Seanad Éireann debate -
Thursday, 6 Jun 1929

Vol. 12 No. 13

Censorship of Publications Bill, 1928—Report Stage.

Section 6, sub-section (6).—To insert before the sub-section a new sub-section as follows:—

(6) A report prepared under this section or under Section 7 of this Act which has received the assent of three members of the Board or has been dissented from by one member thereof shall be sent by registered post to any member of the Board who has not signified either his assent or his dissent and the report shall not be forwarded to the Minister until seven days have elapsed from the date of such posting—(Senator Douglas).

Mr. Douglas

Senators will remember that this amendment was put down in order to give the Minister an opportunity of possibly somewhat changing the wording. It is one that I had down yesterday, with the addition of certain words suggested by Senator Hooper. The Minister has just handed me a redraft of the amendment, with the suggestion—with which I may say that I entirely concur—that it would be better if, instead of containing the words "or under Section 7," the same amendment were inserted in both Sections 6 and 7. If the House will agree I beg to move the amendment suggested by the Minister rather than the one that appears on the Order Paper in my name. I am asking your leave and the leave of the House to substitute for my amendment to Section 6 the other amendment which reads:—

Section 6.—Before sub-section (7) to insert a new sub-section as follows:—

(7) Where a report is proposed to be made by the Board under this section, and not more than three members of the Board have signified their views (whether assent or dissent) on the complaint to which such proposed report relates a copy of such proposed report shall be sent by registered post to every member of the Board who has not signified his views on such complaint, and such proposed report shall not be finally made by the Board until after the expiration of seven days after such posting.

Cathaoirleach

I take it the House agrees to the substituted amendment.

Mr. Johnson

It seems to me a little difficult to justify an important amendment of the kind, which is read out only now, and which Senators have not before them. I wonder would it be possible to have the discussion on this Bill postponed until later in the afternoon, and to have copies of the amendment circulated in the meantime. I agree that the matter is important, but I for one would like to see the draft in front of me before formally agreeing to it.

Cathaoirleach

Do you desire to move to adjourn the matter to a later stage?

Mr. Johnson

If you accept a motion that discussion of the Censorship Bill be postponed until later in the evening I will.

Cathaoirleach

I would like to have the sense of the House on that.

Mr. Hooper

I would like to second that proposal.

Minister for Justice (Mr. Fitzgerald-Kenney)

The amendment is only putting in other words what is contained in Senator Douglas's amendment. I would like to point out to the House that my Estimates are coming on in the Dáil in about half an hour, and that I would not be able to be here in the afternoon.

Cathaoirleach

Perhaps we can take it now.

Mr. Johnson

Will the Senator read the draft amendment again and I will try to follow it?

(Amendment read.)

Mr. Douglas

Perhaps I might be allowed to say that the amendment was only handed to me by the Minister when I was coming into the House. It seems to me to be substantially the same as mine. There is one point about which I would like to ask the Minister, and that is why it should not be "not more than four," because if with four members three had signified assent and one dissent, it would still be necessary to send the report to the remaining member.

Mr. Fitzgerald-Kenney

I think that was not the view of the Senator. I think the Senator's view was that if four had expressed their views there was no necessity for going any further; that it was only when there were three it would be necessary. I think that was his amendment yesterday.

Mr. Douglas

I think if the Minister will read yesterday's amendment he will find that if assent had been signified by three it was to be sent to the others. If assent had not been signified by three there would be no purpose in doing so, because no report recommending prohibition could then go in. To meet Senator Hooper I added the words "or has been dissented from by one member." That was to meet Senator Hooper's point of view that if one member had dissented and two had assented the remaining one might assent and thereby enable a report to go in carrying prohibition.

Mr. Fitzgerald-Kenney

From the discussion that went on yesterday I thought it was only meant where three persons had expressed their views that the views of the others should be taken, but that where four had expressed their views there was no necessity to do so.

Mr. Douglas

The words were "assent" and not "expressed their views." That is quite a different thing.

Mr. Fitzgerald-Kenney

It has been varied because of Senator Hooper.

Mr. Hooper

I am doubtful if the amendment in its present form meets the point I made yesterday. Take the case of three with one dissenting. I was anxious that the views of the full Board should be obtained. I do not think that that is secured by the amendment as now suggested by the Minister. Consequently I would be in favour of the amendment standing in the name of Senator Douglas. It is hard to judge at the moment.

Cathaoirleach

Very hard. Would you like to see the amendment, Senator?

Mr. Douglas

I think that the number should be "four." I think it would be better if you stated that not more than four members had signified. If five had signified there would be no necessity to send it to any of them.

Mr. Fitzgerald-Kenney

The idea yesterday was certainly three.

Mr. Guinness

Would not the case be met if copies of the minutes were sent to absent members of the Board? It is a common thing on boards to have copies of the minutes circulated to members, some of whom may not have been present. Then every member knows what is being done.

Mr. Kenny

It is very hard to follow the proposal. Reference is made to the fact that such proposed report shall not be finally made until after the lapse of seven days. In the first instance such proposal is forwarded to the two absent members. Of the three who have framed the proposal two should have dissented and one assented. That proposal will be the proposal of the majority of three. The other two members who were absent when communicated with might fall in with the opinion of the dissentient member, and they would then constitute a majority, so that such a proposal would not be forwarded at all. It would be an amended or a different proposal.

Cathaoirleach

It is really hard to ask the House to grasp the importance of an amendment of this nature. Perhaps it could be deferred until next week, as the House will not be very busy.

Mr. Fitzgerald-Kenney

The Bill has been a long time before this House.

Mr. Douglas

The position I am in is that with the exception of the words "Section 7" I would prefer the wording of my amendment. If the Minister would agree to have "not more than four members," I believe that would exactly express what is here.

Cathaoirleach

Does the House desire to go on with the discussion now or to adjourn it till next Wednesday?

Mr. Hooper

It is really a matter of legal interpretation and, as far as I can see, my difficulty would be removed if the words "assent or dissent" were deleted from the proposed new amendment.

Cathaoirleach

I think that would vitiate it altogether.

Mr. Hooper

No, it would mean that no decision taken by three members of the Board would be valid until their report was submitted for consideration by the two remaining members.

Mr. Fitzgerald-Kenney

That is what it means at the moment.

Where a report is proposed to be made by the Board under this section and not more than three members of the Board have signified their views (whether assent or dissent)—

That means that if three members have expressed their views—it might be two assenting and one dissenting, or it might be two dissenting and one assenting—if the three either differ or agree it is sent on—

on the complaint to which the proposed report relates a copy of such proposed report shall be sent by registered post to every member of the Board who has not signified his views.

That is where only three express their views, in every case it will be sent on to the other two. Is not that the intention?

Mr. Hooper

I believe the words "assent or dissent" are not necessary.

Mr. Comyn

I think if Senator Hooper got time to consider the wording of the amendment, he would withdraw his objection, because I cannot see anything whatever in the inclusion or the exclusion of the words "assent or dissent." There is nothing in it, and it is not worth while wasting time about that particular question.

Cathaoirleach

It amplifies the thing, more or less.

Mr. Comyn

It amplifies the thing, more or less.

Mr. Hooper

Are they necessary?

Mr. Comyn

Well, I think it is better to have them there. The reason I speak on it at all is that, perhaps being more accustomed than others to gather the meaning of a thing as it is being read out, I would like to help the Seanad and to obviate the necessity for further delay in regard to this matter. In my opinion, the amendment as drafted by the Minister does really embody what we were discussing yesterday.

Mr. Brown

I quite agree with the last Senator that these words in practice do not make much difference. I do not think that they do. But I do think that the choice between the word "three" and the word "four" does make a very substantial difference, and I would be entirely in favour of putting in the word "four." If you have three who assent and only one who dissents then the report goes. Therefore, you ought to have four. The question does not really arise until four have expressed their views, and therefore, I would strongly urge the Minister to allow the word "four" to go in. It would certainly carry out the intention that we had yesterday.

Mr. Comyn

I think the Minister ought to accede to what Senator Brown has said. It is really not a very important question, and there is no necessity for further delay.

Mr. Brown

It will result in all five having an opportunity, and that is what we want. If we get that we are satisfied.

Mr. Connolly

I would ask for some more information about this. I understood that we decided earlier that if only three members of the Censorship Board met and if they were unanimous it would be sufficient. Has that gone by the board?

Mr. Fitzgerald-Kenney

No.

Cathaoirleach

That was never decided.

Mr. Brown

It was never so decided.

Mr. Fitzgerald-Kenney

If a report is sent in to the Minister to which there are only three signatures condemning a book, that book is condemned. If it has four signatures and three of them condemn it out of four, the book is condemned. If there are five signatures and the five are unanimous, or four out of five condemn the book, the book is condemned. The proposal that is now before the House is this: that if three persons have come to the conclusion that a book ought to be condemned, or if they differ, they shall not send any report to the Minister; they shall not draw up their report until they have communicated with the other members of the Censorship Board to ascertain their views. They will hold it for a time until they get a reply, or fail to get a reply, from the others, in either of which instance they will draw up their report and send it on. This amendment and the question at issue is as to whether that should be when three persons have dealt with the matter or when four have done so. Personally, I would prefer that it should be when three persons had dealt with the matter, because when four have done so you would get a very full expression of opinion from the four.

Mr. Douglas

The Minister has not fully dealt with the point in answer to Senator Connolly, because he did not add to his statement the possibility that if two out of three dissented definitely there could not be a report recommending prohibition.

Mr. Fitzgerald-Kenney

Of course.

Mr. Douglas

My point—and I think it is provided for in my amendment—is simply this: that in view of the fact that we have adopted the principle of dissent, and if two dissented it would change the decision, it should then be sent to every member of the Board, so that if there are two who wish to dissent they would have seven days in which to do it. If they do not exercise that right the report goes in. As it was worded in the original draft yesterday, with Senator Hooper's suggestion as accepted by me, it did not deal with assent, because if three assented, then the report should go in. If the other two did nothing, then the report would go in, and the book would be recommended to be prohibited. I wanted to provide that these other two would have an opportunity of dissenting if they wanted. As the draft prepared by the Minister reads, if three assent and one dissents no opportunity will be given to the remaining one. I want an opportunity given to the remaining one, because his decision may mean a difference in the report. If it were not for that fact, I would not want it done. I would much prefer that the Minister should put in the word "four" if he wants an exact wording, but I would still more prefer that he would take the wording of his amendment, but would adopt the wording of mine as far as the description is concerned, which would make it read, after the word "section,""which has received the assent of three members of the Board or has been dissented from by one member thereof." I believe it would meet both Senator Hooper and myself, and it would be clear.

Mr. Johnson

Will the Senator direct his attention to the effect of the word "thereof" in the printed amendment? Is it "thereof" of the Board, or of the Board, one member thereof dissenting?

Mr. Douglas

I think you could leave it out. It was left out yesterday and it got in afterwards.

Mr. Johnson

I would suggest that the Senator's proposition is that if a report prepared under the section has been dissented from by one member, it shall then be sent to the remaining members of the Board.

Mr. Douglas

That was in order to meet Senator Hooper, and I did not object to it.

Mr. Hooper

It seems to me that Senator Douglas's amendment on the Order Paper is clearer, and it certainly carries out his desire and mine better. For that reason I prefer it. No doubt the Minister's draft has advantages over it of a kind, but does it carry out the intentions that we had yesterday? It seems to me that it is doubtful if the Minister's alteration would carry it out to the same extent.

Mr. Fitzgerald-Kenney

I think that Senator Douglas's amendment should not be inserted, because it begins by saying: "A report prepared under this section." Of course, if the report is prepared it is a report. Then it will have to go to the Minister as a report, and in view of the fact that one of the other members of the Board has signified his dissent, it would only come up as a sort of dissent to the report, and you could not have "a report" in the beginning of the sub-section at all. You would need to have the words, "Where a report is proposed to be made."

Mr. Douglas

Then if a report was ready and if dissent was given afterwards it would kill it.

Mr. Fitzgerald-Kenney

You would have to have the words: "A report is proposed to be made by the Board under this section"—that is why the original words were altered —and it goes on—"which has received the assent of three members of the Board." I suppose that means the assent of three, and not more than three, or three members only, because it may have received the assent of three members, and also have received the assent of four. You would have to put in some words such as "three and not more." Let us consider what would happen following on that. Suppose it has received the assent of four members.

Mr. Brown

Then there is a report and it must go on.

Mr. Fitzgerald-Kenney

Even though it has been dissented from by one member. Suppose it has got the unanimous assent of the three present and the dissent of one, do you want it sent on to the other?

Mr. Brown

That is the real difficulty.

Mr. Fitzgerald-Kenney

Suppose, on the other hand, it is rejected by three?

Mr. Brown

Then it can never be a report and can never go on.

Mr. Fitzgerald-Kenney

I know; but still I think under the wording of this amendment it would have to go on.

Mr. Douglas

If it were rejected by three no possible harm would be done by sending a copy to the other.

Cathaoirleach

We really must make up our minds whether we will take the amendment or not. We must either take the amendment on the Paper in Senator Douglas's name or agree to take the other one up, or we must adjourn it for a week for the purpose of absorbing the proposed new amendment. I cannot permit one Senator after another to be debating the matter interminably. I would ask the House if it would agree to take the altered amendment.

Mr. Jameson

The trouble about that is that the Minister is objecting.

Cathaoirleach

But we must decide.

Mr. Jameson

But none of us wishes to decide against the Minister in a case like this, and it would be much better to wait for a week.

Cathaoirleach

I think it would be better.

Mr. Jameson

Unless the Minister and Senator Douglas can agree I think we ought to adjourn it.

Cathaoirleach

We cannot continue to debate the whole matter backwards and forwards across the House.

Question:—"That the Report Stage of the Bill be adjourned until Wednesday, June 12th"—put and agreed to.

Mr. Fitzgerald-Kenney

I suppose the Final Stage will be taken immediately after?

Cathaoirleach

Yes, the Final Stages will be taken on the same day. The necessary notice of motion will be put down.