Before we take up consideration of the Committee Stage of this Bill, I should like to indicate that the Cathaoirleach has ruled that amendments Nos. 1 and 5 to 13, inclusive, are out of order on the grounds that they are outside the scope of the Bill. The Senators who put down the amendments have been notified accordingly.
Censorship of Publications Bill, 1967: Committee Stage.
An Leas-Chathaoirleach
Do I understand that my efforts to have literature which promotes pride, covetousness, lust, anger, gluttony, envy and sloth prohibited are to be regarded as out of order?
An Leas-Chathaoirleach
The ruling was on the relevancy and not on the merits of the proposal.
May I take it that the deadly sins section of the vice lobby has not been exerting pressure on you?
I should like to raise a point on this. I accept that a number of the amendments put down were, by any reasonable standards, probably out of order. I am a little unhappy, however, about two, amendments Nos. 9 and 11 and in particular amendment No. 11. The point I want to make, and it is one of general application to the business of this House, is that amendment No. 11 sets out to amend a section and subsection of the original Act which, in fact, is being amended. The issue here is the question of the appeals to the Appeal Board in respect of prohibited books. Now the ruling here I think is that in a Bill to amend the Principal Act, it is not possible to go outside the Bill as read a Second Time and amendments must deal only with provisions of the Principal Act as affected by the Bill. There is apparently some disagreement on the interpretation of "as affected by the Bill" but I submit that the precedents all relate to cases of an entirely different character. There are three precedents given——
An Leas-Chathaoirleach
It would not be appropriate to enter into a discussion on this general point at this stage. The Senator has raised two points—one a general point which we cannot discuss in the House here, the other the particular point of the ruling out of one of these amendments. On the particular point raised the Chair has, as is usual, given this amendment among others most careful consideration and come to the conclusion that it is outside the scope of the Bill at present before the House. Accordingly, once that ruling has been made, it must be accepted. Whether other discussions take place elsewhere on the general question does not arise.
I accept that and will raise the matter elsewhere on the grounds that the precedents given do not, in fact, authorise or cover a case of this kind.
I accept, of course, with respect, the ruling of the Chair in this matter, but I would urge a reconsideration on the ground that the purpose of this Bill is twofold— to lift certain prohibitions from banned books and to provide for the reprohibition of certain works. This amendment of Senator FitzGerald deals with certain conditions related to the reimposition of a prohibition. It would, therefore, seem to me to be very germane to one of the two main purposes of the Bill.
An Leas-Chathaoirleach
The Chair does not wish to enter into a discussion on the merits but I think it should be clear to Senators that this amending Bill deals with matters of time and not matters of number which are the matters raised in this particular amendment. It is only the matters that are in the amending Bill that may properly be the subject of further amendment.
Section 1 agreed to.
SECTION 2.
An Leas-Chathaoirleach
It is suggested that amendments Nos. 2 and 3 be discussed together.
I move amendment No. 2.
In subsection (1), line 24, to delete "twelve" and substitute "seven".
I have two amendments down. One is for the purpose of changing the time-limit of twelve years to seven years and the other is for the purpose of changing it to ten years. The case I should like to make is that twelve years is too long. I should prefer a seven year period. We are all supposed, in fact, to be renewed in a period of seven years. It would seem to me that this would be an equitable maximum period of time for which a ban would apply. All of these, of course, can be reconsidered under this very Act at the end of this period of seven years. But if the House does not agree to the reduction of the twelve year period to seven my hope would be, and I am supported by other Senators in that, that at least the period of twelve years would be reduced to ten. I would hope also that the Minister might agree to this. We are approaching the period during which the decimal system will be introduced into our currency and weights. Why not introduce it into the period for which a book will be banned? Ten years is a nice easy period to calculate. A book banned in 1967 is banned until 1977. It renders the operation in practice a good deal easier. It is, in fact, half the period that the Minister first mentioned and it would seem to me reasonable then to ask the Minister and the House to agree. I would prefer the period of seven years but if they do not agree to that to agree at any rate to reduce the twelve years to ten.
I should like to support this proposal. In putting down this amendment and, indeed, they were two separate amendments both to the same effect which have been joined together here, I had several things in mind. First of all, I thought I would like to probe a little further the reasoning which led the Minister to twelve years. Is it purely a question of a compromise or is there any kind of rational basis for it? Of course this is not a thing we would be precise about in any real sense. Nevertheless, we have to apply our judgment as best we can to what is a reasonable period during which contemporary standards may have changed requiring reconsideration of decisions of this kind. Ten years was the period that was suggested to me certainly by a number of people who have some expertise in these matters. It is a period that was suggested in the Dáil and it has a further rationale in this particular case because I think I am correct in saying the present Censorship Board, the present membership, took office and the previous board was replaced very largely, just ten years ago.
The House may recall that the chairman and other members resigned at a certain point in 1957 and there was a turnover in the board, a majority of the members changing in that year. It is certainly true that since then the decisions of the board, while one may argue about them and there are cases I would disagree with, have not given rise to anything like the volume of objection and protest which was the case previously. It seems logical, therefore, that if we are going to pick a period of years which is approximately of the order of ten to twelve we should make a clean sweep of it and pick a period of ten years, which means that all the decisions of the previous board which gave rise to these difficulties, would immediately come up for review at this stage and have to be reviewed without waiting a further three years for that to happen. It seems to me logical not merely because of the decimal system but because of the fact that it is just ten years since the board changed. It is a period I should like to see unless the Minister has some rather specific reason for twelve years. I think from what he said that he arrived at it rather as a compromise and I would like him to reconsider it and take into account what I have mentioned which I think is relevant, that we should relate this fact to when the board changed and since when we have had a much smaller volume of complaints about decisions.
The question of change in contemporary standards is, of course, a difficult one. It is evident—in all the debates this point has been made by some person—that while standards of morality do not change standards of reticence do and contemporary standards of reticence change considerably and at a reasonably rapid rate in modern circumstances. Looking back to ten years ago things that would not have been spoken of are freely spoken of now. I can recall in the early 1950s when a statement was issued by the Pope in relation to matters of birth control it was regarded in Ireland as being such an inappropriate subject for discussion that the statement was published in full only in two papers not connected with his religious denomination—the Evening Mail and Irish Times. Other papers more closely connected with Roman Catholicism did not carry his statement and we had to go to these other papers to find out what he said. Yet within a few years there was no difficulty about discussing these problems publicly not because of any change in moral standards in the matter by anyone, any religious authority or otherwise, but because standards of reticence had changed. The people had become more used to talking frankly and plainly about matters of this kind. The speed with which these changes take place is quite considerable. Within a very short period of years the attitude of people changes and matters which could not be printed in national newspapers become a matter of normal discussion and debate. To impose a period of more than ten years seems to be a bit excessive in the light of current events in recent years.
I do not think the difference between ten years and 12 years is important in itself but I thought it right to put down an amendment so that we could discuss this matter further, so that the point I made about the composition of the Censorship Board could be considered and so that the Minister could give us a little more of his mind on the time limitation and tell us whether on reflection he does not think now, with the guidance he has received from the Seanad, that he should come down from 12 to ten years.
This reminds me very much of fair day bargaining as to which year or period we should settle for. I have been reasonable towards meeting the point of Senators Sheehy Skeffington and FitzGerald. I have reduced the period from 20 years to 12 years. It is of course a matter on which opinions differ. It is obvious straight away that an unduly short limitation period would render the whole censorship system nugatory. I have defended the basic principle of a code of censorship run on sensible grounds. If one reduced the limitation period excessively, one would drive a coach and four through the whole censorship system. If the Censorship Board's decisions could be changed in two, three or five years the whole system would be made nonsense of.
The question is what is a reasonable time. After the debate on Second Reading in the Dáil, I considered that 20 years was possibly too long, that some shorter limitation period should be introduced to reflect the changing attitudes that have been mentioned. I was pressed to take ten years, and indeed five years was mentioned in the Dáil, and seven years and ten years have been mentioned here. On balance, I think 12 years is probably about right. The reason I was finally inclined towards 12 years is that it is already a recognised statutory limitation period. It is well known that 12 years is the prescriptive period in regard to the adverse possession of land. It is well recognised——
So is seven years.
No.
Six years for debts and 12 years for adverse possession of property.
Seven is a magical number.
On that basis I felt that because 12 has been established as a precedent, it could be transposed from that field to this field. As I have said, I was in accord with the general view in the Dáil that 20 years was too long. At the same time, I could not go too far in reducing the limitation period because as I said earlier, it would render the whole system nugatory. I struck on 12 years as being a reasonable compromise. I am easy on ten years or 12 years but I do not think there is very much advantage in going down to ten years and even Senator FitzGerald has conceded that.
It is disappointing that the Minister has not been prepared to go at least to ten years.
Eleven, perhaps.
Five.
I should like to ask leave to withdraw amendment No. 2 but I should like to press amendment No. 3 calling for a reduction to a period of ten years, which would seem to me to be much easier to handle.
Amendment by leave, withdrawn.
I move amendment No. 3:
In subsection (1), line 24, to delete "twelve" and substitute "ten".
Question put: "That the word proposed to be deleted stand part of the Bill".
The Committee divided: Tá, 26; Níl, 10.
Tá
- Ahern, Liam.
- Boland, Gerald.
- Brennan, John J.
- Browne, Seán.
- Cole, John C.
- Davidson, Mary F.
- Dolan, Séamus.
- Egan, Kieran P.
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Flanagan, Thomas P.
- Honan, Dermot P.
- Killilea, Mark.
- Martin, James J.
- Nash, John Joseph.
- Ó Conalláin, Dónall.
- Ó Donnabháin, Seán.
- O'Kennedy, Michael.
- Ó Maoláin, Tomás.
- O'Reilly, Patrick (Longford).
- Ryan, Eoin.
- Ryan, James.
- Ryan, Patrick W.
- Sheldon, William A.W.
- Teehan, Patrick J.
- Yeats, Michael.
Níl
- Conlan, John F.
- Crowley, Patrick.
- FitzGerald, Garret M.D.
- McAuliffe, Timothy.
- Malone, Patrick.
- Mannion, John.
- O'Quigley, John B.
- O'Reilly, Patrick (Cavan).
- Sheehy Skeffington, Owen L.
- Stanford, William B.
Tellers: Tá, Senators Browne and Farrell; Níl, Senators Garret FitzGerald and Sheehy Skeffington.
Question declared carried.
Question proposed: "That section 2 stand part of the Bill".
Section 2 deals with the lifting of the ban on any book that has been banned after a period of 12 years. I think it has been well said on Second Stage and I do not want to say it again at too great length, that this is a progressive measure and one to be welcomed. This section is quite clearly in my view the best section in the Bill. I should just like to say that one of the considerations which bedevils all discussions of censorship is the fact, which the Minister recognised in his opening speech, that the same book may have a good effect on some and a bad effect on others. One of the difficulties is that censorship is a subjective thing. It would be quite wrong to say that no book ever did anybody any harm. I personally believe it is quite possible for a book to be harmful and quite possible for a book to be good. One of the things this section deals with is a recognition of the fact that legislation itself recognises that standards by which we judge whether a book will do good or bad will vary from year to year, or at any rate from a dozen years to a dozen years. This has to be recognised as factual: that, as I say, the same book may have widely different effects on different people. I might say, that in general, in this Assembly I find the official reporting very accurate, but I did notice the other day when I made the point on Second Stage that other things besides literature can arouse sexual passions that when I said "the mini-skirt, for instance", in the first version of the transcript this read "the Minister for instance".
The Minister will be flattered.
I am.
I do not know whether the Minister will be disappointed to learn that a later hand had crossed out "Minister" and reestablished "mini-skirt". I do not know whether this was the hand of the reporter or the hand of the reviser. This is a recognition of the fact, however that it is not only literature which may have this deleterious or beneficial effect on people.
I am very interested also in this question of banning and of later lifting a ban. I notice that Senator Gerald Boland was once in the unhappy position for him of having to work the censorship, though, he said, he was opposed to censorship by legislation because it was unworkable. I feel that he is quite right in that. I also feel that it is a pity when we are talking about lifting the ban, and also of sometimes re-imposing it, we do not take other things also into consideration. I will refer to that under section 3. In general, I think that this section is to be welcomed. I am only sorry that the 12 years period has not been at least slightly reduced.
I should like to ask the Minister to ensure that immediate steps are taken to deal with the situation that will arise as a result of the enactment of the section. The immediate result will be that within seven days of its enactment, the printed list of banned books will disappear as completely out of date. Until something is done, then, there is nobody to know which books are banned or which books are not. I would urge the Minister to ensure that immediately an adequate up-to-date list which will include only the books that have been banned within the past 12 years will be available; otherwise customs officers and so on will presumably be in difficulties about which books are banned or not. I would not worry about the customs officers except that they might resort to the existing list to see if a book was listed on it. I hope that immediate steps will be taken to publish a proper printed list of the books which will be officially banned as from seven days after the passing of the Bill.
In view of the fact that each year we will have changes because of the 12 year period in the list of banned books, we should have, in addition, the deletions as on each December 31st, since there will be a new set of books each year taken off the list of banned books because of the operation of the 12 years period. I would suggest that immediately after 31st December of each calendar year from now on, a further list should be brought out of the books which as from that date are not banned. It is important that active steps should be taken to see that this is done in the future.
I am glad Senator Yeats raised this point because it is no harm to give the public notice that in fact the point is being looked after. At the moment a list is being prepared on the lines suggested setting out exactly the position regarding books that will remain banned after the passing of the Bill. This is for the information of booksellers, publishers and everybody concerned with the trade and for the benefit of the public generally. We will have this list circulated immediately after the passing of the Bill.
What the Senator says further about the necessity of having a revised register annually is reasonable. Again we are making arrangements for doing that. There will be an annual list.
(Longford): Could the Minister tell the House what date in a given year will the old list pass out and the new list become operative?
That is set out in the section—December 31st.
(Longford): I would prefer August 12th. The grouse shooting comes in then.
There would be no grouse left.
I hope at any rate that the main grouse against censorship will pass with the passing of the Bill. In general, I agree with Senator Sheehy Skeffington. This is really the key section in the Bill: the rest of the Bill is subsidiary. I think the section does go a long way to meet the main grievances which existed against censorship here, and that was the unlimited period of time which operated in regard to a prohibition order. This is an indefensible position and has caused, I would say, well over 90 per cent of the various complaints against the code.
I should like to ask the Minister about the procedure which would begin de novo when the 12 years has expired. Does that mean——
On a point of order, is this relevant to this section?
It has been discussed on this section and mentioned by the Minister.
I would hesitate to interrupt the Minister on a point of order but I do not hesitate to interrupt the Senator.
Does the Minister envisage any further stay by the Censorship Board on books which would normally be coming into the country after the 12 year period which are of no literary value at all but which may be on a publisher's book shelves or something like that in England or other countries?
On a point of order, surely this is not relevant to section 2.
Section 3.
I would submit that it is relevant to both.
An Leas-Chathaoirleach
It is more relevant perhaps to section 3. I should like to say that Senator Sheehy Skeffington, who had a foot in touch continually while he himself was speaking, is proving an excellent touch judge.
I did not see the flag go up at all.
An Leas-Chathaoirleach
The whistle was in my mouth.
You must have swallowed it.
I should like to ask the Minister the precise reason for choosing the date December 31st. It is, of course, the end of the calendar year, but I wonder whether he has consulted with the book trade on this subject, if books are going to be unbanned which are of some importance or literary merit. I know of schools which have problems with books they want to put on the course but cannot because they are banned, and would it not be worthwhile consulting the book trade on this point? It could be that by fixing the date mentioned, the Minister will miss the Christmas trade for a number of these books. Is it not something to consult the trade about?
I did not actually consult them on this aspect as the Senator suggested. It was chosen just as being the end of the year.
I should like to have an opportunity of saying that when I spoke on Second Reading I was speaking of my personal views. I am personally against censorship but I belong to a political Party that works in a democratic way. We have a leader of the Party, and I accepted the majority decision.
Would the Minister consider my point, which could be of some importance? It is not merely this year but every year on December 31st that this is going to happen. As books come up for review, some of them books of merit, it is a pity that they should be kept out in that way because of a date fixed in an arbitrary fashion instead of a date that would be more convenient to all concerned. It is a pity that they should be ruled out in that way or decisions taken and arbitrarily fixed in this way, if a somewhat different date would be more convenient for all concerned. It is just a matter for some consideration.
I will think about it.
(Longford): May I say that I think the case made by the Senator for a change is the worst, in my view, the Senator could have made, because he has confused it with the Christmas trade? It is quite obvious that books which have been banned for 12 years and released in a given time, shall I say, borderline cases in the opinion of some people and possibly in the opinion of many people, simply to cater for a commercial trade at Christmas is hardly fair to the true spirit of Christmas.
I only gave it as an example, as a possible reason.
(Longford): Further, as good a case can be made by me in that if somebody wanted to set up a school for scandal, 12th August would be the better date; schools usually open around 1st September.
Another reason for this is in relation to school courses. There are books like "1984" which schools would like to put on their courses because of their great literary merit. I am not unaware of this problem, and in a case like that, it might be convenient to have unbanning occurring in such a way that they could come in in time for the school year.
By the time they are finished with all the sacred cows——
I should like to say another word on the other side with regard to this. From the point of view of general convenience, particularly with regard to members of the public, there are great advantages in having the calendar year system. This way one would have, I hope, an annual list completed for 1966, 1967 and 1968, and so on. Then, everyone would know that the new list would come into force on January 1st and there would be no problem. If there were a date like December 1st or November 15th, there would be an element of confusion as to exactly when the new list came into force. There are great advantages from a general point of view in having it on January 1st.
I take Senator Yeats' point. I am not pressing it. I merely want to know if the Minister has given any thought to what was the best date. If there are no strong reasons either way, 31st December, obviously, is as good as any.
Question put and agreed to.
Business suspended at 6.05 p.m. and resumed at 7.30 p.m.
SECTION 3.
I move amendment No. 4:
In subsection (1), line 37, before ", under" to insert "after due re-examination".
The purpose of this amendment is to ensure that the Censorship Board, if it decides to re-impose a ban on a book which has had the ban removed by this automatic process under section 2, shall be obliged to re-examine it and not merely just decide to re-ban it. We already have the Minister's assurance that even with the section as it stands there will be an obligation on the Board to re-examine. I should like to quote what the Minister said the last time we debated this, in volume 63, No. 6, at columns 479-480:
Senator Sheehy Skeffington suggested that the Board could re-ban without re-reading. That is not the case. The Senator was concerned in case the provision in section 3 did not place the obligation on the Board to re-read the book concerned. That is not so. The 1946 Act provides that the Board may only make a prohibition order, having duly examined the book. This requirement still stands in regard to any such examination.
My feeling—although I am sure the Minister is correct in this—is that it would not do any harm to have the words "after due re-examination" included in the actual Bill, because section 3, as it stands at present at subsection (1) reads:
The Censorship of Publications Board may, under section 7 of the Act of 1946, make a further prohibition order in respect of any book in respect of which a prohibition order has ceased or will cease to have effect by virtue of section 2 of this Act.
This is the section, then, which permits the Censorship Board to make a further prohibition order and, although it does refer to section 7 of the Act of 1946, it does not make it quite specific, as the Minister did in his speech, that they can only do this after this due re-examination. I would rather fear that unless we include these words, there might be some argument as to whether section 3, as it now stands, necessarily implies full re-examination. I should feel happier, therefore, if these three words "after due re-examination" could be inserted in section 3.
I hope the Minister will accept this amendment. It removes all possible doubt in the matter. We are in one mind as to the meaning of the section but I think it would be advisable to make crystal clear exactly what is the procedure.
I do not think the amendment has any meaning at all. Re-examination might mean looking at the cover, might mean looking at the title; I do not think it entails any examination at all. "Re-reading" might be a better word but, even then, I do not think you could compel the Board to re-read in detail.
May I point out that section 7 of the 1946 Act uses the phrase "having duly examined the book"?
Not re-examined.
I am not really concerned with what section 7 of the other Act says; I am concerned with this amendment, and, if you like, section 7 does not mean a lot in that way.
I suggest that in conjunction with section 6 (2) of the 1946 Act, it means an awful lot: it sets out in great detail what the Censorship Board shall do when examining a book, under five headings.
I suggest that they should read the books. I shall make my own remarks on the amendment. It is partly a point I was raising on the previous section that Senator Sheehy Skeffington is probably trying to get at. A list, the Minister said, will probably be published now of books which are the only banned books now in existence, that is, those banned within the last 12 years. My point, which I attempted to raise on section 2—and which I think was partly relevant thereto—is that the customs officials or any private person might get a list of banned books and say: "Well, these are the only banned books relevant; I can bring in any of the others", or a publisher might say: "There are a lot of copies of that book on the shelf not very saleable in this country; I will send them over to Ireland".
Is there any way of stopping that except by the Censorship Board deciding previously that a great many books are of no literary value and straightaway putting them on the list again? I am sure the board would be quite capable of doing that. A great many books have been banned in the past. I wonder what would be the position of a private person or a publishing firm bringing in certain books that had been banned here prior to 12 years ago and trying to distribute them in this country. Will they be stopped at the customs post and sent to the Censorship Board or will the customs official automatically look at his list and say: "This is not on my list and it is a very recent list only published last week. I must let it in"? I wonder has that point been considered?
Perhaps the Senator's remarks would be more appropriate on the section rather than on the amendment.
It is difficult to know.
Quod dixi dixi.
It seems to me that the amendment is adequate for the purpose because the word "re-examine" which is used here must be read in the context of the Act and the Act without defining "examine" does make the requirement that: "The Censorship Board shall examine every book duly referred to them." The word "examine," therefore, must have developed some kind of meaning in the board. There is also the point that they are required to have regard to a number of matters which it would be difficult to have regard to if they did not read the book including the general tenor of the book, the language in which it is written, the nature and extent of the circulation which, in their opinion it is likely to have, the class of reader which, in their opinion, may reasonably be expected to read it and any other matter relating to the book which appears to them to be relevant. I think it is obvious, therefore, that examination as required by the Act involves reading the book and the word "re-examine" in the amendment must, I think, be taken as requiring them once again to carry out this process laid down in the Act in the same detail. I submit, therefore, that the amendment is clear and concise, conveys a specific meaning and is adequate for the purpose.
I would also agree with the proposer that it is necessary to make sure that the books are examined because the basic process of banning a book does require examination and this is spelled out. The Act does not say the Censorship Board may ban a book. It says, first of all, they shall examine every book and, secondly, that having examined the book and having certain opinions, they shall prohibit sale and distribution. If we allow the Bill to go through in its present form there is no specific requirement for them to examine it. It says they may "make a further prohibition order in respect of any book in respect of which a prohibition order has ceased or will cease to have effect". There is nothing there to say that the process of making this prohibition order must be after re-examination of the book. This may have appeared to the draftsman to be implicit but it is not explicit. I feel that in its present form the Bill could be read by the board as giving them power to ban a book without re-reading it on their recollection of what they thought of the book when they last saw it or perhaps in the light of statements by the staff of the board as to the views that were held on the previous occasion. I think, therefore, it is necessary to have this amendment and that the amendment will do what its proposers want it to do—read in conjunction with the use of the word "examine" in the Act itself.
I feel that the section itself is very much in plain English and the relevant portion as far as fitting in the Bill with the existing law in regard to censorship is the introduction to section 3, subsection (1): "The Censorship of Publications Board may, under section 7 of the Act of 1946, make a further Prohibition Order in respect of any book in respect of which a Prohibition Order has ceased or will cease to have effect by virtue of section 2 of this Act." That quite clearly relates section 3 of the Bill to section 7 of the 1946 Act, which again places the obligation on the board. Section 7 reads:
If the Censorship Board, having duly examined a book, are of opinion...
It, therefore, places clearly the obligation on the board to duly examine a book before they come to an opinion about it. You have here a direct reference from section 3 of the Bill to that particular section of the Censorship of Publications Act, 1946. Therefore, I think Senator Sheehy Skeffington's amendment is superfluous. It is bad legislation to duplicate unnecessarily. I do not see any point in doing it in this case. I am quite convinced that once you have the introduction which you have here to subsection (1) of section 3 relating that specifically back to section 7 of the 1946 Act there is no further need for the amendment suggested by Senator Sheehy Skeffington. The whole spirit and the terms of the amendment are amply covered by the section, particularly by its relation back in very specific terms to section 7 of the 1946 Act.
I wonder if the Minister is quite right. I would have thought that section 5 of the Bill should read: "This Act may, be cited as the Censorship of Publications Act, 1967," and subsection (2) therefore should read: "The Censorship of Publications Acts, 1929 and 1946 and this Act may be cited together as these Acts and shall be construed together as one Act". The Minister says the phrase "shall be construed together as one Act" is in the Bill. I was amazed that it was not included and therefore, I submit, Senator Sheehy Skeffington may have a point.
The point would have validity if we had not the specific reference we have in subsection (1). If we had section 5 without a specific reference to section 3, there would have been some validity in the point. The fact that we have in section 3 (1) a specific reference to section 7 of the Act of 1946 makes its watertight.
I should like to deal first with what Senator Cole said about re-examining. It has been made clear by Senator FitzGerald that if one wants to amend the section, one must use the word in the original Act to which this section refers. Section 7 of the original Act provides that the Censorship Board, "having duly examined" the book, and so on, "shall by order prohibit such sale and distribution". It seems to me, therefore, that the phrase that should be used is "after due re-examination".
First of all, I should like to know does the Minister feel that any harm could possibly be done by inserting the words "after due-re-examination". They mean explicitly what he says there is no need to say because it is there by implication. Can they do any harm? I suggest that they cannot. Their omission, on the other hand, might do harm because without these words section 3 (1) reads:
The Censorship of Publications Board may, under section 7 of the Act of 1946, make a further prohibition order in respect of any book in respect of which...
The Minister contends that this can be read only in the light of section 7 of the 1946 Act, which says they can prohibit a book "having duly examined it". But a member of the Censorship Board might contend that since this applies only to books already prohibited, he is entitled to say: "We have already examined the book. The Board examined the book in 1948. Therefore, we can make a prohibition order, ‘having duly examined' the book, because we did it in 1948 and there is here no stated obligation on us to re-examine it. We fulfilled our duty because (a) this is a book we think should be banned and (b) we ‘duly examined it' in 1948 or 1952, etc., and, therefore, there is no obligation on us to re-examine it, despite what the Minister said in the Seanad in 1967." We must, therefore, specifically require the Board to re-examine it, because otherwise they can contend that the book had already been examined.
Surely "make a further prohibition order" meets that.
Another point is, what is a prohibition order?
I oppose the amendment on two grounds. Firstly, the Minister is right in saying that the section as it stands is perfectly clear. Secondly, I refer Senator Sheehy Skeffington to section 1 where "prohibition order" is defined as "an order under section 6 of the Censorship of Publications Act, 1929, or section 7 of the Act of 1946." That is a definition of a prohibition order and quite definitely anybody making an order under section 3 must have reference to it.
Where is that?
May I be allowed to finish? Senator O'Quigley can come back later. One thing at a time. It is laid down in the Bill in section 1 what a prohibition order is and it seems to me that anyone making a prohibition order under section 3 must have regard to the fact that all that can be done is to go through the machinery laid down in the other two Acts. I do not object very strenuously to the other points in regard to the amendment, which may be due to bad draftmanship. However, I suggest the amendment would weaken and not strengthen section 3. I do not like the word "re-examine". To me as a layman, there is something a great deal weaker in it than in "examine", something more perfunctory: you are taking something somebody else has done to see if what the other person has done is right.
The only safeguard authors and others connected with the book trade have is that the Censorship Board should take a book, forget completely that the book has been banned before, look at it as something new and decide thereby whether they want to ban it. "Re-examine" to me means that they can go back, subconsciously or consciously, on what had been done by previous boards and ask: "Were those boys right? Perhaps they were." I would much rather not have a word like "re-examine" put in. I should prefer to have it definitely laid down that the Board must go through the present machinery de novo as set out in the other two Acts.
I do not see what a Censorship Board would do except examine a book in such a way as to satisfy them. The word "examine" in the 1946 Act, I regard as something on the same lines as "after consultation with a Minister." I do not know what consultation with a Minister is. The Censorship Board must in some way examine a book, and putting it doubly, as Senator Sheehy Skeffington's amendment does, does not get us any further. It is just a waste of time.
Senator Sheehy Skeffington is not always wrong.
Hear, Hear.
He is quite right in what he is seeking to do hear because in section 2 we are talking about prohibition orders and in section 3 we are talking about further prohibition orders, but we do not define or attempt to define what a prohibition order is. Senator Yeats said it is defined and he refers to the definition content which refers us to the Censorship of Publications Act, 1946.
Look at section 1 of the Bill.
That is an order made under section 6 but an order made under section 6 is not defined. In order to get the definition of what a prohibition order is, when you use it in this Bill, you must have recourse to section 1, the definition section, of the 1946 Act which is not being construed and is not part of this Bill.
Section 1 of the present Bill.
Section 1 says that a prohibition order means a prohibition order made under section 6 of the Censorship of Publications Act, 1929 or section 7 of the Act of 1946. If you wanted to do it properly, the appropriate way of dealing with this is by having the two Acts construed together as one and, having done that, you get over all your difficulties.
I am not sure you get over all your difficulties but you get over some. I do not think the Minister has answered the point which Senator Sheehy Skeffington made. The initial examination made the first time the book was looked at could be held to suffice for the further prohibition order. That seems to be the only sensible interpretation of this. When you say that the Censorship of Publications Board may make a further prohibition order, you read back to section 7 which says you shall examine it. When they come to make the further prohibition order, they have examined it under section 7. That has been done all right. There is nothing to compel them to re-examine it. I could not see, if I were a member of the Board, that it would bind me in the slightest way to re-examine the book. I might feel bound in conscience to re-examine it. I do not see how the Minister can read that as requiring a further examination. I would certainly not be bound in law to re-examine the book.
I think it was Mr. Justice Lavery who often relied in the Supreme Court bench on "the plain meaning of the section". It was a phrase of his.
It is a good rule of instruction.
I must go back again to the plain meaning of the section. I am repeating myself but section 3 refers back to section 7 of the 1946 Act and that section states that in order to make a prohibition order the Board must duly examine a book. Section 2 of this Act says that a prohibition order made in respect of a book on one of the statutory grounds shall cease to have effect after 12 years.
Section 3 says that in order to look at the matter de novo, in order to make another prohibition order, the Board must go back to section 7 of the 1946 Act which obliges them to duly examine the book. It seems very plain to me.
I think Senator Sheehy Skeffington's amendment is entirely contained in that logical relationship of section 2 and section 3 of this Bill which refers back to section 7 of the 1946 Act. As Senator Yeats said, Senator Sheehy Skeffington's amendment is doing the spirit of his own ideas less than justice and the very incorporation of this would only weaken the very idea which is incorporated here, namely, that the Board will look at the whole thing in a fresh light.
The cold interpretation of sections 2 and 3 linked with section 7 of the 1946 Act is quite plain that the obligation is on the Board, if a book is referred to them, to make or not to make a fresh prohibition order, having duly examined the book in question.
On the question of whether "re-examination" makes the situation weaker, as Senator Yeats suggested, I would not accept that. I do not believe that the re-election of a Senator, for instance, is any weaker than the election of a Senator. I feel he is just as much a Senator. On the other point, I would ask the Minister, if he does not feel the necessity for specifically mentioning "re-examination", why does he feel the necessity for talking about a "further" prohibition order?
I should like to ask the Minister, if he thinks there is anything in this point about re-examination weakening it, would the answer to that not be an amendment to say that the Censorship of Publications Board may having complied again with the procedure in section 7 of the 1946 Act, or words to that effect, re-examine the book. The Minister has not in fact answered the point we made. He has not given any grounds on which to require a member of the Board to re-examine it. A member of the Board might come to him and say: "The way I am operating this is by making a further prohibition order and, as I have already examined this book 12 years ago, I am carrying out the requirements of section 7 of the Act, and having duly examined the book 12 years ago, I am now making a further prohibition order". The very use of the words "further prohibition order" in fact strengthens the case for that interpretation. It implies a kind of continuation procedure which one could carry out, basing oneself on the original examination, which had been made at an earlier stage. I can see no basis on which the Minister could argue with a member of the Board on the terms of the Bill as laid out that he must re-examine the book although the Minister may feel that such a member of the Board would be perverse in his interpretation.
Under section 7 he is required to examine the book. The book has been examined 12 years earlier. The Board have examined it. That requirement is carried out. The Censorship Board, having duly examined the book 12 years earlier, are of a certain opinion, and, having been of that opinion, they make a further prohibition order but there is nothing whatever there to require them to re-examine the book. If the Minister stands back from it—the trouble about those things is one can get very close to them—and looks at it as a plain man, he will see that there is no such requirement there and that something is needed.
I do not necessarily feel that Senator Sheehy Skeffington's amendment is the only way or the best way of doing this. There may be something in what was said that re-examination is in some way a weaker concept. Maybe the right thing is to say that they shall examine it again. Something is required. Certainly if it is the Minister's intention that they shall re-examine it—it is clear from what he said that he intends that—he has not succeeded in achieving this requirement, in imposing legal obligation on the Board to examine it again. It is left in the position where, if they wish to do so, they can validly say that the examination was carried out on a previous occasion and that they are now making a further prohibition order, being still of the opinion, on the basis of their earlier examination, that the book should be prohibited.
I said I would wait for the discussion of the section but I find that the points I should like to make have been discussed during this conversation, if one could call it a conversation, or discussion, and with your permission, Sir, I should like to refer to my points in connection with section 3, and which are relevant to the Senator's amendment. I did not intend to take part in the discussion on the amendment but I wanted to discuss the section.
It must be relevant to the amendment. That is what is important.
I have to sit down then.
The section may be discussed later.
The section is being discussed inside out and quoted during this whole conversation.
Only in relation to the amendment.
As a matter of fact, I could make a remark but I will wait for the section and we will have this all over again.
I know it is not the Senator's intention but it is a grave reflection on the Chair.
May I just say, if it adds any feather weight to the debate, that I am entirely convinced that what Senator Garret FitzGerald has said is the fact? I suppose I can read English as well as most people and I can only assure the Minister, who says that his is certainly the clear and obvious construction of the section, that we are equally certain that it is the opposite.
Is the amendment being pressed?
I find myself in sympathy with what Senator FitzGerald says, and I would feel on the whole happier with an amendment on the lines he has suggested, of the board being required to carry out the procedures prescribed in section 7 of the Act. For that reason, unless the Minister is prepared to accept this amendment, I would prefer to withdraw it and to introduce the other type of amendment on Report Stage.
I was going to suggest that I will have a look at it—as it were, have a cold look at it. I still think that sections 2 and 3 of the Bill and section 7 of the 1946 Act all tie up. That is my own view, but I will have a look at it between now and Report Stage with a view to incorporating in some amendment the views expressed here, to absolutely copper-fasten it, though I think it is already copperfastened.
The real danger will be that the Board will say "we did duly examine it" but it was 12 years ago.
I can see that. However, I will consider it between now and Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 3 stand part of the Bill."
Speaking on the Second Stage I said that this was the section in which I was particularly interested because it provided for the continuation of censorship after the period, as the Seanad has now decided, of 12 years. The wording of subsection (1) of section 3 puzzles me still. This subsection says: "The Censorship of Publications Board may, under section 7 of the Act of 1946, make a further prohibition order in respect of any book in respect of which a prohibition order has ceased or will cease to have effect by virtue of section 2 of this Act." Who starts it? The de novo approach has been mentioned a couple of times. I wish to ask the Minister now if at the end of 12 years prohibition on a publication that publication is free for circulation to the citizens of this country, how am I or how is anybody to know that, if we do not get some information when these books are released? I do not want that particularly, but I want to know what procedure is available to the public. Will the de novo application be taken as in the original case? I understand the Censorship Acts to apply through the citizen. A citizen makes a complaint to the Censorship Board and from its finding an appeal can be made to the Appeal Board. The terminology here is not clear, as to whether it is the Board itself or the Appeal Board. What I want to ask the Minister is, when this Bill becomes law and the 12 year period has elapsed, how are we to know what books are free for publication again?
The Dublin newspapers will inform you.
Ask the Irish Times.
I have stated that I myself would take action in connection with a certain book if it were allowed for publication. How am I to know, if I am to know, if it is the Board itself that can start de novo, or will it still fall on the citizen? The question here is that the Censorship Board may do this. Why “may”? Then, who is going to make them do it? Who will make them make a further prohibition order in respect of any book in regard to which a prohibition order has ceased?
The censorship ceases by virtue of this section and then the publication is free. I want to know what happens. The Censorship Board may do something, but who is to request them to do it? How are we to know? De novo it is the citizen, and that is democracy, and that is how it has been from the start—it was the citizen who must make a complaint, which was then forwarded to the Censorship Board, which then banned the book. The author or publisher has the right of appeal, and apparently those people have not appealed to any great extent. Now this is the sequence of events in a democracy. The citizen finds something to complain about and we have, thank God, a board like this instituted to safeguard the people. I am asking the Minister if this de novo statement means that when the 12 years have expired the citizens will be aware of what books that applies to, or will the Censorship of Publications Board do it themselves automatically? I do not think they would. Therefore the onus is on the citizen de novo to start this procedure over again.
I want that clarified by the statute or by the Minister or in a section which does not at present make it clear. That is what I tried to get in, and the second subsection of this section does not matter a whole lot. My point was not relevant to Senator Sheehy Skeffington's amendment but it is very relevant to the clarification of this section and how it is to be efficacious in the operations of the Censorship Board in the future.
I should like to say arising out of what Senator Ó Donnabháin has said that I think it should be clear that all books banned for 12 years or more are automatically freed and the procedure then if they are to be re-banned follows the procedure in the 1946 Act. There is nothing changed from that at all, so that any procedure that Senator Ó Donnabháin has previously engaged in for this purpose he will use again.
But this must be done simultaneously from today and the ban must come in tomorrow. You cannot have it that way.
The ban will not come in until it is decided by the board to have a look at it, when they may reban it, but it may not be banned, because not everybody necessarily agrees with Senator Ó Donnabháin.
Agreed.
One must see that possibility. The procedures, however, are the same.
The other point on the section that I should like to make is this: we are asked to believe that in general prohibitions mentioned under this section are efficacious in combating the encouragement through literature of one deadly sin. I should like to know from the Minister whether, in view of the efficacy, apparently, of the censorship procedure in relation to this one deadly sin, he has any plans for the introduction of similar legislation dealing with the propagation through literature of the six other deadly sins, and if not, why not.
I should like to thank the Minister for meeting Senator Sheehy Skeffington and others who joined with him in regard to that amendment. It is always worthwhile arguing with the Minister, because, unlike some of his colleagues, one does sometimes get somewhere with him if one has a good case. On Senator Ó Donnabháin's point I should like to follow up what he said and clear my own mind that I am right. It is my presumption that the Censorship Board will, when these books come up to be unbanned, exercise the initiative they have under section 6 (1) of the 1946 Act to consider the question of examining books and that they will not simply sit back and wait until somebody sends them in. I suppose what would happen—the Minister might confirm that this is the idea—is that members of the staff would suggest to the board books to be unbanned which are still in print and in their view worthy of re-examination. That might be a possible procedure. Senator Ó Donnabháin has a good point in raising that.
Would you call this bureaucracy?
No; it is perfectly legitimate. I think it is right to ask on behalf of the House how it is to be done. I would not call it bureaucracy in the Seanad to assist the Board by drawing their attention in that way to books which are still in print and which in their view should be looked at. I wonder is that what is intended or how is the procedure to be worked? It is a fair question and one that ought to be answered.
A number of amendments which I tabled were ruled out of order. In respect of most of them I clearly understand why. In the light of that decision and in the light of what Senator Sheehy Skeffington said on that point when it was raised, a number of these amendments, while they have been expressed too broadly in relation to the whole process of banning of books, would be in order if they were re-expressed in relation to the re-banning process. It seems to me that while we may not under this Bill be entitled to change the definition of indecency in general, we must be perfectly entitled to apply any definition of indecency we like when books come to be re-banned. I am considering, therefore, on Report Stage, having been frustrated on Committee Stage by the extreme generality of my amendments, putting them down in regard to the process of re-banning so that when it comes to re-banning better standards will apply than do currently apply. I do not know what the Minister would think of that procedure.
It will be a matter for the Cathaoirleach.
I was about to add "and/or the Cathaoirleach." If I put down amendments which are not amendments to the Principal Act but amendments to the Bill in regard to new procedures which the Bill proposes to introduce for the first time, I would hope not to be ruled out of order but, perhaps, we shall have to wait for another day to see whether we are right or not.
I should like to ask the Minister whether he would be prepared to give us information in relation to what he is thinking up in regard to the propriety of dealing with the other six.
And Senator Ó Donnabháin's one.
Do not be too jocose.
With regard to the point made by Senator Ó Donnabháin, the procedure in regard to new prohibition orders in respect of books that automatically become unbanned will be precisely the same as that in relation to books coming for examination for the first time. A book automatically becomes unbanned and somebody can raise the matter and make a complaint to the board. The public can communicate with the Censorship Board, customs officers can refer such a book to the board and the board can examine such a book on its own motion.
How is the citizen to know that such and such a book has been released from the ban on such and such a day?
It can be implied that most modern literature will be unbanned.
That is ridiculous.
There is no change in the procedure in this respect. As I said in regard to another amendment, immediately after the passing of this Act we will circulate to booksellers and others a note on the effect of the Act, together with a list of the titles of books that were banned on the second statutory ground and, therefore, unaffected by the new Act. The initial document will be circulated immediately after the passing of this Bill. Up to date registers of published books will be published annually if possible. I do not presume to make suggestions to the board as to how they should operate but from the practical point of view they will obviously adopt some such method as he suggested in regard to the examination of books and I am sure that they will look at the register of books that have been banned and generally keep an eye on particular books. When this Bill becomes law they will be in a position to assess precisely what books they would like to reconsider.
From the practical point of view, I should like to emphasise again what I said in reply to the Second Stage debate—that 95 per cent of the books that will now become unbanned are out of print anyway. They are completely useless matter, ephemeral matter which was in circulation for a short while and then disappeared. What the board may do in practice is to examine the comparatively small number of books that have been banned and which have survived.
The Minister made one point about which I am not quite clear. He said that the Censorship Board will, after this Bill becomes law, find out which of the banned books are still in print with a view to seeing which are to be reconsidered. I am not quite clear about this aspect of the matter. Have they copies of all the banned books? If they have not, then they will be faced with the problem of getting further copies. I do not know whether the suggestion is that they should write to the publishers of these books in Britain and America and ask for copies in order to ascertain whether they should be rebanned or whether they should wait until the books reach the country as is the position at the moment, I take it.
They have the books. They have a substantial library.
Has the Minister access to this library?
This raises some complicated problems. They have a list of all the books they have ever banned. Let us take the case of a book which they consider should, perhaps, be considered again to see if it should be rebanned. One problem which seems to me to be very difficult is that one of the things they have to consider, under the Act of 1946, is the sort of circulation this book is likely to have. This may well be a book they have banned which is technically in print. How on earth are they to consider this in relation to the question of its circulation and the type of reader who will read it?
The booksellers will know that.
I am thinking of the case of a book which is not in stock in this country; it cannot be in stock in this country because it has been banned until now. There is one copy in the basement of the Censorship Board office. It seems to me that the board, strictly speaking, would not be entitled to make a prohibition order in respect of that book until supplies reach the country, even if it is only one copy. How on earth can they say that a book is likely to have a large readership, which might be affected adversely, when it is not even in circulation in the country? I think that in all fairness, and in all legality—in order to comply adequately with the 1946 Act—they should wait until these various books which are still in print in fact do reach the country.
In relation to this section, which permits the reimposition of a prohibition, I should like to say again that to get from the Minister an explicit recognition of the fact that in relation to the six other deadly sins, for all practical purposes, censorship is a totally useless procedure.
It may comfort the Senator to know "The Seven Deadly Sisters" was banned in 1948.
I am making an open confession in this matter; I am not an expert on the seven.
The implication of this is very grave. The suggestion is that the Minister is an expert on the one he is trying to ban.
I said seven, not six.
Nevertheless it would appear to me that the Minister, by implication, is saying: "It is a lot of nonsense to say you can prevent the encouragement of these sins through books; we recognise that it is complete nonsense in relation to six and, if we could tell the truth, it is nonsense in relation to the seventh also."
The Senator takes pride in being a Member from Trinity College.
Yes, certainly.
Question put and agreed to.
Sections 4 and 5 agreed to.
Title agreed to.
Bill reported without amendment.
Report Stage ordered for next sitting day.