RESTRICTION OF PUBLICATION OF EVIDENCE (Hansard, 18 June 1976)

§ Mr. Nicholas Fairbairn (Kinross and West Perthshire)
I beg to move, That the clause be read a Second time.
The effect of this new clause is quite simple. Under the 1926 Act, publication in a divorce case in Scotland is restricted to the names, addresses and occupations of the parties and witnesses, a concise submission of the charges, defence, and counter-charges in support of which evidence is to be given, and submissions on any point of law arising in the proceedings of the court thereof. That is the present restriction, and that restriction, which was brought in after the first baby Russell case, applied to the law of England and of Scotland to prevent the private details of private family life from being published in the Press.
In effect, however, that provision is often frustrated, because the Act does not 960 go on to restrict publication of the judgment or opinions of the presiding judge. Therefore, while there is no publication of personal and private details of private lives during the case, as soon as the judge, in his judgment, refers to them, the law as laid down and agreed is frustrated, because the Press is permitted to publish what the judge says about the evidence, even though it cannot publish the evidence itself.
Accordingly, the effect of the clause is to restrict the publication in addition, allowing that of the interlocutor of the judge who gives the judgment, that is to say, states his finding of divorce, expenses, custody, and so on. It does not allow publication of the discussion of the evidence which in his opinion frustrates the purpose of the clause under the 1926 Act.
I have had the courtesy of a very full letter from the Lord Advocate, for which I particularly thank him. I hope that he will not mind if I refer to the argument that he puts forward in the letter, because I must rebut in advance the argument that he will propose today. He says It is an unhappy fact of life that the more intimate details of people's private lives, and particularly those of well-known people, are of consuming interest to many and that this is recognised, and fed, by certain newspapers. It is an unhappy fact of life, and the 1926 Act attempts to put a stop to it, but there is a loophole, which my clause seeks to close, and it seems to me that it was to prevent the consuming interest of people in the private details of the lives of others which are none of their business that the 1926 Act was passed. I hope that my clause will prevent the frustration of that Act.

§ The Lord Advocate (Mr. Ronald King Murray)
As the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) said, his clause is based upon the precedent of the 1926 Act. The main change made in it as now presented, compared with what he tabled in Committee, is that he has sought to allow publication only of interlocutors of the presiding judge, excluding everything else. I am bound to accept that to that extent he goes part of the way towards the argument I put against him in Committee. I am grateful to him for that in yielding to some extent to my 961 argument. He has improved the clause. It is better that way, because it does not have the deleterious secondary effect that his earlier clause would have had, of tending to make the judge think twice when writing his opinion and, instead of putting down honestly and straightforwardly the reasons for his judgment, perhaps having to do a double exercise and consider what could and should not be reported.
I am grateful to the hon. and learned Member for writing to me. I have considered the matter further and I am grateful for his remarks about my letter. It would he wrong, however, to give effect in this context to the measure that he proposes. The 1926 Act, upon which he founds his argument, was a Great Britain measure, enacted in response to extensive and sensational coverage of divorce cases at the time. The Act was apparently intended to protect public morals and family life which, it was thought, would be endangere—corrupted and undermined—by these reports. It has a part to play, and to that extent I have sympathy with the hon. and learned Gentleman.
Obviously to some extent it extends privacy to parties to matrimonial causes. Their privacy is better protected with this measure than without it, but I must ask the House to reject the clause on grounds of principle. We are setting the desire to give some additional protection to the parties in matrimonial causes against the more important vital principle that publicity is the authentic mark of judicial as distinct from administrative procedure. We in this House should not lightly abandon the conception that judicial proceedings in matrimonial proceedings ought to be basically open and public, and that only where a strong case is made should a restriction be imposed upon that. If we do so in a particular class of case it should only be where there is a clear need and demand for it.
Apart from the 1926 Act, exceptions to the principle of open justice have been few and far between. Mostly, they seem to concern matters affecting children, where it is important to prevent publication of material which could lead to their identification. Examples would be children's hearings and adoption proceedings.
962 It is clear that Parliament has jealously guarded (he right of the public to know how justice is being administered by the courts and has upheld the right of the Press to publish the observations of judges. Justice must not only be done but must manifestly be seen to be done, and that is the principle upon which I stand.
Against the public interest one has to balance the interest of private persons in their privacy, and if a significantly widespread feeling of dissatisfaction on this matter were to develop in Scotland there would be a case for instituting some degree of inquiry to elicit views on the problem from interested parties and to formulate the proposals. But I would have thought that one would want the widest discussion for a matter of this kind before putting forward legislative proposals.
I am not aware of any significant demand in Scotland for a restriction on publicity going beyond the restriction in the 1926 Act and I suggest that the hon. and learned Gentleman's views are not very widely shared. As I said in Committee, the Press is an essential watchdog of our freedom, and one should be reluctant to exclude the Press from court proceedings, and particularly from access to the judgment of the court, because that is when a judicial determination is made on issues which have been tried before the court. It would be an unhappy day if we were to say that in proceedings, even matrimonial proceedings, the Press and public should not have access to the full reasoning of the court in reaching its decision, so I would oppose the merits of the amendments for that first reason."—[Official Report, Second Scottish Standing Committee; 7th April 1976, c. 210.] On that point the hon. and learned Gentleman's amendment is worse than the one he put forward in Committee, because if only the interlocutor can be published one has no access to the reasoning of the judge, and I would have thought we would end up with the worst of all possible worlds.

§ Mr. Fairbairn
I am obliged to the Lord Advocate, although I do not accept any of his reasoning. If one wants access to the opinion of the judge one can read it in the law reports, which is the proper place for it. That does not seem to me to be an argument for revealing the details of the private lives of those who go through the divorce 963 Courts—and many who have been there have made the complaint. No one else will obviously do so. It does not seem to me that exposure of the details of their private lives has anything to do with justice being manifestly seen to be done.