Censorship of Publications Bill, 1945—Report Stage.

Mr. Seán O'Donovan

I move amendment No. 1:—

In page 2, Section 1, line 21, to delete the word "similar"; and in line 22, immediately before the word "to" to insert the word "similarly".

I have submitted this amendment, a Chathaoirleach, as a suggested improvement on the definition of the word "indecent" in the definition part of Section 1. Before the discussion on the last day I tried, so far as I could, to interpret what the meaning of the word was, and during that discussion Senator Magennis who, if anybody, should know what the meaning of these various definitions was, after so many years of trying to implement them, said:

"I do not profess to understand the remaining part of the definition —‘or likely in any other similar way to corrupt or deprave'—because I do not know what a ‘similar way' might be."

Now, that statement impressed me immensely on the last occasion and, during the interval, I tried to suggest to the House a better definition. Accordingly, I am now suggesting that the deletion of the word "similar" in line 21, and the insertion of the word "similarly" before the word "to", in line 22, would make the definition clearer. The definition would then read: "the word ‘indecent' includes suggestive of, or inciting to, sexual immorality or unnatural vice or likely in any other way similarly to corrupt or deprave". The insertion of the word "similarly" there would qualify the words "corrupt or deprave". During the previous discussion it was emphasised that this Bill refers to one type of immorality only: that is, immorality of a sexual nature. For that reason, I suggest that it is well to clarify the definition and remove the indefiniteness in which it is now. I agree with Senator Magennis that the phraseology used at present in the definition section does not make sense.

To use the phrase as it is at present: "likely in any other similar way to corrupt or deprave", would seem to qualify whether the word "indecent" was suggestive of, or inciting to, sexual immorality or unnatural vice. I think the House should agree with me that the transposition of the word, in the manner that I have suggested in my amendment, would be more intelligent, and that the deletion of the word "similar" where it occurs, and the insertion of the word "similarly" before the words "to corrupt or deprave" would remove the qualification which at present seems to apply to the word "way". I hope I have made myself clear, but at any rate I think that the proposal in my amendment is clearer than the wording in the present definition section of the Bill, and for those reasons I commend the amendment to the House.

Mr. Kingsmill Moore

I do not like this proposal. If we put in the words "in any other way similarly to corrupt or deprave" a person may say that the Sweeps or betting, are inclined to corrupt or deprave. Similarly, with an incitement to drink. There are other things likely to corrupt or deprave such as an incitement to betting or to drinking. If the word "similarly" is put in, it would bring within the ambit of the Act anything calculated to suggest or to incite in the mind of a person what might be corrupt or depraved. Therefore, the proposal would bring in all things which are of their nature, objectionable, and I confess that I hold betting or drinking to excess to be very objectionable from the social point of view. If this Act is to confine itself to sexual matters the amendment would have the effect of extending it beyond its natural purpose, to any matter or advertisement or suggestion which might in any way have an undesirable effect upon the public. There might be a good deal to be said for an Act of that type provided it was not a Censorship Act, but that is something we would have to consider from another point of view. The effect of the amendment read grammatically and literally would be to give the meaning I mention. I submit that viewpoint to the Senator, because it is the meaning I would take as a lawyer.

Professor Magennis

Surely Senator Kingsmill Moore realises that this is a question concerning a definition in Section 1. It deals with "the ‘great' twin brethren" the words "indecent or obscene". The ambit of the wording of the Bill could not be extended in the way Senator Kingsmill Moore suggests, because we are dealing with the Principal Act, which is an Act to prohibit the sale and circulation of unwholesome literature. If you read the Act through, one single section dealing with periodicals devoted to crime, is the only extension you can find that goes beyond the reference to sexual matters. Consequently, the words as used in the definition clause are to be construed as intended to deal exclusively with what is sexual.

Mr. Douglas

The Minister would be well advised to leave well enough alone. I confess that I am not at all clear what difference, if any, the amendment would make. The Act when passed with that definition, worked fairly well. If by any chance there was to be a complete change, it seems to me the Bill would have to go back into Committee, to have this reconsidered. I suggest that it would be unwise to make a change now.

Mr. Boland

The definition in the Bill is the same as that in the Act of 1929, and I should be surprised if there was any difficulty in interpreting it. My opinion is that the proposed change would not be nearly as good as what is in the Bill, and I could not agree to it.

Mr. O'Donovan

If the amendment is unacceptable to the Minister I am quite satisfied, and ask leave to withdraw it.

Amendment, by leave, withdrawn.

Government amendment No. 2:—

In page 4, to insert at the end of Section 3 a new sub-section as follows:—

() The appeal board may act for all purposes notwithstanding the existence of one vacancy in their membership.

Mr. Boland

This amendment is consequent on the increase of membership of the board. As the Bill stood there was only an appeal board of three, but now there will be five, and I am providing that four will be sufficient to act.

Amendment agreed to.

Government amendment No. 3:

In page 4, to insert at the end of Section 5 the following new subsections:—

(3) An officer of customs and excise shall not detain under this section a book, not being merchandise, which is carried by or forms part of the personal luggage of an incoming traveller.

Mr. Boland

This amendment deals with a matter we were discussing on Committee regarding the right of Customs officers to interfere with passengers' luggage. I think it meets the point raised. I want to safeguard the right of Customs officers to do what they always had a right to do, that if flagrantly obscene matter is brought in they should have the right to hold it up.

Mr. Douglas

While I do not like the provisions of Section 5, I recognise that the amendment goes a long way to prevent one serious abuse, particularly a type of abuse that might cause us to be a laughingstock. While I am not satisfied, I do not propose to move amendment No. 4 on the Order Paper in my name.

Liam O Buachalla

I do not like the introduction of this amendment by the Minister. It semes to me that it would be quite possible by it to undermine the whole intention of the Bill. There is nothing to prevent anybody entering this country by air, by road, by sea or by train bringing in one book or 20 books under the guise of personal luggage. What we set out to do was to prevent the circulation of books which were considered to be of an unsuitable nature. As I understand the amendment, there is nothing to prevent the wholesale importation of books and publications of the type that we want to prevent coming in.

Mr. Hayes

I understand that books actually censored would be still forbidden.

Mr. Boland

Yes.

Mr. Hayes

And under the amendment of the Minister only one copy could be brought in. Any attempt to circumvent the Act would be extremely expensive.

Professor Fearon

I wish to support the amendment. Having suffered from various customs officers in other connections, when my baggage was held up and searched to see if I had any explosives or propaganda material, it seems to my reasoning that we have been facing too long the possibility of this development of the customs becoming not only disagreeable but a confounded nuisance. In ordinary circumstances tact is exercised by the customs officers, but even so, as Senator Magennis will agree, it very often took months to decide if a book was on the border line. Eventually, we were not quite decided. I can imagine an ordinary customs official, probably very harassed at the end of a busy day, being inclined to be very hasty, indeed. Anything that gives a margin, within which the danger of bringing a certain amount of disrepute on the country through hasty action can be averted, is a very good thing. I assume that the amendment means that if a book is brought in as personal property, and is subsequently found to be undesirable, it will still be liable to censorship. I assume also that some evidence will be forthcoming of ownership by the person who brings in the book, such as having his name on the book. With regard to the exploitation of the amendment to import and circulate undesirable material, I cannot believe that there is such a danger. Persons who want to do that will find many other ways of doing it than slipping such material into their personal luggage. I do not think that any customs official, seeing a collection of curious books, would accept them as personal luggage without requiring verification. For that reason, I support the amendment.

Mr. Seán O'Donovan

This amendment refers to the "seizure" of a book by the customs officers. I do not think that the Bill authorises the customs authorities to seize a book unless it had already been banned.

Mr. Hayes

The Senator is not reading the right amendment. He should read the Minister's amendment.

Amendment agreed to.

Amendment No. 4 not moved.

Mr. Douglas

I move amendment No. 5:—

In page 5, at the end of Section 6, sub-section (3), line 10, to add the following words:—

In every case where the author, editor, or publisher is known to the board to have an address in Ireland, the Censorship Board shall send a letter to that address stating that the book is being examined.

This amendment is somewhat similar to one moved on Committee Stage but the amendment moved in Committee has been simplified. Where the author is known to the board to be an Irish resident, the board should send him notice. In the previous amendment, I went further and asked that the board should give the author time to communicate with them. I merely provide now that notice should be served in cases where the author has a residence here. That is, I think, a reasonable request.

Mr. Boland

I can see no reason for this amendment. It is the book which is being considered and not what the author may have at the back of his mind regarding the book. It was, I think, Senator Hayes who observed on the last occasion that you would not send the author's case for the book around with the book. It is what the book contains that is in question and not what the author thinks about it. The amendment might do harm in another way. If there was an interval and if the information got out that the book was under consideration by the board, harm might be done.

Mr. Hayes

Does not sub-section (3) of Section 6 provide that the board may communicate with the author, editor or publisher?

Mr. Boland

If they wish.

Mr. Douglas

Generally, I can understand the Minister but, in this case, he makes a provision that something "may" be done for which he can see no conceivable reason. I could not carry this amendment and it is not of sufficient importance to be pressed to a division. When the Minister goes out of his way to provide that an author in America or England "may" be communicated with, he has not a good case against me when I suggest that an Irish author should be communicated with. I should not worry in the slightest regarding the other authors.

Amendment, by leave, withdrawn.

Mr. Seán O'Donovan

I move amendment No. 6:—

In page 5, Section 8, in sub-section (1), line 21, and in sub-section (4), line 34, to delete the word "five" and insert instead in each place the word "ten".

I suggest that the appeal should be signed by ten members of the Oireachtas instead of by five members. On the Committee Stage, I said that I thought five members was too small a number. Certain members of this House and, possibly, some members of the other House object completely to censorship. If five such members got together, they could render the operation of the Act nugatory, because they could appeal against every unfavourable decision by the Censorship Board. It is only reasonable that the number should be increased to ten, which is not a large number if the case which they support is justified. What I want to avoid is five members getting together and appealing against every unfavourable decision by the Censorship Board so as to render the Act inoperative. If those members considered that there should be no censorship, they would be within their right in objecting to every banning.

Mr. Boland

I think that the number ten would be too large. We went into this question fairly fully on the last stage. Members of the Oireachtas will not appeal very often, the reason being that authors and publishers can appeal on their own behalf and, if their appeal is not considered frivolous, they will be repaid their £5. It is only in rare cases that this procedure will be adopted. Members of the Oireachtas have a right at present to table a motion calling for the revocation of an order to ban a book. The Minister will not, in future, be the banning authority and that right to move for revocation will not be open to members. I should be prepared to compromise and provide for appeal by seven members, if that would meet the Senator, but ten would be too many. I do not mind. I do not think there is any likelihood of a combination of people deliberately getting together to object to everything. There would not be much usefulness in that at all. The author and the publishers can always appeal. But I thought this was a valuable right for people who may think that it is in the public interest that the banning of some book should be reviewed. That is why that idea was brought in at all. Ten would be too big. Perhaps seven would be better. If that is acceptable I will agree to something like it.

Professor Magennis

Would the Minister be good enough to assist in clearing my mind? What is to be the procedure in regard to the action of members of Parliament? Does someone approach the members and ask for their intercession? If so, is there any case to be made for soliciting the intervention of the five members, or is it a legal fiction that is to govern the procedure that they are tempted to move of their own accord to institute an appeal?

I am not quite clear as to what they are to do. Presumably they will have read the book. If they have not read the book, it will be much easier to lend themselves to any constituent or constituents who solicit their intervention. If they have to read the book, it would be very important that they should. The members of the board from whose prohibition order they are instrumental in appealing against, have to read the books and form judgments on them. Are they likely, in a frivolous mood, to institute an appeal and to put the appeal board to all the trouble of inquiry, simply because they were asked by constituents? My mind is in some perplexity as to how this is intended to function.

Mr. Boland

I do not know if I can clear the Senator's mind. If five Deputies or Senators make an appeal it can be heard. If the author or the publisher thinks that the book ought not to have been banned, either is likely to appeal himself, but there might be remote cases in which it might happen that a book was considered by five members of the Oireachtas sufficiently important that it ought not to have been banned. They can make up their minds any way they like, either by people coming to them or acting on their own volition. Deputies and Senators may consider whether they ought to appeal. Some constituent perhaps who is fond of reading may come and say: "This book ought not to have been banned." If he is a Deputy or a Senator he will read the book. I think any Deputy would do that. He will have a sense of responsibility and he will not do it lightly.

Mr. Baxter

Indeed he will not.

Mr. Hayes

I think the Minister has convinced us that the only thing he likes about the Bill is that it provides that the Minister for Justice is no longer the censoring authority. He has said that with great gusto several times, and I have a good deal of sympathy with him. I do not want to be in the position that I can be asked to read these books and put up a case for an appeal. I would like to put what the position seems to me to be. I may be asked to give my name for the purposes of appeal. I resent very much this provision of the Bill about five Deputies or five Senators. I do not like it at all.

It brings members of the House still further into administration when they should be concerned with legislation. It ought to be our business to provide an Act of Parliament and the business of somebody else to work it. We should not be pushed into the administrative machine after we have provided that machine. For that reason I do not like this provision apart from the fact that it has other difficulties as well. Both Senator O'Donovan and Senator Magennis conveyed an impression which was not the right impression, that is to say, that they seem to imply that members of the Dáil and Seanad who are asked to have a decision on a book reconsidered will previously have made up their own minds that the decision ought to be changed——

Professor Magennis

Oh, no—that it ought to be considered.

Mr. Hayes

It is quite possible that five members of the Oireachtas would ask to have a decision reconsidered without being previously satisfied that the first decision was unjust. There is no such thing in the Bill as that before they ask for reconsideration they have had to make up their minds that the book is a proper book. That is not so. For example, if a churchman said to me:"They have banned so and so and I do not think they ought," I might be put in the position then of signing my name to a document asking that the decision should be reviewed. It would not be my own opinion, and it is quite wrong to suggest that people who have asked for a review have already made up their minds that the book should not have been banned.

Mr. O'Donovan

The marginal note in the section uses the word "appeal" and it was on those lines I spoke. It is an appeal, not a review.

Mr. Hayes

I may think there ought to be an appeal without having made up my mind on the merits of the book or as to what decision should be given. I am not saying that for the purpose of trying to confuse Senator O'Donovan.

Mr. Ryan

On a point of order, I would like to know what amendment we are discussing?

An Cathaoirleach

No. 6, Senator.

Mr. Ryan

Senator Hayes has been discussing No. 7 which has not yet been moved by Senator Magennis.

An Cathaoirleach

Nos. 7, 10 and 12 also bear on the same point.

Mr. Ryan

Are we discussing amendment No. 6 as to the number and nothing else?

An Cathaoirleach

That should, strictly speaking, be so, but this discussion is being allowed because it may result in a shortening of discussion on the other amendments.

Mr. Hayes

May I say, Sir, that I have some difficulty in making my case about the numbers unless I am allowed to state what people are prepared to do? We are now discussing what we are going to do. Surely, it is in order for me in my own poor way to do my best to make it clear. I am sorry if I have offended Senator Ryan's sense of order, but I am doing my best——

Mr. Hearne

To offend him?

Mr. Hayes

Not exactly. If you are going to have this right, although I do not approve of it, I think that five is a better number than seven or ten. Presumably, you are basing it on the notion that you want to extend the machinery of the administration of the Act to allow people other than the author and publisher to bring appeals. If so, you ought to trust the five members of the Dáil or Seanad. I think five is a better number than ten. I do not agree with Senator O'Donovan's scheme. I have a higher opinion of members of the Dáil than he has. I do not think the members of either House would seek to nullify the Act, and I do not think that has happened in any case. If we are going to legislate for a situation when seven members of the Oireachtas are going to use their power to nullify the provisions of an Act of the Oireachtas, we might as well give up altogether. If there is any case to be made, it is a case for a small number and I do not think the Minister is well advised to change it.

Mr. Kingsmill Moore

I would like to support it on the lines of Senator Hayes. On Sunday last I was hailed by an eminent ecclesiastic. He said: "I am just reading a magnificent book; you ought to read it," and he showed me the book. I said: "The first two volumes have already been censored." He said: "I suppose this will be censored too. It is really a book which everyone ought to read." The circumstances might be that a person, in whose judgment I had complete faith, might tell me that a book was a very good book and should not be censored and I might feel, relying on a judgment such as that, that it would be my business to put my name to an appeal of that kind.

It is certainly not my intention to put my name to an appeal until I have read the book, but as Senator Hayes has pointed out it may not be always possible to read the book. I think we should preserve the right for a substantial number of Senators or Deputies—I think five is a substantial number—on the advice of people whom they are entitled to trust, to bring an appeal such as this. If you require ten they might not all know the same person and might not have the same knowledge of his character to be able to rely on the advice which he gave.

Mr. Douglas

The question at issue is whether members of the Oireachtas should or should not be the persons other than the editor, author or publisher, to have the right of appeal. On the assumption that it is members of the Oireachtas who should have this right, apart from the editor, author or publisher, I would very much prefer the number five to ten. I think it is important to consider the reason for this or any other similar provision. I think I would be correct in stating that if there was any other pre-eminent reason for the introduction of this Bill, other than the desire of the Minister not to be the censor, it was the desire to provide an appeal.

Mr. Boland

These were the two things I had in mind.

Mr. Douglas

These were the two things and all other things are incidental. There seems to be more or less general agreement that if there is to be an appeal the author, editor or publisher should have that right. That question does not, therefore, arise now but there is the further question: should there be any other method by which public opinion even of a sectional character, should be able to express itself to the extent of asking for the re-examination of a book? The Minister indicated in the Dáil, and I think here, that there might be under certain circumstances an outside opinion, which would not necessarily be that of the author, editor or publisher which might wish to exercise the right to ask for a revision of a decision to ban a book. I think in that respect the Minister is quite right. Much though I dislike the provision, I prefer to see it there rather than restrict the right solely to the author, editor or publisher. If the right of appeal is to be given to some members of the Oireachtas, it clearly ought not require the consent of a large number. It looks now as if this provision is going to remain in the Bill and I can think of three possible grounds on which I might put my name to a request for an appeal.

One would be that I had carefully read the book, and that, in my humble opinion, I believed that it should not have been censored. The second reason would be that I had read the book, that I believed it to be a good book, but as I was not quite clear about some of the matter in it, I believed the decision should be open to review. The third instance in which I might put my name to a request for an appeal would be one in which I was approached by a person holding a responsible position, particularly if I felt that he represented a minority point of view. If I felt that there was a minority point of view, which was a responsible point of view, I should not like to take the responsibility, even though I might disagree with it, of refusing to that minority the right to have a revision of the decision in regard to a book in which that minority was interested. In that case I might not feel obliged to read the book.

For my part, the Church to which I belong has no bishops, but if I were approached by a bishop or by a person holding a similar position in another Church, who said to me: "This is a book which my religious denomination feels has a certain value for our people and its circulation is to be prohibited here; will you help to have the decision in regard to it reviewed?", I would say: "Yes." I would feel myself perfectly justified in doing that. Bearing that in mind, if there were some circumstances in which possibly there might be a conflict of opinion, I think the Minister might find it much more difficult to operate this provision if the number were changed to seven or ten. Everybody knows that as regards the vast majority of books which are censored, there would be unanimity, and it is only in a comparatively small number of cases that this question will arise. As for the suggestion of Senator O'Donovan that this provision is inviting members of the Oireachtas to defeat the operation of the Bill, because they disapprove of it, I think that is a most unworthy suggestion. I do not think a man who would stoop to that would be fit to be a member of this House. For my part when legislation is passed against which possibly I may have voted, unless it be a matter of my individual personal conscience, I consider it to be my duty to support and obey that law, and I believe that is the position of every other member here.

Sir John Keane

I hope the House will not ask for more than five members to act in this capacity. I know that in many instances in which I have been pursuing the most commendable proposals, I found great difficulty in finding even one person to support me. No fair-minded person would ever say that these proposals were not objective, free from any Party bias and in every way desirable. I feel that even if I were to seek five members to support me I might find it very difficult to secure that support. I feel that on any question connected with censorship I would find it very difficult indeed to get five Senators to support me, not to speak of getting ten.

Mr. Foran

I should like to know will the procedure adopted under this proposal be any different, if we have to get ten Senators instead of five? To me it seems it would be no different; therefore, I submit, the discussion is out of order. We ought to give a reasonable opportunity to have an appeal in matters of this kind and I submit that five is a reasonable number but that ten would be an impossible number. If Senator O'Donovan wants to dispose of the right of appeal altogether he will insist on ten, but I wonder why he should stop at ten? Why should he not say 20, because his object evidently is to cut out the right of appeal?

Mr. O'Donovan

No.

Mr. Foran

Of course it is. You are not going to get ten Senators to sign a request for an appeal. I submit that five is quite adequate. We have no right, in my opinion, to go into any of the other matters that have been raised on this amendment as they are not relevant. It is all a question of whether we should have five or ten Deputies or Senators as the number who will have the right to appeal.

Mr. O'Dea

Is it not rather unfortunate that we are considering this amendment before amendment No. 7?

An Cathaoirleach

Amendments Nos. 7, 10 and 12 have a certain connection.

Mr. O'Dea

Are we taking them all together?

An Cathaoirleach

No.

Mr. O'Dea

Senator Magennis is to propose No. 7 on the list and that proposes that the words giving the right of appeal to members of the Dáil or Seanad be deleted. If that amendment is passed all this discussion would be useless. Could we not take Senator Magennis's amendment first?

An Cathaoirleach

I had hoped that a full discussion on this amendment might curtail discussion on the other amendments.

Mr. O'Dea

If Senator Magennis's amendment is accepted by the House then all the discussion upon amendment No. 6 is useless. It is all waste of time. Why not take amendment No. 7 first, and decide whether or not there ought to be an appeal by members of the Oireachtas at all? Then we could decide on the numbers afterwards.

Liam O Buachalla

I feel very much like Senator Hayes in this; I would prefer that the whole idea of allowing the right of members of the Oireachtas to appeal should not be incorporated in the Bill. Although Senator Douglas may feel that it is unfair to members of the Oireachtas, I do not like the idea that members of the Oireachtas should have the right to appeal.

Sir John Keane

On a point of order. Does not the principle arise in amendment No. 7?

Mr. Baxter

We are discussing amendment No. 6 now, and had better finish it.

An Leas-Chathaoirleach

We are dealing with amendment No. 6. We will finish that first, and then we can proceed.

Liam O Buachalla

Am I in order in continuing?

An Leas-Chathaoirleach

Certainly, on amendment No. 6 and on the general subject, as the discussion has proceeded up to the present.

Mr. Sweetman

On a point of order, on the general subject I do not think that Senator Hayes's statement was as quoted by Senator O Buachalla. Senator Hayes stated that he did not approve of members of the Oireachtas having the right to appeal. As I understood Senator O Buachalla, he quoted him as saying that he did approve.

Liam O Buachalla

Oh, no.

Mr. Sweetman

If I am wrong, I am sorry. I could not hear him very distinctly, and I wanted to have it made quite clear for the record.

Liam O Buachalla

My views on this matter coincide fully with those of Senator Hayes. I would much rather that members of the Oireachtas did not have the right to lodge appeals. One thing that does occur to me is this: as I mentioned already, Senator Douglas and certain other Senators may feel that that is unfair to members of the Oireachtas. I do not like the provision that members of the Oireachtas may lodge an appeal without being asked to pay the fee which other people are expected to pay. This question of deciding whether an appeal should be made or should be supported is a very difficult one.

We are expected to read the books. Very often we will be asked to read books in which we have no particular interest, or which we are not practically qualified to read. Very often, having read a book, we will say: "I cannot make up my mind." I may be asked whether I am speaking from experience. For years I was a member of a public library committee. During those six years I suppose I must have been asked to read some hundreds of books—not exactly to censor them, but, to use the common word, to "vet" them. To me it has always been a tremendous worry as to whether or not I should say: "I do not think that is a suitable book." Even from the views of members of the House on many occasions here, it can be seen that the tendency is to give the other fellow the benefit of the doubt. If you are in doubt you say: "By all means let him have the benefit of the doubt." If someone comes to you and says: "I think this book ought to go before the appeal board," you read the book, although you are not really competent to read it, but you still are not able to make up your mind so your whole feeling is: "Let him have the benefit of the doubt." Therefore, I can quite see that this provision would lead to chaos, not because members of the Oireachtas will be indifferent to their responsibilities, but rather because they will take them very seriously. For that reason, I should rather see the provision cleared out of the Bill altogether.

As to five or ten, if I must make up my mind I am in favour of five as against ten. I need not go into the reasons for that. You can think of the Minister's difficulty presently, when he is going to appoint his Censorship Board and appeal board, in getting the right people, people of the right ability, to read and report to him on these books. To expect that, in a general way, you can get a large body within the Oireachtas capable of performing the same functions is not within reason, in my opinion.

Maighréad Nic Phiarais

I have listened to this debate with great attention, and from the speeches I have heard from every side of the House my feeling is that I ought to support Senator O'Donovan's amendment. If the Minister cannot see his way to accept ten, then let it be seven, but five is too small a number out of two Houses numbering practically 200. We have 198 members, and in my opinion five out of 198 is too small a number to deal with this very important matter. If the Minister is satisfied with seven, I suppose we will accept it, but I am sorry it is not ten.

Amendment No. 6 put and declared negatived.

Professor Magennis

I move amendment No. 7:—

In page 5, Section 8, 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".

May I ask will the Minister give me the enlightenment for which I asked? I am not really in a position to discuss the question at all in the state of complexity in which I am left.

Mr. Boland

I am afraid I cannot enlighten the Senator any more than I have tried to do.

Professor Magennis

The Minister gave us several explanations for his introduction of this novelty into the amending Bill. The one of which I took particular note is that it is a safeguard against the Censorship Board. I think that is enough to make the thing objectionable. The Minister appoints five persons, and we have been assured here that, from the very fact that the Minister has selected them, they are deemed to be fit and proper persons, but yet he considers that there is a necessity to create a safeguard against them. What form does the safeguard take? Members of the Oireachtas, who, so far as I can learn from the debate, may not have read any of the books, and may not care a jot whether they are censored or not, are to be approached by constituents and persuaded to lodge an appeal. That is the safeguard, if you please, for the due and proper censorship of books in this State. I want to know whether they must read the book. Senator Kingsmill Moore assures us that, in the circumstances, he would read it. Senator Douglas says the same. I think they will all want to read the book. That being so, how are they to assure themselves that it is a fit and proper subject for appeal?

Now, Sir, I state, with all respect, that there is a great confusion of thought about this whole matter. I say that with all respect to the Minister, who, I know, is doing his best. It is the border-line cases, as Senator Douglas calls them, about which an appeal will be really necessary. As the Minister told the Dáil—and one member of the Dáil spoke in the same sense —there are certain books that speak for themselves: you have only to consider such a book casually to realise that it is obscene. Such books, surely, are not going to be appealed on by members of the Oireachtas, at the solicitation of someone or another. Therefore, presumably, if all goes well —of course, I am speaking now on the assumption that my amendment will be rejected—if all goes well, what will happen? The border-line cases will be the cases on account of which members of the Oireachtas will be approached, and these are the cases which, everybody is agreed, are of exceeding difficulty. They presented a problem for the Censorship Board which was set up for the express purpose of dealing with such books, and they will set up a problem for "the five" also, particularly in view of the pressure that, presumably, can be put on a member of the Oireachtas by someone who can move mountains of votes. This means putting no responsibility upon five persons, no duty to observe certain requirements in the examination of the books. Is it to be a spontaneous movement within the Oireachtas that certain members who are precluded from the reading of a prohibited book should move in the matter? Then what the Minister is doing is passing his responsibility that he had before this Bill was introduced to the members of the House itself, and I previously pressed the argument of Senator Hayes that this is giving an administrative function to members of the Dáil and Seanad which they never dreamed would be imposed upon them and which it is not proper to impose upon them. However, I am afraid that I am only beating the air.

Sir John Keane

I cannot help smiling, at least inwardly, when Senator Magennis suggests that we want no safeguards against the abuses——

Professor Magennis

You have got them in the appeal board.

Sir John Keane

——against the abuses—established abuses and proved abuses—in the past, of the Censorship Board. Now, it could be an accidental or unconscious matter that the Senator, all through his remarks, referred to books, but I think the House should be remainded that the latest outrage of the Censorship Board has been in the matter of pamphlets dealing with the subject of sex education.

An Leas-Chathaoirleach

I think that the Senator should not deal with that matter in connection with this amendment. That is a question of administration.

Sir John Keane

But this is giving the right to certain members of Parliament——

An Leas-Chathaoirleach

I think, Senator, that the point you were on is one dealing with administration.

Sir John Keane

No, Sir. I shall challenge the whole question of whether giving a member of the Oireachtas certain rights is a matter of administration. You give a public informer certain rights.

An Leas-Chathaoirleach

Administration of this Bill, when it becomes an Act, will be a matter for the future.

Sir John Keane

With all respect, Sir, it is a matter of opinion whether this is a question of administration or not. The Senator proposes to refuse to members of this Oireachtas the right of appeal, and I am asking why it is essential, if there is to be a fair right of appeal, that persons other than the author or publisher should not have the right of appeal, and I am citing what has happened.

An Leas-Chathaoirleach

You should have put down a motion on the matter of past administration, Senator, and have it discussed. I do not think you can have it discussed on this amendment.

Sir John Keane

I am giving reasons why that clause should remain.

An Leas-Chathaoirleach

I do not think the Senator can proceed with the particular argument on this amendment.

Sir John Keane

On what grounds can I not proceed with it?

An Leas-Chathaoirleach

On the grounds that you could have dealt with it by putting down a motion.

Sir John Keane

But I am speaking directly on the amendment. I am opposing the amendment because the effect of it is to deny to members of Parliament the right of appeal, and I am giving reasons why they should have that right.

An Leas-Chathaoirleach

In the future?

Sir John Keane

Yes, in the future. I am only speaking on the Bill, and I am trying to show reasons why members of the Oireachtas should be allowed that right. In certain cases, authors and publishers will never exercise that right of appeal and the public should be protected by other persons being given that right. I am giving reasons why persons other than authors and publishers should be given the right.

An Leas-Chathaoirleach

No, Senator, I do not think so. That is a matter of the future.

Sir John Keane

But what has been done in the past is likely to be done in the future.

An Leas-Chathaoirleach

I have ruled that the Senator cannot deal with that matter on this amendment, and I hope he will accept my ruling.

Sir John Keane

Well, can I argue that it is at least conceivable, and more than conceivable, that a publisher or author will not appeal in certain cases, since he may feel that the circulation in this country of the work concerned would not be sufficient to justify an appeal?

Mr. Douglas

On a point of order, Sir, might I respectfully suggest that any book that was published in the past can be dealt with under this Bill, and, therefore, can be dealt with under this amendment?

An Leas-Chathaoirleach

Yes. That appears to be so, as I read the Bill.

Sir John Keane

I may be taking an unreasonable attitude, but I feel so strongly on this matter that I think I am within the bounds of order when I say that a publication could be brought out by, say, a public body—some such publication as these health pamphlets which were issued in the past by the Central Council of Education-and that it is inconceivable that such a body would appeal. The body to which I have referred was headed by the Archbishop of Canterbury, and there were many other responsible people on it. Those publications, I think, were brought out by the Stationery Office, and yet they were censored. I think that the Minister himself would be inclined to admit that it was somewhat of a hardship that those publications were censored.

An Leas-Chathaoirleach

There is a method of dealing with that, as I have pointed out.

Sir John Keane

As a result, the Minister allowed those publications to come in. I do feel that there should be some body other than the author and publisher with the power to appeal, and what better body could there be than members of the Oireachtas? I see that it is proposed that Bishops and other people will be allowed that right, but I think that the members of the Oireachtas are best suited to deal with an appeal, and I hope the House will allow the section to stand as it is and that it will refuse the amendment.

Mr. O'Dea

I am in favour of the amendment for this reason: the author and publisher have a right of appeal, and I cannot understand who else could want to appeal except the author and publisher. Senator Sir John Keane has a different view. He says that public bodies may suit better and that an author might not like to have his name published in connection with an appeal, but in that case there would be no trouble in getting the publisher to serve notice of appeal. If an author or publisher asked me to sign my name, as a member of this House, to a notice of appeal, I would say: "No; go and appeal yourself." I do not see any necessity to give this power to members of the Dáil or Seanad and for that reason I am in favour of deleting it.

Mr. Ryan

I wish to support the amendment. On the Second Reading I stated that we had no explanation from the Minister for Justice, when introducing this Bill in the Dáil, or from the Minister for Posts and Telegraphs, who deputised for him in this House on the Second Reading, as to the reason why this provision was introduced. The provision giving members of the Oireachtas power to appeal against the decision of the Censorship Board is an innovation in legislation. I do not look upon this as to whether or not this right of appeal is a safeguard against the Censorship Board. I regard it from the point of view of the Constitution, and from the point of view of the proper separation of the powers and proper functions of the two Houses of the Oireachtas and the members thereof. Members of the Dáil are elected to represent constituencies, as provided by the Constitution. Members of the Seanad are intended to represent the different vocations, and they have their own special function, which is particularly the function to represent the views of other people in legislation only. I think this right of appeal given to members of the Oireachtas may form a dangerous precedent. If it does not form a precedent, then it stands alone and, in my submission, is without any proper justification.

Everybody knows that there are hardships inflicted upon people by law. We are aware that income-tax inflicts hardships, that even the rationing of food, of gas or of electricity may impose hardships, but only the people aggrieved are entitled to appeal on law. I cannot understand why members of the Oireachtas, who are not aggrieved by any decision of the Censorship Board, should be given this right of appeal. It may be said that this is a matter of public importance, one in which members of the Oireachtas as public men should take an interest, but when the author and publishers of a book are given the right of appeal, in my submission, there is no case, as I stated on the Second Reading, for dragging members of the Oireachtas into it. Therefore, I suggest that this amendment should be accepted by the House. The Minister, no doubt for some good reason of his own, which, up to the present, he has not stated clearly, introduced this amendment into the Bill. There may have been some pressure from some quarter for the introduction of this provision, but on its face, and as it stands in the Bill, there is no case for it. I am not prepared to support a provision for which no case has been made by the Minister or by the other responsible authority sponsoring the Bill. Therefore, I support the amendment of Senator Magennis, that the power of appeal given members of the Oireachtas against decisions of the Censorship Board should be deleted.

Mr. Douglas

This amendment seems to me to raise two questions. The first one is, should there be anyone else other than the author, editor or publisher? If the amendment were carried, as the Bill stands there would be no one else. It also raises the question whether, if there is to be somebody, members of the Oireachtas are the best people. On these two questions I have a definite opinion. I believe that there ought to be some responsible persons other than the author, the editor, or publishers, and I believe the Minister would be ill-advised to accept the amendment unless he provides an alternative. What that alternative should be will arise on the next amendment in my name. I do not propose to repeat at this stage, though I may on the next amendment, the reasons why I do not think members of the Oireachtas are the best persons for this purpose. I propose to deal with this matter from this point of view, whether there should be any person other than the author, editor or publishers, because that is the main principle involved. Senator Ryan was quite clear about his views. He does not want anybody else, and it is there I join issue with him. In that I disagree with him completely.

He said in the debates that no case was made for an appeal by anybody else. I think a very good case was made, but I want to make it again. I do not want to misrepresent the Senator, but his assumption was that nobody but the author, editor or publishers were interested in whether a book was allowed to be circulated in this country or not. That is where I join issue with him. I can easily conceive a book being printed outside this country which a number of people here would consider it highly desirable should be on sale and available, but the author, the editor, and the publishers might not care twopence whether anybody in Ireland ever saw it. Senator Ryan's view is that if they do not care, why should anybody want to get it. Senator Sir John Keane mentioned one case. I do not want to discuss a particular book as that would be highly undesirable and not in order. However, it is extremely important to realise that a case arose in the past where the circulation of a particular book was desired for circulation by responsible members of a Church. Whether that book should or should not have been censored does not arise. Persons in that responsible position should have some way by which they could ask for an appeal from, or for revision of, the decision in cases in which the author, editor and publisher may reside outside the country and have no interest in the circulation of the book here. I entirely agree with the argument set forth by the Minister on the last stage and in the other House—that there should be some provision for an expression of opinion in cases where the author, editor and publisher are resident outside the country and are not interested in the fate of the book here and in which responsible people here think there is a case to be made. I hope the Minister will not accept this amendment except he provides an alternative. I should be in favour of the amendment if some suitable alternative were provided.

Mr. Summerfield

I hope the Minister will accept the amendment. I regard the matter from a different angle from that of other Senators who have spoken. I think that there will be something Gilbertian in the situation which will be created if this amendment be not accepted. Here, we are, part of the Legislature. If this Bill becomes law, it will become part of our legislation. With the retention of this paragraph, a number of legislators are to be the means of setting in motion machinery which will, if it succeeds, defeat the operations of a board set up by ourselves under our own legislation.

Mr. Hayes

Surely, it will not defeat the operations of the board.

Mr. Summerfield

I should like to know what else it would do. If five members set in motion an appeal which succeeds, that appeal will have upset the deliberations of the body of men which the Bill sets up as competent to judge in this matter, after due consideration, on facts which will not be available to anybody else, save casually. The five members of the Oireachtas will be, as it were, the self-starter. They will be the means of setting an appeal in motion—an appeal directed against the board set up by the very legislation covered, in general terms, by this Bill. Five legislators will be asked to set in motion machinery to disturb the considered decision of the Censorship Board set up under the Bill. I may be crazy about this matter——

Mr. Sweetman

I am afraid you are.

Mr. Summerfield

We have our own opinion as to what constitutes craziness.

Mr. Hayes

Sanity is relative.

Mr. Summerfield

Coming down to the personal equation, I take part in passing an Act, and to-morrow I agree, at the solicitation of somebody who comes to me, to set in motion an appeal which will, in fact, disturb a decision of the Censorship Board set up to do a certain type of job. There is something Gilbertian and ludicrous about that situation. The only aggrieved people that should be regarded as having a right to appeal are the author, editor and publisher. I am not at all impressed by the arguments about the rights and the interests of the public. If any other person than those I have mentioned feels aggrieved, we must assume that that person has read the book or pamphlet concerning which he desires to appeal. If he has had that pleasure or privilege, then he should have no grievance. He must have read the publication of which he wants more widespread distribution. I have given cause for humour to some of my fellow-Senators, but I have the courage to say what I think, and I think that the Seanad would be wise to accept this amendment.

Mr. Sweetman

The proposition put forward by Senator Summerfield appears to me to be so ludicrous as to deserve, at least, some comment. During the past few months persons have been sitting in Dublin Castle hearing appeals against income-tax assessments—probably, from Senator Summerfield and others. According to his argument, the assessment of the inspector of taxes should always be accepted and there should be no right of appeal to the special commissioners.

Mr. Summerfield

I have not said that.

Mr. Sweetman

According to the Senator, when the Appropriation Bill comes up, we ought not to pass the salaries of the judges of the Supreme Court, the High Court or the Circuit Court because the District Court should be good enough for every purpose. That is the only logical deduction from what the Senator has said— that we should cut away appeals in every case. If you provide for an appeal in one type of legislation, you are equally entitled to provide for it in another type.

Mr. Hayes

Senator Summerfield must misapprehend the meaning of this Bill. It is not a Bill for the purpose of censoring books. It is a Bill for the purpose of providing a Censorship Board which will consider books and if, within the terms of the Act, it considers the books should be censored, will censor them. That is quite a different thing from what the Senator has, evidently, in mind. The Minister has provided in this amending Bill an appeal board. To my mind, it has become an unmanageable appeal board, because it consists of five members. But that is beside the present question. The Minister provides an appeal board. If you say that, by putting the machinery of appeal into operation, you will defeat the operation of the Bill, you say something which is contrary to common sense.

Mr. Summerfield

My point was as to legislators setting the machinery in motion.

Mr. Hayes

I have no great enthusiasm for the idea of legislators having this right of appeal, but to set an appeal in motion does not defeat the Act. It simply puts the Act into operation. The two fundamental things in this Bill are: (1) the Minister disappears as the censoring authority, and (2) an appeal is provided. If you provide a right of appeal, you should certainly give certain people power to lodge an appeal. I think that the Senator is acting on the assumption that, when a man appears in court, he ought to be condemned and, if he is not condemned, that the ends of justice are defeated. Manifestly, that is not the position.

I do not understand at all why it should be assumed that if you put an appeal into motion, you defeat the objects of the Act. The appeal board will consider the matter under the directions which they get in this Act. They will simply act in a legal way, within the terms of their mandate, and it is not open to anybody to say, whichever way they decide, that the ends of the Bill have been defeated. I have stated already that, for myself, I do not by any means hanker after this power. I feel that it will be an embarrassment and a nuisance to members of the Oireachtas to be put in a position in which they may be asked to set an appeal in motion. But I do agree with Senator Douglas that if you are going to adopt this amendment without adopting any board as suggested in amendment No. 7 you are doing a very serious thing. I think the machinery the Minister put into it should be left in it for the moment, or if it is taken out, some other machinery should be put in its place.

Professor Magennis

Why? What safeguard, may I ask, is required against the Censorship Board besides the appeal board?

Mr. Hayes

Of course, an appeal board is no use unless something can go before the appeal board, and surely there is nothing wrong in saying that as well as the author some other person should have power to bring an appeal.

Professor Magennis

You said yourself——

An Leas-Chathaoirleach

Senator Hayes is in possession.

Mr. Hayes

I give way, Sir. I am full of the milk of human kindness.

Professor Magennis

I have the right of reply.

Mr. Hayes

I had already concluded when this cross-examination began. I do not propose to proceed by way of question and answer. All I want to say is that there should be provision for machinery for appeals, and having an appeal is not to defeat the Act in any sense of the word.

Liam O Buachalla

Like many other Senators who have spoken. I am in grave doubt as to whether we should leave this right to members of the Oireachtas to make the appeal. Remember the issue before us is not whether there should be an appeal or not. That is decided. We are agreed there must be an appeal. The question is whether we should not widen the field of individuals or bodies who should have the right to lodge an appeal and to set the machinery in motion. I am in doubt about it in this sense—I do not think it will work. The members of the Oireachtas themselves will find it a burden which they would be sorry to take on had they known of it.

Mr. O'Donovan

Some of them.

Liam O Buachalla

Secondly, I believe that the provision which enables members of the Oireachtas to lodge this appeal without paying any fee will cause them more embarrassment than they are bargaining for. If publishers and editors think that individual members of the Seanad and Dáil can lodge the appeal without having to pay a fee these people will be approached more often than they will bargain for.

At the same time, there is this to be said about it—in a matter like this one cannot be dogmatic or certain. There are many things in legislation in respect of which you cannot find out whether you are right or wrong except by the principle of trial and error. When I am in doubt with regard to legislation, I never forget that it is the right of the Oireachtas always if it discovers that something it has already done is not working out in the way it was intended, to amend legislation. Again, if I am in doubt, I have to leave myself pretty much in the hands of the Minister since he is the person who has the responsibility for saying whether the thing is workable or will do what he wishes to have done.

As I say, I am in doubt whether we should leave this power in the Bill, but since I am in doubt I am disposed to take the chance. If we find out it does not work, and should abuses creep in, we should say we will take our courage in our hands and amend the law in such a way that the abuses can be checked.

Mr. Kehoe

I oppose this not from the viewpoint of a jurist or a lawyer but as a plain man. I cannot see, for the life of me, why the Opposition are grousing or why persons should act at all when already there is an appeal board. Why clutter up the machinery any more than it is already? That is my point. It seems to me that Senator Magennis's proposition which I support, suggests that these words be deleted: "or any five persons each of whom is a member of Dáil Éireann or of Seanad Éireann". I cannot see why that provision should be inserted. I think it is unnecessary, futile and provocative in its essence. Whether there is anything sinister in it I do not know. I do not want to impute motives which may be unfounded. It seems to be a matter of quis custodiet ipsos custodes?—who shall guard the guarddians? This kind of thing could be multiplied ad infinitum. We could, indeed, have five persons after the appeal board itself who would rule on decisions of the board. I think this proposal is unnecessary—more than unnecessary—and provocative. There may be something behind it, but I cannot see the reason for it when it is obvious that it is so patently unnecessary. I have much pleasure in supporting Senator Magennis and I may say en passant that I hope he will press the amendment.

Mr. Boland

I thought this was a very desirable provision to bring into the Bill and what I had in mind was to make the Censorship of Publications Act as acceptable as possible to all our people. That is why I brought in the proposal. If Senator Kehoe thinks that I have some sinister motive he is wrong——

Mr. Hayes

Nobody thinks that.

Mr. Boland

I had two objects. The first was to get rid of the thing myself. If it had gone on I would have resigned my position as Minister for Justice because I would not have it. The other object was to take away any possible grievance among any section of the community. I am still satisfied the proposal is a good one and I am not going to accept this amendment. No Senator or Deputy is going to be forced by anybody and they ought to be quite capable of standing on their own feet and telling their constituents so. Why should they move them for the sake of £5 which will not be forfeited at all if the board thinks the amendment is not frivolous? Why should they make an appeal in a frivolous way when the editor or the author has the right to appeal?

The case mentioned by Senator Douglas was the case I made in the Dáil and it might never occur, the case of a publisher or an author in a foreign country whose book was banned and who might say: "I do not care. There are only a few people there anyway and I will not bother about them." There might be a section of our people, a small section, I admit, who would want to read such books and they would like to have the opinion of the appeal board on them. This proposal would, therefore, cover the case where the author or publisher might not bother his head. The principal reason for it was to try to make it as acceptable as possible and I have no other motive of any kind. If the Seanad does not accept it I cannot help it, but I want that provision left in the Bill.

Mr. S. O'Donovan

I am sorry the House did not accept my amendment. In speaking to that, Senator Douglas referred to my motives as unworthy——

Mr. Douglas

May I, on a point of explanation, tell the House I said nothing of the kind? I did not say that the Senator's motives were unworthy— I said he was suggesting unworthy motives to others, a very different thing.

Mr. S. O'Donovan

I accept the Senator's correction. I am satisfied that if the House adopted my previous amendment this discussion would not have gone on as it has gone.

Mr. Kehoe

You did not press it.

Mr. S. O'Donovan

I did. I am going to speak as a plain member of this House. I am quite satisfied that there are people who will try to drive a coach and four through our legislation. That is evident to me, and I am going to support this amendment. I will not sit here as a member of the House and agree to what I am convinced is an effort to circumvent the object of the legislation. I did accept the principle of appeal signed by members of the Oireachtas but I wanted to ensure that there should be a sufficient number of members of the Oireachtas to make it representative and to see that it was not a circumvention of the intentions of the Oireachtas. I am quite satisfied now, after hearing Senator Sir John Keane, that circumvention will be attempted, and I will support the amendment.

Professor Magennis

On the Committee Stage I moved this precise amendment. It was then No. 41, but as again this evening Senator Douglas managed to circumvent my amendment by speaking on his own, which was of a later number 48. I am bewildered by the attitude he takes up because to save the time of the House, I accepted his argument as for my amendment No. 41. If his memory does not stand him in good stead, I shall be charitable enough to give him the reference in column 1165.

Mr. Douglas

May I assure the Senator that in this matter my memory is all right?

Professor Magennis

The following is the reference:

"Professor Magennis: Senator Douglas in his amendment No. 48 has already moved my amendment No. 41"—

He did not contradict me.

—"and I accept altogether the argument which he made though I do not accept everything he said."

Now let me, with your permission, Sir, refer to the argument he put forward. I am quoting from column 1163 of Seanad Éireann Debates, Volume 30, No. 8. If I do not begin at the beginning, I have no doubt he will complain that I am giving a garbled quotation.

"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——"

That does not square with what we have heard from the Senator just now.

"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 possibly 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."

Surely that is speech in favour of my amendment? I accepted it as such. Now this evening we had Senator Hayes. Senator Hayes spoke against the five member idea on the ground, the very proper ground, that it was giving administrative duty to a member of the Dáil or Seanad who had legislative functions conferred upon him. When Senator Summerfield put that point very forcibly, a point against what Senator Ryan calls in question as a novelty in legislation, Senator Hayes proceeds to argue against Senator Summerfield and objects to his saying the very thing which he himself had urged. Surely it is not a deliberate Assembly where this sort of thing goes on? It is more a mockery of a legislative Assembly than the reality. Now, as regards the Minister, I desire to speak with the utmost respect.

Mr. Sweetman

Is that by way of contrast?

Professor Magennis

Yes, if you like. Footnotes are frequently provided to my speeches and as frequently I accept them. There is a contrast because I know the Minister took a great deal of pains in this matter, as he himself has said, to try to make this legislation as free as possible from points of friction with some people who are really what we might call "sore-heads." There are sore-heads on censoring and many of them have spoken here. I suggest with all respect that the Minister has not secured the result desired. There is joy in the camp of those who wish to destroy censorship altogether, because of the introduction of this provision. Senator O'Donovan has put his finger on that and I need not add anything. It would probably weaken rather than strengthen his argument. I appeal to the Minister to see on reflection that this is an unnecsary excrescence on his legislation. It serves no useful purpose except perhaps that there may be publishers far, far away, beyond the reach of wireless, to whom there may be some passionate appeal on the part of an anti-censor advocate: "For Heaven's sake, appeal against the Censorship Board condemnation of your book." It might serve that purpose but what the Minister has forgotten is that he himself has power to do the very thing which he contends the introduction of the five-member idea is necessary to do. He can grant a permit to anyone. Let us suppose there is some book—and there might be some book—which for the general public is depraved in the last degree. There are some highbrows, intelligentsia who are sin-proof owing to their previous studies. They might wish to read this book for some design of special studies. All they have to do is to state their case and the Minister has power both under the Principal Act and this Bill, to give that permit. He himself has it in his own power to remove that disability. He adopts this roundabout way against which members of the Dáil have protested and members of the Seanad are protesting. I shall not occupy your time further, but I do mean to press this amendment.

Amendment put.

The Seanad divided: Tá, 14; Níl, 23.

Tá

Campbell, Seán P.
Concannon, Helena.
Counihan, John J.
Healy, Denis D.
Honan, Thomas V.
Johnston, Séamus.
Kehoe, Patrick.
McCabe, Dominick.
Magennis, William.
O'Dea, Louis E.
O'Donovan, Seán.
Nic Phiarais, Maighréad M.
Ryan, Michael J.
Summerfield, Frederick M.

Níl

Baxter, Patrick F.
Clarkin, Andrew S.
Corkery, Daniel.
Douglas, James G.
Duffy, Luke J.
Farnan, Robert P.
Foran, Thomas.
Hayden, Thomas.
Hearne, Michael.
Quirke, William.
Ruane, Seán T.
Stafford, Matthew.
Keane, Sir John.
Kelly, Peter T.
Kyle, Sam.
McEllin, John E.
McGee, James T.
Moore, T.C. Kingsmill.
O Buachalla, Liam.
O'Reilly, Patrick John.
Parkinson, James J.
Sweetman, Gerard.
Tunney, James.

Tellers:—Tá: Senators Magennis and Sean O'Donovan; Níl: Senators Hearne and Quirke.

Amendment declared negatived.

Government amendment No. 8:—

In page 5, Section 8, sub-section (1), to delete in line 23 the words "at any time" and to insert at the end of the sub-section the words "at any time within 12 months after the operative date or 12 months after the date on which the prohibition order takes effect (whichever is the later)".

Mr. Boland

This is the amendment which fixes a time limit for an appeal.

Amendment agreed to.

Professor Magennis

I move amendment No. 9:—

In page 5, Section 8, sub-section (1), line 24, after the word "order" to insert the words "issued by the Censorship Board".

As I explained on the Committee Stage, I wanted the insertion of the words "issued by the Censorship Board" so as to limit the application of appeal to the prohibition orders issued by a new board to be appointed after this Bill has become an Act. I did so in the hope of drawing attention to the retrospective character of the section in which the words occur. It is possible, in virtue of the section as a whole, to lodge an appeal against a prohibition order away back to the beginning of the Censorship Act of 1929—in other words, to 1930, when it first became operative. Now, during all those years the same kind of thing that we heard this evening from Senator Sir John Keane resounded on public platforms or were read in the Press, in magazines, and what not in the way of publicity. These findings of the Board of Censorship in the past have been declaimed against, and here again to-night we had the very latest example; so that, no matter what the Minister does in the appointment of a judge as chairman of the board, it cannot be regarded as a fair appeal court because, steadily all through the years, for 15 years down to date, the contempt of court has been committed and permitted. Unless the members of the appeal board have been living out of the country, it is impossible for them not to have heard some echoes of those partly underground rumblings as well as explosions of rage above ground. It is against justice, I suggest, to call it a fair appeal in these circumstances.

One of the points made all along in this campaign against censorship was that there was no appeal possible from the prohibition orders issued by an arbitrary and irresponsible board which condemned books. I wonder, Sir, would it be in order for me to read an example of this, which is exactly on all-fours with that of Senator Sir John Keane's to-night. I am about to read, if I have your permission, Sir, from the Dublin Evening Mail of Tuesday, February 15, 1944.

Mr. Kingsmill Moore

On a point of order, Sir, if it is on all-fours with Senator Sir John Keane's example, which has been already ruled out of order, is this in order?

Professor Magennis

This attack, I will say, was a manly attack; it was made outside.

An Leas-Chathaoirleach

It was an attack on the Censorship Board?

Professor Magennis

Yes.

An Leas-Chathaoirleach

Well, I do not think the Senator can deal with that.

Professor Magennis

It was on its past performances.

An Leas-Chathaoirleach

I do not think the Senator should read that.

Professor Magennis

Very well, Sir, but perhaps I may be in order in relating the fact that an abject apology was published by the directors of the Evening Mail by which they disclaimed all those things which Senator Sir John Keane alleges here to-night under shelter of privilege. I hold that you cannot have a fair appeal against the past findings of the board, and, that being so, I object to the power being given to go back to 1930.

However, here is my principal argument. It has been alleged that there was no appeal. There was an appeal. The fact that there was an appeal is proved, and, as we say in philosophy, from the actual to the possible the transition is easy. There was one appeal, I know. I am informed that there were something like twelve. I do not know whether that is correct or not, but at any rate I know of one, and that suffices to establish the existence of an appeal authority. I do not bind myself to twelve, although my informant could be regarded as a very good authority. From 1930 downwards, in time, why did not these authors and publishers of these superb masterpieces amongst the "masterpieces of the world" lodge an appeal? Why did they not call upon the Minister to exercise his powers under the Act of 1929 to raise the prohibition orders or to have them varied? He could do either. This is one of the facts of the principal Act, which is conveniently forgotten by critics of the Censorship Board—just as they forget the Minister's power to grant a permit to a reader who desires to read a prohibited book. I regard it as a violation of justice to say that there was no appeal and give the right to the publisher and author and five members of the Oireachtas to lodge an appeal against those past findings. I could very well imagine enemies of the country saying: "How Irish to have your appeal authority in being, and for authors and publishers to disregard it and—not thinking it worth while to appeal—to have five members of the Oireachtas, acting in conjunction, to call for an appeal against these past prohibition orders!" The Minister on the last occasion said that the books in most cases speak for themselves. That was perfectly true. I think that he described them as mostly rubbish, but as regards the others that are not rubbish I consider that I am entitled to presume that the authors and publishers did not think it worth while to appeal. I argued this before and the result was naught.

Mr. Ryan

I am afraid that Senator Magennis is under a misapprehension in regard to this whole matter. There is no right, as far as I can see, given by this Bill to appeal against orders made by the former Censorship Board.

Mr. Boland

Section 15, Sir.

Mr. Ryan

In this amendment Senator Magennis wants to insert these words "issued by the Censorship Board." Prohibition Order is defined by this Bill in Section 1 to mean an Order made under Sections 7 or 9 of the Act. Therefore, "prohibition Order" in Section 7 of the Act is an Order made by the Censorship Board and "prohibition Order" under Section 9 is an Order made by the Censorship Board. Therefore the words in the amendment "issued by the Censorship Board" are totally unnecessary. As far as this section is concerned, it only gives an appeal to the Censorship Appeal Board from an Order made by the Censorship Board, and comes into force by virtue of this Bill. The appeal will be from an Order to be made in future under Section 7 or Section 9 of the Act when it is an Act. I submit that this amendment is unnecessary, because the Act has already made provision for it by the definition of "prohibition Order" in Section 1 of the Bill.

Mr. Douglas

I think the point made by Senator Ryan might be an extremely important one, so important that we should adjourn this matter, if there is any doubt—and I think there is—until next week or until after Christmas. The Minister's object, as set out, was to allay dissatisfaction with regard to certain books felt by persons who thought that there should be a revision. I need not repeat the words of the Minister, but his object will be completely defeated if Senator Ryan's views are correct. After listening to Senator Ryan I am inclined to think that his views may be right, but he will appreciate that it is difficult to say immediately that I agree with him. The matter is of importance, and if there is a doubt, I suggest that it should be carefully examined and, if necessary, we might postpone this stage. The Minister probably believes that the period for appeal against a prohibition Order made by him in the past, on the advice of the Censorship Board, is limited to 12 months. I do not believe there will be more than a few books in dispute. I think his object would be defeated if we were to allow the Bill to pass with no provision for appeal or for revision dealing with books about which there has been controversy. The Minister knows that as well as I do.

Mr. Kingsmill Moore

I hesitate to oppose the view of my colleague, Senator Ryan, but I entirely support the suggestion that the Bill will have to be recommitted. In my casual reading of the Bill, reinforced by the remarks of Senator Ryan, I think Section 15 (1) (b) would be adequate to provide for appeal in the case of books which had already fallen under the ban of the old Act. I am still inclined to that opinion. If Senator Ryan has considered the question and if there is a difference of opinion, or any doubt, the Bill should be recommitted so that I should have an opportunity of discussing it with Senator Ryan.

Mr. Ryan

I am referring merely to prohibition Orders. I have not considered Section 15 fully. It appears to me there is no appeal against past Orders.

Mr. Boland

I am satisfied that any book banned up to date is considered to be a book banned under Section 15. I am advised about that by the draftsman; and there does not appear to be any doubt about it. That is as it ought to be. I am not saying that any book banned under the old Act ought not to be banned. There was no question about that. The right of appeal in that case ought to be there. As to members of the board not being present, the same applies there as in the other case. A book will be there to be judged as a book. Whether people say that certain books should be banned or not remains to been seen after the appeal board has a chance of reviewing the whole matter. I am perfectly satisfied—and I am sure Senator Magennis is—that Section 15 provides for an appeal for any book. Any book banned becomes a book banned automatically under this Act when it is passed. I am not prepared to rule that out. If people consider that something objectionable was done let that be dealt with by the appeal board. I imagine the reason more people did not appeal under the 1929 Act was that they felt they would be appealing to the Minister and that there was no good appealing to the same person who censored the book. That is the reason there were not more appeals. It is only fair, if there is any question in that respect in people's minds, that the matter should be reviewed by the appeal board. The right of appeal stands.

Business suspended at 6 p.m. and resumed at 7 p.m.

Mr. O'Dea

It appears to me that Section 15 would govern the question which has been raised, because it states that "the provisions of this Act, other than Section 13, shall apply in respect of the Order as if it were an Order under Section 7 of this Act." Senator Ryan has raised a very interesting point which, it appears to me, could easily be remedied if the words "on the operative date" were inserted. That would put the matter beyond all doubt.

An Cathaoirleach

Where would that amendment be inserted?

Mr. O'Dea

I suggest that the Minister move an amendment to that effect.

Mr. Boland

The only difference that would make would be in relation to the time in which a person could appeal. For books banned under the existing Act, the period would be 12 months from the operative date, and, for any other books, 12 months from the time of the banning. That is all the difference such an amendment would make, and I do not think that there is any necessity for it.

Mr. Douglas

I looked up this matter during the interval. As a layman, I am inclined to think that it will not work out as Senator Ryan fears. The provision is probably right, but it is a rather clumsy way of dealing with it. What is bothering me is the situation which would arise if Senator Ryan, who is an experienced lawyer, should turn out to be right. If the appeal board were to decline to take any books prior to that date, there would be no remedy save by way of mandamus, the onus for the cost of which would be on the author. Unless a wealthy author, such as G.B.S., could be found to spend the money in contesting the question, as a matter of principle, we might find that there was no way of remedying the position. For that reason, I suggest that we might agree to take the remainder of the amendments and then adjourn the present stage until to-morrow or, if necessary, until next year, on the understanding that, if postponed to next year, we would take the Final Stage on the same day. I think the matter requires more careful examination than can be given it now.

Mr. Boland

I am quite satisfied so far as I am concerned. It was not laymen who drafted this Bill. I have got the best authority and my legal advisers tell me that is the position and Senator Magennis agrees it is too, otherwise he would not put down his amendment. I am satisfied it is all right from the point of view of those who want to have appeals. Of course, Senator Magennis thinks it is all wrong.

Mr. Sweetman

Perhaps the Minister can tell us if the point arose in the other House?

Mr. Boland

Yes, it did. It was brought up by a couple of Deputies. They asked if there was a right of appeal under Section 15 and I said that was so, but it was not considered in the way it was here.

Mr. Sweetman

Was the particular point of view mentioned by Senator Ryan put to the Parliamentary draftsman? Very often the particular point of view is presented slightly differently.

Mr. Boland

I understand it was put specifically to him after the debate and that he is satisfied.

Mr. Douglas

Do we understand that the same point made by Senator Ryan was put to the Parliamentary draftsman? If so, I am satisfied, but I understood from the Minister that the point had not been raised before in the same way.

Mr. Boland

The point put to him was: did an appeal lie in respect of books prohibited under the present Act?

Mr. Douglas

That is a different point altogether.

Mr. Boland

What is the point? I did not get it quite clearly.

Mr. Kingsmill Moore

The argument made by Senator Ryan was not before the mind of the draftsman. We can all make mistakes.

Mr. Boland

What Senator Magennis does not want and what other Senators do want is that books prohibited under the present Act shall not be liable to review by the appeal board. On that point, the opinion of the draftsman was got after the debate in the Dáil. I was asked the question definitely by two members of the House and I said that Section 15 made it clear and the draftsman said it did.

Mr. Douglas

Of course, one function we have here is to try to find out possible errors made by draftsmen.

Mr. Boland

Quite.

Mr. Douglas

And when an error is suggested in a Bill like this in which time is not a factor, there is no rush about considering it.

Mr. Boland

That is right.

Mr. Douglas

We are meeting to-morrow and I would be much happier if the point was considered from the point of view of making it clearer.

Professor Magennis

How many speeches are allowed at this stage of the Bill?

An Cathaoirleach

The procedure, at the moment, is slightly irregular, I agree, but they are not exactly speeches-they are interrogations. Is the House now ready to come to a decision as to what we are to do?

Mr. Quirke

I would suggest we postpone the amendment and further discussion and take it first business to-morrow.

Professor Magennis

Am I entitled to speak again?

An Cathaoirleach

We had better settle this matter—whether we should adjourn the further discussion until to-morrow.

Professor Magennis

Suppose the argument of a member of the House was discovered to be doubtful or faulty, would it be proposed to consent that the House should adjourn to consider that? There should be equality of treatment.

I maintain, with all respect, that the Minister is absolutely right that the section to which I move this amendment, read with the later section, gives authority to the appeal board to hear appeals on every prohibition Order issued by the Minister down to date, and I put down the words "issued by the Censorship Board"—in reference to the future board——

An Cathaoirleach

There is a certain doubt in the mind of certain Senators, and I think it would be advisable to defer it until to-morrow if the House agrees.

Liam O Buachalla

Can we defer this particular amendment and proceed with the other amendments?

An Cathaoirleach

I think it would be better to leave it stand as it is, and adjourn the debate now.

Professor Magennis

With all respect, that is an unnecessary delay. How many of us uphold the view that the Bill has the flaw in it that it is suggested it has? I put down my amendment without any expectation of having it accepted. I said that when it was formerly before the House. It was for the purpose of having the whole matter discussed—the advisability or otherwise of retrospective legislation, as I call it, and it was in order to attack the retrospective character of the section that I put down the amendment. I believe the Minister's "law" is absolutely right in the matter.

Seanad Éireann debate - Wednesday, 12 Dec 1945