DEFAMATION ACTIONS (Hansard, 28 June 1974)

§ Mr. Alexander W. Lyon
I beg to move Amendment No. 26, in page 8, line 58, leave out 'either'.

§ Mr. Lyon
These amendments rectify an omission in the defamation clause accepted in Committee. The omission relates to the defence of fair comment and, in particular, to the "rolled-up" plea. The matter was originally raised by the hon. Member for Orpington (Mr. Stanbrook), and we have sought to meet his point as well as to maintain for the "rolled-up" plea the elements of justification where the justification can be proved to be in the public interest. The test whether publication is in the public interest is more stringent than the test whether the matter is of public interest, which is the essential requisite for fair comment. When the statement complained of relates to a spent conviction, and where a comment is added, as may 1979 often happen, the more stringent test involved in establishing the truth of the facts must be applied also in the defence of fair comment.
Hon. Members who are familiar with the defamation law will know that the "rolled-up" plea has nothing to do with corsets but concerns the question whether one can assert certain facts and then make comment on the facts. The facts must be justified as being true and the comment on the facts must be proved to be fair. The two are rolled together for the purpose of one defence, and both must be substantiated in the defence. While the fair comment provision was maintained in the Bill, the justification part of the facts might have been difficult to assert. Therefore, we preserved the justification provided also that it was in the public interest to assert the facts.
In relation to a spent conviction, the defence of fair comment will depend on whether the facts, first, are true, and, secondly, are published in the public interest and that the comment is fair.
Amendment No. 26 is purely drafting, for consistency with Amendment No. 27, as is Amendment No. 28, while Amendment No. 29 is consequential.

§ Mr. Stanbrook
I am grateful to the Minister for the amendment which he has proposed to meet the criticism I made in Committee, but it does not remove my objection to the Bill or to the concept of public interest as a defence. An allegation of public interest as a defence will be a matter for consideration by the jury, and no one can say how the concept of public interest will be applied by a jury. When these cases come to court, they will no doubt involve consideration of what is meant by "public interest". It is a phrase of general scope, application and understanding by individuals, let alone lawyers, which may lead to a great deal of confusion.
12.45 p.m.
Juries may well take the view that the object of the Bill is a matter of public interest—in other words, that the Bill's social object transcends the importance of any other consideration, including the desirability for the public to have the fullest knowledge about a matter. It will, therefore, be a difficult procedure to understand and a difficult concept for 1980 juries and courts to apply, and it will lead to great confusion about the law generally.
For example, a reference given for a former employee will have to be in such vague and general terms that it will, in effect, perhaps be more damaging than would be telling the truth about him. One would not take the risk of having to show that it was public interest which justified the disclosure. This is another example in the Bill of the social object overriding the implications for the constitutional liberty of the individual. Therefore, we may well be causing a great deal of trouble for ourselves.

§ Mr. Alexander W. Lyon
If the hon. Gentleman thinks that the average man in the street understands the niceties of the law of defamation, he is a more astute observer of the man in the street than I am. The question is of great complexity and is usually reserved to the esoteric lawyers who practise in this area of jurisprudence.
The hon. Gentleman is confused about the references between qualified privilege and the defence of fair comment. I make no criticism as I notice that in Committee I, too, fell into the same error. Under the Bill, the defence of qualified privilege is left intact, even in relation to spent convictions. Therefore, if a reference is called for and the defence of qualified privilege would cover the reference—which is the normal situation where information which may be defamatory is communicated under a moral or legal duty to some other person—the person concerned would have the defence of qualified privilege anyway. With regard to fair comment, this is a question of saying in public—not between two people who have an interest in communicating the matters between them—something about a man and then seeking to claim that it was fair to say it in the public interest. The question which then arises is: where is it right to allow fair comment for the purpose of the Bill?
We have said that the defence of fair comment shall be retained in certain restricted circumstances. If it is relevant to the "rolled-up" plea, one would have to show that the facts on which the comment was based were in the public interest. That will accord with the general provision in the Bill, but justification as such will no longer be a defence unless 1981 one can prove that it is in the public interest.
The concession made in Committee was generally welcomed as being a satisfactory compromise for all concerned. It is probably right that it should apply equally to the "rolled-up" plea and fair comment as to justification generally.

§ Mr. Alexander W. Lyon
I beg to move Amendment No. 28, in page 9, line 13, after 'adduce', insert 'or require'.
Clause 6(7) speaks of a defendant not being at liberty to adduce evidence. It should be amended so that he is not at liberty to adduce or require evidence.
Clause 2(1) deals with admissibility of evidence in paragraph (a) and comparability in paragraph (b). Comparability should be reflected in Clause 6(7). The amendment makes Clause 6(7) consistent with Clause 1(2)(f) of the new Clause which is termed "Limitations on rehabilitation under this Act, etc".
That is a somewhat involved explanation of a simple amendment which is designed to improve the draftsmanship.