Deputy de Valera has given notice that he wishes to raise the subject matter of Question No. 57 of 13th July.
Adjournment Debate: Magazine Advertisement.
I raise this matter primarily because there is a certain amount of public anxiety about the uniformity of law enforcement. Recently on the Estimate for Local Government I had to advert to a similar problem. I should like to say straight away that this is no reflection on the Garda Síochána who are simply not up to strength and are unable to cope with the multiple requirements of law enforcement at the moment. That situation does require an examination of cases where there is any danger of sporadic or capricious enforcement of the law.
In reply to my question the Minister quite rightly pointed out that the Garda Síochána and the Attorney General would be the prosecuting authorities in the first instance anyway. When I asked whether action would be taken there was a suggestion that the matter might be sub judice. That is not sufficiently definite to prevent this debate. If there were definite action pending I would be only too glad to defer the matter.
The situation arises as follows. Section 16 of the Censorship of Publications Act, 1929 reads:
It shall not be lawful for any person, otherwise than under and in accordance with a permit in writing granted to him under this section—
(a) to print or publish or cause or procure to be printed or published, or
(b) to sell or expose, offer, or keep for sale, or
(c) to distribute, offer or keep for distribution,
any book or periodical publication (whether appearing on the register of prohibited publications or not) which advocates or which might reasonably be supposed to advocate the unnatural prevention of conception or the procurement of abortion or miscarriage of any method, treatment, or appliance to be used for the purpose of such prevention or such procurement.
There have recently appeared in a number of magazines, particulars of which I furnished to the Minister and I do not think it would be right for me to detail individual magazines here since there are probably others which are in default in the same way, a very clear full page advertisement clearly advocating the unnatural prevention of conception within the meaning of that section. I do not think there will be any controversy about that having regard to the whole tenor of the Act itself. This motive is right through it and it is specific in this section. It is furthermore possible that the matter is covered by section 17. The reading is not quite so clear in the Indecent Advertisements Act, 1889. That Act involes certain prohibitions but it is to be noted that it deals with the deliverer who delivers the indecent material. In section 17 of the Censorship of Publications Act, 1929 the references embrace the matters relating to contraception. It appears that under section 16 and, possibly under section 17, the publication of the advertisement is within the terms of the Act. The question is whether this Act is to be enforced or whether it is not. If it is to be enforced is it to be enforced uniformly?
I am not, at this stage, dealing with the question of the desirability or otherwise of such advertisements but I think that most people, even those who advocate certain freedoms in regard to this matter, would agree that the free advertisement of such material is not desirable. Many of those who have advocated a certain freedom in the laws relating to contraception here have been careful to add that they would be prepared to accept certain safeguards and among those safeguards would be the prevention of indiscriminate advertising. I mention that as a factor in the case but not as the basis on which I am making the case.
This advertisement has been at large for approximately a fortnight. These magazines are on free sale in this city today as they were on the day on which I put down the question. The Minister in his reply said:
I have no doubt that the question of legal proceedings is being or will be considered in relation to the matter mentioned in the question and it is not a matter for me to make any further statement about it, at all events as long as the matter may become the subject of proceedings.
If the matter were bona fide sub judice I think the ruling would be that I could not raise the matter here tonight and, indeed, I would not wish to. I am raising it primarily with regard to the uniform enforcement of the law.
The question is relevant because under another section of this Act a successful prosecution was brought against Irish publications recently. I think that prosecution was well founded. Section 14 under which it was brought also starts "It shall not be lawful to print or publish...." The Act was infringed in those particulars and nobody can complain, certainly I do not, about the bringing of that prosecution. It might be of interest to note that it came out in cross-examination of the police officer concerned in the proceedings that the prosecution was not on the initiative, in the first instance, of the Garda. It would be rather surprising if it had been otherwise because of the big gap in time and also because of similar reports on occasions in certain English publications that are freely available in this country and which nobody objects to. It is also only fair for me to say that my information is that the initiative did not come from the Minister or the Department either. But a situation has been brought about in which this Act can be enforced in some particulars; therefore, it raises the question: is it to be enforced in other particulars?
I think I should not indulge in a legal argument on whether my point on sections 16 and 17 is right. I content myself by saying that, certainly, on comparing the words in the case of the section which was enforced and this section "...it shall not be lawful..." I think it is a fair submission that it is. This is what, in conclusion, I want to ask the Minister and it is possibly the whole purpose of my speaking. There should be some certainty in this: if this Act is in abeyance—and sometimes Acts go into abeyance because of changing times—let it be so, but if this Act is to be enforced then let the law be enforced uniformly over the whole country.
Have the other newspapers prosecuted complained that it is not being uniformly enforced?
I am not making any particular complaint from newspapers. I am saying the Act was enforced in one instance. I am asking about its enforcement under this section. I should like to make it clear that there is no complaint about the enforcement under the earlier section. I am not complaining about its enforcement but I am asking that the matter be made clear. I am asking for certainty so that people will know where they stand in this matter and whether the sections to which I have referred are alive or not. That is the simple question I ask and it is from that point of view I have raised the matter. I do not think there is anything further to be said.
The first thing I want to say is that as the Minister for Finance who answered on my behalf this afternoon while I was in the Seanad, pointed out, this is a matter for the Garda Síochána acting where necessary in consultation with or on the direction of the Attorney General. He went on to say that the question of legal proceedings is being, or will be considered. I have made further and more specific inquiries since then and I find that this matter was referred more than a week ago by the Garda to the Chief State Solicitor and that this morning the Chief State Solicitor's office in the normal course referred it to the Attorney General and it is now in the process of being, or about to be considered by him.
There are two possible decisions that the Attorney General can make with regard to this question or any other similar potential prosecution. He can decide to prosecute in which event the matter will become clearly sub judice in which case a debate on the subject matter of the alleged offence in this House before the hearing of the case is, in my opinion, grossly unfair to the defendant and, therefore, should not take place. The alternative decision which the Attorney General can make is not to prosecute and if he so decides I am in no way responsible to Dáil Éireann for his decision any more than I would be for his decision to prosecute. Therefore, I feel rather strongly—and it would be my submission—that matters of this kind relating to potential prosecutions which have already been referred to the law officers should not, in fairness to all concerned, be raised in this House before the prosecutions are disposed of. In any event, as Minister for Justice, I have no responsibility to the House for the decision of the Attorney General whichever way that decision goes.
Having said that, I shall deal more specifically with what Deputy de Valera raised. He appears to complain that because a number of newspapers published in this country were prosecuted under section 14 of the Censorship of Publications Act, 1929, therefore, certain other prosecutions should be brought under section 16 of the same Act against certain other publications. Whether this is the view of just one newspaper proprietor or the view of the proprietors of the four newspapers that I understand were prosecuted under section 14, I do not know but I did inquire from the Garda what were the magazines that gave rise to this complaint and I was given four names. I was told that all four were printed and published in Britain, outside the jurisdiction.
The gardaí on last Monday week went out to certain shops in central Dublin and purchased copies of each of the four magazines, the names having been published in a Sunday paper the previous day. They forwarded these magazines to the Chief State Solicitor's office. If there is to be a prosecution under section 16 in respect of this matter the prosecution will be against the owners of these shops for having sold or exposed, offered or kept for sale the publications in question. It is not possible, even if the Attorney General were to decide to prosecute, to prosecute either the printers or the publishers because they are outside the jurisdiction.
It is unfortunate for these shopkeepers in central Dublin that they should be potentially liable at least to the prosecution because they may well have been unaware of the contents or alleged contents of the magazines but I should like to draw the attention of the House to the fact that section 16 (1) of the Act in question does not apply only to advertising; it applies to any writing in a book or periodical which inter alia advocates or might reasonably be supposed to advocate the unnatural prevention of conception, et cetera.
I have a recollection of reading, in recent months, in all the Dublin newspapers, to a greater or lesser extent, numerous articles on the topic which is the subject of our discussion this evening. In particular, I recall quite a considerable number of articles by a lady who was, I understand, the woman editor of a particular newspaper—unfortunately, I believe she has left that employment now. On behalf of a recently formed organisation she consistently and almost daily appeared, to me at any rate, to advocate certain things which might or might not come within the ambit of section 16 (1). As a result of my attention having been drawn so eloquently and so forcibly to the very strict provisions of this section this evening, I consider the gardaí presumably will have to go through the files of a number of newspapers to see, not whether the advertising columns might potentially offend section 16, but whether the editorial matter also might be in breach of the section.
Unfortunately it may well place a heavy load on the gardaí to do this. As Deputy de Valera pointed out in the debate, the gardaí are overworked at the moment and I can say without doubt that this is so. However, the matter is one for the Attorney General and for him only. The matter has now been referred to him for decision. He is an able lawyer and a very competent man and I have no doubt he will decide the matter in accordance with the best traditions of the Irish Bar and that everyone will be happy with the enforcement of the law with regard to this topic.
May I make one remark?
The Deputy may ask a question.
The Minister spoke about the prosecution of sellers. I would point out that there is an escape clause in subsections (3) and (4)—they need not be convicted.
I am glad to know that. I am sure the Deputy could bring the subsections in question to the notice of the shopkeepers if this is necessary.