§ CONFIDENTIALITY OF DOCUMENTS
'The obligation to maintain the confidentiality of the contents of a document shall not extend to the disclosure of any part of the contents which have been read aloud in open court in any proceedings for the purpose only of assisting any person to report or comment upon those proceedings'.—[Mr. Archer.]
§ Brought up, and read the First time.
§ Mr. ArcherI beg to move, That the clause be read a Second time.
This is what has become known as the Harriet Harman clause. The House is familiar with the story. I do not propose to embark on a disquisition on the criticisms which have been made of Ms Harman personally, or on a refutation of those criticisms, which has been fully elaborated, or to repeat the testimonies which have been given in the House by those who know Ms Harman as to her personal integrity. I hope that within the next few weeks she will be here in the Chamber to speak for herself. Nor do I propose to set out at length the issue of principle. We discussed it Airing the debate on the Contempt of Court Bill last year. It was discussed in another place during the course of debates on the Administration of Justice Bill and daring our debates in Committee. I shall try to formulate it briefly, and I hope fairly, although I appreciate that brevity inevitably means leaving out considerations which fairness might otherwise enjoin.
We begin with two rules. Each is a wholly admirable rule made for the best of reasons. The problem arises when they come into conflict. The first is that legal proceedings in Britain take place in public. Anyone who hears them can relay what has taken place to all and sundry. The public know how our legal system operates. No one is dispatched after a hearing in a locked committee room before a cabal. A person's fate is decided openly in the healthy light of day. If a trial is conducted improperly, the shortcomings are known and they can be rectified. If the system itself is imperfect, the public are aware of it and can demand an improvement.
Where there are overriding reasons for not making the proceedings public they may be held in camera, but that is wholly exceptional, and if it were to happen frequently it would no doubt give rise to proper complaints. It was said in Committee that when something is said in court it is in the public domain. Indeed, to facilitate that rule, there is qualified privilege from defamation proceedings for a fair and accurate report of 'what has been said in court. That is one rule.
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The other rule relates to the process of discovery. In order that justice may be done, the law requires that in a civil action each party shall disclose every document in his possession which is relevant to an issue in the case. The other party is entitled to see it and, where it bears on the subject matter, to refer to it in the course of the proceedings. Again, there are exceptions, but they are clearly formulated, and if a specific document is to be excepted, it has to be shown that it falls within one of those exceptions. But because the documents have been disclosed solely for the purpose of the proceedings, the other party must use them solely for that purpose. They may contain information which is highly confidential. They may be highly embarrassing to the person who produced them.
Disclosure exists in the interests of justice and it ought not to be taken further than is required by the interests of justice. Those are the two rules, both of them unexceptional. What happens when they conflict?
Let us suppose that a document disclosed upon discovery for the purpose of a particular case is read aloud in open court in the course of those proceedings. There are several solutions which we might adopt. We might say that a document shall never be read aloud in court if any party objects; it shall be read silently and every person who requires a copy for the purpose of the proceedings shall be provided with a copy. Sometimes documents are read silently.
We might say that when a document is produced on discovery, even if it is read aloud in open court, no one shall be entitled to repeat its contents. We might say that when a document is read aloud it becomes like anything else that is said in open court—it may be repeated by anybody. The document, or a copy of it, is simply like a shorthand note of what has been said in court.
We might say—as my hon. Friend the Member for Lewisham, West (Mr. Price) suggested in Committee—that we should ensure that a journalist who wished to use a tape recorder while a document was being read out had a clear right to do so, and that he should then be permitted to publish whatever is on his tape recording.
There would be arguments for any of those solutions. We could not have all of them, because they are mutually inconsistent, but there would be arguments for any one of them. We in fact adopt none of them. We adopt a solution which, in my submission, is based on the most irrelevant of distinctions. We say that the contents are no longer secret once a document has been read aloud in court. Anyone who has heard it read may recount its contents to his friends. He may relate them in a publication to his readers. He may shout them from the house tops, however embarrassing they may be for the owner of the document. If he is able to take down the contents in shorthand as they are read out, he can make them known word for word. If he is permitted to use a tape recorder—as he well may be under the present system—he may record them and publish what is on his tape. If he cannot get the words down, or if he is not sure of the accuracy of the transcript, he can check it against the document if he can somehow obtain possession of it. Only two people in the whole world are not entitled to disclose what has been read out—the other party to the action and his solicitor.
In Committee the hon. and learned Member for Hemel Hempstead (Mr. Lyell), in a very persuasive intervention, suggested that since there is a fair prospect that other 262 people may not be in court, or that they may not be disposed to repeat what they have heard, or that a journalist may not have taken down what was read out, there is a better prospect of confidentiality if we ordain that the party and the solicitor—who would be most likely to have a copy of the document—should not reveal it, although anyone else may do so. It is a pragmatic solution, but it is the most unpredictable and the most uncertain solution of all, because it achieves neither objective. It achieves the worst of all worlds. It does not safeguard the owner of the document and it impedes the free distribution of information, depending on the pure eventuality of who happened to have been in court and heard it read and whether he managed to catch its contents. If a journalist knows that it is to be read out—and no one can be prevented from warning him in advance that it may be—it seems that he has to decide.
As my hon. Friend the Member for Lewisham, West said in Committee, a journalist might strive laboriously to take down every word in shorthand. He would then risk having misheard a word or having left something out. Alternatively, he might abandon all attempts to report the reading, and risk finding that some more assiduous rival had scooped him.
The hon. Member for Islington, South and Finsbury (Mr. Cunningham) urged in Committee that, if confidentiality is so important, perhaps it should be protected, but in that case it should be protected in relation to all that is said in proceedings, whether or not the matter is read from the document and whether or not it is taken down in shorthand.
In Committee the Solicitor-General confirmed that the Lord Chancellor had already said in another place—as we knew—that he was carrying out consultations. It was not possible then to give a definitive answer and it may be that it will not be possible to give a definitive answer today. The official Opposition will fully understand if the Solicitor-General has a difficulty about that. It may be that what we are discussing today are procedures.
In Committee the Solicitor-General was able to go a little further than that, because he told us that the Lord Chancellor was proposing to refer the matter to the Law Reform Committee. There was some criticism of that proposal. Some anxieties were expressed, and I say at once that I share them. That does not entail any suggestion that the Law Reform Committee is not a body of very distinguished lawyers, well able to grasp the arguments for and against any proposal for law reform. I hope that it was not a suggestion that they are not capable of approaching the matter with open minds, for they are trained to approach any matter with an open mind. There is certainly no criticism of the distinguished chairman of the committee, Lord Scarman, although, as he sat on appeal in the Harman case, he may feel that he would prefer not to be involved.
The criticism is simply that the Law Reform Committee is a group of distinguished lawyers. I do not believe that there is such a thing as a lawyers' view of the question, any more than there is a journalists' view. Some lawyers would emphasise the importance of confidentiality; some might be more impressed by the importance of freedom of information. But when we have a highly controversial matter in which a group of people, such as a substantial proportion of the journalists' profession, have a clear interest, and where we are dealing not with a highly technical point of lawyers' law but with a question which 263 has very sensitive political connotations, it is better for it to be considered by a more broadly based committee. If it is not, then, however objective and dispassionate the members of the committee may try to be, it will be hard to persuade the public that a more representative group would necessarily have arrived at the same conclusion.
I hope that we shall be told today that, even if the Lord Chancellor has not yet reached a conclusion on the matter, he has reconsidered it and has referrred it for advice to a body which includes lawyers—among them solicitors in general practice who encounter the problems daily—and journalists, and perhaps even members of the reading public with an interest in reading about such matters. I hope that when the Solicitor-General replies to the debate he will give us a little more cheer than his hon. and learned Friend the Minister of State was able to give us in the last debate. At this stage we shall be happy to listen to what he has to say.
§ Mr. Christopher PriceI can no longer remember which Harman debate this is since we have had so many of them on the Floor of the House and in Committee. I wish that my party had selected last Thursday as the date for the Peckham by-election so that Miss Harriet Harman could have made her maiden speech on a subject on which she is more expert than anyone else. Unhappily we shall have to wait another 10 days before her arrival among us. I shall do my humble best to try to say some of the things that she might have said.
In the end, the House will have to put right the legal nonsense caused by the 3 : 2 House of Lords judgment—the Diplock versus Scarman judgment—that was finally reached. The quotation that I like best in all the legal reports is that in Scott versus Scott in 1913 where it is stated:
Every court of justice is open to every subject of the King.That is a splendid statement of how our courts ought to operate. When the Harman case got to the Lords, Lord Diplock invented a new legal rule in finding against Miss Harman. As a member of the National Union of Journalists, I resent this rule more than anything else. Lord Diplock said:There are two kinds of reporters of proceedings in courts of justice. One kind consists of those who report cases for the regular series of law reports that are published to inform the legal profession of the reasons expressed in judgments that constitute the raw material from which binding precedent is distilled; the other kind"—one can hear the tone of voice change—consists of those whose metier is to produce fair and accurate, though it may be much condensed, contemporaneous accounts of what happened in the course of the day's proceedings in court.Lord Diplock then distinguished between the two kinds of journalists, as Lord Denning did in the Court of Appeal.Parliament cannot allow the judges to divide a profession such as journalism into two so that one kind can report the proceedings of the courts and the other kind cannot. That is what happened in the Harman case, and it is a complete absurdity. The courts must be open. We made a little progress last year so that lawyers and journalists are now allowed in certain cases to bring tape recorders into court if their shorthand is not up to the necessary standard to take down every word. It is absurd for the judges to invent complicated rules after such changes. The invented rules say that even if things are read out in open court, nevertheless they must not be disclosed if someone did not happen to be there, with wrists of steel, 264 taking it down in shorthand or using a tape recorder. 'That is a complete absurdity arid laymen in the House should make that clear to the professional legal people who have invented this nonsensical and absurd doctrine.
That is why I strongly support the plea of my right hon. and learned Friend the Member for Warley, West (Mr. Archer) that the resolution of the case must not rest with a number of judges, however eminent, in the Law Reform Committee, but must be considered—if it has to be considered outside the House—by a group consisting of lawyers of both sorts and, particularly, journalists.
More than anything else, the Harman judgment is an anti-journalist judgment. It makes journalists uncertain where they stand in reporting the High Court and unsure of their rights in going for information that they have heard with their ears, but have failed to get down accurately in shorthand or failed to record accurately with a tape recorder.
I am sure that the matters will be sorted out in a few years' time, but the Solicitor-General promised us in Committee that he would come back with further news of how he was getting on with his consideration of the matter. I sit down in the expectation of good news from him at last.
§ The Solicitor-General (Sir Ian Percival)I am happy to tell the hon. Member for Lewisham, West (Mr. Price) that I come bearing news, though only time will tell whether it will be enough to make him happy.
I apologise for my absence from part of the debate. It is the only part of the proceedings on the Bill that I have missed. I told the right hon. and learned Member for Warley, West (Mr. Archer) that I would be away and I am obliged to him for telling the House that I had done that.
I also appreciate the fact that my hon. and learned Friend the Minister of State, Home Office spoke on the new clauses relating to coroners. There is no difference between us, but responsibility for matters relating to coroners rests with the Home Office and it seemed proper, therefore, that a senior Home Office Minister should tell the House about the policy of his Department.
One ground alone will be sufficient to enable me to ask the House to reject the new clause. It is the consultations and so on for which preparations are being made. We are dealing with a difficult subject and there are many views to be taken into account. Outside the House people can discuss, rather than debate as we do, and everybody's views can be taken at first hand. We all agree on that, but we have not reached agreement on the appropriate method of consultation.
My noble and learned Friend the Lord Chancellor undertook to consult widely and asked only the opportunity to early out that undertaking. In his name. I ask for the new clause to be rejected or not pressed, so that he may fulfil that undertaking.
Let me give a progress report on what is being done. I do not suggest that any of the vehicles that present themselves are ideal. We are discussing an unusual, important and interesting point which has many facets. We should be lucky to find a ready-made vehicle for looking into it, but that does not mean that we should automatically look for an ad hoc vehicle and ignore the existing ones. Two obvious candidates were the Law Commission and the Law Reform Committee.
I was asked in Committee what would be par for the course as regards timing with either of those bodies. That 265 was a fair question. We cannot consider the Law Commission because of its present work load and the time that it would take to conduct as full an inquiry as we agree is essential. The alternative is the Law Reform Committee, and I can report some progress on that matter. My noble and learned Friend the Lord Chancellor has appointed Mr. Justice Bingham to chair a sub-committee of the Law Reform Committee. Plainly it would not be appropriate for the chairman of the committee, Lord Scarman, to carry out that task, even if he had the time, but we are fortunate that Mr. Justice Bingham will preside over the body.
The terms of reference of the Committee are:
To examine the duty owed by a party to proceedings or his solicitor not to use documents disclosed to him on discovery for any purpose unconnected with those proceedings and to consider whether any changes in the law are, in the opinion of the Committee, desirable.In those terms of reference we are putting to the committee the matters that have been complained about in our debates. No qualifications or inhibitions are built into the terms of reference and I hope that the hon. Member for Lewisham, West will regard it as a step in the right direction.
§ Mr. Christopher PriceIt could hardly be called a step, and only time will tell whether it is in the right direction. Can the committee receive oral or written evidence, and is there a mechanism by which it can inform itself of the real problems faced by journalists in reporting cases?
§ The Solicitor-GeneralThose matters have been decided. I wish to mention the further possibilities on which decisions have not been taken. As the right hon. and learned Member for Warley, West said, there are regular members of the committee, but there is a power to co-opt, and my noble and learned Friend is considering whether that power should be exercised in this case. That is one reason why I cannot inform the House of the membership of the committee. I am authorised by my noble and learned Friend to say that—which might be seen as an invitation to those who wish to make submissions to do so. The committee may examine witnesses and receive oral and written evidence. It would be only too pleased to obtain the views of all those who are interested, over the widest possible spectrum. The onus will shift slightly to those who wish to express their views.
That is the progress to date. The choice of chairman and the settling of the terms of reference are important steps and I hope that they will satisfy hon. Members whose interest in the matter is substantial. I hope that the right hon. and learned Gentleman will withdraw his new clause after hearing the progress report. However, I must make some more remarks to try to restore the balance, because there are different views on the subject. Unless I do so, others who are listening might have a rather distorted view.
The matter does not concern the freedom of the press, nor do the points put forward by the hon. Member for Lewisham, West arise. In our legal system we have a vigorous process of discovery. If I have documents that I do not wish my opponent to see because they may be to the detriment of my case, I shall have a built-in reluctance to disclose them. However, our courts say that there must be no nonsense, that one must disclose the documents and 266 that one's solicitor must make an affidavit stating that all documents that exist have been disclosed. That factor contributes powerfully to the ability of our courts to get at the truth and to see that justice is done. We should be careful not to do anything that weakens that position and that makes the person who is forced to disclose documents that he does not wish to disclose even more reluctant to do so. If I disclose documents to my solicitor, I should be surprised if he used them for any purpose other than the case, but if I must disclose documents to my opponent's solicitor, I should be horrified if there was a suggestion that he could use them for any purpose other than the litigation.
That is the origin of the rule. I know that there are differences of opinion about it, but I do not accept the point of the hon. Member for Lewisham, West—that a new rule has been cooked up. The inquiry will allay fears on that point.
The rule does not concern the confidentiality of documents. They remain confidential until they have been read in court, when all confidentiality is gone. However, a solicitor into whose possession they have been put must not use them for any purpose other than for the action. Once a document has been read in court it is in the public domain and anyone who has heard it or who can ascertain its contents is free to make whatever use of it he wishes.
I do not underestimate the practical difficulties to which the hon. Member for Lewisham, West referred. A reporter may not be in court when the document is read. No one can be everywhere at the same time. Perhaps one of his friends said "There was some hot news in court but I did not take a note of it". The court does not impose a residual duty not to breach confidentiality. The reporter may not have attended the court, he may not have realised the importance of a document or his shorthand may not have been fast enough to write it down, but that is not the fault of the rule.
It must also be remembered—I have not referred to the Harman case because the inquiry will go beyond that—that none of the questions raised by the right hon. and learned Member for Warley, West and the hon. Member for Lewisham, West about reporting are relevant to the Harman case. What Miss Harman did—I express no view about whether it was right or wrong—was to give the papers to an individual not because he wanted to write a report, either for the law reports or the daily press, but because he wanted to use them to write a book about prisons. I am speaking elliptically rather than filling in the details, but this was not a case of a reporter wishing to see the documents to write a report in the newspapers the next day—[AN HON. MEMBER: "That is irrelevant."] It is not irrelevant. Many other things have been said today that are irrelevant and I am seeking to restore the balance a little.
Different views have to be considered on all of these matters. They will be the subject of much fuller examination in the inquiry that I hope will now be near to getting under way. The House may stick pins into me and my right hon. and learned Friend the Attorney-General as much as it likes, and may urge us to get on faster and to do one particular thing or another. However, the appropriate thing for the House, rather than to consider the new clause further, is to wish godspeed to the body that will examine this important and interesting matter.
§ Mr. ArcherI am bound to say, without meaning offence, that certain distinctions that the Solicitor-General made left me a little puzzled. I do not see why it matters that in a particular case the reason why someone wishes to refer to the documents is that they want to write not for a newspaper but for a book. That is not a relevant distinction, and the Solicitor-General is not entitled to say that this debate is not concerned with the freedom of the press, because it clearly is. I have said, I hope fairly, that it relates to the conflict of two principles. The hon. and learned Gentleman cannot say that it is concerned with one of these principles but not the other.
However, we derive certain satisfaction from the debate. First, it is a matter of great satisfaction that the inquiry is being chaired by a very distinguished judge, Mr. Justice Bingham, and we would not have sought to improve on that.
I note what the Solicitor-General says about the power to co-opt and from the fact that he said it I hope that it will be impressed on the minds of those who are in a position to exercise the power.
I was pleased to hear the Solicitor-General emphasise that the inquiry will be entitled, and I assume happy, to receive written evidence and to hear witnesses. I understand that the hon. and learned Gentleman cannot commit the inquiry, but as he said that I assumed that these matters do not go unsaid elsewhere.
In those circumstances the Opposition are content to leave the matter where it is at the moment, and I respond to the Solicitor-General's invitation to wish godspeed to the inquiry.
I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.