§ The Attorney-General
I beg to move amendment No. 27, in page 12, line 25, at end insert—'10A. Criminal proceedings against a person which become active on the issue or grant of a warrant for his arrest cease to be active at the end of the period of twelve months beginning with the date of the warrant unless he has been arrested within that period, but become active again if he is subsequently arrested.'The amendment implements an undertaking given in Committee to make provision to cover the type of case where a wanted man eludes capture or perhaps even disappears for a long period. The strict liability rule does not continue to apply indefinitely. This arose particularly in Committee and on Second Reading from the Lord Lucan case and the "Gaul" case. We have responded to what was said by introducing the amendment.
§ Mr. Archer
I beg to move amendment No 12, in page 12, line 40, leave out'the case is set down'and insert'the case is included in a list of cases which shall be kept by the proper officer and available for public inspection of cases which it is anticipated will be heard within the ensuing period of three weeks'.
§ Mr. Deputy Speaker
With this, we shall take amendment No. 13, in page 13, line 19, at end add—'16. In paragraph 12, "the proper officer" means—
- (a) in relation to an action in the Queen's Bench Division which is to be tried at the Royal Courts of Justice, the head clerk of the Crown Office;
- (b) in relation to an action (in whatever Division) which is to be tried outside the Royal Courts of Justice, the district registrar for the district comprising the place of trial;
- (c) in relation to an action in the Chancery Division which is to be tried at the Royal Courts of Justice, the cause clerk of the Chancery Registrars' Office;
- (d) in relation to a cause or matter in the Family Division, which is to be tried at the Royal Courts of Justice, the Clerk of the Rules.'.
§ Mr. Archer
Since this is the first time during the stages of the Bill that this proposal has been debated, I hope that the House will forgive me if I take a moment or two longer than my right hon. and learned Friend the Member for Aberavon (Mr. Morris) took in moving amendment No. 9. We have from time to time considered for the purposes of the strict liability rule when proceedings become active, but until now we have not turned our attention to the question of when civil proceedings become active at first instance.
We knew that if the test of setting down, which is the one adopted in the Bill, was adopted, it would be likely to restrict comment for an unduly long period before the hearing, but it was only after the Committee stage had been concluded that an informative and entertaining article in The Times by Miss Frances Gibb on 19 May set out some of the further problems of the press in this connection. She pointed out that it was very difficult to discover whether a particular case had been set down. It seems that she attempted to do so by taking a case which was known to be brought against Sotheby's and Christie's, but it was not known who were the plaintiffs.
953 It was necessary to discover in which division the case was being brought. They guessed that it was probably the Queen's Bench Division. Once the division was established, they were asked whether they had the date when the writ was issued, and they had not. They were asked whether they had the official name of the case, and they had not. It was then suggested that they should look in the general index, but, unfortunately, since cases there are listed alphabetically and they did not know the name of the plaintiff, that provided a problem. In the end, it was a very difficult problem indeed.
In a minority report from the Phillimore committee, Sir Robin Day—as he then was not—suggested that there might be a new sub judice list. It would be published, perhaps, one or two weeks before the trial, and when a case came into that list it would be active. We tried to stretch it a little. We have made it three weeks, but we would not die in the last ditch for that. It might be suggested, why not the warned list? Basically, we think on balance that that would be too long a period and, for those who have to search it, too long a list. We hope that the House will not spend a great deal of time discussing exactly what the period should be and that the Attorney-General will direct his mind to the principle of a solution.
§ The Attorney-General
The amendment started as part of the Phillimore recommendations. The first concern of the Phillimore committee, and one which I am sure the whole House will welcome, was to do away with the gagging writ, which has been abused so much over the past few years. The strict liability commencement point was decided to be well after the issue of the writ or other originating process. In choosing the date for setting down the starting point for a High Court action, the committee made several points which are to be found in paragraph 126. The committee first pointed out that setting down was the moment from which the sub judice rule in the House operated. As far as I know, there has been no difficulty about the application of that rule here.
Secondly, the committee considered the sort of period which is normal in the various divisions of the High Court. The figure it gave for the Queen's Bench Division is not very different from what it is now. The present position is that nearly one-third of actions are tried within six months of being set down, and a total of 80 per cent. are tried within 12 months. In the Chancery Division, things have improved a good deal since Phillimore's day. For all actions except long witness actions, the average period is three months; for long witness actions it is 13 months.
The committee had some doubts about those periods. In paragraph 127, it says that the date of setting down was supported by many of the press witnesses, none of whom had suggested a later date. It seems, therefore, that the Opposition are being plus royaliste que le roi in the amendment. Moreover, despite what it says about setting down, the Phillimore committee seems to envisage a period of up to six months before the trial is appropriate, which is of a very different order from the three weeks proposed in the amendments.
I do not think it has been realised that over 90 per cent. of actions started in the High Court never get to the setting-down stage because they are settled. The area of application of the rule has, therefore, been vastly diminished. In those circumstances, in my view we have got it about right, and the difficulties that would follow from either amendment could not easily be resolved.
§ Mr. Archer
Speaking for myself, I am not sure that I am happy about gagging the press for periods of up to 12 months. As for the press witnesses to the Phillimore committee, I am not convinced that they would be wholly representative of press opinion today to judge from correspondence received by my right hon. and hon. Friends and me. But it is a matter of getting a balance, and as this is the first opportunity we have had to consider it we are not minded to press the amendment to a Division. I promise the Attorney-General that when the Bill he mentioned comes before the House the matter may be debated further.
I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Dewar
I beg to move amendment No. 15, in page 12, line 47, leave out 'the Record is closed' and insert'the petition, summons or initial writ is served'.I am conscious that some of my Scottish colleagues are breathing down my neck, and it behoves me to make short shrift of this amendment. It is worth airing, and it will give the Solicitor-General for Scotland a chance to show his paces.
The amendment caused some argument in Committee, and the Solicitor-General for Scotland and I had a short dialogue inserted into the middle of the lengthier proceedings conducted by our English colleagues. As I understand it, the intention of the Bill in terms of criminal proceedings and the start of the active period of contempt in criminal proceedings and civil proceedings seems to rely on the law of Scotland as recently modernised in judgments such as that of HMA v.Hall.
10. 30 pm
On the civil point—that is, the start of the active period of civil proceedings—I shall read briefly from Lord Emslie's judgment in that case:In the case of the Civil Courts there is no difficulty in dividing the time at which proceedings can be said to commence, and that time is the time of service of the summons or petition or, in the Sheriff Court, the service of the Initial Writ".Originally I tried to introduce an amendment on that, but I was ruled out by the Solicitor-General. I return to the theme with an amended version to achieve the same end, despite a courteous letter that the Solicitor-General wrote to me, dated 5 June.
A number of cases have been canvassed in that direction. I was guilty of rhyming off a number of legal cases and citations in Committee. I paraphrase a long letter, I hope fairly. In his letter, the Solicitor-General said to me that I had misunderstood the lead case, which is Young v. Armour, 1921 ISLT, page 211. The decision in that case makes it perfectly clear in the law of Scotland that it is contempt to quote from the open record. That is based on a contempt that arises from the misuse of confidential material and has nothing to do with the period of activity for the strict liability concept in the Contempt of Court Bill.
I see the argument that the Solicitor-General has used. There is a two-tier arrangement. The argument that lies between us is a fine point, but my views are shared by a number of legal luminaries in Scotland. I have taken the opportunity of raising the subject more than once in the past few weeks. The Solicitor-General wants to keep the distinction between the active period or strict liability period of contempt as defined in the Bill and the different sort of contempt that protects the open record. Originally, 955 I misunderstood the Solicitor-General's position, but I thought—as did the Law Society of Scotland, judging from its memorandum—that there was a danger that contempt could run only from the closing of the record. It is common ground between us that that would be unfortunate. We have agreed that the open record will now be protected.
My view is valid—that it would be better to protect the open record under the Bill and have the period of contempt under this legislation running back to cover the open record so that there is one continuous concept of contempt running all the way through.
The Solicitor-General for Scotland takes the view that that would be confusing and it would be better to have two distinct matters—confidentiality protecting the open record, and the Bill protecting the closed record. That, to me, is mistaken. I feel that there is a greater danger that people will look up what they think is the "bible"—that is, the Contempt of Court Act. They will see that the period of civil contempt runs from the closing of the record and they will forget about the confidentiality point, slip into error, publish and be in trouble.
I do not want to make a meal of this, but I think that it would be better to have it all in the one Act. It would be safer to start contempt at a point which covers the open record, as I have suggested, and does not rely on the knowledge of people who look at the Act and find that something else is not covered and that there is a different sort of contempt which stops them printing from the open record. It would be better to codify—to make a dangerous analogy—and have it all covered by one Act. That would lead to certainty and people would know where they stood. Despite the persuasive and courteous letter, I remain unconvinced by the Solicitor-General's arguments.
§ The Solicitor-General for Scotland (Mr. Nicholas Fairbairn)
If I were to show my paces, I should have to start by advising you, Mr. Deputy Speaker, that in Scotland the word "record" is pronounced with a long "or".
I appreciate the purity of the approach of the hon. Member for Glasgow, Garscadden (Mr. Dewar), but, as in a number of previous clauses, this is not a codification. It is not a replacement of a large number of concepts of the law of contempt under the common law, and it should not be regarded as a biblical codification of the law. That is to say, anybody who reads the Bill regards it as a matter beyond which there is no law or authority. Therefore, for that reason alone, it would be unfortunate if one acted in a way to give the misleading impression that the Bill was exclusive of the law of contempt in all circumstances.
The hon. Gentleman kindly said that I wrote to him. It is true that the open record is protected in law and in contempt for reasons different than that matters are protected under the Bill from the moment of the closing of the record. Other stages may occur between the issuing of the summons, the issuing of the open record and the closing of the record which are nothing to do with the open record, although they may derive from it, and which it would not be contempt to comment upon. Therefore, to put the open record into the same category as the proceedings following the closed record would be unfortunate. Although it might be clean, it could be equally misleading.
956 For the reasons that I gave in my letter to the hon. Gentleman, I believe that the open record is adequately protected and known to be protected in law. I do not believe that anybody will be misled about those matters as a result of the passage of the Bill, so I am satisfied that no amendment is necessary to protect the open record in law. As I say, there are matters that could arise in the process which, if the amendment were to go through, would become the subject of contempt but which presently are not and ought not to be.
§ Mr. Dewar
There are occasions when I have to agree with the Solicitor-General for Scotland and I notice that as the months go by they become increasingly common. They are often on more contentious matters than this, which is, perhaps, a fine argument about style. At least, we are all agreed that the open record is now protected. The difference is about the banner under which the job should be done.
I am not convinced entirely about the Solicitor-General's position, but the hour is late and I certainly do not intend to detain the House and would not dream of inviting anything as extravagant as a Division. I therefore do the best that I can at this stage and beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Attorney-General
I beg to move, That the Bill be now read the Third time.
This has been a long debate, in which hon. Members have dealt with the outstanding problems but with no sort of economy of time. Everyone has had the opportunity to discuss matters. Our debate follows a successful and encouraging Committee stage, during which the Bill was improved. I do not think that the House would wish me to say more than that I commend the Third Reading of the Bill.
§ Mr. John Morris
I, too, shall be brief. Hon. Members have taken part in a worthwhile Committee stage and, to a lesser extent, Report stage. We are grateful to the Attorney-General and the Solicitor-General for Scotland for the manner in which they have steered the Bill through the House. The contributions of the Opposition—I say this without being immodest—have made the Bill better. The Attorney-General has accepted the need for his consent before prosecutions are brought. The manner in which that issue was introduced altered the whole tenor of our approach. It was a major relief to the whole of Fleet Street. I welcome very much the wisdom of the Attorney-General in accepting our amendment and ensuring that it was debated early in our proceedings.
On the protection of journalists and the disclosure of sources, I pay tribute to Lord Salmon for the way in which he inspired the Opposition Front Bench to move the new clause. I am also grateful to the Attorney-General for the manner in which he accepted the proposal.
In regard to clause 8, the Attorney-General has been more helpful than the Lord Chancellor, who proved exceedingly stubborn in failing to produce a little list, although much pressed. The position in which we now find ourselves may be imprecise and uncertain, which was not the object, as I understood it, of the Bill. I hope that the matter can be examined again in the other place.
Although it was my wish that the Government would go much further on the question of tape recorders, I hope 957 that the Lord Chancellor's advice and the practice directions will have a considerable effect and meet a substantial proportion of the day-to-day problems.
I listened carefully to what was a great debate on the jury system. There was genuine and real concern on both sides of the House. The hon. and learned Member for South Fylde (Mr. Gardner), my hon. and learned Friend the Member for Abertillery (Mr. Thomas) and a host of hon. Members were concerned about any encroachment on a system that has stood the test of time. My hon. and learned Friend read a quotation from Blackstone, who foresaw this situation many years ago, when he said:So that the liberties of England cannot but subsist so long as this palladium remains secret and inviolate not only from all open attacks (which none would be so foolhardy as to make) but also from secret machinations which may sap and undermine it … And however convenient these may appear at first … that though begun in trifles, the precedent may gradually increase and spread.I fear that the Government will rue the day when they did not take more cognisance of the views expressed so strongly in the House. I hope that the other place will re-examine what is an important thin end of the wedge as regards a system that has been revered in the House and has been part and parcel of the principles of our constitution.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed, with amendments.