Wednesday, 5 June 1929
Seanad Éireann Debate
This amendment, perhaps, is not technically consequential, but it does follow, I think, as a reasonable consequence on the reduction of the membership of the Board from nine to five. In the Bill, as originally printed, the number of the Board was to be nine. Sub-section (3) of Section 5 reads: “The Board may act notwithstanding one or two (but not more than two) vacancies in their membership.” It would seem to me, and I think to the House, that a Board of five should not be competent to carry on if there are two vacancies in its membership. Consequently the amendment which I have put down is to bring the Bill in this respect back to its original form —as it was printed in the first instance. As the Bill was introduced in the Dáil, the Board was to contain five members, and the Board would then be able to act notwithstanding the vacancies in its membership. The effect of my amendment is to bring the provision of this section into the position in which it was when the Bill was introduced by the Minister.
Mr. Wilson: The effect of this amendment, if adopted, would be to cut across the arrangement arrived at on the Committee Stage of the Bill in regard to the constitution of the Board. It was then decided that if the Board consisted of five members, four of them should agree with  regard to the prohibition of a book before a book could be prohibited.
Mr. Wilson: The arrangement that we arrived at on the Committee Stage was that if three members of the Board were unanimous in their verdict that then a decision of the Board could be carried into effect. If the Senator's amendment is carried the Board cannot act if there is more than one vacancy in its membership. How could a Board of three act? I take it that if this amendment is carried it will cut right across sub-section (6) of the next section.
Mr. Hooper: As the mover of the amendment referred to by Senator Wilson, I would like to point out that the proposition is not as he states. It is provided in that amendment that if three members of the Board are unanimous in respect to a complaint that they should be able to present an effective report, but it does not mean that the Board can act if there are only three members of it. There might be a normal Board of five with one vacancy, leaving four members of the Board still to act. They may all get a book to consider, but only three of them may send in a report on the book. The purpose of the amendment was to secure that these three would have to be unanimous before a recommendation would be effective. Senator Johnson's amendment does not, in my judgment, alter that amendment at all.
Mr. Fitzgerald-Kenney: I would suggest to the House to accept the amendment. As Senator Johnson has pointed out, this is not strictly a consequential point at all, because the Board, if it had three members, could still function. The question is as to whether a Board of five should carry on even for a short period when there are two vacancies on it and only three persons able to act. I suggest to the House to accept the  amendment, because I think the Board should never have more than one vacancy.
Mr. Brown: There is nothing in the Bill which compels the Minister to fill up a vacancy on the Board within any particular period of time. With a Board of only five, it is most important that even a single vacancy should be filled up as quickly as possible. There is nothing in the Bill to do that. I have no doubt that is the intention of the Minister himself, that it is most important that the small Board should not be left in the position of having a vacancy on it unfilled for any considerable time.
The matter dealt with in this amendment is one that perhaps could be more appropriately dealt with in the regulations, which the Minister will have to draw up for the guidance of the Board. If I have an assurance that these regulations would contain a provision of this kind I would not be anxious to press the amendment. But we are in a difficulty inasmuch as we do not know what these regulations will be. That being so I think it is important that this point should be raised on the present stage. What I am anxious to secure is that the Minister shall be placed in possession of all necessary information with regard to the proceedings of the Board in respect to a complaint made. I am anxious to secure that in the case of a report from the Board recommending the prohibition of a book, he should know exactly how that decision was arrived at: whether it was a unanimous decision of five, or a decision of four against one, or three against one, or whether it was a unanimous  decision of the only three members acting. Similarly, I would like him to know, in the case of a complaint having been turned down by the Board and the Board refusing to make a recommendation of prohibition, how that decision was arrived at. At present the Bill seems only to contemplate one kind of report, that is a report recommending the prohibition of a publication. There is no mention of any other kind of report in the Bill. I think that in the circumstances the minutes should be before the Minister at the time the report reaches him, because we must remember that even when a report recommending prohibition is forwarded to the Minister, he still has a discretion as to whether he will give effect to that recommendation or not. I think that when he comes to exercise that discretion, it is desirable that he should have all the information necessary to help him in the matter.
Mr. Dowdall: I wish to oppose this amendment as strongly as I possibly can. I presume that when the Minister appoints members of this Board he will do so having full regard to their qualifications, their fitness and knowledge, for the positions to which they are nominated. It is, as Senator Hooper says, a fact that in the event of those members sending on a recommendation condemning a book it is within the option of the Minister not to put that into force.
Mr. Dowdall: That is so, of course, but it is desirable that the Executive Government or the political chief at the head of a Government Department—I do not say that in any offensive way whatever, because you must always have in these offices political chiefs— should be divorced as far as possible from the work of the Censorship Board, and that the members of it should be placed in an independent position. They should be put in an independent position so that they will be free to exercise their judgment on the complaints submitted to them. If this amendment were carried  it would to my mind vitiate the spirit in which this Bill should be administered. In my view the Board should be free to control its own procedure. They are really being put, in a way, in a judicial office, and as such should be as independent as possible. I do not think it would serve to make them independent if they had to give reasons for everything they do to the Minister, who in all probability would not be as well qualified to exercise the functions which the members of the Board will be appointed to exercise or to carry out the duties which they will be appointed to discharge.
Mr. Douglas: I do not think it is a matter of very much importance whether or not the actual minutes of the Board are forwarded to the Minister. While I agree in the main with Senator Dowdall, I do not think that the actual seeing of the minutes by the Minister will have very much effect, nor do I think it will achieve what Senator Hooper thinks it will. I do not think that the minutes will give any detailed reasons as to what was in the minds of the members of the Board.
Mr. Douglas: I appreciate that. The minutes will probably not contain such reasons at all. My principal reason for rising is to ask that the Minister when dealing with this will make clear a point raised by Senator Hooper. I take it that there are two kinds of reports, not one, as the Senator suggested, outlined in the Bill. One is that when a complaint is made about a book or a periodical it should be submitted to the Board. The Board will make a report to the Minister if they are of opinion that that book or periodical should be censored. That report must be, as I understand it, assented to by three, and not dissented from by more than one. You have two principles in that, the assent and the possible dissent. If two dissent the assent of the three would not be sufficient to have a report recommending the  prohibition sent to the Minister. There is also another possible kind of report, and that is one recommending the withdrawal of a book from the list—the withdrawal possibly in partial form. It may again be submitted. A newspaper perhaps which has been censored might change its character, and as a result its name might be withdrawn from the prohibited list. I take it that the report withdrawing the prohibition in that case would also have to be assented to by three members of the Board, and not dissented from by more than one. I think that this cuts both ways. As far as the actual amendment is concerned, I do not think it does very much one way or the other.
Mr. Johnson: I would like to emphasise a point which I think vitiates some of the discussion. Sub-section (2) of Section 6 makes it clear that wherever a book is submitted to the Board by the Minister the Board is bound to make a report of one kind or another. It is only when a book is condemned that a report has to be made.
Mr. Wilson: If they did not make the report the Minister would naturally ask what had happened. When a complaint is made by the Minister the Board has to adjudicate on that complaint, and it has to say “yes” or “no.” Otherwise, the Minister's files would be always open in his office, and would never be closed if there was to be no reply.
Dr. Gogarty: Surely this is a departmental matter? One might think from the discussion that the public were being defended, but it is merely a matter between the Minister and the Board. Whether the Minister requires a report or not, as far as the general public are concerned the thing is superfluous. The author is not entitled to an appeal in what is tantamount to a confiscation of his private property. My difficulty is, what is the value of the report to the country or to the people concerned?
Colonel Moore: Although it may  not be stated exactly, the fact of referring to the Minister means referring to the officials of the Minister. What the amendment really means is transference of the final authority from the Board to the officials of the Minister, I think that is very undesirable. I agree the Board ought to be entirely independent, and not be too much bound up with the Minister, who has, of course, the final say in the matter.
Mr. O'Farrell: The question of submitting minutes and making a report are two quite different things. The report is merely the final decision of the Board, whatever that may be, and the minutes are a record of the proceedings by which that report was arrived at. It would contain the proposals, the amendments, and so forth, and show how members voted. I would strongly oppose any such proposal. If I were a member of the jury I would strongly oppose a submission to the judge or anybody else, of the names in the case of disagreement, as to how members were prepared to vote. I think the members of the Board have a perfect right to regulate their own procedure, and merely make a report saying there are three or four in favour of a prohibition, for instance, and so many dissenting, and so on. The object of the amendment, as admitted by the mover, is so that the Minister will be like a schoolmaster with his stick, standing over the Board to see how they voted. If the individual members of the Board do not vote to please him, or as his advisers advise they should vote, then he could change the Board.
Mr. O'Farrell: The Senator did not say that, but the only inference that could be drawn from his remarks is that the Minister should be always fully acquainted with how members conducted themselves, and for that purpose the minutes must be submitted to him. This is to be a voluntary Board, and no self-respecting member of the community would act under circumstances of that kind.
Sir Thomas Esmonde: I do not agree with the Senator who has just spoken. I do not think the Minister for Justice, if this amendment is carried, will be placed in the position of a schoolmaster. What I am thinking of is the position of the Minister himself. I can speak on this subject with an open mind, as I am never likely to be a Free State Minister. Suppose any member of the Seanad were a Minister for Justice and were entrusted with the very responsible business of censoring literature, surely it would be of great assistance to the Minister for Justice if he were able to know the views of his Board of Censors? I think, in the Minister's own interests, this is a very good amendment, and I will vote in favour of it in the Minister's interests.
Mr. Hooper: There seems to be a misconception in the minds of Senators who have spoken against the amendment. It must be remembered that for good or ill the Bill does provide that when a report reaches the Minister he is not bound to act on it. He has still discretion, and unless Senators want to remove that from the Bill they must bear that fact in mind. My amendment is intended to help the Minister when he is exercising that discretion by giving him information regarding the division of the Board, if there is a division in respect of any complaint. I do not ask that the reasons that animated members of the Board should be given to the Minister. Neither do I ask that any information should be given as to how the members of the Board voted one way or the other. My idea is that these minutes would disclose in respect of a certain complaint that a certain number of the members of the Board voted one way and a certain number another way. For instance, in the case of a Board of four, three might be in favour of prohibition and one against.
The Minister himself might have some knowledge of the book, and he might come to the conclusion in that case he would like to have further information and get a fifth opinion,  or he might think, having read the book himself, that he would not wish to be bound by the opinion of the Board. That discretion is with him whether we like it or not. Taking that for granted, I say it is desirable he should have this information. There must be some regulalations governing the procedure of the Board, and it seems to me to be a very natural thing that the Minister would put down as one of these regulations a condition that the Board would report to him on a point like this. As I said in the beginning, if I had any assurance that the regulations would cover what is intended by the amendment, I would not press the amendment.
Mrs. Wyse Power: I do not think we have stressed enough the care that should be taken for maintaining the independence of the censors. I do not think censors would be found willing to act if they know their names are to be returned as to whether they were for or against prohibition in every case. I am a member of the Film Censorship Board, which has a duty somewhat similar to that with which the Censorship of Publications Board will be entrusted, though it is not as important. There is no such thing as recording the names of the censors who are for or against the production of a film. In fact, the Board at an early date made a strong protest against any such record being put on their minutes. I believe that is right, for I think the independence of the censors is very essential. I think the Minister will know all about it, and about the report, but I object to the names of the censors, whoever they may be, being recorded as being for or against any book, no matter what it is.
Mr. Barrington: I rise to ask for information. I cannot find a provision in the Bill to enable a Minister to get any information as to whether the requisite majority have voted either for or against a proposition before the Board unless he gets the minutes. How is a Minister to satisfy himself——
The McGillycuddy of the Reeks: I think if the House looks at Section 20 it will see that the amendment as well as the discussion upon it, appears to be superfluous, for the Minister can make any rule he likes, and it has to be laid on the Table of the House afterwards. If the amendment is proceeded with it should be definitely laid down whether the minutes should include the names or otherwise.
Mr. Brown: The Minister could make an amendment under Section 20 which would have the effect of disclosing to him what number of persons had assented or dissented, and their names. The Minister in this case is really a Court of Appeal from the Board of Censors, and as a Court of Appeal he ought to get the information for himself. I do not see that he can avoid reading the book. I do not think he ought to be in any way influenced by the Board of Censors, or by who went one way or the other when the book was being considered by the Board. It should be an independent judgment both by the Board and by the Minister.
Mr. Comyn: I agree with Senator Brown. It seems to me that this Board will be a judicial or quasi-judicial Board, and I think it would be quite wrong it should be compelled to give any information to the Minister as to the course of their proceedings. I am quite satisfied that if the Minister did purport to make regulations requiring them, or compelling them, to supply minutes of the proceedings that these regulations would be ultra vires. I am, therefore, opposed to this amendment, and I think it ought not to be carried for the reasons stated by Senator Mrs. Wyse Power, who has experience in matters of this description as a member of a Film Censorship Board. I think we ought to  be guided by her in this matter and not accept the amendment.
Mr. Fitzgerald-Kenney: I ask the Seanad to reject this amendment, because I think the Board of Censors ought to be an independent body, and to exercise their judgment themselves. I do not see what advantage would be derived from the sending in of the minutes, but I would like to point out that before the Minister makes an order condemning a book it would be necessary for him to see that the provisions of the Act are being carried out, and it would be necessary for him to ascertain in the report which reaches him the number of censors who have condemned the book. Suppose three out of four had condemned the book, it would be necessary in the form which he receives to set out, that such and such a book was considered by the Board of Censors, that three of those present considered the book should be censored, and the fourth that it should not. That information the Minister should have. If four out of five take a certain view, or if the five are unanimous, it is exactly the same. If the report that comes to him shows there is not the necessary majority then, of course, the book is not condemned. You cannot, as Senator Douglas has said, lay down any strict rules as to how persons must vote.
In the case of a book not condemned what you must look at is how the book is voted on. If there is sufficient to condemn it, it stands condemned, but if not, it stands uncondemned. The Minister must have all information before him as to how the censors were divided. It does not follow he knows their names. He need not necessarily know each member voted, but he must know how the division went. Otherwise, he would not be justified in condemning the book, for before he condemns a book he must know the provisions of the statutes have been carried out. I do not think the Minister need require the minutes. Further, I think they would be worthless, because they would simply show him how the Censor's  Board was divided, or else they would be interminably long, showing how this passage and that passage was debated, and that some said a particular passage was objectionable, and others that it was not. It would be an impossible situation, and it would mean very heavy clerical work. That, of course, is only a mechanical objection, but I do not think it is in itself advisable the Minister should know all that.
I cannot agree with Senator Brown that if the Minister gets a unanimous report of five members that the book is objectionable that there is any obligation on him to read that book so as to satisfy himself. That is not in the framework of the Bill. The way we expect the Bill will work, that is the normal case, is if the Board condemns a book it will stand condemned, and it will be only in abnormal cases the Minister will reverse the findings of the Board.
Mr. Hooper: As long as we have that express assurance the purpose of this amendment has been achieved, and I ask leave to withdraw it. I disclaim any intention of asking for the names of members voting, or for information as to the reasons why a book was condemned or otherwise. I have made that disclaimer before, and it is rather surprising that following it Senators should still continue to speak of it as my intention.
Just now Senator Gogarty said that, as the Bill stands, the author or publisher of any book which was the subject of complaint would be tried in secret. I am sure it is not the wish of the House that that should operate to that extent. The object is to ensure that the author or publisher shall receive notice of the fact that a complaint against a book in which they are interested has been made. I think the Minister promised this would be part of the rules. Am I wrong?
Sir John Keane: I have the official record here and I will look it up before I come to the further amendment. In any case, it is only reasonable that an author or publisher should have notice. When this point was raised before in another form the objection appeared to be that the author might be resident in America, and that it would be quite impossible for him to be summoned in time to appear before a Board of Censors to give an explanation of his book. That argument appeared to weigh, but I think the whole of the Seanad were in favour of the principle that an author should be heard before an unfavourable report was made. I realise the physical difficulty in regard to an author being summoned from America being able to appear in time before the Board, but I think it is at least reasonable he should receive notice of the complaint, and especially for this reason, if a book is liable to be prohibited it will obviously affect the commercial aspect of the transaction. It is very unfair that while a book is being tried in secret the publisher should have no opportunity of regulating his stocks in the country where the book is liable to be prohibited. Even if he cannot be heard in defence of his book he should at least receive such a notice as will enable him to take precautions to minimise his loss. If a book is liable to be prohibited obviously a publisher would reduce  his stocks in the country. I ask the Seanad to accept this as a reasonable amendment.
Mr. Comyn: The effect of this amendment would be to prevent the operation of the Statute altogether. Senator Sir John Keane says that some of the authors may be in America. I may add that some of them may be dead. It would be quite impossible to carry out the Act if this amendment is inserted, because you will have, before you went into the consideration of the book, to serve a notice on people whose addresses were unknown to you. That would be quite impossible. I think Senator Sir John Keane's recollection is not quite correct when he says that the Seanad, or any great body of opinion in the Seanad, was of opinion that the author should be heard. My recollection is that the Seanad distinctly and by a overwhelming voice decided that the author should not be heard.
Mr. Comyn: That it was not mandatory on the Board to hear an author, and I think there are very good reasons given for that, because instead of being an advisory Board, as is now contemplated, the Board would become a battle-ground as between the author and the members of the Board. Moreover, if an author was heard he would have the opportunity of knowing what were the opinions of the respective members of this advisory Board, and having such an opportunity he would be in a position to launch against the individual members what I described on the last occasion, and what I repeat now, will be a campaign of calumny. You would get no man to act on an advisory Board on that condition, if they were to be exposed to dangers of that description. I think Senator Sir John Keane must see the force of some of the observations I have made. There is the absolute impossibility of serving a notice on a man who is dead, or on a foreign author, or on an author  whose address is unknown. Senator Douglas in a later amendment is more circumspect. He appreciates the difficulty that arises. I think Senator Sir John Keane's amendment ought not to be accepted.
Sir John Keane: I fail to see what the remarks of Senator Comyn have to do with the amendment. The Senator dealt with my amendment as if it gave an author or publisher the right to appear before the Board. The amendment is merely to try and ensure that the author or publisher shall receive notice. In the case of a clever lawyer, as Senator Comyn is, I can quite understand the difficulty he raises. The arguments he used would also apply to notices as regards income tax assessments. The person on whom notice is served might be dead. I notice that the Senator, with all his ingenuity, did not deal with the case of an anonymous author. I wonder he did not think of that. Obviously, if you want to make a thing ridiculous you can do so. If the House wants to do it it can be done. If an author is dead he is dead, and there is an end of it. As practical men we know that 99 per cent. of the notices sent out arrive. If the principle is accepted the draughtsman could put it in proper form, and where the principle is not clear the Minister could make it clear in drafting. The Senator did not deal with the argument that you are possibly placing a very serious commercial loss on an author or publisher by reason of the fact that you do not give notice that a complaint has been registered against him. All the amendment asks is that such notice should be given.
Mr. Dowdall: There is certainly an aspect of this by which Senator Sir John Keane is influenced— namely, the publisher would take the precaution of not increasing his stock if he gets notice, and, may I point out, that if a publisher has in stock a book which he thinks may be found objectionable, he may do serious injury to a great many booksellers up and down the country by  forcing the sale of it on them, and letting them hold the baby, as it were. As the lesser of two evils, I think it is better that one individual should suffer rather than a number should suffer.
Mr. Fitzgerald-Kenney: I should like to point out to Senator Sir John Keane that Ireland is not the only book market in the world, and that if there are books in this country which are prohibited here, there is nothing to prevent the bookseller making them up in a parcel and returning them to the publisher, who can dispose of them in other markets which have not such a high standard of morality. I would like also to point out to him that this amendment would not achieve its purpose, because he asks that as soon as the Board receives a notice it should send it on to the publisher. I take it that when the Board receives notice they will inquire into the book. Of course the Board must act as a board. If they meet and consider the book, they are then to send notice to the publisher. There is nothing in the amendment to say that they shall stay or stop deliberations, and in most cases the deliberations would be over and the publisher would receive notice—“Your book is being considered,” probably a day or two after—that is, if he were a foreign publisher—the verdict had been entered up by the censors, so that I do not think the amendment would in any way achieve its purpose, and I do not think that the arguments which he put forward are strong enough to support it. The only sub-section in the Bill dealing with this matter is sub-section (4), and in my judgment sub-section (4) goes far enough. If Senator Sir John Keane has taken me up as stating that I wished the Bill to go further than sub-section (4) goes, he took me up wrongly, and I venture to think that, if he reads through the reports, he will see that I made it very clear, especially on Senator Douglas's amendment, because Senator Douglas's amendment was to confine the right of appearance  to persons who were resident in the Irish Free State.
“(6) A report prepared under this section or under Section 7 which has received the assent of three members of the Board shall be sent by registered post to any member of the Board who has not signified either his assent or his dissent and the report shall not be forwarded to the Minister until seven days have elapsed from the date of posting.”
This amendment has been put down because of the change made by this House in, shall I say, the method of report. When the Bill came to this House the principle was that a certain number should assent. The question of dissent did not arise. When the Bill was introduced here it said that seven out of nine should signify assent, and now it is four out of five. This House has introduced the principle that there shall be the assent of three, but it is provided that if there is a dissent of two, it would have the effect of preventing the assent of three from being effective. Under the old plan, if there was one member absent from a meeting of the Board, or ill in bed, when the report was being prepared he would have no grievance because a sufficient percentage would have assented, and if they did not assent, no report could be made. I suppose we might now conceivably have meetings at which, through temporary absence because of illness only three would attend, and three would give their assent. I suggest that where that assent is given by the three, a short time should elapse during which the other two could, if they thought fit, exercise their right of dissent. It is only a matter of a few days—I suggest a week. I think that there should be some such provision so that the right of dissent could be exercised. As I  pointed out before, that might work both ways. Dissent might be dissent against withdrawing a prohibition. I think an opportunity should be given by which that dissent could be exercised.
Mr. Fitzgerald-Kenney: As far as the actual wording is concerned, it is not very clear. I take it that Senator Douglas means any member of the Board who has not signified either his assent or his dissent—any member of the Board who was not present at the meeting.
Mr. Douglas: I had a definite reason for not putting that down, because as far as I can read the Bill, while it will probably be generally done at meetings, there is no absolute provision for meetings, and it is possible that the Board might meet and discuss a book or that the secretary or the chairman might draw up a report which would be sent around and that there would be no actual meeting in connection with the report, a procedure which often happens with other bodies. It is for that reason that I did not say, “at the meeting.” I recognise the difficulty of the wording, and I think the Minister understands the object.
Mr. Fitzgerald-Kenney: Personally, I do not see any objection to this amendment, but I would prefer to have this put into the rules than actually into the Act. I think it is rather a matter of detail than of procedure. I consider that it would be better to have the procedure put in the rules and the principle in the Statute. I will undertake to put into the rules a provision somewhat of this nature, not exactly in the same wording, but rather carrying out the spirit of the amendment. But if the Senator would prefer to have it in the Statute I will not ask the Seanad to oppose it, though personally, as I say, I think it is a matter which is more suitable for the rules than for the Statute.
Mr. Johnson: I will urge that an amendment upon these lines should be put into the Statute. One realises  that rules are not as carefully watched, even though they may be laid on the Table, as a Statute itself, and variations can be made in the rules from time to time. But in any case, the principle is important. The Board is now to consist of five, and we are to presume that the five will be active and regular attenders, or active participators, in the work of censorship. But one can conceive, too, the possibility arising of a member having personal relations either with the author or with the publisher of a particular book, who would prefer not to enter into judgment on a book for one reason or another, who might be unwell, who would prefer not to declare himself on a particular book. That might apply to the two persons, and I think the onus should be put upon them of a definite refusal or a definite assent and that that should be contained in the Act.
Mr. Comyn: I think it is desirable that this amendment should be put into the Statute, and not into the rules, because it is legislation, and if I am opposed to anything it is legislation by a Department. There is a clear principle involved in this amendment. The Senate has expressed its view that signature by three does not carry the same weight as a unanimous verdict. I think it is only reasonable that when there are only three members of a Board signing a report, it should be hedged around by certain formalities, and the formalities suggested in this amendment are not very onerous. It involves a delay of only a week. As the Minister has accepted the substance of the amendment, I think it is desirable that it should go into the Statute rather than into the rules.
Mr. Douglas: I was at first inclined in connection with this matter to suggest that it should go into the rules, but in conversation with one or two Senators and after hearing what has been said now, I think it would be better that it should go into the Statute. There is, then, the difficulty that one does not wish unduly to delay the Bill, but  possibly if the Report Stage were taken to-morrow——
Mr. Douglas: In that case it will probably be taken to-morrow by consent. The Minister might carefully consider the wording. I do not want to stand over the wording of it. I consulted one or two Senators about it, and it was the best I could manage. I would be quite ready to withdraw it and bring up an amendment on the Report Stage.
Mr. Hooper: There is one point that strikes me about this amendment. It provides that where three members of the Board are unanimously in favour of the prohibition of a book and the other two may not have seen the report, they shall be notified. But it takes no account of the case where one member of three dissents from a recommendation for prohibition, and it seems to me that in a case of that kind a report should also be sent to the absent members of the Board.
Mr. Hooper: It would be a report in effect. I think I have made my point clear. This only contemplates the case of a recommendation being dissented from or being assented to by three, and it takes no cognisance of the position that arises when the minority is on the other side.
Mr. Douglas: I appreciate what I think Senator Hooper is driving at. He means that if there were four members present at a meeting, two dissenting and two assenting, the other member who would not be there might be one of those who was willing to assent.
Mr. Fitzgerald-Kenney: No, that is not right. I think Senator Hooper's view is this, that if there were three present, two of whom were for condemnation and one against, the book should be considered by the whole Board.
Mr. Douglas: The point I wanted to make is that if the Minister likes to add words dealing with such a case I have no objection, but I suggest that it is not really necessary, because in the event of a complaint the Board might make a report to the Minister saying that they are not recommending a prohibition. But surely there would be nothing to prevent them at a later date recommending the prohibition if there was a sufficient number in favour of it. If a report saying that they were not recommending the prohibition of the book would prohibit them from sending another report, I think Senator Hooper's point should be met.
Mr. Fitzgerald-Kenney: Senator Hooper's point is only one thing that may occur; various other things may occur also, and that is the reason why I would prefer this put into the rules, because questions of this nature will inevitably arise. After all, the real masters of what is the wisest procedure and what is most effective will be the Board of Censors themselves, and I think it would be highly advisable on matters like this that the Board of Censors should be consulted, even if they are not the rule-making authority, before the rules are made, to see how those responsible persons can best achieve their object. Questions like that put up by Senator Hooper and other questions will inevitably arise, and it would be rather dealing with it piecemeal to do it by Statute, because you will have to do other things in the rules, and it would be rather a pity to have one in the rules and the other in the Statute.
Mr. Guinness: I take it that it would be quite open for the Board to postpone consideration. I can quite understand the Board meeting, only three members being present, possibly wishing to have consideration given to a matter by the other members and postponing consideration. It would be open to them to postpone consideration until a date when the other members could be present.
Mr. Douglas: Is the Minister of opinion that if a complaint is submitted to the Board and the Board sends in a report to him that they do not recommend the prohibition of a book or newspaper on that complaint, the Board could not at a later date recommend a prohibition without a further and a fresh complaint?
Mr. Brown: Is it quite clear in the Bill whether a report can be made without an actual meeting of the Board together physically? There is nothing in the Bill, as far as I can discover, which makes it necessary that there should be a physical meeting of the Board.
Mr. Comyn: I think that there is a big difference in principle between the case stated by Senator Hooper and the amendment proposed by Senator Douglas. Senator Douglas's  amendment deals with questions of principle, which I think ought to be legislated on in the Statute, but the case stated by Senator Hooper can very definitely be dealt with in the rules.
Mr. Hooper: I am opposed to that view. Here we are proposing to make a provision in the Statute dealing with a particular form. My point and Senator Douglas's point are absolutely on all fours. Senator Comyn proposes to deal with them in two different ways. My point would be met if after the words “three members” were added the words “or is dissented from by one member.” The amendment would then read: “A report prepared under this section or under Section 7, which has received the assent of three members or is dissented from by one member of the Board shall be sent by registered post to any member of the Board who has not signified either his assent or his dissent.”
Mr. Fitzgerald-Kenney: As I say, I am quite indifferent whether it is in the Act or not, merely from the artistic point of view. This section would have to be reproduced in the rules, together with various other rules which would be of a very similar nature to this, and I am trying to have it artistic. However, I am perfectly willing, as I stated, to have it in the Bill.
Mr. Jameson: It seems to me that both Senator Hooper and Senator Douglas are laying a great deal of stress on the number of members of the Board. The principle in the thing which I think Senator Comyn wants, and which I take it the Seanad wants, is that members who  have not expressed an opinion about a report should receive a copy of the report, that there should be a week given for them to get a copy of the report, and that no report should be published or acted upon until each member who had not given a decision upon it had due notice of it. That is the principle. If you leave out the second line of Senator Douglas's amendment, it would read. “A report prepared under this section or under Section 7, shall be sent by registered post to any member of the Board who has not signified either his assent or his dissent, and the report shall not be forwarded to the Minister until seven days have elapsed from the date of posting.” I believe that that would cover every case that would arise.
This amendment really deals to a certain extent with the point we have just been discussing. There is a provision in the Bill by which “the Minister may at any time after consultation with the Board by order revoke any prohibition theretofore made by him under this Act.” I do not quite know what “after consultation with the Board” means, whether the whole report will be referred back to them or not, or whether the Minister will merely ask an opinion in an informal way of the Chairman or of any other member he may wish  to consult. It does not give him any power to refer back any report which is not a report recommending prohibition. We are not told that a report will come up in the event of a complaint being turned down by the Censorship Board, but if such a report does come up there is no power for the Minister to refer it back. Assuming that only three members of the Board are acting, that two of them recommend the prohibition of a book or a newspaper and that one is against it, that one member of the Board is sufficient to hold up a recommendation for prohibition. From the fact that power in one direction is conferred in this section and that power in another direction is not conferred, it seems to me that it is not intended that he should have power to refer back a report of the kind I speak of. But in the event of that kind of a report coming up, the position will then be that one member of the Board will be able to hold up a recommendation in favour of prohibition, although all the other members of the Board might be in favour of prohibition, that is, the two who would not have reported on the book in the first instance and the two who would have reported in favour of prohibition. But the opinion of the whole four would be rendered nugatory by the fact that one of the three who did act was not in favour of prohibition. I believe that we ought to put both sides on an equality, and that the Minister should have the power to refer either kind of report back for reconsideration.
Mr. Dowdall: I am rather opposed to this amendment. After all, the Minister, no doubt having consulted those who are in a position to give him an opinion as to the qualifications of certain men, selects a number of men to act on this Board for their qualifications. I have met barristers and doctors, very astute in their own particular way, but singularly innocent of any knowledge as far as general reading is concerned, who are so very busy at their own duties that they have very little opportunity to read. It is quite possible  that one of these men might become Minister for Justice, and if he took it on himself to override the views of five men selected on account of their qualifications for a certain position, really in effect it would make the Minister a censor rather than the five men who were selected by reason of their qualifications to be on such a Board. I will vote against the amendment in any case; but if it is at all necessary to have such an amendment, I suggest that this one should be substantially altered. “The Minister may at any time”—that is very indefinite. It would keep men who are interested as authors, publishers or booksellers in a state of suspense. If the amendment is to be considered by the Seanad, I would suggest that it should read: “The Minister may at any time within thirty days of the receipt of a report by the Board in respect of any book or periodical publication return such report to the Board.” The amendment goes on to say “for further consideration.” I would suggest that he might return such report to the Board, “giving reasons for such reconsideration.” I hope the amendment will not be passed: but if it is passed. I hope that it will be amended.
Mr. Johnson: It seems to me that in this amendment you will do a very great injustice to a considerable number of people and at the same time place the readers of books in an invidious position. Presumably after the Board has considered a book or a periodical and has given it a clean bill of health, the publisher, booksellers, and readers can consider it free and innocent of any offence of any kind. Then the amendment presupposes the possibility that, having been found innocent, the book may stand another trial in a week, or a month, or twelve months, or any time afterwards, possibly without any new facts being brought before the court, because the book is there, and new facts of a condemnatory character, new charges in the indictment, shall I say, cannot be brought forward,  because the whole book was there at the time of its first trial. To put an amendment of such a kind into the Bill, to allow the book, its author, its publisher, its reader and the booksellers to be subject to the possibility of being condemned as participators in the dissemination of obscene literature, would surely be an injustice to everyone.
On the point that the Senator raised regarding the power to refer again to the Board after a time. I think it should be noted that there are two classes—there is the periodical and there is the book. In the case of the book, the reference in Section 8, sub-section (2) clearly presupposes the possibility that a new edition of the book may have deleted and omitted the objectionable portions. I think one could cite instances of books which, were these portions deleted, would be entirely innocent, and I take it that Section 8, sub-section (2) has reference to that kind of book. In the case of periodicals it is clearly contemplated that if a periodical changes ownership, let us say, and its character, then under the same name it may be admitted freely and without prohibition, and it is in such cases as that that an order for prohibition might be revoked. But surely the Senator will not ask the House to agree that the publisher of the book, the seller of the book and the reader of the book must stand in awe, in doubt and in hesitation as to whether they are going to be liable to the discredit of helping to sell and disseminate obscene literature of the kind which has once had from this Board a clean bill.
Mr. Comyn: I think that this amendment can very well be construed as being in favour of the writer and the publisher of the book, I can quite understand the Minister receiving a report condemning a book, signed by three members of the Board. He might be reluctant to put that report into execution, and at the same time he might be unwilling to refuse assent to the report. In that case the Minister may say: “Well now, three members of  the Board have signed this report. I am not exactly satisfied with their view, and I would like to send the book back again.” That case would be covered by this amendment as well as the case suggested by Senator Johnson, and I really think the amendment is a reasonable one, assuming, of course, always that you have a reasonable Minister.
Mr. Fitzgerald-Kenney: I think that what is really in Senator Hooper's mind is that the Minister should know the real mind of the Board. That is to say, he does not want a small minority or a very small meeting of the Board to express finally and for all time the considered view of the Board. I think that is what is really in the Senator's mind. As I have already stated, that can be carried out by rules governing the procedure of the Board. But I do not think that this amendment could be accepted in its present wide form; in fact, I do not think it could be accepted in any form. For instance, it is not contemplated by the Bill, and I do not think it ought to be contemplated by the Bill, that if a book has passed the Censorship Board and has got, so to speak, a clean bill of health, it should not end there. The powers which are given the Minister in this Bill are meant to be further safeguards to the writer and further safeguards to the publisher. They are not meant to be further dangers, so to speak, to the writer or publisher. If the Censorship Board says that a book is all right, then that should be final and the Minister should not intervene. It is only in a case where the Censorship Board has given too harsh a decision that the Minister should interfere, and I do not think it is right that the Minister should send back, as it were for a new trial, a book which they have acquitted. As far as a book which they have condemned is concerned, if he is doubtful about the condemnation, of course there is nothing in the Bill which should prevent the Minister saying: “It does not appear to me to be quite clear that this book ought to be condemned. Will you  send me in further detail your reasons?”
Mr. Fitzgerald-Kenney: Because I do not think it applies. It is rather analogous to a verdict of “Not guilty.” For instance, if a person is found not guilty there can be no new trial on the part of the State. I think it should be very much the same in this case. The Minister, after all, is not a specialist. He will not be able to give an enormous amount of time to considering books, because occasionally he has a little other work to do, and I do not think he should be empowered to condemn a book, or even ask the Censors to reconsider and condemn a book which they thought ought not to be condemned. The real condemnation ought to be carried out by them.
Mr. O'Farrell: In this case I think Senator Hooper is mainly concerned with the danger to the prisoner going free. We should treat, as the Minister has suggested, the book in this case as the prisoner in the dock, and if it is acquitted then it cannot and should not be tried again on the same charge and by the same court. If it is found guilty, and if a prohibition order is issued, then the Minister is in a sense a court of appeal that can either reverse it or make it effective. It is the same procedure as in the case of the trial of a prisoner for any offence. Senator Hooper seeks to reverse the whole position in one respect and to send a book which has been found not guilty back for retrial by the same court. I do not think there is any necessity for that, and there is certainly no justification for it. If Senator Douglas's amendment is carried it will mean that before the  report goes to the Minister every member of the Board will have had an opportunity of giving his assent or expressing his dissent. If any member refuses to do that no one has a right to assume that he is in favour of prohibition or that he is against prohibition. At all events if two members fail, notwithstanding the opportunity to give assent or dissent, that must not be quoted against the book, and the position would arise that these members were not doing their duty. It would certainly be no justification for the insertion of such an amendment as this.
Mr. Hooper: I would be quite willing to accept the time limitation suggested by Senator Dowdall. I think it is a reasonable suggestion, and in my judgment it would meet the point made by him and by Senator Johnson that authors and publishers should not be unduly held in suspense with regard to the position of their books. Senator Johnson said that once a book had got a clean bill of health it should not be questioned again. Let us see the clean bill of health that it gets. I am contemplating a book that has been before three members of the Board, one of whom is opposed to prohibition, and two of whom are in favour of prohibition. The report goes to the Minister, and the single individual who was opposed to prohibition is the individual who gives this book a clean bill of health. By Senator Douglas's amendment I do not think it goes to the other two at all.
Mr. Hooper: It is the kind of clean bill of health that a book will get from one member of the Board. I think the Minister also said that once a book was considered all right it should not be questioned again. Remember that it is not the Board which will say the book is all right; it is one member of the Board; and, in my opinion we ought to treat both sides alike and give the Minister power to refer back a book. If that is not done, I hold you are depressing the balance against a book that ought to be condemned.
Mr. Fitzgerald-Kenney: I would like to point out to Senator Hooper again that the rules will and must provide that the Minister will get the opinion of the Board. That is a matter for the rules, but Senator Hooper is afraid that a small minority of the Board might, acting behind the backs of the rest of the Board, manage to send in a report.
Mr. Fitzgerald-Kenney: The rules must provide the procedure of the Board and must provide as to whether there is to be a quorum, and how many must sign the report. All these things are matters of procedure, to be regulated by the rules. But the general principle of what is in Senator Hooper's amendment is that the Minister can refer back every case, no matter what the decision may have been. That is to say, if there is a unanimous finding in favour of refusing to censor a  book that the Minister can send it back. I think that is quite wrong.
Every prohibition order and every order made by the Minister under this Act revoking or amending any such prohibition order shall be published in the Iris Oifigiúil as soon as may be after it is made and shall come into operation and have effect as on and from the day on which it is so published.
I hope this amendment may be watertight to the lawyers, because according to Senator Comyn there is a flaw in every proposal, but at least this is straightforward—that every complaint received shall be notified Official Debates, May 15th, Col. 556, onus of discovery will rest upon the author or publisher, and all and sundry. When moving an amendment on parallel lines to this I ventured to suggest that the Minister, in principle, was in favour of the proposal, and he shook his head. I stated that I would try to find out my authority. I am quoting from the Official Debates, May 15th, Col. 556, where I am given as saying:
Arising out of Senator O'Hanlon's remarks, there is a very important point involved which I do not think that either House has yet fully regarded, that is, whether the publisher or the publishing trade should not be immediately informed when a complaint is lodged. The bookseller goes on in perfect innocence importing books and increasing his stock while the  complaint is pending. He probably will not have any indication of the Minister's attitude. I intend to put down an amendment for the Report Stage to ensure that the publishing trade will be informed when a complaint is made, so that they can take precautions and save themselves the heavy losses that would be involved by getting in supplies of a book which might be prohibited.
That is one of the matters which I had intended putting in the rules. I thought it was a matter rather more suited to the rules than to the Bill itself. There will have to be a code of rules drawn up, but if the Senator would like to see it in the Bill I would accept an amendment to that effect.
I had, at least, justification for my belief, and, after all, are not the Minister's first thoughts the right and proper ones? Surely it is reasonable, proper, and only just that those who are liable to suffer commercial loss by prohibition should receive ample warning in advance that their case is under consideration. After all, they are not allowed to appear at the trial. They are going to be tried in secret. All they will know is that one fine day a notice will appear in the Official Gazette saying “Your book is prohibited,” and all the stock will be tied up. The Minister will say that there is no injustice in that and that they can export it to England and elsewhere. But what assurance is there for the owners that the stock will be taken back by the publishers or the wholesalers, whoever they may be? Possibly they might be sold elsewhere, but very probably at a loss. I ask the House to look at this matter from a common-sense point of view, and to safeguard those who, I suggest, are being unjustly treated by a secret trial, and who may be further penalised by a commercial loss, that might by due notice have been avoided.
Mr. Fitzgerald-Kenney: As far as that is concerned I do not think it  is at all feasible. The suggestion is that every complaint made shall immediately be published in the Official Gazette. On a previous amendment I already pointed out that complaints will be sent forward immediately to be dealt with by the Board of Censors. As the Senator is aware, what I might call the first line of defence for authors and publishers has been swept away, that is to say that at one time it was contemplated that only level-headed sensible persons would be allowed to make complaints. At the present moment anyone who likes can make a complaint. I am quite certain that we will receive a great number of very, very foolish complaints. I think that is almost certain.
I think some gentleman with a mistaken sense of humour suggested that someone will probably send up a copy of the Bible, of Shakespeare's works, or something of that kind, and say that it should be condemned —books which are probably quite harmless. I am not quite sure if it was here or in the Dáil, but it was mentioned somewhere that in a library in the South of Ireland some books like Stanley Weyman's “Under the Red Robe” were withdrawn from circulation. That is a different matter from complete censoring of a book, but it is quite possible that complaints of that nature may come pouring in from persons of ill-balanced judgment on questions of literature, because now we are not confined to a select body of complainants who would have to be careful of the complaints they sent in. Any man in the street can now make a complaint, and you would have to publish in Iris Oifigiúil almost certainly and absolutely long and ridiculous strings of complaints. I do not think there is any danger of any material injury being done to booksellers. There is another matter which must be borne in mind. If a book is complained of, the complaint should not be made public, because as long as the book can be got, and it is known it has been complained of, it is very likely there would be a rush on that  book. It would be an advertisement for that book, and possibly Iris Oifigiúil would increase its circulation, or certain papers might copy from it, and people would see what type of book is considered dangerous, and might make a run on it if they think it is likely to be censored. I could not accept the amendment. One of the evils which come from censorship, I completely admit, is that you have a list which serves by way of index of nauseous publications. You cannot help it when these books cannot be purchased here, but it is quite a different thing to have a list of that nature at a time when such books can be purchased. The amendment would, I think, do great harm. I cannot accept it.
Colonel Moore: I think the first thing a writer would do if he wanted to advertise his novel would be to get someone to send in an objection to it. Then he would be able to sell it, whether it was good or bad.
Mr. O'Farrell: Senator Sir John Keane in moving his amendment, challenged the lawyers to find any shortcoming in it. Probably because there is a shortcoming in it none of the lawyers discovered it. Senators will notice the way the section as amended would read:—
Every complaint made under Section 6 of this Act and every prohibition order and every order made by the Minister under this Act revoking or amending any such prohibition order shall be published in the Iris Oifigiúil as soon as may be after it is made and shall come into operation and have effect as on and from the day on which it is so published.
In other words, the complaint shall come into operation and shall have effect “as on and from the day on which it is so published.” I think from that point of view the reading of the section would be nonsensical, and that is probably the reason none of the lawyers discovered it.
Sir John Keane: I am glad that a layman has outwitted the lawyers in this case. But really I am rather  surprised that the Minister made no reference whatever to his change of front, if I might so call it. There is no question at all that he either spoke hurriedly on that occasion, which is not his practice, or else he has thought better of it, because he certainly said then that he preferred to put it into the rules. Now the Minister says he is not prepared to consider it at all. However, I leave that. We all say things in haste sometimes and repent at leisure. But I really cannot see the objection of the Minister that because there may be a number of complaints, therefore the injustice of the present practice should continue. Surely the matter is not determined by the quantity of complaints, but by the principle of right and wrong, and the fact that we have complaints made easier by an amendment is surely no convincing reason. I do not think individuals will make complaints at all. They will be made by associations, at the instigation of individuals. I am amazed to hear the Minister refer to the danger of advertisement. Once books are considered to be really bad that will be an advertisement, and they will be read——
any book or any particular edition of a book or any issue of a periodical  publication the sale and distribution of which in Saorstát Eireann is for the time being prohibited by a prohibition order.
This amendment also arises out of an interesting discussion that took place on the Committee Stage of the Bill. Again, I am intertwined with the lawyers. There are three lawyers, and none of them can agree as to what is meant by the word “distribution.”
Sir John Keane: And one disagreed. I am not quite sure that even two agreed. I think Senator Brown said it would be a most dangerous thing to try and define the word “distribution,” while the Minister, I think, took another view. I suggest that it is not taking legislation seriously, in a case like this, where you have three legal luminaries not clear as to the meaning of a word in a Bill before Parliament. It is no wonder that judges speak in rather scathing terms of loose drafting and of the conundrums they very often have to propound owing to the slack way in which the work of Parliament is carried out. Here we are erring against the light of previous knowledge and warning. This word “distribution” is undoubtedly a vague word, and it is up to us not to allow the Bill to pass into law with the knowledge that a word in it is vague in the opinion of lawyers. I understood the Minister to say that if I have a prohibited book on my shelves and that if I lend it to my brother I am not distributing.
Mr. Fitzgerald-Kenney: I think you are distributing if you lend it a considerable number of times, but that you are not distributing if you lend it to only one person. That is the plain meaning of the word.
Sir John Keane: I do not know how that is going to run the gauntlet of cross-examination in the courts. Surely we should try and be more precise in our definitions. If I lend the book to my brother or cousin I am not distributing, but if I lend it to the Minister I am.
Sir John Keane: Where is the line to be drawn? I suggest that we should take our legislation a little more seriously, and that where there is an obvious doubt about the meaning of a word, we should make an honest attempt to define it. I have made an honest attempt to define the word in the amendment. I have moved, and I suggest that, roughly speaking, in most cases the definition which I have suggested will stand the test in the courts. The definition I have suggested, “lending or hiring for profit or reward” will, in most cases, I think, stand the test of the courts. I quoted the case of a certain book being hired out at 2/6 to each reader. That, I take it, would be called “distribution,” and would be an offence under this Bill as it stands. Am I to understand now that mere casual lending would not be an offence? I hope the Seanad will accept this amendment, so that the definition of the word may be made perfectly clear.
Mr. Fitzgerald-Kenney: This word “distribution” does not cause me the slightest difficulty, and I do not think, when it comes to be interpreted by the courts, it will cause any difficulty. To say what actually amounts to distribution is impossible, because you cannot define very strictly the limits as to what amounts to distribution; but whether you distribute to relatives or to strangers does not enter into the matter at all. I could not follow  Senator Sir John Keane's argument in the least bit, because if you distribute to a hundred relatives it would undoubtedly be distribution. If you lend to one you cannot be said to distribute. To distribute means to scatter fairly widely. That is the plain ordinary meaning of the word. Whether there are a sufficient number of lendings to amount to distribution will, in every case, be a question of fact. As far as the Senator's definition goes, that the word “distribution” shall mean “lending or hiring for profit or reward”—I am entirely against that. Distribution means distribution, whether it is for reward or not for reward. There is one section which says that the book shall not be sold. The other section, which is a completely separate section, says that it shall not be lawful for any person, “otherwise than under and in accordance with a permit in writing granted to him under this section
Sale and distribution are kept perfectly distinct all through these sections, and distribution there plainly means and is meant to mean and intended to mean distribution, whether for reward or not for reward. What would happen if Senator Sir John Keane's amendment were carried? Let us suppose that you have a free circulating library. Any book, no matter how indecent, could be kept in that free circulating library, and the librarian could not be prosecuted. That would be one effect of the amendment. Another effect would be that a considerable number of paper-covered documents, worth about a penny possibly, could be freely distributed. They are being distributed at present. There is a certain amount of money obviously being made by the persons who are selling birth control appliances. I have seen myself a copy of what is alleged to be an almanac.  Every single page of that was simply an advertisement for this class of stuff. These almanacs were being distributed freely. They could be handed to people all over the city and all over the country, and that would not be distribution if this amendment were carried. Again, they might be scattered about as handbills and left where people could pick them up. All that would be distribution. That would be one of the results if this amendment were carried; that these paper-covered documents, that cost very little to produce, could be circulated. As a matter of fact they are being distributed in this country and are doing harm here. I ask the Seanad to reject the amendment.
Mr. Comyn: I agree with the Minister. I think if Senator Sir John Keane's amendment were accepted it would leave not merely a loophole in this Bill but a chasm. I would like to assure Senator Sir John Keane that the section as drafted really provides for the case that he has in mind. A person lending a book to a friend, or handing it around within a reasonable circle, is not hit by this section as it appears in the Bill. But if the Senator's amendment were accepted the evil which has made him a convert to the principle of the Bill would be perpetuated.
The Minister has expressed very clearly what I had intended to indicate to the House, and that is, that the most pernicious literature that is distributed in this country, and which purports to be an almanac, is distributed for next to nothing. I think the Minister must have in his mind the actual publication that is in my mind at the moment. It purports to be an almanac and is distributed for a penny or twopence. It contains in every page the most atrocious advertisements. It is distributed by people who do not receive in money for the books they purport to sell as much as would keep them in boots. Therefore, there must be some sort of purpose behind that distribution. I think  that Senator Sir John Keane is the last man in the world that would sanction anything like that, and yet if his amendment were accepted that would be sanctioned. Therefore, I ask the Seanad not to accept this amendment.
any book or periodical publication (whether appearing on the register of prohibited publications or not) which advocates or which might reasonably be supposed to advocate the unnatural prevention of conception or the procurement of abortion or miscarriage, or any method, treatment, or appliance to be used for the purpose of such prevention or such procurement.
(4) The Minister may if he thinks fit for reasons which appear to him sufficient grant to any person a permit in writing to do all or any of the following things, that is to say: to print, publish, sell, keep for sale, distribute, or keep for distribution any book or periodical publication the printing, publishing, selling, or distributing of which without such permit would be a contravention of this section and the Minister may grant any such permit subject to such (if any) conditions and limitations as he may think fit to impose and shall specify in such permit.
The class of books dealt with in this section are not printed in Ireland at all, so far as I am aware. At least, I have never heard of any case of the kind. They are all, or practically all, imported. Yet in the section the word “import” does not appear at all. I am not sufficiently well versed in the law to say whether actual importation is covered by the other words used in the section. It seems to me that, in the particular circumstances, it would be advisable that we should expressly insert the word “import.” I am confirmed in that view if I turn to Section 10, which is a similar kind of section. It deals with an offence in relation to prohibited publications, that is, publications which are subject to prohibition orders. The words in that section are:—
It seems to me that, if the word is necessary in that section, it is equally if not more necessary in Section 16. While on this subject, may I put this point to the Minister? There are three of these sections. I suppose they would be called penal sections. They are of a similar nature and deal with a similar class of offence. The wording in all of them is different. I have already referred to Section 10, which makes it illegal
and so on. Of course, that deals with newspapers. There, again, a great many newspapers sold in this country are imported. Yet the word “import” is not in that section at all. Then we come on to Section 16. This section makes it unlawful “(a) to print or publish or cause or procure to be printed or published, or (b) to sell or expose, offer, or keep for sale, or (c) to sell, offer or keep for distribution.” As I have said, the section does not include the word “import” nor does it include the word “advertise” which appears in Section 10. I really think that the word “advertise” should also come into this section. I suggest to the Minister that he should consider the advisability of bringing the wording in these sections into some kind of uniformity.
Mr. Fitzgerald-Kenney: The difference which Senator Hooper has in mind is a difference which arises from the inherent difference in the subject matter. When a book is put upon the censorship list, then it is perfectly clear and distinct that that book is condemned. There can be no doubt about that. You know it. There is a more difficult case in Section 16. A person may order a book without completely knowing what the nature of the book is. If an attempt is made to bring it in, it would be stopped by the Customs authorities, but the individual importing it will not have the same sense of certainty as he would have in the other case. With regard to a later amendment in the Senator's name, where he proposes to insert the word “import,” I think the word ought to be inserted there, but I do not think that in this section the word is necessary or is advisable. There is considerable difficulty about it. A person, say, coming into this country is committing a criminal offence if he has a book of this nature in his possession though he may not know it. Section 16 is a very drastic section.  The books will not even be on the published list, and if a person coming into the country had a book of this nature in his possession it would be very hard that he should suffer, not only the confiscation of the book, but that he would also be liable to prosecution. In the other case, it will only be importing for sale or distribution.
Under Section 10, if a person brings in a book as an ordinary reading book he only suffers the loss of the book. I think if you were to insert the word “import” under Section 16, and that it then became a criminal offence to import, such a provision would be too drastic. If a person had a book innocently in his possession, that he was simply bringing it in for his own reading and not for sale, and did not know that it was an offence to do so, it would be very hard, I think, if he were to be subjected to most drastic penalties. I think that the confiscation of the book ought to be enough.
Mr. Guinness: But I take it that if the word “import” is introduced, as has been suggested by Senator Hooper, such an individual would be liable to prosecution and to the pains and penalties prescribed under the Act?
Mr. Fitzgerald-Kenney: Yes. Under the Customs Regulations Act regulations can be made, and are made, and certain books are on the index, so to speak. The Customs authorities have that list and can stop these books. That also applies to periodicals.
Mr. Comyn: In that case I think Senator Hooper ought not to persist in his amendment, because the word “publish” is extremely wide in its signification. Although a book may be issued in London, and, in the common acceptation of the term, published in London, it could also be regarded in point of law—I think the Minister will agree with me on this—as being published here, if circulated here.
Mr. Hooper: It seems to me that the reasons advanced by the Minister against this amendment really strengthen the necessity for it. If it is to be permissive for any person to bring in books of this nature, then it will be possible, for anyone who wants to do it, to bring in large numbers of them by giving a number of his friends a copy each. A person engaged in the sale of this class of literature who wants to get books circulated through the country, could give one copy to one person and another copy to a second person, and so on, and get a large number in in that way.
Mr. Hooper: Yes, if they are found. As to the point made by the Minister, of a person innocently importing a book of this class and thereby rendering himself liable to prosecution, I think it could be met in this way, that it would always be within the discretion of the police to satisfy themselves whether the person was bringing in the book innocently or not.
Mr. Fitzgerald-Kenney: Tourists coming into the country might possibly have to be stopped and might have to go to court. They might be acquitted in court, but they would hardly be likely to come to the country again. I think the confiscation of the book would be quite sufficient, without prosecuting the person bringing it in.
Mr. Johnson: There is another aspect of this to be considered. Senator Hooper presumes that every book is a book which palpably and clearly would come under this condemnation, but there will be books in the region of doubt—a book which advocates, “or which may reasonably be supposed to advocate,”—and that immediately raises questions of doubt. The importer of the book not knowing that it was likely to be condemned here, and that is not palpably and obviously of a character condemned by the section, would nevertheless make the traveller a criminal in the eyes of the Free State law.
“Provided that no book or periodical publication shall be deemed to offend against this sub-section solely by reason of the fact that it contains an advertisement relating to a book or periodical publication the sale of which is unlawful under this Section.”
I had this amendment down on an earlier reading. A similar amendment was moved in respect of Section 10. The objection that was raised, and which the House accepted, was that the word “advertise” in sub-section 1 (b) could not be interpreted in the way my amendment presumed  with respect to Section 16. The possibilities, and I think even more than the possibilities, are that journals of the kind I quoted on that occasion — the “New Statesman,” the “Nation” and the “Spectator”—might be reasonably supposed to advocate the unnatural prevention of conception by reason of the fact that they occasionally contain advertisements of books which are dealing with this subject and that quite clearly advocate the practice. I feel it is desirable that the reading public in this country should not be prohibited from receiving and reading these very reputable journals because a magistrate may come to the conclusion that these journals may reasonably be supposed to advocate the unnatural prevention of conception by reason of the fact of these advertisements appearing in them. I quoted an article in the “New Statesman” a few weeks ago by a well-known writer of social and medical topics, specially dealing with health, sunlight, and so on. That article, while not dealing with this subject as a whole, in one paragraph of it did advocate this practice. That article was in the body of the journal.
In respect of that same issue there was published an advertisement of a series of books, one or two of which were dealing with the subject of birth control. There is not the slightest question that any of these journals would, by the ordinary reader, be presumed to be pornographic, or susceptible of condemnation because of their advocacy of this practice. I want to safeguard the reading public of this country against the prohibition of these journals. Therefore, I am asking the House to agree that “no book or periodical publication shall be deemed to offend against this sub-section solely by reason of the fact that it contains an advertisement relating to a book or periodical publication, the sale of which is unlawful under this section.” In respect of books it is known that publishers do publish at the end of their books a list of other books that they have published in connection with  their business, and some of those books that they have in their lists may deal with and advocate this practice which is condemned by this Bill. The mere advertisement of that should not be a sufficient cause for condemnation, and yet it is not at all unreasonable to suppose that a magistrate would decide there was an advocacy by virtue of the appearance of an advertisement of the kind I have named. I want, therefore, as I have said, to safeguard the serious reading public of the country from a prohibition which is not intended by the Minister, and yet I think is liable to be effected if the Bill passes in its present form without some safeguard such as I have in my amendment.
Mr. Fitzgerald-Kenney: I have already expressed my view as to how the Act should be administered, and while I would not care to accept Senator Johnson's amendment precisely in its present form, I would suggest to him that he would consider the following amendment which I have drafted, and which I think would probably meet his views, and at the same time carry out the view I myself have expressed as to the way in which I think the Act ought to be administered, and putting explicitly what is implicitly in the Bill. It would run:
“(3) A book or periodical publication containing an advertisement relating to a book or periodical publication which advocates or might reasonably be supposed to advocate within the meaning of sub-section (1) of this section one or more of the matters mentioned in that sub-section shall not, by reason only of its containing such advertisement, be deemed itself to advocate any of such matters, provided such advertisement is inserted for reward and is not and could not reasonably be supposed to be itself an advocacy of any such matter.”
 I think that no matter what the advertisement is like it would come under Senator Johnson's amendment. The amendment, I suggest, carries out my intention, and I think it meets what Senator Johnson requires. If the advertisement is simply an advertisement, and not an advocacy, it would be covered by the words which I have inserted in the amendment: “Provided such advertisement is inserted for reward.” I have considered the matter carefully and I shall explain the reason for these words. If there is a bona fide advertisement, and the paper is acting bona fide in putting in the advertisement, that is one thing, but if you discover through the paper what appears not be a real bona fide advertisement, and if it is put in on every page through the paper, that might be said to be advocacy, but that could not be said if it is inserted in the ordinary way of business for reward and if it appeared only in one place in the paper.
Mr. Johnson: I quite agree with the Minister's statement, and I will be glad to accept his amendment instead of my own. I withdraw my amendment, and I will move the amendment which the Minister has drafted on Report.
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