bow and Poplar (Mr. Mikardo). As my hon. Friend the Minister said, it was a masterly contribution. That was entirely in order and one pays tribute to his knowledge, expertise and concern about the subject. However, in a limited debate of five hours a speech of two hours from one hon. Member is a grave discourtesy to other Back Benchers on both sides of the House, many of whom have given up constituency engagements to be here today.
The issues raised by my hon. Friend the Member for Cannock and Burntwood (Mr. Howarth) in his Bill are important, and I congratulate him on his good fortune in the ballot, on his good sense in the topic chosen and on his courage in bringing back this subject and, hopefully, taking it through the House.
My constituents have surprised me on this issue by the volume of correspondence I have received not from any sort of organised campaign but from genuine individuals who are concerned—
§ Mr. Bill Walker
Is my hon. Friend aware that exactly the same has occurred in north Tayside, so I would have thought that it was fairly representative of the Scottish view?
§ Mr. Stewart
I am grateful to my hon. Friend for confirmation of the concern in Scotland on this issue. It is interesting that a large number of Scottish Members have been present — [Interruption.] The hon. Member for Paisley, South (Mr. Buchan) has spoken.
§ Mr. Buchan
For greater accuracy, I should say that the hon. Gentleman and I share a border in our constituencies. I have had four letters on the subject.
§ Mr. Stewart
It may be that the hon. Gentleman's constituents are more selective about the topics on which they write.
§ Mr. Stewart
There are differences in Scotland. We have our own local press and we have local input to our broadcasting networks. Nevertheless, the concern is the same. I believe that many people feel that we are often subjected to metropolitan and permissive values emanating from an elitist attitude in parts of the London media. The basic view that broadcasting has a role in somehow giving messages and images designed to change thinking and behaviour is one that concerns many people.
There are two major points in my hon. Friend's Bill. He is correct to bring forward an alternative to the "deprave and corrupt" test under the Obscene Publications Act 1959. My understanding of the Bill is the same as that of the hon. Member for Battersea. I believe that my hon. Friend the Minister referred to my hon. Friend's test as a "substitute". As I understand it, it is an alternative. I believe that the existing test satisfies nobody. Libertarians believe that it is too wide, and those at the other end of the spectrum believe that it is too narrow and difficult. The judiciary is clearly unhappy about the law as it stands as 1379 has been made clear by numerous people such as Lord Wilberforce, Lord Justice Booth, and Lord Denning who said that he believes that the Act has misfired.
My hon. Friend's test as to whether an article is "grossly offensive" to "reasonable" people is, as my hon. Friend the Minister said, a test of high standard. It is a test that refers to the concept of a "reasonable person" as embodied in the law. Prosecutions would be subject to the safeguards of the Director of Public Prosecutions being involved.
Many hon. Members have talked about television and violence on television. I agree with the hon. Member for Islington, South and Finsbury (Mr. Smith) who pointed to the importance of what one might call the desensitisation process. I believe that the evidence that specific violence on television leads to violent behaviour is rather mixed and uncertain. However, what concerns many people is the fact that over time initial repugnance may turn to acceptance of violent behaviour on television. There is a danger that the acceptance of violence as a means of resolving disputes may change how people view peaceful as against violent behaviour. Violence on television is more dangerous, the more realistic the context in which it is shown.
Hon. Members on both sides of the House have referred to the importance, good sense and comprehensiveness of the codes and guidelines produced by the IBA and the BBC, but the key to the debate is whether the broadcasters should be the judge and jury in their own cause. That is the key to how hon. Members should vote on Second Reading. The Bill would make the broadcasting authorities more accountable for any departures from their guidelines and statutory duties. It represents a practical way in which aggrieved members of the public can challenge decisions to broadcast, with the safeguards to which my hon. Friend the Member for Cannock and Burntwood referred.
We should give the Bill a Second Reading. It addresses an important problem, which concerns many people of all political persuasions throughout the United Kingdom. I support it.
§ Mrs, Gwyneth Dunwoody (Crewe and Nantwich)
When one discusses morality in the House, one is in danger of getting into a complicated situation because everybody defines morality in a completely different way. One man's morality is somebody else's prudishness. One woman's morality is frequently regarded by the male of the species as unrealistic and unacceptable. Thus it is always worrying to see the House of Commons addressing itself to a major change in legislation on the basis of its moral stance.
I am always concerned that the House, at a time when we face real problems in the economy, still finds an enormous amount of time in which to debate changes which, in some instances, take us back to circumstances in the theatre in the days of the Lord Chamberlain's Office, and into a form of censorship which owes its existence not to a close and fairly balanced examination of the material, but to a number of highly subjective tests.
When I was a junior Minister, one of the first things that I was told by lawyers, who are the bane of any lay Member's life, was that the things that should be looked for with great care in any legislation were that it was carefully written, that it meant what it said, that it did not include phrases such as "deemed to be", that it was not 1380 capable of two types of interpretation, and that when presented to the House it would not be rejected on the basis that it was not common sense. I therefore find it depressing when, at the end of a week that has not been noticeable for the balanced nature of its discussion, we come to another Bill that is highly subjective in the way in which it is interpreted.
I listened with great care to what the Minister said. I hoped that he would take it upon himself to answer many of the points that have particularly concerned my hon. Friend the Member for Bow and Poplar (Mr. Mikardo) and those of us who see the Bill as an exceedingly woolly and dangerous catch-all piece of legislation. I am sorry to say to the Minister, whom I respected very much for the stand that he took on the Bill last year, that I did not find the same clarity of thought or even of expression in his speech today—
§ Mrs. Dunwoody
Let me explain what I mean. I do not say that in any spirit of personal criticism. I say it because I came here to have from the Government an explanation of how they view what I regard as a defective piece of legislation.
During the debate, Opposition Members raised specific points. Let me give just one example. I am not at all clear whether the Minister still accepts that, under the legislation if it goes through in its present form, we shall have two definitions — the old "deprave and corrupt" and the new definition. If that is so, does the Minister accept that it is the proper way to proceed? I imagined that he would set out for us not only the Department's view but the Government's view of where the Bill was legally defective. I am sorry to say that I did not find that in his speech.
Indeed, the hon. Member for Cannock and Burntwood (Mr. Howarth)—I am glad to see that he has rejoined us — acknowledged that the legislation was defective, because he said that if there was a problem we could change the Bill in Committee. That is exactly what happened last year with the Bill that was introduced by the hon. Member for Davyhulme (Mr. Churchill). We found ourselves in an extraordinary position. Hon. Members came to Second Reading and voted on what they thought was the text of a Bill that would deal with obscenity. It contained the famous laundry list, and was rapidly seen to be embarrassingly laughable. It then went to Committee, where the hon. Member for Davyhulme altered it twice. He also accepted amendments on Third Reading, so the Bill was changed again at that point. He then expected the same number of hon. Members to support his legislation, even though it was clearly wholly different from that on which they had originally voted.
The present Bill is much wider in its implications and seems equally defective in its drafting. The first time that a specific point was raised, the hon. Member for Cannock and Burntwood said that if there was a major defect we should not worry about it too much, as we could change it in Committee. I am delighted to give way to the hon. Gentleman, whom I always treat with politeness.
§ Mr. Gerald Howarth
I shall endeavour to show the same courtesy to the hon. Lady, despite the fact that she tried to interrupt me when I was making my speech.
I was not responding to the first criticism that was voiced in the Chamber. When I introduced the Bill, I made 1381 it clear that I was responding to criticisms that had been made to me by, for example, the Booksellers Association of Great Britain and Ireland and the British Videogram Association. I am sure that the hon. Lady would think me unreasonable if I were not willing to listen to reasoned argument.
§ Mrs. Dunwoody
I might think the hon. Gentleman unreasonable, but not on that basis. He is saying that, since the Bill was printed, its defects have become clear, and he has received representations about them from the people who would be affected by the legislation. If so, the point that I am making is still valid.
The legislation is so badly flawed that those who will be affected have had to go to the hon. Gentleman, even before Second Reading, to ask him whether he has realised the implications of what he is doing, and whether he would be prepared to alter the Bill.
§ Mrs. Dunwoody
The hon. Gentleman witnessed the hilarious proceedings on the previous Bill, so he knows that it is not a matter of moving amendments, but of altering a fundamental flaw. That is quite different.
§ Mr. Chris Smith
To say that a Bill is amendable in Committee—naturally, it is—is a dangerous argument. My hon. Friend will recall that I moved an amendment to last year's Bill in Committee to delete radio from the provisions that covered television and radio. Despite the fact that the sponsor of the Bill admitted that he had no complaint to make about anything that had ever gone out over the radio, he said that because the Bill had been passed in that form on Second Reading, it had to include radio. That is a dangerous argument to accept at this stage.
§ Mrs. Dunwoody
I strongly support the views of my hon. Friend, who has put his finger on the nub of one of the problems of the legislation. I have no legal training, so I want to know from the Minister whether the scope of the Bill includes basic, important services such as news and current affairs programmes.
I should like to draw to the Minister's attention clause 1(1)(a) which will be the same test set out in a different way but which, broadly speaking, applies to sex, drugs and violence. The emphasis of the debate has been different in one fundamental respect from previous debates, because the last time that such legislation was discussed there was a great deal of debate about sex and blasphemy but we did not hear a great deal from Conservative Members about violence. Indeed, it was Opposition Members who time and time again raised the matter of those who find sexual acts perverse and obscene but were not prepared to accept that violence in itself could be equally obscene and equally damaging and something to be discussed in the House.
§ Mr. Robert Key (Salisbury)
I made a long speech last time but I have not been able to make even a short speech this time. I assure the hon. Lady that I was one of many Conservative Members who agreed with her about violence. It is violence that we should be addressing today, especially violence in young people and children. That is 1382 a bigger problem than the one which can be addressed by self-restraint through the operation of an on-off button by an adult.
§ Mrs. Dunwoody
In that case I should like to know whether the Bill will apply to news and current affairs programmes. Perhaps I can outline some of my worries. In some ways there seems to be a distinct air of unreality about our debates on obscenity. As the Minister knows, in a short time we shall face an explosion of technological change of such magnitude that we will not need to worry about videos. Beamed into Britain from satellites we shall have programmes over which we shall have no control. Their content will not be balanced in the way that our home-produced material is balanced. We shall have no control at all over the political content of those programmes, and religious sects — I use the expression lightly — could buy air time in order to beam into Britain American cults or cults of any other nationality. Those programmes will go out on our airwaves hour after hour and we will have no control at all over their content.
Do we come to the House to debate legislation about what we intend to do in the short time before that happens to change or try to control the kind of material that will be transmitted? No, we do not. Instead, we talk about how we must control the material, even material shown late at night, because some children know how to use the on-off switch on a video recorder and may therefore see material that was transmitted late at night.
§ Mr. Buchan
The arguments in favour of the Bill come from Conservative Members. Through their endorsement of the basic principles of the Peacock report and the Green Paper which has about 10 different Conservative views expressed within it, they are surrendering. We are asked if we can do anything about it. Conservatives are handing it over and away from our control altogether. It is not impossible to deal with this and it will be dealt with, but only if we win the election.
§ Mrs. Dunwoody
I am worried about precisely that point. The Bill is so widely drawn that it has all sorts of catch-all provisions. I shall outline some of the things that worry me. If this Bill becomes law there would be problems, with a current affairs programme dealing, for example, with the sexuality of young mentally handicapped people. This is a problem well-known to medical authorities and to those who have to manage mentally handicapped youngsters who are physically well-developed. As I understand it, that programme, if it honestly and accurately examined that sexuality, would find itself, under the terms of this Bill, being described as likely to cause gross offence to some person who viewed it. Indeed, if the interpretation is correct, the programme would not have to be transmitted. It may simply have been put in the can and some publicity put out about its content. After that, some other person could take action to say that it should not be put on to the television screen. If that is the position, we are moving very close to specific censorship. I am worried about the climate in which much of this legislation is being discussed.
In a sense, the hon. Member for Stafford (Mr. Cash) gave us an honest indication of the attitude of some hon. Members in one of his earlier interventions. He said that even though the Obscene Publications (Protection of Children, etc.) (Amendment) Bill introduced by the hon. Member for Davyhulme was not acceptable to the House 1383 and was found to be defective, the broadcasting authorities changed their guidelines and brought forth stronger guidelines. The hon. Member for Stafford seemed to say that we wanted them to know that we are not satisfied with that and that we will require further changes. That was my interpretation of his remarks.
§ Mr. Cash
The hon. Member for Poplar and Bow (Mr. Mikardo) suggested that the Obscene Publications (Protection of Children, etc.) (Amendment) Bill had had no effect. In response, I said that it had. The guidelines had been changed. However, my criticism was that we should not simply rely on the guidelines. We must consider the Acts and the consistency in the Acts. We should also consider the code especially in respect of the IBA. Many points about contracts must be sorted out to ensure that producers comply with the requirements laid down by the BBC and the IBA. The whole matter must be properly examined. This Bill will help materially to solve a problem that affects many people.
§ Mrs. Dunwoody
However, the hon. Member for Stafford called in aid the whole question of the guidelines. He read a quote, which I paraphrase, stating, "Of course, this will not affect editorial control, but, in effect, it is a guideline, not a rigid set of rules." That is not only highly responsible, it is the logical way to respond. The programme makers will then be aware of the lines within which they must operate. They will know that constraints upon them exist. They will also know that what they are interested in will be debated by the general public. Frankly, I do not think that this Bill will lead us on to a better examination of the problems of censorship, violence or of those things that people find morally unacceptable. Indeed, it will do the very opposite.
The Minister quoted at length from the Williams report. I find it very sad that a report that I found very interesting and useful, which the House did not choose to act upon, which has lain fallow all these years, is now called in aid, not for a Bill on the subject which the Committee examined, but for a Bill about television, which it did not encompass.
If the Minister was to say that the Government cannot accept this legislation, but will set up either an in-depth examination — I would prefer a Select Committee although I see no reason why we should not have a Royal Commission if that was acceptable — on the whole impact of violence on television or of programmes that contain sex or other material which people find unacceptable, I would be prepared to say that progress could be made with the Bill. The depressing point is that that is not the basis upon which we are debating this legislation. We are debating it because we are in the run-up to a general election.
§ Mr. Nicholls
Most of what the hon. Lady has said, with the exception of that latter point, has some considerable force. Work can be done on this matter in future. No Conservative Member would say that the Obscene Publication Acts are satisfactory. However, that is a matter for the future, as the hon. Lady has said. Surely the problem that we must cope with today is that, uniquely, the broadcasting authorities are not subject to the criminal law of the land as anyone else would be if they were handling material of that kind. Unless the hon. Lady is saying that she is dissatisfied with the Obscene Publications Acts and wants them swept away in their 1384 entirety, she should say "Yes, I want those things in the future, but today I will ensure I hat the criminal law applies to everyone."
§ Mrs. Dunwoody
The Obscene Publications Acts are still being used for the seizure of obscene printed material. The Minister did not have figures for the years after 1985, but in that year they were used to seize material coming into the country. I have no objection to them. My objection is different. As a drama student, I saw at close quarters the absurdity of the Lord Chamberlain's Office trying to control material that went into the theatres. I am sure that the censors were well-meaning, cultured and nice people, but they did nothing other than interpret what they thought would be offensive. At that time, their definition of offensive was so wide that the words "bloody", which some hon. Members used this morning, would have raised almost as many hackles as some of the explicit scenes.
Over a period, the Lord Chamberlain's Office accepted that it had reached the bizarre position of looking at scripts and saying, "We cannot envisage that as it is written. It will have to be changed." Gradually, the office, and the majority of Members of Parliament, came to accept that that was not the way to operate. A completely different set of controls operates in relation to the IBA and the BBC. The BBC charter and the IBA have specific ways—
§ Mrs. Dunwoody
The hon. Gentleman is being very pedantic, but I stand corrected. The annex to the BBC charter has specific ways of controlling the broadcasting of material. It is clear that the House should debate such matters on the basis of informed comment. We are told that some hon. Members have received some letters of objection. Although it is always throwing caution to the winds to say it, I have received no letters about the Bill. I have received hundreds of letters about what the Government are doing to the railway workshops in my constituency and about the changes to the royal ordnance factories, but I have not received one letter about the Obscene Publications Bill. When I was a member of the Committee that discussed the Obscene Publications (Protection of Children, etc.) (Amendment) Bill last year, the letters that I received were notable only for their intense amusement at the remarks made by some members of the Committee. We must put the matter into perspective.
The fact that the matter is subjective was clearly shown when the hon. Member for Cannock and Burntwood and the Minister differed as to whether "The Singing Detective" would have been caught by the legislation. Thai highlights the dangers of such a Bill. It is not just a matter of someone coming here on a Friday morning, laying down a series of his prejudices and saying, "I want to see changes in the law which would make it impossible for people to swear, for anyone to show sexual acts or for anyone to indulge in an act of violence." It is much more dangerous. It is a catch-all provision which goes much wider—
§ Mr. Neil Hamilton
The hon. Lady has got it completely wrong. At present, there is a subjective test, because the censors impose their view of what is acceptable, not that of the general public. The Bill proposes to substitute an objective test of what a reasonable man's opinion would 1385 be, as decided by a jury. That would be decided in a court of law, not behind closed doors, as at present, from which there is no appeal. At present, someone else imposes his opinion on the rest of us.
§ Mrs. Dunwoody
That is not so. Let me draw the hon. Gentleman's attention to the wording of the Bill, which goes much wider than that and concerns me greatly. The Bill states that when a person publishes an article or any further publication that a reasonable person would regard as grossly offensive it shall bedeemed for the purposes of the 1959 Act to be an obscene article".The Bill specifies, in a wider context, what will be caught by the provisions. It states that one can be convicted on the basis of alternative tests of obscenity. Therefore, there are two layers of law.
I want answers to my questions, not because I want to see the Obscene Publications Act done away with or want to see violence perpetuated, night after night, on our television screens, but because I do not want the House of Commons to accept legislation that will not do what it purports to do. In fact, it will act as a censor on a purely political—non-party—basis on all sorts of material that television should have the right and indeed the duty to broadcast all the time. I am deeply concerned about that. I had hoped that the Minister would explain what was meant by clause 4(2) which states that:It is hereby declared that where a person has an article in his ownership, possession or control … the article is an obscene article … deemed for the purpose of the 1959 Act to be an obscene articleThat is a wide, catch-all provision. If the Bill receives a Second Reading we shall argue about it for many hours in Committee. It is the sort of legislation that will be totally rewritten, not once but several times and will, on final analysis, be rejected by the House of Commons. Even at its worst, the House does not want to see legislation on the statute book that could be brought into disrepute.
In the final analysis legislation about obscenity must be workable otherwise it will be constantly mocked by those who are not concerned to maintain decent standards. It will be carried to its extreme by those who simply bring it into disuse by bringing it into disrepute. If Conservative Members are serious in their wish to provide a proper Bill they should accept that.
§ Mr. J. F. Pawsey (Rugby and Kenilworth)
Does the hon. Lady accept that many people believe that this Bill, to use her phrase, is "a proper Bill"? Many people are concerned about the damage done to the minds of young people by obscenity that appears so often in literature and elsewhere. This Bill will do a great deal to calm the apprehensions felt at present by many parents and others.
§ Mrs. Dunwoody
I object to this Bill because it will not do that. I hope that the hon. Gentleman will read what the Bill says. It is no use saying that we are setting at rest the legitimate fears of parents or those in control of young people. The Bill will provide legislation which will, I believe, have one effect, a political effect.
I believe that the BBC has responded to the attacks made upon it by the Conservative party. That is clear in the BBC's choice of people who appear on its programmes. It is certainly true of its editorial policy. Those of us who regularly listen to news programmes and 1386 current affairs programmes have detected a distinct shift in the way in which the editorial policy of the BBC is currently operated. That is in response to pressure from the House.
§ Mr. Nicholls
Does the hon. Lady accept that in one sense at last the Bill would help the broadcasting authorities because, instead of being responsible under guidelines which cannot be policed, they will be able to say, "Don't keep on about it. We are subject to the criminal law like everybody else. Go to the Director of Public Prosecutions and see if you can persuade him."
§ Mrs. Dunwoody
That would not happen because the DPP would be under constant pressure to prosecute. That has an effect, but if there were constant prosecutions, the authorities would be taken to court and even if they were found not guilty, as in the" Lady Chatterley's Lover" case, the state and the people concerned would have to spend a good deal of money and endure time under pressure to no end. We must go directly to the programme makers and make the points, backed with proper information.
§ Mrs. Dunwoody
It is precisely because I have been involved for two years running that I know that this Bill is worse than the Bill that was thrown out. The hon. Member for Stafford contradicts himself. He says that the BBC has taken notice of the proceedings on the previous Bill and is therefore operating differently, but he also says that because it has taken notice we must introduce more legislation to insist upon it changing its ways. It is extremely dangerous for any House of Commons to seek to limit in that way the editorial freedom of the broadcasting authorities when we already have legitimate controls on those authorities.
§ Ms. Clare Short
Does my hon. Friend agree that the constant repetition of sanitised violence is not dealt with by the Bill because it will lead to searching for gross, extreme and unusual violent occurrences? The second problem is the offensive portrayal of womens' bodies, with which the Bill does not deal. That is why the Bill is objectionable. It does not deal with the two significant problems that concern people.
§ Mrs. Dunwoody
My hon. Friend has been in the Chamber all day and wants to see whether the Bill reflects in any way the ten-minute Bill which she introduced and which was discussed at length with various women's organisations. That Bill wanted some recognition by the House of Commons of the reality of the portrayal of women in the media, which constantly downgrades and degrades them. To the female of the species that is just as unacceptable as many of the matters which have been mentioned today.
The real difficulty with the Bill is that if it were passed it would not produce a clear set of standards that could be easily understood by the broadcasting authorities but would create a miasma of suspicion. It is possible to create a climate in which broadcasters respond, not to the legitimate interests of those whom we wish to protect from 1387 offensive material but almost in advance to what they see as political pressures. That becomes clear whenever we debate such legislation—
§ Question put, That the Question be now put:—
§ The House divided: Ayes 170, Noes 16.1388
|Division No. 134]||[2.29 pm|
|Alison, Rt Hon Michael||Hunt, David (Wirral W)|
|Amess, David||Hunt, John (Ravensbourne)|
|Ancram, Michael||Hurd, Rt Hon Douglas|
|Anderson, Donald||Jessel, Toby|
|Arnold, Tom||Jones, Gwilym (Cardiff N)|
|Ashby, David||Jones, Robert (Herts W)|
|Atkins, Robert (South Ribble)||Joseph, Rt Hon Sir Keith|
|Atkinson, David (B'm'th E)||Key, Robert|
|Baker, Nicholas (Dorset N)||Kilfedder, James A.|
|Baldry, Tony||King, Roger (B'ham N'field)|
|Batiste, Spencer||King, Rt Hon Tom|
|Bennett, Rt Hon Sir Frederic||Knight, Greg (Derby N)|
|Bevan, David Gilroy||Lamont, Rt Hon Norman|
|Bitten, Rt Hon John||Lang, Ian|
|Blackburn, John||Lawrence, Ivan|
|Blaker, Rt Hon Sir Peter||Lee, John (Pendle)|
|Boscawen, Hon Robert||Lennox-Boyd, Hon Mark|
|Bowden, Gerald (Dulwich)||Lightbown, David|
|Boyson, Dr Rhodes||Lilley, Peter|
|Brandon-Bravo, Martin||Lloyd, Peter (Fareham)|
|Bright, Graham||Luce, Rt Hon Richard|
|Brooke, Hon Peter||Lyell, Nicholas|
|Buck, Sir Antony||McCrea, Rev William|
|Budgen, Nick||Macfarlane, Neil|
|Burt, Alistair||MacGregor, Rt Hon John|
|Butcher, John||MacKay, Andrew (Berkshire)|
|Carlisle, Kenneth (Lincoln)||MacKay, John (Argyll & Bute)|
|Cash, William||Major, John|
|Chope, Christopher||Malone, Gerald|
|Clark, Hon A. (Plym'th S'n)||Marland, Paul|
|Clark, Sir W. (Croydon S)||Mather, Sir Carol|
|Cope, John||Maude, Hon Francis|
|Cormack, Patrick||Mayhew, Sir Patrick|
|Couchman, James||Mellor, David|
|Dickens, Geoffrey||Miller, Hal (B'grove)|
|Douglas-Hamilton, Lord J.||Mills, lain (Meriden)|
|Dunn, Robert||Mills, Sir Peter (West Devon)|
|Durant, Tony||Miscampbell, Norman|
|Eggar, Tim||Mitchell, David (Hants NW)|
|Emery, Sir Peter||Monro, Sir Hector|
|Eyre, Sir Reginald||Montgomery, Sir Fergus|
|Favell, Anthony||Morrison, Hon P. (Chester)|
|Forsyth, Michael (Stirling)||Moynihan, Hon C.|
|Forth, Eric||Murphy, Christopher|
|Fox, Sir Marcus||Neale, Gerrard|
|Fraser, Peter (Angus East)||Needham, Richard|
|Freeman, Roger||Neubert, Michael|
|Galley, Roy||Nicholls, Patrick|
|Garel-Jones, Tristan||Norris, Steven|
|Goodlad, Alastair||Onslow, Cranley|
|Greenway, Harry||Osborn, Sir John|
|Gummer, Rt Hon John S||Ottaway, Richard|
|Hamilton, Hon A. (Epsom)||Page, Sir John (Harrow W)|
|Hargreaves, Kenneth||Page, Richard (Herts SW)|
|Harrison, Rt Hon Walter||Patten, Christopher (Bath)|
|Haselhurst, Alan||Pawsey, James|
|Havers, Rt Hon Sir Michael||Pollock, Alexander|
|Hayhoe, Rt Hon Sir Barney||Portillo, Michael|
|Hayward, Robert||Prentice, Rt Hon Reg|
|Henderson, Barry||Proctor, K. Harvey|
|Hicks, Robert||Raison, Rt Hon Timothy|
|Hind, Kenneth||Renton, Tim|
|Hirst, Michael||Rhys Williams, Sir Brandon|
|Hogg, Hon Douglas (Gr'th'm)||Roberts, Wyn (Conwy)|
|Howarth, Alan (Stratf'd-on-A)||Robinson, Mark (N'port W)|
|Howarth, Gerald (Cannock)||Roe, Mrs Marion|
|Howe, Rt Hon Sir Geoffrey||Rossi, Sir Hugh|
|Hubbard-Miles, Peter||Rumbold, Mrs Angela|
|Ryder, Richard||Thorne, Neil (llford S)|
|Sackville, Hon Thomas||Tracey, Richard|
|Sainsbury, Hon Timothy||Trippier, David|
|Sayeed, Jonathan||Twinn, Dr Ian|
|Shaw, Giles (Pudsey)||Viggers, Peter|
|Shelton, William (Streatham)||Waddington, Rt Hon David|
|Shepherd, Colin (Hereford)||Wakeham, Rt Hon John|
|Silvester, Fred||Walker, Bill (T'side N)|
|Sims, Roger||Wardle, C. (Bexhill)|
|Smith, Tim (Beaconsfield)||Wheeler, John|
|Spencer, Derek||Whitney, Raymond|
|Spicer, Jim (Dorset W)||Williams, Rt Hon A.|
|Spicer, Michael (S Worcs)||Winterton, Mrs Ann|
|Stanbrook, Ivor||Wolfson, Mark|
|Stern, Michael||Wood, Timothy|
|Stewart, Rt Hon D. (W Isles)|
|Sumberg, David||Tellers for the Ayes:|
|Thatcher, Rt Hon Mrs M.||Mr. Allan Stewart and|
|Thompson, Donald (Calder V)||Mr. Neil Hamilton.|
|Atkinson, N. (Tottenham)||Mikardo, Ian|
|Banks, Tony (Newham NW)||Prescott, John|
|Boyes, Roland||Roberts, Ernest (Hackney N)|
|Brinton, Tim||Skinner, Dennis|
|Cohen, Harry||Smith, C.(lsl'ton S & F'bury)|
|Corbyn, Jeremy||Wareing, Robert|
|Hamilton, W. W. (Fife Central)|
|Howells, Geraint||Tellers for the Noes:|
|MacKenzie, Rt Hon Gregor||Mr. Norman Buchan and|
|McWilliam, John||Mr. George Howarth.|
§ Question accordingly agreed to.
§ Question put, That the Bill be now read a Second time:—
§ The House divided: Ayes 160 Noes 231389
|Division No. 135]||[2.40 pm|
|Alison, Rt Hon Michael||Eyre, Sir Reginald|
|Amess, David||Favell, Anthony|
|Ancram, Michael||Forsyth, Michael (Stirling)|
|Anderson, Donald||Fox, Sir Marcus|
|Arnold, Tom||Fraser, Peter (Angus East)|
|Ashby, David||Freeman, Roger|
|Atkins, Robert (South Ribble)||Galley, Roy|
|Atkinson, David (B'm'th E)||Garel-Jones, Tristan|
|Baker, Nicholas (Dorset N)||Goodlad, Alastair|
|Baldry, Tony||Greenway, Harry|
|Batiste, Spencer||Gummer, Rt Hon John S|
|Bennett, Rt Hon Sir Frederic||Hamilton, Hon A. (Epsom)|
|Bevan, David Gilroy||Hargreaves, Kenneth|
|Bitten, Rt Hon John||Harrison, Rt Hon Walter|
|Blackburn, John||Haselhurst, Alan|
|Blaker, Rt Hon Sir Peter||Havers, Rt Hon Sir Michael|
|Boscawen, Hon Robert||Hayhoe, Rt Hon Sir Barney|
|Bowden, Gerald (Dulwich)||Hayward, Robert|
|Boyson, Dr Rhodes||Henderson, Barry|
|Brandon-Bravo, Martin||Hicks, Robert|
|Bright, Graham||Hind, Kenneth|
|Brooke, Hon Peter||Hirst, Michael|
|Buck, Sir Antony||Hogg, Hon Douglas (Gr'th'm)|
|Budgen, Nick||Howarth, Alan (Stratf'd-on-A)|
|Burt, Alistair||Howarth, Gerald (Cannock)|
|Butcher, John||Howe, Rt Hon Sir Geoffrey|
|Carlisle, Kenneth (Lincoln)||Hunt, John (Ravensbourne)|
|Cash, William||Hurd, Rt Hon Douglas|
|Chope, Christopher||Jessel, Toby|
|Clark, Hon A. (Plym'th S'n)||Jones, Gwilym (Cardiff N)|
|Clark, Sir W. (Croydon S)||Jones, Robert (Herts W)|
|Cope, John||Joseph, Rt Hon Sir Keith|
|Cormack, Patrick||Key, Robert|
|Dickens, Geoffrey||Kilfedder, James A.|
|Douglas-Hamilton, Lord J.||King, Roger (B'ham N'field)|
|Dunn, Robert||King, Rt Hon Tom|
|Durant, Tony||Lamont, Rt Hon Norman|
|Eggar, Tim||Lang, Iana|
|Emery, Sir Peter||Lawrence, Ivan|
|Lennox-Boyd, Hon Mark||Raison, Rt Hon Timothy|
|Lightbown, David||Renton, Tim|
|Lilley, Peter||Rhys Williams, Sir Brandon|
|Lloyd, Peter (Fareham)||Roberts, Wyn (Conwy)|
|Luce, Rt Hon Richard||Robinson, Mark (N'port W)|
|Lyell, Nicholas||Roe, Mrs Marion|
|McCrea, Rev William||Rossi, Sir Hugh|
|Macfarlane, Neil||Rumbold, Mrs Angela|
|MacGregor, Rt Hon John||Ryder, Richard|
|MacKay, Andrew (Berkshire)||Sainsbury, Hon Timothy|
|MacKay, John (Argyll & Bute)||Sayeed, Jonathan|
|Major, John||Shelton, William (Streatham)|
|Malone, Gerald||Shepherd, Colin (Hereford)|
|Marland, Paul||Silvester, Fred|
|Mather, Sir Carol||Sims, Roger|
|Maude, Hon Francis||Smith, Tim (Beaconsfield)|
|Mayhew, Sir Patrick||Spencer, Derek|
|Mellor, David||Spicer, Jim (Dorset W)|
|Miller, Hal (B'grove)||Spicer, Michael (S Worcs)|
|Mills, lain (Meriden)||Stanbrook, Ivor|
|Mills, Sir Peter (West Devon)||Stern, Michael|
|Miscampbell, Norman||Stewart, Rt Hon D. (W Isles)|
|Mitchell, David (Hants NW)||Sumberg, David|
|Monro, Sir Hector||Thatcher, Rt Hon Mrs M.|
|Montgomery, Sir Fergus||Thompson, Donald (Calder V)|
|Morrison, Hon P. (Chester)||Thome, Neil (llford S)|
|Moynihan, Hon C.||Tracey, Richard|
|Murphy, Christopher||Trippier, David|
|Neale, Gerrard||Twinn, Dr Ian|
|Neubert, Michael||Viggers, Peter|
|Nicholls, Patrick||Waddington, Rt Hon David|
|Norris, Steven||Walker, Bill (T'side N)|
|Onslow, Cranley||Wardle, C. (Bexhill)|
|Osborn, Sir John||Wheeler, John|
|Ottaway, Richard||Whitney, Raymond|
|Page, Sir John (Harrow W)||Williams, Rt Hon A.|
|Page, Richard (Herts SW)||Winterton, Mrs Ann|
|Patten, Christopher (Bath)||Wolfson, Mark|
|Pawsey, James||Wood, Timothy|
|Portillo, Michael||Tellers for the Ayes:|
|Prentice, Rt Hon Reg||Mr. Allan Stewart and|
|Proctor, K. Harvey||Mr. Neil Hamilton.|
|Atkinson, N. (Tottenham)||McWilliam, John|
|Bermingham, Gerald||Mikardo, Ian|
|Boyes, Roland||Prescott, John|
|Brinton, Tim||Roberts, Ernest (Hackney N)|
|Cohen, Harry||Sedgemore, Brian|
|Corbyn, Jeremy||Short, Ms Clare (Ladywood)|
|Dobson, Frank||Skinner, Dennis|
|Dubs, Alfred||Smith, C.(lsl'ton S & F'bury)|
|Dunwoody, Hon Mrs G.||Wareing, Robert|
|Foot, Rt Hon Michael|
|Hamilton, W. W. (File Central)||Tellers for the Noes:|
|Howarth, George (Knowsley, N)||Mr. Norman Buchan and|
|Howells, Geraint||Mr. Tony Banks.|
|MacKenzie, Rt Hon Gregor|
§ Question accordingly agreed to.
§ Bill accordingly, read a Second time, and committed to a Standing Committee pursuant to Standing Order No. 61 (Committal of Bills).