HC Deb 16 June 1981 vol 6 cc917-20
The Attorney-General

I beg to move Government amendment No. 20, in page 3, line 20, leave out clause 8.

The amendment is the consequence of an undertaking that I gave in Committee. Because of the difficulties which I was told were being experienced, especially by editors of provincial newspapers, I felt that unless I could find a suitable list that could be attached to the then clause 7 by the time that we reached Report, I would abandon clause 7, which is now clause 8. In spite of a great deal of endeavour, and some skilled thinking by Sir Noel Hutton—we have benefited from that throughout the course of the Bill—we have been unable to draw up a list that does not draw distinctions that are too hard to defend. I thought that we might have got it right, but because of objections to a list of such length we decided to abandon clause 7, now clause 8.

As has been said, it means that the uncertainty remains, although in a slightly different form. It will no longer be necessary for in-house lawyers or Mr. Carter-Ruck to construe the meaning of old clause 7. It puts the position back to what it was before the Bill was published.

Mr. Archer

I hope that the Attorney-General will not think that there is no pleasing the Opposition. However, I am bound to say that I share the anxiety that was referred to in a point of order raised by my hon. Friend the Member for Lewisham, West (Mr. Price). I hope that the House will forgive me if I take a few moments to explain how we got ourselves into this position.

The clause is included in the Bill because of the difficulty raised by the decision in another place in the case of the Attorney-General v The BBC. The question that arose was about which inferior courts and tribunals the High Court had jurisdiction to punish for contempt. The Judical Committee in another place made it clear that there were good reasons of social policy why the list should not be extended too widely. In Committee I quoted from the speeches of Lord Salmon and Lord Fraser. In the interests of time I shall not repeat them. They were not anxious to widen the scope. It was agreed that it should be confined to courts.

Lord Scarman used the expression "which exercised the judical power of the State." and that expression found its way into clause 8. That is surprising, for two reasons. First, it is clearly a well-chosen expression when giving judgment in litigation, where the whole chain of reasoning has already been set in context. It is quite out of place as part of an Act of Parliament, where there is no way of deciding to which courts and tribunals it applies, and where it might apply separately to all existing 500 tribunals.

Secondly, Lord Scarman clearly used that expression to limit the category to which it applied. He was trying to define courts as opposed to tribunals. In the Bill the expression is all inferior courts, tribunals and bodies". The expression has been used not as Lord Scarman intended, namely, to limit the category, but to make the category as wide as possible.

We criticise the decision on two grounds. It was criticised in another place. First, it is much too wide. It would mean that editors could not safely publish anything until they had considered the impact on all 500 categories of tribunal and for each separate one in each locality that might be affected. Secondly, it is illdefined. Editors could never be sure to which of the tribunals and bodies it applied. As my right hon. and learned Friend the Member for Aberavon (Mr. Morris) said on Second Reading, we are dealing not only with the editors of large Fleet Street publications, with batteries of lawyers at their elbow, but with the legal advisers to local publications, on which so many of us depend for telling our local electors what we are doing.

In Committee in another place it was suggested that the Government might substitute a list of bodies for this general attempt at a definition. The Lord Chancellor said that it was impossible to produce such a list. He said, in effect, that his Department, with all its resources, could not produce a satisfactory list, implying that the list should be produced by newspaper editors with far fewer resources.

On Report, Lord Fraser of Tullybelton produced a list to demonstrate that the exercise was possible. It was criticised by the Lord Advocate only on the ground that it was not satisfactory because, for example, it did not include mental health review tribunals. It seemed to us that that omission was fairly easy to rectify. It was a simple matter to reproduce the list and to add mental health review tribunals. On each subsequent occasion when it appeared that an item was missing from the list, it was always possible to amend it.

In Committee in this place we reproduced the list with the addition of mental health review tribunals. It was at that stage that the Attorney-General properly asked for a period of grace to reconsider the issue, and we agreed. What is sauce for the goose may have been sauce for us too. After we gave the matter further consideration, and after we had had discussions with my hon. Friend the Member for Lewisham, West and some of those who were kind enough to write to us, we decided that the list was too long and that it was probably best not to have a list at all.

The then list included tribunals that did not require protection, or where the balance was against imposing on editors the burden of daily research into their case lists. In particular, we thought that we should not have added mental health review tribunals. If someone is detained in a mental hospital, his case may be considered by experienced tribunal members sitting with a legally qualified chairman. They are unlikely to be diverted from their proper course by newspaper comment. In such circumstances there might be others who wish to discuss the case. Someone may wish to alert the public of the circumstances or communicate them to their Member of Parliament. There seemed to be no reason why both avenues should not be explored simultaneously.

Similarly, it was pointed out to us that an industrial court, the successor to the National Industries Regulations Court—I think the only body in respect of which the Phillimore committee discussed this matter—was not likely to require protection. An industrial court is likely to hear some of its most important cases at the very time when those participating are subject to the maximum public interest—for example, when an industrial stoppage takes place.

We, too, had our second thoughts. We thought that we would like to see the rule applied to a much narrower field. When the Attorney-General was trying commendably to produce a list that would satisfy everyone—as he said, it would have been rather a long list—we were being persuaded that if a list were required at all it would have to be a short one.

Another matter that was not mentioned very much in Committee but which we thought should be considered, was mentioned in another place by Lord Wigoder, who spoke of the distinction between contempt under the strict liability rule and contempt in the face of the court. He suggested that perhaps a tribunal should be protected from violent interruptions and abuse. I take leave to doubt whether the law, even outside the rules of contempt, is not sufficiently robust to deal with any situation of that sort that is likely to arise. In any event, it does not follow that such an event should be brought within the strict liability rule.

Throughout all these debates we have not really heard of any need for the rule. Not one example has been cited of a problem created by prejudice, or the risk of prejudice, to proceedings in a rent tribunal, in a mental health review tribunal or in an industrial tribuanl. If the matter had proceeded, we would have asked questions. 7.45 pm

The Attorney-General is proposing to withdraw the clause. The difficulty is that that restores the common law, as it has been found in another place, to its virgin condition. The difficulty about that is not that it is too wide, because the decision in the Attorney-General v The BBC was clearly authoritative on a restrictive interpretation, but that it is rather vague.

We have had to reconsider our position. It seems that we should all have an opportunity to think about it again. It is our view that we should not resist the Attorney-General's proposal, although it leaves the law in an unsatisfactory state. Discussion should continue when future Bills, which the Attorney-General has been promising, appear before us, when we shall have an opportunity to tidy up all the loose ends that apparently will still be flapping about even after the Bill has reached the statute book. We are content to leave the matter in that state for the moment. I do not wish to pretend that it is totally uncontentious but it will not be divided upon.

Mr. Christopher Price

I do not wish to oppose the amendment. The Attorney-General has done the only thing that he could have done by removing the list. However, its removal goes clean against the declared object of the Bill, which is to produce certainty where uncertainty has existed. There is now once again, a great deal of uncertainty about which tribunals will be considered by the courts to come within the rule and which will not.

I shall go slightly further than my right hon. and learned Friend the Member for Warley, West (Mr. Archer). I do not know how soon the Bill will return to another place, but I much hope that the Attorney-General will continue to try to find some way, either while the Bill is in another place or on some future occasion, of making it clear to the press where it stands on tribunals.

We have moved quite a long way further forward in tidying things up in other respects. I do not think that the press on the whole is especially worried about commenting on the affairs of tribunals. It is right that we should allow as much free comment as possible. However, because the debate has been so dominated by lawyers it is necessary to stress that editors and journalists deserve to know where they stand. We must admit that in this instance we have failed to give them the certainty that they wanted, not—withstanding the Phillimore report and the Bill.

I echo the words of my right hon. and learned Friend. Although the Attorney-General has failed on Report I hope that he will not cease his quest. I hope, further, that at some time we shall be able to make it clear to the press exactly which judicial proceedings, including tribunal proceedings, it may comment upon freely.

Amendment agreed to.

Back to
Forward to