HC Deb 09 May 1952 vol 500 cc723-811
(1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case—
5 (a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);
10 (b) if the offer is not accepted by the party aggrieved, it shall be a defence. in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.
15
20 (2) An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a 20 defence under paragraph (b) of subsection (1) of this section no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.
(3) An offer of amends under this section shall be understood to mean an offer▀×
25 (a) in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the party aggrieved in respect of those words;
30 (b) where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.
(4) Where an offer of amends under this section is accepted by the party aggrieved—
35 (a) any question as to the steps to be taken in fulfilment of the offer as so accepted shall in default of agreement between the parties be referred to and determined by the High Court, whose decision thereon shall be final;
40 (b) the power of the court to make orders as to costs in proceedings by the party aggrieved against the person making the offer in respect of the publication in question, or in proceedings in respect of the offer under paragraph (a) of this subsection, shall include power to order the payment by the person making the offer to the party aggrieved of any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question;
45 and if no such proceedings as aforesaid are taken, the High Court may, upon application made by the party aggrieved, make any such order for the payment of such 45 expenses as aforesaid as could be made in such proceedings.
(5) For the purposes of this section words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to another person if and only if the following conditions are satisfied, that is to say—
50 (a) that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or
(b) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person,
55 and in either case that the publisher exercised all reasonable care in relation to the publication; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication.-[Mr. N. H. Lever.]
Brought up, and read the First time.

11.12 a.m.

Mr. N. H. Lever (Manchester, Cheetham)

I beg to move, "That the Clause be read a Second time."

This Clause is designed to replace the present Clause 4 in the Bill whose deletion I hope to move later on. This Clause relates to unintentional defamation. I do not intend to go into the many details of the Clause but, of course, if there are any points which hon. Members feel are not covered, they can deal with them.

The purpose of this Clause is to give effect to the proposals of the Porter Committee that, in cases where authors and publishers were not guilty of any negligence or malice in a case of unintentional defamation as defined in this Clause, the appropriate remedy will be full vindication of the person injured rather than damages. There is carefully prepared machinery in the Clause for protecting the rights of an innocent person whose reputation has been put in jeopardy.

I hope the Committee will accept the general principle of this Clause. I do not now propose to dilate on it, but I should say that, in drafting the new Clause, we have done our best to make use of all the wisdom which was tendered to us in Committee and for which I, personally, am very grateful. We have tried to improve to the limit the safeguards for the person injured, and it should be noted that the only persons who take any benefit under this Clause are the perfectly innocent people who can prove—and the onus is firmly put upon them—that they have not been guilty of any malice or want of care. Far from encouraging increased carelessness in respect of unintentional defamation, this Clause will have the effect, for the first time, of putting a premium upon care, because care proved by the defendant will be a necessary ingredient of the defence, whereas as the law now stands care is quite irrelevant in defence.

I respectfully commend the Clause to the House as being a fair decision upon this matter, having regard to the fact that this Clause is dealing all the time with the rights of two sets of innocent people —on the one hand, people who have been unintentionally defamed and whose reputation requires vindication, which can be fully achieved under the machinery of the Clause; and on the other hand, innocent publishers and writers who have no malice and who have not been guilty of any carelessness, wantonness or negligence. The Clause deals with these two sets of innocent people, and with the safeguards put in through the criticisms and valuable suggestions which were made in Committee. I commend it to the House.

Sir Leslie Plummer (Deptford)

I beg to second the Motion.

11.15 a.m.

Sir Lynn Ungoed-Thomas (Leicester, North-East)

There is one observation I should like to make on this proposed new Clause before we pass away from it, and that is that in it the words which appear in the original Bill in the place which corresponds to subsection 1 (b), namely, the words ought reasonably to be but … have been omitted in the proposed new Clause. In other words, if this proposed new Clause is read in the same way as the. Bill as amended in Committee, it would read if the offer ought reasonably to be but is not accepted by the party aggrieved it shall be a defence.… and so on.

I appreciate, for reasons which were considered in Committee, that there may be strong grounds for leaving out the words

ought reasonably to be but but it is an omission which has a powerful bearing upon some of the Amendments which will be moved later. All I do at this stage in regard to those proposed Amendments is to draw the attention of the House to the fact that those important words are, in fact, omitted from this new Clause. I am not quarrelling with the omission as such, but merely paving the way for some of the observations which I shall venture to suggest later to the House on later Amendments that have been put down.

Subject to that, and subject to the proposed Amendments which will come before the House in due course, I certainly do not wish to oppose the substitution of this new Clause for Clause 4 which is already in the Bill.

My right hon. and learned Friend the Member for Neepsend (Sir F. Soskice) reminds me that I should express the hope that there will be no difficulty in proposing the Amendments to the proposed new Clause, and that they will be taken on the new Clause in such a way that it will be possible for the House to discuss such as are selected.

Question put, and agreed to.

Clause read a Second time.

Mr. Speaker

In calling the hon. Member for Deptford (Sir L. Plummer) to move the first Amendment, I would ask the House to consider that it is really introductory to a series of Amendments which follow later. The Amendments are in different names, but they seem to me to cover very much the same subject matter. I desire the assistance of the House and of hon. Members who have been through the Committee stage. Is it possible to discuss the first Amendment and the four later Amendments in line 58, to add a new paragraph 6, but excluding the Amendment of the right hon. and learned Member for Edinburgh, East (Mr. Wheatley), which deals with Scotland. If that is a convenient course and the House agrees to it, I am prepared to permit the discussion on this first Amendment to cover all four Amendments, and then to take the sense of the House on each Amendment as we come to it.

Mr. N. H. Lever

With respect, Sir, that would be very convenient.

Sir Leslie Plummer (Deptford)

I beg to move, as an Amendment to the proposed Clause, in line 9, after "aggrieved," to insert: then except as otherwise provided by this section. In this Bill it is, in the case of an unintentional defamation, a defence, first, to say "I offered amends," and secondly, to say that the words complained of were unintentionally published. But if this Amendment is carried, this defence would not operate in a case where the author is not the publisher or the editor or the proprietor of the journal in which the offending statement appeared, unless he, the publisher—if I may use that phrase to describe either the publisher, the editor or the printer—can prove that the offending words were written by the author without malice.

Thus this Amendment puts upon the publisher, whether he be the publisher of a book, a periodical or a newspaper, the onus to prove that the author of the damaging statement was completely innocent of an intention to damage the plaintiff that is to say, that he, the author, acted—and the publisher must prove this—completely without malice. This Amendment, of course, covers unintentional libel and I submit that it is proper that in cases such as these the defence should have the onus put on it to prove that the defamation was in fact unintentional.

The promoter of this Bill concedes that the court should examine the state of mind of someone in these unintentional defamation cases, and whose state of mind is more relevant than that of the author? In this connection, I think it worth while to consider his state of mind and his intention, for I am certain that in every case fair-minded people would want to consider the intention of the author.

In these unintentional cases, the publisher has no intention whatsoever of malice towards the plaintiff. The publisher is in every one of the cases a mere instrument in the chain of events which leads to the publication. I am certain that those noble proprietors with whom I have had some experience will not accept willingly a description of them as being mere instruments. I think the word "mere" will be something at which they will cavil. But in fact they are no more than cogs in the process of publication, and they would have little difficulty indeed in the case of intentional defamation in proving that they had no intention whatever towards the plaintiff.

If I may give two examples. What intention did the "Daily Mirror" have towards Mr. and Mrs. Cassidy in the famous Cassidy libel case? They had never heard of Mrs. Cassidy and they had no feeling or intention of any kind towards the Cassidy family. And as one who was responsible, or partly responsible, for the publication of the "Daily Express" at the time, I would ask what possible intention the editor, proprietor or publishers had towards Mr. Newstead, the famous Mr. Newstead who came along one day and said, "When you referred to a bigamist who has been sentenced and whose name is as near as possible the same as mine, you had an intention towards me. You were describing me." That Mr. Newstead also said, "It is perfectly true that the Mr. Newstead who was sentenced for bigamy is a greengrocer and I am a barber, and that he lived at Peckham and I live in Brixton. It is perfectly true that he is demonstrably in gaol and I am demonstrably free. Nevertheless, you had an intention towards me. "Of course, nobody had any intention towards him because nobody had ever heard of him.

On the other hand, supposing the journalists in these two cases had, in fact, malice in their hearts and their pens against the Cassidy family and against Mr. Newstead the second; supposing that in the one case they knew that the woman at the races with Mr. Cassidy was not Mrs. Cassidy and that in the second the words written were intended to damage Mr. Newstead the second. In those circumstances, surely none of us would want the publisher to escape his liability because of this Clause. For indeed, if the men who were reporting the stories in the cases I have quoted were members of the staff, the publisher could not escape his responsibility. Why should he be entitled or able to escape his responsibility if they were free-lance writers, or if the information was obtained from an agency?

Surely it is wrong for the editors, proprietor or publisher to be able to escape his liability in cases of this kind by saying, "I did not know. I only accepted the articles or manuscripts on their literary merits, and there was no want of care on my part in being ignorant of the author's malice." In such cases I am sure, though I speak as a layman and not as a lawyer, that the defence of the author would fail because the words complained of were inspired by malice and not innocently published. And if his case could fail it seems to me reasonable that the defence of the publisher also would fail, for malice would be proved and not innocence.

Without defeating the real purpose of the Clause, the Amendment would protect the plaintiff from a defence which I am sure that the promoter of this Bill would not wish to see succeed.

Mr. Cledwyn Hughes (Anglesey)

I beg to second the Amendment.

My hon. Friend the Member for Deptford (Sir L. Plummer) has put the case for the Amendment fully and lucidly and there is very little which I wish to add. I may say that in this instance he is the author and I am a cog in the process.

The purpose of our Amendment is that an equal burden of proof should lie on the publisher or printer, or editor, as lies upon the person who actually wrote the words complained of. In our submission, this would not involve the editor, publisher or printer in any undue hardship. For example, if a writer establishes that a libel is unintentional, it would clearly be a simple matter for the publisher and printer to prove that they had no malice. In such a case their defence would be almost a formality.

11.30 a.m.

On the other hand, if an author or journalist is proved to have defamed someone wilfully, it would be wrong for the editor, publisher or printer to be enabled by this Bill to escape liability merely by saying that the words were used without malice. In an extreme case, one can visualise that an inpecunious writer might perpetrate an obvious libel and an action against him might succeed, but it is conceivable that, without this Amendment, the publisher and the printer would escape. This might involve the plaintiff in hardship and deprive him of his proper damages. Our contention is that the onus should lie upon the editor, publisher or printer and not upon the plaintiff. This is a necessary Amendment and I hope that it will be accepted.

Mr. N. H. Lever

It may narrow the area of discussion if I indicate now that I am so moved by the cogent arguments which have been addressed to the House by my hon. Friends that I agree that the House should accept the Amendment. I ought to compliment my lay friend the Member for Deptford (Sir L. Plummer) on the most able drafting of this Amendment, which is equal to anything done by the lawyers. This is a variant of what he advocated in Committee. I congratulate him on the skill with which it has been so neatly and ably put together and so cogently argued.

The Attorney-General (Sir Lionel Heald)

Perhaps it would be convenient if I were to say that I am prepared to advise that this Amendment should be accepted. In Committee we had considerable discussion on this matter and at that time we did not feel able to accept this principle. But now, as the House will observe, the hon. Member for Cheetham (Mr. N. H. Lever) has got, at the end of his new Clause, the words: … any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication. That being accepted, I was much impressed by the argument put forward by the hon. Member for Deptford (Sir L. Plummer) in Committee that it seemed illogical and wrong that the Clause would apply if a man who wrote the article was in the actual employment of a newspaper, whereas if he was a free-lance it would not.

After carefully considering the matter, I came to the conclusion that, as our only object is to make the best possible Bill, it would not only facilitate our discussion but would also be right and proper that I should advise that this Amendment should be accepted.

Sir L. Ungoed-Thomas

I am exceedingly relieved to hear that at last both the promoter of this Bill and the Attorney-General are prepared to accept the Amendment which has been put in various forms but which has now been so successfully formulated by my hon. Friend the Member for Deptford (Sir L. Plummer). I say at once that the acceptance of this Amendment goes a good way towards meeting the objections which I have had and which I have tried to meet by putting down various forms of Amendment, dealing with this same problem in different ways and at different stages, which it has been ruled might be taken together in our discussion at this stage.

There are differences between the Amendments which I have tabled and the Amendment of my hon. Friend the Member for Deptford. I do not wish to take up time discussing my Amendments in detail, subject only to only one qualification about the Amendment proposed by my hon. Friend. That qualification is raised in the last of the series of Amendments which I put down. I put down that Amendment not as a matter of inspiration for myself but after seeing the Amendment of my hon. Friend the Member for Deptford and after thinking that perhaps it would clarify it, and certainly meet further such objections as I have to the Bill, if the slight modification which I propose were made.

I come to that difference. I am not sure, after what the Attorney-General said, that it is a difference of substance. First, there is a difference in the wording. The last Amendment in line 58 in the name of my hon. Friend the Member for Deptford says: (6) Paragraph (b>) of subsection (1) of this section shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice. In my proposed Amendment which follows, I have repeated precisely the same words with one variation. Instead of the words "without malice" at the end, I suggest the words: innocently in relation to the party aggrieved. At this stage I wish to address myself exclusively to the difference between those two phrases. I understood, and I was encouraged by understanding, that the object of the Attorney-General in advising the House to accept the Amendment was that the author who is not an agent of the publisher should be put in the same position as the author who is the agent of the publisher. The author who is the agent of the publisher is, of course, the servant or agent of the publisher, and he comes within the words which the Attorney-General quoted from the new Clause, namely: … any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication. That means that, where the author is the agent of the publisher, to come within this Clause he must act innocently in relation to the party aggrieved, because the action of the author, being the agent of the publisher, is the action of the publisher. Therefore, what I suggest is precisely in accordance with the substance of my hon. Friend's Amendment, namely, that the author who is not the agent of the publisher should be treated in the same way and that he should act innocently in relation to the party aggrieved.

I understand that there might well have been some difficulty about the form of the Amendment originally put down by my hon. Friend the Member for Deptford. Originally he proposed, not the words, "without malice," but the words, "without intent to defame." I can understand that there might well have been difficulty when the words, "without intent to defame" are not themselves defined in the new Clause. My hon. Friend was relying, when he proposed his original Amendment, upon the definition of those words contained in the Bill during the Committee stage. Those words ceased to be defined because the Clause in question is replaced by the new Clause now under discussion. The difficult for us there is in defining the words" without intent to defame", but the parallel in the new Clause for the words "without intent to defame" is the words" innocently in relation to the party aggrieved." These words are merely repeated the new Clause itself, and in the new Clause they are perfectly clearly defined.

The words "without malice" may not, in themselves, be without some difficulty. I am not quite sure how precisely the words "without malice" may be interpreted. I do not know whether they would, in fact, be interpreted in this Clause as being quite equivalent to the words "innocently in relation to the party aggrieved," or whether they would be interpreted as ill-intention against the person defamed. Doubtless, the learned Attorney-General will advise the House on that point.

What I am hoping is that, in order to give greater precision to the words "without malice," and in order to bring this part of the new Clause, if adopted, into line with the intention that the author who is not the agent of the publisher shall be placed on the same footing as the author who is, it will be possible for the Attorney-General and for my hon. Friend the Member for Cheetham (Mr. N. H. Lever) to accept the Amendment. I hope the Attorney-General will advise the House that this is the proper course.

The Attorney-General

I am sorry not to be able to agree with the hon. and learned Gentleman, but the choice of these words has been quite deliberate. There has been some uncertainty and argument whether the malice of one defendant can infect another, and the word "malice" is one which is unfortunately familiar to lawyers who practise on this particular subject.

Quite deliberately, these words have been used in order to make it clear that a defendant could not say that he was not infected by the malice of his codefendant. In the case of the agent or servant, he would be, and the observations I made were in relation to that matter. We thought that it was very much better to deal with the Clause on the basis of the wording which has beep the subject of discussion in various cases, and the words would put that question before the court. I would therefore ask the hon. and learned Gentleman to accept the wording put forward by his hon. Friend the Member for Deptford (Sir L. Plummer).

Sir L. Ungoed-Thomas

Before the right hon. and learned Gentleman sits down, as this is an important matter, may I say, with great respect, that he simply has not answered my case at all? May I set it out in succinct form? Is it or is it not the intention of my hon. Friend the Member for Cheetham (Mr. H. Lever) that an author who is not the agent of the publisher shall be on the same footing as one who is? That is one question.

If it is the intention, as he indicated in his opening remarks, what can be the objection to my proposal? Would it not be far better to carry out that intention perfectly clearly by inserting the words which I propose here instead of the words" without malice"? If he does not do that, will he explain precisely what is the difference between what he hopes to achieve by making the distinction here between the words "without malice" here and the words "innocently in relation to the party aggrieved" which occur earlier in the section.

The Attorney-General

I can answer that at once. My understanding of it is that it does not make any difference. I prefer my own words; I am sorry, but I must stick to them.

Mr. Leslie Hale (Oldham, West)

The House, of course, willingly gave the Attorney-General and my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) leave to speak a second time, but may I remind them that we are on the Report stage of this Bill, and that it is the normal practice to ask for the courtesy of the House in speaking a second time?

11.45 a.m.

Sir L. Ungoed-Thomas

On a point of order. There was no discourtesy to the House at all. I was not speaking a second time, but was merely asking the Attorney-General—

Mr. Hale

On a point of order.

Sir L. Ungoed-Thomas

I am still on a point of order.

Mr. Hale

I am not referring to the hon. and learned Gentleman at all.

Mr. Speaker

Order. I cannot permit two hon. Members to stand and argue on the Floor of the House. Was the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) speaking to a point of order?

Sir L. Ungoed-Thomas

That is so. My hon. Friend the Member for Oldham, West (Mr. Hale) referred to two hon. Members, both of whom had spoken, and I understood him to refer to me. Therefore, I was explaining that I got up a second time merely for the purpose of asking a question.

Mr. Hale

Now that my hon. and learned Friend has made it clear that he was not speaking a second time, I am satisfied.

Sir L. Ungoed-Thomas

May I, with the leave of the House on this occasion, and with the leave of my hon. Friend the Member for Oldham, West (Mr. Hale), speak a second time? This is an important matter, which one wants to have quite clearly on the record.

The right hon. and learned Gentleman has said that there is no difference at all between the words" without malice" and the words which I have suggested— "innocently in relation to the party aggrieved." If that is his intention, he has defined in this Clause the words "innocently in relation to the party aggrieved," and therefore, if that is his object, surely it stands out a mile that, as a matter of elementary drafting, the words which should be adopted are the words he meant and which both he and my hon. Friend the Member for Cheetham (Mr. H. Lever) have defined in this new Clause, namely, "innocently in relation to the party aggrieved ".

Amendment to the proposed Clause agreed to.

Sir L. Ungoed-Thomas

I beg to move, as an Amendment to the proposed new Clause, in line 9, at the end, to insert: except as to special damage. This matter, which was discussed on the Committee stage, although there was then no vote taken directly on this issue, is a matter which is affected by the words which have been deleted, to which I drew the attention of the House earlier, in subsection (1, b) of the new Clause. Those words which have been omitted meant that the person who is seeking relief under this Clause—the defamer, to call him that for short—had to show that the offer which he was making ought reasonably, in all the circumstances, to be accepted.

Quite obviously, one of the circumstances that would be taken into consideration would be the fact that special damage had been suffered by the aggrieved party, and the pecuniary amends, if any, which the defamer offered in respect of it. It would leave the whole matter wide open, and one of the matters to be taken into consideration would be the special damage suffered.

May I mention the considerations which prompted me to put down this point as the subject of a separate Amendment?

It is agreed in the first place that unintentional defamation is defamation. There is no question about that, and the Clause does not affect it; it is agreed by all. The only question is how far the defamer should be relieved from the consequences of his defamation. How are we to deal with the damage which, admittedly, has been caused? Of course, we have general damages and we have special damage. In the case of general damages—the damages which are wide open, injury to reputation, and so on—it is agreed by the Clause that these should not be payable; we eliminate them when the correction and apology are given. That is roughly the effect of the new Clause.

But that leaves the question of special damage. That is not damage at large at all. It is not just injury to reputation, where there may be considerable difficulty and very great differences of view as to the amount of damage to be awarded. It is special damage such as the loss of a job following upon a defamation, where the loss can be accurately ascertained and precisely proved and it can be shown clearly, without any doubt, that damage amounting to a specific sum of money has been suffered.

We are assuming by the Amendment that the special damage has been suffered, and we are only dealing with the case where the special damage has been suffered. The only question with which we are concerned here is whether the special damage which has been suffered should fall upon the defamed person or whether it should fall upon the person who is responsible for the defamation. Surely there can be only one answer to that.

In addition, generally speaking, the publishers of the defamation—the publishers of the newspapers, the books and the rest of it—are people who conduct their publications as a matter of business. They make money out of it, and they are entitled to make money out of it. If they pursue publishing as a matter of business surely it should be a business risk which they take whether or not there is defamation. It is for them to ensure that their business is conducted in such a way that they do not cause injury to other persons. That is a particular reason which affects cases where the publication is conducted as a matter of business.

Apart from that, taking the general principle where a person has been defamed and a special damage has been suffered, to the simple question whether the consequences of the damage for which the defamer is responsible should fall upon the innocent person or the person who has caused the injury, I suggest there can be only one answer and that arrangements should be made for the payment of special damage. That is what is proposed, and it is entirely different and entirely separate from the general damages which we agree by the Clause should be payable in the special circumstances.

Mr. William Wells (Walsall)

I beg to second the Amendment.

Mr. David Weitzman (Stoke Newington and Hackney, North)

I fail to understand the argument of my hon. and learned Friend the Member for Leicester, North-East (Sir L. UngoedThomas). Special damage is only a form of damages. If it is right with regard to general damages to apply the principle of unintentional defamation, why should it not be equally right with regard to special damage? I know of nothing in law which makes a distinction between the two.

Secondly, the adoption of the Amendment would surely entirely defeat the whole object of the Clause, because it would mean that a plaintiff had only to say, "I have some special damage" and the whole thing would go to the court and would be gone into.

Mr. James MacColl (Widnes)

My hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) speaks with very great authority on these matters, but he said that he knew nothing in law which distinguished between special and genet al damage. Does not the law of slander distinguish between the two?

Mr. Weitzman

That may be true in the sense that one may bring an action in that way. I said that there was no difference in principle, and what I meant was this. The special damage is merely a species of damage in the sense that one can say in pounds, shillings and pence what damage has been suffered. It is still part of the damage suffered by the person. I simply put forward the argument that if it is right to apply this principle of unintentional defamation to general damages and to say that a person shall not be entitled in a case of unintentional defamation to claim general damages, why should not the same thing apply with regard to special damages?

A second point which arises—it is an extremely important one—is that if we are to exempt a case of special damage from the principles of unintentional defamation we are opening the door very wide to something which will defeat the whole purpose of the Clause. One can visualise a case where a plaintiff, in order to bring the matter before the court and have the whole matter thrashed out in the atmosphere of the court, and to put pressure on a defendant in a case of that kind, has only to say, "I suffered special damages." I suggest that it would be very unwise in the circumstances to adopt the Amendment.

Mr. Sydney Silverman (Nelson and Colne)

I find the argument of my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman), really astonishing if he says that he knows of no distinction in law between general damage and special damage.

Mr. Weitzman

I do not think I said that. If I did say it I apologise to the House. What I clearly meant was that there is no distinction in principle between general and special damages.

Mr. Silverman

That is an entirely different proposition. I hope my hon. and learned Friend will accept it from me that, no doubt inadvertently, what he said was that he knew no distinction in law between general damages and special damages. I thought that was an astonishing thing to come from my hon. and learned Friend, and I am glad to hear that he meant no such thing; but he advances, instead, the equally astonishing proposition that there is no difference between the general damage and the special damage in principle.

I should have thought that the reason why there is a distinction in law is precisely because there is a distinction in principle and precisely because there is a most important distinction in common sense. That is exactly why the law drew a distinction between general damage and special damage. The distinction in common sense is a perfectly plain one. It is one thing for a man, applying this matter to the subject under discussion—the law of defamation—to say, "Here i8 a publication about me. It is untrue. It hurts my reputation. It diminishes the respect in which I am held by the people among whom I live and move," and it is quite another thing for him to say, "Here is a publication about me which is untrue and which not merely hurts my reputation but has cost me my job." One is general damage and the other is special damage.

To say that there is no distinction between them in principle seems to me a most astonishing proposition. It is precisely because there was an important distinction of that kind between them in principle that in one branch of the law of defamation, the slander branch, the law has always said, "You shall not be entitled to bring an action for general damages and you shall not be entitled to have damages for special injury to your reputation unless you can also prove that you actually suffered some much more material, tangible and specific damage that you can prove." It is that traditional, time-honoured and very wise distinction which the law has always recognised which the Amendment seeks to establish in the new law about defamation that we are making today.

The distinction sought to be made in this Amendment is one which I should have thought would commend itself to any hon. Member who follows the argument. I can quite understand the argument that of two innocent persons one is innocently guilty of a defamation without ever intending to be so guilty, and that his victim is equally innocent. It may well be argued, and has been argued and is the basis of the Bill, that the law has unfairly distributed the damage between them and made the innocent defamer bear the whole of the unintended injury inflicted.

12 noon.

In this Bill we are seeking to alter that. We are seeking to say that where there is within the narrow definition of this Clause an act of defamation which is unintentional, then the defamer shall be excused. But shall be excused of what? It is one thing to say that he shall be excused from paying any kind of what, I think, in Scottish law is called "solatium"—with a long "a" although I am content to have the English "solatium"—with the short "a "-and not the Scottish pronunciation.

Sir L. Ungoed-Thomas

It is an Anglicised version.

Mr. Silverman

However, the point is clear enough. It is one thing to say, "All right, since you were an innocent defamer and your victim is equally innocent there shall be no general damage, no payment for wounded feelings, and no attempt to estimate in pounds, shillings and pence the damage to your victim's reputation."

Mr. Hale

In other words, for general damage a full apology is made and the apology is made clear to everyone, and every attempt has been made to make amends. But, surely, amends must be made also for the special damage, and that can only be done by reimbursement.

Mr. Silverman

I am very much obliged to my hon. Friend; that is exactly my argument.

One is not saying that there shall be no remedy for the damage to the reputation; but that there shall be a real remedy instead of a financial remedy. That is the argument for this part of the Bill. One shall do everything in one's power to correct the loss of reputation which has followed from the defamation by apology and by publication of the apology. But under this Amendment, that could, in certain circumstances, be very unjust indeed, because it puts right the more intangible damage to the reputation, but leaves the innocent victim to bear every penny of the actual damage suffered.

My hon. and learned Friend says that he can see no difference in principle. I think everybody else can, and I should have thought it was not the sort of point about which the promoters of the Bill would wish to be obstinate. They do not seek to let innocent people bear the damage which they do not cause. They correct the balance at the one end, but are very obstinately resisting an Amendment which says that if a man can prove that he lost his job, his house or property or actual cash, then, however innocent the defamer may have been, he did the damage and he must put it right. That is all the Amendment asks for.

Mr. N. H. Lever

I sympathise with those who want the injured plaintiff in this class of case of unintentional defamation to have made good to him any financial loss he may have suffered in the way of out-of-pocket expenses, and I made arrangements in the drafting of the Clause for effect should be given to that desire. But if my hon. Friends are arguing that the injured man ought to have his financial loss made good to him in every case, then their Amendment certainly does not give effect to that. All their Amendment does is to give to the plaintiff the financial loss he suffers up to the time of the trial.

As has been pointed out, there is no logical reason why if a man is to have his loss as a result of the damage made good up to the time of trial, he should not have it made good after the trial. If we were to accept the principle put forward by my hon. Friends we would have to say that we are not going to call the kind of general damage "solatium" or "solatium" according to whether one uses the Scottish or the English pronunciation, but that we must give him his real financial loss. There is no logical justification for seeking, as the Amendment does, to give the financial loss up to the date of trial alone.

The House must make up its mind, as I have, whether we ought to give the financial loss up to the date of the trial or whether we should not. I have taken great care to inform myself on the subject from those with great experience in this branch of the law. I have asked hon. Members to cite examples, but I have not been able to discover a case where special damage has been suffered as a result of this particular kind of defamation.

Mr. Hale

If a man loses his job under the present procedure, he does not state that he has lost five weeks' wages before the date of lodging the claim. He throws it into the whole general procedure, and that is why we do not find a specific instance. But there is nothing in the rules of court to prevent a man stating a special damage for the actual loss he has sustained, and there is nothing in logic to say that when a starving man asks for bread one should refuse him half a loaf because one does not want to give him a whole loaf.

Mr. Lever

With the greatest sympathy for the point made, those who have made it have said, and the whole of their case depends upon saying it, that what we want to do and what is sought in the Bill is to eliminate solatium and to cover financial loss. If that is so, then I think the House ought to cover it properly.

Mr. S. Silverman

Surely it is not so illogical as my hon. Friend seems to think. We are dealing here with a case of unintentional libel where the defamer has sought to put it right by an apology. Supposing one said that a man had been convicted of embezzlement. His employer would sack him at once, but as soon as an apology was received, a decent employer would take him back, and presumably that will happen by the time of the trial. But the man may have lost six months' wages because someone said he was a thief when, in fact, he was not.

Mr. Lever

If he lost his job for life, one might equally say why cannot he have it back? My hon. Friend's argument is directed solely to the minor case, and no attempt has been made to move an Amendment to cover the really serious cases.

This matter was carefully considered by the Porter Committee. It has no relation to slander where special damage has to be proved in order to open up the action generally. In the case of slander, if special damage can be proved, the plaintiff can get unlimited damage. But that is not the intention of the Amendment. With great respect to my hon. Friends, I have tried, and the Attorney-General has tried, to go a long way to meet them on this point. In fact, the Clause will cover most of the cases of special damage up to the time of trial. But to attempt to cover it beyond that is to reject the Report of the Porter Committee, and to give full effect to the principles argued by my hon. Friends would be to make the Clause without any real value at all.

Mr. W. Wells

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Mr. Speaker

The hon. Member for Walsall (Mr. W. Wells) has exhausted his right to speak on this Amendment except by leave of the House, because he seconded it.

Mr. Wells

If I may have the leave of the House to speak again, I only wish to say how disappointed I was to hear the argument of my hon. Friend the Member for Cheetham (Mr. N. H. Lever). This point was included in a much more comprehensive Amendment which was put forward by my hon. Friend the Member for Widnes (Mr. MacColl) and myself in Committee. The argument of my hon. Friend the Member for Cheetham is that because one injustice is done one should commit another one.

Mr. N. H. Lever

No. I do not regard it as an injustice.

Mr. Wells

My hon. Friend says that it is not an injustice, but in this matter it is not possible to get away from injustice altogether. A person who is defamed, however unintentional the defamation is, suffers an injustice and a wrong. The object of the law should be to compensate him so far as it can. But then we have accepted the principle that when, in certain cases, the unintentional defamer was saddled with heavy general damages because of something he never intended to do, and took some precautions against doing, a second injustice was done. So we are saying today that there shall be no general damages in the cases that are comprehended within this new Clause.

What is put to the House is simply this: that where a clear, specific and ascertainable damage is suffered by a person defamed, that clear and ascertainable damage shall be rectified. The difference between the general and the special damage, in spite of what my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) has said, is perfectly clear. The injustice that will be rectified if this Amendment is carried is this. A man who has lost a job—in the most extreme example, at any rate—gets compensation that enables him to live up to the time of the trial. The reasons for abolishing general damage in these cases are quite clear, from the point of view of justice to the publisher and the person defamed, and from the point of view of the community generally.

If this Amendment is accepted we shall have restrained the blackmailing action and we shall have put an end to the unlimited damage which a more or less innocent person may suffer by playing with what is, in fact, a loaded gun. I urge my hon. and learned Friend to think again about this matter.

Sir Frank Soskice (Sheffield, Neepsend)

I confess that my inclination is rather the other way, and I do not quite agree with this Amendment for the following reasons. It is accepted that in certain circumstances a person who has suffered damage, the publication having been an innocent one, is not to receive compensation for it. Instead, he is to receive an offer of amends, and that which can be done to put it right is to be done by the innocent defamer. It is said that that principle should not apply to special damage, although it applies to general damage.

I did not understand my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) to say that there was in this sense no distinction in principle between the two in that the law is one and the same. He said—and the argument commends itself to me—that after a plaintiff has been defamed he suffers two categories of damage—general damage to his reputation and actual out of pocket loss. If he is asked which hurts him most, it is probably the case—and this is reflected in juries' awards-that that which hurts him most is the general damage to his reputation.

Mr. S. Silverman

Does not that depend upon who he is? If he is a man in comfortable circumstances, the loss of money may be of no importance at all, but at the other end of the social scale the loss of his livelihood and of his capacity to maintain himself, his wife and dependants may be much more serious.

12.15 p.m.

Sir F. Soskice

It is the damage to his reputation which would inflict that loss upon him. If he is in humble circumstances and he is branded as a thief, his reputation amongst all those persons who have to deal with him is seriously damaged and this will make it much more difficult for him in the future to maintain himself.

Therefore, the point that I would make against the Amendment, which I think is the point of my hon. and learned Friend the Member for Stoke Newington and Hackney, North, is this. There are two categories of damage. What we are saying here is that we accept that in certain circumstances an injured person should not be compensated. We are saying that he should not get general damage for the serious injury to his reputation—and wherever he is in the social scale, I should have thought that that was the more important to him.

If we except special damage, in my view we are excepting the less important thing, generally speaking, in the general category of plaintiffs, and we are also undoubtedly making the Clause much less effective than it otherwise would be. One of the objects of the Clause is that if a person who utters the defamatory words does so innocently, in the sense in which innocence has been defined, litigation should not result so long as he does everything to put it right. If this Amendment is accepted, litigation will probably result. To begin with, we shall be making the Clause far less effective for the purpose for which it was intended. We shall be, to a large extent, impairing the efficiency of the Clause.

I can see that if it could be said that a real distinction can be drawn between the two categories of damage, and if it can be said that the injured plaintiff can well afford to go without his general damage because he has got an offer of amends, but he cannot go without his special damage, there may be a case for the Amendment. But I think the general damage is the more important.

My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), in his effective speech, although I did not agree with it so far as general damage is concerned, said—and my hon. Friend the Member for Oldham, West (Mr. Hale) also said this—that the offer of amends has salved the wound as far as general damage is concerned, but it seemed to me that my hon. Friend the Member for Nelson and Colne supplied the answer when he said that any decent employer, if he sacked one of his employees because he had been called a thief and it turned out that he was not a thief, would take him back again. I should have thought that, generally speaking, the amends might go as far as to redress the damage as far as special damage is concerned, as it would so far as general damage is concerned.

The difficulty that I feel is this. If we are accepting in principle that, in certain circumstances, a person who has been injured is not to get pecuniary compensation, but is to be content instead with something which is in the form of an offer of amends, plus the doing of all that can be done to put the wrong right, it seems to me to be illogical to say, "We will take away his more serious damage from him; we will not do anything to redress the damage to his general reputation other than making this offer of amends, coupled with the carrying out of the offer, but we will, nevertheless, let him have pecuniary compensation in respect of the less serious damage in most cases, namely, the special damage." When I say "in most cases" I have in mind the awards that juries give. We may find that the special damage of a certain person is perhaps £200, but the general damage may be several thousands of pounds.

Mr. S. Silverman

Does not this argument involve an obvious injustice? In order to have a neat, logical, rounded argument are we to do an injustice which nobody wishes done? Surely that is involved in the argument of my right hon. and learned Friend, who is saying that we are going to take away from him money compensation for an injury to his feelings and, therefore, we should not give him back the money that he has lost out of pocket. Who should bear the damage—the money that is actually lost?

Mr. Speaker

We are now on the Report stage and we cannot have all these interjections, which really extend into second speeches. Has the right hon. and learned Gentleman the Member for Neepsend (Sir F. Soskice) concluded his speech?

Sir F. Soskice

Yes, Sir.

Sir Patrick Spens (Kensington, South)

I view this Amendment with a good deal of sympathy. I dislike what I regard as the serious injustice which results from the whole Clause; but the position has been modified to a substantial extent. It is perfectly true that general damages, as such, have been ruled out; but in their place power has been given to the court to award to the aggrieved party: any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question. That means that he will receive back moneys which he has had to pay and which he will only otherwise receive as special damages, but it leaves out what the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) has properly pointed out. He does not recover what he loses by losing a job, or something of that sort. It is an illogical halfway house. This new law can be neither logically defended nor logically attacked; but I agree with what was said by the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman), that if we do dispense with all special damages it means that a good many more cases will go to court than was the desire of the House when it gave this Bill a Second Reading and of the Committee upstairs when they gave a much less reasonable Clause a Second Reading.

In the circumstances I suggest that if we are to accept the Clause at all we should accept it in the form in which it is.

Mr. Ede (South Shields)

I hesitate to intervene in a discussion which has so far been confined to lawyers; but I must say, as a layman, that I view this Amendment with every sympathy. With regard to general damages, as far as I can see the man who has been defamed is to get a complete clearance. The innocent defamer—the person who was described by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) as "innocently guilty"; who is a quite new kind of person as far as I am aware—has to say, "This was a complete mistake. Whatever I accused this man of he is innocent. I am very sorry that I made these accusations against him" and, in words that one sometimes hears in the courts, the man will be assured that he goes out without any stain on his character. He has a complete vindication.

I have sometimes listened to learned judges and others in the courts decrying the idea that accusations of this general kind merit anything very much in the way of pecuniary damages, and they sometimes suggest that it is almost impossible to compute them. As I understand, special damages apply when a man, through his occupation generally, has suffered very considerably and may have lost his job or, in certain circumstances, has been put into a position where he is almost debarred from making a successful application for a job.

Mr. N. H. Lever

Any future loss will not be covered by special damages.

Mr. Ede

My hon. Friend the Member for Cheetham (Mr. N. H. Lever) is now saying, "I have made it so difficult for this man to get any continuing compensation for the loss he has suffered that if he did have any preliminary loss he should not have any preliminary compensation either." That may be good law, but to me it seems very bad justice. I am reminded of Douglas Jerrold's great saying: Self defence is the best of all laws; it is the one law the lawyers did not make. I suggest that the Amendment moved by my hon. and learned Friend the Member for Leicester, North-East (Sir L. UngoedThomas) ought to be accepted by the House because, even with the limitation on its effect that my hon. Friend the Member for Cheetham has so craftily designed—

Mr. Lever

It is the Amendment of my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas), not mine.

Mr. Ede

It is in the Clause of the hon. Member for Cheetham.

Mr. Lever

It is not my Clause that would limit it, but the words used by the hon. and learned Member for Leicester, North-East.

Mr. Ede

I am not going to be drawn into these subtle refinements. I am anxious to ensure that such justice as can be secured shall be secured. I understood that the lawyers were anxious to have this Bill. They have done their best this morning to prevent it ever becoming law. I do not want to assist them in that, but I hope that this Amendment will be carried.

Mr. MacColl

I think my right hon. Friend the Member for South Shields (Mr. Ede) has put this Amendment in its right context. It is not a question of legal refinement, but a question of plain common sense. In the Clause which was moved by my hon. Friend the Member for Cheetham (Mr. N. H. Lever)—and I did not ask him to move it—he has done what is obviously rough justice. He has had to hold the balance between a potential plaintiff who has suffered a grievous injury because of the acts of somebody else and a defendant who says that it was not his fault.

The Clause says that the plaintiff shall be debarred from the remedies available to him under the common law, provided the defendant makes amends. The ordinary person understands "making amends" to mean doing the decent thing. If any hon. Member should hit a tennis ball through his neighbour's window he would not go into questions of refinement as to responsibility. The first thing he would say is, "I am extremely sorry," and the second thing, "Let me pay for the damage that has been done," and that would be a sign that he was doing the decent thing.

If the neighbour then went on to say, "The ball coming through the window caused me severe shock and a nervous breakdown and I must go to the South of France to recuperate, and that will cost several thousand pounds," any ordinary person would think that that was exaggerated and that the question must be fought out in front of a jury.

My hon. and learned Friend's Amendment prescribes that before the defendant who has done this grievous injury can claim a statutory exemption from the common law he must show that he has wanted to do the decent thing; he has wanted to meet any pecuniary loss which the plaintiff has suffered. It does not lie in the mouth of my hon. Friend the Member for Cheetham to say, "I have drafted such a bad Clause that, in fact, even painstaking efforts to amend it, both upstairs and on the Floor of the House, have failed to meet the whole injustice that is done by the Clause". That is an argument which does not hold water for a moment. Within the limits of what can be done we have to try to make it as reasonably fair as possible, as between these two parties.

I think that the history of this matter is relevant to this discussion. In the Clause that we are later to remove from the Bill—Clause 4, as amended—the phrase relating to the evidence which the defendant prays in aid to avoid going to court is: … if the offer ought reasonably to be but is not accepted by the party aggrieved, it shall be a defence … 12.30 p.m.

That word "reasonably", as has been pointed out, got into the Clause upstairs. What happened was that my hon. Friend the Member for Walsall (Mr. W. Wells), being concerned about this matter, produced an Amendment which would have enabled it to be taken to court for determination. That was not popular with the Committee. An Amendment was moved to put in the word "reasonably" by no less a person than the hon. and learned Member for York (Mr. Hylton-Foster), whom one can regard from the point of view of his professional standing and common sense as a very good authority to follow. One of the reasons which he gave for putting in the word "reasonably" was reported at page 91 of the OFFICIAL REPORT: If the plaintiff were to say to the defendant, 'As a result of your unintentional defamation—and I accept that it was unintentional—I have lost my £7,500 a year job as the Chairman of the British Steel Corporation' that is a rather indelicate touch on the part of the hon. and learned Gentle-man— or whatever it might be, then, surely, the court, when it had to consider whether it was reasonable for the defendant to refuse a correction and apology as a total remedy, would say, 'One of the things I shall look at is whether the defendant suggested he might compensate the plaintiff for his special damages'".—[OFFICIAL REPORT, Standing Committee B, 26th February, 1952; c. 91.] In other words, the hon. and learned Gentleman, speaking with the great weight of his professional experience, is saying what, in fact, any normal commonsense Member of the House would say.

Mr. N. H. Lever

My hon. Friend has paid a very deserved tribute to the hon. and learned Member for York (Mr. Hylton-Foster), quoting him at great length. May I mention that the same hon. and learned Gentleman has come to the conclusion that the Amendment which he then moved was completely wrong and has authorised me to say that he does not desire it to be contained in the Clause which has been tabled. Perhaps my hon. Friend the Member for Widnes (Mr. MacColl) would therefore give some weight to the hon. and learned Gentleman's views about that.

Mr. MacColl

My hon. Friend the Member for Cheetham (Mr. N. H. Lever) reminds me rather of the prisoner who was asked which counsel he would like to have and who said, "I would rather have a good witness."

My hon. Friend has produced out of the hat, without any warning, an alleged statement which the hon. and learned Member for York is supposed to have made. I am relying on what, in fact, he did say. What he might have said in the course of the behind-the-scenes negotiations is not a matter which the House can consider, brought out, as it is, in this way. The hon. and learned Member for York made it clear, when he moved his Amendment, that he did not think it was a sound Amendment; he was doubtful whether it met the point.

But there was no doubt at all what the point was which he was trying to make, and I think my hon. Friend the Member for Cheetham is being a little disingenuous if he is merely relying on the fact that the hon. and learned Member for York knew the shortcomings of the use of the word "reasonable" to deal with the point of principle which the hon. and learned Gentleman expounded with such clarity upstairs.

I do not need to develop the point any further, for I think the argument is perfectly clear. On grounds of common justice and decency, I think the House will agree that somebody who has done an injury of this kind, and who intends to pray in aid a special statutory exemption from his common law responsibility, should show that he is prepared to do the decent thing. My hon. Friend the Member for Cheetham has moved the word "reasonable" out of the Bill for reasons which may be very good. I am not quarrelling about that. But it is not really open for him to say to my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), "After all, your Amendment does not go the whole way."

The Amendment goes a long way to try to meet a point which we all accepted upstairs—because there was no Division, and the Amendment of the hon. and learned Member for York was accepted without any vote at all. We all felt that this should be done in common justice, and I am sure that any ordinary hon. Member or member of the public who thinks about the problem will feel that, quite apart from the legal aspect of it, this is the right thing to do. I hope that the House will accept the Amendment.

Sir L. Ungoed-Thomas

I am extremely disappointed by the attitude adopted towards this Amendment. I will deal briefly with the points which have been made. First of all, there is the point made by the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman), who suggested that the Amendment would mean that, where there was special damage, the whole case would continue. The hon. and learned Member for Kensington, South (Sir P. Spens), for whom I have such great respect in these matters, if I may say so, also pursued that point.

If these hon. and learned Gentlemen will be so good as to look at the Amendment in its context, they will see that that is not the effect at all. What is provided is that if the offer is not accepted by the party aggrieved, that shall be a defence except as to special damage. What that means is not that the whole of the case will be continued and will remain open and that the object of the Clause will be defeated; all it means is that the one issue of special damage will have to be decided.

Mr. Weitzman

How can we possibly fight an action, even as to special damage, unless we fight all of the issues in the action?

Sir L. Ungoed-Thomas

Quite easily. The whole sub-stratum, the whole purpose and the whole underlying principle of the Clause is to deal with non-intentional defamation, where the defamer acted unintentionally. All that would be left would be an inquiry as to special damage, and that could be dealt with within a small ambit. It would not lead to the result which is contemplated by the hon. and learned Member for Stoke Newington and Hackney, North.

Mr. S. Silverman

The Clause provides that the publication of the apology is a complete defence to every other issue, and the only issue left to be tried, therefore, would be that of "How much?"

Sir L. Ungoed-Thomas

Exactly. I am obliged to my hon. Friend. That would be precisely the position, and that is the answer to the point raised by the hon. and learned Member for Stoke Newington and Hackney, North.

May I come to the question of the difference between special damage and general damage? My hon. Friend the Member for Oldham, West (Mr. Hale) put this very clearly in a short intervention. He said that the apology itself went to deal with the general damage, and that left only the special damage; but, of necessity, the apology and the correction cannot go to the special damage, which is left outstanding.

I come now to the point made by my right hon. and learned Friend the Member for Sheffield, Neepsend (Sir F. Soskice) and my hon. Friend the Member for Cheetham. That is a point with regard to the future. Here, on special damage, we are dealing with special damage of the past. What is contemplated is that a correction and apology shall be given. Let us take a concrete case—he case of a man who is accused of being a thief, is thrown out of his job and is out of his job for six weeks.

Mr. F. P. Bishop (Harrow, Central)

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Sir L. Ungoed-Thomas

Would the hon. Gentleman please let me finish the instance I am giving?

The man is out of his job for six weeks and loses his salary or wages during that period. A correction and apology is then given. It is made perfectly clear that the whole thing was a mistake and, subsequently, the man is reinstated in his job. As my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) has said, he would be reinstated in his job by any decent employer. The matter would be dealt with in the future in that way, but he has still suffered for the past, and that damage would still remain. He would be out of pocket to the extent to which he had had no wages during the period, whether it was long or short, during which he was out of a job because of the existence of the defamation, which had not then been withdrawn.

My hon. Friend the Member for Cheetham referred to the general damage being the greater damage. It may well be the greater damage, but in the instance of the £7,000 case which was given the general damage would arise where the action is fought out, in which there is no correction and apology, in which the defence of justification has perhaps been pleaded, in which, perhaps, the way in which the defence has been conducted aggravates the damage, in which fair comment may be pleaded and cannot be sustained—all kinds of things which do not arise in cases envisaged by the Amendment.

It does not touch the question of the loss of wages by a man who suffers by reason of defamation, and I should have thought that what my hon. Friend said in an intervention was perfectly clear; that to a person well up in the social scale, an aspersion on his reputation might well be of incomparably greater importance than the loss of a job which is suffered in consequence. But in other walks of life, with people who are near the very margin of existence, it is a matter of extreme importance whether a person is in or out of a job.

One cannot simply brush it aside and say that it is a comparatively small matter in comparison with the general damages in £7,000 cases for injury to reputation. What working man would get damages for £7,000 for injury to reputation in the ordinary course of events unless the defence had been conducted in such a way as to aggravate the damages?

That is a very simple proposition. I suggest that special damage of this kind, when a person has suffered loss of a job, for instance, by reason of the defamation, is something which is easily assessed; it is easily ascertained, it can be proved without difficulty. It is, in fact, an out-of-pocket on the part of the person who suffers it. He is down by that much by reason of the defamation—a perfectly ascertainable sum; and it is one which, I should have thought, the promoters of the Bill could have accepted without in the least impinging upon the general proposition which they produce of washing out the general damage because of the correction and apology, which is the subject of the proposed Amendment to Clause 4. That correction and apology does nothing at all to touch the special damage position. It leaves it completely untouched, and for that reason I propose that the Amendment should be pressed.

Mr. Weitzman

I am sure that my hon. and learned Friend does not desire to make a false point to the House. I interrupted him to point out that the action would go on as far as special damage was concerned. I understood him to say that it was only a question of assessing the special damage. If my hon. and learned Friend looks again at subsection (1, a) of the new Clause, he will see that he is completely wrong and that there appear the words: if the offer is accepted by "—

Mr. Speaker

Order. This is one of these long interventions which are out of order as a second speech on the Report stage.

Mr. Bishop

I only wanted to make one small point, and I apologise for having attempted to make it at an incon- venient moment. The hon. and learned Gentleman said—and it has been said by several other speakers—that a man may be called a thief; that charges of this or that kind may be made against him, charges which might cause serious damage to him.

But is that really possible under the Clause? The point I wanted to make is that this is a very narrow field within which the Clause can apply for the benefit of an unintentional defamer. The only case in which the Clause can be pleaded is either a case in which a person did not mean to refer to the other person at all, or alternatively, where the words on the face of them have no defamatory meaning; so that the second could not possibly apply in any case where a man was accused of being a thief or where there was any serious accusation of that kind. A serious accusation could only arise in a case where it was taken by some persons to apply to a man to whom it was never intended to apply at all. Surely that can be very easily and satisfactorily dealt with by the form of apology and correction which is proposed.

12.45 p.m.

Mr. John Wheatley (Edinburgh, East)

Does the hon. Member appreciate that ex hypothesiof this position the plaintiff would otherwise be entitled to special damages?

Mr. Bishop

To general damages. The whole intention, surely, of the Clause is to alter the law in that respect.

Mr. S. Silverman

It is quite true that the law is intended to alter the balance as between innocent perpetrator and innocent victim. What is suggested by the Amendment is that this does not correct the balance; it weights the balance further against the innocent victim.

Mr. Bishop

On that point the suggestion has been overstressed, because the very narrowness of the defence that is given here to an innocent defamer makes it extremely improbable that a case could arise in which serious damages were actually sustained by the plaintiff. I do not want to overpress that point.

I want simply to emphasise the other point which has been made, and which I do not think the hon. and learned Gentleman completely accepted. That is, the danger that with the Amendment the Clause may fail to do what, surely, it was mainly intended to do. That is, to bring to an end the kind of flood of libel actions, which used to occur and which could occur again, of what has been called the "gold digging" or "profit making" nature.

Mr. Silverman

Why should it? All the defences in an innocent defamation contemplated by the Clause are left unaffected by the Amendment. There would only be litigation where an innocent defamer said, "I will not put

Mr. Speaker

The next Amendment selected is that in the name of the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas), in line 19. I think the next Amendment standing in his name, in line 27, might be discussed at the same time.

Sir L. Ungoed-Thomas

That would be a very convenient course to adopt.

I beg to move as an Amendment to the proposed Clause, in line 19, after "aggrieved" to insert: and that as soon as reasonably practicable he took such steps as were reasonably practicable for notifying persons to whom copies of the document or record containing the said words had been distributed that the words are alleged to be defamatory of the party aggrieved and identifying all such other persons as were to his knowledge jointly responsible for such publication. This Amendment deals with the contents of the affidavit which the defamer

right the actual loss of money you have suffered."

Mr. Bishop

It does, however, open the door to the plaintiff to threaten the defendant with legal proceedings and thereby to reopen some of the evils with which, I thought, the Clause was intended to deal. That is all I wished to say.

Question put, "That these words be there inserted in the proposed Clause."

The House divided: Ayes. 29 Noes, 45.

Division No. 119.1 AYES 112.50 p.m.
Ayles, W. H. Hughes, Emrys (S. Ayrshire) Viant, S. P
Bing, G. H. C Hynd, H. (Accrington) Wallace, H. W.
Castle, Mrs, B. A Janner, B. Wells, William (Walsall)
Champion, A. J. King, Dr. H. M. Wheatley, Rt. Hon John
Chelwynd, G. R. Mikardo, Ian Wilkins, W. A.
Davies, A. Edward (Stoke, N.) Morley, R. Yates, V. F.
Ede, Rt. Hon. J. C Moyle, A. Younger, Rt. Hon K.
Hale, Leslie (Oldham, W.) Silverman, Julius (Erdington)
Hall, Rt. Hon. Glenvil (Colne Valley) Smith, Norman (Nottingham, S.) TELLERS FOR THE AYES:
Houghton, Douglas Stewart, Michael (Fulham, E.) Mr. MacColl and Mr. Silverman.
Hudson, James (Ealing, N.) Ungoed-Thomas, Sir Lynn
NOES
Alport, C. J. M Holmes, Sir Stanley (Harwich) Robertson, Sir David
Bell, Ronald (Bucks, S.) Hughes, Cledwyn (Anglesey) Rodgers, John (Sevenoaks)
Bennett, F. M. (Reading, N.) Hylton-Foster, H. B H. Royle, C.
Bennett, Sir Peter (Edgbaston) Johnson, Eric (Blackley) Russell, R. S.
Bishop, F. P. Law, Rt. Hon. R. K. Simon, J. E. S. (Middlesbrough, W.)
Brockway, A. F Legge-Bourke, Maj. E A. H Spens, Sir Patrick (Kensington, S.)
Brooman-White, R. C. Lever, Leslie (Ardwick) Storey, S.
Buchan-Hepburn, Rt. Hon. P. G. T. McAdden, S. J. Thomas, P. J M (Conway)
Clyde, Rt. Hon. J. L Mackeson, Brig. H. R. Ward, Miss I. (Tynemouth)
Conant, Maj. R. J. E. Macpherson, Maj. Niall (Dumfries) Watkinson, H. A.
Crosthwaite-Eyre, Col. O. E. Mallalieu, J. P. W. (Huddersfield, E) Weitzman, D.
Davies, Ernest (Enfield, E.) Manningham-Buller, Sir Reginald White, Baker (Canterbury)
Duthie, W. S. Nugent, G. R. H. Willey, Octavius (Cleveland)
Fell, A. Oakshott, H. D.
Foot, M. M. Orr-Ewing, Charles Ian (Hendon. N) TELLERS FOR THE NOES:
Heald, Sir Lionel Plummer, Sir Leslie Mr. Harold Lever and Mr. Gage.

has to put in and send with the offer of amends. He has to put in an affidavit to show that he was not negligent, and that he acted without intent to defame, as it was expressed in the former Clause, or acted innocently, as expressed in the present Clause. The whole basis of this Clause is that the defendant did not intend to defame the plaintiff and did not know the circumstances which made the words defamatory. These considerations are accepted, but for some reason the affidavit which has to be sworn does not cover what the defendant should do if he really is an innocent party. It is proposed that the affidavit, in addition to establishing that he had no intent to defame and that he acted without negligence, should establish that, as soon as reasonably practicable he took such steps … for notifying persons to whom copies of the document or record containing the said words had been distributed that the words are alleged to be defamatory of the party aggrieved and identifying all such other persons as were to his knowledge jointly responsible for such publication.

Those are the two propositions which it is proposed should be included in the affidavit, but which are not included in the affidavit as at present covered by the Bill.

The first part of the proposal is that he should take such steps as are reasonably practicable to notify persons to whom copies of the document or record containing the words have been distributed. If he is an innocent party, acting innocently within the meaning of this Clause, it is only reasonable that he should immediately inform persons to whom he has distributed copies of the publication that the words are alleged to be defamatory. In other words, he cannot play hot and cold; he cannot say "I am acting perfectly innocently. I never had any intention to defame at all, and therefore I should be let off any damages which I have caused", and at the same time allow to circulate those publication which contain the libel.

What any honourable person would do would be immediately to withdraw the defamation, and all that the first part of the Amendment does is to ensure that he will have done so, and to ensure that when he makes his affidavit stating that he acted innocently he should at the same time state that he did what any innocent person would naturally do, which is to notify the persons to whom he has circulated the libel so that the libel cannot have further circulation.

1.0 p.m.

In other words, he should not at the same time be in a position to allow the libel to circulate and to say, "I am innocent of it." It is extremely important that if he is to apologise and correct it, he should do so at the earliest possible moment. It is suggested in the Bill as it stands that he should, when he makes his offer of amends, offer to notify the people to whom he has circulated the libel. But that is losing time, and losing time at a time when the libel is circulating and continuing to do harm. He should do what any innocent person would normally do, that is, withdraw the libel.

The second part of the Amendment say: identifying all such other persons as were to his knowledge jointly responsible for such publication.

As far as I am concerned, in view of the acceptance by my hon. Friend the Member for Cheetham (Mr. N. H. Lever) of the Amendment proposed by my hon. Friend the Member for Deptford (Sir L. Plummer), I do not consider it necessary to press that part of the Amendment, because I think that the position of any author, who would be the principal person concerned with the publication, would already have been covered by the Amendment accepted. Therefore, as the substance of my objection to the Clause as it stood has been met, I do not propose to press that point, but to limit myself exclusively to the question of notification.

I ask my hon. Friend to accept the principle, which was so strongly pressed on him in the Committee, that notification should be made immediately and, as a natural consequence of that, if the notification is made immediately, that the affidavit should contain the statement that the notification has been made.

Mr. S. Silverman

I beg to second the Amendment.

If I take a minute or two in doing so, it is not that I am in any way dissatisfied with the very lucid and full explanation of the purpose of the Amendment which my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) has given, but because the promoter of the Bill was not here when that lucid and full explanation was given. It would be a great pity if he were to oppose it without knowing what it was about, or when merely relying on something which is or is not in the report of the Porter Committee, made so long ago in other circumstances and on inadequate evidence.

In form, the Amendment only affects the form of the affidavit which the defendant who relies on the defence of innocent defamation ought to supply, but it would be uncandid not to make it quite clear that the Amendment, if accepted, would impose upon such a defendant two duties that are not expressed in the Bill as it stands. Let us see what is the affidavit form and why we want to amend it. The subsection contemplates a man who has published a piece of defamation which he cannot justify and cannot defend by the law as it stands but who, within the definition contemplated by the Bill, nevertheless ought to be excused because his defamation was innocent in the sense defined. What the Clause proposes is that such a man who claims that he ought to be excluded on the grounds that his tort was innocent, will have some grounds for relying upon this special defence and ought to disclose those grounds at an early stage to anyone who has suffered by reason of his unintentional misconduct.

What the Amendment seeks to do is to ensure that he shall put two further things into his affidavit, which, of course, he will not be able to put into his affidavit unless they are proved, that is to say, unless he has done them. The first is surely an eminently reasonable thing to do and no kind of reasonable objection is conceivable. When one publishes, it is of the essence of this special defence that one did not know one was doing any harm, and then it is clear that there comes a point at which one realises that, however unintentionally, one has in fact done damage. No one would say that it is reasonably practicable until the defendant is made aware that he has done unintentional damage, but, as soon as he becomes aware of it, what the Amendment asks him to do is to bring that fact as quickly as may be reasonably practicable to the notice of all persons to whom his unintentional defamation has been published. It is very difficult to see upon what possible ground the Amendment can be resisted.

It may be said in some cases, "Oh, the circulation has been very wide and it would be very difficult for the defendant to overtake all the harm he has done," but this seems to me to be not a reason for excusing him. It is surely a reason for laying upon him a duty—and this Amendment does no more—of doing everything reasonable and practicable to overtake and undo the damage he has unintentionally done. In the case of a newspaper, it can be done by a suitable advertisement reasonably prominently displayed and reasonably printed. In the case of a book, it can be done by bringing it to the notice of the publishers, the distributors, so that they could withhold the book from circulation until the unintentional defamation has been removed from it.

It is surely not contended that, because a piece of defamation was innocent or unintended, it should have a licence to be published forever. Obviously it must be stopped, and all that the Amendment provides is that as soon as it is realised that damage was done, damage which the defendant did not intend to do, he shall do everything in his power to overtake the damage without waiting for the publication of the apology, or without waiting for proceedings in court, and, if he is relying upon a special statutory defence created especially for him as a special category of tort-feasor, this is surely not an unreasonable thing to ask.

My hon. and learned Friend thought that the second part of the Amendment was covered by the Amendment already accepted, but, with great respect, I do not think so.

Sir L. Ungoed-Thomas

I agree that it is not completely covered, and I did not say they were identical, as obviously they are not.

Mr. Silverman

It is of course perfectly true that the second part of the Amendment would have been even more important but for the Amendment acceptance of which has already been notified. But it is still a significant part of the Amendment because the Amendment of which acceptance has been notified lays upon the defamer the duty of saying that anyone associated with him in the damage shall be as responsible as he was, and he might conceal the author and therefore escape the protection accorded by the Amendment which has been accepted. It may not be known by the plaintiff who the author of the libel was.

Mr. N. H. Lever

Surely the onus is placed on the defendant by the Amendment which has been accepted, to prove the author's absence of malice. It is difficult to prove that he had no malice without disclosing who the author was.

Mr. Silverman

Of course, that is true as far as it goes, but there may be more than one author. By the time it reaches the newspaper and by the time it reaches the public through the newspaper, it may have passed through a variety of hands. I do not think it is any hardship at all on the defendant in such cases to be under a duty to disclose who the authors are. That is the second requirement on the defendant.

Since the defence of the disseminator of the libel depends first on his own innocence and lack of intention, and equally upon the lack of intention of the author of the libel, then obviously justice will not be done unless the defendant who is known indicates to the plaintiff the actual author or authors of the words or publication complained of.

It seems to me that nothing but arrogant obstinancy would resist a reasonable point of this kind. I was as disappointed as my hon. and learned Friend about the attitude of the promoters of the Bill to the last Amendment. It is perfectly clear that the argument was virtually one way, and though any dissenters from it had not the sympathy of the overwhelming majority of those who heard the argument, nevertheless the Amendment was defeated.

Mr. Deputy-Speaker (Colonel Sir Charles MacAndrew)

The hon. Member is on the previous Amendment.

Mr. Silverman

I am not discussing the merits of the previous Amendment, but only pointing out what happened in order to beg my hon. Friend and the promoters of the Bill to see that it does not happen on this occasion, for then the decision of the House went directly against the overwhelming sense of those Members who heard the argument, and was carried largely by those who had been in the Dining Rooms or Smoking Room and had not heard a single word of the merits of the case.

There are very few people here, and I beg of my hon. Friend to pay attention to the facts which I am putting to him. After all, he is seeking to do something which will enshrine his name in our legal history in a modest way, but, none the less, in a very real and significant way. If this Bill goes upon the Statute Book it will go upon the Statute Book as the Lever Act. He knows that and it is a reasonable ambition to have. I envy the opportunity he has had, but does he want to enshrine on the Statute Book of this country an obvious injustice however small it may be, through obstinately insisting upon his creation?

My hon. Friend is seeking to do what he considers to be a great reform. Let him do it justly in a way which he will not live to regret, and if the argument on these particular points are all one way and if those arguments cannot be reasonably contested, let him not rely on some other persons outside the House, and let it not be said about this issue in years to come, "Never mind the argument which was so convincingly and persuasively put; Porter would not have it and, therefore, I will not have it." That is not the way that the laws of the country ought to be established or created and I ask my hon. Friend to consider the argument on its merits and to accept the Amendment.

1.15 p.m.

The Attorney-General

I should like to make an appeal to hon. Members in this matter. The hon. Member for Nelson and Colne (Mr. S. Silverman) has rather suggested that if an Amendment he puts down is not immediately accepted not only are those who do not accept it regarded as arrogantly obstinate, but the Bill in that case will not be allowed to proceed. I hope we shall not take that sort of attitude, because we are most anxious to get this Bill through.

As to the present Amendment, it cannot be accepted as it stands for reasons which I will explain if I may. First of all, there are two phrases as reasonably practicable in it. Those words are the strongest possible invitation to some kind of litigation, and there is no machinery here which can be applied for that purpose. It may be—

Sir L. Ungoed-Thomas

rose

The Attorney-General

Perhaps the hon. and learned Gentleman will allow me to finish my sentence. He has had ample opportunity to put his points and now it is my turn.

Sir L. Ungoed-Thomas

I only wish to clear up something which the right hon. and learned Gentleman said. There is no need for an observation of that kind.

The Attorney-General

Very well.

Sir L. Ungoed-Thomas

As the right hon. and learned Gentleman made a reflection on the drafting of it, I wanted to point out that the words as reasonably practicable are lifted from the Clause of the Bill which he himself sponsors.

The Attorney-General

The hon. and learned Gentleman has not listened to what I have been saying.

Sir L. Ungoed-Thomas

I have listened carefully.

The Attorney-General

The reason why they are used there is for the purpose of going before the court and having a determination made as to what steps are to be taken. By this Amendment that provision would be struck out and the whole basis would be defeated because the court now will not have the power to decide what steps ought reasonably to be taken.

Surely it ought to be possible to defer consideration of this matter and discuss it to see if we can find some way of dealing with it and have a Clause introduced in another place. If we continue as we are going at present there is not the slightest chance of completing the Bill today. There are some who did not want the Bill at all, and I hope that we may have the co-operation of hon. Members who are present.

Mr. S. Silverman

Before the right hon. and learned Gentleman sits down may I remind him that In the course of the Committee stage there were several cases on which such an undertaking as he now offers was made for the Report stage. I have read the Order Paper very carefully and in a number of cases the undertaking given has not been honoured. I certainly think it unsafe, in those circumstances, to rely upon such an undertaking now.

The Attorney-General

I should like to reply to that. All I am saying is that we have not found it possible to construct a form of words which will deal with this situation we are now discussing. I am sure the promoter of the Bill—I have no right to speak on his behalf—would be prepared to help in any way to see if we can arrange a form of words which are suitable. If we try to do it now we shall not make progress with the Bill; we shall merely be adding fuel to the fire for those people who, if they still exist, want to block the Bill.

Mr. N. H. Lever

I will not add very much to the Attorney-General's argument except to say that my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) must believe that I am not arrogantly obstinate because I have disagreed with his Amendment after most careful consideration. I would ask him to bear in mind that the whole of the relevant clause emerged from the Law Officers Department, and the promoters of the Bill are closely associated with the Law Officers on this Bill. This was the advice which we got from that Department and I claim the credit of accepting the wording. We were anxious to find additional protection but nobody else suggested it, nor did the Porter Committee. We are doing our best with it, and I can assure my hon. Friend that we are anxious to meet everybody but that for the reasons given by the Attorney-General we are not satisfied with the additional protection for the injured person.

Mr. S. Silverman

That is not what the Attorney-General said. He accepted the principle of the Amendment. He said that what we were trying to do was the right thing, but that the wording will not do.

The Attorney-General

HANSARD will show that what I said was not what the hon. Member has just suggested.

Mr. Lever

The term "author" means the originator of the words and there Is no doubt that may be interpreted as "author" or "authors" to give effect to the intention of the Clause before the publisher can prove the honesty or innocence of the person who was the origin of the matter.

I think the House should bear in mind that all that is asked for is a duty to notify that it is alleged the matter is libellous. What is proposed In the Clause itself is to seek 24 hours in which the matter may be properly tested according to the machinery of the Bill. Why should we insist, on a person having something less than the full protection he would get 48 hours later? Here he would get only a mere notification which might add to the injury. The defendant would have to publish, as soon as his attention is called to the fact, that a published reference to "Mr. John Smith" meant that he was a thief. It would give no satisfaction to Mr. John Smith to have that reported.

I am pointing out these considerations which are in my mind not because I am anxious to espouse the cause of the "Libellers' Union," or to assist people who are anxious to defame the character of other people. I am not doing it because of any consideration for the Porter Report. There are a few expressions with which I myself disagree in the Report of that august Committee. But we might start from the assumption, until the contrary is proved, that the Porter Committee has not proposed anything outrageous.

I have been assisted by the Attorney-General only in so far as he brought arguments to bear upon me to give greater protection. I have never been under any pressure to make a more severe Clause or one more beneficial to the defendant. In those circumstances, I would ask my hon. Friends to withdraw the Amendment. If they can persuade me that something of this nature could be provided which will add to the protection already granted in the Clause I shall be as ready to do so as they are. I am as concerned about the reputations of innocent people as they are; and certainly the Law Officers of the Crown share their desire that innocent people shall have the fullest possible protection. I would urge them not to suppose that we are resisting this Amendment in any spirit of unreasonableness or hostility. We cannot argue that these matters should be tested by the number of people present in the House at the time when we discuss them.

Sir L. Ungoed-Thomas

I am sorry to have heard the observations of the Attorney-General. What we are concerned about here, in an important Bill which is making serious inroads into the present law on defamation, is that the Amendments we propose should be fully considered and answered on their merits. In view of the attitude of the Attorney-General on the first Amendment on the definition of words which are defined in the Clause which the promoter of the Bill brings forward, I am bound to say it is a little difficult for him to say that time is being taken up unduly by other people.

On this Amendment he again made some observations regarding drafting which are not calculated to accelerate the passage of the Bill. He said that the words, "as soon as reasonably practicable" were open to exception. May I read to him the words in the Amendment and then the words in the new Clause of the Bill from which they are lifted. The words in the Amendment are: and that as soon as reasonably practicable he took such steps as were reasonably practicable for notifying persons to whom copies of the document or record containing the said words, had been distributed. …"

Subsection (3, b) of the proposed new Clause says:

"where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved. The difference between us is not on drafting. It is whether the action should be one which is offered in the affidavit or whether it is one which should immediately take place and be included in the affidavit as having taken place. There is no great discrepancy of drafting between us. The discrepancy is on the question of policy, as to whether the action should be taken immediately, or be incorporated as an offer in the affidavit.

I was pleased to hear that the hon. Member for Cheetham (Mr. Lever) and the right hon. and learned Gentleman say they were prepared to deal with this Amendment in the way they indicated, but I am not clear as to what exactly is the proposal. If they say they will incorporate the substance of this Amendment in a more appropriate way, and draft an Amendment in another place, I would not take up any more time of the House about it. But if the proposal is not that, I should like to know precisely what is proposed. The object I have in mind is merely to see that the substance of this Amendment is dealt with.

The Solicitor-General (Sir Reginald Manningham-Buller)

I think that the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) is wrong if he says there is any discrepancy as to policy. I do not think there is. I think the difficulty is entirely with regard to machinery and it is not easy, as I am sure he will agree, to devise satisfactory machinery to achieve our common object.

We are here dealing with matters within a narrow compass. The defendant is notified that by a mistake he has published a libel. He promptly makes an offer to make amends. In making that offer he commits himself to carry out whatever the court think reasonable. As the Clause stands it will be for the court to determine what is reasonable in the particular circumstances of the case.

Then the Amendment calls attention to the fact, and it is a fact, that as the Bill now stands, some interval of time may elapse beween the publication of the libel and the drawing of the attention of the proposed defendant to the libel and the taking of steps which in the last resort may be laid down by the court to repair the damage. As I understand the Amendment it is designed to try to fill the gap; and make sure that as soon as the defendant has noticed that he has libelled someone he should not wait, but if be is going to make an offer to make amends that he will do all that is reasonably practicable to repair the damage.

I do not think there is any disagreement as to the objective. All the Amendment seeks to do is to make provision that the defendant who wishes to avail himself of this defence shall make provision for retailing that in his affidavit. I am not sure that that is entirely satisfactory, but I would say that it is impossible for any Member of this House to say what will be done or what will not be done in another place. One cannot give a positive declaration of that kind.

However, as I understand my right hon. and learned Friend—and I think the hon. Member for Cheetham (Mr. N. H. Lever) has agreed—if satisfactory machinery can be devised to remedy the position I am sure that every inquiry and effort will be made to bring about the necessary alteration. I hope that we shall not fail in that objective, but we may have to because it may be that the provision gets so involved and difficult that it ceases to be of any practical effect. I do not think that the hon. and learned Gentleman is right in saying that there is any difference on policy.

1.30 p.m.

Sir L. Ungoed-Thomas

I am most grateful to the hon. and learned Solicitor-General for his observations, which have cleared the position completely. I appreciate what he says about there being no difference in policy and about his intention. In the circumstances, I beg to ask leave to withdraw the Amendment.

Amendment to the proposed Clause, by leave, withdrawn.

Sir L. Ungoed-Thomas

I beg to move, as an Amendment to the proposed Clause, in line 41, after "of," to insert: costs on an indemnity basis and: I do not think that there is any question of substance between us on this point. I merely want to know how we stand. The difficulty is that the Bill as drafted provides for the payment of the wronged party's costs. It also provides for the payment of expenses. What might happen is that the costs awarded by the court might be party and party costs or solicitor and own client costs which might not cover all the costs incurred. The expenses in contra-distinction to costs might not cover the difference between solicitor and own client costs and costs on an indemnity basis.

I am sure that the intention is that that gap should be covered and that the expense should be borne by the party responsible for the defamation. My only purpose in putting down this Amendment was to inquire how far that gap was, or would be, covered by steps which my hon. Friend the Member for Cheetham (Mr. N. H. Lever) might be prepared to take.

Mr. S. Silverman

I beg to second the Amendment.

It is obvious that in the whole spirit of the Bill it was not intended that the innocent plaintiff should suffer anything preventable. Costs or any expenses reasonably incurred in clearing the matter up ought obviously to be the responsibility of the defendant and not the plaintiff.

The Solicitor-General

I would advise the hon. Member for Cheetham (Mr. N. H. Lever) to accept this Amendment. I do not think that it departs in any way from the original intention of the Bill. It makes it clearer. The effect of subsection (4 b,) of the proposed new Clause is to give the court a discretion about what order it makes as to costs. Under that Clause costs can be awarded on a solicitor and own client basis. This Amendment makes clear beyond doubt what I think was clear before. I enter the caveat, because I see the right hon. and learned Gentleman the Member for Edinburgh, East (Mr. Wheatley) looking at me, that the implementation of this Amendment in relation to another part of the United Kingdom may require some slight adjustment in the wording. I hope that we need not embark upon that matter today, because this Amendment mereiy makes more clear the original proposal. I advise my hon. Friend to accept the Amendment.

Mr. N. H. Lever

Advice which is accepted.

Amendment to the proposed Clause agreed to.

Mr. John Wheatley

I beg to move, as an Amendment to the proposed Clause, at the end, to add: (6) In the application of this Section to Scotland,— (a) for subsection (2) there shall be substituted the following subsection— (2) An offer of amends under this section must be expressed to be made for the purposes of this section and the Court of Session may by Act of Sederunt prescribe the form and manner in which such offer shall be communicated to the aggrieved party and the extent to which and the conditions on which such offer may be founded on for the purposes of a defence under paragraph (b) of subsection (1) of this section; "and (b) for the reference to the High Court there shall be substituted a reference to the Court of Session or, if an action of defamation is depending in a Sheriff Court in respect of the publication in question, the sheriff, and, if no such action is depending, the sheriff who would have jurisdiction if such an action were raised. Perhaps it would be convenient if I indicated that a further Amendment in my name in page 5, line 43, is consequential on this Amendment. I appreciate that the time at our disposal is fairly short and I do not intend to impede the progress of this Bill. But as this is the first occasion during either the Committee or the Report stage when the voice of Scotland has been heard and since, as far as I am aware, it may be the last time, subject to any reply from the right hon. and learned Gentleman the Lord Advocate, that the voice of Scotland is heard on this Bill, I make no apology for moving this Amendment.

The first part of the Amendment seeks to provide machinery whereby the principles embodied in the new Clause can more readily be adapted to Scottish law and procedure. This is primarily an English Bill. Many parts of it do not apply at all to Scotland. These include Clauses 1, 2, 7 and 14. Of course, no reference to the Law of Libel Amendment Act, 1888, can have any application to Scotland because that Act does not apply to Scotland. No reference to the law of criminal libel can have any reference to Scotland, because we do not have a law of criminal libel in Scotland. Manifestly, this is not a Bill primarily affecting—

Mr. C. H. Gage (Belfast, South)

In any case, Scots people never take defamation actions.

Mr. Wheatley

That is relatively true. Although a lot of people may be surprised to know it, actions for defamation are not common in Scotland. That may be because we are not so grasping for money in Scotland as are people in other parts of the United Kingdom. It may be that we are less thin skinned, but I am inclined to the view that we have more broad common sense than people in other parts of the United Kingdom and that we do not trouble with this type of action.

I think that it would have been better to have had a separate Bill for Scotland, but I appreciate my hon. Friend's difficulty. He designed this Bill primarily for England. It was desirable that the principles incorporated in it should come into operation in both countries at the same time, for obvious reasons, and he did his best to adapt this Bill to Scottish law and procedure. But the difficulty of adapting a procedure designed for English law to Scottish law is demonstrated by this new Clause. The Amendments I have tabled seek to remedy the position as far as possible.

The subsection provides certain machinery. The position can arise in one of two circumstances—either when no action has been raised in court, or during the dependence of an action. It is proposed by the Scottish Application Clause to substitute for the affidavit a written declaration. That is something entirely new and hitherto alien to our Scottish law and procedure. I am not satisfied that this is the most appropriate method of dealing with the matter from the point of view of Scotland, and it merely illustrates the difficulty of trying to adapt a procedure primarily designed for England to the entirely different procedure that we have in the Scottish courts.

Subsection (2) of the new Clause goes on to provide: and for the purposes of a defence under paragraph (b) of subsection (1) of this section no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published. Evidence on this issue accordingly would be confined to the facts specified in what for Scotland is called the written declaration. In Scotland, we pay a great deal more attention to written pleadings than I think is the case south of the Border, in the sense that our written pleadings restrict much more closely the limits of evidence that can be led and the limits of examination of witnesses.

It is part of our classical law of procedure that the written pleadings, which we call the closed record, provide the termini of the examination of witnesses and of evidence. That is perhaps due to the fact that we are more punctilious on the question of relevancy or on the question of the admissibility of evidence.

Be that as it may, the classical yardstick in our Scottish law of the extent to which evidence should be allowed and cross-examination allowed depends upon the written pleadings, and by trying to adapt the machinery produced in this Clause to our Scottish law and procedure we would be introducing something entirely novel, whereby our written pleadings would be circumscribed by something out of the range of the pleadings altogether, because, ex hypothesi, in the first situation, the offer of amends accompanied by a written declaration would have taken place before the action was raised in court at all.

Thus we would have a situation which is quite novel and alien to the whole of our Scottish procedure, whereby our written pleadings, which are our classical criterion on this matter, would be circumscribed and restricted by a document which would be outside the process altogether, and perhaps, in certain cir- cumstances, a document which had been submitted prior to the action being raised at all.

Accordingly, I suggest in the first part of the Amendment, and it so provides, that the Court of Session may by Act of Sederunt prescribe the form and manner in which such offer shall be communicated to the aggrieved party and the extent to which and the conditions on which such offer may be founded on for the purposes of a defence under paragraph (b) of subsection (1) of this section; The virtue of such a procedure is that it would enable these matters, which are embodied in the Clause, to be dealt with in a manner most consistent with Scottish practice and procedure, and not as a slavish, and perhaps unsuitable pursuit of English practice and procedure. It may be that the methods proposed in the Clause would turn out to be the only or the most practicable methods, but I am seeking to get some elasticity to allow those who are versed in Scottish law and procedure—the judges of the Court of Session—to devise the most appropriate procedure, having regard to what is proposed here and any other alternatives that may be available.

If it is argued that my Amendment is deficient in structure, which seems to be the popular argument at the present time, no doubt, that can be put right when the Bill reaches another place, as I hope it will. If it is argued that the present proposals in the Bill are the best in the circumstances, I would not necessarily agree with that, because I think that other alternatives should and must be considered, but if my hon. Friend the Member for Cheetham (Mr. N. H. Lever), with such guidance as he may get from other quarters, were to give an assurance that he will be prepared to have consultations with all the relevantly interested parties in this matter, with a view to ascertaining whether the machinery which I propose is more elastic and desirable than the somewhat rigid machinery contained in the Clause, which is not apposite to Scottish practice and procedure—if we had that assurance that consideration will be given, subject to the necessary and relevant consultations, and that, if need be, an appropriate Amendment would be tabled when the Bill reaches another place, that would satisfy my requirements at the present time.

1.45 p.m.

I now turn to the second part of the Amendment. Subsections (4, a) and (4, b) of the proposed Clause make provision for referring questions for settlement on various matters into which I need not go in detail. The Scottish Application Clause—Clause 15—provides that for the High Court there shall be substituted either the Court of Session or the Sheriff Court, in cases where there is already an action depending in the Sheriff Court, and so we may have three types of case; either the case where there is an action depending in the Court of Session, or the case where there is an action depending in the Sheriff Court, or the case where no action is depending in any court.

It seems to me to be manifestly reasonable that, where an action is in court, the appropriate court to deal with it is the court before which the action is depending, whether it is the Court of Session or the Sheriff Court. Where no action is depending, as the Clause stands, the parties would have to go to the Court of Session, which is the High Court in Scotland.

This may be a very expensive procedure, because it will involve, in cases arising outside Edinburgh, the parties requiring to instruct solicitors in their own towns, who in turn would require to instruct solicitors in Edinburgh, who in their turn would have to instruct counsel, and that may not be an inexpensive matter. That expense would have to be incurred although there is no action in court, and although the issue between the parties may be small and not involve a great deal of money. The proceedings in the Sheriff Court are relatively cheaper than in the Court of Session, because it is not necessary to instruct counsel and Edinburgh solicitors.

The second part of the Amendment merely seeks to give an option to the parties, where the case is not in court, either to go to the Court of Session or to the Sheriff Court. The Court of Session has general jurisdiction throughout Scotland, but the jurisdiction of the Sheriff Court is confined to the area of the sheriffdom, and so my Amendment, whether perfectly or imperfectly I know not, seeks to clarify that position by saying that the parties will have the option to go to the Sheriff Court where the action would be raised if an action were to be raised.

I could say a good deal more about this, but I am anxious to allow the Bill to proceed as expeditiously as possible. I do, however, make the appeal that, if we are going to have this joint Bill for both countries, we should have as much flexibility as possible so far as Scottish procedure is concerned.

May I illustrate that point? We had a very interesting discussion, which finished with a Division, on the question whether or not special damage should be in a special category. Apart from very isolated cases, such as the case of verbal injury, we do not have special damage in Scotland. The damages arising from an act of defamation are all lumped together. Assuming that an Amendment had been made to this Clause by the incorporation of a reference to special damage, still further Amendments would have been required to this Clause when the Bill reaches another place in order to adjust it to Scottish conditions, in which special damage, in the broad sense, is not recognised.

The learned Solicitor-General said, even in relation to the last Amendment which was accepted, that the Scottish position would require to be adjusted in another place, and that merely illustrates my general proposition that it is very difficult in matters of this nature easily and perfectly to adapt to Scottish conditions a Bill which is primarily designed to meet English conditions.

Therefore, I submit that in relation to the first part of my Amendment, my proposal to give us that elasticity and flexibility of procedure by allowing the matter to be determined by Act of Sederunt passed by the Court of Session would offset some of the difficulties which would otherwise be created. I trust it will be possible for the right hon. and learned Gentleman to give effect to the purpose of my Amendment so that the Scottish position may not be sacrificed to the expediency of uniformity with a quite different English system of procedure.

The Lord Advocate (Mr. J. L. Clyde)

If there were any question of sacrificing Scottish procedure or principles for expediency, or, indeed, for any other reason, I should be the first to take objection to it. But, as I see the provisions of this Bill, no question of that sort arises in any way. I do not want to take up the time of the House by going into the matter at any great length, and, indeed, in view of the line taken by the right hon. and learned Gentleman in his speech on this Amendment, I do not think it will be necessary for me to do so.

The right hon. and learned Gentleman said something about the advisability in general of having a separate Bill on this question for Scotland. That matter was, of course, seriously considered in the earlier stages of the present Bill, and it is only fair to say to the promoter of the Bill that because of his willingness to adjust outstanding difficulties and to arrive at a series of provisions which in no way prejudice the principles of the law of Scotland, we have found it unnecessary to have a separate Scottish Bill, with all the delay and additional expense which that would involve.

But the main reason in principle why a separate Scottish Bill is unnecessary really depends on the very factors to which the right hon. and learned Gentleman referred when talking on this subject. There is no special problem in regard to defamation in Scotland. It may be because of some of the reasons given by the right hon. and learned Gentleman or it may be because of the higher standard of Press reporting and newspaper activities in Scotland by comparison with England. I do not know what it may be. But the fact remains that this type of case, which took up so many days of the Committee stage of this Bill and which has already taken up so many hours of the Report stage, does not, for practical purposes, exist in Scotland. That being so, it does not become as vitally necessary to have separate Scottish provisions as it otherwise might.

There has been no agitation in Scotland for reform even on the lines of the Porter Committee. Indeed, when that Committee was appointed a year or two ago, it was not even considered necessary, because the question was so substantially an English one, to appoint a single Scotsman to it.

Mr. Emrys Hughes (South Ayrshire)

That is an injustice.

The Lord Advocate

I should have thought it was only a demonstration of the fact that it is not the least relevant to Scotland at all.

Mr. Wheatley

I think that, for the purpose of the record, the right hon. and learned Gentleman would like to agree with me, in order to preserve the Scottish position, that following upon the Porter Committee's Report a Scottish committee under the chairmanship of a Scottish judge did consider the whole question and made certain recommendations including the embodying of the broad principles of the Porter Report into the law of Scotland.

The Lord Advocate

That is quite right. A committee was subsequently appointed which did not consider the question de novoat all, but considered to what extent the conclusions arrived at by the Porter Committee should be applied in Scotland. That fact reinforces once again that, though this was primarily an English question, it might be necessary to extend it to Scotland, but not to have separate Scottish provisions for it. If as in this Bill some new principle is introduced into the law of defamation regarding the matter of a publication which is a United Kingdom matter and not a purely Scottish or English matter, then, obviously, it is necessary to extend the English provisions to Scotland, because in almost all cases if a newspaper publication took place in England there would also be a publication in Scotland as well.

It seems to me that it would be supremely unfortunate if this new principle should be introduced into the law of England to meet the difficulties, which occur and have occurred in England but should not also operate in Scotland so that the law in one country would be one thing and the law in another would be something different on a matter of newspaper publication.

Mr. Wheatley

I am sure the right hon. and learned Gentleman does not intend to convey the impression that I was submitting that should be so, because the whole burden of my argument was that we should embody the same principles, in a separate Scottish Bill, to cope with the different procedure and laws of evidence, and things of that nature.

The Lord Advocate

It seems to me that what we are doing is introducing a new principle into the law of defamation and not making changes in procedure particularly to meet the needs of England. The proper way is to introduce it in a United Kingdom Bill in a manner which necessarily covers United Kingdom matters.

I now pass from the general question to the two subheads of this Amendment. The first subhead alters or makes different the law of Scotland from what the law of England would be if this subhead were to be given effect to. In England there is, in addition to an apology in cases of unintentional defamation, an additional safeguard provided. Were effect to be given to this Amendment, there would be no such safeguard in Scotland; it would be left to the court to fix the form and manner in which the apology was to be carried out.

Had this been a pure question of procedure, as the right hon. and learned Gentleman seemed to indicate, then I would agree that it would be appropriate to leave the whole thing to an Act of Sederunt. But I think he has misapprehended the substance and effect of subsection (2) of this amended Clause. It is not merely a question of machinery and procedure. There is a safeguard provided in subsection (2) which, it seems to me, it would be inappropriate to leave for an Act of Sederunt. Either the Act of Sederunt would have to prescribe precisely the same safeguard as provided for England by the Statute, in which case nothing whatever is gained, or else the Act of Sederunt would have to provide some different kind of safeguard, either heavier or lighter, than in England. We would therefore get the law of Scotland differing from the law of England not merely on procedure, but on the effect of the law with regard to defamation.

I am not at the moment by any means satisfied, therefore, that there is justification for the Amendment. But the right hon. and learned Gentleman was good enough to ask me to consider the matter and I will certainly not treat it as completely foreclosed. I am prepared to look into it again. There will, of course, be an opportunity in another place, should it be considered advisable after we have had an opportunity of considering it further, to put in an Amendment which might embody something on the lines suggested by the right hon. and learned Gentleman.

2.0 p.m.

As regards paragraph (b), the reason for the way in which the amended Clause has been framed is to secure uniformity. It is thought, I think rightly, that if questions of this kind are to be left to individual sheriffs up and down the country to decide, they will inevitably be decided in different ways. It is better to secure uniformity and let the court which hears these things finally dispose of them. One secures uniformity if one goes to the Court of Session and not to the individual sheriff courts.

It is suggested that the expense of going to the Court of Session will be very much heavier than going to the sheriff courts. Undoubtedly, it will be a little heavier, but in any case it will be trifling, and the number of cases in which this procedure is likely to be necessitated will be extremely rare. It seems to me that the benefits of uniformity far outweigh any of the other considerations.

If the right hon. and learned Gentleman is prepared to withdraw the Amendment, I will certainly undertake to reconsider the two paragraphs in the Amendment, and if we come to the conclusion that some change should be made effect can be given to that at a later stage.

Mr. Emrys Hughes

I had no intention of intervening in the debate, but the Lord Advocate has been exceedingly provocative. Scottish hon. Members will certainly not agree that Scotland should be regarded as an insignificant part of something called the "U.K."

The Lord Advocate

I did not say that.

Mr. Hughes

To give the O.K. to the U.K. in that way—

Mr. S. Silverman

Is the K.O.!

Mr. Hughes

—and to dismiss the points which have been raised is to treat Scotland with an irresponsibility that Scotland does not deserve. I am sure that in the Scottish Press, which is greatly interested in the law of libel, the irrelevant and irreverent remarks of the Lord Advocate will receive the censure which they deserve from all newspapers, irrespective of their political tendencies.

The Lord Advocate does not address the House very often. I am very glad of that, if that is the spirit in which he receives legislation which vitally affects Scotland. We were told at Edinburgh by the Prime Minister, during the General Election, that Scotland would be treated with the respect that it deserves in all future legislation.

I feel that we were entitled to have at least a very definite assurance that just as England has this Bill, so Scotland is entitled to a similar Bill which could be referred to the Scottish Standing Committee and could give similar opportunities for the special features of Scottish law to be studied by Scottish hon. Members who have ideas about the need to reform that law.

I was not fortunate enough to be a Member of the Standing Committee which considered this Bill, but on Second Reading I indicated that Scottish newspapers had definite grievances. I happen to have been one of the victims. As the editor of a Scottish newspaper I was brought to London and had to stay in London nearly a week defending myself on a charge of libel. Unfortunately, I lost the argument with one of Her Majesty's judges. I am sure that if I had been tried in Scotland, so far from receiving what for a small newspaper were punitive damages, I might have received something from the poor box.

The points of view which I put before the House on Second Reading ought to have been given very serious consideration and I was hopefully looking to the Lord Advocate to protect the interests of Scottish newspapers. Yet at this stage we are told that Scotland's injustices must be remedied in another place. What hope is there of that? I hope that in another place Lord Kirkwood, for example, may take up the Scottish grievances. We hope we now have in the other place a Scottish peer who will look after the interests of the Scottish Press with far greater keenness and a keener sense of urgency than the Lord Advocate has done in this debate.

There are other grievances in Scotland which need to be remedied, although the anomalies may not be so great as in the case of England. For example, I cannot imagine that in Scotland we should have had an action entered just after the General Election by the Prime Minister which would not yet have been reached. The law in Scotland is not as slow as the law in England.

The Attorney-General will remember that when I ventured to ask very cautiously what had happened to the action between the Prime Minister and the "Daily Mirror," he rebuked me and said that I had no foundation at all for asking that question and that the action would be proceeding and that the Prime Minister was definitely in the lists against the "Daily Mirror." I sat down. I regarded myself as having been rebuked by a supreme authority, but we have not yet heard any more of that libel action. I am sure that if the Prime Minister had in Scotland—

Mr. Deputy-Speaker

I cannot see how this is associated with the Amendment.

Mr. Hughes

I was trying to point out that the law moves less slowly in England than in Scotland. [HON.MEMBERS: "No."] Then it is the other way round. Whichever it is, the point I wish to make is the same. Perhaps the Attorney-General when he replies will refer to the little difference of opinion which we had, which can be epitomised in the question: When will the law of libel work in England so that we shall have some firm news as to when the Prime Minister is going to the courts?

In his intervention the Lord Advocate has proved conclusively that Scottish hon. Members have a grievance. There ought to be a separate Bill for Scotland and it should be taken in the Scottish Standing Committee. If we had such a Bill we should then be able to rectify anomalies which we have been unable to rectify during the passage of this Bill.

Mr. N. H. Lever

We should not have had this very interesting debate if I had risen earlier to give my right hon. and learned Friend the assurance that he desires. However, I now give the assurance that I will consult him to see that any iniquities, grievances or oppression caused to Scotland by the Bill shall be removed before it goes on the Statute Book. I shall be pleased to consult him on any matters relating to the Bill.

Mr. Wheatley

I was not convinced by the arguments of the Lord Advocate. There are two matters here, a matter of principle and a matter of procedure, and the matter of procedure is one which should be left to the Act of Sederunt. I am satisfied that he would not Wish to suggest that, even if we had to leave it to the judges of the Court of Session to incorporate in the Act of Sederunt the principles embodied in the Clause, there is any fear of their not doing it properly.

That is a matter which can be considered, and I am glad to have an assurance that all matters, including the matter referred to in the second part of the Amendment, can be considered. There, again, I do not think the Lord Advocate's argument was very convincing. He talked about uniformity, but failed to realise that if the action were already in the sheriff court, we might have actions in different sheriff courts which would not achieve the uniformity which he sought.

These are matters which can be discussed if we have the further consultations that are suggested, and on the understanding that if these consultations result in the consensus or near consensus of opinion that something along these lines is desirable and that an Amendment will be tabled in another place, I beg to ask leave to withdraw the Amendment.

Amendment to the proposed Clause, by leave, withdrawn.

Amendment to the proposed Clause made: at the end, add: (6) Paragraph (b) of subsection (1) of this section shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice.—[Sir L. Plummer.] Motion made, and Question proposed, "That the Clause, as amended, be added to the Bill."

Mr. S. Silverman

We should not part with this Clause on the nod. It is an essential Clause; this is the Clause for which most people wished to have the Bill in the first place, and it gave rise to a good deal of discussion during the Second Reading and the Committee stage.

Many of us were doubtful on Second Reading about the correctness of the principle upon which the Clause in the original Bill, whose place this Bill takes, was handled. I had no decided opinion myself during the Second Reading. If anything, I had a bias in favour of the principle which actuated the Porter Committee and which is still the principle after all the Amendments and discussions on this Clause which we are now invited to add to the Bill.

As a result of my experience and of the discussions which we have had so far, I am bound to say that I think the House would be ill-advised to amend the law in this way at all. I can conceive that I would have come to a very different conclusion if the attitude of the promoters of the Bill and of the Law Officers of the Crown to Amendments suggested in the course of the discussions had been different. I could easily have been persuaded that what was really intended was a modest alteration of the law so as to change the balance of the incidence or bearing of damage between two almost equally innocent parties. But I find in the whole course of the discussions an arrogant and obstinate refusal to listen to any kind of reason—

Mr. N. H. Lever

We have accepted many Amendments.

Mr. Silverman

My hon. Friend interrupts to say that many Amendments have been accepted. He is right, although I would question the word "many."

It is true that some Amendments have been accepted. All the Amendments which have been accepted have made improvements in the Bill. If that had not been so, they would not have been accepted. But although it is true to say that they have not at all points been equally impervious, that does not in any way detract from the substance of what I was saying, because although there have been some points which have been penetrable, this makes all the other impenetrable points so much more difficult to understand. A great many of the matters which were pressed upon the promoters of the Bill have been as attractive and reasonable as those which have been accepted.

2.15 p.m.

There have been occasions when the Committee upstairs reached conclusions which were unacceptable to the promoters of the Bill and which went against their advice. It did not always happen that that was as a result of a vote, and when it did happen as a result of a vote it did not always happen that the majority was tenuous. There was occasion after occasion in which the Committee, virtually unanimously and without a Division being challenged, made alterations in the Bill as originally drafted. One would have thought that, in those circumstances, if the promoters of the Bill were only anxious to have a modest, reasonable and just amendment to the law, they would have been contented. But they were not content.

The Order Paper today is loaded with attempts to be made by the promoters to reverse here in the House the almost unanimous and unchallenged decisions made in the Committee. This cannot help but affect one's attitude to the whole of the Clause, because I think it has been shown that the spirit in which the House is being invited to deal with this question is not one of patient, considered, moderate analysis of the existing situation and a careful and deliberate attempt to improve it in the light of arguments offered and reasons advanced or experience gained. It is nothing of the kind. This is merely a Bill for the enactment of the Porter Report—

Mr. Lever

Nothing of the kind.

Mr. Silverman

It is all very well to say, "Nothing of the kind." There have been a few details here and there which are not to be found in the Porter Report, but my hon. Friend will not contest that time after time in the Committee stage when all else failed, when it was quite clear that there was no reasonable argument further to be advanced or no reasonable controversy left, either the Attorney-General or my hon. Friend the Member for Cheetham (Mr. N. H. Lever) or someone engaged in the promotion of the Bill at some stage or another said, "I am sorry; I cannot answer your argument. The Committee is not satisfied."

Mr. Lever

I certainly do contest that. It is an absolutely unfair representation of what took place.

Mr. Silverman

There are other Members who were present with me on the Committee. We have the OFFICIAL REPORT of the Committee proceedings, and before my hon. Friend or anyone else rushes in with flat contradictions of that kind they ought to refer to the Report and re-read the things that were said by my hon. Friend, by the Attorney- General and occasionally by others. Time after time it was said, "I am very sorry. There is nothing that can be done about this. I have heard all the arguments. It may be that the arguments commend themselves to the Committee, but I have to warn the Committee"—this was said on several occasions—

Mr. Lever

Not by me, never once.

Mr. Silverman

My hon. Friend is too categorical. I know he did not say it as often as other people.

Mr. Lever

I did not say it once.

Mr. Silverman

So my bon. Friend says. I may be mistaken, but I think I am not mistaken.

Mr. Anthony Marlowe (Hove)

Since the hon. Gentleman is making this aspersion, ought he not to establish it by referring to the record?

Mr. Silverman

There is an hour and 40 minutes left for the consideration of this Bill.

Mr. Deputy-Speaker

If we go into the Committee stage again we shall be here for a very long time.

Mr. Silverman

I should not like to take up so much of the time of the House which will be necessary if I refer to the OFFICIAL REPORT page by page for confirmation of what I say, but I think it will be agreed by all those who were in the Committee that time after time it was said, "Do not persist in this, because I have to warn you that if you do the Bill will never reach the Statute Book."

Mr. L. M. Lever (Manchester, Ardwick)

The hon. Member for Nelson and Colne (Mr. S. Silverman) is a first-class wrecker.

Mr. Silverman

I do not know whether I should take any notice of that remark.

Mr. Speaker

I think we should confine ourselves to what is before the House at the moment. It is the new Clause and nothing else.

Mr. Silverman

I am explaining why my whole attitude to the principle of the new Clause has changed. Whereas at the beginning I regarded it with what I might describe as benevolent neutrality, as a result of the treatment of the Committee upstairs by the promoters of the Bill I have come to the conclusion that they do not desire—in this Clause or elsewhere in the Bill—to see a reasonable amendment of the law to put right those things which are palpably unjust, but merely desire to carry through some predetermined legislation without proper consideration or inquiry.

Mr. L. M. Lever

Nonsense.

Mr. Silverman

That is my view.

Mr. L. M. Lever

The hon. Gentleman is always wrong. I would say that the hon. Gentleman is wrong on this occasion; always has been wrong, and always will be wrong in the future.

Mr. Silverman

That is a rather sweeping assertion. I dare say that the hon. Gentleman is right. It could be that I was always wrong in the past, that I am wrong now and that I will always be wrong in the future. The hon. Gentleman is a very good witness to that so far as the present occasion is concerned, because he was not a Member of the Committee; he never attended a single sitting of the Committee, and he therefore has no evidence whatsoever except his own ipse dixit.

Mr. L. M. Lever

I have read the Committee's proceedings.

Mr. Silverman

That is really generous of the hon. Member.

So far as I am concerned, I have come to the conclusion that to amend the law in the way contemplated by the Clause—even as now amended—would be a reactionary step. It would not improve the law. It would correct some injustice in some quarters, but in correcting that injustice it would create new injustices elsewhere which far outweigh and transcend any minimum injustice which it might correct. If that is so—and I believe it to be so—that would be bad legislation and I would vote against adding the Clause to the Bill.

Sir L. Ungoed-Thomas

There is one short point which I should like to raise in connection with an Amendment which has not been called. It is with regard to cross-examination on the affidavit. I should like to remind my hon. Friend the Member for Cheetham (Mr. N. H. Lever) that the Committee upstairs considered at some length whether or not there should be cross-examination on the affidavit. I think it is fair to say that the overwhelming sense of the Committee—and I can give references if need be, although I do not want to go into that—was in favour of cross-examination on the affidavit.

In view of the discussion which took place in Committee, I was a little surprised to find that no Amendment had been put down by the promoter of the Bill to provide for cross-examination on the affidavit. I should like to ask whether the explanation is that my hon. Friend the Member for Cheetham is satisfied that there is no need for an expressed reference to it and that cross-examination will follow automatically, or whether, contrary to the views so overwhelmingly expressed in the Committee, he really maintains that there should be no cross-examination on the affidavit. My hon. Friend is very familiar with the arguments and views which were expressed at considerable length in Committee.

In justice to my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), though I do not want to be involved in any dispute as to what happened in the past, some justification for what he said is to be found in column 74 of the OFFICIAL REPORT. It was not arising out of an observation made by my hon. Friend the Member for Cheetham and it certainly cast no reflection upon the hon. and learned Gentleman the Attorney-General; but there was an instance which was dealing with these very questions of cross-examination on the affidavit and special damages. There the hon. and learned Gentleman the Attorney-General did rely exclusively on the report of the Porter Committee in answer to the argument which was put forward. I do not want to traverse that ground, but it is important that this outstanding matter having been considered at such length in Committee, should at any rate receive some mention by the mover of the Bill, so that we may have some indication of his views upon it.

Mr. MacColl

Until I heard the reception given to my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) I had not intended to speak, but when I did hear it I thought it would be desirable to intervene for two reasons —first, because there appeared to be an undesirable fissure created in the county of Lancashire and I thought it might be as well if another Lancashire Member were to do his best to prevent civil war breaking out and, secondly, because my reactions to this Clause are precisely those of my hon. Friend the Member for Nelson and Colne.

I do not think that either the quality or the quantity of my interventions in the House would entitle me to the epithet ascribed to my hon. Friend the Member for Nelson and Colne. I have neither the ability nor the opportunity to wreck any Bills. I approach this question with a good deal of sympathy. I listened to the Second Reading debate and I have read the Report of the Porter Committee, and it seemed to me that there was something to be said for a Clause of this kind. But I am bound to say that, after the long consideration we have had upstairs, the more I have reflected on it the less convinced I have become either that there is a substantial mischief to be remedied or that this Clause, drafted as it is—with the noble omission commented on during the discussion of the Clause—will make things very much better.

My hon. Friend the Member for Cheetham (Mr. N. H. Lever) was pressed a great deal upstairs to produce some real evidence that there was at present a custom of blackmailing newspapers by unscrupulous solicitors by threatening them that if they did not settle an action they would be taken to court. That was the gravamen of the mischief against which this Clause was designed to operate. My hon. Friend the Member for Cheetham has had many more opportunities than I have to go into this question in great detail, and he has no doubt had such access to the resources of Fleet Street which would enable him to give a convincing answer to it.

He produced one case. That was the case of a certain man—George Ernest West—which he described with great eloquence and in very considerable detail. He told us of a possible mistaken identity and how this gentleman had tried to get money out of a newspaper. At the very end of this moving and thrilling account he informed us that one newspaper had refused to bow to this gentleman's demand and had told him to do his worst—and the gentleman had been bankrupted because he had been unable to pay the costs of the unsuccessful legal activities in which he had indulged. If that sad history of Mr. West is the best case than can be produced of the mischief against which this Clause is designed to operate, I find it very difficult to see why it is necessary to recast the common law in this matter.

We have had overwhelming evidence, not only from members of the Bar but from very experienced practising solicitors, which indicates that this particular mischief has been met by the professions themselves and that, in fact it is not now a real objection at all. On the other hand, there are virtually three types of case which this Clause is designed to meet. First of all, there is what is known as the Artemus Jones type of case—the case where a name used in fiction is, in fact, the name of a living person.

2.30 p.m.

The interesting thing is that my hon. Friend has said—and may be he knows best—that the Artemus Jones case is not a clear example of the use of a name in this way and that, in fact, there is a good deal more behind it than appears. But under the Clause which we are now proposing to pass, Artemus Jones' recourse to the courts, which according to my hon. Friend he should have had because, in fact, he had not been innocently defamed in the way that appears in the case, would have been shut out, because he would have had to accept, or to leave, an affidavit giving the reasons why it was alleged that his identity was not known to the person who wrote the article. He would have had no means whatsoever of testing that affidavit at all.

My hon. Friend the Member for Oldham, West (Mr. Hale) has already prepared an affidavit which could be used by authors of articles of this kind—an affidavit in a printed form which could be completed and quite easily tossed out as an answer to any complaint of this sort. This is a very real danger, and there is a real mischief which can be caused to people.

I want to quote a case from the "Evening Standard" of 7th April this year. This is from the middle of a detective story called "Tell Agnes." This appears in the story: We think we can guess who the thief is: Mr. William Wells; they call him the Professor. This job bears the stamp of his technique. He was carefully disguised, you can bet-he's a past master of the art of makeup"— that is rather an ambiguous charge— and, of course, was wearing gloves. It won't be any too easy to convict him if he's able to lie low long enough. If my hon. Friend the Member for Walsall (Mr. W. Wells) wishes to find out whether, in fact, the author of that story was so ignorant of both the Bar and of this House as not to know that one of the most distinguished ornaments of both bore the name of William Wells, how is he to find out? It is quite easy to produce an affidavit and to say, "When I wrote this story I had no idea that anybody had a name like that." It would be quite impossible to test the basic soundness of that affidavit, because it would be quite impossible to bring the man before anyone for cross-examination. My hon. Friend would, therefore, have either to accept the affidavit and drop the action or go on and risk losing his case, in view of this defence. That is the first type of case.

The second type of case is what is known as the Newstead case. This is a case where the facts are true of a particular person, but another person, with the same name, complains that the article might have referred to him. A good deal of play is made with the saga of Mr. Newstead, but people do not bother to point out that, in fact, the jury took a very proper view of Newstead and gave him a farthing damages. In fact, the jury can be relied on at any time to show its contempt for somebody who brings an action unnecessarily and mischievously in an attempt to make money out of it. I suggest that the vigilance of the jury, combined with the standing of the legal profession, in both its branches, are quite sufficient safeguards against the continuance of this kind of blackmail, if it exists, once the true facts are known.

The third type of case is the one with which I have most sympathy, and it is the Cassidy case, where an innocent person is injured by something which has been said by the other people. One has to recognise that there is a real possibility of very wounding damage being caused to somebody in this way. Look at the facts. It is not a pleasant thing to have one's neighbours implying that one is not married to the man to whom one pretends to be married. That is a reasonable complaint and something which ought to be put to a jury for them to decide whether it is a fair complaint or not.

I share my hon. Friend's misgivings about this Clause. The idea behind it is a laudable one and the desire to improve the law of defamation is laudable, too, but I feel that, in view of the way the debate has gone and the way the Clause has gone—even in its new form, which admittedly is better than the old—we are producing changes which are out of all proportion to the mischief which they are designed to meet.

The Attorney-General

In view of the fact that this Clause, as is universally agreed, embodies the main principle of the Bill, I think it is desirable that I should say one or two words, at any rate, in answer to the observations of the hon. Member for Nelson and Colne (Mr. S. Silverman). The hon. Gentleman has admitted, with brutally characteristic frankness, that he is determined to wreck the Bill.

Mr. S. Silverman

I did not say that.

The Attorney-General

He has also made it quite clear that his motive for doing so is that his Amendment has not been accepted.

Mr. Silverman

On a point of order. I suggest that what the right hon. and learned Gentleman has said is out of order on two grounds—first, that he is accusing me of trying to wreck the Bill, an accusation which has always been held to be out of order, and which is untrue; and, second, that he has attributed to me things which I did not say and which I expressly said were not true. Some of my Amendments have been accepted, and it is certainly not true that I am opposed to the Clause because my Amendments have not been accepted. That is a fantastic piece of misrepresentation and ought to be withdrawn.

The Attorney-General

Further to that point of order. If the hon. Gentleman says that, naturally, of course, as a fellow Member of this House, I accept what he said and I withdraw anything which he considers offensive. I want to make this point, however; that his attitude today is completely inconsistent—and I do not think he will deny this-with his attitude during the Committee, when there were several opportunities for discussing this matter. On the first occasion, an Amendment was moved and he was Athanasius contra mundum—in a minority of one. We thought he had accepted the position because at 11.45 a.m. on 4th March he said this, on the Question that the Clause stand part-and it was the same subject as that which we are discussing now: The principle of the Clause remains distasteful to me, but I do not propose to oppose i t."—[OFFICIAL REPORT, Standing Committee B, 4th March, 1952; c. 172.]

Mr. Silverman

That is a perfectly fair quotation and the statement which I made, and which has been quoted, is a perfectly fair representation of my attitude of mind, The Clause was distasteful to me, but I was prepared to accept it and not to oppose it further in view of the general acceptance of it in the Committee. As I said in the course of my speech a little while ago, however, my intention to do that has been thwarted by the behaviour of the promoters of the Bill since then.

New Clause.—(FAIR COMMENT.)
In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.—[Mr. N. H. Lever.]

Brought up, and read the First time.

Mr. N. H. Lever

I beg to move, "That the Clause be read a Second time."

I shall be as brief as possible, because I think that the Clause is readily intelligible to hon. Members. Every Member of the House will be aware that the defence of fair comment upon a matter of public interest to a libel action is one of the traditional safeguards of freedom of discussion in this country; and it is important that that safeguard should be maintained at its full efficiency.

It is common, when expressions of comment are made upon matters of public interest, in many cases to have a sort of preamble of fact; and the practice of the courts in late years has been to analyse that preamble of fact. If there

The Attorney-General

I am not going into questions of behaviour. The House will best judge that. My attitude throughout has been entirely consistent and was stated by several hon. Members on Second Reading. This Bill is generally regarded as being overdue. The Porter Committee dealt with the subject very fully and the House gave a unanimous Second Reading to the Bill, of which the main principle is enshrined in this Clause.

I should like to leave it entirely to hon. Members as to what conclusion they arrive at on the matters to which I have already referred. I suggest, however, that the House should hesitate very long before acceding to an argument of this kind, an argument, whatever it is based on, which comes to this: that when this matter was discussed in Committee for 10 days, an hon. Member decided that having heard all the arguments in Committee it was a proper Clause that should be allowed, but today he raises these objections. Whatever that intention may be, the result will be to deprive the Press and authors of protection which the House has already decided that it thinks they ought to have.

Question put, and agreed to.

Clause, as amended, added to the Bill.

is a minor mis-statement in the preamble of fact on which the comment is based, then very often, quite illogically, contrary to the justice of the case, the defence of fair comment has been held to fail.

What the Clause seeks to do is to restore the full strength of this vital defence of free discussion in this country, particularly in the public Press; that is, to enact that even though one or other statements of facts which preceded the comment are not proved to be true, as long as it is proved by the defendant that his comment is fair having regard to the facts which he does prove are true, the defence shall not fail.

I ought briefly to say this, because some hon. Members seem to be obsessed with the notion that a defendant to these actions is always a wealthy newspaper proprietor and that the plaintiff is some highly deserving social reformer. Of course, the principle which it is sought here to embody is a principle which follows the outlook, rather than the strict words, displayed in a recent decision of the House of Lords, where a very different situation occurred, where the plaintiff was Lord Kemsley and the defendant was my hon. Friend the Member for Devonport (Mr. Foot), and where the newspaper or magazine concerned was the well-known Socialist magazine called the "Tribune."

It was there held that the right to comment existed and that the defendant, in defending what he had said by way of commenting upon a matter of public interest, was not restricted to relying solely upon what was in his paper; that he could cite a number of other facts which, he said, would justify the comment, and that it would not be necessary to prove all the facts that he pleaded to be true but that it would be enough for the defendant to show that there were enough facts pleaded which were proved to be true as would justify the comment and make it fair. It is sought in the Clause to do precisely the same thing, as the general principle, as that decided in the case of Kemsley v. Foot.

My hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) has tabled an Amendment to the new Clause: Line 3, leave out from first "proved," to end of Clause, and insert: provided that the defendant establishes that the comment is founded only upon the allegations of fact which are proved to be true.

In order to save time—that is what I am anxious to do; I am not charging anyone with wrecking; it will be perfectly plain at 4 o'clock whether anybody desires to wreck the Bill—I suggest that I might deal with my hon. and learned Friend's Amendment at this stage by way of completing my argument, rather than by way of replying to the Amendment.

2.45 p.m.

If the Amendment were accepted, it would restrict the defence to relying upon proof that the comment is fair having regard only to the facts proved in the article and it would deprive a person seeking to use this defence of the benefit of principles enunciated in the case to which I have referred, because in that sort of case, it was held by the House of Lords that the defendant is not pinned down to any facts stated in his article in the libellous paragraph. He may state no facts; he may state some facts: but whether he states some facts or none, he may pray in aid any facts which refer to the article and which derive from it, so as to prove that the statement was a fair comment upon the facts which are proved to be true.

I venture to think that the slight difference in wording hardly justifies making that change in the principle, because the wording of the new Clause is: having regard to such of the facts alleged or referred to in the words complained of as are proved and my hon. and learned Friend desires that the defendant should establish that the comment is founded only upon …

I do not think that in practice there is a great deal of difference. The only difference between the two that would matter would be the restrictive one. to which I have referred.

In these circumstances, I cannot see that there is anything of great principle that divides us upon this matter, and I trust the House will be able to accept the Clause in its present form.

Mr. Michael Foot (Plymouth, Devonport)

I beg to second the Motion.

I believe that the Clause is a most valuable addition to a very valuable Bill. The present situation, as I understand it. is that a defence of fair comment may be open to a defendant even though he has not stated the fact upon which he is commenting in the article, book or product which may be complained of, and that it is not necessary for the defendant to set out the facts in any detail at all, or, indeed, to have indicated them in any detail at all, as long as the matter on which he is commenting may be said to be reasonably understood.

The defence of fair comment is open to those circumstances, but it would be a most paradoxical situation if the defendant who had entered some of the details in the article which he had written should have a less easy defence open to him than a defendant who had not put in any facts at all.

The defendant who has not in the article complained of stated any of the facts is entitled to bring forward particulars on which he is commenting; he is entitled to do that, and he does not have to prove the truth of all the particulars. Indeed, he may only have to prove the truth of one of the particulars and show that it was a fair comment that he was making upon one of those particulars.

It would, as I say, be a most paradoxical situation that a man who had stated some of the details on which he was commenting in the article or book should be in a weaker position than someone who had not stated any of the facts in the article complained of. Therefore, I think that the Clause meets that position, and it enlarges or strengthens the defence of fair comment; and that, I believe, is a highly commendable thing to do.

I agree with my hon. Friend the Member for Cheetham (Mr. N. H. Lever) that it is a very strange way to look upon this proposal as if it is only one for protecting the big newspapers and big proprietors, because they have every defence available to them at the present time. They have lawyers in their offices. They can hire two or three of them to go through everything that is published. They are not put to any great disadvantage if they have to go into the law courts. Even if the figures of what they may have to lose may go up to £14,000 or £15,000, they might be able to stand it perfectly well.

Therefore, the whole purpose behind the Bill is to protect people who are in a very different position from that and to protect, first and foremost, the expression of comment and opinion by minorities who cannot stand up to the blast of the libel law as it may operate at present. That it adds and strengthens that purpose in the Bill is one of the reasons why I strongly support the new Clause which my hon. Friend has presented to the House.

Mr. S. Silverman

I sympathise very much with the speech of my hon. Friend the Member for Devonport (Mr. Foot), who seconded this Motion. That he did so on a complete misconception of what the Clause is about, on the notion that it somehow or other would improve the position of newspapers or those who wish to make fair comment on matters of public importance, is a matter for which he personally is not responsible. I can understand the attractiveness of the idea suggested to him—

Mr. Foot

I have read the Clause. That is the difference between us.

Mr. Silverman

I recommend my hon. Friend to read not merely the Clause but the proceedings in Committee. He has talked about the matter as though this were a new Clause. But it is not a new Clause at all. It is the Clause exactly as it appeared, word for word, in the Bill as passed by the House on Second Reading. It was considered at very, very great length, and with great care and great sympathy by the Committee, and was eventually rejected by the Committee. It was not rejected by a small minority of the Committee. In the end there were only five Members left who voted for it, and there were 14 who voted against it. Were they all wreckers? Was, for instance, the hon. and learned Member for Kensington, South (Sir P. Spens), who voted against this Clause, a wrecker?

Mr. N. H. Lever

That was in Committee.

Mr. Silverman

I am talking about the Committee. There were in the majority of 14 both the former Law Officers of the Crown. Is it suggested that they did not know what they were doing, or that what they wanted to do was to wreck the Bill?

Mr. Weitzman

On a point of order. Is it in order for my hon. Friend to refer in detail to the proceedings in Committee? Is not the right course for him to address himself to the merits of this new Clause?

Mr. Speaker

Yes, that is so. I think the hon. Gentleman was addressing himself to rebutting a charge, which I have not heard made on this Clause, that somebody was trying to wreck the Bill. If that charge was made, he is entitled to rebut it. But I hope he will continue the rest of his remarks by addressing them to the merits of the new Clause.

Mr. Ede

Surely it is in order for my hon. Friend to point out that various distinguished Members of the House, and learned Members, at an earlier stage of the Bill took the view that this Clause ought not to be in the Bill? That was what I understood he was doing.

Mr. Speaker

I think that is what I said. I said the bon. Gentleman was entitled to refer to those proceedings to rebut any charge that those who were opposed to the Clause were deliberately trying to wreck the progress of the Bill. I made that perfectly clear. At the same time, the spirit of the rule of relevance In our debates require hon. Members to address themselves, as much as possible, to the merits of the Question before the House.

Mr. Silverman

I am obliged to you, Mr. Speaker, but, you know, I think that I was entitled not merely to rebut the charge of wrecking, and, in so far as it is in order to do so, to transfer it, but also to rebut the ground upon which the House is now being invited to accept the Clause as though it were an entirely new and unconsidered thing. It has been put on the Order Paper as a new Clause, but my hon. Friend the Member for Cheetham (Mr. N. H. Lever), said not a single word to remind the House that it had, in fact, been the subject of a very long and very patient examination in Committee, and that in the result a wide variety of Members of the Committee, amounting in the end to nearly three to one—

Mr. N. H. Lever

No vote was taken on the Clause.

Mr. Silverman

My hon. Friend really ought not to keep on intervening to make magic assertions which he has not even investigated. If he will look at column 238 of the Committee proceedings, he will find that the Committee divided, that the Ayes were five and the Noes 15, with all the names set out.

Mr. Bishop

It is column 208.

Mr. Silverman

I am sorry, the hon. Gentleman is quite right.

Mr. L. M. Lever

Wrong again.

Mr. N. H. Lever

Would it not keep tempers down and get us on a sound basis if my hon. Friend would not accuse me of dogmatic assertions when the charge comes home more truly to his own breast, and to his own contradictions and inaccurate statements, which he should not have made?

Mr. Silverman

I am very sorry if I gave him the wrong references it is Clause 5 that I am talking about

Mr. Bishop

At column 108 the Clause was negatived in order that it might be further considered.

Mr. Silverman

I really do apologise most humbly. I was dealing with a subsequent Clause, which was negatived after a Division by 14 votes to five. I offer my apologies to the House most sincerely. I am very grateful to my hon. Friend for correcting me, because my point is a much stronger one on the facts than it was on my misstatement of facts. I was dealing with another Clause, which was negatived by a vote of 14 to five, but on the occasion when this Clause, after a long and patient examination, was put to the Committee there was nobody left in favour of it, not even the promoters of the Bill: they did not even challenge it to a Division; my hon. Friend did not vote for it himself. To suggest that I was misleading the House when my case was a much stronger one than the one I was putting before is a little hard. It is not irrelevant to note that after a long and patient discussion the Clause was in the end left in the position of having not one Member who was in favour of it.

Mr. Bishop

That is a gross misrepresentation of what happened. Here is the record, contained in column 208. The final suggestion, after the Chairman bad intervened to say that he would not accept a manuscript Amendment and that the Committee had only two courses before them, either to negative the Clause or to accept it as it was, was that, the proper course would be to negative the motion at the moment and have the whole Matter reconsidered. Then those of us who are concerned could go into the matter in detail."—[OFFICIAL REPORT, Standing Committee B, 6th March, 1952; c. 208.] That is how the matter finished.

Mr. N. H. Lever

Will my hon. Friend allow me, because it will save time

Mr. Ede

The hon. Member for Cheetham (Mr. N. H. Lever) is trying to wreck his own Bill.

3.0 p.m.

Mr. Lever

No, I must point out that the hon. Member for Nelson and Colne (Mr. S. Silverman) is saying that this Clause was first out-voted in Committee and later that it was withdrawn and negatived. But this Clause has never appeared before. A totally different Clause appeared in the Committee. I could not feel justified in amending that Clause as it then stood and, not being obstinate or arrogant on that occasion, as I am constantly told by my hon. Friend that I always am, I withdrew the Clause for re-drafting. It has now been completely re-drafted to meet the objections of the hon. and learned Member for Kensington, South (Sir P. Spens). In those circumstances, every word which my hon. Friend the Member for Nelson and Colne has been addressing to the House is in substance a falsehood, a reckless falsehood, but I am sure not wilful, because he would be the first to withdraw when he sees that in his excitement he is completely mistaken.

Mr. Silverman

I am not often accused of reckless falsehood, but I do not think the accusation is really made any better by saying that it was unintentional. I have not been guilty of anything reckless or anything false. The Clause as it appeared in the Bill on Second Reading was found, after examination, to be such as to command the support of no Member of the Committee. My hon. Friend says, "Oh, well, that was not because we did not want some Clause of this kind"—

Mr. Lever

Not the same Clause.

Mr. Silverman

A similar Clause of this kind was taken back in order that it might be reconsidered, but the difference between this Clause and the Clause as it was originally drafted does not deal in the least with the point of principle that made the Committee as a whole decide that it was an unacceptable Clause. The main points of substance are left in the Clause as they were originally, with the one exception to which my hon. Friend referred. Indeed, one Amendment that I had moved, or was intending to move the Attorney-General said was a correct one and ought to be considered and accepted, although in a different place, which I took to be an undertaking that when the Clause was again put down it would be put down amended in that sense; but it is not amended in that sense at all. I call the attention of my hon. Friend to the remarks of the Attorney-General: If the hon. Member for Nelson and Colne were here I should like to ask him whether he would be prepared to allow his words to be used at the end of line 15, in page 3, that is to say, the words 'and is not rendered unfair by reason of any such statements as are shown not to be true.' If that were done, I believe it would meet the point which we have been discussing. I do not want to read more than that. I think it would not be contested by the Attorney-General that at a later stage my hon. Friend undertook to accept that Amendment and if the Clause were accepted in that form we should have such an Amendment on the Report stage. If the Clause were withdrawn and redrafted, it should be re-drafted in order to give effect to that point; but where is it? It is not on the Order Paper at all. The undertaking has not been carried out.

Mr. Lever

Will my hon. Friend quote the exact words of the undertaking?

Mr. Silverman

If my hon. Friend wants them, I will read the words again: If the hon. Member for Nelson and Colne were here, I should like to ask him whether he would be prepared to allow his words to be used at the end of line 15, in page 3, that is to say, the words 'and is not rendered unfair by reason of any such statements as are shown not to be true.' If that were done, I believe it would meet the point which we have been discussing."—[OFFICIAL REPORT, Standing Committee B, 6th March, 1952; c. 202.] What in the world was I to infer from that passage except that if the Amendment were accepted, effect would be given to it on Report stage? May I say that that has not been done at all? There is nothing in the Clause as now drafted to give effect to that, nor is there an Amendment on the Order Paper to give effect to it. It is this kind of thing—which is not the only instance—that I had in mind when I said that the behaviour of the promoters of the Bill had not been such as to encourage us to believe that what they desired was a full, free and frank consideration of the law of libel and to see what amendments should be made in it, but some narrower purpose, which does not commend itself to me, at any rate.

What was the objection to the Clause as originally drafted and as it now stands? There is no one who has had anything to do with any of these matters who would like to interfere for a single moment with the defence of fair comment in libel actions. It is a vital thing in the constitution of this country and, indeed, in our law, that people who have a duty to make certain statements shall be able to make them quite freely and that matters of public interest shall be fully discussed and without the people who discuss them being hailed into the courts for actions of defamation or anything else merely for taking part in a free and frank discussion and making what comments they like on matters which are matters of public interest. Of, course, that was the law of the land and it ought to remain so.

My hon. Friend the Member for Devonport has no reason to complain of the law of fair comment in defamation as it stands now. He himself, in the action which has been referred to, was successful in taking the common law about fair comment a little further than it was conceded to be before. I think he has done real service to the law of fair comment and to the protection of public discussion in his vigorous defence of that action than is done by anything in this Clause or Bill. He has no reason to complain.

People who claim the right to make any comments they like upon matters of public interest, however prejudiced, damaging or wrong they might be, have a duty because of that right. If a claim is made to free and unfettered comment on matters of public importance, then there is a preliminary obligation to see that if the comments are made upon alleged facts, the facts shall be truly stated. That is the present law and there is nothing wrong with it. There may be circumstances when it is not necessary to state any facts, and in that case there can be no complaint, but the fairness of the comment must be judged by the ordinary standards.

If, in order to make a comment and make it understood, it has to be based upon stated facts, then surely it is no great hardship upon the man who claims that right to say that if he does state the facts then he must do so correctly. I do not know of anybody, lawyer, journalist, editor, publicist or politician, who would claim for anybody the right to make prejudiced, one-sided, strong and indignant comments upon facts unless the facts are stated fairly throughout. It is impossible to conduct public discussion on any other basis.

Mr. Foot

He has only to make a mistake on one of them.

Mr. Silverman

If he makes a mistake on one of them, then his facts are not right and his comment is not fair. That is the old principle of the common law. There cannot be fair comment if facts are untruly stated. How can any facts untruly stated be fair comment? Of course they cannot. What is suggested here? "Let us whittle down the obligation to state fairly"—

Mr. L. M. Lever

It is more than whittle.

Mr. Silverman

I think I have shown a little patience about the comment of one hon. Member and have refrained from raising any point of order about it. I respect the warmth of fraternal loyalty, but the hon. Member must keep that in restraint.

What is suggested here is that the duty to state facts correctly shall be whittled down. This is the whole purpose of the Clause, that if there is a comment founded on stated facts and if that comment be defamatory, nevertheless the defamer is excused and protected if most of his facts are true. That is the purpose of the Clause. It is no longer his duty to state all the facts correctly, provided he states most of them correctly.

Mr. Weitzman

May I ask the hon. Member for Nelson and Colne (Mr. S. Silverman) if it would be a fair comment on a point of fact that he wanted to talk this Bill out?

Mr. Silverman

I have already said I do not like the Bill—

Mr. L. M. Lever

Neither does anybody like the hon. Member.

Mr. Speaker

This discussion is not relevant to the merits of the Clause.

Mr. Silverman

I have said, perfectly frankly, that I do not like the Bill and I shall vote against it. I shall certainly vote against this Clause.

Mr. N. H. Lever

Why did the hon. Gentleman vote in favour of it on Second Reading? If, as has been suggested, it is his intention to talk the Bill out, would he tell the House why he voted in favour of it on Second Reading; why he joined in congratulating me on promoting the Bill; why he thought it a valuable and useful Bill and why he joined in the encomiums of the Bill?

Mr. Speaker

I really think this discussion is out of order. What we are discussing is this Clause and not the action of the hon. Member for Nelson and Colne.

Mr. Silverman

If I took advantage of the invitation of my hon. Friend to deal with all those matters, he would never get his Bill. What I am dealing with is my objection to the Clause which we are being invited to add to the Bill now after the Committee rejected it. The easy way of avoiding this discussion would have been to have accepted the decision of the Committee. It is not my fault that that was not done. The easy way would have been to put down a new Clause which gave effect to the Amendments. If my hon. Friend had put down a Clause which gave effect to the Amendments which in Committee it became clear the Committee unanimously wished to have added, I should not be opposing it.

I am opposing it because the new Clause he has put down represents all the mischiefs to which I objected in the original Clause. It is not my fault that there has been another discussion about it. I thought we disposed of the matter in Committee, but it seems that we did not. Is it to be said that, because I object now on Report stage to the things to which I successfully objected on Committee stage, I am wasting time or delaying the passage of the Bill? That would be a most unfair accusation. I am now only repeating the arguments I successfully addressed to the Committee, because my hon. Friend has put down the same Clause after it had been—

Mr. N. H. Lever

Not the same Clause.

Mr. Silverman

Not quite the same Clause. But the thing which made me object is still in the Clause. It tries to whittle down the duty of making it compulsory not to comment except on facts truly stated, to something quite different, and to say that we need not state all the facts correctly, but that some of them can be stated falsely—

Sir Herbert Williams (Croydon, East)

On a point of order. I have heard those words before. Is there not some rule about tedious repetition?

Mr. Speaker

There is and I was about to intervene myself. I think the hon. Member is in grave danger of repetition.

Mr. Silverman

I do not think that, in fact, I have made this point so far. Certainly, I have no desire to make it twice. I have made the point, and I do not repeat it.

3.15 p.m.

We ought not lightly to do what the Committee refused to do—to enable a man who is guilty of defamation to say, "Never mind, though I have invented some highly damaging facts; never mind, though some of my facts were untrue: never mind, though some of them were malicious; never mind, though some of them were falsely stated, some of my facts were true and, therefore, I can do what I like" This would not be an improvement in the law of defamation. It would not assist the free and frank public discussion of matters of public interest, and I hope that the House will reject it.

Question put, and agreed to.

Clause read a Second time.

Sir L. Ungoed-Thomas

I beg to move, as an Amendment to the proposed Clause, in line 3, to leave out from "proved," to the end of the Clause, and to insert: provided that the defendant establishes that the comment is founded only upon the allegations of fact which are proved to be true. I am not sure that there is any real difference in intention between the mover of the new Clause and myself. I should like to put the point as shortly as I can, I think we all agree that we cannot have a fair comment when that comment is based upon a fact which is untrue. That is a perfectly well-recognised principle of the law which I doubt if it is the intention of the mover of the new Clause to remove. Obviously, if one states a fact and comments on that fact—in other words, if one says that because of that fact one makes a certain comment—then that comment cannot be fair if the fact is untrue. That is axiomatic.

We have now reached the stage where more than one fact is stated. Our object is to ensure that where there are true facts and false facts and the comment is justified by the true facts but not by the true and the false facts taken in conjunction, then there cannot be fair comment. I think that that is the object of the hon. Member.

Mr. N. H. Lever

indicated assent.

Sir L. Ungoed-Thomas

Then there is nothing between us. This is purely a question of drafting.

Mr. Beverley Baxter (Southgate)

The hon. and learned Gentleman used the term "false facts." Is not a fact something that cannot possibly he false?

Sir L. Ungoed-Thomas

I am obliged to the hon. Gentleman for the correction which, I might say, is worthy of a lawyer. I should have said "alleged facts."

Mr. Foot

It will be seen from the Oxford English Dictionary that such an eminent writer as Junius, who would be a very relevant subject in this debate, very often used the term, "false facts."

Sir L. Ungoed-Thomas

Despite Junius and the great authority of my hon. Friend the Member for Devonport (Mr. Foot), I agree with the hon. Member for Southgate (Mr. Baxter). He must be correct. I was using the term in a rather loose sense, as I hope the House appreciated.

If I may take the wording—because it now becomes only a matter of drafting between my hon. Friend and myself—of the last part of the new Clause, what we are dealing with are true facts, false facts and comments based on or related to both kinds of facts. The Clause say: if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. What that means is this. In dealing with this situation, we have regard only to the true facts, and we do not have regard at all to the false facts, although, when we take the true facts and the false facts together in conjunction, they make the comment unfair. I hope that I am developing my argument clearly and logically stage by stage. My conclusion inevitably is that these words as they stand do not carry out the intentions of my hon. Friend.

If I may come to the Amendment which, I suggest, would carry out our common intention, it adds the following words: provided that the defendant establishes that the comment is founded only upon the allegations of fact which are proved to be true. The important word here is "founded," so that the comment is based only on allegations of fact which are true. If that is the basis of the comment, then, of course, the comment is fair and perfectly all right, and should not be rendered unfair by reason of the false facts, which are not the basis of the comment. Therefore, that stands, and I suggest that it carries out the intention that, where we may have true and false facts and the comment is based on the true facts, it should not be rendered unfair by reason of the false facts. I suggest that that latter phrase carries out our common intention.

If my hon. Friend satisfies me, as I gather he intends to do, that we have this common intention, and if we can find words which will precisely carry out that intention, because I hope he will recognise that the words he uses are not apt to carry it out, I shall be perfectly satisfied.

Mr. N. H. Lever

It is not my intention that the defence of fair comment should be available in respect of a comment which is not fair, having regard to what preceded the comment in the nature of facts. If I have correctly understood my hon. and learned Friend's intention, that is his contention. If we can improve the wording of this Clause, this Bill, when it appears in another place, will stand in a rather different position from that of ordinary Bills proceeding there, in that it will have special claims to legal authority. I will give an undertaking to meet this point, which, before the passionate intervention of my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), was the only point before the House. I thought we were all of one mind that that should be done. My hon. Friend may be right—

Mr. Speaker

Order. I called on the hon. Member for Cheetham (Mr. N. H. Lever) because I thought he was merely asking a question or making an interpolation. The Amendment has not been seconded, and there is yet no Question before the House. Has the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thornas) concluded his remarks?

Sir L. Ungoed-Thomas

Yes, Sir; I have concluded my remarks.

Mr. S. Silverman

I beg to second the Amendment.

Mr. N. H. Lever

All I want to say is that I never thought that there was any difference in principle between any of us. The most that I have been accused of is an error in drafting. I do not think that my hon. and learned Friend is right.

Using the best advice which I have, and I have had the benefit of the assistance of the Law Officers of the Crown, I thought the purpose which we all have in mind is practically achieved by this Clause, and that to alter it in the way that has been suggested is cutting down the point of the case of Kemsley v. Foot, which entitled the defendant to refer to other matters upon which the comment is based than those in the article in which the libel appears.

In these circumstances, I hope that my hon. Friend will realise that there is nothing between us in principle and that the point he is seeking to make is, in fact, covered in practice by the wording of the Clause.

Mr. Silverman

Would my hon. Friend deal with the point I made about what was the plain undertaking given in Committee and which, I think he will agree, has not been honoured? May I draw his attention to his own statement at the end of the discussion during the Committee stage? He said: My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) was missing from the Committee when we purloined one of his Amendments and accepted it for later use. Now he will be pleased to know that I think the useful Amendment he has moved ought to be accepted by the Committee."—[OFFICIAL REPORT, Standing Committee B. 6th March, 1952; c. 210.] I will not read the next sentence.

Mr. Lever

I must say that this hardly supports the allegation of my obstinate arrogance which has so frequently been made. My hon. Friend was missing from the Committee when we purloined one of his Amendments and accepted it for later use. He will be pleased to know that that was a totally different matter; the Amendment to which I refer was the one on the point of principle.

Sir H. Williams

How many times, Mr. Speaker, is an hon. Member allowed to speak on Report stage on the same Amendment?

Mr. Speaker

This is a continuous speech, interrupted by the hon. Member for Nelson and Colne (Mr. S. Silverman).

Mr. Lever

I understand my hon. Friend to say that there has been a breach of an undertaking. What I undertook to do was to redraft this Clause so that it would meet the wishes of my hon. Friend because we agreed with those wishes. No doubt with the feeble advice we received from the leading Parliamentary draftsman, from the Law Officers and myself we have not done it so well as compared with the way in which my hon. Friend would have done it. We have done it incompetently and stupidly compared with the way in which he would do it. However, if, later, my hon. Friends want the matter considered in good faith, we will consider it as honestly as they approach it.

Sir L. Ungoed-Thomas

There are two short comments I wish to make. The first is on the Clause as it stands and to the words to which I have already drawn attention. The second point is with regard to facts outside the ambit of the Clause altogether. I think my hon. Friend the Member for Devonport (Mr. Foot) will find that the effect of the word "only" would be not to exclude the consideration of the facts which he had in mind and the observations he made. That is a matter for consideration, and it is certainly my intention that the case which my hon. Friend the Member for Devonport contemplated should be included in any Amendment which I put down.

Mr. Speaker

Does the hon. and learned Gentleman persist in his Amendment?

Sir L. Ungoed-Thomas

No, Sir. I beg to ask leave to withdraw the Amendment.

Amendment to the proposed Clause, by leave, withdrawn.

Clause added to the Bill.

Mr. Speaker

The next Amendment selected stands in the name of the hon. Member for Belfast. South (Mr. Gage).

Mr. Barnett Janner (Leicester, North-West)

On a point of order. May I ask your guidance, Mr. Speaker, in connection with the new Clause down in the name of my hon. Friend the Member for Deptford (Sir L. Plummer) and myself. I will not detain the House long on this matter, because I am anxious that this Bill should go through as quickly as possible, but I am also very anxious that the question of the libelling of people in consequence of their religion or race should be dealt with amply. I ask your guidance on this, Mr. Speaker, because there are peculiar factors about this Amendment.

When this Amendment was debated—I agree it was debated at length—the position was that, unfortunately, the Members present when the debate took place were not able to be present at the time the actual vote was taken. Four of the Members who actually took part in the Division—there was only a majority of six—had not been present except on that occasion itself. I ask that in those circumstances you might reconsider your decision.

Mr. Speaker

No. I gave this Amendment very careful consideration and it is not selected.