OFFER TO MAKE AMENDS (Hansard, 24 June 1996)

§ Mr. Ashby
I beg to move amendment No. 15, in page 3, line 1, leave out from 'in' to second 'and' in line 2 and insert 'an article of the same size and type and of the same prominence as the defamatory article'.

§ Madam Speaker
With this, it will be convenient to discuss the following amendments: No. 1, in clause 3, page 3, line 18, after first 'offer', insert 'save and except in the case of a qualified offer'. No. 2, in page 3, line 19, at end insert— '(2A) Where there is a qualified offer in respect of one part of a defamation, a plaintiff accepting a qualified offer to make amends shall be free to pursue an action for defamation in respect of other parts of the defamation for which no offer of amends has been made.'. No. 4, in clause 4, page 4, line 20, leave out from beginning to end of line 40.
No. 5, in page 4, leave out lines 33 and 34.
No. 6, in page 4, line 40, after 'defence', insert 'only in so far as it applies to the meaning to which the offer related.'.

§ Mr. Ashby
I find it difficult to get up at the moment, as I was gardening on Sunday and now have a bad back.
As the law stands, a publisher who has published a defamation and admits that he has done so can publish a correction and apology in mitigation of damages and pay money into court. That seems to me to be quite sufficient. If that is not accepted by the victim—I stress again that I always use the word "victim" rather than "plaintiff"—they can go before a jury and the jury can assess the damages.
The clause seems to be a means by which a publisher, without a leg to stand on, can avoid damages being assessed by a jury. I find it odd and quite wrong that if a victim is unhappy about an apology that has been offered and therefore proceeds with his case, he can lose all rights to recover damages, even when it is admitted that a serious libel has been published. That is the effect of the clause, and we should understand what we are doing.
121 Libel actions rarely involve one specific allegation, and more often consist of a number of defamatory statements, all of which can have various defamatory meanings. As the law stands, a publisher can make a qualified offer of amends in respect of one defamatory meaning. Under the clause, a publisher can offer to apologise, make a correction and pay damages over one allegation, but seek to justify the rest of the article, and the victim, who may reject the offer, may end up losing even the damages to which he was entitled.
I have said throughout that this is a publishers' Bill. Not surprisingly, in previous arguments we have heard all about the leader lawyers' point of view. It came out of Lord Justice Neill's inquiry. As I have said in the Chamber before, he sought only the advice and evidence of the leader lawyers. The victims' lawyers did not hear about the matter until a couple of days before the inquiry ended, when they hurriedly summoned and managed to submit some evidence.
The Government swallowed that hook, line and sinker. There was an offer to make amends, which was a disgrace. I have tried to improve the position in the amendments, suggesting that, rather than a correction and apology being published in a manner that is reasonable and practicable", an article of the same size as the defamatory article should be published.

§ Mr. Ashby
That seems to accord with much that has been said in the House. We have always said that we should have some sort of right of reply. Disgraceful defamations are made, and then we see a tiny apology on the back page, an inch high, covering nothing like the spread that was on the first or second page. At the very least, we should be demanding such coverage for the correction.
My amendments also deal with cases involving a qualified offer. As I have said, the current position is one-sided, leaving the poor defendant absolutely open to what may happen to him. He may reject the offer and end up losing even the damages to which he is entitled. Amendment No. 1 deals with that, but makes the proviso: save and except in the case of a qualified offer". Amendments Nos. 1 and 2 deal with clause 3. The other amendments deal with clause 4, which is entitled Failure to accept offer to make amends". If the poor chap has not accepted such an offer, he is done for: he is hammered into the ground, and does not have a leg to stand on. That, of course, is exactly what the newspapers want. The Bill is a charter for newspapers. It has been proposed by publishers who themselves have not 122 a leg to stand on, so that they can avoid having damages assessed by a jury. That is what clause 4 is about, and that is why I have tabled my amendments.

§ Mr. Peter Bottomley
As my hon. Friend the Member for North-West Leicestershire (Mr. Ashby) knows, I support all but his first amendment. I do not think that, under that amendment or under clause 9, the courts should be able to force a publisher or a broadcaster to produce an apology in a particular position, especially one taking up the same space as the original comment. I understand, nearly as much as my hon. Friend, the pain and anguish that are caused when something highly damaging is published, but I believe that the House has the role of protecting the freedom of those who bring us the news. [Interruption.] I wish that the hon. Member for Brent, South (Mr. Boateng) would stop laughing. This is a serious point for a number of people, both members of the press and victims.
Even given that, however, what most victims—to use my hon. Friend's language—want is first a cessation of publication of what has been said, so that it is not picked up and repeated by the same publication or others; secondly, a retraction and apology; and thirdly—especially if there is not an almost immediate apology for anything factually incorrect—a sum in damages that shows the world that what was said was seriously wrong.
I feel that clause 9, and my hon. Friend's amendment in particular, are the wrong way of approaching the problem. I do not think that the House spends nearly enough time trying to understand the difficulties of the busy media who feature news and current affairs, whether in print or in broadcast programmes. Newspapers and broadcasters can maintain high standards; they ought to be more self-critical. In general, however, one of the penalties of a free press is the existence of victims. To require the same space and the same prominence after a court has reached a conclusion or the parties have reached an agreement is probably a step towards Parliament and politicians determining what is broadcast and what is printed.
I support the rest of my hon. Friend's amendments. I am sorry that under the rules of the House it is not possible to debate my amendment to clause 9, which faces this issue more directly than does my hon. Friend's amendment No. 15.

§ Mr. Streeter
It is in the wise tradition of the House to listen carefully to those who draw on personal experience. Amendment No. 15 seeks to force a newspaper to print an apology in an article of the same size, type and prominence as the defamatory article. The truth is that editors would simply not use that new fast-track procedure of making amends if they had to suffer a total surrender of editorial independence in such a manner. The Bill already provides that an apology or correction should be published in a manner that is reasonable and practicable in all the circumstances.
The amendments also suggest that when a plaintiff accepts an offer to make amends, he may none the less sue on some part of the alleged defamatory statement. Such a provision would undermine the entire purpose of making a qualified offer. Again, no defendant would make such an offer, leaving the plaintiff free to take the offer and still go to court. It would be to have one's cake and to eat it.
123 The amendments would also allow all parties to elect to have a jury involved—virtually a jury trial—contrary to other provisions in the clause. That is not appropriate in this new fast-track procedure, as part of its attractiveness is that the hearing is before a judge and not a jury. If the plaintiff wants a full-blown jury trial, obviously he will not accept an offer to make amends and will press on with his litigation under the normal rules of procedure, with all the attendant risk.
I have listened carefully to my hon. Friend the Member for North-West Leicestershire (Mr. Ashby), but the amendments would undermine the whole purpose of a streamlined fast-track procedure. I cannot advise the House to accept them.

§ Mr. Ashby
I beg to ask leave to withdraw the amendment.

§ Mr. Peter Bottomley
Amendment No. 40 relates to convictions, but I sense that the House does not want a serious lecture. If this does me any good later with those individuals who might be the party managers, I shall not move amendment No. 40.