§ Lords Amendment: No. 35, in page 11, line 4, leave out 'words' and insert matter'.
§ 4.8 a.m.
Mr. Piers Dixon (Truro)I beg to move, That this House doth agree with the Lords in the said amendment.
§ Mr. Deputy Speaker (Mr. Oscar Murton)With this amendment we shall consider the following:
No. 36, in page 11, line 4, leave out "tending to show" and insert "imputing".
No. 38, in page 11, line 8, leave out from "shall" to "an" in line 9 and insert "affect".
No. 39, in page 11, line 14, leave out "(6)".
No. 42, in page 11, line 25, leave out subsection (5) and insert—
(5) A defendant in any such action shall not by virtue of subsection (3) above, be entitled to rely upon the defence of justification if the publication is proved to have been made with malice.No. 43, in page 11, line 40, leave out subsection (6).No. 44, in page 12, line 3, leave out "at liberty" and insert "entitled".
No. 45, in page 12, line 6, leave out "words" and insert "matter".
No. 46, in page 12, line 7, leave out from "proceedings" to end of line 12 and insert:
if it is proved that the publication contained a reference to evidence which was ruled to be inadmissable in the proceedings by virtue of section 4(1) above.No. 47, in page 12, leave out line 21.No. 48, in page 12, line 26, leave out subsection (9).
No. 49, in page 12, line 40, leave out subsection (10).
No. 50, in page 13, line 1, leave out subsection (11).
749 and No. 51, in page 13, line 26, leave out "tending to show" and insert "imputing".
§ Mr. Leon Brittan (Cleveland and Whitby)I should like to express a grave note of reservation about the defamation amendments. As the House will be aware, this is perhaps the most controversial part of the Bill and it has been subjected already to substantial amendment both here and in another place.
The basis of the objection is that if the Bill were passed in its original form it would not be possible to tell the truth about a person covered by the Bill and such a person would be entitled to bring proceedings for defamation, and the defence of justification, that the words written or spoken were true, would not be available to a defendant in such proceedings.
When that became apparent, a substantial and strong body of opinion took exception to the implications for the law of libel. Indeed, one of the most significant representations against this part of the Bill came from the interim report especially issued by the Faulks Committee appointed to consider and look into the whole question of the reform of the law of libel. The relevant passage of that interim report reads:
We view with disfavour the creation by the Bill of a special class of person about whom truth cannot be safely told after a specified period. We think it is in the public interest that truth should at all times remain a defence to actions for defamation. It is in our view wrong that a man about whom the truth is told should be entitled to damages on that account. Where it is unfair and not in the public interest to tell the truth about a person a publisher can be charged with criminal libel".That was a most authoritative report, and I suggest that the House should think carefully about the implications of legislation in this branch of the law at precisely the time when a committee has been appointed to consider the whole matter.As has been said in debate elsewhere, it will not be easy to persuade people of prominence and distinction to serve on committees of this kind if while they are deliberating Parliament, by a side wind, legislates on the subject matter that they are considering and on which they are to report in due course. It is not merely the Faulks Committee that has objected to the proposition that a person should be able 750 to sue for libel and it should not be a defence in the circumstances of the Bill to say that the words spoken or written were true. A whole body of opinion involved in matters of this kind rose against these provisions as one man; the Society of Authors, the Publishers' Association, the newspapers and many prominent in defamation law protested most vigorously at the suggestion that the traditional defence, that what has been said is no more and no less than the truth, should be ended by the Bill.
As a result of the protests, an amendment was put forward in this House making it possible to defeat a defence of justification in the circumstances prescribed by the Bill if, and only if, one were able to show that the publication of the words complained of was not in the public interest.
4.15 a.m.
The House of Lords has decided that provision and has introduced instead a provision that a defendant in an action covered by the Bill will be entitled to rely on the defence of justification if the publication is proved to have been made with malice. The concept of malice is, of course, one that has long stood in the law of defamation. To defeat a defence of fair comment or qualified privilege where such defences run, the plaintiff has to prove that the defendant was actuated by express malice; but to introduce the concept of malice in these circumstances to the defence of justification would, I suggest, be a great complication and a novel departure in this branch of the law.
Anyone who has ever been involved in proceedings in which a plea of malice is tried will know that there is no possible complication in the law of defamation which is more prone and more likely to lead to complexities, prolixities and difficulties of one kind or another, both in the trial itself and usually—or at least often—subsequently on appeal.
I suggest, therefore, that the provision that the defence of justification in the circumstances covered by the Bill should lie but that it should be possible to defeat that defence by a plea of malice is one which is calculated not to simplify the law but rather to complicate it. It is one that amounts to a cutting-down of the traditional defence of justification, of proving that what one has said is true 751 and of enabling in certain circumstances a person not merely to be protected from disclosure of his past but actually to recover damages from someone who has said what is no more than the plain and unadulterated truth.
I suggest that that would be a most dangerous course to apply and that it would be preferable for the Lords amendment not to be passed and instead for the defamation clause, in so far as it relates to the defence of justification, to be deleted.
I appreciate that the circumstances are difficult in the sense that we are debating this matter at a very late—or very early—hour indeed at the end of the Session towards what may be the end of a Parliament. Those, however, are not factors which are of the making of those who take the view that we take, and it should not have been beyond the wit or the responsibility of those who sponsored the Bill so to arrange matters that it was possible for it to be considered at leisure and for the alternatives to be considered by the House of Lords if this House prefers the course that I am suggesting.
However, that has not been done, and as it has not been done I think it would be wrong for us to refrain from expressing our view as to the propriety or otherwise of depriving a defendant of the defence of justification merely because the consequence of pressing that point might possibly be unfortunate for the rest of the Bill which is not something to which those of us speaking on this matter take exception.
§ Mr. Deputy SpeakerBefore the Minister replies, may I say that I think it is understood that it is only Lords Amendment No. 42 which is in dispute. I suggest that it might be easier if we were to dispose of Lords Amendments Nos. 35, 36, 38 and 39 at this point.
§ Question put and agreed to.
§ Subsequent Lords amendments agreed to.
§
Lords Amendment: No. 42, in page 11, line 25, leave out subsection (5) and insert—
(5) A defendant in any such action shall not by virtue of subsection (3) above, be entitled to rely upon the defence of justification if the publication is proved to have been made with malice.
§ The Minister of State, Home Office (Mr. Alexander W. Lyon)I ask the hon. Member for Cleveland and Whitby (Mr. Brittan) not to press this amendment. Whatever the merits of the argument about this part of the Bill, to press the amendment now when it may be that the result would be to wreck the Bill, which has been through both Houses twice, would, in my view, be retrograde. It is unfortunate that in the course of the parliamentary year it would not be possible thoroughly to discuss this amendment and give it consideration separate from consideration on the whole of the Bill.
That is the fact. I want to put on record the background of the Bill so that the hon. Member may see what would happen. This Bill was conceived by a committee of Justice chaired by the greatest living expert on defamation, Lord Gardiner. The committee was unanimous that, in addition to the protection which the Bill would ensure for all who had lived down their previous convictions, it was essential that the law of defamation should be changed so that someone could not go round and undermine the central provisions of the Bill by telling other people about a previous conviction which was long since dead.
The freedom which is now claimed by those who oppose the provision, the great constitutional principle which is supported, is that someone should have the right, after a man has lived down his past, to be able to bring that up maliciously, to do him damage at a later stage and thereby undermine the central protection which the Bill gives. I supported the view expressed by the Justice committee that truth alone should never be a defence in those circumstances. But I recognised that this was a novel change in the law. It is not unknown to law throughout most of Europe, and a good part of Australia and America. There there is already a defence of public interest to claims of this kind, so that, in addition to truth, a defendant has to show that the disclosure was published in the public interest, to help the public, in cases where a man has lived down his past.
753 This was a novel step, and, recognising that, I moved in Committee, when this Bill came through the House on the second occasion, that the defence of justification should not be available unless it also showed that the publication of a man's previous convictions was in the public interest as well. Since this Bill left this House and went to the Lords there has been a campaign waged against it, mainly in the columns of The Times, by those who oppose the principle.
Basically, those who opposed it were people who were either on the Faulks Committee or associated with people who were on that committee. The Faulks Committee has taken the view that justification should be a defence in defamation at all stages, for all purposes. That is perfectly understandable. All I have said is that I do not accept that it ought to apply in relation to previous convictions lived down by a man still alive. That is what the House must recognise.
Anyone—authors, journalists, historians—is entitled to disclose the spent conviction in cases where a man is dead. That is not what we are arguing. What we are arguing about is when a man is still alive and has lived down his past and done all that he could to overcome the disgrace of what he did. Is it right that someone should later be able to undermine all that by disclosing it to the public in a way that will harm him?
There is a balance of interests here between the freedom of speech of those who claim that they can talk about it and those arguing for the man who has done all he can to live down his past. The balance ought to be allowed so that a court can decide whether it is in the public interest that this true fact may be disclosed again, to the harm of the man who is rehabilitated. The House of Lords took that view. What it said was that the fact the public interest defence would have to be proved by the defendant was going too far. Therefore, the House of Lords changed it, saying that the plaintiff—the rehabilitated person, the man who had lived down his previous conviction—would have to prove in an action for defamation that the defendant had been malicious.
In publishing these facts the difference in fact for newspapers may not be very great since the burden will be on the 754 plaintiff to prove, rather than on the defendant to disprove. Therefore, a man who has lived down his past would have to come to court and say "It is true I had a previous conviction, but I have lived it down, and the defendant has raised it again for his own personal interest." That matter would have to be decided by a jury.
It seems to me that the better balance was the one I advocated in Committee. I would have preferred to leave the matter there. If we had the opportunity, I might have considered moving against the amendment moved in the upper House, but I recognise that on a Bill such as that which is before us, which is an experiment and which is controversial, some balance of view has to be acceded to and one has to give a little. Therefore, I am prepared to accept the amendment. But the upper House, having dealt with that point, came to a unanimous view on Third Reading, which was unopposed that the Bill was an excellent Bill and should be supported in this House. It had the support of all those who were critical of it when it first went to the upper House. It was supported on Third Reading by Lord Gardiner, ex-Lord Chancellor, and sponsor of the Bill; by Lord Dilhorne, an ex-Lord Chancellor, who was the main critic of the Bill in the upper House; and particularly by Lord Elwyn-Jones, the present Lord Chancellor. It was also supported by Lord Diplock, who moved an amendment to insert malice rather than the defence of public interest. Lord Diplock is no mean contender in defamation. It was supported by Lord Salmon, and by Lord Simon, who had been critical of the Bill at an early stage. It was also supported by Lord Hodson. Therefore, four Lords of Appeal supported the Third Reading of the Bill.
The Bill also received the support of Lord Goodman, who, in addition to being a libel expert, is Chairman of the Newspaper Publishers' Asociation, which had been critical of the Bill in its early stages. Furthermore, it was supported by Lord Colville on behalf of the Conservative Front Bench. Therefore, I think it would be wrong for the hon. Gentleman to force his amendment to a Division, which might have the result of killing a Bill that is widely supported.
The position is such that the plaintiff would have to prove that the defendant was malicious, but it means that a man 755 would not have all his efforts wrecked by some tittle-tattle in a newspaper long after the man has lived down the disgrace of his past. For that reason I hope the hon. and learned Gentleman will reflect before he presses the amendment to a Division.
§ Mr. Ivan Lawrence (Burton)May I ask the Minister this before he concludes? May I first declare an interest: I practise at the Bar. Will the effect of dividing on this clause destroy the Bill for this Session or not? If it will destroy the Bill for this Session, it follows that it is an important, fundamental aspect of the Bill. What is the position about disclosure during the course of a criminal trial? Let us suppose that I am defending someone in whose interest it is to draw a distinction between himself and his co-accused, who has a good character within the definition in this Bill but has a bad character compared with that of my client. The Minister's reaction to that kind of situation will very much dictate my reaction to what he has said.
§ 4.30 a.m.
§ Mr. LyonI can assist the hon. Gentleman easily. In Committee I took out all the references to a criminal trial on the basis that the Bill might be difficult to operate within the context of a criminal trial. But I undertook that the Lord Chief Justice would issue a practice direction which would apply the spirit of the Bill to a criminal trial and that equally we in the Home Office would issue a circular for the help and guidance of magistrates' courts, which would also apply it. But it would be flexible, and it would still be possible for a previous conviction, even though spent, to be used in the context in which the hon. Gentleman referred to it. It would not be a statutory bar, as it would be in other areas. Therefore, this discussion does not affect the issue which the hon. Gentleman has been discussing.
When the hon. Gentleman says that if this is pressed to a Division and that, in effect, were to kill the Bill and therefore this must be an important part of the Bill, may I point out to him that if he merely proposed to move one full-stop and a comma and the House divided on his proposition, that would kill the Bill. It is not the quality of the amendment that matters. If there was a Division 756 and at this hour there was not a quorum in that Division, that would kill the Bill.
If this Bill were coming on at a normal time of the day, the hon. Gentleman would be able to exercise his parliamentary right to divide the House if he so wished. But if he divides the House at this hour of the night, he will kill a Bill which has been through both Houses of Parliament twice and has now won the assent even of its leading critics in the House of Lords, and that would be regrettable at this stage. I ask the hon. Gentleman to withdraw.
Mr. DixonI was interested in what my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) said. I think that the Minister has answered the legal and other points which my hon. Friend raised. But I want to comment on what my hon. Friend said about the lack of proper consideration which had been given to the Bill.
I think that hon. Members on both sides of this House and of the other place will acknowledge that probably there has been no Private Member's Bill which, either in its present form or under previous sponsorship, has gone through such a thorough examination. The sponsors of this Bill and the sponsors of its earlier manifestations have constantly listened to the views of hon. Members, especially those of Opposition Members. Certainly they have listened to the views of the Faulks Committee and others.
All the way along the line, ground has been given. With the positive encouragement of the sponsors, the Government introduced a public interest defence. Further along the line, in another place, there was the amendment which we are now considering and which was in effect a further giving of ground. Perhaps it is not perfect. But we live in a world of realities. We are all sensible men and women, and clearly there must be an element of compromise.
No piece of private legislation has been given such a very thorough study, and I invite my hon. Friend the Member for Burton (Mr. Lawrence) to consider this factor. It has been deeply considered and an enormous amount of ground has been given. I can only repeat that if my hon. Friend presses this matter to a Division he will be in danger of ruining the Bill completely.
§ Mr. BrittanI do not think that I used the word "precipitate", but the fact that we are debating an important aspect of an important Bill at 4.35 in the morning at this time of the year is perhaps an indication that the House has not had an opportunity to consider the Bill in the way that it ought to consider it.
With respect and deference to all that has been said, I think that it would be possible to produce an equal panoply of talent to that which has fallen from the lips of the Minister of people who oppose what is being done by the Bill, even in its amended form. However, I shall not detain the House by doing so, because no useful purpose would be served by trying to produce a competing list of names.
I do not think that in principle the fact that the Bill may or may not fall should be used in terrorem to prevent one putting forward changes which one genuinely and sincerely thinks are desirable. I remain unconvinced that a fundamental change in the law of libel is called for in the form that has been made. I do not find the reasons that have been advanced either cogent or convincing.
There is, however, one further factor to which I should refer. We have heard a lot of talk about the Faulks Committee and its report. I hope that the report will come before us soon and that it will contain recommendations which will be incorporated in a Bill which will be put before the House. I have little doubt that such a Bill could include an amendment to this legislation which would have the effect of restoring the law of defamation to what it has been in the past and to what the Faulks Committee in its interim report indicated that it should remain.
For that reason, and that reason alone, and as I do not object to the rest of the Bill, I do not propose to press the matter to a Division.
§ Question put and agreed to.
§ Subsequent Lords amendments agreed to.