§ Mr. Deputy Speaker
With this Amendment we can take Amendment No. 12, in page 4, line 10, at end insert—(3) This section shall not extend to Scotland.
§ Mr. Dewar
The substantive Amendment is Amendment No. 12; Amendment No. 11 merely omits the reference to the Scottish interpretation provisions in the 1952 Act.
Clause 6 sets out to ensure that in a situation where there is argument and in which submission are made by counsel as to whether the words complained of are capable in law of any defamatory meaning, the argument should take place before the judge and in the absence of the jury. I do not object to the general intentions of the Clause; indeed, it would be strange if I wanted an argument of this type to be heard in the presence of the jury. The Bill has been drafted with English legal considerations in mind. The appearance of the words "libel or slander", in the first line of the Clause, underlines that, as these distinctions are meaningless in Scots law; and I am surprised that it has been thought necessary to do this.
The Attorney-General, on Second Reading, gave his opinion that, if clarification were necessary, it could more usefully be done by rules of court rather than by legislation. This suggests that there is at least a little doubt and a little need for clarification. It is apparently 1888 contemplated that argument of this type takes place in the presence of a jury; perhaps it does. But I have a great aversion to redundant legislation, and I see no reason why we should put on the Statute Book a Clause which has no application to the law of Scotland. It is universal practice in Scotland for this type of legal argument to be heard by the judge alone in the absence of the jury.
It may be that the Attorney-General will have information on this, but I have not been able to find an exact precedent in the sphere of defamation, but the rule is established by analogous decisions in a wide range of cases. For instance, the Scottish law of corroboration, as has already been mentioned, is much more tightly controlled in Scotland than in England.
Until the passing of the Law Reform (Miscellaneous Provisions) (Scotland) Act, 1968, which was hotly opposed by the Opposition, it was a common occurrence for technical legal arguments to take place as to whether there was sufficient corroboration to allow the case to proceed. Invariably, the jury retired, and the technicalities and legal niceties were decided in court before the judge alone.
The position is equally clear in criminal cases. The matter was decisively and authoritatively concluded in Chalmers v. Lord Advocate in 1954, when it was held that any legal argument to determine whether a statement of an accused was admissible, or whether it had been extracted by coercion, should invariably be heard by the judge alone in the absence of the jury.
I have no doubt that for Scotland this is a redundant Clause, and on general principles I see no point in asking the House to approve redundant provisions. I have no doubt that it will be argued that the very fact that we are adding a Clause to exclude Scotland might lead to the view being taken that the House was asking the Scottish legal system to make an exception in this case from its normally widely accepted practice, and that it does no harm to reinforce the universal practice by writing it into the Statute.
This is a tenable point of view, but the position is so well established that I feel it would be a grave mistake to 1889 blur the clear outlines in the Scottish courts by allowing the Clause to stand as drafted applicable to Scotland.
§ Mr. Eldon Griffiths
In Committee, we had the advantage of practical men with great experience in journalism, and I was well aware then, as now, that if the lawyers got into the act we should probably encounter difficulties, all the more so if our Scottish lawyer friends got into the act.
The hon. Gentleman has argued that Scottish law in this matter is probably superior to English law because the judge makes the decisions. I am not a lawyer and do not enter into the merits of the argument. I hear what he says, but it reflects back on the previous discussions on the award of damages—
§ Mr. Dewar
The hon. Gentleman is under a slight misapprehension. We are discussing whether the jury should be present during technical discussions and legal submissions which everyone will accept are not the proper province of the jury because they demand expertise. We are anxious that the jury should not be confused by listening to what to them will be incomprehensible, or, worse still, half-comprehended, arguments which may put them in possession of distorted views when they come to reach their final decision.
§ Mr. Griffiths
In response to that, may I say, with great kindness, that this is typical of the total conceit of lawyers who feel that juries of ordinary men are not able to understand the mumbo-jumbo of the law but are perfectly capable of understanding all the financial intricacies of journalism. My argument is on all fours.
If the jury is not to be regarded as capable of listening to and understanding matters of law, I see no reason why it should be claimed to be capable of understanding all the financial intricacies which we were discussing earlier.
I address my second point directly to the Attorney-General. We are here dealing with some rather abstruse aspects of the Scottish law. The right hon. and learned Gentleman is extremely knowledgeable in all matters of law, both national and international. Could he explain to the House why he has not sought the assistance this morning of one 1890 of the Scottish Law Officers in dealing with these matters? It is possible he is omnicompetent, but the House ought to have the benefit of advice from the Scottish Law Officers.
§ 1.30 p.m.
§ The Attorney-General
I have consulted with the Scottish Law Officers. Unhappily, they are not here in person to give the benefit of their learning. As the hon. Gentleman well knows, the Lord Advocate sits in another place. Therefore, it falls to me, once again, with much trepidation, to venture into Scottish law.
Having taken counsel in the appropriate places, I have to tell the House that this Amendment should be opposed, not because of any disagreement with the substance of what has been said by my hon. Friend who has proposed it but because its acceptance might leave in doubt the law in Scotland.
The Amendment states that the section shall not extend to Scotland, and, as my hon. Friend has explained, this is because Clause 6(1) already represents the law of Scotland. It is, therefore, a matter of supererogation to include it in the Bill.
The danger is that the new subsection might be interpreted as meaning that in the limited instance of legal arguments mentioned in Clause 6(1) the normal rule should not apply. This is a real danger because, as my hon. Friend has said, there appears to be no decided case in support of the proposition that the general rule about legal arguments being heard in the absence of a jury applies in actions for defamation.
The danger is even greater because the ruling in civil cases in this regard is not so much a rule of law as a rule of practice, however invariable that rule has been. Therefore, it seems better to leave Clause 6 to apply to Scotland as a mere statutory reinforcement of the rule of practice, if nothing more. Accordingly, I hope that my hon. Friend will withdraw the Amendment.
§ Mr. Dewar
I am not entirely convinced about this. My right hon. Friend is playing it rather over-safe. In some ways I dislike giving way, but I can see the force of his argument.
The hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths) got the 1891 wrong end of the stick, when he spoke of the conceit of the law. It is not just that the jury would not necessarily understand or appreciate the true significance of technical or legal argument which is being discussed. Let us take as an example the admissibility of a confession given by an accused in a serious criminal case. There may be discussion in court about the contents of a document and the circumstances in which it was obtained. If, after legal argument, the judge decides that the document is not admissible and should not be laid as evidence, it would present a difficulty to the defence if a jury has been sitting through the argument, with ears flapping, taking in a great amount of the detail of a document which they are supposed to exclude from their minds.
I make that point in passing, but in view of what my right hon. and learned Friend has said, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.