Censorship of Publications Bill, 1945—Committee (Resumed).

SECTION 3.

Professor Magennis

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).

Minister for Justice (Mr. Boland)

That is merely a question of drafting.

Mr. Douglas

I agree with Senator Magennis.

Mr. Boland

I shall look into the matter. The wording in the Bill is that of the Parliamentary draftsman.

Professor Magennis

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.

Professor Magennis

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.

Mr. Douglas

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Amendment, by leave, withdrawn.

Professor Magennis

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.

Mr. Boland

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.

An Cathaoirleach

Amendments Nos. 20 and 21 fall consequentially on a previous amendment.

Section 3, as amended, agreed to.

In view of that assurance, I withdraw the amendment.

Amendment, by leave, withdrawn.

An Cathaoirleach

As I have previously said, amendments Nos. 23 and 24 are not in order.

Section 4 put and agreed to.

SECTION 5.

Mr. Douglas

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.

Mr. Summerfield

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.

Liam O Buachalla

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.

Mr. Hayes

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.

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——

Mr. Boland

I know that.

Mr. Douglas

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.

Liam O Buachalla

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.

Mr. Seán O'Donovan

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.

Professor Magennis

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——

Mr. Boland

I would like to ask if the money allowed actually was spent. I understand it was not spent and so the amount was reduced.

Professor Magennis

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”?

Mr. Baxter

The Senator has very good hearing.

Professor Magennis

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.

Professor Magennis

Quite, examine the book.

Mr. Kingsmill Moore

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.

Mr. Boland

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.

Sir John Keane

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.

An Cathaoirleach

Amendment No. 28 has been partially discussed in discussing amendment No. 25.

Mr. Kingsmill Moore

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.

Professor Magennis

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.

Mr. Hayes

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.

Professor Magennis

Yes.

Mr. Hayes

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.

An Cathaoirleach

If it is a bad practice should it not be stopped at the outset?

Professor Magennis

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."

Mr. Boland

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.

Professor Magennis

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.

Mr. Kingsmill Moore

Good heavens.

Professor Magennis

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."

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".

Mr. Douglas

I move amendment No. 34:—

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.

SECTION 7.

An Leas-Chathaoirleach

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.

Mr. Campbell

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.

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——

I understand that the amendment is not withdrawn?

An Leas-Chathaoirleach

No.

Sir John Keane

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.

An Leas-Chathaoirleach

I am sorry, Senator. I had called Senator Douglas.

Professor Magennis

Very good.

Mr. 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.

An Leas-Chathaoirleach

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.

Professor Magennis

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.

Professor 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.

Mr. Douglas

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.

Mr. Boland

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.

Professor Magennis

It is in the interest of the Irish author.

Mr. Boland

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.

Sir John Keane

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.

Mr. S. O'Donovan

I notice that Senator Keane and Senator Magennis have changed sides.

Mr. Baxter

That may help us to get on.

Amendment, by leave, withdrawn.

Professor Magennis

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.

Mr. Boland

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.

Professor Magennis

I am quite satisfied.

Amendment, by leave, withdrawn.

Question proposed: "That Section 7, as amended, stand part of the Bill."

Professor Johnston

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.

All right, Sir.

Section 7, as amended, put and agreed to.

Sitting suspended at 5.55 p.m. and resumed at 7 p.m.

SECTION 8.

Mr. Douglas

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.

An Cathaoirleach

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?

Mr. Sweetman

Separate decisions will be taken, if necessary, on each amendment?

An Cathaoirleach

Yes.

Agreed.

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.

(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.

Mr. 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.

Mr. Boland

In view of the fact that a publisher has that right, I agree to the amendment.

Mr. Douglas

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.

An Cathaoirleach

Shall we take the next group of amendments now, from 41 to 46?

Agreed.

Professor Magennis

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:—

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".

Mr. Campbell

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?

Mr. Douglas

"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.

Professor Magennis

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.

An Cathaoirleach

Senator Kingsmill Moore, on amendment No. 40.

Mr. Kingsmill Moore

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——

An Leas-Chathaoirleach

It is not advisable to comment on past proceedings of the House.

Mr. Kingsmill Moore

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.

Mr. Boland

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.

Mr. Douglas

We have not to read the books.

Mr. Boland

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 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.

That was accepted.

Amendment No.39 put and agreed to.

An Leas-Chathaoirleach

The next amendment is No. 40.

Mr. Boland

I am not accepting that.

Mr. Douglas

I understand from Senator Kingsmill Moore that he is withdrawing that amendment.

Mr. Boland

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.

Professor Magennis

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.

Mr. Boland

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.

Professor Magennis

I think the Minister will accept amendment No. 44, as it is merely drawing attention to certain provisions that would be necessary.

Mr. Boland

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.

Professor Magennis

I merely draw attention to the necessity for such a regulation.

Mr. Boland

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.

An Leas-Chathaoirleach

Amendment No. 45.

Professor Magennis

The Minister, I think, agreed to consider this matter and, therefore, I withdraw it.

Amendment No. 45, by leave, withdrawn.

An Leas-Chathaoirleach

Amendment No. 46.

Professor Magennis

I think it is useless to press it.

Amendment No. 46, by leave, withdrawn.

An Leas-Chathaoirleach

Amendment No. 47.

Mr. Douglas

I understand the Minister is willing to accept it.

Mr. Boland

That is about including the editor.

Mr. Douglas

That is accepted?

Mr. Boland

Yes, that is accepted.

Amendment No. 47 agreed to.

Amendments Nos. 48 and 49, by leave, withdrawn.

Section, as amended, put and agreed to.

SECTION 9.

An Leas-Chathaoirleach

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).

Mr. 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.

Mr. Boland

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.

Professor Magennis

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.

Professor Magennis

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."

Mr. Hayes

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.

SECTION 10.

Mr. Douglas

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.

SECTION 11.

Professor Magennis

I move amendment No. 62:—

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.

Mr. Boland

I will consider the point.

Amendment, by leave, withdrawn.

Section 11 agreed to.

SECTION 12.

Mr. Kingsmill Moore

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.

Mr. Boland

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.

Mr. Kingsmill Moore

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.

Mr. Kingsmill Moore

I suppose the Minister has not weakened?

Mr. Boland

Not a bit, although I am getting a little tired.

Amendment, by leave, withdrawn.

Amendment No. 64 not moved.

Mr. Kingsmill Moore

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.

Mr. Boland

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.

Mr. Kingsmill Moore

Surely if the board is satisfied that it is not a frivolous appeal——

Mr. Boland

If they are, they will probably hand it back. They have the power to do so.

Mr. Kingsmill Moore

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.

Mr. Kingsmill Moore

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.

Mr. Douglas

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.

Mr. Boland

I prefer "may".

Mr. Kingsmill Moore

I will withdraw the amendment and put it down for the Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 66 and 67 not moved.

An Cathaoirleach

What about amendments Nos. 68 and 69 in view of the change in the membership of the board?

Professor Magennis

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.

An Cathaoirleach

Amendment No. 70 is out of order, for the reasons previously given.

SECTION 13.

Mr. Kingsmill Moore

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.

Mr. Boland

I am not agreeing.

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.

I do not think it is so.

Mr. Kingsmill Moore

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.

SECTION 18.

Mr. Douglas

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.

Mr. Boland

I am prepared to accept the amendment in principle.

Amendment agreed to.

Mr. Douglas

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.

Mr. S. O'Donovan

I can borrow mine from Senator Kingsmill Moore.

Mrs. Concannon

Perhaps in the meantime Senator Kingsmill Moore will give us a short course on the matter.

Mr. Kingsmill Moore

Provided the Senator promises to be an apt pupil.

Amendment, by leave, withdrawn.

Section 18, as amended, agreed to.

Senator Magennis

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.

SECTION 20.

Professor Magennis

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.

Sections 20 to 24, inclusive, agreed to.

Schedule and Title agreed to.

Bill reported with amendments.

Report Stage ordered for Wednesday, 12th December.

Seanad Éireann debate - Thursday, 29 Nov 1945