HC Deb 24 June 1996 vol 280 cc106-15

'(1) The Prescription and Limitation (Scotland) Act 1973 is amended as follows.

(2) In section 18A (limitation of defamation and other actions), for subsection (1) substitute— (1) Subject to subsections (2) and (3) below and section 19A of this Act, no action for defamation shall be brought unless it is commenced within a period of one year after the date when the right of action accrued.

(3) In section 19A (power of court to override time-limits, etc). (a) for subsection (1) substitute— (1) Where a person would be entitled, but for any of the provisions of section 17 or section 18 and 18A of this Act, to bring an action, the court may, if it seems equitable to do so, allow him to bring the action (or to bring any specified cause of action to which the action relates) notwithstanding that provision. after subsection (1) insert— (1A) In acting under this section in respect of causes of action falling within section 18A of this Act, the court shall have regard to all the circumstances of the case and in particular to—

  1. (a) the degree to which the operation of section 18A of this Act prejudices the pursuer or any person whom he represents;
  2. (b) the degree to which any decision of the court under this section would prejudice the defender or any person whom he represents;
  3. (c) the length of, and the reasons for the delay on the part of the pursuer;
  4. (d) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the pursuer until after the end of the period mentioned in section 18A—
    1. (i) the date on which any such facts did become known to him; and
    2. (ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and
  5. (e) the extent to which, having regard to the delay, relevant evidence is likely—
    1. (i) to be unavailable, or
    2. (ii) to be less cogent than if the action had been brought within the period mentioned in section 18A.

(1B) In the case of an action for malicious falsehood brought by a personal representative, the references in subsection (1A) above to the pursuer shall be construed as including the deceased person to whom the cause of action accrued and any previous personal representative of that person."

(4) The amendments made by this section apply only to rights of fiction arising after the section comes into force.'.—[Mr. Brooke.]

Question again proposed, That the clause be read a Second time.

Madam Speaker

I remind the House that with this we are considering amendment Nos. 41 and 42.

9.5 pm

Mr. Brooke

I shall resume where I was interrupted by a most worthwhile Bill, which I am happy to say has now been carried.

At the moment of interruption, I was saying that I am conjoined in the new clause and the consequential amendments with my hon. Friend the Member for Eltham (Mr. Bottomley). He raised the same matters in Committee, where he was unable to move what is now new clause 11 but stated his intention to pursue the matter further on Report.

My hon. Friend warned me that the intercalated nature of the debate could prevent his being present in the Chamber, but he is with me in spirit. As the heart of the new clause lies in harmonising the law in Scotland with that provided for elsewhere in the Bill—notably in reducing the three years in Scotland to the single year provided in the Bill—I should make it clear that I do not have a single drop of Scottish blood and that, if I trample in any way on Scottish sensibilities, I hope that it will be attributed to the insensitivities of a Sassenach, albeit laced with Welsh and Ulster blood.

I tabled the new clause because media constituents asked me to do so at the last possible moment in the passage of the Bill. I acted immediately, without undertaking any research, to enable a debate to take place. As the matter was debated in Committee, I do not propose to rehearse all the arguments deployed there, but I want to give the Minister—who is a graduate of King's college and was most welcome in the previous debate—the chance to expand his arguments against the propositions of my hon. Friend the Member for Eltham, which were deployed in a necessarily helter-skelter manner in Committee.

On 6 June, my hon. Friend the Member for Eltham asked whether the Scottish Law Commission, which my hon. Friend the Minister prayed in aid in his remarks, could show why six years was needed in Scotland. My hon. Friend the Minister said that the Scottish Law Commission did not see the merit of reducing the period to one year, but he did not explain why. As the debate was to be revisited in a week's time, my hon. Friend the Member for Eltham asked the Minister to invite the Scottish Law Commission to send him the justification for leaving the period as it was. The Minister did not make such a commitment; instead he explained the problem of changing the law applying to Scotland without a Scottish Minister present in Committee and promised to consult Scottish Ministers the following week before the Committee returned to the subject, which satisfied my hon. Friend.

The following week, the Minister stated that the new clause would change Scottish law on the discretionary power of the courts to override the time limit. He said that the Government saw no reason to change that provision. He said that he had consulted Scottish Ministers, as he had promised, and had been assured that it had been fully considered and added that, in the light of comments received during consultation on the Bill in Scotland, there was no evidence that change was required in Scotland. He alluded to the Scottish Law Commission as part of the consultative process, but yet again he did not rehearse its views, as my hon. Friend had requested a week earlier.

My hon. Friend the Member for Eltham concluded the debate by reminding the Committee that it had not heard why three years were better for Scotland and it is my purpose—as it was my hon. Friend's intent—to return to the issue in order to get a clear answer from the Government. As I implied at the beginning of my speech, the issue has exercised a number of media organisations in my constituency.

Mr. Boateng

The right hon. Member for City of London and Westminster, South (Mr. Brooke) does the House a service by enabling us to return to this topic. Circumstances required us not to spend as much time on it as perhaps some of our number would have liked in Committee.

There are no doubt good reasons why many people in Scotland are more than content that there should be a distinction between the law in Scotland and that in England and Wales on the limitation period, not least because many in England and Wales—we shall no doubt hear them when we debate another amendment—are concerned about the reduction of the limitation period from three years to one, do not believe that the case has been made out and see no reason why Scotland should be obliged to share in England and Wales's new misfortune. On Second Reading and in the other place, scant attention was paid to the distinction between Scotland and England and to the lack of any apparent justification for it.

Since the right hon. Member for City of London and Westminster, South has introduced the issue of blood lines into the debate, I should say that I have some Scottish blood. I have a grandfather who delighted in the name of Robert Wallace Burns McCombie. Anyone who has a grandfather with that name is entitled to lay some claim to Scottish blood, and I do so with pride. I have no particular interest to declare concerning the media north of the border, but I am aware of a conflicting picture emerging there on the issue.

Mr. Bill Walker (North Tayside)

As one whose blood is all Scottish, may I ask whether the hon. Gentleman recognises the convention on handling Scottish business in the House? The matter is very sensitive. Scottish law is different and we do not as a matter of practice change the laws affecting Scotland without Scottish Members—either in the Scottish Grand Committee or in Committee—having the opportunity to debate and discuss the merits of doing so.

Mr. Boateng

Quite so. The absence of Scottish Members was a very good reason why members of the Committee did not dwell too long on the subject. We are blessed tonight with the presence of a number of Scottish Members and are therefore able to range more widely over Scottish matters than we otherwise would.

We are also fortunate to have received representations from a number of Scottish organisations that have asked specifically for the matter to be raised. I know, for instance, that the Scottish Media Lawyers Society has contacted my hon. Friend the Member for Cunninghame, North (Mr. Wilson), who was present earlier. He has asked me to raise that contact on his behalf and to express his view that the case does not seem to be made out for a distinction between England and Wales and Scotland on the limitation period. I am bound to say that the Scottish media lawyers share the view expressed in "Bringing Harmony into the Law of Defamation", an article by Alistair Bonnington, who may be known to a number of hon. Members. The society took the view—a view with which I disagree—that it should be one year, and it was anxious to harmonise the position in Scotland with that in England and Wales.

Another, perhaps more authoritative, body—in the sense that it has a wider overview and a specific general interest in the matter—is the Law Society of Scotland. It was very much of the view that it would be quite wrong to change the Scottish position and to bring it into line with English law, as the Bill proposes. The society took the view—which accords with my own as regards the law in England and Wales—that three years is the right time, not least because of the problems outlined by Mr. Clancy of the society. He said that legal aid is not available for defamation actions and it would unduly favour potential defenders (who may be substantial organisations) if the potential pursuer's rights are limited to their exercise within one year of the delict (or civil wrong) having been committed. There is a great deal of sense in that.

9.15 pm

It seems clear that the notion that there should be a change from three years to one year—or from six years to one year—has not found favour with the Scottish Law Commission. But has the commission been consulted? It certainly should have been. If so, what is its view? Is it—as one suspects—that there are no valid arguments that would justify reducing the period in Scotland during which an action for defamation can be brought to 12 months? We want to be sure that the commission has been consulted and we would like to know its view.

What about the Scottish Courts Administration? Is it correct that it too opposes a reduction? We would like the Minister to answer those questions within the general context of hon. Members' concerns, not least about the series of amendments that we discussed earlier to clause 13. Have those promulgating the Bill adequately considered the position in Scotland? I have heard nothing during the debates on Second Reading or in the other place about the impact of clause 13 on the Claim of Right Act 1689 as opposed to the Bill of Rights 1688.

Mr. Dalyell

If, as I suspect, the answer is no and those bodies have not been consulted, is there not a case for a statement to be made by the Lord Advocate at the Scottish Grand Committee during its peripatetic round? Scottish Ministers should be questioned on this complex but important subject.

Mr. Boateng

Ministers may feel that the matter should be brought to the attention of Scottish Law Officers. It is not for me to trespass on this matter now, but those interested in Scottish constitutional matters sometimes believe that these matters are not always treated with the seriousness that they deserve. I hope that the Minister will take time to consider the matters that I have raised in this short speech and satisfy the House that my concerns have indeed been met.

Mr. Menzies Campbell

I hope that it will not be seen as a reflection on the right hon. Member for City of London and Westminster, South (Mr. Brooke), who introduced the new clause, if I say that, in this matter, I thought that his competence exceeded his enthusiasm for the measure by some considerable distance.

The House would do well to reject the amendment. Not only was no Scottish Minister on the Standing Committee, but there was no Scottish Member either and, this evening, we do not have a Scottish Minister with us. If the House passed such a measure without proper consideration of the sensitivities, and perhaps the realities, of Scottish law, it might act as an effective recruiting sergeant for those of us who believe that domestic Scottish law should be dealt with in a domestic Scottish Parliament, based in Edinburgh. Perhaps to that extent I should encourage the right hon. Member for City of London and Westminster, South, but for the purpose of this evening it is right to oppose the new clause that he moved.

The hon. Member for North Tayside (Mr. Walker) said in an intervention that it was a convention in such circumstances that the law of Scotland was not changed. Would that he was always correct about that. I can think of a number of recent criminal justice measures that, towards the end of their passage, dealt with Scotland, but never had a proper airing in Committee or on the Floor of the House from a Scottish point of view.

The position is this: in Scotland, the law of prescription and limitation, which is essentially what the new clause is about, is one corpus of law. It is to be found in the Prescription and Limitation (Scotland) Act 1973. It is wholly inappropriate to change that corpus of law on a case-by-case basis in a series of statutes.

One of the advantages of having the provisions in a single Act of Parliament is that it makes for ease of reference for practitioners and public alike and that any proposed change to the principal Act can be assessed against the effectiveness of other statutory provisions relating to prescription and limitation. It is wholly inappropriate to change the law in that regard in a piecemeal fashion.

I 'too' had the brief from the Scottish media lawyers. I have spoken to Mr. Bonnington and explained that I do not share his point of view on the matter. I understand the arguments that lie behind his views, but it would be inappropriate to interfere—I appreciate that that is a pejorative word, but I use it advisedly—in that way with the law of prescription and limitation in Scotland.

The Law Society of Scotland has evidenced its opposition. I should be interested to know what Scottish Ministers have to say, particularly the Lord Advocate. As I am engaged in an exercise that is as much one of education as of advocacy, I can tell the hon. Member for Brent, South (Mr. Boateng), who spoke for the Labour party, that the Scottish Courts Administration concerns itself with the numbers of courts, sheriffs, witness rooms and things of that kind. Policy has not yet fallen within its responsibility.

Policy is a matter for Government, and policy in these matters is the responsibility of Scottish Law Officers and Scottish Ministers. Policy is a matter on which those who practise the law in Scotland are entitled to have their voice heard. The clear view of the Law Society of Scotland and of the Law Commission, I understand, is that no change should be made. On that basis, I suggest that the amendment should not detain the House too long. I hope that the new clause is not pushed to a vote. If it is, I certainly urge anyone who has an interest in the integrity of Scottish law to vote against it.

Mr. Bill Walker

I am worried about the precedent that would be created if new clause 11 were accepted. Despite what the hon. and learned Member for Fife, North-East (Mr. Campbell) said about possible changes, those of us who care deeply—and I know that he includes himself in that—about the integrity of Scottish law and the legal system try always to ensure adequate debate on Scottish matters. We monitor the situation carefully. I came to the Chamber because I noticed that the new clause had been tabled by two English Members. In the circumstances, I would find it difficult to argue, as I always do, that our unitary Parliament looks after Scottish matters extremely well.

I am delighted that this is not a Government proposal. The Government would not allow such a proposal without Scottish Ministers being present or without the Scots being given the opportunity fully and adequately to debate the matter. Whatever its merits, in the interests of maintaining the integrity of our unitary Parliament and that of the Union, we should have no truck with new clause 11, as proposed by two English Members.

The Parliamentary Secretary, Lord Chancellor's Department (Mr. Gary Streeter)

I am grateful to the hon. Member for Braveheart, South for sharing his Celtic antecedents with the House and to my right hon. Friend the Member for City of London and Westminster, South (Mr. Brooke) for tabling the new clause, which allows us to have this important debate. It would mean that the limitation period of one year that we propose for defamation proceedings in England and Wales would also be introduced for Scotland. I hope that in a brief but forceful argument I shall persuade him that it is misguided.

My right hon. Friend knows that the Neill committee did not consider the law in Scotland. Scottish Ministers consulted last year on whether the limitation period in Scots law should be reduced to one year, in line with that proposed for the rest of the United Kingdom. Ministers attached particular weight—and this answers one of questions of the hon. Member for Brent, South (Mr. Boateng)—to the views of the Scottish Law Commission, which strongly opposed any change, as did the Law Society of Scotland. Accordingly, it is not the Government's intention to make that reduction at this time.

I can reassure the hon. and learned Member for Fife, North-East (Mr. Campbell), who spoke so eloquently, that my speech has been approved personally by my right hon. Friend the Secretary of State for Scotland. The jokes are mine, but he has approved the speech. I am glad of the support of my hon. Friend the Member for North Tayside (Mr. Walker), who made a valuable and important point.

It is worth briefly setting out the background. There are several important respects in which Scots law is very different from English law. My right hon. Friend the Member for City of London and Westminster, South knows that Scots law is based on Roman law, whereas the law in England and Wales has a common law base, with each tradition having evolved separately over many centuries. The two legal systems have many striking differences. A prime example is that, under the law of England and Wales, consideration is required to establish a contract, whereas, bizarrely, in Scotland a unilateral promise with no consideration moving to the promisor—I speak as a law student of many years ago—can constitute an enforceable obligation.

The law on the purchase and sale of land is different, as is the system of land tenure generally. There are significant differences in family law and in the law of succession. Even in the law and procedure for plaintiffs and defendants in defamation proceedings, there are several differences apart from the limitation period. For example, the assessment of damages is different in Scotland and is more likely to influence the potential plaintiff's choice of forum than is the limitation period. Punitive and exemplary damages are permitted in England but not in Scotland. Newspapers, broadcasters and their advisers already have to deal with those differences and do so with little difficulty.

Section 19(a) of the Prescription and Limitation (Scotland) Act 1973 already gives a Scottish court an unfettered discretion to override time limits where it considers it equitable to do so. That power of discretion applies to all time limits in personal injury actions and wrongful death actions as well as to defamation actions. It is not considered necessary or desirable to restrict the wide discretionary powers that Scottish courts already have to override time limits.

If it is therefore my right hon. Friend's intention to harmonise the law between Scotland and England—a brave thing for any Englishman to undertake—a far more extensive review of the differences between English and Scots law, even in relation to defamation proceedings, would be necessary rather than the simple introduction of an identical limitation period.

In Committee, we heard the concerns of my hon. Friend the Member for Eltham (Mr. Bottomley) about forum shopping. As I have explained, there are reasons other than the limitation period itself why people might seek to sue in England rather than Scotland, or vice versa.

9.30 pm
Mr. Menzies Campbell

In the seminar that the Minister had with the Secretary of State for Scotland, was his attention drawn to the fact that in a defamation action in Scotland the assessment of damages is almost invariably carried out by a judge, not a jury? That inevitably means that the awards in Scotland are substantially lower than those in the Strand. That, in itself, could easily be a disincentive to anyone who felt that he should go north of the Tweed to try to effect a remedy.

Mr. Streeter

The hon. and learned Gentleman, who speaks with authority on the matter, makes a valuable point about the Government's position on the new clause.

I have explained that the operation of rules of private international law should also prevent differences from being unfairly exploited. The plea of forum non-conveniens, with which we are all familiar, is available to ensure that cases that should be more suitably heard in England and Wales are not heard in Scotland.

Even if a pursuer—the Scottish term for plaintiff—could establish jurisdiction in Scotland over a defamation that occurred in England and Wales, the Scottish court would still have to consider whether that defamation was actionable under the law of the place where it had occurred, and the English laws of limitation would be a relevant consideration. Section 23(a) of the 1973 Act specifically provides that if a foreign law applies to a dispute, that law's limitation rules must also be applied.

Mr. Peter Bottomley (Eltham)

I apologise for not being present during the earlier part of the debate on the new clause. Will my hon. Friend advise the House about what would happen in the case of the BBC? It has transmitters in Scotland, so it would be clear that the alleged libel was propagated in Scotland. Would the BBC be exposed to a three-year limitation in Scotland, but to only a one-year limitation in England and Wales?

Mr. Streeter

My hon. Friend raises a theoretical case. He will know that almost every defamation action is started well within the 12-month period. As I have explained, the answer to his question would lie outwith the working of private international rules in a court of law. It would be for the court in which an action was brought to decide whether it had jurisdiction.

For all those reasons, we do not see that having a separate limitation period of one year in England and Wales, while retaining the limitation period of three years in Scotland, could or would cause confusion or difficulty. We have already made it clear that, following significant consultation in Scotland, there is no widespread desire for a change in the prescription period in Scotland. If my right hon. Friend the Member for City of London and Westminster, South wished to be consistent with his amendments, he would also have to seek to harmonise the assessment of damages north and south of the border. He would also have to harmonise the procedures in bringing any such action. That would be a mammoth and unenviable task. For all those reasons, it is not the Government's intention to harmonise the limitation period in England and Scotland and I ask my right hon. Friend to withdraw the new clause.

This debate is perhaps a modest foretaste of the folly of Labour's plans to introduce a system under which a Scottish Member could come to Westminster to make English law, but English Members could not go to Edinburgh to decide Scots law. Frankly, it does not and cannot work: the West Lothian question remains alive and kicking.

Mr. Peter Bottomley

I repeat my apology to you, Madam Speaker, and to the House for not being here for the resumption of the debate on the new clause.

I shall delay this Report stage for a moment by returning to the beginning. It is wrong to believe that an extension of time in Scotland balances the generally lower damages—the two issues are separate. There is not an argument for saying that, because people in Scotland have not asked for a reduction from three years to one year, we should continue with the unusual system of leaving more time for a potential pursuer or plaintiff in Scotland than for those in England, Wales and Northern Ireland.

I do not believe that we should harmonise everything, but as we have national publishers—broadcasters fall into that category to an even greater extent than newspapers, which may have separate titles north of the border—we should pay attention to them. When they suggest that it would be helpful to them to have more certainty, we should have a reason to say no to them. If the reason is that, when consulted, the people of Scotland did not ask for the period to be lowered from three years to one, and if most of the people who were consulted were lawyers, that is not of much help to those whose duty is to give the public information day after day.

Mr. Bill Walker

If my hon. Friend had been here when I spoke he might have been a little more careful. He would have realised that some of us are deeply concerned that two English Members should table a new clause on a matter affecting Scots law; whereas we believe that if this unitary Parliament is to operate effectively it must ensure that Scottish Members serve on Committees examining Bills of this magnitude.

Mr. Bottomley

My hon. Friend's point might have gone down better if my hon. Friend the Member for North-West Leicestershire (Mr. Ashby) and my hon. and learned Friend the Member for Harborough (Mr. Garnier) had been selected to serve on the Committee. There are others besides my hon. Friend who feel that they have just as important a reason to be sorry that they were riot chosen to serve on it. I believe in a United Kingdom. If my hon. Friend is saying that I cannot raise the anomaly of the three years in Scotland as opposed to one in England, he and I have a dispute that I hope will turn out to be an argument, not a quarrel.

Mr. Allason

Does my hon. Friend accept that the solution is to harmonise on three years across the United Kingdom? Quite often the Press Complaints Commission can take up to two years to investigate a complaint, whereupon the complainant can go to law—but only in Scotland now, not in England. He will have to go to Scotland to bring an action against a national newspaper published in England, but which is also distributed in Scotland—hence my solution of getting rid of the anomaly by imposing a universal three-year limit.

Mr. Bottomley

That crossed my mind last week, which is why I tabled alternative amendments proposing three years. My personal preference is for three years in each jurisdiction. If a defamation is sufficiently serious to be the cause of an action—subject to the leave of the court where a person may not have been aware of what is published—it is far better if people issue writs very early on. The point about a libel is the damage it has done; the point of a writ is to put others on notice that what has been said is untrue, damaging, unprivileged and actionable. So the sooner the writ is issued, asking for retraction and reward, the better.

The point at issue here is why Scotland should be left with three years. The fact that no Scottish Minister is present suggests that last week's early-day motion has been ignored. It is said that the people of Scotland have not asked for a reduction. We should be able to do better than that in this House. We have a responsibility to the United Kingdom to try to make it possible for people to bring us news, views and comment—as long as it is riot untrue or, in a legal sense, unfair comment.

When people say things that are seriously damaging and actionable we should expect them to be open to action for a reasonable period. I believe that more than a year is unreasonable nowadays; the Minister has backed that up by telling us how few cases begin after a year.

Madam Speaker

Mr. Brooke.

Mr. Jeremy Corbyn (Islington, North)

I support amendments Nos. 16 and 17, which are grouped with the new clause—

Madam Speaker

Order. We are not there yet. We are on new clause 11, which is why I have called Mr. Brooke.

Mr. Brooke

Thank you, Madam Speaker, for allowing me the opportunity to respond. The hon. and learned Member for Fife, North-East (Mr. Campbell) referred to a seminar held between my right hon. Friend the Secretary of State for Scotland and my hon. Friend the Minister. I felt that I had been privileged to attend a similar seminar this evening. I hope that my hon. Friend the Member for North Tayside (Mr. Walker) will agree that the fact that I have attended such a seminar is one of the bonuses of these proceedings.

The Minister gave me a very full reply. He did not tell us precisely what advice he has received from the Scottish Law Commission. Had he told us that in Committee, we would not have returned to it tonight.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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