Censorship of Publications Bill, 1945—Committee (Resumed).
I move amendment No. 17:—
In sub-section (2), lines 40-41, to delete the words "a person to be".
This is really a verbal improvement. "Appoint a person to be the chairman", superficially, at any rate, competes with the words in sub-section (1) "there shall be a censorship of publications appeal board consisting of three members, namely:—(a) a chairman who shall be a judge of the Supreme Court, High Court or Circuit Court...." In sub-section (2), we have the words "the Minister shall, as soon as may be after the passing of this Act and thereafter as occasion requires, appoint a person to be the chairman". It would be sufficient to say here "the Minister shall... appoint the chairman", in view of what I have just read from sub-section (1) (a).
That is merely a question of drafting.
I agree with Senator Magennis.
I shall look into the matter. The wording in the Bill is that of the Parliamentary draftsman.
The sub-section with which I am dealing puts the duty on the Minister to "appoint a person". Already, the duty is on the Minister to appoint a chairman who shall be a judge. One provision is specific; the other is general.
Amendment put and agreed to.
I move amendment No. 18:—
In sub-section (2), line 41, after the words "chairman and" to insert the words "four fit and proper".
We have already argued this qualification "fit and proper" and the Minister has dealt with it fairly enough. Still, I contend that, in regard to the appeal board, it is requisite to put in the qualification "fit and proper" even more than in the case of the readers of the books. The Minister has accepted my amendment to have a larger appeal board since I argued this question previously and I think that, with that larger body to which to refer appeals, we may take it that control of appointments to the appeal board is sufficiently assured. Therefore, I shall withdraw this amendment.
I do not think that it will be sufficient to withdraw it. In view of the other amendment, I think that it will be necessary to insert the word "four". It will be sufficient if the Minister will think over the matter before the next stage.
Amendment, by leave, withdrawn.
I move amendment No. 19:—
To delete sub-section (7).
The sub-section which I moved to delete reads as follows:—
If in the opinion of the Minister, a member of the appeal board is temporarily unable to act as such member the Minister may appoint a person to be, if such member was the chairman, the chairman and, if such member was an ordinary member, an ordinary member of the appeal board during a specified period, not exceeding six months, in place of such member."
I think that such an arrangement would lend itself to abuse.
Seeing that we now propose to have a larger membership of the boards, I do not think that it would be necessary to retain this sub-section. I was thinking of a position in which you might have only two members of the board able to act but seeing that we are now to have a total of five members, I do not think that the sub-section is necessary. I am, therefore, accepting the amendment.
Amendment agreed to.
Amendments Nos. 20 and 21 fall consequentially on a previous amendment.
Section 3, as amended, agreed to.
I move amendment No. 22:—
In page 4, line 15, to delete the words "he thinks" and insert instead the words "the boards consider".
This amendment is put down merely for the purpose of affording an opportunity to discuss procedure. I recognise, of course, that appointments must be by the Minister but the Minister in my amendment is superseded by the boards. That is just an emphatic way of suggesting that recommendations of the boards should be taken into account. In the Principal Act we have the words, "the Minister after consultation with the board". I should be quite satisfied with that. Further my amendments in respect of officers and servants of the board are out of order on account of their imposing a tax and increasing the financial burden.
That is so. Amendments Nos. 23 and 24 are out of order.
In connection with this amendment, I am afforded an opportunity of drawing attention to the fact that the board which has been at work since 1929, has for example no typist-clerk as well as having no office. I might say in passing that it is a sort of sub-tenant of an office occupied normally by the Irish Manuscripts Commission. There is a number of things of that sort in connection with the appointment of officers and servants that need to be looked into. I think the members of the board would be best able to advise the Minister on these matters. It was merely to ventilate that point that I put down the amendment.
Before the Minister replies, may I ask if it has not been the practice to consult the board in the past? Whereas I never knew any board or any Department which prevailed against the Department of Finance in these matters—not that I think they should, because it would not be in the public interest—I think it would be the practice for the Department to consult with the board beforehand. The amendment as it goes would be almost revolutionary because it would force the Minister to appoint as many officials as in the view of the board were necessary for the performance of their work. They might for instance suggest the appointment of 1,000 inspectors to go into every home and to examine every book there and the Minister would have to agree under this amendment. Possibly he might be able to save himself by the words "with the sanction of the Minister for Finance" but it would put the Minister in an absurd position. At the same time, it is desirable that the Minister should consult the board with regard to appointments.
Of course I could not accept this amendment——
—— because the Minister for Justice is not the person to decide these questions. The Minister for Finance is in charge of establishment.
I do not think that any trouble has ever arisen from the commencement on matters of this kind. There may have been some questions as to the remuneration of the staffs, but even in that case any representations which I received I passed on to the Minister for Finance. Whether these views impressed him I do not know, but no other consultation was necessary. If such consultations were necessary the Minister for Justice would be always glad to receive from the board any representations they had to make. The last word naturally does not lie with the Minister.
It is to be hoped that this Bill will last longer than the life of even the youngest person present here.
I said "the Minister for Justice". I was not referring to myself at all. I probably will not be left there too long.
I was referring to the lasting of our act of faith in the Minister for Justice.
I hope you will get a better Minister when I go.
Is the amendment withdrawn?
If the Minister will promise to look into it.
I could not dream of accepting that amendment. The most I can promise is that what has been done up to the present will continue. If the board has anything to suggest, say, on the question of staff, I—and I am sure anyone else in my place—will be only too anxious to do all I can to make the voluntary work of the board as easy as possible. Naturally, that would be the Minister's attitude, but I cannot bind myself to anything like this, which would be impossible.
In view of that assurance, I withdraw the amendment.
Amendment, by leave, withdrawn.
As I have previously said, amendments Nos. 23 and 24 are not in order.
Section 4 put and agreed to.
I move amendment No. 25:—
To delete all words after the word "may" in line 20 to the end of the section and to substitute instead the words "note the name of any book in the course of importation and the name of the author or editor thereof for the purpose of referring the name of such book to the Censorship Board with a view to the examination of the book by the board".
In moving this amendment, in order to make my position clear, I think I ought to say that I am against the section, but I cannot challenge a division on the section until the section has been debated. I am of the opinion that the section could be bettered, even if it is retained.
The idea of seizing from visitors to the country, or citizens coming into the country, books which have not been censored, is an entirely new one. It does not appear anywhere in the old Act, and I think it is a very dangerous proposal. It is a proposal to which there are many objections. From the point of view of visitors, I cannot think of any argument in favour of it, and there is a very grave danger that it might almost make us a laughingstock. If, as is happening at the moment and may happen very much more frequently before long, a visitor arrives at Rineanna, comes through to Dublin, and after a few days goes on to England or somewhere else, he will certainly have a decided grievance if the gentleman who examines his bag seizes a book which he finds there, having decided, by means of some mysterious X-ray qualities he is supposed to have, that the book may possibly be indecent, or perhaps that he does not like the name of the author or the title of the book. I think that is wrong. I also think it will cause a good deal of unpleasantness. It surely is not necessary to censorship to provide that the books which are to be censored have to be stolen from a visitor, or seized, if you like. First of all, they are that person's property. There is no provision in the Act giving power to anybody to go into bookshops and seize books. In fact, there is no provision anywhere inside the State to seize books when you get a report that somebody thinks they are books which should be censored. Personally, I think this section is introducing a really bad principle. Assuming that the object that the Minister had in introducing this section was not really to take books from people but to get another way by which names of books could be submitted to the Censorship Board, I have put down this amendment which would have the effect of giving the preventive officer the power of taking down the name of the book for the purpose of submitting it with a view to examination, and I really think that should meet the case.
There is a proviso that censored books may be taken. That is quite different. A book which has been censored, or a book which is obviously obscene, can be seized. The provision that you can seize censored books has applied ever since the last Censorship Act. The provision that you can seize obviously obscene books has been, I think, 50 or 60 years in existence. It is in an old British Act. But where an indecent book which is not on the censored list is being seized, the customs officer will naturally be careful, and will probably consult his senior. We all know the kind of book which can be seized under that provision, and I doubt if there is anybody in the State who objects to it.
My suggestion, first of all, is that it is bad to seize books; secondly, that it will cause unpleasantness with visitors who are passing through. A book could not possibly be censored in the couple of days they are here. Surely it will meet the purposes of the Censorship Act to give powers to take down the name of the book. I think it is pretty well known that the preventive officers who examine baggage at the ports are one of the lowest-paid classes under the Department of Finance. It would be out of order if I were to develop that point, but I think they are rather underpaid having regard to the kind of work they have to do. I believe that for some time they get a commission on any articles the export of which is prohibited, and which they seize. I do not know whether the Minister intends to give them a commission on the number of books they may seize. Altogether, they are not the kind of persons who have the peculiar adaptability or the peculiar qualifications—I doubt if there are any persons who have—necessary to judge a book in the couple of minutes spent in examining a bag, and to decide: "This is a book which I ought to seize". No harm can be done by taking the name of the author and the name of the publisher of the book. It could be dealt with by the Department of Justice, or possibly by the Censorship Board itself, in cases where they would like to get a copy of the book for examination. I cannot see any possible objection to that.
I rise to support this amendment, and I do hope it is one which the Minister will see his way to accept. It occurs to me that what we are really being asked to do is to legalise the haphazard confiscation of personal reading matter by people who, as Senator Douglas has said, from the very nature of their work have not got the training which would be necessary to enable them to do the work that this clause would give them power to do. Frankly, I am very much concerned about the effect on the increasing number of people who are coming into the country, for short or long stays as the case may be. I think they would be so indignant at the embarrassment that this action would cause that they would constitute a very bad advertisement for the country. I am wondering whether the Minister himself does not hold the same view as I am trying to express —that this is a case where, in our efforts to get at the few who may transgress by bringing in their personal luggage something to which reasonable objection might be taken, we would incur the animosity and rightful indignation of the many thousands who would be bringing in books that could be put on the table of this House or of any other house as being "fit and proper", to use the words which have become hackneyed here in the last few days. We spent a lot of time yesterday debating whether the Censorship Board shall consist of three people or of five people, and whether their acts should then be subject to supervision by another board consisting of three or of five people. Does not this clause, as it stands at the moment, in fact set up hundreds of unknown censors, because once a book is seized the censorship is in operation? Whether the book is returned or not does not really matter to the person who has had his property taken. So I do sincerely hope that the Minister will see his way to accept this amendment, if, indeed, as has been suggested, he cannot see his way to delete the section entirely.
I hope that this amendment will not commend itself to the House. The supporters of the amendment, so far, have really made a case for its rejection, to this extent: that they visualise a big influx of visitors to the country—it may be just for a few hours' stay or it may be for a few days' stay or a few weeks' stay, but they are not going to be ordinarily resident in the country. Now, if each person decides to take in a book of the kind the circulation of which we wish to prevent, does it not follow that we might as well drop altogether this idea of the control of the circulation of books? For that reason, I do not think there is any necessity to debate this, and I think the people supporting the amendment have made a case against it. We have accepted the principle of censorship, and the acceptance of this amendment would cut across that principle and prevent us from doing the thing we want to do.
I wonder has Senator Liam O Buachalla understood what Senator Douglas and Senator Summerfield said? The particular question here is that when my luggage is being examined a custom officer who, as has been pointed out already, is underpaid and over-worked, may take out of my luggage a book which I am not bringing in for sale or distribution, but for my own personal use, in order to refer that book to the Censorship Board. Let me point out to Senator Ó Buachalla that if the book is on the list of censored books, the customs officer can take it out, but not under this section. This amendment does not interfere with the right to take out books that have been already banned by the board. The section here refers to other books, and surely it is an extraordinary power to give an unfortunate man who, as I say, is over-worked and underpaid and who, in the nature of things, can have no qualifications whatsoever for judging whether a book is fit or proper reading matter for me or, indeed, for my children.
The Minister himself is well aware of, and his predecessor was aware of, and we all recognise the great difficulty that there is in finding members for a censorship board. Everybody agrees with the principle of censorship. It has been agreed to in practically every country in the world. The difficulty is the difficulty of operating a Censorship Act, and here you leave it to one of the lowest-paid officers in the State to decide, on a summary examination at a port on a winter's morning, whether a book is indecent or not. You leave it in his hands to say: "I am taking this book and sending it to the Censorship Board". I think that anybody who would have to undergo such a thing would regard it as a very insulting personal performance. It is very degrading for a person to be told: "This book is unfit and I am going to take it from you and send it to the Censorship Board". The result from that would be very bad indeed.
Let me say also that the whole purpose of the Bill is to prevent the sale and distribution of such books. If I have in my house books which have been censored, nobody can come in and take them from me, as long as I am not selling or distributing them, and therefore the answer of the person concerned at the port: "I am bringing in this book for myself", should be a sufficient answer, but the section makes no reservation whatsoever. Another point that strikes me is in connection with Section 6, which directs the board as to what it has to do when it is coming to its decision, and there are a number of provisos. For instance, it says that the board, when examining a book, shall have regard to the following matters: "the literary, artistic, scientific or historic merit or importance, and the general tenor of the book." Now, how can an unfortunate customs officer in Dun Laoghaire have any regard to "the literary, artistic, scientific or historic merit or importance, and the general tenor of a book"? All he sees is something that he does not like and that he thinks the board may be interested in, and he stops the book. I think it is entirely unworkable. What makes me more anxious to support Senator Douglas' amendment is this: I do not really have any qualms about this section because I do not think it will work, and I am really sure— although one should never make prophecies even in the case of a Dublinman like the Minister—that the Minister himself feels that nothing new will happen. In other words, you are putting into the law a dead letter, and that is what strangers would call very Irish. There is also a proviso about the language in which the book is written. Now, the customs officer, I am pretty sure, is a person who knows English, but possibly does not know Irish. He probably would not know Irish, but if he did, would he allow me to take in a copy of "Cúirt an Mheadhon-oidche"? because I do not think he should.
First of all, I should like to point out to Senators that there is nothing new about this at all. As a matter of fact, under the Customs Consolidation Act of 1876, a customs officer could seize books which were obscene, and that power has been there ever since and has been exercised by customs officials since this Censorship Act was passed. There is just a doubt as to whether the rights they had under the 1876 Act survive when there is a Censorship Board. That is really all that arises here. I certainly do not like the idea of anyone's personal luggage being searched in that way, but my information, notwithstanding what we heard from Deputy Dillon in the other House, is that it very rarely happens. By far the greater number of the books which do go to the board are stopped at the ports by customs officers when they are coming through the post or on consignment to booksellers.
That is not personal luggage.
I know that it is not, and, as I say, the taking of a book out from personal luggage only occurs in the case of a book which is obviously obscene. Not alone has that been the practice here, but I am told that in every country in the world there is such a power to stop grossly obscene books. That power has been exercised here ever since 1876. There is nothing here to interfere with that power if a book of that kind comes along, and it is only a question as to whether it would be legal. Of course, the question is more complicated now when you have an appeal board. If I could find some way of seeing that a passenger's personal luggage would not be searched or that a book which he had in his hand would not be taken from him, I should like to do so, but I would certainly not like to allow people an opportunity of evading the old Act.
That is books sent by post?
No. I daresay, of course, that it would be difficult for an officer to decide whether a book was obscene or not—I suppose it would have to be illustrated before he could say offhand that it was obscene. Otherwise, I do not see how a person, unless he had read the book, could say that it was obscene. I would again remind Senators that that power was there already and has been exercised by the same type of persons they are complaining about now. I do not think we have had any complaints about this thing, except from Deputy Dillon in the other House, and I think he was imagining a lot of it. He said, I think, that a Reverend Mother gave a certain book to some old lady. Personally, I do not believe it, and I think that was only his imagination. However, the purpose of this section is only to remove any doubts as to the powers of these people. I am told that they very rarely stop books, and the Revenue people, with whom we have consulted on the matter, say that this is necessary in order that the provisions of the other Act would be effective. Nobody wants that type of book brought in. I do not see how I can provide that nothing, will prevent the operation of the 1876 Act and, at the same time, stop people interfering with personal luggage. I think it would be very difficult.
Perhaps it is not fair to ask the Minister, but has he got by him the term of reference in the 1876 Act? Is it "grossly obscene"?
"Indecent and obscene". Of course, there is a provision that it is a good defence to prove that the book is not for sale or distribution.
I am not concerned with penalties.
But still a book could always be seized under the old Act. We would be really going back on something which was here before the censorship of publications was thought of at all. I am sure Senator Douglas does not want that either.
I have a great respect for the eloquence and imagination of Deputy Dillon, but I object to this proposal being associated with him or having it suggested that this has got anything to do with him. I did not hear his speech and I did not read the debate that took place in the Dáil. The Minister may be astonished at that, but I did not happen to read it.
It is worth reading and I would recommend the Senator to read it.
As we are all concerned with preventing people reading certain things, I will take the hint. I am glad to find that we can recommend something worth reading. In practice, I may say that I do not read debates in the Dáil on Bills which are to come before us, because I find it is far better to take a Bill and put your mind to it. In that way you are far more likely to light on something which may be important. I find, in practice, that the reading of debates has the effect sometimes of making me think this is hopeless unless I read something in the Minister's reply. When the thing is put in a completely different way, very often it meets with approval. If the Minister would provide that nothing in this Act shall be held to invalidate the operation of this old section, I would not object.
That is not an unusual form or practice. I do not want to stop what is happening at present. There may be odd cases of some ultrazealous officials who can give a bit of trouble when they see a book being brought in. In the majority of cases they only look at the title and, if they are doubtful, they will look up the list. I do not think there has been any abuse of this. I certainly would not like any remark of mine to suggest that, in general, there has been any abuse of it or want of courtesy on the part of our preventive officers. Taken on the whole, I think they are a very good set of officials, having regard to all the circumstances. Even during the war I had to make trips out of this country about four times each year and therefore I have a certain amount of experience. I respectfully suggest to the Minister that, while I do not doubt what he intends, he is doing considerably more in this section than maintaining the present position.
If the Minister will look into the matter, I suggest to him that the first step simply is to see whether it will not meet the case to put in, "Nothing in this Act shall invalidate or be held to invalidate the operation of" and then quote the old section. I believe that will meet the case so far as the operation of the old Act is concerned. If he is not prepared to do that and if he insists on this section, then I suggest that he should amend it—I am assuming that it is to remain as it is in general terms—to provide that, if the book is found in the personal luggage of any person, it shall not be removed and that only the name of the person shall be taken. It would not have the same serious effect if there was the right to take one book out of 100 books consigned to Messrs. Eason. Messrs. Eason would have a different view about that, but it would not have the same effect, at any rate. It would not be quoted outside and we would not be described as low meddlesome busybodies. A book, copies of which come into a firm in quantities, is obviously intended for ultimate circulation. If there was a delay so that it should be censored— I am not speaking in favour of it— it would not have the detrimental effects which could occur in the case of a book which is seized from personal luggage. It is important to remember that the reason I used "stealing it from a person" was because it is not an offence to have a book even if it happens to be censored. It certainly is not an offence to have a book which might conceivably be censored. It is still less an offence to have a book which a preventive officer thinks might be sent to the Censorship Board and that is all we are dealing with as the Bill stands. It is an offence to import it for circulation or distribution. I have no reason to think that there is any extensive importation of single books in personal luggage for the purpose of distribution. But I should like again to make it clear that I am not proposing and there is nothing in these amendments to suggest that the present provision by which a censored book can be seized——
I know there is a case to be made for that. I am not dealing with it for the moment. It might save time if, with your permission, Sir, I briefly refer to the next amendment, which I will not move. It has relation to the same matter and the case I want to argue is that the Minister should look into it. If, as I say, he is not prepared to adopt my suggestion and provide simply that the provisions of the old section shall be maintained, then I suggest that he should certainly make it clear that you cannot seize a book which is the property of a person who demonstrates, by showing his passport, that he is not a citizen of this State. That would, I think, be better than nothing. With your leave, Sir, I propose to withdraw these two amendments and put them down again for the Report Stage, not for the purpose of arguing them again, but in order to see whether the Minister will provide some alternative.
Before the House agrees to allow these amendments to be withdrawn, I want to make one or two comments. In the first place, I am amazed at times at the extent to which some Senators allow their imaginations to run riot. On other occasions I am amazed at how simple they can be. It has been suggested here that the main objection to this is that the ordinary customs official is not a fit and proper person to make an examination of the kind intended in this section. The same thing might be said with regard to customs inspections generally—that these officials are not competent to decide whether certain articles are contraband or not. The argument that these men are not littérateurs or linguists does not hold water, because at any customs station where there is reason to believe that there is likely to be imports of certain articles which are contraband there is surely a senior officer to whom these things have to be referred. Surely in the service there are linguists and men capable of seeing by a glance at a book whether it is one which should be referred to the Censorship Board or not.
I am not speaking of this in any vague sense, as I have experience of it to some extent. It is not so easy as some Senators may think to shock me in regard to some of these matters. Some years ago, as I mentioned before, a small very unofficial body of Senators inquired into this question of censorship and the circulation of certain books and periodicals, and I saw placed on a table here a load of literature that was shocking. You merely had to turn over one page of some books to find that they were grossly indecent. No man can tell me that the ordinary customs official by turning over the pages of a magazine and seeing, on occasions, pictures, which are included in the scope of this Bill, is not a competent person to decide whether such a periodical or publication is one which should be referred to the Censorship Board. Within the last few days a certain publication was put into my hand and I was told to look through it. I looked at its table of contents and, acting according to that table, I read just two pages, page 9 and page 12. Any man who had gone through the fourth or fifth book in the national school, glancing through those pages, would have no hesitation in the world in deciding immediately that this was something which should never be allowed to circulate in the country, but was a document or publication that should be referred to the Censorship Board for review. The Minister has promised to examine this point, but I hope he will consider very carefully whether he should weaken his Bill by altering one syllable of the section as it stands.
In the course of this discussion, all Senators have referred to one book in personal luggage. I do not see anything in the section referring to personal luggage and I assume that "book" can be interpreted in the plural. Those who have tried to pass customs officials know that it is not a case of one, but of several articles where there may be an endeavour to pass them through. I would like to have that point clarified. This may be a question of a trunk full of books in the custody of some individual. Does that mean that, because it is personal luggage, it cannot be interfered with? Again, the definition "book" in the beginning of the Bill does not include a periodical. It says "every printed publication which is not a periodical publication". It seems to me the section is not wide enough at all unless it covers both periodicals and books, so as to deal with a trunk full of periodicals brought in here with an ulterior motive as well as a trunk full of books. To my mind, this section is very necessary. It is not a case where we are drawing the long bow about one book in one person's luggage or in one person's hand. We must interpret the section to include any number of books, and I would like it to be interpreted to include any number of periodicals also.
It seems to me that Senator Douglas is more than usually näive in the language of his amendment No. 26:—
To add to the section a new sub-section (3) as follows:—
(3) Nothing in this section shall authorise an officer of customs and excise to seize a book which is the property of a person who is not a citizen of the State and who states that he does not intend to take up residence within the State.
He may be a "bagman" or a commercial agent and this may be a specimen copy which, though he is not a State citizen, he will show to citizens of the State, with a view to getting orders therefor. There is a way of getting the ordered stuff through and evading the Act. A bookseller here may book orders for a book selling in London and send to the publishers the names and addresses of the various persons who have booked with him and direct that a copy is to be posted to that person, to the private address given. In that way many copies may come in.
Again, if we are to have this amendment reconsidered, something stronger than "not State citizen" ought to be introduced. I quite agree that he can show that he is not a citizen of the State by producing his passport, but there should be something equally efficient to show that he is just passing through.
A consequence of sending the name of a book instead of the book has not been considered by itself. If the book, not the name of a book, is to be censored, then the Censorship Board must secure a copy of the book. What does that entail? I know that, during the war period, it was impossible frequently to get a book of which we had been made aware. A friend comes to me and says there is an abominable book circulating in one of the libraries here and that he himself got it out to test it. Well, the board is helpless. It is aware of the circulation of this book, it is aware that there are lists of waiting readers with this particular library, but the board can do nothing.
I mentioned on the Second Reading the allowance that is provided for books. Would it be in order to refer to that again? I think it is closely connected with the working of this proposal, namely, what capacity the censorship board will have, without further expenditure. In 1941 and 1942, the board was provided with £20 per annum for the purchase of books. In subsequent years, by the generosity of the present Minister for Justice, it was increased to £25, but in 1945/46 it was reduced again to £20. It may be remembered that the Minister for Posts and Telegraphs——
I would like to ask if the money allowed actually was spent. I understand it was not spent and so the amount was reduced.
I was coming to that. The money was not all spent. That is perfectly true. The library subscription for the board amounts to £12 12s. 0d. When that is subtracted from the amount, £20, it does not leave very much. When you remember that we had to receive from one Office the enabling of the purchase, and that conditioned also by obtaining another Department's permission, it works out that, in the last few years, during the emergency period, the surplus money was practically useless: By the time the board had the money, the book was no longer to be had—"sold out". I am merely raising that to show that the amendment does, in effect, propose an increase in State expenditure. My amendment was ruled out of order, on the point that it proposed to involve more expenditure of taxpayers' money. So does this, because the books must be provided. There is another important consideration. There are five members of the Censorship Board under this Bill. Almost invariably in the previous operations of the Censorship Board only one book was available, which had to be circulated among the five members, several of them, if not all, busy men. That accounted for the delay, which has been censured so often by our various critics—the delay between publication of a very objectionable book and the appearance of its name in Iris Oifigiúil. There is bound to be a lapse of time. So that, as a matter of fact, there should be an amendment by the Minister to the effect that the board should be supplied with sufficient funds. I think that was in the mind of Senator Summerfield—that the board might achieve more than it did; that it should get, as we say, a move on. That necessitates the supply to the Board of Censorship of more than one book; yet here is a proposal that it is sufficient to initiate proceedings by supplying the name of the book. There is a conspiracy against a book being got, because it has frequently happened that we have attempted to buy a book—does someone challenge my term “conspiracy”?
The Senator has very good hearing.
If so, I will substitute "concerted action".
Not quite the same thing. Shall I put it that there is concerted action to frustrate our getting a book? All these practical considerations have to be taken into account, I humbly suggest to the Minister, before he considers this amendment anterior to the Fourth Reading.
I think the Minister's explanation with regard to the Act of 1876 would indicate that I was right in thinking that comparatively few instances occur, particularly with regard to personal luggage. I sympathise with the Minister's position under the Act of 1876, but I suggest that what Senator Douglas has said is probably sound, that it would be better to provide that the section of the 1876 Act will still be operative rather than give the matter new life by what might be a wider interpretation of the beginning of sub-section (1) of Section 5 of the Bill.
I did not imply, in any way, any criticism of customs officers. My experience of them is that they are both competent and courteous in their own sphere but, excepting the Censorship Board people, who are carefully selected and difficult to get, they are the only people under this Bill who are entrusted with this kind of duty. Nor am I actuated, as I think has been suggested, with any desire to increase the number of indecent or obscene books in circulation in the country. That is not my desire. I am the kind of person who can arrive at Dun Laoghaire with a trunk of books—I have arrived there from Paris with a case full of books—and I would hate to have Senator O Buachalla censoring them. I may add that the books I brought from Paris were not purely for pleasure—they were part of my job; French was my job. I think the Minister's suggestion is a sound one and we can leave the matter over; but nobody criticises the operations of the customs officers.
I would like to point out that the reason the customs officers are mentioned is that it is mainly through importation that these books are brought in, and they are the people who handle them. As regards expenditure, I would not like to think that any board would be held up by the niggardliness of the Department. I asked was the money that was allowed expended, and it was admitted it was not spent, although it was not very much. Within certain limits—I cannot make a promise that every request by the board will be met; I have somebody else to consult before I could do that—any reasonable request will be met. I would like to say that, because we may have difficulty in getting people to accept membership of the board, and if they believed that they were to be starved, as it were, it might be more difficult still.
No member of the board attributes niggardliness to the Minister for Justice; we blame the Department of Finance.
He is not alone in that; there are plenty of others with him.
It comes to the same thing.
Amendments Nos. 25 and 26, by leave, withdrawn.
Section 5 put and agreed to.
I move amendment No. 27:—
In sub-section (1), line 46, before the word "examine" to insert the words "read and".
The object of this amendment is to strike at a practice which, I understand, has been prevalent, of presenting the Censorship Board with a book in which passages are marked, so inviting the busy members of the Censorship Board to take a rapid glance at the passages, to judge the book upon these passages and not to consider whether it is, in its general tendency, indecent and obscene. I venture to suggest that there is not a play of Shakespeare's, and probably there is not a part of the Old Testament in which you could not mark passages and, if you presented them, and the books were not considered as a whole, they could be classed as indecent and obscene. The reason of the amendment is that I am anxious that there should be a statutory obligation on the censors to read the book and see whether, taken as a whole, it could be regarded as, in its general tendency, indecent and obscene. I need say no more.
This—and I hope it is not unparliamentary language to continue what I was about to say—is particularly silly. It has no regard to the situation as an actuality. There are more books submitted to the Censorship Board than books complained of as indecent and obscene. There are books that, from the first page to the last, are devoted exclusively to the advocacy of contraceptives. All books do not require to be read from cover to cover; it is quite sufficient to see that it is devoted to the advocacy of the extinction of life and the book is condemned. If Senator Kingsmill Moore thinks that is a violation of the law, we all plead guilty to having violated the law. It is unnecessary to read any further than to discover the fact that it is the advocate of murder or of abortion or any of these things mentioned in a subsequent section.
Again, there are other books in which are at intervals continuous pages, five pages, seven pages, of the grossest obscenity. Has that book necessarily to be read right through to discover if it is indecent and obscene? The Senator insults the board by adding "read" to the requirement "examine", as if under the term "examination" is not to be included all that is involved to fulfil the purposes of the Act. I hold that where the law lays it down, the members of the board are to do certain things, the demand made upon them by the Act is a reasonable demand and, consequently, can be carried out reasonably.
In answer to the Senator, I think his point seems to be perfectly good in regard to these books which are submitted for censorship under (b) of Section 7. But that does not cover books which are submitted for censorship on the ground that they are, in their general tendency, indecent and obscene. I again say that it would be very possible to submit—in fact, there would be no difficulty at all in submitting—the majority of the plays of Shakespeare with marked passages in which you could find things that, taken in their isolated context, are indecent and obscene — and no one knows that better than the great Shakespearean scholar who has spoken. But, if you regard the play as a whole, those passages fall into their natural perspective and the context, so far from being indecent and obscene, may have an entirely different effect. I object to many of the books on the present censorship list being on it for that particular reason.
I would like to know what the attitude of the learned professor would be to the remarks of the nurse in Romeo and Juliet, or to some of the remarks of Hamlet when he was addressing Ophelia. They are indecent and obscene taken by themselves, but in their contexts they preserve a true picture of human nature which it is the great object of the dramatist and the novelist to present. The learned professor says, in regard to the books he is talking of, that from the first page to the last page they are advocating contraception or advocating abortion. Well, if he knows they do it from the first page to the last page, I presume the learned professor is one of the noble exceptions who does read every book from beginning to end.
If that is so, the Senator should really support me, because he accepts my view that it is a duty to read a book through; but I do not think the Senator will go so far as to say that, in his opinion, all books which have been condemned as indecent and obscene have in fact received that thorough examination by all members of the Censorship Board. If a book is presented with definite marked passages, human nature being what it is—none of us wants to do much more than he has to do, because we all have a lot to do—you are inviting people, quite frankly, to take the short and easy way, just as I fear the House is inclined to take the short and easy way of interfering by prevention instead of the positive way of teaching and exhortation, you have no provision in the Bill which imposes it as a definite statutory duty on people to read the book as a whole and to form their opinion of it as a whole, where they have to decide whether it is in general tendency indecent and obscene, you are inviting people to succumb to the weaknesses of human nature.
I think the amendment is entirely unnecessary. Surely the board will do everything necessary to come to the conclusion as to whether a book is or is not indecent and obscene? I am sure the Senator did not intend to insult any member of the board, and if the provision had been put in in the beginning, it might have gone unnoticed, but after a debate like this, if it were to be accepted, there would be a direct implication that the board had not properly examined a book, and, therefore, I think the Senator should not press it. I could not accept the amendment.
I feel that something on the lines of this amendment is necessary and I so feel by reason of past experience. How, for instance, could a book like Land of Spices ever have been banned, if it had been properly read as a whole? I do not think the Senator intended by the literal expression “read” that it should be read without skipping a word, but I do think that what he has in mind is the attitude of the conscientious reviewer. I once said to a reviewer: “How do you do your work? Do you read all books from cover to cover?” He replied: “I cannot say exactly that I do, but I always turn every page and I have the facility of taking in the substance of every page without reading it literally.” That is what we want the censors to do and I do not think we have had that done in the past. If it had been done in the past, I cannot conceive how certain books which are on the censorship list ever found their way there, after being examined by men who had any conscientious approach to their duty.
Amendment, by leave, withdrawn.
Amendment No. 28 has been partially discussed in discussing amendment No. 25.
It is undoubtedly ruled by amendment No. 25. I thought that, if the amendment by Senator Douglas were accepted, it would be necessary to introduce this as a consequence.
Amendment No. 28 not moved.
I move amendment No. 29:—
Before sub-section (2) to insert a new sub-section (2) as follows:—
(2) When examining under this section a book in respect of which the complaint made is that it is indecent or obscene, the Censorship Board shall have regard to the following:—
(a) The Constitution, Article 40, Section 6, sub-section 1º, with especial reference to:
"The State shall endeavour to ensure that organs of public opinion.... shall not be used to undermine public order or morality. The publication of... indecent matter is an offence which shall be punishable in accordance with law".
(b) The expression "indecent or obscene" as applied to a book includes, besides its accepted meaning whatever is of lecherous, lewd or lustful character; or of a nature likely to deprave and corrupt readers whose minds are open to such immoral influences, and into whose hands the publication might fall, thus ultimately subverting morality in the State.
(c) Due care is to be taken to distinguish what are bona fide contributions to scholarships and the sciences, works for use in the learned professions, from publications which masquerading under the guise of imparting instruction, present to the general public details of sexual relations and sex aberrations; likewise to distinguish from literature what under the pretext of realism in Art gives undue preponderance to the sex element.
This is a proposal to introduce still further injunctions to members of the Censorship Board. In Section 6 (2) of the Bill as it stands, injunctions directive of the members of the board in their work of examination are set out in detail. The sub-section says:—
"When examining a book under this section the Censorship Board shall have regard to the following matters..."
I venture to add, in this new sub-section, still further considerations which I suggest should be present to the minds of those who censor books officially.
I wonder if the Senator will allow me to make a point of order with regard to part of his amendment? I do so not with any ill-feeling towards the Senator but on the general issue.
I should like to put it to you, Sir, that the quotation of an Article of the Constitution, or any part of an Article of the Constitution, in an amendment is undesirable, for this reason, that the Constitution is a fundamental and overriding document. All Acts of the Oireachtas must be read in the light of the Constitution and all boards must work under the Constitution. Therefore, if the practice of citing the Constitution by way of special direction to particular boards, set up under Acts of the Oireachtas, were to be allowed, it could be carried so far that a great many Acts would be burdened with such unnecessary quotations.
I put it to you, Sir, that a quotation from the Constitution is never necessary in an Act, because the Constitution is always present. It is always an overriding consideration and therefore must always be taken into account. To take a particular part of the Constitution and to say: "You must consider this", is unnecessary, and, therefore, I suggest, not in order. I make the point with no reference to the merits of this amendment, but because I think that, when we have a written Constitution, we should not quote that written Constitution in our Acts. It is unnecessary to do so.
On that point of order, I may say that I was myself in doubt about the admissibility of this amendment in which portion of an Article of the Constitution is recited. I would view with uneasiness the introduction of a practice under which in amendments to Bills of a general character, it was considered necessary to include excerpts from the Constitution. The Constitution is fundamental law and in the light of it all ordinary legislation must be construed. However, as the recitation in this instance is by way of terms of reference to the Censorship Board, I am prepared to give the Senator the benefit of the doubt and to allow the amendment to be moved in the terms in which it appears on the Order Paper.
Might I put this point, Sir? The quotation here is part of an Article——
The quotation here is part of an Article which the mover of the amendment deems to be pertinent. I suggest that that introduces an element of doubt and uncertainty and that it is not the proper way in which the Constitution should be used. The Constitution is a document which has to be considered as a whole. It is always present. It must be present to the mind of a judge when giving a decision or to the mind of a board when carrying out its functions. If we are to be allowed to discuss particular parts of the Constitution set down by way of amendment, the practice, as you have yourself indicated, is a bad one.
On a point of explanation, there is no proposal to discuss the Constitution. My amendment presupposes that the Constitution is accepted in every word as the fundamental, organic law in this State. I have permitted my friend, Senator Hayes, to speak against my amendment before I had an opportunity of explaining it.
The laws of God are supposed to be present to the mind of everyone who professes to be a Christian and yet we have a Censorship Board to prohibit the sale and circulation of obscene books.
May I make this point before you rule, Sir? I did not say a single word about the merits of this amendment and it is most improper for Senator Magennis to say that I spoke against his amendment before he had explained it. I did no such thing. Independent of the merits of this amendment, I deprecate the insertion of part of the Constitution in an Act. With regard to discussing the Constitution, we can, of course, discuss the Constitution. Anybody who likes can say: "There is another part of the Constitution quite different from this."
On the point of order, may I make this point that it is inadmissible to quote in another Act as if it were an isolated sentence a portion of a sentence which does not stand by itself? I am not suggesting that the Senator has in any way deliberately left out portions of it. In fact he has so indicated by dots, although he has not striven to conceal that he has not sedulously striven to reveal all. The Article begins:—
"The State guarantees the right of the citizens to express freely their convictions and opinions..."
Then come the exceptions:—
"The education of public opinion being however a matter of such grave import to the common good, the State shall endeavour to ensure..."
The learned professor has not only left out the leading part of the Article but also the portion of the sentence which explains the subsequent part, the word "The" with capital T as if his quotation were the beginning of a sentence, whereas in the text the word "the" comes after a comma and is a subordinate sentence.
And so I wrote it down. Let me explain.
I had already adverted to these points. The point of order taken by Senator Hayes is, in my view, well taken, and I think we have had a fairly good indication of what the practice would lead to, if it were to continue. If discussion such as this were permitted, then we might have pages of the Constitution read to the House, and that could only end in confusion of debate. The Constitution is fundamental law.
Is Senator Magennis allowed to move this particular part?
Yes, in this particular instance, but I am glad to have been afforded an opportunity of stating the views of the Chair.
Surely we will not be precluded from discussing part of the Constitution?
If Senator Hayes is not too subtle to allow his intelligence to work he will see from the amendment that it begins: "When examining a book under this section." This is an exhortation to be mindful of what is quoted. I could quote Senator Hayes, if this discussion is to proceed, against Senator Kingsmill Moore. According to Senator Hayes every word and syllable of the Constitution is present to the mind of every law-abiding citizen.
According to Senator Kingsmill Moore it seems to be offensive to call the attention of citizens to the fact that there is a Constitution.
May we get clear what the ruling is? The ruling is that the amendment may be moved but that it initiates a very undesirable practice. Is that correct?
Yes. The reference to portion of the Constitution is allowed as a term of reference, but the fact that it is, is not to be taken as a precedent for the future. This is the first occasion on which a case of this kind has arisen in this House. The Chair could not allow this to become a settled practice for the reasons I have stated.
If it is a bad practice should it not be stopped at the outset?
In the Principal Act and in the present amending Bill, the Censorship of Publications Board is exhorted to keep certain things in mind, to entertain in fact all relevant circumstances and considerations in respect of a book undergoing examination, and I, by this amendment, seek to remind them of what they must take account of, the great broad principle set out in that Article of the Constitution. If in examining a book the charge is made that it is indecent and obscene, then they must note what was the intention of the Legislature generally in respect to books that contain indecent matter. I deny that the introduction of this as something to be taken into consideration invites in the slightest measure eager members to discuss the Constitution. No one can stand up—not even Senator Hayes—and say: "I deny the overruling consideration put forward here." He would really be out of order at once. He would be considered a very bad citizen. This reminds the censors that there is a Constitution and that they should conduct themselves agreeably with its terms.
The main consideration I desire to impress upon the attention of the Censorship Board is this:—
"The expression ‘indecent or obscene' as applied to a book includes, besides its accepted meaning, whatever is of lecherous, lewd or lustful character; or of a nature likely to deprave and corrupt readers whose minds are open to such immoral influences, and into whose hands the publication might fall, thus ultimately subverting morality in the State."
I owe the passage beginning "or of a nature...", which I have quoted, to a lecture on "Obscene Literature" given by Sir Edward Tindal Atkinson, K.C.B., C.B.E., Director of Public Prosecutions. It was published in London by Christophers. May I quote further from the work from which I have taken this expression? He refers to the case of Reg v. Hicklin, 1868, and says:—
"The case is of much importance as containing a statement by way of definition of obscenity, viz., ‘the test of obscenity is whether the tendency of the matter published is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands the publication might fall'."
The statement is taken from Judge Cockburn's findings in his determination of the case in 1868. Perhaps Senator Kingsmill Moore requires the reference. It is from law reports, 3, Queen's Bench, page 367. This statement says:—
"The director of prosecutions is still recognised"
—that is in England—
"as laying down as the test to be applied."
I may have occasion to refer to that again. The test that is thus adopted in the English courts was approved of in Geneva at an International Conference with a view to having an international code in respect of obscene publications, for suppressing them. It was quoted with approval by the French representative and the Indian representative as the most successful attempt to do what is very difficult, almost to the extent of impossible. That is to define what is obscene. "The expression ‘indecent or obscene' as applied to a book, includes, besides its accepted meaning, whatever is of a lecherous"—that is an exceptionally gross form of indecency —"lewd or lustful character; or of a nature likely to deprave and corrupt readers whose minds are open to such immoral influences, and into whose hands the publication might fall, thus ultimately subverting morality in the State." Paragraph (c) of the amendment might be regarded as a parody, in some respects, of the injunctions already made in the principal Act and in the amending Bill. It says:—
"(c) Due care is to be taken to distinguish what are called bona fide contributions to scholarship and the sciences, works for use in the learned professions——”
That reservation, by the way, if I may interrupt my reading of the paragraph, is contained in the first part of the Principal Act.
"from publications, which, masquerading under the guise of imparting instruction, present to the general public details of sexual relations and sex aberrations; likewise to distinguish from literature what, under the pretext of realism in Art gives undue preponderance to the sex element."
I do not think this amendment is necessary. I think that the matters which the board is expected to have regard to, and which are set out in Section 6, are very wide, especially when one bears in mind that under paragraph (e) the board is to have regard to any other matters which appear to them to be relevant. I think, therefore, that everything is covered, and that due regard will be had to the Articles of the Constitution. I think that the amendment, if accepted, would overburden the measure with something that is not necessary at all. I think that any person who is considered fit to be a member of the Censorship Board will feel bound to take these matters into consideration in deciding whether a book is indecent or not. I consider the amendment unnecessary, and, therefore, unacceptable.
Amendment, by leave, withdrawn.
I move amendment No. 30:—
In sub-section (2), to delete lines 51 to 54, and substitute instead the following:—
(2) The Censorship Board when examining under this section a book the subject of any of the complaints implied or contemplated in Section 7 of this Act should take proper account of the following, or any other relevant considerations:—
(a) the literary or historic importance of the work.
In the amending Bill it is provided, in sub-section (2), paragraph (a), that the Censorship Board when examining a book under this section—remember, that includes all the books that are to undergo examination; it includes not only those which are complained of as being indecent and obscene but those which, under Section 7, which follows, are to be condemned as advocating the unnatural prevention of conception and so on, shall have regard to
"the literary, artistic, scientific or historic merit or importance, and the general tenor of, the book".
What I am proposing in this amendment is that:—
"The Censorship Board when examining under this section a book the subject of any of the complaints implied or contemplated in Section 7 of this Act should take proper account of the following or any other relevant consideration".
That is to say, I am lifting up what is now paragraph (e), and including it in the general note. I am proposing to amend by substituting for "the literary, artistic, scientific or historic merit or importance, and the general tenor of, the book", the words "the literary or historic importance of the work". I object to the "general tenor" of the book because it implies that every book to be examined has a general tenor. That may appear to be meticulous criticism to anyone who has not been engaged in this work, taking into account beforehand what criticism of his censorship might be made by his fellow citizen. In any case, it is a misuse of language to say "literary or artistic" because literature is one of the fine arts, in the eyes of many the foremost. To say, "literary and artistic" is to help in the corruption of the English language. Ignorant writers apply the term "artistic" only to painting. There are Fine Arts, and literature and painting are two of them. We are concerned here purely with what is printed matter—"book" is defined here as printed matter. The amendment proposes that the Censorship Board shall have regard to the literary or historic importance of the work. If they have due regard to these two considerations Senator Moore's fears for Shakespeare and the Bible will disappear. Since the legislation now known as the Act of 1929 was first proposed, that suggestion of fears for the Bible has been in general circulation. Some have suggested that the board set up now might ban the Bible and ban great literary masterpieces.
I have a more serious objection which, in the course of that deputation to the Minister that previously I referred to, I presented to him. The implication in this is—in the Principal Act it was —that in some way the examiner of the book in connection with which the complaint is made that it is indecent or obscene was to set off the indecency by considerations of literary, artistic quality. I pointed out to the Minister and I have the happiness to have lived many years since to make it to him again for his consideration—we are the only civilised country in the world that declares in its legislation that indecency, obscenity, may be set off by artistic considerations. The words that I used to the Minister then, I repeat. We have not been provided with a table book. We have not been provided with a sliding rule. I know the table book says: "16 ounces one lb.; 14 lbs. one stone" but I do not know how much of obscenity is to be set off by a corresponding amount of literary quality.
I was rung up, by the way—I hope the anecdote will be forgiven—by a journalist to inform me that the Censorship Board uniformly breaks the law. I had the patience to listen to him although I could have put the telephone out of operation instantaneously. His point was that we did not set off literary quality against indecency. I pointed out to him, as I point out again to any similar critic, that the Act which we were working under was an Act to prohibit the sale and circulation of unwholesome literature; we were not literary critics to any further extent than to consider while a work was obscene, it was so fine a masterpiece that it might be considered that ordinary readers ordinarily susceptible of unwholesome influences would be repelled by its very excellence and would not desire to read it and so escape.
It could happen. As a matter of fact, on many occasions we took into account the cost of the book. If the book was published at 18/6 or at 12/- we considered that was not likely to have circulation except possibly through a library and that at the same time the library might not care to invest in it as it would not be likely to be taken out except by special readers. I think that all the precautions that are needed to protect the Bible and Shakespeare are contained in my amendment—"they shall take into account the literary or historic importance of the work."
Why did you exclude "scientific"?
I may be unduly stupid but I cannot understand this particular amendment. It seems to me that Section 7 provides the only action that can be taken by way of censorship. Therefore, every book that is submitted can be dealt with by means of Section 7. Where this amendment differs from the Bill as submitted in that respect, I cannot understand.
I do not quite hear the Senator.
My suggestion is that Section 7 provides two grounds on which a book can be censored and the only two grounds that are provided in the Bill. Therefore, any books submitted, it must be contemplated, can be dealt with under Section 7. I, therefore, do not understand what the Senator is driving at by introducing a reference to Section 7 in amendment No. 30, which applies to Section 6.
Would the Senator permit me to correct him? I had introduced a new sub-section which was devoted exclusively to works complained of as indecent and obscene and in view of that I had to make the other reference clear.
I understand that this has reference to an amendment that has since been withdrawn?
That means that the real effect of the amendment is in the substitution of the words "literary or historic" for the words "literary, artistic, scientific or historic merit or importance, and the general tenor of the book". I cannot see that that is any improvement. I do not at all agree that the inclusion of these words in an Act means that this State is stating that you are to allow a book through which is indecent because it is historic or because it is literary. It means that in deciding whether it is or is not indecent you take all these various considerations into effect. If the Senator's argument is that you decide a book is indecent and then you let it off because it is artistic, that applies equally to the words he retains, if his argument is sound, which I do not think it is. I think he has rather argued against himself. I see now the reason for the amendment—it is connected with a previous amendment that has since been withdrawn—but I do not see what possible gain you have by reducing the words in paragraph (a), and I hope the Minister will retain the words in the Bill.
Senator Magennis made a remark which made me think and urged me to seek for further information. I understood him to say that this Act is confined to printed matter.
I should like to have further information as to the extent to which this Bill applies to artistic reproduction. There is one book that has been censored and the only grounds that I could discover for its censorship were that it contained certain illustrations. The book was entirely free from any sexual suggestions whatever. I refer to Shaw's Black Girl in Search of God— blasphemous, I grant you, but in no way dealing with matters of sexual morality. I should like to know where we stand in the matter of artistic reproduction. For instance, possibly from Senator Magennis's rather victorian, old-fashioned outlook——
——he would condemn certain works of French artists. Would he consider that the picture, "Olympia", by Manet, was indecent? Certainly many people would. Would he consider that the board had power to censor a work containing pictures of that kind, irrespective of their undoubted artistic merit? I do think this is an important matter because we are not within reach of the end of the depredations that censors may commit and I am now very concerned as to what action the censors are likely to take and what their attitude is towards works of purely artistic reproductions.
I thought that this amendment would have fallen with the other amendment, because they provide for much the same thing. The experience of the board has, I think, been that the direction in Section 6 was sufficient to enable them effectively to deal with any books they considered obscene or indecent. I imagine that everything contained in Section 6 would be present to their minds and, probably, other factors would be present to their minds as well. Therefore, it is not necessary to change the provision nor is it necessary to accept the amendment.
I am very glad to have the Minister's approval, so graciously expressed, of the Censorship Board. I am trying to remove, so far as possible, the future censorship board from the range of unjust criticisms. If the Minister is satisfied that this provision which, as operated by the Censorship Board, has been effective in the past, will be quite sufficient for the future, I shall not contest that opinion and, out of respect for the Minister's view, I shall withdraw the amendment.
I should not like to predict that this will stop criticism. I am quite satisfied that, whether deserved or not, you will get somebody to criticise.
The Minister was not here when I declared myself an incurable optimist.
Amendment, by leave, withdrawn.
Amendment No. 31 not moved.
I move amendments Nos. 32 and 33:—
32. In sub-section (3), page 5, line 8, to delete the word "may" and substitute instead the word "shall".
33. In sub-section (3), page 5, line 9, to delete the word "may" and substitute instead the word "shall".
The Minister is either going to accept both these amendments or he is not. I suggest that the word "may" should go out in those two places in sub-section (3) and that the word "shall" should go in. The sub-section would then read: "When examining a book under this section, the Censorship Board shall communicate with the author, editor or publisher of the book...". If you are about to destroy the fruits of a man's labour, you should, at least, let him know. In the second place, if the author, editor or publisher makes a representation, the board, under my amendment, "shall" take it into account. It is no use asking a person to make a representation if it is to be thrown into the wastepaper basket.
I think that this would be an unreasonable burden to place on the board. The vast majority of those books are not worth bothering about. They are mere rubbish and I do not think an obligation should be placed on the board to notify every author, editor or publisher that they propose to ban this book. If the book be of a type which suggests that that course should be taken, then the board have power to take such action. It is better to have the power permissive than mandatory.
That is as regards the first "may". If the board do get a representation, it should be mandatory on them to consider it.
It is better to leave that to the board.
It is not encouraging to authors, editors or publishers to tell them that, if they send in a representation, it may be entirely ignored and thrown into the wastepaper basket without being taken out of the envelope. That does not suggest that atmosphere of fair-mindedness which should characterise the operation of the Act.
I am certain that if a board, consisting of responsible persons, receive such a representation, they will consider it.
If that be so, there should be no objection to putting in the word "shall".
The objection is to making it obligatory on the board to do so. I think that it is better to leave the matter optional.
Amendments, by leave, withdrawn.
I move amendment No. 34:—
At the end of sub-section (3), line 10, to add the following words:—
"In every case where the author, editor, or publisher is known to have an address in Ireland the Censorship Board shall send a letter to that address stating that the book is being examined and shall allow a reasonable time during which representations may be made to it."
I have a slightly different point of view from that of Senator Kingsmill Moore. I am not so much concerned with sending notification to authors from all over the world whose books may be under examination as I am with the sending of notification to Irish authors whose address is known. That is a perfectly reasonable proposal. The other proposal would, I think, be too wide, seeing that books may be printed anywhere and many of those under examination would not be of much importance. In dealing with our own citizens, there should be an obligation on the board to send such notification if the author is resident in Ireland— and, by "Ireland", I mean not the Twenty-Six Counties but the Thirty-Two Counties.
The same objection applies to this proposal as applied to the last proposal. If the board think that there is nothing to be inquired into, that the book should obviously be banned, they should not be compelled to send such a notification. If there is any doubt about the matter, I have no doubt that they will communicate with the author. The same objection applies to this amendment as to the last amendments, though the burden would not be so great under this amendment.
There is a peculiar difficulty regarding this procedure. The moment the Censorship Board notifies the publisher that such a work is under examination, the publisher, well aware of the spicy stuff it contains, will have ample time to notify the booksellers to clear off their stocks. He may advertise, by suggestion, without reference to the fact that it is being examined, that the book may, possibly, be banned and that it would be better to make a purchase now. I do not think that he would be so frank as that, but some of the more daring of the publishers might. It is not at all desirable, in the public interest, that publishers should be notified that a work is under examination, but I agree with Senator Douglas that, in a case where the Censorship Board has decided to issue a prohibition order, especially where an Irish author or publisher is concerned, it would be well for the board to notify him that they intend to issue such an order. I have an amendment down to that effect later—the issue of a prohibition order unless, within ten days, certain things, which are set out, happen.
I am not satisfied with the Minister's attitude towards Irish authors. The number of Irish books examined, according to the information we have had, is but a small proportion of the total. If Senator Magennis's argument is to be taken literally, then it is an objection to the whole section and the section should be taken out.
The section uses the word "may". This amendment introduces the word "shall".
There is no sense in using the word "may" if the thing proposed is a dangerous thing to do. It is a mistake to give the idea that this will be done in a number of cases, as you do when you use the word "may". I am reasonable enough—the Senator may not agree—to admit that there are certain kinds of books, very few of which are written by persons resident in Ireland, to which his remarks might apply. The books by Irish authors I have seen—they are only a small proportion of those censored—were, at least, open to argument. They were border-line cases. They were not books which the public would rush to buy because of a rumour that they were about to be banned. So far as my information goes, certain libraries have whispered around that such a book has gone to the Censorship Board. That may be done without any ulterior motive. It may be done as a matter of ordinary gossip, but it would be calculated to do more harm than would a note sent by the board to the author or editor. I have in my amendment the word "publisher". I appreciate the Minister's point with regard to publishers and I would be quite willing to take that word out, because frankly I do not think that, as a rule, the same conditions apply as in the case of authors or editors. I think that in the case of an author or editor, if he is resident in Ireland notice should be sent to him.
I am not saying that it should not. What I am saying is that the board should have a discretion. If they wish to send notice, they have power to do so under the sub-section. What I am objecting to is the proposal to make it mandatory because even an Irish author may write a book of such a character that the board may not think it worth while to communicate with him in this way.
Is the amendment withdrawn?
I merely want to have the word "shall" inserted because I do not think that one Irish author should be treated differently from another.
Amendment, by leave, withdrawn.
Section 6 agreed to.
In connection with the next amendment in the name of Senator Campbell, I think the House might also consider the second part of amendment No. 54 in the name of the same Senator.
I move amendment No. 35:—
In sub-paragraph (a), line 13, to delete the words "in its general tendency" and after the word "obscene" in that line to insert the words "or subversive of public morals."
I am moving this amendment for the purpose of making more definitive the form of words which the Bill proposes should be applied as a test by the Censorship Board as to whether a book shall, in their opinion, having been duly examined by them, be prohibited sale and distribution in the State. Briefly, my amendment is intended to get rid of that contentious formula which constitutes the test that must be applied before an indecent or an obscene book or a periodical publication is permitted to set out on its mission of disseminating its obscenity and its indecency throughout the State.
Those who have so far taken part in the debates on this Bill have expressed a wide difference of opinion—an honest difference of interpretation, maybe—as to what this formula really means. Apparently it satisfies neither those who favour censorship of indecent and obscene literature nor those who are not opposed to the sale and distribution of such literature. That there has been a wide difference of opinion in regard to the interpretation of the formula which forms the basis for the board's report on a book or a publication, and which the amendment I am submitting to the House proposes to delete, is clearly evident from the widely-divergent views expressed during the Second Reading debate by, on the one hand, Senator Kingsmill Moore, and, on the other, by Senator Professor Magennis. During that discussion Senator Kingsmill Moore stated that the Act had been operated with complete disregard to the wording of the Act which, he contended, required that, before a book could be banned, it should be in its general tendency indecent or obscene. The learned and distinguished Senator went on to say:—
"I maintain that no five rational men could have banned, under that formula, the books which have been banned and that if the question had been open to be put before the courts as to whether it was conceivable that the books could come within that description, the decision would have been reversed by the courts, not merely because they differed from the Censorship Board but because they considered that no five men, regarding the words of the Act, could reasonably have come to such a conclusion."
On the other hand, Senator Magennis, dealing with the report formula—"in its general tendency obscene or indecent"—told the House:—
"This phrase ‘in its general tendency indecent', is one of the bugbears of the Press, of authors, of members of the board and of the Department of Justice. It is an artificial thing. A citizen complains that a book is indecent or obscene. Surely the issue to be tried is ‘Is it indecent or obscene?' and the report should be ‘complaint sustained' or ‘complaint rejected'. Why are we confined to an artificial finding—that the book in its general tendency, is indecent? The board has reported to the Minister and to the Department again and again— both personally and in writing— against this but no regard is paid. There it is in the new, supposedly amending, Bill..."
Thus we find two members of this House, eminent in their own respective professional spheres, diametrically opposed in their conception of what the words "in its general tendency" are intended to convey. It does seem to me, then, right and proper, after the 16 years' experience gained in the operation of the 1929 Act, that now, when the working of the Act during that period has made manifest the weaknesses in it—weaknesses some of which the Bill before the House proposes to remedy — the opportunity should be availed of to remedy the outstanding defect and weakness in the whole measure.
There is, I submit, ample evidence available, and we have it on the authority of those best qualified to give an expression of opinion on the matter, and whose views cannot lightly be thrust aside or disregarded, that most of the difficulties which have arisen in the administration of the present Act have been due in no small measure to the difference in interpretation as applied to the words "in its general tendency", in so far as these words condition the formula to be applied as to whether a book or a publication should be prohibited sale or circulation within the State.
This formula seems to me to be the pivot round which the whole question of censorship of obscene and indecent literature revolves, and unless it is altered in the Bill before the House in no unequivocal manner and in such a way as to obviate any further need for argument or inquiry as to what the words do mean, then I suggest our last position in respect of censorship of obscene and indecent literature will be worse than that which obtained under the 1929 Act, and I am greatly afraid that censorship of evil literature will not operate, as I think it originally was intended it should operate, to the common good of the overwhelming majority of the people.
Apparently, the interpretation of these words which constitute the report formula has provided a constant conflict between those who stand, and, in my opinion, rightly stand, for a rigid censorship of obscene and indecent literature, and those who are opposed to any censorship, even of obscene and indecent literature, and who contend, as we were told in the Second Reading debate, that all censorship is a thing which in principle is rooted in evil and that the system of censorship that has obtained up to this has produced nothing but irritation for the people of Ireland and amusement for cultured people outside our country. Personally I have failed to notice any manifestation of irritation on the part of the people of Ireland in regard to the censorship of obscene and indecent literature; but perhaps the learned and distinguished Senator who made that statement and I are just as much at variance in our conception of who constitute the people of Ireland as we are in our interpretation of what is obscene and indecent literature. So far as the amusement which the worthy Senator says we have provided for those whom he describes as "cultured people outside our country" is concerned, they are welcome to all the pleasure to which their possibly perverted sense of humour entitles them. If we are contributing something to the gaiety of nations by adding new names to the list of what the Senator has told us has come to be known as "everyman's guide to the modern classics," but what most people in this country call indecent and obscene literature, then I think the least that those who are striving to stop the circulation of this filth are entitled to do is just to smile complacently.
The amendment which I am submitting to the House is intended to make the report formula simple to understand and easy to interpret. The one which it seeks to replace has been, as I have shown, a bone of contention since it first appeared in the Act of 1929. How such a formula ever came to appear in that Act passes my comprehension, having regard to the Constitution of this State. If the report formula is permitted to remain in its present form in the new Bill, then I think our difficulties in defining what is indecent and obscene literature will increase rather than diminish. Those increasing difficulties will arise from a variety of causes. This Bill proposes for the first time to set up a censorship board of appeal. To that proposition in itself, as I said during the Second Reading debate, I have no objection, but I did warn the House that in my opinion there was inherent in the setting up of such an appeal board a number of difficulties that might endanger and frustrate the whole purpose which the Bill was intended to serve. It would appear to me, at any rate, that unless the present formula is replaced by something along the lines suggested in the amendment which I have just proposed, there inevitably will be many and serious conflicts of opinion in regard to the interpretation of the words I am moving to delete. Inevitably, I think, the Censorship Board will come into conflict with the appeal board.
Again, difficulties will arise from the fact that abroad there has been a general lowering of moral standards, and a change in outlook in regard to what is decent and what is indecent. I cited in the Second Reading debate a case which was listed in the United States Court of Appeal, in which it was ruled that there were no absolute and enduring standards as to what was indecent and what was obscene, and that the border-line between obscenity and decency changes with the times, with the public taste in literature, and with the public attitude towards sex matters. I think we may feel pretty certain, therefore, that cross-Channel publishers, and those with financial interests in those undertakings, will not be slow to avail of every opportunity before the appeal board to secure a change in the order first issued by the Censorship Board. The position will be materially changed when, under this Bill, those publishers will be entitled to go before the appeal board. Under the Act as at present administered, the Minister himself constituted the appeal board, and had power to revoke or alter an order made by the Censorship Board. I have much more confidence in the Minister, who is noted for his sound common-sense and courage, than I would have in any appeal board. The Minister probably does not want the job, and I do not blame him; it is not a very enviable job.
The line of arguments advanced in this House has convinced me that a determined effort will be made to wipe out censorship in this State, and I will not be surprised if at the end of five years censorship has disappeared. Some people profess not to be very worried about this. I think it was Senator Baxter who said last night that the people of the country are more concerned about material things. I must say I was amazed to hear a statement of that kind coming from Senator Baxter, whose background I think I know. I think he is somewhat of an expert on social and, if I may say so, moral questions.
We have had references to the opinions of the Archbishop of Canterbury and of the Archbishop of Dublin. When we cite the Archbishop of Dublin, I think it ought to be made plain that a particular Archbishop of Dublin is referred to. Senator Kingsmill Moore, on the Second Reading debate, mentioned the Archbishop of Canterbury—we all knew whom he was referring to there—and then referred to the Archbishop of Dublin. Yesterday he told us that in the daily Press there were letters from clergymen protesting against censorship. Anyone listening to those references in the House would be liable to assume that those were clergymen of the Catholic faith. I think it is desirable that there should be a distinction made in those matters.
There were protests from them, too—in person.
I have never seen any reference to them. However, that does not make them right. They can be wrong just as the Archbishop of Canterbury or the Archbishop of Dublin can be wrong.
To my mind, if this is allowed to go through in its present form, censorship is in jeopardy. Perhaps I was wrong in my interpretation of Senator Baxter's reference to the matters in which the people of this country are interested. So far as I understand the people of this country, I would say that they have more regard to purely moral considerations than to material considerations. Pope Pius XI himself says in regard to politics and politicians that one ought not to be disinterested in politics when politics means the interest of the common good and not the interests of particular individuals. That is the attitude I take in regard to the Censorship Bill. It may be due to my ignorance, or probably to other reasons, but I feel very keenly about this matter. As I said, it passes my understanding how such a formula could have found its way into the legislation of this country. Senator Sir John Keane yesterday told us that 90 per cent. of the people of this country read only the newspapers. That is a most exaggerated statement. If he said that only 10 per cent. of the population bought books I might agree with him, but when he says that only 10 per cent. of the people read books I think he is understanding the position.
Well, I accept that. I do not want to make any point about it, but the percentage struck me as rather significant. Listening to all the points made here about "everyman's guide to the classics", one would imagine that there are no decent writers in this country or in Britain. There must be a considerable volume of literature extent both here and in Britain, but, listening to the speeches here, one would imagine that nothing was worth reading except those books listed in "everyman's guide to the modern classics". I am quite certain that a considerable percentage of the 10 per cent. has already read the modern classics. We all know the onslaughts on morals which have been made in this country. Every bit of filth that could be shifted into this country was shifted in. We know of the difficulties——
And is being shifted in at present.
Being shifted in at present, yes. Well, if the people who have advocated the abolition of censorship had their way, we would be flooded with that filth. There are difficulties, but the Government is only the servant of the people, and I should imagine that the commonsense of the great mass of our people, who have no use for this filth, would show deep public resentment at the abolition of censorship and would resist any attempt to do away with it. I would prefer to have the Censorship Board, even with the difficulties that, in my opinion, will become manifest as soon as it gets into operation, along with the appeal board. We had references on the Second Reading from Senator Magennis in regard to the Censorship Board itself. He said: "There is no possible censorship——"
We are not dealing with the Censorship Board in this amendment, Senator. Would the Senator try to come to the amendment?
Well, if I am out of order, Sir, I shall say no more.
Perhaps, Sir, it would help to shorten the debate if I would be permitted to indicate my attitude to the amendment?
I would be prepared to agree to part of the amendment: that is, the part which proposes to delete the words "in its general tendency", but I could not agree to the other part of the amendment, which is, to insert the words "or subversive of public morals". I think that what Senator Kingsmill Moore said about that was quite correct: that it could include such things as drunkenness, gambling, and other such things, and, accordingly, the amendment would be too all-embracing as it stands. However, as I have said, I would be prepared to accept the part of it referring to a general tendency towards indecency. I say that I am prepared to accept that if it would shorten the debate.
That would also meet amendment No. 36.
I understand that the amendment is not withdrawn?
Senator Campbell would have been more convincing to me if he had named even one book that escaped censorship under the Act which should have been censored in the interests of public morals. I feel that the Act should be operated in a way that would show how vast its activities have been and how, in spite of this limitation of "general tendency", it can practically censor any book it pleases. Does the Senator want to censor classics which may be obscene in one page or two pages, or even in a few lines? Would he say what books he has now in mind that are not covered by the present Act, and that would be covered by his amendment? In any case, the Minister has stated that he is prepared, to accept portion of the Senator's amendment, and so I do not think it makes much difference, but I do not think it would be possible for the Minister to accept the whole of the Senator's amendment, because the amendment uses the word "or" and not the word "and". A book might be subversive of public morals on matters outside sex altogether. The words in the book, as Senator Kingsmill Moore has pointed out, might not be indecent or obscene, but might be held to be subversive of public morals in such matters as drinking, gambling, and so on. If the amendment is accepted in its present form, it would mean that every form of morals—sexual, social or otherwise—would come within the ambit of the Censorship Board.
Professor Magennis rose.
I am sorry, Senator. I had called Senator Douglas.
I was quite willing to give way to Senator Magennis. However, I should like, first of all, to say that I do not share in any sense the extraordinary pessimism displayed by Senator Campbell. I do not believe that the Minister, or any other Minister who may succeed him, will appoint five members of an appeal board who, to take the Senator's word, will allow this country to be flooded by filth. If I thought that for a moment, I would try, to the best of my ability, to get rid of that Government immediately, instead of wasting my time on a discussion of the Bill.
As far as I am concerned, I do not think it matters whether you have the words "general tendency" there or not, and my reading of this matter is that you are going to make it harder by this to get a book censored. For instance, if there are three or four sentences in a book, or one page of a book, which might be objectionable, a strict interpretation of the words would say that that book is not obscene in its general tendency. Quite obviously, one sentence, or even one page that might be objectionable, would not mean that the book was obscene in its general tendency; but that might be the interpretation. Personally, I do not feel that it is necessary to tighten this up, because I do not believe that the interpretation of words will mean much unless it is a judicial interpretation, and I think that a judicial interpretation would make it clear whether a book comes under the Act or not. If the Minister is prepared to accept that portion of the amendment, well and good, but as regards the second part of the amendment—and I do not think Senator Campbell was present when it was discussed previously—there is scarcely anything that could not come under it. As an example, I have a very large number of friends who hold, very deeply and sincerely that sweepstakes and advertisements for sweepstakes are subversive of public morals. That is an arguable point. It was argued at length in connection with another matter in the other House. Now, it would be quite possible to have members on the appeal board who sincerely believed that it was their duty to prevent the sale of any book or periodical which had advertisements for the sale of sweepstake tickets. I do not think that Senator Campbell realised that.
May I deal with my amendment No. 36 at the same time as Senator Campbell's amendment?
Yes, the Minister has accepted it.
Well, then, I am speaking on Senator Campbell's amendment.
The Minister has accepted portion of that amendment.
Yes, but I wanted to deal with the other portion.
Well, I was hoping that, by accepting that portion of the amendment, I might save time, but I was evidently wrong—it was a vain hope.
The fact is that I have a contribution to make to the debate on a matter that has not been heard before this, and if the House decides against me, I shall be disappointed. May I point out that what has been overlooked is the difference between the general tenor of a book and what is called the general tendency of a book? Furthermore, a book may be indecent or obscene—grossly obscene —and yet it might be held by quite reasonable men, not trying to make acute points, that it is not in its general tendency indecent. For instance, if I may resort for support to this work that is a favourite of mine —the lecture given by the Director of Public Prosecutions in England at King's College, University of London, in a long dissertation on obscene literature—the writer draws the attention of the law students whom he was addressing to the two classes of literature, the publication of which, he says, "in the last few years has increased in a remarkable degree"; and he mentions, firstly, "books which, while masquerading under the guise of scientific works, purport in extreme detail to lay before the public the subject of sexual relations and aberrations."
Might I point out that the Minister has already accepted the portion of the amendment dealing with this matter of general tendency, and so there is no necessity for debating or discussing that?
Well, then, as regards all these clever sophistications about the term "public morality" and its range of connotation and denotation, what are we discussing? In the Principal Act and the amending Act in relation to the Principal Act, what is dealt with is sexual morality, morality in regard to the relations of men and women. One has to read every term in the amending Act as governed by that consideration and, consequently, when Senator Campbell, puts in the words "or public morals" he is drawing attention to the fact that this Parliament does not attempt to interfere with the individual life. That is the express significance of "public" in the text. It is not intruding on the vie intime as it is called. While there is permission for the importation of a book which is intended for a man's own use, it is not admitted at all that because the book is for his own use, it ceases to be an indecent and obscene book. But we are not going to dictate to the individual what he is to read or what he is not to read. In that particular sense, where we are dealing with a man and a book, the Minister can grant him a licence. I say, with all consideration of its import, that it is plain and unmitigated sophistication, sheer sophistry, to say, that the reference to “public morals” includes sweepstakes, includes betting on dogs and betting on horses. I repeat again and I have finished, we are dealing with an Act, a Principal Act as amendable, and that Principal Act declares that it is to control the sale and distribution of unwholesome literature, and all the rest of it makes it very, very clear that it is unwholesome literature with regard to sex relations.
Amendment, by leave, withdrawn.
Is my amendment No. 36 accepted by the Minister?
I am accepting amendment No. 36.
Before the amendment is accepted by the Minister, I think it would be necessary to give a word of warning to the House as to what the effect of the amendment is. The effect of the amendment will be, of course, that the Censorship Board will not be able to ban books which they previously could ban.
It will not have much effect at all.
I do not think it will, but I think the House should know the effect of it. If you take out the words "in its general tendency" a book will have to be on the whole indecent and obscene before it can be banned. If the House likes to do that after the warning I have given, then so be it.
That is not in accordance with the opinion that the board received from the Attorney-General of the time at which they made application for guidance to the Department.
I cannot discuss an opinion I have not seen.
You can discuss a great many things in the air. Senator Kingsmill Moore, in his speech on the Second Reading——
We are finished with these amendments. The Minister has agreed to consider amendment No. 35. He has agreed to delete the words "in its general tendency" and give consideration to the other part. He has agreed to accept the Senator's amendment No. 36 on these conditions.
I want to be correct in this. I do not propose to accept the latter portion of amendment No. 35.
Yes, of Senator Campbell's amendment.
Might I, by way of explanation——
Senator Magennis will accept that and let the other go.
It was Senator Kingsmill Moore's word of warning.
I suggest that if the warning came from any other Senator than Senator Kingsmill Moore we would be much more inclined to listen to it.
On a point of explanation, Senator Kingsmill Moore, in his Second Reading speech, made the distinct suggestion that the appeal board will have to deem every book which is reported on by the formula "in its general tendency indecent" to be in itself in general tendency indecent. I think the Senator agrees with me.
Might I remind the Senator that the words "in its general tendency" are to be deleted by the Minister and there is no necessity to discuss the matter further? I should like the Senator to go on to the next amendment.
I should like Senator Kingsmill Moore's remark to be on the Official Report of the House lest readers may be deceived into thinking that that was the general understanding. That is my interest in the matter.
Amendment No. 35, by leave, withdrawn.
The following amendment was agreed to.
36. In sub-paragraph (a), line 13, to delete the words "in its general tendency"—Senator Magennis.
I move amendment No. 37:—
In lines 19-20 to delete all words after the words "they shall" to the end of the section, and substitute instead the words:—"immediately notify, by registered letter, the publisher and author, or editor concerned of their intention to publish the prohibition order unless within ten days of the posting of such letter an appeal in the prescribed form be lodged with the board. On receipt of such appeal, the board shall immediately refer it to the appeal board."
This amendment was spoken of by me incidentally in debating a previous amendment. The intention is to try to prevent as far as possible any irregularity ensuing on—what is quite possible—a lapse of time between the holding of an appeal board meeting and the issue of a notice in Iris Oifigiúil or any other lapse of time which would give the publishers too much latitude in selling off their books. It is really a precautionary measure. There is another implication in it to which I frankly draw the Minister's attention and that is: “unless within ten days of the posting of such letter an appeal in the prescribed form —an appeal in the prescribed form— be lodged with the board”. I direct his attention to the necessity of having in the regulations a prescribed form. I have not seen any provision for that except the general provision for regulations. I think it was Senator Ryan who referred yesterday to the fact that the appeal board as described in this Bill is in the nature of a tribunal and that being so, as the tribunal will be presided over by a judge, there ought to be a certain ritual in the regulations for it.
I think this amendment, as it stands at the moment, would not fit in with the Bill at all, as the only appeal provided in the Bill is from an Order which has been made prohibiting the sale and circulation of a book. Therefore, as the Bill stands, it would not be possible for an author to appeal before the book was prohibited as he could not appeal against an intention. Apart from that, if this were to give the author an opportunity to indicate that he intended to appeal, if the Order were made, and if the Minister thought fit to make all the necessary changes, I would not object, provided that, even if the Order were made, that did not prevent any other person from exercising the right to appeal. However, if this were to mean that the author, having appealed —or having failed to appeal, which is what I am concerned with, as I am not suggesting that, if he appealed and his appeal were upheld, he would make another appeal—another person would be deprived of the right, I would consider it objectionable.
If there is also to be a provision that an author has only ten days from the time the message is sent from the board, it would be most objectionable. It is a common thing for notices not to reach one within ten days. Even if they did arrive within two or three days, that would not give adequate or reasonable time in which to give notice of appeal, and if that were to be the only chance of appeal the author got, it would be most objectionable.
I am quite unable to appreciate the first point in Senator Magennis's argument. I do not see how, in this case, there can be any safeguard because they send a notice of intention. If they do not send any notice of intention and simply censor the book, nobody knows about it—though there may be rumours —until the notice appears, in which case it is illegal to circulate it, and there can be no circulation between then and the time of appeal. If the appeal wins, it may be circulated again, but there can be no circulation in between.
I cannot understand this point. I do not know whether Senator Magennis is more in favour of banning books than otherwise. If the board thought a book should be banned and if we adopt this procedure and assume we could get the publisher within ten days—we must remember he may be in America—and give him the ten days' notice, that means giving him ten days in which to circulate books. As Senator Douglas says, as the Bill stands, once a book is banned it cannot be circulated legally, unless an appeal has been upheld. I think the amendment would delay the whole procedure and make it not illegal to import a book which the Censorship Board intended to ban. The ten days would not be adequate in many cases. It might do in Ireland, but not somewhere else.
It is in the interest of the Irish author.
Even from that point of view, the Bill is better as it stands. If the board thinks a book ought to be banned, I think they should ban it, and let them take their chance on appeal. This is not an acceptable amendment.
I do hope the Minister will not accept this amendment, as it appears to be unworkable. If the publisher knew that an appeal was about to be made, there would be all kinds of traffic going on, and the stocks of the book would be cleared. The obvious way to do it is the way indicated in the Bill. Let the board make a substantive Order, which means prohibition in law. There can then be an appeal from that Order. That is the only practical way in which it can be done.
I notice that Senator Keane and Senator Magennis have changed sides.
That may help us to get on.
Amendment, by leave, withdrawn.
I move amendment No. 38:—
To add to the section a subsection as follows:—
(2) In this section the word "advocates" shall be construed to include advertises or in any other manner recommends to a reader, any method, treatment or appliance for use as aforementioned in paragraph (b) of the foregoing subsection.
It is important, in my opinion, thus to extend the meaning of "advocacy". So far as the law stands in England, advertisements are not considered as anything more than mere notifications that things are to be had, and they do not come within the criminal law if they stop at advertising. I hold that to use the circulation of a newspaper, periodical or book to draw attention to the fact that there are such appliances, and that there are such procedures for the destruction of life and for various other purposes to avoid the results of vicious acts, is in a measurable degree an advocacy of their use. If in ordinary conversation A says to B that he is suffering from a bad cold and B tells him of a remedy, who would deny that B is advocating the remedy as something useful for the purpose of getting rid of the cold?
In the case, especially, of such a heinous matter as is here concerned it seems to me not unreasonable but eminently reasonable to say that to publish an advertisement, even though the matter is left at that, is one stage to the writing of a book setting out the uses, the modus operandi and the technique of the employment of that appliance. Therefore, if the intention is really to stamp out these practices, everything that is any aid to the practices should be kept from the notice of the general public.
I am doubtful whether this amendment is necessary, but I will look into it, and, if the Attorney-General thinks it is, I will bring in an amendment accordingly.
Amendment, by leave, withdrawn.
Question proposed: "That Section 7, as amended, stand part of the Bill."
The section seems to me to raise a general question as to what should be the public attitude to sex as such and to the size of families. I am quite prepared to accept the doctrine involved in this section that there should be no unnatural method used for the limitation of the size of families. Indeed, it would be ill-becoming on my part, being a seventh child, to advocate any such methods.
I think that all through this discussion there has been implied rather than suggested the idea that sex itself is indecent and was probably the invention of the devil. I would remind Deputies that sex happens to be a divine institution, a particular machinery by which an all-wise Deity devised that the species should be continued. I am reminded of a story, which I think I told on a former occasion, about one of the mistakes which, in the North of Ireland, it is commonly believed the Deity made, and that was when he made the people of the majority religion in this country. I can well imagine that when Senator Magennis was at Sunday school, and when he learned that sex had indeed been created by the Deity, he retorted to his teacher: "He will rue it." I think, though, in his more broadminded moments the Senator would probably agree that sex is a divine institution, and I am sure he would agree that it is a privilege——
Is it in order for a Senator to impute anything of the kind to another member of this House, that, in his better moments, he would accept the Divine Revelation, the words of the Bible, and in his ordinary moods he is a different character?
Even men are variable in their moods, and some of our moods are more elevated than others. I think, however, the Senator will agree that it is a privilege to hand on the torch of life and in that respect the human being has the supreme privilege of co-operating with the Deity in the continued work of creation; but at the same time it is a personal and a social responsibility that the quality as well as the quantity of life that is created should be as good as possible. Consequently, there is another problem constantly before us. Assuming that there must be no unnatural limitation of the size of families, do we approve of the principle of breeding up to the biological maximum?
The Senator is drawing very near to the border line. He is dealing with matters that do not come under this section.
If I am out of order, the Chair is quite capable of stopping me, but I shall try to keep as much within the rules of order as I can. The object of this section is to maintain the purity of the sex life of our people and this Bill is a continuation of an Act which has been on the Statue Book ever since 1929. I submit that, if that Act had been effective in its purpose, it should have shown some results in the improvement of our social behaviour in the matter of sexual relations. If you refer to the statistics connected with these matters you will find that there has been, in fact, no such improvement, or at all events, it is difficult to relate any improvement to the incidence of this legislation. In 1940 there were 54 indecent assaults on females and there were 123 other sexual or unnatural offences, and I do not think that this section, or this Bill as a whole, is likely to show any results which will reflect themselves in those very unpleasant statistics. On the other hand, I do think that there is some relation between crimes of sex and a low marriage rate.
The Senator's remarks would be more appropriate to another stage. He is making a Second Reading speech.
I will postpone my remarks in that regard if I can bring them forward in a more general statement on the Third Reading. There are certain statistics to which I wish to refer.
The Second Reading was the occasion on which the Senator could have done that.
What about the Third Reading?
The occasion on which the Senator could have made those remarks has passed.
Section 7, as amended, put and agreed to.
Sitting suspended at 5.55 p.m. and resumed at 7 p.m.
With your permission, Sir, I should like to suggest that our procedure would be simplified if we were to discuss all the amendments to this section. They could then be put separately and the Minister could indicate whether he was prepared to accept them or not. If you look at the amendments, you will see that they overlap to a certain extent, and it would be much easier if Senator Magennis and I could speak in turn on the amendments without reference to any of the other sections. I suggest that we would get on more quickly and it would be simpler for all concerned.
It is, of course, a departure from the usual procedure, but I understand that there is a general desire to finish the Committee Stage to-night. If we adjourn at the normal hour we have only two hours. Is the House agreeable to adopt the course suggested by Senator Douglas?
Separate decisions will be taken, if necessary, on each amendment?
The following amendments were on the Order Paper:—
39. In sub-section (1), after the word "author" in line 21, to insert the words "the editor".—Senator Douglas.
40. In sub-section (1), page 5, line 21, after the word "publisher" to insert the words "or any club, society, association or other body having among its objects the study and promotion of literature or art". —Senator Kingsmill Moore.
41. In sub-section (1), lines 21-23, to delete the words "or any five persons (each of whom is a member of Dáil Eireann or Seanad Eireann) acting jointly".—Senator Magennis.
42. In sub-section (1), line 23, to delete the words "at any time".— Senator Magennis.
43. In sub-section (1), line 24, after the word "order" to insert the words "issued by the Censorship Board".—Senator Magennis.
44. In sub-section (2), line 25, to delete the words "on an appeal under this section" and substitute instead the words "having duly heard such appeal in accordance with regulations as prescribed".— Senator Magennis.
45. To delete sub-section (3), and substitute instead the following sub-section:—
(3) No second appeal shall lie to the appeal board against a prohibition order, on the plea of being a new, or later, edition of a prohibited book unless the later edition bears a new title not readily confused with the former title of the prohibited book.—Senator Magennis.
46. To delete sub-section (4).— Senator Magennis.
47. In sub-section (4), after the word "author" in line 33, to insert the words "the editor".—Senator Douglas.
48. In sub-section (4), lines 34 and 35, to delete the words "the joint application of any five persons (each of whom is a member of Dáil Eireann or Seanad Eireann)" and to insert instead the words "any of the persons set out in sub-section (5) of this section".—Senator Douglas.
49. To add to the section a new sub-section (5) as follows:—
(5) Any of the following persons may appeal to the appeal board from a prohibition order in respect of a book—
(a) Any Archbishop or Bishop of the Holy Catholic Apostolic and Roman Church.
(b) Any Archbishop or Bishop of the Church of Ireland.
(c) Any person acting on the authority of the Governing Body of any religious denomination existing in Ireland.
(d) Any person acting on the authority of any association in Ireland which, in the opinion of the Minister, was formed for the promotion of culture or the study of literature.
(e) Any person acting on the authority of a trade union.— Senator Douglas.
Amendment 39 in my name deals with a comparatively simple matter. It seems to me that amongst the persons with power to appeal should be an editor, if the book happens to be a book of short stories. He is in a similar position to that of an author. It is a drafting matter which does not require much discussion. I imagine the Minister will not object—at least, I do not know of any reason why an editor should not have the right to appeal. I think it was rather an accident more than anything else that the point was omitted. It is not a matter on which I feel very strongly, but, on reading the Bill, it occurred to me that an editor in such circumstances should have the right.
In view of the fact that a publisher has that right, I agree to the amendment.
All the other amendments which I have tabled to this section deal with the question of who should have the right of appeal. I quite agree that an author, an editor and a publisher must have the right to appeal. The question is whether there should be anybody else, and, if so, who. I should imagine, although I have not heard him speak on the subject, that the Minister does not want everybody in Ireland to have the right to appeal, and, if so, I completely agree. A possibly unworkable situation could be created on that basis, but I do not like or approve of the proposal that the onus should be placed on five members of the Dáil and Seanad acting together and I want to give briefly my reasons—I gave some of them on the Second Reading, but the Minister was not here—for objecting.
In the first place, I do not think it fair to put the peculiar duty on members of the Oireachtas of being a kind of guardian of the correctness or otherwise of the operation of the censorship, and I should like the Minister to realise that, whereas this will not be a matter of much importance to quite a large number of Deputies and Senators, there are a certain number who will naturally be appealed to by persons outside to exercise this duty. I may be a person who would be appealed to and frankly I am not going to ask for an appeal in respect of a book, unless I have read it.
I do not want to spend time, which I might otherwise give to public work, reading Bills, etc., on reading books that people, who might be more or less my constituents, think I should read for the purpose of seeing whether they were properly censored or not. It would be worse if I were a member of the Dáil, and had, as many members have, a number of constituents dissatisfied with censorship. I do not think Senator Magennis really meant, in part of his oratory yesterday, to accuse some of us of representing publishers outside the State. It could be almost thought that he did. If he, in the heat of debate, made a speech which would seem to make that suggestion, I think the Minister will agree with me that any Deputy who is asked by a number of constituents to appeal in respect of a book would be placed in an impossible position. If he appeals in respect of a book, he will be accused of trying to introduce filth into the country. I do not think there is the slightest doubt but people will say that he wanted a filthy book made free, and if he refuses he will be accused by another section of his constituents of being narrow-minded and intolerant, and in doubtful cases that he would not be willing even to allow an appeal. After all, it was not for him to say whether it should or should not be censored, but it might be said that he would not even allow a competent board chosen by the Minister to express an opinion, because he would not put his name to an appeal. I am convinced that that is not a position in which members of the two Houses should be placed as, I think, it would operate unfortunately. I do not think the Minister realises that this provision in the Bill means that you are putting on members of the Oireachtas duties with regard to appeal that are not their function. I do not think they are peculiarly suited for it.
What is important is this, that I do not think men representing a constituency should be placed in a position of possible misunderstanding. I do not think it is fair to ask us to take a book which is a borderline one, about which we possibly have doubts, and to decide whether we would put our names down or whether there would be an appeal. I cannot help feeling that the arguments against the insertion of a section of this kind are greater than any arguments that could be advanced in its favour.
The Minister suggested that it was taking the place of the present provision, in which you could bring up and debate in the House the Minister's action with regard to a particular book. I respectfully suggest that it does not do anything of the kind; that it is putting an onus and a responsibility in relation to books which was on the Minister in the past on individual members of the House, whereas the Minister has a staff, has collective responsibility, as well as the Government to protect him in his action while members of the House have nothing of the kind. Assuming that the House agrees with me, and that the Minister or the Dáil could be persuaded that that is not a desirable provision, the question arises: is anybody else other than the author, editor or publisher to have the right of appeal? I think that should be strictly limited. An amendment in my name to Section 8 provides a set of persons who might be entitled to appeal. I do not think there is the slightest danger that an Archbishop or Bishop, or persons acting on behalf of the Churches, would abuse this privilege. I put it down, particularly in view of the suggestion that some churches might be aggrieved. If they have a grievance the proper way is to give them power to make the appeal themselves. I do not want to have an Archbishop or a Bishop, if he has a grievance, ask me to use my name as one of the five. I am not saying that there is anything wrong about it, but I much prefer to give power to defined persons and in addition to the Churches. I suggest persons acting on behalf of an authority or an association, which the Minister believes has been formed to promote the study of literature, and a person acting on the authority of a trade union.
I may be asked why I put in trades unions. I do not see trade unions appealing on books, but my reason is that if authors in Ireland want to have the right of appeal, let them form a properly organised trade union, when they would have that right as a trade union. I think that would turn out to be a much better way of appealing than the individual right. That covers the main points of the amendments to Section 8.
Shall we take the next group of amendments now, from 41 to 46?
Senator Douglas in amendment No. 48 has already moved my amendment No. 41, and I accept altogether the argument which he made, though I do not accept everything he said. He recalled some speech in which I was so rash in the heat of debate—a thing of which I have no experience whatever—to declare that members of this House who are opposing me were acting on behalf of foreign culture.
I plead not guilty, first of all, to the charge of intemperate heat in debate, and not guilty to using language such as the Senator has attributed to me. I do ask why this solicitude for the foreign publisher. I put that care in contrast with my solicitude for the Irish citizen. However, we will let that pass on this particular amendment. I think that everything that was said in the Dáil against this was absolutely sound. It is not reasonable to add to the other duties and responsibilities of a member of the Oireachtas this: that he can be resorted to in aid of someone who has a particular grievance while the editor and publisher have a statutory right given them in the matter. I think that would be to impose on members a work called by theologians, a work of supererogation.
The next amendment for which I am guilty is amendment No. 42:—
In sub-section (1), line 23, to delete the words "at any time".
Sub-section (1) of the section provides:—
"The author or the publisher, or any five persons... acting jointly, may at any time appeal to the appeal board from a prohibition order in respect of a book."
Surely, that is not reasonable. It is asking too much unless the Censorship Board is to become a court of record and there is no such idea in the Minister's mind with regard to it. I am suggesting that the sub-section might be drafted otherwise to serve its purpose by deleting the words "at any time", so as not to leave it open to an author or a publisher two years or ten years after the event to lodge an appeal. That is exactly what the section as drafted provides.
By amendment No. 43, in sub-section (1), line 24, after the word "order" I am proposing to insert the words "issued by the Censorship Board". The object of this amendment is that, as we are entering upon a new machinery and a new mode of working the machinery, it is highly undesirable to provide for appeals to go back to 1930 when the Act of 1929 began to operate. The acceptance of my amendment, as the Minister will see, would limit appeals to what the new board is responsible for. Otherwise, we shall have retrospective legislation, and I think the whole of civilised opinion is against retrospective legislation where it can be avoided.
Theoretically, as a piece of abstract theory, undoubtedly, I should say that if a wrong has been done it ought to be righted. That would be the principle; but, again on the lines of empirical consideration, the consideration for fact and actuality, I do not see how the section, as drafted, would work, since the members of the board who examined these books and discussed them—and remember discussion was the chief part—are practically all dead. There are only two survivors, so that we have no record of what led in the discussion to the determination of the vote in respect of any book. Furthermore, in the case of an appeal taken back to 1930 one has to think of what has happened in the meantime: all the discussion about books mentioned by name in periodicals, newspapers, and in speeches in the Mansion House and in various other ways. You have had attacks upon the board and on the Minister, and a whole lot of allegations about these books, so that you cannot have a clear appeal as you could have where an appeal is understood as a regular legal transaction. Otherwise you would have contempt of court. The one great excellence in regard to the hearing of an appeal, especially in a matter which is practically a criminal matter, is that there is no contempt of court allowed. The public are not permitted to exercise their right of free utterance and free publication in prejudging a matter that is to be heard by an appeal court, and practically dictate to the court what decision it must arrive at. That is how the whole thing in point of fact exists. While to my mind, on the one side, is the theory and, I hold, a sound theory, that if an injustice has been done a remedy should be open, but the question here is: Can you have a fair, a genuinely fair, unprejudiced and impartial appeal in the circumstances that I have described? Therefore I am introducing this amendment to limit appeals to the appeal from a prohibition Order issued by the new board which the Minister will set up when this Bill becomes an Act.
Amendment No. 44 is:—
In sub-section (2), line 25, to delete the words "on an appeal under this section" and substitute instead the words "having duly heard such appeal in accordance with regulations as prescribed".
Once again I return to this question of regulations. It will crop up in its turn again. The Minister is to make regulations. Many would contend that the board to have freedom and independence should frame its own regulations but I certainly think that this appeal board should have the regulations framed for it by the Minister. Consequently, I introduced this amendment for the purpose of bringing under the notice of the House that this is a desirable matter as regards an appeal that is to proceed on regular lines.
Amendment No. 45 is:—
To delete sub-section (3), and substitute instead the following sub-section:—
(3) No second appeal shall lie to the appeal board against a prohibition order, on the plea of being a new, or later, edition of a prohibited book unless the later edition bears a new title not readily confused with the former title of the prohibited book.
I am afraid that is not quite happily expressed but, with your permission, Sir, I will give an account of the genesis of it. In the first five years of its existence I was chairman of the appeal board for films, and it frequently happened that when the State censor was in difficulties about the issue of a certificate of exhibition he persuaded the film renter to appeal on it and frequently, as the result of our consideration of the film and of the film censor's views about it, we suggested cuts. At that time it was quite easy for portions of the celluloid to be cut out and the remaining sections connected and to show films from which the deleterious or objectionable matter was eliminated. It sometimes happened that we affirmed the refusal of a certificate made by the State censor but agreed to let the film renter bring on a new edition of his film that would be unobjectionable, provided that he changed the title of his film. The reason for that stipulation was that on the grant of a certificate of exhibition to the new, re-edited film, it would be possible for a dishonest exhibitor to exhibit the State certificate on the screen and show the original condemned film. That was quite possible and it had happened.
So, with that experience before me, it occurred to me to suggest—the Minister might make more of it I confess than I, perhaps—that in the case of a second appeal, with regard to a new edition, new in the sense of having new matter in it or new in the sense of being of different format or a cheaper edition, or something of that kind, while it might be allowed by the appeal board to have circulation, it should not be allowed to circulate unless under a different title. Otherwise, one would read or find out on inquiry that such-and-such a book had passed the censor and then the book that had not passed the censor would be substituted in its place. That, frankly, is the origin of my idea and I have explained the object that I am trying to secure.
The next amendment is No. 46:—
To delete sub-section (4).
Sub-section (4) of Section 8 is:—
The appeal board may, on the application of the author or the publisher, or any five persons (each of whom is a member of Dáil Eireann or Seanad Eireann) acting jointly, from time to time vary a prohibition order in respect of a book so as to exclude from the order any edition of that book published after the date of the order and in respect of which no application has previously been made under this sub-section.
I allege that the draftsman has failed in that, that what it is intended to secure is already secured in the preceding portions of the section; that it is quite unnecessary and, furthermore, it is very, very difficult to comprehend.
With regard to Senator Douglas's proposal in amendments Nos. 48 and 49, may I speak for a moment? Again, he proposes to give State recognition to this, that and the other "literary" or artistic society that may be of mushroom growth. If you allow it by Statute to become of right a nominator of a member, in that way you accord it a statutory status which it should not possess. There are bodies in other countries that have that status, that are recognised authorities. That is the objection that I make. "Any of the following persons may appeal to the appeal board from a prohibition Order in respect of a book". Why should we arbitrarily select a person acting on the authority of a trade union? I think I am as consistent and persistent an advocate of trade unionism as any trade unionist in the land, but I cannot see any particular aptitude for judgment upon books and morals belonging to a trade union rather than to any other association. The employers' association might say: "Well, thanks to the labour of the trade union, we have leisure hours; we are patrons of literature".
I should like to ask Senator Douglas does the term "trade union" in his amendment include employers' trade unions as well as workers' trade unions?
"Trade union" to the best of my belief has a legal statutory meaning. It would apply only to a body that is registered as a trade union.
I do not think I need labour the point. Senator Douglas and I agree upon one of the main themes and, for the sake of that agreement, I will refrain from further criticism.
Senator Kingsmill Moore, on amendment No. 40.
I find myself in a very distinct difficulty because I would be prepared to support both Senator Douglas and Senator Magennis in taking out the provision whereby an appeal can be made by five members of the Oireachtas, being perfectly well aware of the fact that it would be an intolerable nuisance but a nuisance to which I would be prepared to expose myself unless I felt that there were some other provisions being made giving an opportunity to appeal to persons other than the author or the editor or the publisher.
For instance, where a book is not likely to have a large sale in Ireland, it is highly probable that neither author, nor editor nor publisher would worry about putting down £5 and taking an appeal. I have already—on the Second Reading—referred to the banning of some volumes of Proust. There are probably not more than 40 persons in Ireland who would be likely to read Proust although his is recognised by everyone as being amongst the half-dozen great novels of the world. It would not be worth while for the editor of a translation of Proust to appeal and yet it might be vital to ensure that Proust would not be eliminated for all time from the consciousness of the Irish people. The saying came to me when Senator Magennis was speaking, a saying which, I think, is somewhat inaccurate but which he, with his greater knowledge, will be able to correct—"He who kills a man kills a reasonable creature, made in the image of God, but he who kills a good book kills Reason itself, the image of God itself, as it were, in the eye." Therefore, it is absolutely necessary that there should be an opportunity of appeal in those people who are interested in great literature and in great books. For that reason, I should deem it intolerable that this Bill should not be extended to allow the questioning of some of the monstrous bannings which have taken place. Further, I think that an appeal should be open in respect of each edition, because, otherwise, you are definitely ensuring that there will be taken out of the consciousness of this nation books whose value may be infinite for literature, for science and for art.
I have been much impressed, in the course of this debate, by the fact that, with the exception of Senator Magennis, Senator Douglas, Senator Fearon and myself, no person here had made the least attempt to read the index of censored publications, analyse it or consider what books had been banned. Instead of that, it seemed to me that we, in this House, did, in fact, give what might be truly called an indecent exhibition, because, whenever the word "censorship" was mentioned, together with the highly-coloured and meaningless adjective, "filthy," everybody rose and followed the standard. They did not examine the standard; they did not inspect it to see whether it bore the cross of freedom or the crooked cross of repression. In my opinion, there are people here, people who represent bodies of culture, people who represent the forces of labour, who are crying for freedom but who have unwittingly followed the banner of the Swastika and lent their voices in favour of repression, not knowing what they were repressing, not considering what was being repressed but thoughtlessly and helplessly, because they made no attempt to ascertain——
It is not advisable to comment on past proceedings of the House.
I shall not do so, but I do not think that one of those people knew or realised what he was doing. It is for that reason I am so anxious to have this appeal available for each edition. I do believe that, if people who have spoken here in favour of the principle and practice of this censorship had done what it fell to my lot to do—to spend about a fortnight of my time endeavouring to analyse the nature of the books which had been banned, endeavouring to read some of them, endeavouring to make cross-analysis of them by authors and by subjects—they would not have spoken in favour of the provisions of the Bill but would have been supporting my amendments. Therefore, if this provision in respect of five members of the Oireachtas is taken out, I appeal to the House and to the Minister to secure that people who have the time to consider these matters and who are interested in literature and culture will be enabled to appeal. Otherwise, you may be doing a very great injury in wiping out of the consideration of our people a book which may be a great book and a good book and a wholesome book. I consider that books which are great and good and wholesome have fallen under the ban of censorship.
I do not know that the arrangement made for dealing with those amendments was the arrangement best suited to me. However, I shall do my best to deal with them. I shall take the amendment dealing with the five members of the Oireachtas first. I brought in that provision for much the same reasons as those stated by Senator Kingsmill Moore. It might happen that the publisher and author of a book would have no interest in the reading public in Ireland. The circulation here might consist only of a few volumes and they might not bother about it. I imagine that that provision will not be extensively used. Authors and publishers will, I think, appeal if they consider they have a case. It is only in the circumstances mentioned by Senator Kingsmill Moore that it might be used—circumstances in which only a few people would be interested and in which it might be desirable—I do not say it would—that there should be an appeal againt the decision of the censorship board. I do not know any persons more representative of public opinion than the members of the two Houses of the Oireachtas. It is suggested that this provision may put members into difficulties but we are all in difficulties at times. We have to turn down applications of many kinds every day of the week. If we are not prepared to do that, the sooner we make up our minds to leave public life the better.
We have not to read the books.
There is no compulsion on a Deputy or a Senator to act in this regard. They are perfectly free. Having been elected by the people, we are the most representative persons in the country, and I think that we shall have a due sense of responsibility—much more responsibility than would be forthcoming under Senator Kingsmill Moore's amendment, No. 40. If I were to accept that amendment, I could imagine an association being formed which would appeal in respect of virtually every banned book. I doubt very much that those referred to in amendment No. 48—the heads of churches—would be anxious to have those powers. I think they are quite satisfied with the representation provided in the two Houses of the Oireachtas.
I agree that this proposal entails an extra responsibility for Senators and Deputies, but I think I am right in saying—I do not know whether I mentioned it in the other House—that up to the present, and until this Bill is passed, every Deputy or Senator has a right to put down a motion calling on the Minister to revoke a prohibition. That right was availed of only once, but still the right was there and it is as some sort of compensation for the loss of that right that the present proposal is brought forward. I am not inclined to give way on it at all. Very few cases will arise in my opinion in which it will be necessary to avail of that provision. I think it is a remote possibility, but it might happen that some book might be banned which, in the opinion of some five Senators or five Deputies, should not have been banned, and if they did feel that way about it, they ought to have the right to ask the appeal board to review the prohibition. The editor or the author might be foreigners and might not be at all interested in the reading public here. After all, it is our business to look after the rights of the ordinary citizen. If five responsible elected representatives feel that a wrong has been done, I think they should be at liberty to have the matter reconsidered. That was the reason I put down that amendment. I think they are the only type of persons who should have that right of appeal outside the publisher, the author and the editor. So much for that proposal.
There is then the question of the phrase "at any time". As the Bill stands at present, any book or publication that has been banned at any time by the censorship board will become a banned book or publication under this Bill and, consequently, there will be the same right of appeal in respect of such books as in respect of books which will be banned in future. I think that is a reasonable proposition. I am not going to admit for one moment that even one book that has been banned by the censorship board ought not to have been banned, but if there is any great feeling abroad that a book has been unreasonably banned, I can see no reason in the world why the decision in regard to that book ought not be subject to review as well as decisions in regard to books which may be banned in future. If a wrong has been done—and I am not admitting that there has—means should be provided by way of an appeal to have the matter remedied. As far as the members of the board who banned the book are concerned, I do not think it makes very much difference that some of them may not be now on the Board, because the printed book is there. It is either obscene and indecent or it is not, and the appeal board will be the body to decide that. I cannot see any justification, therefore, for limiting appeals to books that will be banned in future.
Reverting to the question of "at any time", I think it will be agreed that it might be awkward to have too long a period between the banning of the book and the time within which an appeal could be taken. I am taking it that when this Bill passes each banned book, no matter when banned, will be deemed to have been banned at the date of the passing of the Bill. They will all become banned books under this Bill. I agree, however, that the right of appeal should not be extended for too long a period, say, for not more than six months, at the same time safeguarding the right to appeal in respect of all banned books.
Might I make a suggestion? Would not a better wording be "at any time within six months of the banning of the book or the passing of the Act, whichever is the later".
Yes. If I understood Senator Magennis aright, he wants to exclude all books that had been banned already, but I do not think that would be justifiable. I think we shall have to make it clear that this provision will apply to all books that have been banned at the time of the passing of the Bill and then fix a period, say, of six months or 12 months as the maximum within which an appeal can be taken. I imagine that anyone who takes an interest in this question will certainly move within six months.
And meanwhile the prohibition order stands?
Has the Minister considered the effect of setting up that situation?
It is there already; is the book not banned?
No, there is going to be an appeal.
Until the appeal is decided it is still banned.
What about the advertisement that gives the book?
I can see no way out of that. I do not think the public are so depraved that there will be such a great stampede for a book if people find that it is banned.
I hope we have not gone that far, that the fact that a book is banned means that it will be a great "boost" for it and that we are going to see a rush for that book. Anyway, until the appeal board decides the matter the book will still be banned. We do not know what the appeal board will do; they have got to make the decision. I would say that the words "at any time" should be deleted and that some reasonable period should be provided.
Has the Minister considered the possibility of a mass appeal, seeing that we have a Senator in the House who considers all censorship evil? If he can get four other members of the Seanad or the Dáil to join with him, what is to prevent him appealing against every prohibition Order since the censorship was established? Will we not then have a mass of appeals coming before the appeal board which will keep them going for the next three years? If that is a possible result of what we are doing now, I think the number on the appeal board should be increased to ten instead of five.
I am not quite sure whether I have covered all the points that have been raised——
Perhaps the Minister will reject them all now?
I have already indicated to the Senator that I am accepting one—that is in regard to "any time". That does not look as if I were going to reject them all. As I said at the beginning, I was not at all so happy, although I was willing to fall in with the suggestion that we might expedite the business and finish this debate, that this arrangement would be the best for myself because I might possibly miss some of the points raised. I had better resume my seat now and leave it to Senators to remind me of any points I may have missed.
When the amendments are put, the Minister will have an opportunity of dealing with any point which has not already been met.
If you are going to put any limited time to books which are already on the list—there is a tremendous lot of them—I think there should be some kind of circular sent around calling attention to the fact, because it might take some time for this legislation to trickle around.
Will it amount to an appeal for an appeal?
Subscriptions covering all the expenses.
I was really only calling attention to this point, that I am rather inclined to stress that there should be no absolute guillotine. People may not wake up for some time to the fact that this is being done. I regret to say that it was something like two years, or a year, anyway, before I realised that certain books had been banned. With regard to 90 per cent. of the books, it does not very much matter, but there should be some loophole whereby a type of book which is least likely to be appealed—that is to say, probably the greatest and most unusual one—should be open to appeal at any time. I ask the Minister very seriously to consider that, because you are providing no way of getting out of it. Once the time has elapsed and the Censorship Board has made its mistake, you may have a book of inestimable value shut out.
Twelve months should be adequate.
What Senator Kingsmill Moore suggests is not possible, because the Minister, as I pointed out in my Second Reading speech, has the power to grant a permit, and has exercised that power beneficially. To say, therefore, that the Irish race in Ireland is to be shut out from contact with this book or access to this book is pure nonsense, in view of the fact that both under the Principal Act and under the amending Act the Minister has power to grant exemption in special circumstances.
What just now I rose to deal with was the Minister's comment on my fears of a "boost". The Minister is very much more innocent of life in the City of Dublin than I have ever imagined. I knew he had many virtues, but I did not know that this aloofness from ugly facts of the city life was one of his many virtues. There is hardly a man you meet who will not tell you that the Censorship Act is a fiasco. Quite recently, a friend of mine was with his wife in a city shop when a man entered and whispered to the saleswoman. The young woman at once handed to him from beneath the counter a book which, from its "jacket", my friend recognised as a recently prohibited book. My friend asked her: Is that such-and-such, naming the book. She said "Yes," and then said hurriedly: "What is your interest in the matter?" Everywhere you hear these stories. Other friends tell me similar stories, and I have no reason to believe they are lying. Senator Sir John Keane told us openly here in the 1942 debate that you can get any banned book if you know how to go about it. That was his positive declaration, and a Senator knows of a society which exists to bring in banned books, and lend them to one another and to their friends.
Of course it is illegal, but it is done, and I am interested in trying to close that back door to the frustration of the Act. I heartily appreciate what Senator O'Donovan has said about this mass appeal. The Minister himself showed in his speech on amendment No. 40 that a society might be got up for the purpose of neutralising censorship by appealing. How more effectively could they do it than by bringing appeal after appeal against prohibition Orders, and going back year by year to 1930? There is a society called the Council of Action which on one occasion issued a very elaborate memoranda to members of the board, and it is quite possible for that society or some successor of it to set up as one of the objects of its activities the neutralising of all that has been done in the past by precipitating appeal after appeal until the appeal board will resign, and everyone else asked to act in their place will refuse. I ask the Minister to consider this seriously —I am speaking from facts of which I am well aware, and I am sure there are others who know them, too—he is putting his head under a suspended axe, and concerted action can make the axe fall. Censorship is doomed if a voluntary Censorship Appeal Board is subjected to appeal after appeal. That can be done, and Senator Kingsmill Moore showed us what the modus operandi might be, an appeal through the public Press to ask for subscriptions. All the people—and they are many—interested in preserving this safeguard of the Irish race against contamination and depravity will be made the subject of these attacks I begged of the Minister on one occasion to allow for the possibility of the Censorship Board going wrong in the other direction. We have heard so much testimony to-day as to the fallibility of the Censorship Board and its liability to make mistaken judgments, why not entertain the possibility of its failing to ban a book which it ought to have banned, and why should not the citizens who feel their moral sensibilities offended by that have an opportunity to appeal against the non-prohibition of the book? That is why I asked again and again: Why this assiduity, this constant concern with regard to the interests of a foreign publisher and not equal regard for the moral interest?
Is the suggestion being made that I am doing that?
I thought it was. I thought the Senator was deliberately putting my head under an axe. It looked very personal indeed. I am glad it is not to me, because I repudiate it.
I will answer. The Minister is supporting a piece of legislation which will have that effect. I am not attacking the Minister: I caution him. I do not know how he is getting this idea. I do not attack; I caution him.
Perhaps I do not understand English.
I have served the Minister loyally all this time on the Censorship Board. The Minister is too sensitive, or perhaps I am in fault by indulging in figurative speech, and, therefore, liable to be misunderstood.
Perhaps I do not understand plain English? That is what it amounts to.
As my speech is an annoyance to the Minister, there is no remedy for it but to sit down.
I do not think there would be any object in following the discussion of motives or possible effects. I believe that the members of the Oireachtas generally, with scarcely any exceptions, treat their duties seriously. That any five members are going to combine to make legislation ridiculous I do not believe for one second. That does not mean that I am in favour of this scheme, but I think that is a suggestion which ought not to be made here. I do not believe there is the slightest possibility of it, but, if in any odd case it does happen, the Minister will have his remedy. He will not have very much trouble in getting through both Houses of the Oireachtas in one day a Bill to prevent gross abuse by members of any privileges conferred or any duties placed upon them.
I do not believe that that is a serious danger or one that is worth consideration. I, personally, have tried to put forward suggestions which, I believed, were good suggestions from the point of view of improving the Bill, and I believe that the Minister has been trying to consider them in the same spirit. I am sorry that he is so wedded to this provision for five members, but he has the responsibility in that case, and I am not going to press this, although I am convinced that he is making a mistake. I believe that it would be far better and far more workable to have a smaller number of persons who, because of their responsibilities and duties outside, would be better qualified to deal with this matter.
I do not wish to stand over every detail of my suggestions, but I would ask the Minister carefully to consider that viewpoint. I still do not think that he appreciates the position of certain members of the House who may be asked to put their names to an appeal in regard to certain books. As far as my knowledge of books goes, in the case of 90 per cent. of them—99 per cent. of them, as far as I know— I would feel insulted if anybody asked me to put my name to an appeal; but I admit that there are books which I hare read, which are border-line cases, as has been mentioned, in which I would have difficulty in deciding. Senator Magennis might not agree, but it has been put to me by certain people that a certain number of books —a relatively small portion—have been banned, which ought not to have been banned. That, however, is not a matter for heat; it is a question of whether it was wise policy or good policy for the Censorship Board to include certain books. I think that if the Minister insists, as I think he is going to do, on placing that responsibility on five members of the Oireachtas, he will have to allow a period of at least 12 months or longer in the case of books already banned. He says that it would be extremely easy to say "No". I agree, but if people whom you respect, and greatly respect, put before you a certain number of books, and you are not going to take their word for it and irresponsibly put your name down, then you will have to read these books, and, from what I have heard, one would have to be prepared to read at least a dozen such books.
Of course, Senator O'Donovan has suggested that one might be asked to read a few thousand books, but I do not accept that. However, in the case of a small number of books, if the responsibility is placed on members of the Oireachtas to read that certain number of books, they should accept that responsibility. I agree with Senator Magennis that there should be some time limit, not alone with regard to books that have been banned in the past, but particularly with regard to books that may be published in the future. I would suggest to the Minister that there should be a period of 18 months for books that were censored prior to this Act, and that that should end the matter, but that so far as new books are concerned a period of 12 months would be quite sufficient.
I do not want to follow Senator Magennis either, but I must say that one thought that occurred to me, in the course of the Senator's speech, was that—I am very sorry to say—the result of such inquiries as there have been into banned books has not been the success that I thought it would have been. If, however, the result of the banning of books has been what Senator Magennis has said, then it is a very serious state of affairs. I should like to repeat, however, that I do not want to force any further responsibilities or duties on Deputies or Senators. If there is a general feeling amongst Deputies and Senators that this ought not to be done, I do not want to force them to accept these responsibilities or duties, but they had the right in the past to ask to have a prohibition order revoked, and I thought that this was a sort of alternative, to give Deputies or Senators the right to appeal if they thought it was in the public interest to do so. My whole object is to make this Censorship Bill effective and workable, and not to have organisations, if such exist, springing up and bringing in books and keeping them under the counter, so to speak, for sale or distribution. That kind of thing might happen in the whole country. We are supposed to be public representatives.
Well, perhaps, not the whole country, but if you have people whispering around that they have such-and-such a book and that it can be got, it is quite possible that there might be deplorable results. I hope that I am not as innocent as I appear to be. I do know that there is a section—a small section—of our people who do look for that kind of literature, but I think that the vast majority of the people of Ireland, and, indeed, of most other countries, are not of that type. I may be wrong there, but if I am wrong, I admit that I am out of touch. However, I undertake to consider this matter between now and the Report Stage.
Well, I shall withdraw my amendment, and we can consider it on the Report Stage, but I do agree with all Senator Kingsmill Moore has said, although I would not necessarily agree to certain other points.
I am putting these amendments individually. Is amendment No. 39 agreed to?
Amendment No.39 put and agreed to.
The next amendment is No. 40.
I understand from Senator Kingsmill Moore that he is withdrawing that amendment.
Amendment, by leave, withdrawn.
With regard to amendment No. 41, I have not withdrawn it yet, but I shall be quite satisfied to hear what the Minister has to say about it on the Report Stage.
That amounts to withdrawing the amendment.
I do not wish to press it. I want to say this: that the Minister seems to be disappointed that the Act has been a comparative failure.
I want to know what the Senator's position is on this amendment. Is he withdrawing it or not?
Yes: Is the Senator withdrawing it?
Amendment No. 41, by leave, withdrawn.
With regard to amendment No. 42, proposed by Senator Magennis, I said that I would consider a reasonable time, and if the Senator is not satisfied with that, we can consider it on the Report Stage.
Amendment No. 42, by leave, withdrawn.
With regard to amendment No. 43, what does the Minister propose to do on that? The purpose there was to confine the matter of appeal.
No, I shall not agree with that. It would mean that the appeal should only apply to books in the future, and I would not agree to that.
Amendment No. 43, by leave, withdrawn.
I think the Minister will accept amendment No. 44, as it is merely drawing attention to certain provisions that would be necessary.
If the Senator will look at Section 20, I think he will see that the Minister has certain powers under that section to deal with that. I think the Senator will agree, if he looks at Section 20, that the Minister has power to make regulations under that section and that this is unnecessary.
I merely draw attention to the necessity for such a regulation.
That is another point. If the Minister thinks it necessary to make regulations, he may make them. Heretofore, the board arranged its own procedure. If that was thought desirable by either board, I would not be prepared to impose regulations on them but, if they wish me to consider the matter, I have power under Section 20.
Amendment No. 44, by leave, withdrawn.
The Minister, I think, agreed to consider this matter and, therefore, I withdraw it.
Amendment No. 45, by leave, withdrawn.
I think it is useless to press it.
Amendment No. 46, by leave, withdrawn.
I understand the Minister is willing to accept it.
That is about including the editor.
Amendment No. 47 agreed to.
Amendments Nos. 48 and 49, by leave, withdrawn.
Section, as amended, put and agreed to.
All the amendments from No. 50 to No. 60 can be considered together.
The amendments were:—
50. In sub-section (1), line 40, to delete the word "issues" and insert instead the word "issue"; and to delete the word "recently"—(Senator Campbell).
51. In sub-section (1), line 41, to delete the words "theretofore published"—(Senator Campbell).
52. In sub-section (1), line 41, page 5, to delete the word "theretofore"—(Senator Magennis).
53. In sub-section (1), line 43, to delete the word "issues" and insert instead the word "issue"—(Senator Campbell).
54. In sub-section (1), line 44, to delete the word "have" and insert instead the word "has"; and to delete the words "usually or frequently"; and after the word "obscene" in that line to insert the words "or subversive of public morals"—(Senator Campbell).
55. In sub-section (1), line 45, to delete the word "have" and insert instead the word "has"—(Senator Campbell).
56. In sub-section (1), line 45, page 5, after the word "advocated" to insert the words "directly or otherwise recommended, as by advertisement"—(Senator Magennis).
57. In sub-section (1), line 48, page 5, after the word "procurement" to insert the words "or contain advertising matter intended to promote the sale or employment of instruments and appliances in aid of those practices"—Senator Magennis.
58. In sub-section (1), line 49, to delete the word "have" and insert instead the word "has"—(Senator Campbell).
59. In sub-section (1), line 52, to delete the word "issues" and insert instead the word "issue" and to delete the words "and future issues"—(Senator Campbell).
60. In sub-section (1), line 53, after the word "shall" to insert the words "notify the publisher thereof in writing of such opinion and inform him that on receipt of any such complaint in respect of any subsequent issue of said periodical, made in the prescribed manner, on which the board shall be of like opinion, they shall"—(Senator Campbell).
My amendments propose to alter the obligation imposed on the complainant to collect several issues of the paper before it can go before the board for consideration as to whether they shall prohibit the sale and distribution thereof. I think the proposal I make is a much more satisfactory one. It suggests that one issue of the paper should be sufficient for the board to consider whether they should prohibit the sale and distribution of it. It is also, I think, much more satisfactory in the sense that it gives the publisher of that paper a chance to mend his ways if he so desires, because it proposes to insert that, having considered the single issue of a periodical or publication, the publisher should be notified in writing of the opinion of the Censorship Board that the sale and distribution of the publication should be prohibited and that "on receipt of any such complaint in respect of any subsequent issues of said periodical, made in the prescribed manner, on which the board shall be of like opinion" the Censorship Board shall, by order, prohibit the sale and distribution of the publication. I think it is too much of an obligation to impose on the ordinary citizen that he must collect several issues of the paper before bringing it before the Censorship Board, and I think what is proposed in my amendments is a much more satisfactory method of dealing with the matter. I think it would be considered fairer to the publisher to notify him that in future, if he shall offend in that respect, subsequent issues of the paper will be banned. I also propose in line 44, after the word "obscene", to insert the words "or subversive of public morals". I think that is much more important in the case of these publications than in the case of books. After all, we have been told that 90 per cent. of the population read only newspapers and periodicals, and I think it is more necessary to insert these words here in Section 9 even than in Section 7.
I do not think the Senator's amendments are necessary. I think it is a fact that this part of the Censorship Act has worked very well. I remember before this Act was passed that when going along the streets you saw these objectionable things, generally in Sunday papers. So far as I know they have ceased. I understand that there are Irish editions of these papers now in order to keep that sort of thing out of these papers. I think the amendments are really academic and unnecessary. I think it will be admitted by everybody that the big object in view has been achieved. There are no complaints now, except that it is said there is this organisation for bringing in banned books. The newspapers have to come in in bulk every week. I am told that there are special editions of them for this country. Of all the parts of the Act, I think this is one the Censorship Board can be congratulated upon having made a big success of.
I have pretty much the same amendment down. My amendment reads:
In sub-section (1), line 41, page 5, to delete the word "theretofore".
I hope I shall not give further offence to the Minister if I mention that, successful as has been the effort to stem the tide of this filth that used to be brought in on Sundays and on other days, there were means devised to frustrate the Act. The Minister may not be aware of this, and he may. If I draw his attention to it and he has already been aware of it, he will pardon me for excessive zeal. Publishers send here huge editions of most objectionable periodicals. Following a course suggested to them, they hit upon the device of having the indecent stuff, say, in No. 2. For a fortnight they became virtuous; they glorified God in special devotional issues, and then again they came out with the indecent. Now, what is prescribed in the 1929 Act is that there had to be a number of issues offending, and so, by breaking the continuity of the offence, they escaped from the Act. That was one of the drawbacks. It is to secure that it is not necessary to have unbroken continuity of offending issues before the board that I introduce my amendment. I am speaking from experience.
Amendments Nos. 50 to 55 inclusive, by leave, withdrawn.
On amendment No. 56, the argument that I used on a previous amendment applies to this. The Bill has been arranged to deal with books first and then with periodicals, but all I have said in connection with advertising as a mode of advocating applies even more to the periodical.
Amendment No. 56, by leave, withdrawn.
Amendments Nos. 57 to 60, by leave, withdrawn.
Question proposed: "That Section 9 stand part of the Bill."
The provisions in this section have been most successful in the past and I think it appropriate at this moment to say that the section, and particularly the part contained in paragraph (c), was suggested in the Dáil in 1929 by Professor Tierney, who was then a member of the Dáil and who was for some time Leas-Chathaoirleach here. He put forward certain amendments to the original Bill about which he was very viciously maligned. It should be stated to his credit that this particular section, which has been very effective in preventing something we all want to prevent, is largely the handiwork of Professor Tierney.
Question put and agreed to.
On behalf of Senator Kingsmill Moore, I move amendment No. 61:—
In sub-section (1), page 6, line 20, after the word "publisher" to insert the words "or any club, society, association or other body having among its objects the study and promotion of literature or art".
Senator Kingsmill Moore is not here and, though it seems to me that this is consequential on a previous amendment and should not be moved, he has asked me to move it, so that he can put it down again on the Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 62:—
To delete paragraph (c), lines 37 to 40, and substitute therefor the following paragraph:—
(c) a prohibition order shall not be made unless at a meeting at which a quorum is present, and the majority of those present and voting vote in favour of it. In the event, however, of a tie, the chairman, or acting chairman, may exercise a casting vote.
I have already expressed my mind on the question of majority votes and will not weary and detain the House in repeating the arguments. It will be remembered that the quorum is four and two might vote on one side and two on the other. I think this amendment maintains in the working of the board the whole idea of democracy— that where matters are decided by vote the majority vote shall prevail.
This does not seem to be a case where that could be wisely introduced. In censoring a book, I do not think one person should have two votes. It is a case where the member exercises his individual judgment, and this would mean the exercise of two judgments. I oppose it.
What, in Senator Douglas's view, would be the consequence of an even vote, where the meeting of the board is quite legal? No prohibition order is issued?
I think it is covered under paragraph (c).
It may be that I am completely misreading it. This states that a prohibition order shall not be made unless at such meeting three at least of the members vote in favour of the making of the order and not more than one member votes against it; so that, if a second member votes against it, these two votes prevail.
As they did in the past. That is the existing law.
Yes, that is in the Principle Act, but I understood we were amending the Act.
Yes, in this respect, that if only four turned up and two voted against, the remaining person who was not present would get an opportunity to assent or dissent. He would be communicated with. If four are present and one votes against, the majority—the three—will prevail. I would not agree to give anyone a second vote.
I do not like the idea myself.
If such a case arose, the board could refrain from taking a decision on that particular book and could arrange for a full meeting. It is better as it is at present, as there is more facility for banning than there was in the past.
Would the Minister consider having inserted on Report what he has just suggested— that, in the event of a tie, the decision be postponed to a full meeting?
I think so. The important thing in the examination of the book is the discussion.
I know. I will examine it and, if necessary, I will put it in. I do not imagine it is necessary.
Surely it is a matter affecting procedure, as to whether a matter being considered by a committee can be adjourned, there being no decision, and considered afterwards? The Minister can make regulations. It does not seem to be a matter which can be dealt with here.
I will consider the point.
Amendment, by leave, withdrawn.
Section 11 agreed to.
I move amendment No. 63:—
In paragraph (a), page 6, line 46, after the word "appeals" to add the following words "and any appellant or appellants or his or their representative may appear before the appeal board and adduce reasons why a prohibition order should be revoked."
I mentioned earlier that all my amendments were really devoted to the one main object of ensuring that the trial—I still use the word—should be a fair one and that opportunity should be given to put forward the case. I think a good deal could be said here for the view that, where you are interfering with a person's right to speak and to think, and where you are interfering with economic conditions, if there is any doubt, or even one dissentient person, the interest of freedom should prevail. Surely it is necessary that we should not condemn a person unheard? Therefore, my suggestion is that, at the final hearing, notice should be given to the person or persons who are affected and they should have an opportunity of being heard.
Now, let us face this position. Unless this amendment is accepted in principle—with such alteration of wording as might seem fit—we are, in fact, laying down that a person may be condemned without an opportunity of pleading his own case. As the Minister is aware, even outside the law courts, when one is dealing with the opinion of a domestic tribunal, such as a club or society of accountants or something like that, it is an absolute, cardinal rule that no decision can stand unless the person against whom it is given has had an opportunity, not merely of knowing the charge but of answering it. The only reason that I can see for refusing an amendment such as this, would be a fear that the person who knows most about it might succeed in convincing people that he was right. If it is refused it must be from a desire to prevent the case being put forward, a desire that the board should decide to a certain degree in blinkers, and a refusal to accept the position that if you are interfering with either liberty or ordinary rights of property the onus is upon the people who seek to do it and that not only is the onus upon them, but that there is an obligation, if you want to give even a semblance of fairness to the thing, that the other side should be heard.
In this case it is a book and not a person that is being considered. The book is there and it speaks for itself. The board will read it and they do not require any advocacy in so doing. The existing position is that if the board want to hear anybody, there is nothing to prevent them from doing so. I do not think there is any case for comparing an investigation as to whether a book is obscene or indecent with the trial of an individual for some offence which he may or may not have committed. A book is submitted, and you want the opinions of five persons as to whether it is indecent or not, and they ought to be able to come to a decision without any particular advocacy. I do not think the Senator has made a convincing case.
The Minister is surely overlooking one point. If I write a book, and if people condemn it as indecent and obscene, it is not the book which is condemned; it is my reputation which is condemned, and it is not only my reputation, but my immediate financial prospects and my future financial prospects which are affected. You are putting a slur on the author, and you are doing so without giving him a chance to defend himself. Surely he should be entitled to attend and point out the general effect of the book?
Take a book which Senator Magennis will know of. His views and mine may not coincide, but I regard it as one of the greatest of modern tracts. He regards it as indecent and obscene. It is a book in respect of which the author should certainly be allowed to put forward his views. I regard the book as the greatest work written against a civilisation of a purely materialistic kind. The book is "Brave New World." I regard it as a most profound piece of thinking. It is in the form of an ironical analogy and I have been greatly affected in my own thinking by reading it. Rightly considered, it is a devastating argument against a purely materialistic conception of life, the over-governing ordinances of human life, and its purely mechanical regulations.
I can see the other point of view. In order to bring that out the author has pushed to its logical conclusion what the effect of certain theories would be. I think it was a terrific mistake to ban the book, which I regard as more or less a modern tract. Surely the author ought to be able to attend and point out the effects which it would be likely to have and point out the motives behind it? If not, you label the person who has written a most valuable book as being a person who has written a thing that is indecent and obscene. It is very hard to justify that kind of thing.
I feel it is wrong and I think a great many of the mistakes which have been made by the Censorship Board have been made because there was nobody there to point out to them the opposite point of view. I confess that if I were asked to put my name to an appeal in respect of a number of books, not only would I like to have an opportunity of reading them first—which seems an onerous task enough—but I should like in many cases to have an opportunity of appearing and pointing out the reasons why I have thought it right to appeal. Therefore, I think this opportunity should be afforded. It probably will not very often be availed of, but it certainly should be afforded.
There is a lot to be said for the arguments of Senator Kingsmill Moore in respect of this amendment. It is one of the elementary principles of natural justice that no man should be condemned unheard. On the Second Reading of the Bill I objected to the principle of allowing members of the Oireachtas to become appellants to this tribunal. I asked the question on the Second Reading: What were they do after they had appealed to the appeal board against a prohibition Order—were they to allow it to rest there? I instanced the case of a representative who received a letter from a constituent asking him to do a favour. The representative replies immediately, promising to do everything and finally he does nothing.
I think an appeal is a farce unless the reasons for the appeal are put before the appellant tribunal and, therefore, I suggest it is merely a logical consequence of the right of appeal that the persons who appeal should have an opportunity of putting before the appeal board their reasons why a prohibition Order should be revoked. I think it cannot do anybody any harm. The mere fact that a book is there means that the appeal board has to do the work over again which the censorship board did.
The functions of the appeal board are simply to deal with disputed points. On an appeal from a lower to a higher court the appellant court deals only with the matters which are the subject of dispute; it does not deal with routine matters. I think unless on an appeal the points in dispute are narrowed down, the appellant board will be merely a replica of the Censorship Board and will not in the true sense be an appeal board. Therefore, I suggest that the Minister ought to accept the amendment or, if he does not accept it, he ought to consider favourably the principle involved in it.
Is it intended to continue beyond 9 o'clock? I think there is a reasonable chance of finishing the Committee Stage of this Bill if we continue. May I take it that we will not stop at 9 o'clock?
If there is agreement on that matter the House can sit beyond 9 o'clock. When the Committee Stage is concluded, there is then the question by Senator Douglas to be taken.
Senator Douglas may be agreeable to waive that matter if the House decides to sit after 9 o'clock in order to complete the Committee Stage.
I am rather in favour of the amendment but rather suspicious of it in view of its sponsors. I have a feeling that the Censorship Board would be overawed by an array of counsel on behalf of the people making the appeal. If we give the right to appeal to these people, they ought to be able to make their own case.
The author might be in America.
You could hardly interpret the mind of a man in England or America.
The Senator may think he could, but I have grave doubts about it. It is Senator Kingsmill Moore's rather than the author's views which would be put before the board. I think that the man who is going to be condemned—the principle in this regard is solid—should have the right to defend himself, if he wishes to avail of it.
I must say that, having listened to Senator Kingsmill Moore, Senator Ryan and the Minister, I am inclined to agree with the Minister. There is not a real analogy between censoring a book and sentencing Patrick Murphy to a term of imprisonment, or even inflicting a fine on him. They are two different things. Censorship is one of those things which, by its nature, is difficult to work, and the scheme in this Bill may not be a good scheme, but we must have some kind of scheme. The position previously was a censorship board of five people with no appeal and, by the way, with no right to appear before the board, so far as I remember. What has been substituted in this Bill is what may very well prove too cumbersome to be workable. The Minister, I think, is in agreement with that.
I should not be in the least surprised if that were so.
To some extent, it is a leap in the dark. We ask five people, who are difficult to get, to say whether they think a particular book, as they find it, should be let loose on the Irish public, as they know them. In this Bill we are amending the principle Act by providing an appeal board of five people. I think three people would probably have been better because they would have been more inclined to act in a judicial capacity. These five people have a particular duty to perform which will be difficult, and they are bound to make mistakes and bound to dissatisfy somebody, including perhaps myself on occasions. What they are asked to do is to consider a printed book and say whether that book, as they find it, is fit to be in circulation here under the terms of this measure.
I do not think that the author's view when writing the book, or the defence which a very skilful and learned lawyer, such as either of our two friends here, would make should influence the board, because it is not what the author thinks, it is not his view, which is of any importance. What is of importance for the board—I am not arguing for or against censorship—is whether what they find should get into the hands of the ordinary public. If it does get into the hands of the ordinary public, it gets into the hands of the ordinary public without the explanation given by the author and without the very skilful defence which Senator Ryan, Senator Kingsmill Moore or any other counsel could make for it.
The problem the board have to consider is whether a book, as they find it, should be censored or not, and for that reason it appears to me there is not an analogy between the ordinary court of appeal—where of course the litigant has the right to appeal, not only in person, but as represented by counsel— and this appeal, so that, on the whole, the notion that there should be a right to appear in person and make explanations would only tend to make the whole business more cumbersome, and would favour a certain type of person as against another I do not think there is an analogy. I agree at once, if anybody wants me to do so, that it is a serious financial business for an author whose book is censored, but that is inherent in the whole idea of censorship. It cannot be helped, I am afraid, and I do not think that, on the whole, you will do any more justice by dragging the thing out, and by having appearances by counsel, representatives, and so on.
What these people have to do is their best, as five individuals. They need not be five lawyers, although it is prescribed that some of them must be. The Minister will find it very difficult to get these people, but when he has got them, a voluntary board, they certainly will not be prepared to have a long-drawn-out hearing before they decide whether a particular book which has been banned should remain banned or whether the ban should be removed. The analogy with ordinary court procedure is not a sound one, and I am therefore inclined to think that the amendment is unsound.
I suppose the Minister has not weakened?
Not a bit, although I am getting a little tired.
Amendment, by leave, withdrawn.
Amendment No. 64 not moved.
I move amendment No. 65:—
In paragraph (c), page 6, line 50, to delete the word "may" and substitute instead the word "shall".
I hope I will get this amendment through. Anybody who proposes to appeal has to put down five good-looking pounds. It is perfectly reasonable that, if the appeal board, having considered the appeal, thinks it absurd, the appellant should lose that amount: but if the board think that the appeal is either a good one, or that, although it is one which they are not quite satisfied should go through, was, at the same time, a perfectly reasonable and proper appeal to take, the £5 should be given back, because, substantially, the opinion of the appeal board is that, although they may not in all respects agree with him, he has done a public service by bringing an appeal which was substantial and which might very well have succeeded. And so I ask that the appeal board, if satisfied that the appeal was not frivolous, shall direct that the deposit be refunded.
I think the Senator ought to trust the common sense and generosity of the board. He should agree to give them power to do it, if they wish—to leave it optional.
Surely if the board is satisfied that it is not a frivolous appeal——
If they are, they will probably hand it back. They have the power to do so.
For the moment, the Minister has taken the place of the Minister for Finance. He does not want to be collecting the £5, if the board is satisfied that it is not a frivolous appeal. Surely he sees what may happen. If a lot of sensible appeals are taken, but the board does not wish to go quite so far as to return the money, for any reasons of policy, it may have the effect of preventing the taking of proper appeals which would be granted, because people may be poor people and they would run the risk of losing their £5. Surely the distinction which should be made is not as between an appeal which succeeds and an appeal which fails, but between an appeal which, on the face of it, is untenable and an appeal which, on the face of it, is very reasonable.
There are some authors who are poor, and I suggest it should be made mandatory on the board, unless they are willing to certify that an appeal is frivolous, to refund the deposit. The Minister is particularly familiar with the origin of this phrase. You can refuse a case stated if the application for it is frivolous, but not otherwise. It would only be logical, if you want to make this appeal system work, if you want to make it a genuine appeal, if you want to avoid people being shut off from an appeal by reason of the fact that they have not got much of the world's goods, if you do not want to give undue power to the appeal board to shut people out because they feel they are busy and do not want any more appeals for the time being, that you should make it mandatory.
I hope the House will support Senator Kingsmill Moore in this amendment, not because I share all his arguments, but because it is not clear that "may" means that it is obligatory. Then you are providing three types for decision, one type in which the board considers the appeal frivolous, the second type that it considers not to be frivolous and gives back the money, and the third type that it considers not frivolous, but will not give back the money. The board should be fair to everybody. To give an option with regard to appeals, if they are not frivolous, is a mistake, as it suggests a differentiation between types of persons which, I think, is not intended or desirable.
I remember that on the Johnstown Castle Bill the Minister for Agriculture told us that in the opinion of the draftsman the word "may" and the word "shall" meant exactly the same thing.
If the board does not think the appeal frivolous, they are bound to give back the £5.
That is all we are asking.
With a voluntary board we want to leave as much discretion as possible. It will be within the province of the board to say whether they consider an appeal frivolous or not. It is a matter for the board.
Can the board say that it is not frivolous?
But they can say that they will not give back the £5.
There is nothing between the Minister and Senator Kingsmill Moore. If I were a member of the appeal board I would read the section. A member of the board is bound to read the section and, if he does, and if he considers the appeal is not frivolous, surely the board will give back the money.
If they will, why should it not be in the Act?
Is not the amendment frivolous?
The only thing frivolous about the amendment is the Minister's opinion of it. I do not understand how the board would ever come to the conclusion that an appeal was not frivolous and then make an order that the fees be forfeited. I think Senator Kingsmill Moore is going to get what he wants. Although I have listened to it for over 20 years, I do not understand this affection for the word "may"—the affection for it that the Parliamentary draftsman has battled for for generations.
Although I agree that an appellant who has not put forward a frivolous appeal should be refunded his money, I am rather a devotee of the word "may" in legislation where Ministers and public departments are concerned. It has been the practice in almost every appeal, in which a Minister is given power, to use the word "may", of course always on the assumption that the Minister will use his power properly and in accordance with justice. I think in this case the Parliamentary draftsman has placed the appeal board in the same position as the Minister.
While I think the person should recover the fee of £5, I am not disposed to press the Minister to use the word "shall", and I suggest that the amendment should not be pressed by Senator Kingsmill Moore. I think the appeal board will, in the event of the appeal not being frivolous, refund the £5. The appeal board will be presided over by a lawyer who will understand the import of the word "may" in the section, and I am confident that he will rule that the sum of £5 should be refunded in the event of the board considering that the appeal was not frivolous. Therefore, I ask the Senator not to press the amendment.
I am not inclined to withdraw. The Minister said that when appointing a voluntary board he did not like compulsion. If the word "shall" is put in, it will avoid discussion and make the position a lot easier.
I should like to point out, particularly in regard to what Senator Ryan said, that paragraph (c) goes on to say: "and, if they do not so direct, the deposit shall be forfeited". I am still inclined to think that "may" may mean "shall", but I am not convinced that this is a case where it is certain that it would be so held.
I will withdraw the amendment and put it down for the Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 66 and 67 not moved.
What about amendments Nos. 68 and 69 in view of the change in the membership of the board?
Amendment No. 68 is now not pertinent, and I wish to withdraw it. The same applies to amendment No. 69.
Amendments Nos. 68 and 69 not moved.
Question—"That Section 12 stand part of the Bill"—put and agreed to.
Amendment No. 70 is out of order, for the reasons previously given.
I move amendment No. 71:—
In page 7, line 2, after the word "order" to insert the words "together with the name of any person or persons who shall have made a complaint in respect of the prohibited book or periodical."
I put down this amendment for the sake of calling the attention of the House to what is really an abuse, but I did not have any sanguine expectation that everyone would be with me. I have got a certain objection to felon setting, and I have a certain objection to officious and meddlesome people nosing about to see if they can find anything wrong. I am rather of the opinion that a great many of these books are bought by people who are what used to be known when I was young, as "Nosey Parkers", and if there are people engaged upon that very edifying pursuit, it is just as well, when giving the name of the author, to know the name of the person who is raking around to see if he could find something to complain of. I did not think the House would be unanimous about the matter and, if the Minister does not agree, I will not press it.
Amendment, by leave, withdrawn.
Question:—"That Section 13 stand part of the Bill"—put and agreed to.
Section 14 agreed to.
Amendment No. 72 not moved.
Section 15 agreed to.
Question proposed: "That Section 16 stand part of the Bill."
On the section, I see that it provides that the Censorship Board shall cause to be prepared and kept a register, in the prescribed form, to be called the Register of Prohibited Publications. I would like to know if this register is available to any member of the public to buy. It was referred to here as a best seller. Other references were made to it to-day. I cannot see what purpose is served by having this register available for sale to the public. I would like to know if that is the position, that it is available for people to buy it.
It can be bought in the Government Publications Office.
The present register is out of date. I asked if there was a recent one available, and I was told that there was not.
I suggest that it should not be available for sale. It should be sufficient to have publication, in regard to banned books, in the Iris Oifigiúl. If, however, you prepare a list of banned books for certain perverted people to buy—some Senators have referred to that list as every man's guide to the modern classics— I do not think it is right. As I say, I cannot see any purpose in preparing this register for sale to the public. I agree, of course, that if customs officials or other officers concerned require it for the purpose of carrying out their duties, it should be available to them, but I cannot see why it should be available for sale amongst news-agents. To do that is to publicise the fact that here is a list of books that are banned. That will present the opportunity to people who are interested in nullifying the provisions of this measure of getting the information they want. I suggest to the Minister that this register should not be available for sale to the public.
If that were done, how would the libraries and booksellers keep a check on the books that were banned?
The effect of Senator O'Donovan's proposal would be to increase the circulation of banned books, because it would be quite impossible for booksellers to memorise the names of such books and carry them in their minds. The list is required by them to enable them to check up on the books that have been banned. If this provision were not in the Bill, the result would be that banned books would be on sale and it would be impossible to watch them. I have spoken to certain booksellers about this, and they tell me that their difficulty is due to the fact that such long periods elapse between one issue of the register and the next.
It was only this morning that I was looking for the latest edition of the register. I bought one over a year ago, and there has been no edition since then. In fact, the present register is nearly two years out of date. I have been told by a number of people that one of the latest efforts of the Censorship Board has been to ban The Three Musketeers. During the past three days I have made attempts to find out if that is so, but I have not succeeded in doing so.
Well, three people have told me that, although personally I think it is unlikely. The fact, however, is that the present register is so much out of date that I have no opportunity of finding out. Senator O'Donovan has made no study of this matter. I have made an extensive study of it, and I have been very patient in listening to him. Obviously he does not know what books are banned. The Senator has been shouting on this subject, but he has made no attempt to study it.
Question put and agreed to.
Section 17 agreed to.
I move amendment No. 73:—
In sub-section (2), at the end of the sub-section, to add the words "or that the book or periodical was not prohibited at the time he ordered it."
The object of the amendment is to ensure that it shall not be a punishable offence if you can prove that a book was sent to you before the date it was actually censored. The amendment fits in with the rest of the section.
I am prepared to accept the amendment in principle.
Amendment agreed to.
I move amendment No. 74:—
To add to the section a new sub-section (3) as follows:—
(3) Nothing in this section shall prevent a person who is a member of Dáil Eireann or Seanad Eireann from importing any prohibited book.
I think that amendments Nos. 74 and 76 go together. Both depend entirely on whether the Minister is going to insist on the five members of the Oireachtas. Personally, I prefer amendment No. 76. My principal reason for putting down the amendments is that there will have to be some sort of facilities for members of the Oireachtas who are charged with the duty of reading books. It may be that the Minister has a stock of them or that there is a library in the Department where we could borrow them. I have a suspicion that there may be, somewhere in connection with the board, a collection of books, but if that is not so, then quite definitely some proviso should be inserted in the Bill which will not make it improper for a member of the Oireachtas to get a book and see whether he should appeal on it. Perhaps the matter could be considered on the Report Stage. Some amendment is necessary if the intention is to maintain the five members. Otherwise there would be no case for it.
I can borrow mine from Senator Kingsmill Moore.
Perhaps in the meantime Senator Kingsmill Moore will give us a short course on the matter.
Provided the Senator promises to be an apt pupil.
Amendment, by leave, withdrawn.
Section 18, as amended, agreed to.
In view of the levity that has developed in the House on this important subject, I am not moving amendment No. 75.
Amendment No. 75 not moved.
Amendment No. 76 not moved.
Section 19 agreed to.
I move amendment No. 77:—
In sub-section (1), line 27, to insert after the word "may" the words "in consultation with the Censorship Board".
I think the amendment speaks for itself: that the regulations that are to direct and control a voluntary board should be framed after consultation with members of the board, especially if some of them have had no previous experience of the working of the Principal Act.
I do not see any objection to that.
I think the amendment is reasonable, but should not it be "after consultation with the Censorship Board"?
I accept the principle and we can have the correction made.
Should the appeal board be the people to be consulted for any regulation in regard to the appeal board?
That would be it, of course.
The Minister will put his own wording in the Bill?
Yes, we will put it in our own words.
You do not accept any amendment now?
No, but I will bring in an amendment to cover the point.
I thought the amendment was accepted.
The principle, but not the exact wording. I will bring in an amendment to cover it.
Amendment, by leave, withdrawn.
Sections 20 to 24, inclusive, agreed to.
Schedule and Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 12th December.