§ Order for Second Reading read.
§ 11.5 a.m.
§ Mr. Reginald Eyre (Birmingham, Hall Green)
I beg to move, That the Bill be now read a Second time.
In a modern society the mass media—Press, radio and television—are the channels through which knowledge, ideas and comment flow. In my view, we have not yet become completely aware of the implications of a full-blooded democracy. An electorate which is becoming increasingly well educated will seek to become more and more engaged in the debate concerning public affairs and decisions. A free and responsible society means an open society in which people, through the Press and broadcasting, can have ready access to the information on which they can judge policies. At the same time, Press and broadcasting must not only have freedom to comment, but also the information which enables them to make responsible and informed comment.
These matters are of wide-ranging importance and require careful consideration. I believe that increasingly in this House Members on both sides are coming to be of the opinion that the law which seeks to regulate the balance 1710 of interests in these matters is in need of adjustment. That brings me to the complicated legal, technical subjects, such as contempt of court, official secrets and defamation.
Contempt of court, after all, is relevant to consideration of the true basis of the relationship of the Press and broadcasting to the administration of justice. When considering the Official Secrets Act, we are examining the relationship of one important aspect of the executive government with the Press and broadcasting. Again, when examining defamation, we are considering the proper balance which must be maintained between the need, in a free society, for as much information as possible to be given by the Press and broadcasting, yet at the same time the need, on the part of individual citizens, to be protected from unjustified damage to their character and reputation.
I suggest that the Bill, which follows in most respects the pattern of a Bill introduced as long ago as 1966 by my hon. Friend the Member for Ludlow (Mr. More), who is still a steadfast supporter of the Bill, makes modest and cautious progress in the right direction in all these respects.
Being aware of the complexity of these subjects, I was delighted to hear the announcement last night about a study group to cover the whole range of these subjects which has been set up by the Leader of the Opposition, my right hon. Friend the Member for Bexley (Mr. Heath), which is to be under the chairmanship of my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson). I was glad to note that this study group includes a number of distinguished and very experienced journalists and lawyers.
Looking specifically at the Bill, Clause 1 intends to make clear the nature of contempt of court concerning publication in a newspaper or broadcast by specifying that such proceedings will lie onlywhere the effect of such publication is likely to influence the fair conduct of a trial or judicial proceedings.Added to that is a further restriction. Proceedings for contempt of court in respect of the publication shall not be instituted except by or with the consent of the Attorney-General. It is interesting 1711 to think that this suggestion was originally made by Lord Goddard, when Lord Chief Justice, in 1953.
What are the main reasons in support of this proposed change? A learned judge once said that it is one of the professional tasks of newspapers to unmask the fraudulent and scandalous, and that it is in the public interest that they should do so. During recent years, there has been a spate of widespread frauds involving small savings—motor vehicle insurance, football bribery, greyhound doping, the purported sale of wine at wholesale price to small buyers, and many other well-organised swindles on a large scale. In many of these cases, the victims have been thousands of ordinary citizens, cheated of their money by unscrupulous racketeers.
Even with its strengthened powers, the Board of Trade has been put under considerable strain and is hardly able to cope with the failures of fly-by-night companies operating in these fields. By the nature of their activities and their network of contacts, newspapers are often the first to know of these frauds; indeed, many of our daily and Sunday newspapers, local as well as national, are entitled to great credit for the part which they have played in exposing swindles of this kind. The public do not fully realise the risks which are taken on their behalf by the editors, nor the amount of time and money spent by the newspapers in inquiries and interviews.
However, the Press is inhibited in this good work and other services of public interest by the obscurity and uncertainty of the law and by fear of contempt proceedings which can arise in two ways. The first is in the case of civil proceedings against the newspaper, by the issue of a silencing writ, which is sometimes called a "gagging writ".
This is issued by the fraudulent person, who thereby gains time, free from adverse comment, for the completion of his dishonest operation. After all, it is very easy for almost anyone to take out a writ of this kind. Ian Porter, who was of considerable ill-fame over the London and Cheshire Insurance Company, took advantage of this procedure. When his company subsequently crashed, 120,000 motorists were left without insurance.
1712 The second type of case in which the newspapers fear contempt proceedings is when criminal proceedings are imminent. Lord Justice Salmon's words in the notorious Savundra case indicated that words published by editors knowing, or having good reason to believe, that criminal proceedings are imminent, could result in a committal for contempt. In that case, they had been imminent for a very long time. At least 12 months before the final collapse it was known that Savundra's company was in a precarious state. Many of the 400,000 motorists left with worthless policies might have saved their money had the newspapers or television been able to give them adequate warning.
I should like to see us move right away from the conception of contempt of court in cases of public interest of this kind. I believe that the whole form of contempt of court is now outdated and needs proper review. Certainly, in a case of the kind that I have mentioned, no disrespect to the court is intended and editors deserve more consideration for their problems. I suggest that a new kind of offence, perhaps of "interfering with the administration of justice", could be brought into being and defined.
In that case, prosecution in the normal way, coupled with a code of conduct, could more adequately meet the situation and solve the problem of defining "imminent". I hope that the study group which has been set up will consider this suggestion in its wider inquiries and that consultation with the Press Council, which has done admirable work in this direction, will enable a comprehensive solution to be developed.
For the purposes of the Bill, I have not found it possible to define "imminent" in a way which would assist newspapers in their efforts to expose swindlers of this kind, but the combined effect of Clauses 1 and 8 would, I believe, go a long way to cancel out the inhibiting effect of Lord Justice Salmon's dictum.
Whatever the civil consequences of any defamatory statement made by a newspaper—that risk they will still have to face—it should not, in a new "Savundra case", become a matter of possible contempt. I therefore suggest that Clause 1 contains words intended to contain a reassuring element of clarification, plus the 1713 assurance that the Attorney-General's consent would free newspapers from the threat of capriciously brought contempt proceedings.
The Clause has been drawn in a deliberately wide fashion and is capable of considerable improvement later, but it tries to illustrate the intention, which is to meet the needs, in what I hope will be only an interim period, of overcoming an inhibition which is unreasonably caused in the minds of editors, pending a solution on a much broader front by more comprehensive reform of the law on the lines which I have suggested.
Clause 2 makes it clear that publication of imputations or criticisms the same as, or similar to, any which are the subject matter of current libel or slander proceedings shall not constitute contempt, and the effect of this is severely limited by the words:… by reason only of the fact that procedings are pending.In view of the risks involved, newspapers will not be unthinkingly inclined to repeat the alleged libel, anyway.
I turn now to Clause 3 and the dreadfully neglected situation under the Official Secrets Acts, which have never, since their introduction, been properly debated in this House. There is growing recognition that this legislation, which was specifically framed to counter espionage, is badly out of date and in need of thorough review. The recent Report of the Fulton Committee certainly supports that opinion. The Government are neglecting their responsibilities if they continue to ignore this important subject and the need for change. I urge the Attorney-General to acknowledge the need for change here.
The effect of this legislation extends far beyond the realm of national security. Apart from authorised disclosures, which are difficult to define, it has a blanketing effect upon a wide range of Government and associated activities. The undeniable result is to muzzle criticism and restrain the passing of information which is quite clearly outside the strict realm of security. All Government Departments and civil servants come within the scope of the Acts, as do the police and prison services. In addition, somewhat surprisingly, so do large areas of the National Health Service and even the sweetly innocent work 1714 of a department like the Land Registry Department is affected, together with the documents, papers and work in many respects of the regional development councils.
The free society to which we pay so much lip service requires a more open disclosure of information in so many of these areas of activity. In the public interest, more information is necessary and can only lead to more informed discussion and to better decision-making.
Clause 3 provides a way in which small shafts of light may be let into this thick statutory blanket. Vital defence, budgetary and similar secrets must continue to have full protection, and the defence provided by the Clause does not extend to acts prejudicial to the public interest. I appreciate the wide-ranging impact of the Clause. If the Attorney-General could assure me that the Government will go as far as the Leader of the Opposition in considering the problem, I would be happy to agree to undertake to withdraw the Clause.
Turning to defamation, Clause 4 amends Section 5 of the Defamation Act, 1952 so as to provide that, in an action for libel, all the words in a publication shall be considered as a whole, and that defendants be no longer required to succeed in proving the truth of every allegation, provided that what is proved is a substantial part of a whole.
Clause 5 adds two categories of fair and accurate reports to those protected by qualified privilege under the Defamation Act, 1952. The first of these exceptions is proceedings before a court exercising jurisdiction in any territory outside Her Majesty's Dominions. It has been suggested that such a form of qualified privilege already exists where a proper interest is in existence, but the Bill provides for an extension. I appreciate that there are objections to this proposal, which the Attorney-General will possibly enjoy developing at a later stage.
The second category of extended qualified privilege is more important, as it applies to fair and accurate reports of any proceedings in public of a central or local legislature in any territory outside Her Majesty's Dominions. The world is becoming smaller every day. Modern conditions and the need for 1715 people to be informed, for example, about proceedings in the Senate of the United States make this a necessary addition to our law. Reports of proceedings concerning, say, Scientology in a State Legislature in Australia would present newspapers here with publication problems which should not be allowed to continue.
Clauses 6 and 7 amend the present rules in actions for libel by providing that the question whether the words are capable of defamatory meaning shall be decided by a judge in the absence of a jury and that any issue of express malice shall be a matter for decision by the judge. The reasons for these proposed changes are that such matters often involve complicated and technical considerations which are better decided by the judge in the interests of a fair hearing.
Likewise, Clause 8 requires that, in all actions for libel, the amount of damages shall be decided by the judge alone. Although the effect of Clauses 6, 7 and 8 together is to place upon the judge the responsibility of deciding the more technically complicated matters which are relevant to a fair and proper trial of the action, the most important decision of all, which is whether the words complained of were in fact defamatory, is left to the understanding and judgment of the ordinary citizens who make up the jury.
I appreciate that some believe strongly that the assessment of damages should be left in the hands of the jury, but, in support of the Bill's proposals, I should point out that in recent years there have been numerous cases of juries awarding excessive damages in libel cases involving newspapers.
I am encouraged in my opinion in favour of change to find that both Lord Denning, the Master of the Rolls, and Lord Devlin have questioned the function of the jury in this respect in recent months. The Court of Appeal has exercised its right to order a retrial in certain of these best-known cases of excessive damages. But it is wrong and unfair that the Court of Appeal cannot in its own right make an order as to the amount of damages when clearly an error has been made in this respect in the court below. Not all newspapers are great and wealthy 1716 institutions. We should bear in mind the proper interests of small local and national newspapers, periodicals and publications which have an important part to play, sometimes in their own districts or their own sphere of opinion, in safeguarding public interests.
I believe that an overwhelming case can be made out for reform of the law in these areas, and I hope that hon. Members will not be too insensitive to the reasonable demands of the Press that its problems should be considered with understanding. May I say, in that connection, that I am grateful to the hon. Member for Accrington (Mr. Arthur Davidson), who is a strong supporter of the Bill and who has so patiently explained to me the nature of many of those difficulties.
While I do not claim perfection for any Clause in the Bill, it merits consideration, because it will help newspaper men and broadcasters to carry out functions which are of real public importance.
§ 11.27 a.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I want, first, to congratulate the hon. Member for Birmingham, Hall Green (Mr. Eyre) for introducing a very useful Bill. I agree with its laudable objects although, like the curate's egg, the Bill is good only in parts. It contains provisions which are well worthy of support, but there are a number of criticisms of it which I desire to make.
Clause 1 lays down that there is no contempt of court in respect of any matter in a newspaper or broadcast except where the effect is likely to influence the fair conduct of a trial or judicial proceeding. As I understand, that is not very different from the present position. The law now is that any publication calculated to bring a court or judge into contempt, lower his authority or interfere with the due course of justice is a contempt of court. It has to be remembered that, as the law now stands, public or private criticism is permissible, providing that it is fair and temperate.
What I do not like is the restriction that proceedings cannot be brought except with the leave of the Attorney-General. After all, there may be cases where there is contempt, on the very 1717 morning of the trial, and the matter ought to be drawn to the attention of the court immediately.
To wait for the leave of the Attorney-General—and I know that he and his Department may be very speedy—may mean a delay which might prejudice the trial. Surely without such leave the court could be trusted to deal with the matter. I would give a very grudging approval to Clause 2, which permits the repetition or transmission of the libel—but only on the ground that there will be a right of action for libel in respect of the material repeated or broadcast. Clause 3 seems to be a good amendment of the law. However reprehensible, I do not think that it should be a criminal offence, punishable with dire penalties, if the accused proves that his act was not prejudicial to the public interest. The real sting in this offence is the prejudice to public interest.
Clause 3(2) debars the accused from putting forward this defence unless he gives the prosecution seven days' notice. He should be permitted to put forward the defence with the leave of the court in cases where he has failed to give such notice.
I do not like the provision in Clause 3(3) that the issues should be decided by the judge and not the jury. I apprehend what the reason is, but the judge can inspect the documents, but if the case is a trial on a plea of "not guilty" it is right that all the material should be brought before the jury. I appreciate that the matter is often dealt with in closed court. If the judge is satisfied on the certificate of the Minister, and the material, that he is bound to hold the matter prejudicial, he can instruct the jury to disregard that defence.
I support Clause 4. As the law stands, a defendant may well be restricted to justifying the charges made in the words actually complained of, and may thereby be prevented from dealing with other charges in the publication. It is only right that, if the justification of these other charges proves there is no real detriment then he should not recover damages. I agree, also, with the provision in Clause 6, that the judge should rule on the question of whether the words are capable of a defamatory meaning in the absence of the jury. I am somewhat 1718 apprehensive about the meaning of subsection (b). If it merely means that the judge shall not communicate his ruling to the jury, then I support it, but if it in any way restricts the judge in his summing-up, when directing the jury as to what the words mean, so as to assist them, I would object to it.
My main criticism is directed against Clauses 7 and 8. Malice is a question of fact, and facts ought to be decided by a jury. I do not see why in Clause 7 the issue of express malice which in law means malice in fact as distinct from implied malice, should be decided by the judge and not the jury.
§ Mr. T. L. Iremonger (Ilford, North)
I may be quite wrong, but could the hon. and learned Gentleman enlarge a little on that? My understanding is that there is nothing more highly technical in the whole ambit of the legal structure than the concept of malice in libel. Surely if there was ever anything that was a question of law, as opposed to a question of fact, it is the question of malice?
§ Mr. Weitzman
Express malice is malice in fact, to be decided on the facts. Technical difficulties may arise with regard to implied malice, as distinct from it, but express malice, being malice in fact, should be decided by the jury.
To me, the important part of the Bill is Clause 8, which enacts that in actions of libel the amount of damages awarded should be decided by the judge. I believe that damages are peculiarly a matter for a jury. It is true that juries sometimes return strange verdicts. I remember being concerned in a case for damages when the foreman of the jury announced its verdict in these terms:We find for the plaintiff for £200 damages. We say that it was a pure accident, and we exonerate the driver from all blame.I suppose that the proposal in Clause 8 has been put forward because some juries have awarded extravagant damages in libel actions.
In such cases the remedy is with the Court of Appeal, which, in latter years, has tended more and more to interfere with verdicts on damages, when it feels that justice has not been done. In the majority of cases juries deal reasonably with the quantum of damages. It is better to rely on the good sense of 12 people, chosen at random and properly 1719 directed, than the decision of judges who very often differ considerably. Years ago I acted for the plaintiff in a personal injuries case before a judge who was notorious for the low amount of damages he awarded.
I discussed with my opponent an offer to settle for £1,000, and he would not agree to pay a penny more. By good fortune the case was moved to another judge's list, a judge who had the opposite reputation. My opponent promptly agreed to pay £2,000, a very considerable sum in those days. The right to trial by jury is a right of the highest importance in our legal system, which we should treasure and uphold as an example to other countries. It has now been withdrawn in many civil cases and this I deplore.
One of the few cases in which it remains is a libel action and the Bill does not seek to withdraw that right. In a case of libel the plaintiff may require a jury, and the court must grant his request, unless the case requires a prolonged examination of documents and accounts, or any scientific or local examination which cannot conveniently be made with a jury. If this Clause remains what is left for the jury? Merely the bare decision, with the issue of express malice and the amount of damages withdrawn from it, and possibly some limitation in the directions the judge may give.
I would not oppose the Bill—it contains some useful amendments—but I hope that the promoter will give further consideration to the points I have raised.
§ 11.38 a.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
My hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre) has really earned the thanks of the House for bringing forward this Bill. I congratulate him not only on what he has brought forward but on what he has omitted, because there must have been a great temptation upon him to accede to the desires of the report of Justice to give the Press a blanket permission to do practically anything under the umbrella of qualified privilege. That was a suggestion which received a very rough ride in a debate in another place about two years ago, particularly at the hands of Lord Goodman.
1720 I will not repeat those objections, since my hon. Friend has exercised remarkable restraint in resisting what must have been pretty heavy blandishments in that direction. He is unfortunate in that his audience, almost inevitably, consists of lawyers on such an occasion, with one or two shining exceptions. Lawyers are notoriously critical, and almost anything brought before them will be picked about. Thus, the general theme of the Bill is liable to be lost. If I do a little picking myself although my name is on the back of the Bill, I hope that I shall be forgiven and that it will be taken as entirely the result of occupational disease.
The first part of the Bill, that dealing with contempt, seems good in both its intention and its structure. My only criticism about Clause 1 is that I am not sure whether, under the new rules relating to contempt as my hon. Friend wishes to see them, there would be included in the definition of contempt those printed matters which scandalise the court, which, for example, attack the court as being a corrupt, foolish or generally unworthy body. It might be said that that came not within the words as drafted and that proof of contempt would have to be directed to showing that the effect was likely to influence the fair conduct of a trial or judicial proceedings. It may be included, but I doubt it. In my view, it should be. Scandalising the court, although it may be done in moderate terms, and is done increasingly now, I think—the judges do not seem to mind—could get out of hand. It would be a pity if there were no remedy against it.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
Is it not covered byinfluence the fair conduct of a trial or judicial proceedings"?Is it not bound to be damaging to the fair conduct of judicial proceedings if, for example, a man says that a judge is crooked?
§ Mr. Fletcher-Cooke
By no means necessarily. Is it likely to influence fair conduct of judicial proceedings coming before a judge who treats those matters with the disdain they are worth? The judge will say, "I am not influenced by that sort of muck", so that it would not be contempt according to the present drafting, although it would be scandalising to the court and, therefore, not 1721 in the best interests of the community as a whole. That is the distinction which I draw. I am glad to detect that the Attorney-General seems to be of my mind there.
On the whole, however, I consider that Clauses 1 and 2 are admirably intentioned, as is Clause 3. The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) really answered himself when he began by complaining that the matter covered by Clause 3 was not left to the jury but would be for the judge alone, but then said that he understood why because it would mean disclosing to the jury matters which might be extremely confidential. Under the new arrangements relating to Crown privilege, for example, it already happens, even though there is a jury, in a case involving matters of evidence on which there is a dispute as to whether the disclosure would or would not prejudice the public interest. In my view, my hon. Friend has the balance here right.
I come now to the Clauses dealing with libel. Here I am rather—I do not say horrified—sad that my hon. Friend has by Clause 7 presumed to withdraw from the jury what is, perhaps, one of its most important functions. The jury today is under attack. I mean not merely in this House but all round. People think that the jury is not quite the homogeneous and sensible body it used to be. But I think it is. I should like to see the jury used just as much as at present, if not more. If we start withdrawing from the jury matters of fact, even though they may be rather difficult matters of fact, it will not be long before there will be no juries left in civil trial at all.
One of the most important decisions of fact is that of express malice. I do not know that there have been any cases in which a jury has come to what looks like a perverse verdict on matters of express malice in newspaper cases. I should think not. On the whole, juries are reluctant to find express malice. Therefore, I do not know why this function should be withdrawn from them, and, as I say, if it is, there will be but a short time before their functions are completely obliterated in all civil actions. I hope, therefore, that my hon. Friend will note the criticism of Clause 7 when we go to Committee. In my view, it is wrong.
1722 Clause 8 is more debatable. It covers a question not of fact but of opinion, of judgment. Therefore, it is consistent with the structure of our system of trial to give the judge the power to award damages. I should be sorry, but it is at least consistent with the structure. However, if we withdraw from the jury the power to award damages in libel cases it will be only a few weeks or months before power to award damages in all civil actions is withdrawn. That is the way law reform works. I could give instances of it. Here again, therefore, it would mean that the jury's function and position would be considerably diminished.
The other reforms in the law of defamation are not great, but I am not sure that my hon. Friend has fully considered the effect of extending the defence of qualified privilege of newspapers so as to go beyond judicial and legislative proceedings in Her Majesty's Dominions to anywhere in the world. I take the question of the legislatures first. When my hon. Friend gave the example of Australia, he was, I think, under a misapprehension, for that is already covered. All the ex-Colonies are covered even though they no longer recognise the Sovereign as their Sovereign, because, by a provision in, I think, the Defamation Act, 1952, the Queen is deemed for this purpose to be Queen of such Republics as exist in the Commonwealth even if she is not. The ambit is pretty wide as it is.
However, let us consider what the effect might be of extending qualified privilege to the whole world. The justification, or purported justification, in the case of Her Majesty's Dominions, is that Legislatures have their own internal rules or conventions to prevent dreadful slanders being disseminated within the protection of absolute privilege. Sometimes, the rules are not legal but are pure convention in the sense that it is the way Members are expected to behave, not abusing their privilege by disseminating slanders while knowing full well that such slanders may be repeated in newspapers and the person defamed will have no remedy against anyone.
Because there are those built-in sanctions, perhaps not immensely strong but there none the less, this privilege has not seemed to work too badly. But let 1723 us consider the legislature of a totalitarian State. Fleeing from the borders of such a State a distinguished exile takes refuge here. He disagrees with the way in which that country conducts itself. As so often happens, the totalitarian State gets very angry about it, seeking to vilify such people in the most scandalous and lying fashion. One of the ways of doing this most effectively, assuming that the Bill passes as drafted, would be to arrange for someone in its so-called legislature to make a speech vilifying the refugee in the most scandalous fashion. This is easily done in a totalitarian society. Then, the newspapers could with complete immunity in this country repeat such slanders, and there would be no remedy available to the distinguished refugee I have instanced.
I think that is going too far. There is not enough internal self-discipline in such legislatures all over the world, sometimes not always totalitarian ones, to allow them to put at risk such victims without giving the victims some remedy from the widespread repetition of such slanders. It is no encouragement or defence or consolation to the victim to be told, "Nobody really believes what is said in the legislature of this totalitarian country", because many people still believe whatever is printed.
§ Mr. Arthur Davidson (Accrington)
Does not the hon. and learned Gentleman agree that there are totalitarian Governments and legislatures in Her Majesty's Dominions which are already privileged?
§ Mr. Fletcher-Cooke
I agree. I think that a serious situation not only often arises but will arise increasingly in such circumstances. That is why I think that the present defence of qualified privilege has gone much too far in many of Her Majesty's ex-Dominions which are still covered by this defence because it is an opportunity not merely for slandering such people but for ensuring that such slanders are spread to the countries to which they have often fled. It is because of an example I have in mind from one of the members of the Commonwealth which I will not name that I have made this criticism in such terms of widening the scope.
1724 I am sorry to have spent such a time on one small part of the Bill. Apart from that, this strikes me as being a valuable Bill. It will not be the end of the subject. As my hon. Friend says, we must ensure that in an open society there are not greater barriers than are absolutely necessary to the free expression of views. Of the barriers which exist, undoubtedly contempt of court, and particularly the use of the gagging writ, the use of the Official Secrets Act to protect something which is no more than Executive convenience rather than national security, and the use in many cases, though less often than in the past, of gold-digging actions for defamation are three of the things which have to be tackled. My hon. Friend has started the good work today.
§ 11.52 a.m.
§ The Attorney-General (Sir Elwyn Jones)
The Duke of Wellington on one occasion said of the Press:What can we do with these sort of fellows? We have no power over them and, for my part, I will have no communication with any of them.The Duke should have known better, because very shortly afterwards one of those "sort of fellows", as he described them, wrote of the Duke:Westminster Abbey is yawning for him".The hon. Member for Birmingham, Hall Green (Mr. Eyre) has certainly no intention of repeating the Duke's error; nor, indeed, have I. I am sure that the House will join me in congratulating the hon. Gentleman on his most skilful and attractive presentation of the Bill and in his moderation in doing so.
The Bill raises many interesting and important questions touching the delicate balance which, in a free society, must be drawn between the Press, on the one hand, and the individual citizen, the courts, and the Executive, on the other. My own view is that, as the law stands, the balance is about right. Some of the proposals in the Bill would, in my view, tilt the balance excessively against the individual, both in the field of libel and by diminishing the safeguards which now exist to ensure that the citizen will get a fair trial when he is in trouble. Clause 3, dealing with the Official Secrets Act, is unacceptable, for reasons I will indicate a little later.
1725 In my view, the Bill needs very substantial Amendments indeed if it is to reach the Statute Book. I am bound to advise the House that, if those Amendments are not made, the Bill should be rejected. However, the Government's attitude at this stage is that every Member is free to support or oppose the Bill in accordance with his own estimate of its merits. If there is a vote, it will be a free vote on this side of the House, and there is no Whip of any kind.
I turn now to deal with the Clauses one by one. I hope that I shall be forgiven if I consider them in a little detail. Clause 1 deals with contempt of court. As I understand its language, it seeks to do two things. First, it seeks to restrict what might loosely be called newspaper contempts only to publications likely to influence the fair conduct of a trial. Secondly, it would make the institution of proceedings for such contempts the exclusive function of the Attorney-General. I note in passing the omission of any reference to proceedings in Scotland and to the functions of the Scottish Law Officers, on whom fall the duty of dealing with these matters in Scotland.
On the first point, I agree that the law of contempt is directed principally at publications likely to influence the fair conduct of a trial, but I share the anxiety expressed by the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) that the Clause appears to ignore another aspect of contempt, namely, a malicious and scandalous attack on the character of a judge or the administration of justice calculated to undermine confidence in the courts.
In this field, reasonable and justifiable criticism can never amount to contempt. Indeed, it is to be welcomed. I think that there is probably too little criticism of the administration of justice. As Lord Atkin said, the administration of justice is not a cloistered virtue and anybody is entitled to express his honest opinion about it. I think that the courts and the judges must be protected, however, against irresponsible and malicious attacks, whether in newspapers or in other publications.
On contempt proceedings generally, in the approximately 4¼ years for which I have held my present post as Attorney-General, only on one occasion have I set in motion proceedings for contempt; 1726 and on that occasion the newspaper concerned admitted its breach of the law. However, I appreciate that there is a feeling in Fleet Street, which the hon. Member for Hall Green ventilated, that, in spite of the rarity of contempt of proceedings, newspapers need some further protection from irresponsible and vexatious proceedings so that they can discharge their highly important job of keeping the public informed about matters of general interest with less anxiety. I am aware that the proposal that the Attorney-General alone should have the power to institute proceedings for contempt had, as the hon. Member for Hall Green said, the support of a former Lord Chief Justice, Lord Goddard.
However, I think that there is another side to the question. I receive a number of requests to institute proceedings against newspapers and broadcasting authorities. It is astonishing how eager many are, or appear to be, to take proceedings in these circumstances. Each time I have to make up my mind, not only whether there is evidence that a contempt has been committed but whether, in all the circumstances, it is serious enough for me to institute proceedings. If, as once happened, as I have said, I think that proceedings should be instituted, there is great advantage, at any rate a financial advantage, for the complainant, because the State bears the costs of the proceedings.
But the question remains: ought the Attorney-General of the day to have the last word? Suppose, for example, the complaint is made about some comment on proceedings in which a Ministerial colleague of the Attorney-General as representing the Crown is a party. Is the complainant going to be satisfied with the Attorney-General's decision in those circumstances not to act, or is he going away saying, "Dog don't eat dog"? I suggest it is much better if the Attorney-General can say, "I do not think your complaint justifies me in instituting proceedings for contempt, but you are welcome to test my opinion by taking it to court yourself and persuading the court that my view is wrong."
In practice in all the cases that have been referred to me except the one, my refusal has ended the matter. But I think that a situation could arise where this could leave a sense of grievance, and I 1727 also take the point made by my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) of an emergency situation arising where, in spite of the high speed with which I hope my Department conducts its business, it may be necessary for the complainant to go straight to the court himself.
I may further add that the opinion of Fleet Street is apparently by no means universal about this. The Times some time ago made this comment on the proposal, thatto the extent that this would give new powers to the holder of a political-legal office it can be criticised in this context.Of course, it would not be a new power save in the sense that for the first time the decision, if this became the law, would be final.
Therefore, touched as I am by the confidence in the Attorney-General and his office which is implied in the proposal in Clause 1, I fear that I do not think it would be in the interests of the ordinary citizen or leave him with a full sense of satisfaction if the power was wholly taken from him.
In relation to the matter of contempt, which I agree is a difficult field, the sponsor of the Bill dealt with the problems which arise from the provisions of Section 11(1) of the Administration of Justice Act, 1960. That Section provides that a person is not to be guilty of contempt of court on the ground that he has published any matter calculated to interfere with the course of justice in connection with any proceedingspending or imminent at the time of publicationif at the time, having taken reasonable care, he did not know and had no reason to suspect that the proceedings were pending or imminent as the case may be.
I understand that this provision has given difficulties to the newspapers and is continuing to do so. It may be significant that according to the Report of the Working Party of the representatives from the International Press Institute and from Justice, upon which some at any rate of the provisions of the Bill are based, one sees thatthe great majority of witnesses recognised that this aspect of the law of contempt in general went no further than was necessary 1728 to safeguard the interests of persons suspected or accused of criminal offences, although it required the Press to exercise a high degree of care in handling reports of investigations and rumours.The difficulty here, as was stated in the well-known words of Mr. Justice Wills in the case of R. v. Parke, is thatit is possible very effectively to poison the fountain of justice before it begins to flow.All I should like to say by way of reassurance, at any rate to Fleet Street, is that I would not expect proceedings for contempt to be begun or successfully concluded save in cases in which the newspaper ought reasonably to have been aware of the likelihood of a very early arrest.
Quite apart from the matters which I have brought to the notice of the House, I remind the House that there is a Committee under the chairmanship of Lord Justice Salmon which is looking into the question of contempt in relation to proceedings before tribunals of inquiry. It may well be wise to wait and see what that authoritative Committee says about some of the issues which Clause 1 raises before the House legislates upon them.
Now I turn to Clause 2 which deals with something different. Its object—I fully understand the importance attached to this by the Press—is to stop people stifling justifiable newspaper attacks and criticisms by the simple expedient of issuing a writ and then saying to the Press, "the matter is now sub judice and if you repeat any of the allegations in question you run the risk of proceedings for contempt". I admit that this is a very difficult issue. On the one hand, as the hon. Member for Hall Green said, one has the rogue whose malpractices have been exposed by the Press and who uses defamation proceedings as a weapon to shut the Press up but who continues his frauds in the meantime and until the authorities act. But one has, on the other hand, the possibility of a malicious campaign against someone the prolongation of which will wreck his reputation beyond recall.
For myself, I think it is going too far to say that the court should have no power to impose immediate and severe sanctions on a newspaper, or, indeed, on anyone else, who repeats an allegation already the subject of a libel action. One 1729 has to remember that the plaintiff in that action may have persuaded the court that an injunction should be granted restraining the defendant from repeating the allegation until trial. I ask whether it is right that other people should be free to repeat that allegation apparently with impunity save, of course, for the risk of libel proceedings.
The difficulty about that is that those men who may be disposed to engage in a campaign of defamation may well be men of straw and the damage will have been done to the complainant before an injunction can be obtained. However, as the law stands I would expect the courts to be slow to treat as contempt a repetition of a defamatory statement where there has been no injunction and where the defendant in the original action has shown that he is prepared to justify his allegations. It may be that the law in this field is not altogether clear and that it could with advantage be clarified but I am not sure that Clause 2 clarifies it in the right way. My personal view is that it goes too far.
Clause 3 seeks to amend the provisions of the Official Secrets Acts which make it an offence, broadly speaking, for anyone to receive information which he knows has been communicated to him in contravention of the Acts. As my right hon. Friend the Prime Minister indicated in a speech only last week, Governments ought toensure that their duty to preserve the security of the State is not used as an excuse to restrict the freedom of the Press … and such restrictions as are needed on security grounds should be kept to the minimum, should be constantly scrutinised, and should be reduced wherever practicable.It is in line with this general approach that, following the recommendations of the Fulton Committee, the whole question of the release of official information should now, as it is, be under consideration. In this context, there may be a case for looking again at the Official Secrets Acts, and I can assure the hon. Member and the House that this matter is by no means being ignored.
If, as unhappily I now fear I must, I go on to say that we find Clause 3 unacceptable, the House will, I hope, accept from me that this is not because of any desire to be close-fisted in matters of information or communication, or to 1730 bring the full weight of the criminal law against a journalist who publishes something the Government do not like. But the Clause presents a fundamental difficulty.
It provides that a person receiving information communicated to him in contravention of the Official Secrets Acts shall not be guilty of an offence if he can establish that what he did was not prejudicial to the public interest. The question whether or not the public interest has been injured or prejudiced would, therefore, be decided by the courts. I recognise that the Clause provides that the issue is to be determined by the judge and not by a jury, but, even so, this cannot be made satisfactorily a justiciable issue in the criminal courts. It might lead in some circumstances to a political debate, more appropriate to the Floor of this House than to the Old Bailey, with the question whether the accused had actually done the acts alleged fading into the background.
But there is another objection which is even more serious. There could well be cases, perhaps even concerning defence information, in which it might not appear that any national interest was prejudiced. Someone might have very good reason for holding that the national interest was prejudiced, but in order to call evidence to that effect, he might have to make disclosures which would prejudice, perhaps seriously injure, the national interest. I cannot think that it would be right that such a situation should arise or that this is in any way a necessary condition of the more open policy to which my right hon. Friend the Prime Minister so recently referred. However, I have been reassured by the Member's approach and his appreciation of the difficulties to which Clause 3 gives rise.
The remaining provisions of the Bill deal with the law of libel—
§ The Attorney-General
I cannot take the matter further at this stage, but if the hon. Gentleman holds himself with 1731 his customary patience, there may well be answers to the questions which he has put to me before very long.
I now turn to the remaining provisions of the Bill, dealing with the law of libel. Clause 4 substitutes a new Section for Section 5 of the Defamation Act of 1952. That Section provides that, in an action for libel or slander in respect of words containing two or more distinct charges, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words which are not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
Perhaps I may illustrate the principle by means of an example. Suppose that a newspaper article accuses a jockey of pulling horses on ten named occasions and that, when he sues for libel, the defendants can prove that he pulled horses on only nine of those occasions. Section 5 of the 1952 Act would allow the newspaper to succeed on a plea of justification if, as would no doubt be the case in that situation, the allegation in respect of the tenth race did not materially injure the plaintiff's already shattered reputation.
But suppose that the jockey in that example knew as much about the law of defamation as he knew about horses. If he knew the strength of the case against him in respect of the nine cases, he might sue for libel only in respect of the allegation that he pulled the horse in the tenth race. Since he would not be complaining of the other nine allegations, Section 5 would not apply and the newspaper could not succeed in a plea of justification—although it might be able to give evidence about the other nine races to mitigate the damages, and I do not suppose that the jockey would get very much. But he might, at any rate, get the judgment of the court in his favour.
It might seem, and I know that it is, a sensible extension of Section 5 to make it cover cases in which a plaintiff has singled out for complaint some only of the allegations made against him. Clause 4 tries to do that—I am not sure that it is completely successful—but it may be worth pointing out that the proposed 1732 substitution for Section 5 does not apparently apply to an action for slander, and as it replaces that Section, the advantage which the Section gives to the defendent in a slander action is lost. However, that may be a point of comparative detail which could be dealt with.
Although I approve of the intention behind Clause 4, I share the anxieties of the hon. and learned Member for Darwen about Clause 5. The law regarding foreign judicial proceedings seems to be pretty well right as it is. It was stated in the case of Webb v. Times Publishing Company in 1960, the action which was brought by the former wife of Hume, who was acquitted of the murder of Setty but who subsequently pleaded guilty to being an accessory after the fact to that murder, that there is qualified privilege if the subject matter is of legitimate and proper interest to the English newspaper reading public.
In the words of the learned judge, there must be… a legitimate and proper interest as contrasted with an interest which is due to idle curiosity or the desire for gossip.He continued:Sometimes a report of foreign judicial proceedings will have intensive world-wide importance so that a reasonable man in any civilised country, wishing to be well-informed, will be glad to read it, and would think that he ought to read it if he has the time available. Sometimes a report of foreign judicial proceedings will not have such intrinsic world-wide importance, but will have special connection with English affairs, so that it will have a legitimate and proper interest for English readers, and the reasonable man in England will wish to read it or hear about it. For instance, a report of foreign proceedings may throw light upon, or be related to or connected with, the administration of justice in England.as was the case with the trial of Hume in Switzerland.
In regard to an intervention by one of my hon. Friends as to whether the present law would remove protection from reports of proceedings in Australia, say, relating to scientologists, there is obviously an immediate, legitimate and proper interest for English readers in the subject, and I would expect such a report to be protected.
It may be of interest to the House to know that when a proposal similar to that in Clause 5 was discussed in another place the noble Lord Lord Goodman commented on facts which were within 1733 his professional experience and he described a man who, while abroad, became involved—
§ Mr. Speaker
Order. Was the noble Lord speaking on behalf of the Government? If not, it would not be in order to quote him now.
§ The Attorney-General
No. He was not doing so. I was not quoting from anything the noble Lord said, but was merely summarising the effect of what he was saying from his experience, but if, Mr. Speaker, that infringes the rules I certainly do not want to press the matter. I am nor sure that it does, but I will pass on.
At any rate, there is a certain danger in situations of proceedings abroad which, if reported here, could do grave damage to the individual. I noted with interest the kind of illustration which the hon. and learned Member, whom I can certainly quote from, gave upon this point.
§ Mr. Eldon Griffiths
Before passing on, which the right hon. and learned Gentleman throw his mind forward just a little? Let us suppose that within a few years there is—for example, in the United States—an international spy case affecting this country and that this is reported via an orbiting satellite and therefore would be available on British television screens. Is the right hon. and learned Gentleman really going to say that the British Press shall be prevented from carrying such matter from a foreign court, when it has been available legally or illegally on television?
§ The Attorney-General
No. I would have thought an international spy case affecting this country would be a matter which could be the subject of proper and legitimate interest in this country and, therefore, would be properly reportable. If the hon. Gentleman, who, I know, has a great interest in this matter, wants to look into it in greater detail, he will find the case I referred to in the Law Reports  2 Queen's Bench Division, page 535, where there is a classic and, I submit, clear statement of the law. I think he will be reassured by it in that kind of situation.
I was venturing to express an anxiety about this, and I hope I shall not be accused of mere chauvinism if I sug- 1734 gest that not all foreign courts have the same standards as our own. The effect of the Clause would be that, in practice, there would be no restraints on the reporting of proceedings in a foreign court even though that court might have little regard for natural justice and the proceedings might be engineered by the foreign authorities to discredit an individual whom they disliked or might be launching a campaign against.
The House may be interested to know that the Defamation Act, 1952, which, as the House will recollect, was introduced as a Private Member's Bill, when originally introduced contained provisions conferring qualified privilege on reports of proceedings of foreign legislatures and foreign tribunals. Those provisions were rejected by this House, and restored in another place, only to be rejected once more in this House. The arguments which prevailed were that the existing law did not impose any restrictions which had been shown to work against the public interest while the conferring of qualified privilege on such reports might well impose hardship on individuals who were unfairly attacked in foreign legislatures, and I am bound to say that I am disposed to agree with that view.
§ Clause 6 seems to me to be concerned purely with practice and procedure. I see no particular objection to what is proposed, but it does not appear to me, with respect, to be a matter of any great moment, and I am not aware of the present practice having led to any injustice, but if a change in practice is thought desirable, this is a matter which the Rule Committee could deal with. Whether the judge hears the submission in the presence or the absence of the jury, and the stage at which he gives his ruling on that submission, really are matters, I should have thought, of procedure, and I do not think that legislation is necessary to do something which, if it is really wanted, the rule making authority can do for itself.
§ With Clause 7, I am bound to say, I flatly disagree and I share the views of my hon. and learned Friend the Member for Stoke Newington and Hackney, North. The jury seem to me to be admirably constituted to decide questions of malice. I am comforted in finding that this view is supported by no less an authority than Lord Denning, the 1735 Master of the Rolls, and by the present Lord Chancellor with his vast experience in libel cases. It is also the view of Lord Dilhorne—[Interruption.] I refrain from commenting on the current derision or its cause or origin.
§ Finally, there is Clause 8, which suggests that the amount of damages should be decided by the judge alone. This, no doubt, stems from the suggestion that juries are prejudiced against the Press and award too heavy damages. I am not at all sure that this is right. I have been looking at awards of damages by juries in libel actions against newspapers during the last four years. As far as my researches go, in 1965 there was only one such case, in which the jury awarded damages, and the amount was £2,625. In 1966 there was one case and in that case the award was £4,500. In 1967 there were three cases, where juries awarded £500, £5,000 and £1 respectively. In 1968 there was only one case and £2,500 was awarded. I would have thought that a jury was as fair an assessor of damages as anyone.
It may be of interest that the working party I have referred to, chaired by Lord Shawcross, itself rejected the proposal in Clause 8 because it involved
an erosion of the existing right of persons whose reputations have been attacked to put themselves upon their country
§ as the ancient phrase has it.
§ Moreover, as was made clear by Lord Denning, who has made it clear on several occasions both in the Court of Appeal and elsewhere, the Court of Appeal regards itself as having power to set aside an award by a jury if it is out of proportion to the circumstances to the same extent as an award by a judge. It is interesting that in a case in 1967 where the two plaintiffs had been awarded by the jury £4,000 each by way of damages the Court of Appeal ordered a new trial on the operation of damages and the Master of the Rolls went so far as to suggest that a reasonable sum would not exceed £1,000 for each of the plaintiffs. I do not know what the end of the matter was, but perhaps I had better not comment in the circumstances, but I respectfully agree with the view that the Court of Appeal does not need any greater powers than it already has.1736
§ I am sorry to have taken so much of the time of the House, but the House will have seen that in my view there are many substantial objections to the provisions in this Bill. As I have said, I find Clause 3 totally unacceptable; I have grave misgivings about the main features of Clauses 1, 2, 7 and 8; I doubt whether Clause 5 is necessary or desirable; and that leaves only Clause 4, which seeks to effect a minor improvement in the law to libel, and Clause 6, whose object can be achieved without legislation.
§ Having, therefore, praised the Bill with faint damns, I conclude by inviting the House to consider whether the Bill is sufficiently worth while to go to Committee.
§ 12.30 p.m.
§ Sir Peter Rawlinson (Epsom)
I consider this debate to be a matter of the greatest importance and perhaps it is appropriate that it should be on the morning of a reflective Friday debate. The Attorney-General has spoken at length and made pointed criticisms. Nevertheless, the Bill raises great issues which affect all of us, the balance of our different interests, which are those of our right to free trial; the right to have one's good name maintained; and the right of free speech. This list is held mainly by the Press.
The Attorney-General said that the law now is about right, but I do not altogether agree—
§ The Attorney-General
I said that, on balance, I thought the law was about right. I have not suggested that the law is in a state of perfection; indeed, I have mentioned some areas where it needs clarification.
§ Sir P. Rawlinson
I am not sure that, on balance, it is about right, in the sense that I believe a great deal of consideration should be given to the matters that have been so effectively raised by my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre) in introducing to the House a Bill in which my hon. Friend the Member for Ludlow (Mr. More) has for so long been interested.
I must confess an interest in that in some of the cases mentioned by the 1737 right hon. Gentleman the Attorney-General I was on the losing side, and during the last year or so I have represented seven different newspapers in libel actions. There is much in what my hon. Friend has said concerning the difficulties which face newspapers and individuals in the present state of the law of libel; I leave aside the other matters of contempt and official secrets. These merit anxious consideration, since it is a right which is held by the newspapers on behalf of us all. Aggravated as we may be by the political opinions of certain newspapers, nevertheless, if the law remains in its present state, we shall not be able to receive from newspapers the proper service that we should have.
There are many lawyers on the working party to which my hon. Friend referred. It is a matter in which the law is much concerned and, whatever group or party is prepared to study these matters, it ought to be able to help towards clarifying the law of libel and bringing a great sense of openness and freedom into our public discussion.
No one, and certainly no one who works for a newspaper, should underestimate the power given to journalism and to newspapers. It is understood that the errors made by a newspaper must be met by recompensing a person who may have been gravely injured. But it is not right that the newspaper should be penalised, though it is right that that person should be recompensed, while the duties of the newspaper to comment and to reveal must not be hamstrung.
I would refer to what was said by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) concerning the right of trial by jury. The right of trial by jury was an ancient right and an ancient safeguard. It was introduced as just such a safeguard as our Parliamentary processes which we continue in this House. It is unthinkable for anyone to suggest the abolition of the jury in the criminal trial, although I recollect the then United States Attorney-General, Mr. Robert Kennedy, once saying to me how few jury trials there were in the United Kingdom. That is because there is so much trial by magistracy, three lay people constituting a mini-jury.
1738 As my hon. and learned Friend has said, the civil jury is rapidly disappearing. It has gone for cases of personal injuries, but it remains in cases of false imprisonment and where the reputation of the citizen is involved. It is important that that should be retained. The association of as many people as possible in the administration of justice in criminal trials or matters of defamation is important, otherwise there is isolation of the judiciary away from the citizens to whom they are administering justice. It is always of great assistance for the judiciary to have a jury sitting there to decide the facts. But it is not possible to have trial by jury if the law of libel is so complex that it is beyond the wit of man to be able properly to direct the jury, and this is the position which we now have reached. I hope that the Law Commission paid attention to what was said by Lord Diplock in the Court of Appeal in the judgment of Slim v. the Daily Telegraph, when he referred to the present state of the law of libel. This is something which causes me, and I am sure other hon. Members, considerable concern. Difficult as it may be, I do not believe that issues concerning the reputation of persons should be removed from the jury, save in exceptional cases. The trial in Slim v. the Daily Telegraph was by judge alone, and the Court of Appeal reversed the decision. I still think that the jury has a proper rôle to play. I will return a little later to Clause 8 and its rôle in the award of damages.
As to the Bill, very trenchant and apt comments have been made by (he Attorney-General, the force of which I am sure was appreciated by my hon. Friend the Member for Hall Green, but it may be that many of these matters can be resolved elsewhere.
I agree with the Attorney-General on the first Clauses of the Bill, dealing with contempt, that it is not wholly right that the power to institute proceedings for contempt should lie only with the Attorney-General. Let nobody ignore the hardship to individuals that can be created. A most distinguished hon. Member of the House, for whom I appeared, was taken before the Court of Appeal by a person who made a complaint that he had, by writing in a publication, been guilty of contempt of 1739 court, a matter which was dismissed by the Court.
Nevertheless, that colleague was brought before that Court as the right is left to the individual to bring such actions. Clause 1 of the Bill contains matters which should be looked at with great care if the Bill goes to Committee, although I accept that the governing words lie at the end of Clause 2, "by reason only".
§ Clause 3 deals with official secrets, and I heard with interest the recent comment of a journalist that it was interesting to see how little was hidden at the time now that we can see now what was really happening in the 1930s. He pointed out that there are the two extremes, the first being the closed society of the Soviet Union, where nothing is known except that which certain people want to be known, and the other being the open society of the United States, where there can be complete comment, defamation of persons and what we would call contempt of court prejudicing the fair trial of people. In his view, we ought to seek to achieve some sort of balance between the two.
§ I was glad to hear the Attorney-General refer to the Fulton Committee and say that some Minister will be saying something about it shortly. I hope that that is so, because these are considerations which should not be ignored. Petty restrictions and limitations cause anxiety when, by sensible consideration, they could be eliminated easily. As a result, therefore, I have no particular comment or criticism to make about Clause 3, except to say that I see some of the practical difficulties.
§ I come, then, to the Clauses which deal with the law of libel. A number of hon. Members have spoken about the respective rôles of the judge and the jury. We have come a long way from Fox's Act, which was the great liberalising Measure introduced to take away important decisions from judges and give them to juries. Now, we have the suggestion that they should be taken away from juries and given to the judges. I suggest that we should only do it after the fullest consideration of the possible dangers.
§ No doubt harking back to battles long ago, it appears that Clause 4 is the 1740 only one out of the whole Bill which attracts the Attorney-General. I am sure that my hon. Friend the Member for Hall Green will accept that some of his points can be met by notices in mitigation of damages, and hon. Members will remember in that connection that the Attorney-General used the case of the jockeys as an example. The Clause may not be wholly satisfactory in dealing with the matter, but there is no doubt that it is an area which needs clarification and one which can be more better provided by Statute.
§ Clause 5 has advantages, but I agree with what my hon. and learned Friend the Member for Darwen pointed out. Serious damage may be inflicted if these provisions are introduced in their present form. He is right in saying that the Schedule to the 1952 Act gives a wide right to the Press to comment on proceedings in courts and legislatures elsewhere.
§ Clause 6 refers to the judge's ruling. A judge has no function to rule that the words complained of are capable of any particular meaning. At present, he has the function only to rule that they are not. If we say that there should be no trial by jury, then, so be it. If there is to be a trial by jury, with a jury, then why not leave the jury so to rule? Again, difficulties arise now because of the complexity of the law. That is a matter for which we in this House cannot take blame, because it is judge-made law. It is not statute law which has been made in a confused way in the House. The law has been confused by the judges themselves. That is why this House should seek an opportunity at some stage in the future, if not in this Bill, to take into its own hands some clarification of the law of defamation.
§ Clauses 7 and 8 continue the elimination of the jury's rôle. Again, my comment applies that, if we do that, we may as well eliminate trial by jury. It is now about 17 years since a Financial Secretary to the Treasury introduced a Bill which became the 1952 Defamation Act. If we are united in this House in this matter, it is that this is a branch of the law which needs anxious and urgent interpretation.
§ My apprehension is about the way in which the House deals with legislation at 1741 the present time. Our processes are not sufficiently thorough. We try to legislate too rapidly. We introduce Bills which receive Second Readings, go through Committees and pass on to the Statute Book without that study in depth which they ought to have before becoming the law of the land. It is possible for hon. Members to make up their minds on the basis of the most superficial examination of some of our greatest and most important problems.
§ In introducing his Bill, my hon. Friend has pointed to a branch of the law which undoubtedly needs a great deal of work to be done to it. Therefore, while I join with the Attorney-General in many of his detailed criticisms, I believe that my hon. Friend has done a valuable service towards achieving the aim which he has in mind.
§ 12.36 p.m.
§ Sir Dingle Foot (Ipswich)
I want, first, to join in the congratulations which have been offered to the hon. Member for Birmingham, Hall Green (Mr. Eyre). I agree with the right hon. and learned Member for Epsom (Sir P. Rawlinson) that the Bill raises considerable issues, that the law of libel is in need of review, and that we must give, at some stage, the most careful consideration to all the provisions contained in this Measure.
However, we are debating the Second Reading and, though there are a number of details which will have to be considered, if and when it reaches Committee, what we have to decide today is whether we are in general sympathy with its main purposes. It is based on the recommendations of the Justice Working Party of 1965. That was a very strong committee and, in all except one respect, its recommendations are embodied in the Bill.
Clause 1 raises two completely separate issues. The first is whether proceedings for contempt should be confined to publications likely to influence the fair conduct of a trial or judicial proceeding. If we were to pass the Clause in its present form, there could be no proceedings for contempt involving tribunals. Here, I respectfully agree with my right hon. and learned Friend the Attorney-General. It is a matter which is being considered by the Salmon Committee, and 1742 it may be that we should defer the matter until that Committee has reported.
The other, quite separate, issue is whether proceedings for contempt of court should be instituted only with the consent of the Attorney-General. It is one of the main features of our law that anyone can set the law in motion. Only in a small and exceptional class of cases do we say that proceedings may not be instituted except with the consent of the Director of Public Prosecutions or the Attorney-General. Here, we are dealing with a very exceptional branch of the law. We make it necessary to have the Attorney-General's fiat where there is a danger of vexatious or trivial proceedings. It seems to me that contempt proceedings fall very much into that category. I appreciate the force of what was said by my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman). There may be an emergency situation where there is contempt in the face of the court. Of course, the court should have power to deal with that. But we are here concerned, not with the action that the court may take in such a situation, but with proceedings for contempt of court. I feel that the balance of argument is in favour of the proposals contained in Clause 1,
Clause 2 follows the recommendation of the Justice Committee. It seems to me that the case against the gagging writ, a device with which the courts are very familiar, is made out, and we really ought to put an end to it.
I come now to a matter which seems to be of much greater importance, namely, the provisions of Clause 3. I think that we may need to consider the precise wording of this Clause when we reach Committee stage. I found myself fully in agreement with the hon. Member for Hall Green when he said that the Official Secrets Acts were out of date and badly needed to be reviewed. That situation has obtained over a good many years. The Official Secrets Acts go very wide indeed. They are not confined merely to matters affecting national security. The prohibition contained in the Acts on disclosure of information is not even confined to matters which are secret or confidential. It goes wider than that.
I will quote from Section 2 of the 1911 Act. I have left out a good deal 1743 of it—the part which refers to codes, secret documents, and so forth—but the material words for my purpose are:If any person having in his possession or control any … information"—
I emphasise the words "any information"—… which has been made or obtained … or which he has obtained owing to his position as a person who holds or has held office under His Majesty … communicates the … information to any person, other than a person to whom he is authorised to communicate it, or a person to whom it is in the interest of the State his duty to communicate it … that person shall be guilty of a misdemeanour,and he is liable to imprisonment up to two years.
Those words go as wide as it is possible to go. If anyone makes any unauthorised disclosure at all, then, technically at any rate, he commits an offence. If a civil servant, or even a Minister, informs someone outside the Department of the colour of his wallpaper, that would constitute an offence under this Section.
§ It sometimes happens that these Acts are invoked for purposes which were never envisaged at the time that they were enacted by Parliament. There was a very well known case in 1938 about a journalist, Mr. Lewis, who was employed by a provincial newspaper. The newspaper published a document, without authorisation by the local police, which had not been released by the police to the Press. It referred simply to certain allegations of fraud against a particular individual.
§ National security was not involved in the slightest degree. Yet the police invoked the wholly unique powers of interrogation under the Official Secrets Acts to compel answers. Those powers do not exist anywhere else in similar form in our legislation. The police invoked these powers, which had been introduced for the protection of national security, simply to interrogate, and later to prosecute to conviction, a journalist whom they said had improperly obtained information from someone in the local police force.
§ That is merely an illustration, but it shows how the powers contained in these Acts can be used for purposes which Parliament certainly never envisaged either in 1911 or 1920. Therefore, I 1744 hope that we shall look very carefully at the provisions of Clause 3.
I do not think that there is any controversy about Clause 4. We are all agreed—and I understood my right hon. and learned Friend to agree—that this would represent an improvement in the law.
§ Now I come to Clause 5. The present position seems to be entirely anomalous. If a newspaper reports court proceedings in this country, in a Commonwealth country or proceedings before an international tribunal—for example, the Court of Human Rights at Strasbourg—there is the protection of qualified privilege. But if the proceedings in court take place outside the Commonwealth and not before an international tribunal, the privilege does not exist. I assume, for the purpose of my argument, that we want to keep the protection which was given by the 1952 Act.
However, we would all agree that many proceedings in courts outside the Commonwealth which are not international tribunals, are of great public interest. The prosecution of writers in the Soviet Union and the proceedings which have taken place in Baghdad within the last few days are obviously matters of very great interest in this country and throughout the world.
My right hon. and learned Friend referred to a particular case in which a distinction was drawn between matters plainly of public interest and matters which merely gratify private curiosity. But, with respect, that may be a very difficult distinction to draw. It is extremely difficult to say where matters of public interest end and where we enter the realm of private curiosity and gossip. I do not think that we should place that task upon the courts. If we propose to keep the 1952 Act, as we do, I cannot see any compelling or good reason why we should not extend the protection in the way proposed in the Bill. On those grounds, too, I support the proposal contained in Clause 5.
§ Coming to Clauses 7 and 8, I agree with, I think, every hon. Member who has spoken, except the mover of the Second Reading. All who spend their lives in the courts, as distinct from academic critics of our jurisprudence, are in favour of the jury system. In the 1745 main it works extremely well. I believe that it is working now as well as it ever did. I share to the full the regret expressed by my hon. and learned Friend the Member for Stoke Newington, and others, that we have gone so far in dispensing with juries in civil proceedings. The issue of malice or no malice is clearly a question of fact for the jury to determine.
On the question of damages, I think that the Press complains too much about the sums awarded by juries. In cases where very large sums are awarded by juries on looking into the facts one often finds that the award is richly deserved. I will not go into details, but we can all think of particular cases.
§ When dealing not with monetary loss, which can generally be quantified and made the subject of special damage, but with general damages, there are two elements to be considered. First, there is the injury to the plaintiff's feelings—that may be very important indeed—and, secondly, there is the damage to his reputation. No one can precisely assess these matters. It is necessary in every case to arrive at an arbitrary figure, and that is something which the juryman is just as able to do as the judge. When dealing with issues of this kind it is clear—almost every practising lawyer would agree with me—that 12 heads are better than one. On those Clauses, therefore, I shall join with other hon. and learned Members in my opposition.
§ I now come back to the Bill in general. As politicians we are fully conscious of the imperfections of the Press. We know that it is not invariably accurate. We know that it sometimes misrepresents us and is sometimes strangely reluctant to correct its misrepresentations until it is threatened with a writ for libel. None the less, we would all agree with the mover when he spoke of the functions of the Press and the extreme importance of what it does in exposing the public and private scandals and the sort of frauds to which he referred.
We must also agree that in carrying out those functions it should not be too much hampered. We are concerned with the rights of the citizen, but the freedom of publication is part of those rights. I therefore: conclude with some lines
from Rudyard Kipling, written about 90 years ago:
The Pope may launch his interdict
The Union its decree
But the bubble is blown and the bubble is pricked
By Us and such as We.
Remember the battle and stand aside
While Thrones and Powers confess
That King over all the children of Pride
Is the Press—the Press—the Press.
§ 1.2 p.m.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
I am not able to follow the right hon. and learned Gentleman in his concluding poetry, but I was very interested to hear him say that we in this House are often unhappy with what the Press has to say about us. I suspect that we are far more often unhappy about what the Press does not say about us.
The debate has been a happy one in one respect; there has not been any of the formal sidling up to the Press and proclaiming that it is the best in the world. So frequently debates that in any way touch upon Fleet Street are spoilt by the rather fauning attitude of the House to journalists. I do not think that the British Press is by any means the best in the world. Our provincial newspapers are good. Our national Press—at least among the English-speaking nations—is the most competitive, the most colourful, the most enterprising, and perhaps the most interesting, but it is by no means the most responsible or accurate. It could be and ought to be better.
There are many ways in which it could become better. One of them would be by agreeing to this Bill, at least in respect of its main principles. In that spirit I congratulate my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre) on bringing it before the House. The Bill, or something like it, should have been passed long ago.
It is extraordinary that during a decade where, for better or for worse—and some would say for worse—there has been a pell-mell liberalisation of our laws and customs concerning the theatre, the cinema, the rules of morals, and sexual licence, the British Press should still be constricted by such ancient rubbish as the present rules of contempt, the Official Secrets Act, which was passed in 1911, when, in my view, it was already out of date, and the Defamation Act of 1952.
1747 My experience of journalism has been almost entirely outside this country—mainly in America. I know very little of Fleet Street except that it is a jungle that contains some of the fiercest and kindest and some of the slyest and most sentimental newspaper animals anywhere in the world. But I have perhaps had the advantage of working under conditions in the United States similar to those which would obtain in this country if the Bill were to become law.
I do not wish to import to this country all the journalistic practices and licences of the United States. I have no doubt that the danger of trial by headline is one that we should avoid. But the Bill does avoid any such suggestion and, therefore, although I find myself in a minority, I welcome it wholeheartedly and hope that it will go to Committee.
I should have preferred the Attorney-General to hear my remarks before he spoke. In particular, I wish to speak of a personal case—the case concerning Dr. Bodkin Adams, which occurred some years ago. It may very well be that I am the only Member of the House who has found himself cited for contempt in the High Court. At that time, I was prosecuted by the Attorney-General of a previous Administration, judged by the Lord Chief Justice and two other High Court judges, and, cited I believe, in the writ by no less than Her Majesty the Queen. Against that background I must tell the Attorney-General that modest matters such as driving offences seem to be very small beer indeed.
The circumstances, which bear very much on the law of contempt, were that the journal for which I worked had printed matter pertaining to the pre-trial examination of Dr. Adams and when it went to Press, the trial jury was not empanelled. During the three days that the paper was printing, the jury was empanelled and, consequently, when the matter in question came before the public, it was in contempt. That was not disputed at the time.
It was in contempt of the court because it might have been prejudicial to a fair trial. Then and there the trial judge decided that it was contemptuous and the newspaper in question was suppressed throughout London; indeed, when I arrived in my office the following day I was met by two extremely 1748 courteous superintendents from Scotland Yard who took me to their office and told me that I had been charged with contempt.
In the event, when the trial followed—and I had the best advice available from one who is now one of Her Majesty's judges, and the publishers had the benefit of the advice of the present Lord Chancellor of England—it proved to be of considerable interest, and turned crucially on the issue of contempt. No one could dispute that there had been contempt, for the judge had said that it was, and that was the end of it.
§ The question was one of deciding where the responsibility lay. I was able to produce a telegram which I had sent to my editors in New York with the curious Americanism, "Suggest skip." I had suggested that this story should be "skipped", because I had perhaps some foreknowledge of the curious workings of the English law. However, the editors in New York, not having that advantage, went ahead and printed the story anyway.
§ When the matter was finally determined by the Lord Chief Justice and his two assistant judges—to use a lay description—it was decided that the distributors, namely, Messrs. W. H. Smith & Son, should be severely punished for uttering the contempt in this country. I was let off without a stain on my character because I had suggested that the story be "skipped".
§ I have gone into some detail about this matter, because, at the time, it was said, I think, by the then Lord Chief Justice, and, generally agreed in the profession, that the law of contempt as it stood was unsatisfactory and needed to be amended. And it is because Clause 1 would enable this matter to be thoroughly ventilated in Committee and perhaps modernised and amended, as it needs to be, that I am very glad to support my hon. Friend in that Clause.
§ In Clause 3—Official Secrets—we are treading on the most delicate ground. The present law causes civil servants to hide from the Press vast amounts of extremely interesting information, particularly of a technical kind, which is frequently published widely in other countries, notably in the United States, but which, for curious reasons, cannot be 1749 published here. I recognise that restriction on the printing of matter likely to be prejudicial to the security of this country is essential and that the discretion in the end must lie with Ministers of the Crown. I do not agree with my hon. Friend that it can ever become the province of a court.
§ But I fear that the present law leads to a situation in which, far too often, information of great public interest which could and should be published is suppressed because no one in the Civil Service is willing to take the responsibility of derestricting it. If the Bill went into Committee, it might cause Ministers to look again at the practice of restricting information and to liberalise the existing practice. It would allow the Press freer access to a whole area of public interest which, at the moment, is suppressed and should not be suppressed, allegedly in the national interest.
§ The present position in regard to Official Secrets seems to imply that British journalists as a whole are itching to publish matter prejudicial to the public interest. Nothing could be further from the truth. Of course, there are irresponsible, foolish and unpatriotic men in journalism as in any other walk of life, but my experience, for what it is worth, is that, as a group, there are no more loyal and patriotic people than the journalists of this country.
§ I speak, again, from personal experience. As an editor, I have known cases in which journalists suppressed sensitive matter brought to them not because they feared the law, but because they genuinely believed that it could be prejudicial to the public interest. Indeed, I have done so myself. Equally, I have known cases in which journalists, given information which they knew to be of a delicate or secret character, rather than publish it, have gone to the appropriate security services and ensured that the national interest was protected by exposing the disloyalty of those in question. The assumption beneath the present law, that journalists as a whole are anxious to breach the national interest, is therefore, quite unfounded. But this is not to say that the law must not protect the nation against irresponsible journalists.
§ Nothing could illustrate this more clearly than the absurdity of our present D-notice sytem, which arises largely 1750 from the workings of the Official Secrets Act. This is neither the time nor, probably, the place to discuss the system in detail or to advert backwards to the recent unfortunate history of Colonel Lohan, Mr. Chapman Pincher and others. But I hope that the right hon. and learned Gentleman will take the point that, if the Bill went into Committee, it would enable us to discuss the relationship between the Official Secrets Acts, the D-notice system and the retrictions imposed unnecessarily on the Press; all this can only benefit from greater ventilation.
§ Clause 4 deals with defamation. At present, all those words which appear in an article may be taken into consideration when a case is brought against a journalist or newspaper. Yet, on the other side, all the matter printed cannot be taken into account when the journalist or newspaper defends himself. It is enough for the prosecution to show that there has been "damage" in one narrow phrase or unfortunate word which has been used. It is not sufficient, as I understand for the journalist or newspaper to say in reply that there is no particular word or sentence which does damage, if it can be shown that the article as a whole is damaging. One of the Bill's great merits is that Clause 4 would put the defence and the prosecution on the same basis.
§ Turning to Clause 5, I should like to reinforce a point which has already been made. It is bound to be the case that matters outside the Commonwealth and at present protected by the rules of qualified privilege, will become of greater interest to the British public; the technological advance of the orbiting satellite unquestionably makes this so. In his gentle and courteous speech, the Attorney-General gave citations, which I shall certainly look up, by which, he advised us, this problem already is cared for.
§ I accept his assurance, subject to the study which I shall want to give it, but I hope that he will equally accept that the present state of the law is anomalous. It applies one set of rules to Commonwealth territories and a completely different set to territories outside the putative reign of the Sovereign. Increasingly, as our links become closer with the nations of the Common Market 1751 and, indeed, with the United States, I should have thought there were grounds for change in that law and that Clause 5 points the way in that direction.
§ As for Clause 6, I am not a lawyer, and would not dream of crossing swords with the many distinguished representatives of that profession who have spoken today. But I know that, as a matter of practice, penal damages have been awarded by juries, and the consequence very often has been virtually to drive out of existence the publication in question. I heard what the right hon. and learned Gentleman said, and he has his figures. Over recent years, it is difficult to point to cases where damages have been of penal size.
§ But—I speak from memory—I recall a case in the late 1950s when a jury awarded damages of about £15,000 or £20,000 against the Spectator. It is not sufficient, as one hon. Gentleman said, that this can always be appealed, and reduced by the Appeal Court. Very often, a small publication is hanging on by its fingernails and it is not possible, when a judgment of this size is awarded against it, for it to hold on to its advertisers and continue in business, buying its paper and paying its staff, with damages of that sort hanging over it.
§ Juries can be very savage in these matters. I do not believe that to be a reason for taking the award of damages out of their hands—I accept what has been said by those with much greater experience than I in the courts—but I hope that the Attorney-General will recognise that there is a point here and that he will use such influence as he has to indicate to judges, in so far as they can and it is proper for them to do so, that they should at least try to ensure that, when juries come to the point of awarding damages, they are made aware of the very flimsy and precarious nature of the finances of many of our smaller publications.
So I welcome the Bill. I welcome it in the words of its Short Title, as a Bill
to give greater freedom of publication …
§ I do not believe that it is true to say that greater freedom for the Press would lead to greater irresponsibility. I believe, as so many have said in the past, that the people can be trusted and that the Press 1752 can be trusted, too—certainly to a much greater extent than our law at present provides.
§ I hope that when the Bill goes upstairs to Committee, we shall be able to pursue further many of these important points, that some of its difficulties will be removed and that the Press, as my hon. Friend the Member for Hall Green put it in his admirable speech, will be given that greater degree of freedom to which it is entitled in an open society.
§ 1.21 p.m.
§ Mr. Michael Foot (Ebbw Vale)
I wish to speak briefly. Indeed, I wish to do little more than declare my interest. I am very glad to follow the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths), particularly because I had an association with the Dr. Bodkin Adams case which I remember well indeed. I quote my own association with that case in order to prove my objectivity, not that I think that would be necessary.
§ Mr. Foot
I am glad to have the support of my right hon. and learned Friend the Attorney-General on that point, although later I may quarrel with him on other matters.
I remember the case very well. In my opinion, many of the newspapers behave disgracefully over the Dr. Adams case. They raised the question whether it was right to reform the law of contempt. It was not entirely the fault of the newspapers, because it was partly the activities of the police, including Scotland Yard, which had prompted the newspapers to engage in such a campaign of vilification against Dr. Adams.
I remember the case very well because on the day following the preliminary hearing where many of the alleged facts against Dr. Adams had been revealed, and where the police were encouraging the newspapers to publish the most savage attacks upon him, I met a most distinguished—indeed, probably the most distinguished—crime reporter in Fleet Street, Mr. Percy Hoskins, of the Daily Express, who had attended the preliminary hearing and had seen what the newspapers were publishing about Dr. Adams.
He said to me in the hostelry where we met and discussed these matters, 1753 "This man at this moment is being sent to the gallows on trial by newspapers. Something must be done about it." Greatly to his credit—and it was also a credit to his newspaper—he went into his office and said, "You must not print these sorts of headlines against Dr. Adams", despite all the pressure which was exerted upon him, not in his office necessarily but by the competition amongst the various newspapers.
Most of the other newspapers in London were printing the most scarifying headlines against Dr. Adams, and it took considerable persuasion by this crime reporter to dissuade the newspaper from engaging in that competition, particularly when it appeared that Scotland Yard itself was engaged in the business of intensifying or at least encouraging the attacks.
We in our newspaper, Tribune, also had great headlines. Our headlines were of a different character from those in the rest of the Press. We attacked the whole business of trial by newspaper. It was following upon that case partly that the Parker Committee was set up to examine the whole question of how preliminary hearings might give rise to exactly these sorts of dangers.
As I say, I have mentioned that to prove my objectivity. It is not the case that newspapers never commit faults in these matters. I think they have to be extremely responsible and careful in the way in which they exercise their immense power. But it is also the case that the proposals in this Bill about contempt should be carefully considered because they will tilt the balance back in the other direction, when it has already gone much too far against the newspapers in many respects. I therefore hope that this Clause will be examined very carefully. There are, of course, many cases which can be cited in the opposite direction and where the newspapers are persistently prevented from publishing material which they should publish, because of their fears of contempt of court.
§ On the question of the Official Secrets Act I agree with my right hon. and learned Friend the Member for Ipswich (Sir Dingle Foot), not for the first time in my life. I believe his views should be carefully considered, and I hope that the fact that we shall be discussing this 1754 Bill in Committee will speed the Government consideration of this question.
§ There will not be anything wrong in considering the whole operation of D-notices in order that we may clear up the confusions and misunderstandings between this House and Fleet Street on this subject. It is a great mistake for the Government to think that the relationship between Parliament and the Press can be left where it was following the D-notice dispute some time ago. In that case nobody who was concerned with it comes out with much credit. The newspapers were wrong in the first place. The Government were wrong and the Committee which was established to look into it was wrong to say that no previous faults had been committed by the newspapers.
§ The Radcliffe Report on D-notices was looked upon in Fleet Street as almost a laughable document because it did not seem to understand the facts at all, and I hardly met a single journalist who regarded that report as being a credit to the legal profession. Of course, I am not making any attacks on the integrity of the people concerned. I am attacking them on their lack of awareness of how these things operate.
§ I think also that the way in which the Government went ahead to try to get a vote from this House repudiating the report was not a clever way of dealing with the situation. But it does happen that the relationship between Fleet Street and the House of Commons is now governed to some extent by the conclusions of that whole affair. If it was an affair in which almost all the parties involved made fools of themselves, it did not leave behind satisfactory standards to govern the relationship between Parliament and the Executive on the one hand and Fleet Street on the other. Therefore, I agree that it is right that this House should examine the Official Secrets Act. I hope it will be possible in Committee to discuss and perhaps table Amendments covering, the operation of D-notices as well.
§ I now come to the question of libel. I am not going into any of the details which have been mentioned. I do agree with the right hon. and learned Gentleman that we should do nothing to upset Charles James Fox's Act. Everything 1755 that he did, in my opinion, was right and, therefore, it would be improper for us to try to change that.
§ Mr. Foot
Yes. Once he left the Tory Party he never looked back. I am not, of course, referring to his activities before the age of 21.
I think it is unwise to suggest that any power should be taken away from the juries in these trials. But on the question of damages I do not think the statement of the Attorney-General, including the quotations and the figures that he gave, deals with the situation. Incidentally, I was surprised to discover how few cases there have been. It would be dishonest of me not to admit that I was surprised. Fleet Street will be surprised, but that does not deal with the situation.
§ Sir P. Rawlinson
As the hon. Gentleman will know, many times actions are instituted and the newspapers settle and have to pay up because it is more worth their while to do that, even though they may win the case.
§ Mr. Foot
The right hon. and learned Gentleman is making my next point, more skilfully than I would have made it, and with much greater authority. Of course, many actions are settled and very often the newspapers have been extremely craven in not fighting the cases. They could have fought many cases and beaten off many of the kind of attacks which have come from the more discreditable sections of solicitors, and the others who have taken cases. They could sometimes protect themselves better, but many of the newspapers, particularly the big ones, were too frightened to fight cases.
If one adds together the cases suppressed on that count, and if one goes back a bit further in history, beyond the years quoted by the Attorney-General, there will be found a great number of cases in which very severe damages were awarded against, as the hon. Member for Bury St. Edmunds has said, small newspapers. There is also the very serious state of affairs which arises for small newspapers because of the costs involved.
1756 I was engaged in a libel action, taken against myself and Tribune, for over a period of three to four years, a libel action taken by a great newspaper proprietor. Eventually, in order to get the right to plead fair comment, we had to go to the House of Lords. It took us six days in the House of Lords to establish our right to plead fair comment. By that time, I do not know what the costs on our side were, because some of those who were working for us did it for nothing, but on the other side the total costs must have amounted to at least £10,000.
If we had been defeated in the House of Lords, I would certainly have been bankrupted—not the slightest doubt. Fortunately, I had the services of the present Lord Chancellor, and I owe my survival to his brilliant advocacy, coupled, of course, with the justice of our case. He managed to persuade the House of Lords that our case was perfectly correct, that we were entitled to plead fair comment, and at that point the proceedings were stopped. If we had been defeated in such a case, there is not the slightest doubt that the newspaper would have been put out of existence.
This is one of the main factors in the whole situation touched upon by the hon. Member for Bury St. Edmunds. I should like to underline it very strongly. The big newspapers do not have to worry so much about libel, and they are not so terribly afraid. Of course, they do not like to break the law and, of course, they should not wish to break it. But editors of the big newspapers do not have to stay awake at night worrying about it; they have lawyers to do that. They can hire lawyers to go through everything printed in their pages and to examine it with the greatest care.
The editor still has, very often, to make the decision. I am not depreciating the significance of the decisions editors have to take, very often at great speed, whether on big or small newspapers. That is sometimes what this House does not appreciate when they see what is printed in newspapers. They do not appreciate the speed at which decisions have to be made about contempt of court, libel and all these matters. It is something which has to be decided, within a few minutes very often; not an easy thing to do. An editor, even though he has all the advice of the lawyers, eventually has to take the 1757 responsibility whether to print. If he hesitates, his competitors will get the better of him.
These are the problems they face. But the editors of the big newspapers at least have at their elbow the advice of eminent lawyers, whose whole life is given to being versed in that aspect of the law. The small newspapers do not have these, and they have to take the risks. They have to decide it on their own experience, on quite different grounds. They may not always have to decide as speedily as national papers or, if they are weekly papers, as speedily as the evening papers, but they have to take their life in their hands. This is happening all the time. When people talk about the protection of the Press, it is not a question primarily of protecting the big newspaper proprietors, who have plenty of money and assistance; it is a question, primarily, of protecting small newspapers which can be put out of existence by a single libel action—even an action in which they are not defeated. It might be a libel action in which they can go down on costs or an action in which the costs mount up so steeply that they fear that they cannot proceed with the case.
It is no good saying, "Ah, well, if you find damages are too heavy you can take it up a bit later and see how you get on in another court." The paper will be out of existence before then. I remember very well in the libel action that hung over our heads, for three of four years, where we should have been bankrupted, we had a decision of the Court of Appeal on our side and the printer printing our paper at that time, would not print the verdict of the Court of Appeal. It would not print the statement made by Lord Birkett, who was then Chairman of the Court of Appeal because of the offence that it thought it would give to the big newspaper proprietors with whom it had associations.
We therefore had to go to about 20 other printers to get one who would take the risk. This was particularly difficult, as printers would ask us what sort of insurance we had. We would have to tell them that we could not get any insurance of any value to us, partly because it was said that we were the kind of people who might be involved in libel actions. I never lost one in my life, but 1758 printers were not always persuaded by that plea as quickly as one would wish!
Take what is happening to a paper today. I do not agree with a lot of what it says, but the paper, the Black Dwarf, has had the greatest difficulty in securing a printer. It has gone through about 20 or 30 printers and has great difficulty in overcoming the fear of libel. This is very often before it has printed anything. It is the existence of the small newspapers which is at stake. It is the freedom of the small newspapers which is involved far more than that of the big newspaper proprietors, who can look out for themselves.
What we want is a far greater exchange of opinion, attack and invective—as much as one wishes—but providing people have the right to reply. I entirely agree with my right hon. and learned Friend the Member for Ipswich that one of the greatest failings of the national newspapers, their most inexcusable fault, is that so often, when they attack someone, they do not give the person the right of reply, or they mutilate the reply, or they try to print it in circumstances which they know is ineffective. I cannot understand why they do it, because in my opinion it would be very good copy for them, to print what other people have to say. That is one of the reasons why they exist.
Fortunately, in the change of the law of defamation in 1952, this was partly provided for, and the law now encourages newspapers, immediately they have any threat of a libel, or similar action against them, to look at the situation and see whether it can be remedied by printing something in the newspaper to put the matter right. This has worked very well, and it was the most satisfactory part of the reform of the law which took place in 1952. But even today the newspapers do not do this sufficiently. This is partly because of the "flunkey" nature of the Press Council, which is a body set up and paid for by the Press Lords—do not let any newspaper think that it is too independent a body, even when it has a most eminent lawyer as its Chairman. It is not a satisfactory situation when the Chairman of the Press Council should be someone selected by the Press Lords and paid for by them.
1759 It has been the experience, I am sorry to say, that most chairmen of the Press Council, in a sort of chameleon fashion, have taken on the colouring of the people for whom they operated. I do not, therefore, regard the Press Council as an institution of much importance one way or the other, and I do not believe that large sections of Fleet Street do, either.
Much more important is that journalists and editors should recognise their responsibilities as members of the National Union of Journalists and members of a reputable profession, ensuring that they secure justice for individuals in the way they produce their newspapers. As I say, they should, in my opinion, pay much greater regard to the parts of the Defamation Act, 1952, which give them a positive incitement and encouragement, immediately an individual complains that he has been unfairly treated, to see how speedily and how amply they can correct matters or give the person concerned the right to correct them in their columns. That is the way in which public controversy can be improved in this country.
However, I consider that some of the proposals in the Bill, not the ones removing powers of juries but some of the other Clauses referring to defamation, can strengthen that aspect of the law, and I welcome the Bill in that sense as well. I hope that it will not be strangled by the Attorney-General. My right hon. and learned Friend did it very gracefully, as he always does, but one can still see the marks of blood on the floor. This child will not grow much further if he follows that method of nurture. It really amounted to killing the Bill. I hope that the House will not agree with my right hon. and learned Friend but will send the Bill to Committee.
Perhaps some parts of the Bill will have to be taken out, in view of what certain other Committees are now doing, although I think that it will help to speed up those Committees. There are other parts of it which certainly should go through. It would be most regrettable if a Bill of this nature, the purpose of which is accepted by all in the House, which is designed to enhance the freedom of the Press and of the people of this country and is designed to clarify relationships 1760 between the Executive and Fleet Street and Parliament and Fleet Street, were strangled by the methods used by the Attorney-General and, I presume, the Government.
I hope that this child will prosper. I hope that we shall wean it properly in Committee and that we shall come back with it to Third Reading. No doubt, there will be considerable alterations, but it is my hope that by that stage the Attorney-General, either by himself or by one of his emissaries, will say that, after all, the Government are pleased to see the work done in the Committee—they are pleased because they wish to see not relationships on a sentimental basis between Fleet Street and Parliament, for no one wants that, but a clarification of the law and of what those relationships should be. There ought not to be a state of affairs, as there has been so often hitherto—it happened over the D-notice affair—of total misunderstanding and confusion on both sides which cannot contribute to the cause of freedom and of free debate in this country.
I wish the hon. Gentleman well with his Bill, and I hope that the Government will have second thoughts.
§ 1.43 p.m.
§ Mr. T. L. Iremonger (Ilford, North)
I am always glad to follow the hon. Member for Ebbw Vale (Mr. Michael Foot), and I am particularly glad to do so today in the debate on this Bill, because—if I may strike a personal note—I have always felt a debt of gratitude to him, and I welcome the opportunity to acknowledge it publicly.
On 31st July, 1963, from the benches opposite, under the Ten-Minute Rule, I moved for leave to introduce a Bill embodying certain points which I wish to make now to the House in the context of the present Bill. I took the matter to a Division. All hon. Members on this side then voted against me, with one exception. The hon. Member for Ebbw Vale, having heard what I had said about the Bill, did not go into the Lobby against me with his hon. Friends. I thought that that was very big of him. I have always remembered it, and have remained grateful to him.
In passing, I entirely endorse what the hon. Member for Ebbw Vale said about the desirability of newspapers which are under threat of action for 1761 defamation making prompt and full acknowledgment of the case of the person who says that he has been defamed. It would enormously sweeten the whole miserable business of actions for defamation if this were to be taken into account by the court in deciding where the rights and wrongs of a case lay.
I have never understood why newspapers are always so reluctant, if they are accused of defaming someone, to make a full and fair apology and to give the offended person a chance to speak in his own behalf. I suspect that they fear in some way that, if they do that, it will be brought up against them later as evidence that they had, indeed, defamed him. It would be extremely unfair of the other side to take advantage of that situation, and, in my view, we ought to devise legislative means of preventing their so doing.
No one has a greater interest than I in not delaying the House at this stage because, should I be fortunate enough to catch the eye of the Chair later, I shall move the Second Reading of the Redundancy Payments Act, 1965 (Amendment) Bill, which is the third Order today. But I am a sponsor of the present Bill. I should have moved its Second Reading myself had I won a high enough place in the Ballot. I have wanted to do so for many years. To be perfectly frank, if I had had top place in the Ballot, I should have taken on the Matrimonial Property Bill, now under the charge of the hon. Member for Newark (Mr. Bishop), because, devoted as I am to remedying the defects in the law of libel, I am even more devoted to remedying the defects in the law as it relates to women. However, as I say, I should have been glad myself to have taken up this Bill.
I have long been concerned with a certain kind of abuse in connection with the law of defamation which the Bill goes some way to correct. I say to the right hon. and learned Attorney-General, as the hon. Member for Ebbw Vale did, that it would be a great pity if the Bill were killed at this stage. Whatever criticism may have been made of it on detail from either side of the House, it is clear that there is need for a Bill to deal with some of the matters which have been raised.
1762 This is only the Second Reading. We are only asking the House to approve the Bill in principle. There is almost infinite scope for amendment in Committee. It may seem an intolerable burden on the Attorney-General to ask him to come and give us the benefit of his help in Standing Committee, but surely he could do that.
I do not believe that the Bill is so bad that no good can come from considering it further and improving it, even if some parts have to be dropped. I hope that, even at this rather late stage, the House will be able to prevail upon the right hon. and learned Gentleman, so that we may take the Bill to Committee and see what we can do with it. If, in the end, we do not like it, the Government can always advise the House to kill it at that stage.
§ The Attorney-General
I thought I had made clear in my speech—I certainly tried to do so—that this is a matter for the House to decide. That is the position so far as I am concerned.
§ Mr. Iremonger
Yes—but the right hon. and learned Gentleman should not say that. His absent friend on the Front Bench can say "No", and then what can we do? We cannot carry it in the Lobby. That is simply not on.
§ The Attorney-General
I am sorry. I thought that I had made clear that there is no Whip on. I should be astounded if my hon. Friend who is custodian of the Whip's sanction were to intervene as the hon. Gentleman suggests.
§ Mr. Iremonger
Voices may be raised to say "No". There is only one way to get a Second Reading for the Bill, and that is for no one to negative it by voice. We shall not be able to carry it in the Lobby. I hope that the House will, in fairness, send the Bill to Committee. If the Attorney-General wants us to acquit him of any hand in preventing it, I am only too glad to do so, and I hope that he will encourage us to take it a little further.
1763 I shall confine my remarks to Clause 8, which provides thatIn all actions for libel the amount of damages awarded shall be decided by the judge alone",not by the jury; and in that connection express my regret that the Bill does not contain a further Clause, which I wish it could contain and which I would like to have an opportunity to move in Committee, to the effect that the quantification of damages should be related to the actual damage suffered by a plaintiff calculated according to some sort of precedent and some sort of reasoned explanation.
The reason for my support and earlier initiative arises from my own practical experience of what can happen. It is not first-hand experience, but it was much more acutely experienced by me than any first-hand experience could be. I can best explain to the House the nature of the defect in the law of defamation, which the Bill provides some means of remedying, by a narrative of that actual experience of an elected member of what was the greatest local authority in the world, the London County Council, as it was then. The fact that the member in question happens to have been my wife, whose interests are dearer to me than life itself, may have sharpened my perceptions, but I am certain that it has not blurred my judgment.
The background is this. Unlike most local authorities, the London County Council used to use its own paid employees, which it called rather pretentiously "valuation officers", to determine the amount of compensation to be paid to home owners when the authority compulsorily purchased their homes. Most local authorities use the independent district valuer, who is employed not by them, but by the independent Inland Revenue.
This practice is, has been and still is mistrusted by the owners whose homes are compulsorily acquired. They see the valuation officers employed by the acquiring authority as hired assassins who are likely to ingratiate themselves with their masters—in the case in question, the London County Council—by getting cheap bargains in the market place.
I honestly believe that this is unfair on the valuation officers. I am sure that they are honourable men, even if their victims do not think so. It is most unfair 1764 that they should incur any odium because of their duty.
The President of the Royal Institution of Chartered Surveyors was himself obviously shocked at the procedure I am referring to when I drew attention publicly to the unfortunate lack of confidence in it on the part of the public, because he wrote an indignant letter to The Times denying that any valuation officers were ever employed by the local authority to value property which was compulsorily acquired by their employers. Admittedly, he made a rapid volte face in a subsequent letter, presumably when the Local Authority Valuation Officers' Association had kicked his shins; but his first reaction, when he genuinely did not know that this sort of thing happened, was to say that such a thing could not happen, because it would not be in accordance with professional etiquette.
Anyway, the point is that the practice is one in which justice is not seen to be done, because the local authority valuation officer seems to be judge in his own cause. The practice causes misgivings in the minds of victims, and it is bad for public confidence.
The councillor in question wrote an article in a newspaper pointing out that these misgivings existed, expressing confidence in the integrity of the valuation officers, and regretting the unfair and invidious position in which the objectionable practice put them.
The valuation officers' "trade union", the secretary of which happened to be a political opponent of the councillor in question and was active in national party politics, sued the councillor and the newspaper for libel in the name of 134 members of the valuation department, demanding £1,000 damages and their costs and a grovelling and totally false confession of guilt, namely, that the article had attacked the valuation officers instead of merely attacking the system under which they operated.
The article had, in fact, been carefully vetted at the author's express written injunction by the legal department of the newspaper, with the express injunction that it should be such that no possible aspersion on the valuation officers should seem to be made.
The article having been vetted in the way that it was, and the demand for 1765 damages and an apology having been made, counsel for the newspaper, who is now on the Bench, gave this advice, in effect, "Juries are hostile to newspapers. They are arbitrary and capricious". Further, contrary to what was said by one of the Front Bench speakers about what has happened in the last four years, namely, that the highest sum awarded against newspapers had been only £2,625, he said this, in effect, "Look at so-and-so, hundreds of thousands of pounds. Look at so-and-so, again, hundreds of thousands of pounds, for seemingly totally innocuous and inadvertent newspaper libels. Here are 134 valuation officers! At £1,000 each! To say nothing of their costs! Would it not be better to settle?".
The newspaper capitulated. It may have been, in the words of the hon. Member for Ebbw Vale, craven. The hon. Gentleman went on to point out, in mitigation, that a newspaper in such a situation, even though ours was a substantial newspaper, is liable if not to be ruined at least to be put very severely "in the red". The newspaper having capitulated, the author of the article—the councillor in question—was hopelessly compromised. The result of this sense of the arbitrariness and capriciousness of juries, as advised by leading counsel who is now on the Bench, was that the newspaper was silenced on a matter of great public importance and the councillor was compelled to make a grovelling statement of guilt in open court, which was a travesty of the truth and a disgrace to the mind and brain that conceived it.
I think that this was a grievous wrong. I always have. And this actually happened. I repeat that it did not happen to me, but it hurt me more than if it had; so I am not likely to forget it or to get the details wrong. I am convinced that it was a malicious political conspiracy, but that is only a secondary consideration. The fact is that this great wrong was done, and it was done because of the operation of the law whereby juries decide the amount of damages and the damages are not quantitatively related realistically to any damage that can be shown by any rational system to have been suffered. It cannot be good and it cannot be light that this type of situation can arise.
1766 So for that reason, as well as for other reasons which I will not detain the House to enlarge upon now, I support the Bill and respectfully urge hon. Members that we should give it a Second Reading and at least let it go to Committee and see how we can, if necessary, improve it there.
§ 1.58 p.m.
§ Mr. Arthur Davidson (Accrington)
I want to add to the shower of compliments which have been, rightly, paid to the hon. Member for Birmingham, Hall Green (Mr. Eyre). I am grateful to him for his flattering references to the help he said that I gave him during his discussions on the Bill. In view of the criticisms that have been levelled from very high sources at some of the Clauses in the Bill, I hope that the hon. Gentleman will not now wish that he had not taken that advice; nor should I like my right hon. and learned Friend the Attorney-General to think that the Clauses to which he took particular exception necessarily emanated from me.
I think that all of us are agreed that, as much as we value a free Press and free, outspoken and fair comment, we equally value the right of an individual to have his reputation protected, and also the even more important right of an individual to have a fair trial according to set rules and procedure, properly conducted before a judge or jury.
None of us would like to see the situation which exists, I understand, in the United States and other countries where a person is tried, virtually, not by a court but by headlines and comment in a newspaper or by radio and television—where a person who is charged has his previous convictions, his police statements and every damaging incident in which he ever took part revealed to the public and to a jury before he has had a chance of appearing in court. None of us wishes to see that situation here, and I am happy to say that the somewhat moderate measures in the Bill go nowhere near to bringing that situation about.
From my experience of working in newspapers on the day-to-day practical, legal side, I can say that I have seldom come across an editor of any national newspaper who has set out deliberately to flout the law or to put in jeopardy someone's reputation or his fair trial. 1767 All editors are concerned to keep within the rules. The phrase, "Publish and be damned", although it is a cliché, has a ring about it, and some members of the public think that it is phrase foremost in the mind of every editor and subeditor. In fact, the cautious dulcet words from lawyers such as myself, suggesting that it is legally dangerous to publish, are, in the editor's mind, more pertinent.
I deal, first, with the most important legal problem facing newspapers, that causing the greatest immediate concern—the vagueness and uncertainty concerning the law of contempt. The uncertainty arises not from what contempt is but from when contempt should begin. No editor in his right senses would dream of printing a photograph or the previous convictions of an accused person once that person had been arrested or once proceedings had started. The difficulty arises from knowing exactly when proceedings are imminent, from knowing the exact moment at which contempt should technically be said to begin. It is easy to say that most people know what "when proceedings are imminent" means, but the danger of the words used by Lord Justice Salmon, in the Savundra case, to which the hon. Member for Hall Green made reference, was that they seemed to extend the period of imminence beyond that which most newspapers had believed to exist.
In my view, it is not possible to frame a definition of contempt which will exactly determine the time at which contempt should begin. We cannot say that it should begin 24 hours before arrest or that it should begin a week or a month before arrest. I have tried to formulate a suitable definition which would give a correct balance between protecting a person's right to a free trial and protecting the duty of the newspaper to expose fraud, scandal or crime, but I find it difficult to draw up a precise definition. Indeed, when considering best interests of newspapers, I am not sure that too precise a definition would not be counter-productive from a newspaper's point of view. I am not sure that too tight a definition would not necessarily inhibit a newspaper from publishing something which might previously have felt able it to publish.
What newspapers fear—and they have a right to fear it in view of the vagueness 1768 of the word "imminent"—is that the meaning of "imminent" has been stretched too far back in time. When newspapers are exposing the scandals or crimes to which the hon. Member referred, they are rightly exposing them because they must inevitably feel that at some stage proceedings should be taken. Indeed, they want proceedings to be taken. They are alerting the public to the fact that a scandal is taking place, for example that a finance company is advertising for funds at a time when the newspaper's inquiries reveal that the company is about to go bankrupt and that those investing money with it will be left high and dry.
I had an example of a constituent who invested his life savings of £9,000 in a finance company which was advertising in the newspapers inviting people to place their savings with the company. He invested his life savings with the secretary of the company on a Thursday, and a week later the company collapsed. Obviously the company knew quite well on that Thursday that it was in a very parlous state, and should not have accepted the money. Of course, my constituent says, "If only I had known …"
It is this sort of service which, in my view, a newspaper should be encouraged to perform and should not be hindered in performing. With the complicated insurance set-up and the complicated City set-up, it is not possible for the Board of Trade or the police to investigate all companies which at some stage seem to be in an unsound financial state, but it is possible for the newspapers to do it, and they do it very well. I hope that when my right hon. and learned Friend the Attorney-General and judges are considering the law of contempt and its application to newspapers, they will bear in mind the fact that such inquiries by newspapers are an increasing trend. I hope that they will understand that it is part and parcel of newspapers and that people will inevitably say, almost as a matter of course, "I will take it up with The People, Sunday Express, or the Daily Mail."
While I agree that Clause 1 contains many imperfections and falls far short of a perfect definition of contempt, there is sufficient in it for us to take it to 1769 Committee and, in the light of the practical need of the newspapers, try to work out a definition which will give the right protection and draw the right balance. I do not know whether the hon. Member for Hall Green, shares my view, but I feel that Clause 1 forms the basis of discussion in order that in Committee hon. Members may draft a definition which is more sensible than the present definition.
I need not elaborate the suggestion that proceedings should be instituted only with the consent of the Attorney-General. With his usual compelling and gentle tones, my right hon. and learned Friend put forward his objections, showing why he feels that that would not be the best course, but it is a point which could be hammered out in Committee, and I hope that this Clause, too, will be allowed to go to the Committee.
All I need say at this stage about Clause 2, which is entitled "Repetition of defamatory matter", is that when a fraud is continuing and when newspapers know that it is continuing, it seems prejudicial not only to newspapers but, even more to the public that the Press should, for fear of contempt proceedings being brought, be prevented from referring to the matter. This Clause, therefore, goes a great deal of the way towards assisting both the public and the newspapers in this respect.
A great deal has been said about Clause 3 and the subject of official secrets. On previous occasions I have spoken about the fearsome Act which was drawn up at a time when there was spy and war hysteria. It has been amended only slightly since. That Measure, which is now about 50 years old, is completely unsuited to an age when words like "participation" and "open society" are in regular use.
The very nature of official secrets makes it a subject which should ideally be dealt with by the Government and not by a Private Member's Bill. I hope that the hon. Member for Hall Green will withdraw Clause 3 on the assurance that the Government are looking into the whole aspect of official secrets, which I believe the are. Some time ago I asked the Prime Minister a Question about this and he indicated that the matter was being examined. His words at the Sunday 1770 Express dinner last week suggested that the issue is very much in the forefront of the Government mind, to use an expression of modern official jargon.
It is absurd that minor clerks and minor civil servants should be prevented from passing on information of the most trivial kind and that newspapers should be prevented from using such information when it has no relationship to national security—all this as the result of an Act drawn up in Draconian terms 50 years ago.
I need not elaborate on Clause 4, which deals with the question of libel. I would not wish to gild the lily, and since the Attorney-General praised this provision and is obviously in favour of it, I would not wish to say anything which might even remotely result in his changing his mind.
I must, however, comment on Clause 5, which is entitled "Qualified privilege in newspapers". Objection has been raised to extending qualified privilege in the way indicated in the Clause. It has been said that if we did this an individual who was defamed or spoken of badly in a totalitarian régime would be afforded no protection. Is it not a fact that within the Commonwealth or within Her Majesty's Dominions there are many totalitarian régimes and that what is said in them is often reported and privileged?
If allegations are made about a person, then, in those circumstances—coming from the sort of source which we are considering in this Clause—I should not have thought that anybody in this country would take them seriously. Spy scandals are not national but international affairs. It is important that we should have a law giving newspapers the right to report proceedings in these circumstances.
§ Clause 6 is concerned with procedural matters which we can discuss in Committee. I do not feel sufficiently qualified to comment on them at this stage.
§ Clause 7 has come in for considerable criticism from many quarters, especially from those with legal knowledge. It seems that whether malice is a question of law or fact—legal opinion says that it is a question of fact, and I do not doubt that; it is certainly an extremely technical matter which members of a jury are not necessarily best able to 1771 judge. I believe that a judge, with his legal training, is in the best position to adjudicate on this complicated issue. This is another matter which we can discuss at length in Committee.
Much criticism has been levelled at Clause 8, which suggests that
In all actions for libel the amount of damages awarded shall be decided by the judge alone.
§ I am not astonished that the Attorney-General and others have not found this entirely acceptable. Contrary to what has been said, I believe that juries are, perhaps understandably biased against newspapers. While most of us praise the Press and want a free Press which disseminates news firmly and fiercely, we intensely dislike anything which appears in the newspapers about us if it is in any way unpleasant.
§ We all, particularly politicians, like appearing in the newspapers when they are saying flattering things about us. The man in the street feels exactly the same way. Why should members of a jury feel any different from the man in the street when each jury is made up of men in the street?
§ Contrary to what has been said, I do not feel that members of a jury are the best people to judge the complicated subject of the amount of damages, particularly against large newspapers, when they probably feel, "They are wealthy organisations which can afford to pay." I emphasise that that is not an unnatural attitude for them to take. However, when considering the important issue of damages it is not the right attitude, and I trust that the Clause will be discussed carefully in Committee.
§ I take the advice of the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths) and I will not indulge in one of those fawning and sycophantic speeches about how magnificent our Press is. On balance, it does a good job under difficult circumstances. It does an important job in protecting the public against frauds and scandals. As far as possible, the law should help it to perform that task. I agree that it is difficult to draw an exact balance between fair and free comment and the right of a free trial. Both are equally important, and both should be equally valued.1772
§ The Bill ventilates a matter which is seldom discussed in the House and of which few people are aware—namely, the legal restrictions under which newspapers work. While the Measure is not completely comprehensive—this has been agreed—it could go some way towards rationalising the law without alarming the public and making newspapers feel that at least they have a set of fair and sensible rules by which to work.
§ 2.20 p.m.
§ Mr. Jasper More (Ludlow)
I cannot speak on this Bill with the same degree of experience and expertise as the hon. Member for Accrington (Mr. Arthur Davidson), but I should like to begin by congratulating my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre) on winning the Ballot to bring in the Bill and on the way he put it to the House. He was good enough to say that I had been concerned with it at an earlier period, so I hope that the House will forgive me if I just mention one or two of the people who have worked very hard in this cause both before and since it came to the House.
It is right that I should mention Lord Devlin, President of the Press Council, Lord Tangley, who introduced a full-scale debate on this subject in another place, the President of the Guild of British Newspaper Editors, Mr. Clement Jones, who is my own local newspaper editor, Lord Shawcross, Mr. Cecil King and, I ought to say, all the members of that Committee organised, as has been said, through the medium of Justice and the members of the working party who produced the report already referred to.
This has been no light enterprise. The Bill is not brought to the House in order to needle this or any Government. The whole exercise has sprung from the deep-seated feeling among large sections of the Press that there is a great deal which is not right. It came to the surface, as I, as a Conservative, would be the first to admit, at the time of the Vassall case. It was that which triggered off the formation of the Working Party. It was a case which created great prejudice against the Conservative Party which was then the Government. However, it was followed by the D-notice case which created equally strong feeling against the Labour Government. So this is not a party 1773 matter because Governments drawn from both sides of the House have been involved.
The Bill comes, inevitably, in a very legalistic guise and anyone reading it might Wonder, "What is all this lawyers' nonsense?" We are dealing with technical matters such as contempt, libel, defamation, and, of course, the Official Secrets Act, so it must be somewhat legalistic, but the importance of the Bill, although those matters have to be worked out in detail, is not so much the individual amendments of the law but the recognition by this House that there are many things which, even though it may, finally, be decided not to make those amendments to the law, need the most careful and deep consideration. The lawyers' interest is to ensure that in seeking to make improvements in the law to meet the wishes of the Press we do not confuse the law or worsen the law so as to produce side effects in other directions. That must be done.
I do not want to be critical at this stage because this has been a very harmonious debate, and I am sorry to say this while the Attorney-General is not here, but I think that one is entitled to express regret that the Government have not been more forthcoming about this matter. After all, there was a full day's debate staged in the House of Lords on 25th May, 1966, and in that debate there was a statement by the Lord Chancellor in these terms:I fear that all I can really say on behalf of the Government is that I am afraid there can be no question of legislative time being found in this Session for a reform of this branch of the law."—[OFFICIAL REPORT, House of Lords, 25th May, 1966; Vol. 274, c. 1435.]That was nearly three years ago, and I think it is fair to say that since then the Government, who must have been aware of the wishes of the Press and the expressions of opinion which had been made in the House of Lords, have taken no initiative in this field at all.
§ Mr. Deputy Speaker (Mr. Sydney Irving)
Order. The hon. Member must use the traditional phrase when referring to another place.
§ Mr. More
I am sorry, Mr. Deputy Speaker. I got carried away by a surge 1774 of enthusiasm which temporarily made me forget the conventions of this place.
I feel entitled to make a slight personal complaint because I was myself able to bring in a Bill by a win in the Ballot, but it was very noticeable that, it not being first on the Order Paper for a certain Friday, a Minister, talking at the Box, talked with extreme slowness—I was watching all the time—right up to 4 o'clock, and with one's experience of what goes on on Fridays I felt that that was not altogether coincidental. On a second occasion when I had the opportunity to bring it before the House I was actually called Mr. Speaker and had been speaking for some 10 minutes when also it so happened that between those magic times of 1 o'clock and 1.15 an hon. Member of the other side of the House suddenly walked in and called a Count. That suggests, from one's experience of Fridays, that that was not purely coincidental. I mention these things only because I think it slightly unfortunate that an impression should have been given that there was no great enthusiasm on the side of the Government to meet this issue.
Discussing this Bill with my hon. Friend the Member for Hall Green I said, "By doing this, you have at least achieved the moment of truth". When I read the newspaper on 25th January and I read the statement by the Prime Minister that it really was important that restrictions on security grounds should be kept to the minimum and that the whole question of official information should be gone into I began to wonder if this was just coincidence or something of the sort Dr. Johnson spoke of when he said that when a man knows he is due for execution in two days' time it does concentrate his mind remarkably. I was pleased to see the Attorney-General today falling so nimbly in line behind his Leader in saying that indeed it was time that the Official Secrets Act should be looked at.
The Attorney-General was good enough to say in connection with one of the Clauses that there might be a job to do for the Rules Committee and my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson), in a powerful speech about the law of defamation, went so far as to say that, notwithstanding the great improvement 1775 which has been brought about by the 1952 Act, which was sponsored in this House by the hon. Member for Manchester, Cheetham (Mr. Harold Lever) there was a real need to look at and review the whole of the law of defamation. When one has these three statements from our two leading legal authorities in the House it seems slightly regrettable that this Bill should have been, as it were, fended off for the best part of three years. I say that more in sorrow than in anger and I welcome the Government's deathbed repentance and I hope that now all of us who are interested in this subject may go forward in harmony in trying to make a real reform in this branch of the law.
In the debate in another place, which I am sure hon. Members have read, there were many powerful contributions from many different points of view, but I think it right to make two comments. It seems to me that whenever the Press is debated we get entangled between two things. One is the issue we are discussing today, which is the question of the reporting of matters of public interest, and the other is the reporting or excessive reporting of matters of private interest.
These are both important. It is important that they should not be confused, and it is fair to say that they have not been confused in today's debate. It would be regrettable if the Government were to be influenced against the Press by what is another consideration, namely, that there are so many complaints from the public of the Press excessively interfering in private affairs which ought not to be published in the way they are.
The other comment I wish to make on the debate in the other place is that, however valuable that was, surely the issue which the Bill raises is primarily a House of Commons matter. I do not think it is an exaggeration to say that the Press would be appreciably handicapped in its future existence if there were no House of Commons. We provide a considerable degree of the interest and comment that go into the newspapers. But, much more important, is it not true to say that if it were not for the Press the House of Commons could hardly survive as a live institution? We are almost entirely dependent upon the Press, and now of course on television, for 1776 getting across to the public what goes on here.
When I took on the original preparation of the Bill, I viewed this in a large degree as an issue between, on the one side, the Press and this House and, on the other side, the Executive. The Executive is concerned particularly in the preservation of such things as the Official Secrets Act. Those of us who support the Bill are entitled to say that the future of democracy in this country and of what may be broadly called the public interest call at least for a serious consideration of reforms of the kind provided by the Bill and, of all bodies in the country, the House of Commons should be the first to support a movement of this kind.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).