RESTRICTION ON PROCEEDINGS (Hansard, 16 May 1969)

§ Mr. Edward Lyons
I beg to move Amendment No. 1, in page 1, line 6, leave out from beginning to second 'proceedings' in line 11.

§ Mr. Speaker
I suggest that it would be convenient for the House to discuss, at the same time, Amendment No. 3, in line 12, leave out 'such publication' and insert: 'the publication of any matter in a newspaper or in a broadcast by wireless telegraphy as part of any programme or service provided by means of a broadcasting station within the United Kingdom'.

§ Mr. Lyons
The Clause deals with two separate matters. The first part attempts to state the circumstances in which the publication of a matter in a newspaper or in a broadcast amounts to the offence of contempt of court. The second part provides that proceedings for contempt of court arising out of such publication shall not be instituted without the authority of the Attorney-General.
Amendment No. 1 would omit the first half of the Clause and, in so doing, would confine the provision to a requirement that the proceedings for contempt arising out of the publication of a matter in a newspaper or in a broadcast shall require the consent of the Attorney-General. Amendment No. 3 is a drafting matter and would enable the surviving part of the Clause to stand on its own. In other words, the purpose of the two Amendments together is to take out of the Bill any attempt to define the offence of contempt of court.
The Explanatory Memorandum to the Bill says that the Clause will make clear the nature of contempt of court in respect of the publication of any matter in newspapers and in broadcasts. In Committee, the hon. Member for Birmingham, Hall Green (Mr. Eyre), the sponsor, said that the Clause would enable newspapers to comment more freely on matters of large-scale fraud. He said that the present state of the law inhibited a news- 1870 paper editor from attempting to bring large-scale fraud to the attention of the public.
My hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) asked in Committee how the Clause would improve the position in this respect. The hon. Member for Hall Green replied that he would answer that question when he replied to the debate, but having re-read the OFFICIAL REPORT of the hon. Gentleman's comments on that occasion I have been unable to discover such an answer. Nor did the hon. Member for Accrington (Mr. Arthur Davidson), who said that he had played some part in drafting the Clause, deal with the matter.

§ Mr. Eyre
Is it not the fact that on that occasion I stressed the importance of the Attorney-General's consent, which follows in this Clause; and that I also relied upon the professional evidence of the hon. Member for Accrington (Mr. Arthur Davidson) who is legal adviser of a newspaper and who said that the provision would help the working journalists.

§ Mr. Lyons
Although it was suggested that the Clause might help working journalists, there is at the moment no Act of Parliament that defines the offence of contempt. The offence is enshrined in case law. One could argue, I think rightly, that even in case law there is no exhaustive definition. The attempted definition does not illuminate the case law. It does not exactly replace it in order to simplify it. It does not simply consolidate case law. It detracts from the existing definition.
If, at the moment, a person or a newspaper were to attack or scandalise a judge, under the law as enshrined in case law the newspaper editor who did that could be brought before a court to face proceedings for contempt. Under the attempted definition in the Clause, that would be no longer the case. In other words, contempt is limited. It was argued in Committee that that would not matter, because if a newspaper editor scandalised a judge he could be sued by the judge for libel.
First, however the trial might be imminent in which the judge was involved and, secondly, it would be a humiliation for our judges constantly to be 1871 bringing actions for libel against newspapers which had scandalised them.

§ Mr. Alexander W. Lyon
is not the answer to this point that in proceedings for contempt, the judge, when acting in proceedings for contempt, is not safeguarding his own person but safeguarding the court as an impartial instrument of justice? Therefore, an action for defamation is completely beside the point. The purpose of proceedings for contempt is not to preserve the judge's reputation but to preserve the integrity of the court.

§ Mr. Lyons
I am grateful for that intervention, which is, as usual, a valuable contribution. The fact is that attacks on judges are an obstruction to public justice. That being so, I think that the present machinery should remain and the present definition should remain until something better is found.
Temperate criticism of a judge or court made in good faith is not restricted. What is objectionable is language which would damage the public by undermining or impairing the authority of the court. I suppose that one could also say that if there were scandalising of a judge one could at the trial have challenges for cause of the jury to see whether any of them had been affected by the publicity; in other words, whether their minds have been prejudiced as a result of reading scandalous matter about a judge.
The trouble about that is that the challenge for cause of a jury comes not from the judge but from counsel for the prosecution or for the defence. In a recent case in which I was involved, though the case was not one of scandalising a judge but a case in which a newspaper had overstepped the mark in comment—it took hours for jurors to come into the witness box to be examined to see whether their minds had been affected by improper publication. That is not a satisfactory way of dealing with the matter.
I understand that tribunals of inquiry are not judicial proceedings, and this definition, or purported definition, of contempt relates to judicial proceedings. Tribunals of inquiry would, therefore, be excluded, so that if the Clause were enacted those who were guilty of matters which would otherwise be contempt of 1872 court would have no sanctions against them with regard to a tribunal. That is another failure.
I should like the hon. Member for Birmingham, Hall Green (Mr. Eyre) to tell us how his attempted definition in any way improves on the present state of the law. It seems to me that by limiting the definition merely to newspapers and to broadcasts it would adversely affect contempt proceedings for matters not related to newspapers or broadcasts. Unless I can be satisfied—and I do not think that I can be—that the Clause in any way improves the present definition of contempt, I must continue my opposition.

§ Mr. Eyre
I am very impressed by the arguments advanced by the hon. Member for Bradford (Mr. Edward Lyons) and by the hon. Member for York (Mr. Alexander W. Lyon) in his intervention, so I say at once that I accept the Amendment.

§ Mr. Dewar
I beg to move Amendment No. 4, in page 1, line 13, at end insert: (2) In the application of this section to Scotland in subsection (1) the words from and proceedings' to the end shall be omitted. This Amendment is to some extent the twin, so to speak, of the Amendment that has just been accepted, and I am curious to see whether it gets the same warm welcome from the sponsors.
I owe it to the House to make one very short explanatory point. There are in my name a number of Amendments which are designed to make this Bill compatible with the law of Scotland. They might become irrelevant if the House accepted mendment No. 19 in the name of the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie). That Amendment is in page 5, line 17, after 'Act' insert 'shall not extend to Scotland and'.

§ Mr. Eyre
I understand the legal difficulties which apply to Scotland in this matter. Perhaps the hon. Gentleman would be prepared to follow the reasoning of my hon. and learned Friend the 1873 Member for Edinburgh, Pentlands (Mr. Wylie) and feel that it would be preferable to deal separately with Scotland rather than to argue this point in detail now, and perhaps run into the danger of mutilating the Bill and affecting its beneficial effect in England. The hon. Gentleman would still be able to have the Scottish problems dealt with separately.

§ Mr. Dewar
I am obliged to the hon. Member for that helpful suggestion, but I cannot entirely accept it. I am in the difficulty that I am reserving my judgment on the exclusion of Scotland until I see the fate of the Amendments which I have on the Notice Paper which would bring the Bill into line with Scottish law. I give the Bill credit that it has many good things in it, and I am unwilling wholly to exclude Scotland from it at this stage. It may be that if I have no luck with the Amendments which I think are necessary to make it a workable proposition in Scottish law, I shall, with great regret, have to do without the benefits of the Bill and have to support the exclusion of Scotland from it. But I should like to save the Bill, or parts of it, from the Scottish point of view, and at this stage I must persist with this Amendment in the hope that it will find favour with the House. If it does not, I shall have to reconsider my position.
The Amendment arises from the difficulty of drafting a United Kingdom Bill, drawn with the law of England in mind, because of the differences which exist north of the Border. All too often we have United Kingdom statutes with a rather inadequate interpretation Clause squeezed in at the end in a half-hearted attempt to adapt some of the legal phraseology to make the statutes a working Scottish proposition. There have been many precedents. Scottish lawyers are always complaining about this practice. The difficulty is that if we exclude Scotland and wait for separate Scottish legislation, because of pressure on Parliamentary time we may wait for a very long time.
The part of the Clause which I am endeavouring to exclude in respect of Scotland is that which lays down that proceedings for contempt shall not be instituted except by or with the consent of the Attorney General". 1874 I am sure that the sponsors of the Bill are the first to accept that that is meaningless in Scottish terms. The Attorney-General, as all will agree, has no writ north of the Border, no jurisdiction in Scotland. This part of the Bill as it stands is a complete nonsense for Scotland. It would have been tempting and in one sense very much easier, as well as apparently simpler, merely to have added a Clause to substitute the authority of the Lord Advocate in Scotland for that of the Attorney-General in England. That proposal was carefully considered, but I confess that it was not a solution which ultimately commended itself to me.
The House will remember the general argument used on a number of occasions by the Attorney-General to explain his general objections to this provision even in England. I stress that those arguments not only apply in Scotland but seem to me to apply with added force in that country. Although in England it may generally be true, as many of us accept, that the Attorney-General has to step in to give his permission before an action can be instituted—

§ Mr. Richard Sharples (Sutton and Cheam)
On a point of order. Mr. Speaker, may I seek your guidance? The proposer of the Bill has indicated that it is his intention to recommend to the House the acceptance of Amendment No. 19, which excludes Scotland from the provisions of the Bill. If we were at this stage to discuss Amendment No. 19 with the Amendment which has been proposed by the hon. Member for Aberdeen, South (Mr. Dewar), we might save a great deal of time which would otherwise be spent in discussing various Scottish Amendments which, in fact, would not be relevant to the Bill if Amendment No. 19 were accepted.

§ Mr. Speaker
The hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie), whose name is down to Amendment No. 19, is not in the Chamber at the moment. It do not know whether he would wish to take part in the debate on that Amendment.

§ The Attorney-General
The hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) is not able to be present for the debate today.

§ Mr. Speaker
The hon. Member for Birmingham, Hall Green (Mr. Eyre) has given an undertaking to the hon. Member for Aberdeen, South (Mr. Dewar) which, it seems to me, will be honoured when we reach Amendment No. 19. If the House has no objection, then I have no objection to including Amendment No. 19 in the present debate.

§ Mr. Dewar
As I said earlier, I recognise that I may be moving a series of irrelevant Amendments, but if we were also to debate Amendment No. 19 at the same time it would make for a very wide debate. If it were the wish of the House so to do, I should be prepared to accept that proposal, but I should be reluctant to do so. Although the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) is not here at the moment, he might arrive later and then feel slightly chagrined if the Amendment had been debated.

§ Mr. Speaker
First, the hon. and learned Member for Edinburgh, Pentlands is not coming to the debate today. Second, any hon. Member may move the Amendment which stands in his name.

§ The Attorney-General
The suggestion apparently is that the House should discuss Amendment No. 19 with Amendment No. 4. Amendment No. 19 provides that the Act shall not extend to Scotland, and the ground which could be covered in the debate on that issue could cover the whole context of the Bill, if my hon. Friend the Member for Aberdeen, South (Mr. Dewar) saw fit to approach it in that way. The debate might even anticipate the Third Reading debate, to which we may well move in the course of the day.
It therefore seems to me doubtful whether at the end of the day this proposal will have been found to speed the progress of the discussion of the Bill. It does not follow that if the House is willing to approve some of the Amendments in the name of my hon. Friend the Member for Aberdeen, South, it will also be willing to approve Amendment No. 19. The course which is proposed, therefore, might well be unsatisfactory and perilous and it might be found at the end of the day not to have assisted the House.
When we debate Amendment No. 19 I shall have some observations to make 1876 on the desirability of legislation for England and Scotland on any important measure affecting the law going together as far as can be. At the end of the day, therefore, it may well be that what is proposed will have been time-consuming rather than time-saving.

§ Mr. Speaker
I think that we must leave it and proceed as we were. I am grateful to the Attorney-General for stating clearly the difficulties which may arise if we add this wholesale Amendment No. 19 to the debate on the partial. Amendment No. 4.

§ Mr. Dewar
I was explaining that the general arguments against the Bill apply strongly in Scotland. Clearly, if the Attorney-General or any law officer had to give his permission before proceedings for contempt could be instituted, embarrassment could arise. The right hon. and learned Gentleman has pointed out that a Ministerial colleague of his might well be involved in some future action, and if he is not in a position to say, "At least you can yourself institute proceedings. I do not have a final veto", he will be in an embarrassing situation.
That argument is much more powerful when applied to Scotland for the very good reason that the Lord Advocate is involved in prosecutions much more directly than the Attorney-General is involved in prosecutions in England. It will not have escaped the notice of the House that the equivalent to the Director of Public Prosecutions does not exist north of the Border. The result is that the Lord Advocate or the Crown Office which he controls is a party to every major prosecution which takes place in Scottish courts. It is self-evident that normal actions or possible actions for contempt arising out of publication in newspapers might involve a possible prejudice to the defence. It is wrong that the law officer who is in charge of almost every prosecution should be asked to sit in judgment on the question whether there is a prima facie case of contempt which will prejudice the defence in the very case which he is controlling.
There is a clear potential clash of interests here. This has been recognised during these debates. The hon. and learned Member for Northwich (Sir J. Foster) in cols. 18 and 19 in Committee 1877 on 2nd April supported the Attorney-General's general argument and said that he would like some middle way. He suggested an appearance before a judge in Chambers—

§ Mr. Speaker
Order. The hon. Gentleman must speak to his own Amendment, which seeks to provide that this part shall not apply to Scotland.

§ Mr. Dewar
I am sorry, Mr. Speaker. I was merely trying to emphasise that there was general unhappiness here and that, because of the nature of the Lord Advocate, in charge of the Crown Office, "doubling up" for the Director of Public Prosecutions, there are important reasons for excluding the operation of this part of the Clause from Scotland. We cannot leave the situation as it is, leaving the Attorney-General in, and make sense of the Bill for us. For the reasons which I have given, it is better not to have a straight substitution but to move on.
In Scotland, as I think in England, many of these cases of contempt are instituted by the individual concerned. The major Scottish authorities quote the cases of Stirling v. Associated Newspapers or the older case of Smith v. Ritchie, which show that it was the individual who protected his rights by seeking redress in the courts. It would be wrong for Scotland and for our precedents to cut off that right and stop people from protecting their interests and leave them dependent on the say-so of the Lord Advocate, who is often responsible for the prosecution in the case at issue.

§ The Attorney-General
I should like to lend my support to the Amendment, which disapplies, in respect of Scotland, the provision in Clause 1 that proceedings for contempt of court which are referred to in the Clause shall not be instituted except by or with the Attorney-General's consent. These words are obviously inappropriate for Scotland, where, happily or unhappily, the Attorney-General has no jurisdiction.
But the Amendment goes further. It does not try to substitute the Lord Advocate for the Attorney-General as the person whose consent is necessary for the bringing of such proceedings, but proposes to maintain the present position 1878 in England, Wales and Scotland, that the individual citizen may himself iniate contempt proceedings.
We discussed this on Second Reading and in Committee when, while accepting the implied compliment to my office embodied in Clause 1 and the confidence reflected in it, I said that, for the citizen and the Law Officers, whether the Lord Advocate or the Attorney-General, it was desirable that the citizen should have a last resort recourse to contempt proceedings himself. My noble Friend the Lord Advocate is very anxious that the principle of the right of the individual citizen to proceed should be maintained in Scotland.
In Scotland, the Lord Advocate is involved in all criminal proceedings as the public prosecutor, whereas, in England and Wales, I am concerned directly only in the limited number of cases which can be brought only with my authority and consent, and those cases under the control of the Director of Public Prosecutions, for whose activities I am answerable to the House. If the Lord Advocate's consent were a prerequisite of contempt proceedings, he would be in an invidious position in view of his position as public prosecutor.
Since newspaper contempt usually involves prejudice to the defence, it could be argued that there was a conflict of interest if the Lord Advocate's consent were always required, in that, in a particular case, he might have allowed his interest as prosecutor to affect his decision about contempt proceedings.
In Scotland, in view of the principle of secrecy in all investigations leading up to a criminal trial, the Scottish courts have traditionally been sympathetic to proceedings for contempt brought by accused persons who allege that their trial has been prejudiced by publication of matters involved in such investigations. In Scotland, many of these cases have been brought by the individuals themselves. That has not been the pattern, in practice, in England and, as I said in Committee, there has been only one occasion since I have been in this office on which I have brought contempt proceedings. I cannot think of more than one or two where an individual citizen has proceeded.
1879 I know that the Lord Advocate attaches great importance to maintaining the citizen's right. This may not be an additional benefit to the Press. If the Lord Advocate and the Attorney-General had the exclusive authority to take contempt proceedings, by the end of the day, if only as a precaution, more rather than fewer contempt proceedings might be brought.
Accordingly, I warmly support the Amendment and regret that it has not been possible similarly to remove that provision in the Clause—

§ Mr. Speaker
Order. We are on one Amendment at the moment.

§ Mr. Eyre
Although I have been slightly puzzled by some of the Scottish legal terms, I have been impressed by the argument of the hon. Member for Aberdeen, South (Mr. Dewar) and I should like to accept his Amendment.

§ Mr. Alexander W. Lyon
The Amendment would add double bastardy to a Clause which is already bastardised. The purpose of the Clause as it stands, after the acceptance of the last Amendment, is that the newspapers and mass media have a special privilege, which is not open to other people who commit contempt of court—namely, an individual in other circumstances can proceed before the court for contempt, while the mass media can do so only on the fiat of the Attorney-General. The Amendment has been accepted by the sponsor and approved by my right hon. and learned Friend. Shame upon shame! That it should be approved by a legal luminary of such distinction—[HON. MEMBERS: "Oh."]—I am thinking about my nomination—is quite shocking.
Now, the right which existed before the Bill will, I hope, exist when the Bill is voted down—that anyone can bring proceedings for contempt before the court in England. This has been removed by the Clause but will be retained in Scotland. So an individual in Scotland will be in a better position than his counterpart in England in contempt proceedings.
1.0 p.m.
It seems to me, therefore, that we have first of all the original illegitimacy, that in England in relation to 1880 contempt committed by mass media there is only the fiat of the Attorney-General and that in Scotland there is a particular distinction for the individual—but only in Scotland. I find, not for the first time, that this is an invidous distinction against the English.

§ Mr. Carlisle
I appreciate that the hon. Gentleman is only trying to assist the Attorney-General in his deliberate intention to talk the Bill out in order to avoid voting on the Third Reading.

§ The Attorney-General
I regard that as an entirely unwarranted intervention. It is important that the position of the Lord Advocate and of the Attorney-General should be stated.

§ Mr. Carlisle
That may be so. I do not want to encourage the hon. Gentleman to go further, but the point he is making is ridiculous. All that the Amendment does is to delete the reference to the Attorney-General in the institution of proceedings in Scotland. It does not say anything about whether at a later stage another Amendment should be inserted to include somebody else. All it does is to improve the drafting.

§ Mr. Alexander W. Lyon
It relates to a procedure which I should like applied throughout the United Kingdom, but it does it for Scotland. It creates a bastardy and goes on to a double bastardy by removing it only in the case of certain privileged children.

§ Mr. Carlisle
If it removed somebody whose writ ran in Scotland that would be true, but all the Amendment does is to appear to give the Attorney-General a power which he does not have. All the Amendment does is to remove a nonexistent power.

§ Mr. Alexander W. Lyon
If the position of the individual in Scotland were to be made the same as that of the individual in England, the appropriate Amendment would have been to include the Lord Advocate. But that is not the Amendment which has been moved. This reinforces my suggestion that we are giving a double privilege to a particular section of the community and one which, on the whole, I am against.
I can understand that the sponsor of the Bill feels a little incensed by that, but for him to use such intemperate 1881 language and to suggest that I am seeking to talk the Bill out, and at the instigation of the Attorney-General whom I have just been criticising for his lack of legal insight, is most unkind—I know that I have lost a friend indeed when I use such words about the Attorney-General—and it is certainly not the case.
Rarely do I engage in the heinous sin in this House of intervening in a Scottish matter, but I do have certain Scottish ancenstry and I am disposed, moreover, to effect uniform justice throughout the United Kingdom, which this Clause and this Amendment taken together do not do. In the circumstances, therefore, I am not sure that this makes the position any better. I appreciate that the Amendment will have to be accepted, because at the moment the Clause is a nonsense so far as Scotland is concerned, but it seems to me that while it is a nonsense for Scotland, it is a gross injustice for England. Therefore, at a later stage I shall have certain references to make to the Clause in general.