§ Order for Second Reading read.5.13 pm
§ The Parliamentary Secretary, Lord Chancellor's Department (Mr. Jonathan Evans)
I beg to move, That the Bill be now read a Second time.
This is a law reform Bill that has a slightly unusual history and derivation. There have been not one but three consultation exercises in England and Wales, and additional consultation in Scotland and Northern Ireland, that led to the Bill being introduced in another place. The House will be aware that it was while it was in the other place that an addition was made that has a special significance for Members of the House. Although that addition appears towards the end of the Bill, I shall—with hon. Members' leave—explain the provision separately, before turning to the more general law reform provisions in the Bill.
Clause 14 would allow an hon. Member or any other person whose conduct in relation to parliamentary proceedings is an issue in an action for defamation to waive protection, such as that given by the Bill of Rights so as to enable evidence to be given and findings to be made in court about his conduct in Parliament. At the same time, the clause preserves the essential protection afforded by the Bill of Rights to Members of both Houses and other persons, such as witnesses before Select Committees, from any legal liability for what they may have said or done during proceedings in Parliament. That is the historic basis of free speech in Parliament, which must be preserved.
§ Mr. Evans
If the hon. and learned Gentleman will allow me, I shall complete this passage. The House will want to know exactly what the Government's position is.
The clause also provides that a waiver by one person will not affect the protection afforded to any other person who does not choose to waive it.
§ Mr. Carlile
Why do the Government appear to be in favour of granting the right to waiver to an individual Member of Parliament? Why do they not give that right to the Privileges Committee, which could then consider the issue and—if it thinks appropriate and while retaining the privileges of the House—give permission to the individual hon. Member to waive protection?
§ Mr. Evans
I want to continue with my speech, because it would be helpful if I outlined the Government's position in relation to the clause.
The matter has arisen following the libel case brought by my hon. Friend the Member for Tatton (Mr. Hamilton) against The Guardian. The case was stayed on the grounds that it could not be tried properly without hearing evidence about my hon. Friend's conduct in Parliament— the subject of the allegations against him—and that evidence could not be heard because of the prohibition in 127 the Bill of Rights on the questioning or impeaching by the courts of proceedings in Parliament. At about the same time, an action brought by my hon. Friend the Member for Torbay (Mr. Allason) was similarly stayed.
If this clause were enacted, any hon. Member who wished to would be able to waive his or her protection for the purposes of the defamation proceedings. The defendants would be able to call evidence to justify their published allegations and the issue between them and the hon. Member could be tried by the court.
This is a Government Bill, but not a Government clause. It was introduced for debate by one of the Law Lords, Lord Hoffmann. The Government recognise that the problem raised by my hon. Friends' cases is a real one, but as far as the solution proposed by the clause is concerned, the Government are neutral. We regard this as a matter for Parliament, rather than the Government, to decide, since it raises important questions touching on the Bill of Rights and the privileges of the House.
The concern of Ministers is that this issue should be properly ventilated in debate. I hope that hon. Members will find an opportunity to study the proceedings on Third Reading in another place, when the case for and against the clause was fully argued. I look forward to hearing the views of hon. Members as the Bill proceeds through its later stages.
§ Sir Patrick Cormack (South Staffordshire)
As this is an extremely important matter and as there is a variety of business before the House today, is it my hon. Friend's intention that the matter should form the subject of a special debate on Report on the Floor of the House?
§ Mr. John Morris (Aberavon)
The Minister said, properly, that the Government are neutral, and that was the view of the Lord Chancellor in another place. What would be the attitude of the Government to a proposal that the matter should go to a Select Committee of both Houses?
§ Mr. Evans
The issue was the subject of a full debate in another place. I have studied the debate, and I was present for a part of it. The right hon. and learned Gentleman will agree that there was a full debate in the other place, during which clear arguments for both sides were made. In those circumstances, the means of disposing of the matter that I outlined to my hon. Friend the Member for South Staffordshire (Sir P. Cormack) would seem to be the appropriate way of proceeding.
I turn now to the other provisions of the Bill. I hope that all hon. Members received copies of the draft Bill.
§ Sir Patrick Cormack
I do not want to detain the House on Second Reading, but I want to get this point absolutely clear. I hope that my hon. Friend agrees that whatever view one takes, this issue goes right to the heart of the privilege of Members of Parliament. It is terribly important that the debate on the matter is not time-constrained. I do not wish to detain the House by making a five-minute speech today—I am sure that other 128 hon. Members feel the same way—but I hope that the usual channels can guarantee time for a full debate on this issue on the Floor of the House.
§ Mr. Evans
I shall take into account my hon. Friend's observations, but that is a matter for the usual channels to resolve. I am sure that his views will be taken into consideration.
On the other provisions, I hope that all hon. Members received copies of the draft Bill, which were sent to them during our consultation exercise last summer.
§ Mr. Alex Carlile
On a point of order, Mr. Deputy Speaker. I apologise for interrupting, but this matter arises from what was just said about an extremely important issue—one about which many of us are greatly concerned. Is it correct that no Minister can guarantee a debate on any particular issue on Report as that is a matter for Madam Speaker? As we go through what is bound to be a short debate because we are time-constrained, perhaps the Minister or the Leader of the House can help us to understand how we can be guaranteed a debate on the Floor of the House on a matter that goes to the root of parliamentary accountability.
§ Mr. Deputy Speaker (Mr. Michael Morris)
Order. The more points of order there are, the longer we will take to debate the issue. The Chair has ears, as well as the usual channels.
§ Mr. Jonathan Evans
The consultation exercise undertaken last summer was a relatively new pattern of consultation, in which we published a complete draft Bill, with brief explanatory notes, inviting views on the detailed drafting, structure and presentation of legislation to implement important reforms to defamation law and procedure, which the Government had already announced. That consultation proved immensely valuable and we were able to make a number of useful modifications and improvements when preparing the Bill for introduction.
Full notes on clauses are available for any hon. Members who wants to examine the provisions in greater detail. Fuller explanations of the current law and the need for reform may be found in the published consultation documents. The Bill brings together defamation reform proposals from several separate sources. A substantial part of the Bill implements recommendations made by the working group set up under the chairmanship of Lord Justice Neill, in response to the Lord Chancellor's invitation to the Supreme Court procedure committee to examine the rules and practice for pleadings in defamation cases and to propose reforms.
We published the working group's report on "Practice and Procedure in Defamation" for consultation in July 1991. We are indebted to Lord Justice Neill and his colleagues for all the work and assistance that they have given us, not only in identifying the problems and proposing solutions in their report, but during the process of working the proposals up into a legislative form for implementation. Lord Hoffmann also played a major role at the very earliest stage, as he suggested to the Lord Chancellor that a special regime should be set up for the summary hearing of defamation claims. That is to be found in clauses 8 to 11 of the Bill. I should like to express my gratitude for those valuable contributions and I am sure that hon. Members would wish to join me in doing so.
129 The other reform proposal—in clause 1 of the Bill— is the result of the Lord Chancellor's consultation paper, "The Defence of Innocent Dissemination", which was published in July 1990. While the Lord Chancellor's review of defamation law began as a review of the law in England and Wales, many of the changes introduced by the Bill will apply in Scotland as well, as although there are some differences in both the substantive law and the procedures, the systems are broadly similar. The reforms will also apply to Northern Ireland.
I propose to explain the Bill's provisions in fairly broad terms. Clause 1 contains a new statutory defence, which will supersede the common law defence of innocent dissemination. That defence has always been subject to some uncertainty, particularly as to who could rely on it, and those uncertainties have inevitably increased as modern technology has provided us with entirely new concepts in communication.
The statutory defence concentrates on the concept of responsibility for publication. It will not be available to authors, editors or publishers—in the commercial sense— of defamatory material, but it will be available to others whose work may in some way have contributed to the publication of defamatory material that someone else has chosen to publish, unless they knowingly took part in producing a defamatory publication, or had reason to believe that they were doing so.
Clauses 2 to 4 also provide a new defence to replace an existing defence that does not fulfil the purpose for which it was created. There is already a statutory defence of unintentional defamation, which is available when amends have been promptly offered, but it is cumbersome and has been little used. Lord Justice Neill's working group recommended that it should be replaced by a new defence, which would be more streamlined and would be available only to a defendant who was willing to pay compensation assessed by a judge as well as publishing an appropriate correction and apology.
That is the foundation of clauses 2 to 4, which have been substantially modified since we published the draft Bill for consultation last year. That has been done to provide a replacement for section 4 of the Defamation Act 1952, which will enable a large number of cases to be resolved quickly and cheaply—and, it is hoped, amicably—instead of developing into full-scale litigation.
§ Mr. Clive Soley (Hammersmith)
Can the Minister clarify whether he sees clauses 2 to 4 as an alternative way of dealing with inaccurate reports about an individual in newspapers, if the paper offers to correct the statement that has been made, rather than going for a full libel case?
§ Mr. Evans
I anticipate that that may be the case in appropriate circumstances, but if the hon. Gentleman examines clause 4(3), he will find that there are circumstances in which that defence would not be available. That is particularly so when the offer is made in circumstances in which, at the time that the statement was complained of, it was "false and defamatory" of a party, orreferred to the aggrieved party or was likely to be understood as referring to him".Clause 4(3) limits the operation of clauses 2 to 4 and so it does not have the more general application to which the hon. Gentleman referred. It is certainly a useful addition to the Bill. The more general application can be found in clauses 8 to 11, which I will deal with later.
130 We have introduced the concept of a "qualified" offer, which allows the offerer to specify the defamatory meaning that he accepts that his statement conveyed, so that he will not find himself committed to making amends in respect of some wholly different and more defamatory meaning, the possibility of which he may not even have contemplated when making the offer.
Clauses 5 and 6 reduce the limitation period, both in England and Wales and in Northern Ireland, in actions for libel or slander and for malicious falsehood. One year is the time within which most actions are begun; they need to be, if the proceedings are to minimise damage to the plaintiff's reputation. The court will have a discretion to disapply the strict limitation period in favour of a plaintiff who had a good reason not to proceed within it. In exercising that discretion, the court will balance the prejudice that the defendant would suffer if it did proceed against the prejudice that the plaintiff would suffer if it did not.
Clause 7 is part of a minor reform, designed to eradicate delaying tactics by parties going through the unnecessary extra stage of applying for rulings as to meanings that statements are "arguably" capable of bearing.
As I told the hon. Member for Hammersmith (Mr. Soley), clauses 8 to 11 bring defamation proceedings into line with most other civil proceedings in providing powers of summary disposal. The clauses introduce a new fast-track procedure, which will provide a prompt and inexpensive remedy in less serious defamation cases.
Those clauses give judges new powers, enabling them to consider the strength of the claim and the defences raised and to dispose of the claim summarily in favour of either party.The summary relief that the judge will have power to grant includes damages up to £10,000, a declaration that the statement was false and defamatory and an order requiring the defendant to publish a correction and apology, which may take the form of an approved summary of the judgment.
§ Mr. Ashton
I am not a lawyer so the Minister may be able to correct me, but what is to deter a newspaper from running up costs of much more than £10,000 so that the complainant has to settle at an early stage or drop the case? The cost factor is the deterrent.
§ Mr. Evans
It is and one reason why the fast-track procedure should be supported is that it presents an alternative to one party—the monied party—dragging out proceedings and increasing the level of costs, thus depriving people of their legitimate rights. It was suggested in another place that £10,000 was inadequate and that it should, perhaps, be £20,000 or something of that nature.
131 My noble and learned Friend the Lord Chancellor agreed to examine any specific proposals for a more appropriate sum and what the arguments might be. He has an open mind on that. To date, no such representations have been made although the issue has been raised in debate. I give the same assurance that we would be prepared to examine arguments for a different figure.
Clause 12 changes the rule that in an action for libel or slander in which the question whether a person committed a criminal offence is relevant to an issue arising in the action, proof of his conviction is conclusive evidence that he committed the offence. Plaintiffs in defamation proceedings will no longer enjoy the artificial advantage of the lightness of someone else's conviction being unchallengeable.
Clause 13 prevents the plaintiff from recovering damages for injury to his reputation beyond those to which he would be entitled if everything likely to affect his reputation were public knowledge. The defendant will now be allowed to lead on and to rely on evidence of conduct which, if known, would affect the plaintiff's reputation. The clause is designed to prevent injustice. It is clearly wrong, for reasons explained with great expertise in the report of Lord Justice Neill's working group, that the court should be forced to assume—and sometimes appear to provide a confirmatory reference— in assessing compensation for damage to a reputation, that a wholly unblemished reputation is deserved, even where there may be available evidence to demonstrate the contrary. That cannot be right. There is, of course, a need to restrict the evidence on which the defendant is able to rely in mitigation to evidence that is relevant to that aspect of the plaintiff's reputation—for instance, his business probity or conduct towards his family—to which the defamatory statement relates.
Clauses 15 and 16, with schedule 1, bring up to date existing statutory privileges. The new privilege under clause 16 for certain reports of legislative, judicial and other public proceedings will apply to publications in general, not only to newspapers and periodicals, and will extend to a wider category of reports—in particular, recognising the need to give reports of proceedings of European institutions protection equivalent to that already given to those in this country. Clauses 17 to 21 contain general supplementary provisions.
The Bill is a useful measure of law reform and has been the subject of widespread consultation. It simplifies a complex area of law and procedure and fits well with current developments in the conduct of civil litigation generally. I commend it to the House.
§ Mr. Paul Boateng (Brent, South)
The law of libel is a complex and sometimes arcane area in which often only the wealthy, the brave or the foolhardy dare to tread. Looking around the Chamber, I fancy that we shall hear from some hon. Members who have had experience in one or more of those categories. The law of libel presents the nation with an arena for theatre as much as anything else, but it has ramifications for our national life that go beyond the chuckles, snide remarks and sneers that too often accompany libel actions, and that themselves reflect the harm and sense of hurt involved in such actions.
132 The law of libel seeks to reconcile the conflicting concerns of the right to know, the right to privacy and the right to free expression. It is not easy to balance those rights in a free society. It is a pity that the Bill, broadly welcome though it is, is not part of a wider package that would enable us to address concerns about freedom of information as well as those raised in the past by my hon. Friend the Member for Hammersmith (Mr. Soley) about a right to reply.
The Bill continues to leave on the shelf the issue of how we can make it possible for people of little or no means to defend their reputations. One of the less satisfactory elements of our law is the fact that the reputations of most ordinary people count for little as far as the law is concerned because they will never have the means with which to defend them. That is one of the great pities of our system of civil justice, but sometimes it can be one of the great scandals. We cannot address that problem at present through the legal aid fund and I do not suggest that that would be an appropriate way of addressing it.
The Bill attempts to establish a new fast-track summary procedure, which is welcome as far as it goes. For most people, even that will be inaccessible because they will not be able to afford the large lawyers' fees that inevitably follow such actions. There is probably no more lucrative area of practice. It is not a field, in my 20 years as a solicitor and a barrister, in which I have had the opportunity to graze but there are some hon. and learned Conservative Members with much experience in it. They will no doubt share with the House the problems of ordinary people of limited means—in so far as they are aware of them—in gaining access to the law of libel. The Bill does nothing to address the concerns of such people.
My hon. Friend the Member for Bassetlaw (Mr. Ashton) mentioned some of those concerns when he noted that the cost of going to law was a deterrent for most people. The Bill will address that issue—I welcome this—in several ways; for example, by introducing a power for judges that will enable them to dispose through a summary procedure and to grant damages of up to £10,000. It is to be hoped that that will focus the minds of the parties concerned and reduce costs. There is a question mark over that, which we shall no doubt want to explore in Committee. There is a danger that the summary procedure will become yet another procedural staging post and not necessarily provide the relief that it was intended to provide. It is important to ensure that that is not allowed to happen as the rules of practice and precedent develop.
The Bill is welcome to that extent. It is also welcome— although it may not go far enough—in its attempt to meet the challenges presented in the law of libel by developing technology. Internet communications open up a new area of potential libel. They open up new vistas of opportunity for those who pay no heed to the reputations of others, and who will seek the anonymity of technology to disseminate defamatory material.
The Bill considers the responsibilities of operators of Internet communications. It seeks to protect them against liability for defamation resulting from innocent dissemination of material. That is all well and good, as far as it goes. The Bill does not help, however, in that it does not say how the Internet is effectively to be policed to tackle the dissemination of defamatory material. It does not say how defamatory material, once identified, might easily and without undue cost be removed.
133 I look at the Minister, and envisage him surfing the Internet. These days, more and more of us, in our little offices, have an opportunity to surf the Internet—indeed, it is the only opportunity for surfing that we get, and we do not even have to adopt a specific mode of dress for that experience. Policing the Internet and ensuring that defamatory material is removed remain significant problems. Some time, it will be necessary for the House to legislate more comprehensively on that than it has done.
We shall wish to explore several aspects of the Bill in more detail in Committee. We are worried about the implications of reducing the limitation periods for actions for libel, slander and malicious falsehood from three years to one. That is a significant problem. Let us take an example. It may be difficult for a police officer who seeks to address defamation as it may affect him in the course of his duties, to bring an action within one year. Before the way is clear to take an action, he is likely to have to undergo the police complaints procedure and the internal disciplinary procedure. What is to happen to him?
What is to happen to people who are obliged to spend a considerable amount of time getting together the money to launch an action? That is related to the point made by my hon. Friend the Member for Bassetlaw. Some people need to obtain the money from a friend or through a public appeal. Have the Government sufficiently taken that into account in reducing the period as they do? Opposition Members have doubts about that.
It is not clear why in one jurisdiction—Scotland—it should be possible to bring an action within three years yet in another—England and Wales—the time should be restricted to one. I do not suggest for a moment that in Scotland the limitation period should be reduced from three years to one, because I know that the Law Society of Scotland strongly opposes that. Its members have good reason for opposing it, as have Opposition Members.
We shall ask some questions about another aspect of the Bill, which the Minister mentioned—the issue of how far it is proper to go into the background of a plaintiff in libel proceedings for the purposes of defending the claim and mitigating the damages, known as "the rule in Scott v. Sampson". Others may have different views on this, and I look forward to hearing the contributions of hon. and learned Members on that subject, but concern has been expressed by practitioners that the Bill might be a muckraker's charter. It would benefit certain newspaper defendants to undertake an in-depth investigation into the plaintiffs private life in an endeavour to unearth something to his discredit that they can then expose in open court as a way of diminishing the plaintiff—
§ Mr. Boateng
—or, as the hon. Lady says, frightening them off. That is an important point, which we wish to explore in Committee.
I shall now discuss an aspect that turns an otherwise relatively uncontroversial and broadly welcome Bill into something that rightly provokes controversy and concern—the introduction, almost by a side-wind, on Third Reading in the other place, by Lord Justice Hoffmann of an amendment that goes to the heart of the privileges of the House.
§ Mr. Neil Hamilton (Tatton)
I may be mistaken, but it was not introduced on Third Reading in the Lords; it was 134 introduced in Committee. It was debated at that stage. It was then debated again on Report and, on the recommendation of the Lord Chancellor, a decision was postponed until Third Reading to give even more peers who wished to participate in the debate full notice and thereby to give the maximum opportunity for Members of the other House to debate the issue thoroughly—which they did.
§ Mr. Boateng
I hear what the hon. Gentleman says, and of course he does have a real interest in the clause—
§ Mr. John Morris
On a point of order, Mr. Deputy Speaker. I am sorry to raise this, but would it not have been better, indeed proper, for the hon. Member for Tatton (Mr. Hamilton) to have declared his interest?
§ Mr. Deputy Speaker
Hon. Members know that it is not for the Chair to determine which hon. Members should raise which interests. That rests entirely with hon. Members, and they must live with their decisions.
§ Mr. Boateng
I am grateful to my right hon. and learned Friend because the hon. Member for Tatton (Mr. Hamilton) does have an interest, and he will of course want the House to know that. I understand his interests, and I mean him no disrespect by pointing that out, save to—
§ Mr. Peter Bottomley (Eltham)
Further to that point of order, Mr. Deputy Speaker. Am I right in believing that if an issue affects all Members of the House equally, all of us have an interest that is not registrable?
§ Mr. Boateng
"Painfully" is perhaps the operative word. The intervention by the hon. Member for Tatton reflects his real interest in this subject. The turnout for the debate on Third Reading in the other place made it quite clear that the hon. Gentleman's interest has excited the interest of others. Some of those who took part do not usually get so interested in innocuous law reform measures.
§ Sir Patrick Cormack
Would it not be more correct to say that my hon. Friend the Member for Tatton (Mr. Hamilton) has a predicament, not an interest in the sense that we usually use the word in this Chamber? I make no comment one way or the other on that predicament.
§ Mr. Boateng
As usual, the hon. Gentleman puts his finger on the point. It was precisely the hon. Gentleman's predicament that led to this provision. Having latched on to that helpful word, let us further explore the hon. Gentleman's predicament and whether the predicament of one hon. Member is a proper reason to revisit such a fundamental element of our constitution.
Parliamentary privilege and any amendment to article 9 of the Bill of Rights are far too important matters to be changed for the sake of one hon. Gentleman's predicament. The issue should of course be examined with the utmost care and debated in depth, but I am worried about the Government's proposal for dealing with the issue.
135 A debate on Report is always time-limited. Right hon. and hon. Members may want to debate other matters on Report. It seems to us important to learn the views and listen to the wisdom of others on the subject—
§ Mr. Rupert Allason (Torbay)
I declare the same predicament as the one already mentioned by the Minister. This is not just a question of the predicament of my hon. Friend the Member for Tatton (Mr. Hamilton). If any Member of the House brings an action for defamation against a newspaper, he will discover that the newspapers have found a useful loophole under article 9 of the Bill of Rights. As a result, 652 people have been disadvantaged in a way that has nothing to do with what is said in the House or with our proceedings. By dint of the fact that they are Members of the House, they have been disadvantaged vis-a-vis all the other citizens in the country. The attempt here is to close the loophole in question.
§ Mr. Boateng
I repeat to the hon. Gentleman what I think Mr. Justice Owen told him: he must take the good with the ill. Hon. Members enjoy great privileges and there is a price to be paid for them. Those privileges are not ours; they belong to the House. First and foremost they are for the benefit of our constituents, not us. We must therefore think very carefully before we do anything to undermine them.
Parliamentary privilege has stood the test of time these 300 years. This is the first time in 300 years that the predicament has arisen in quite that way. We would be most unwise to discard the protection that the House has been afforded for 300 years merely because of the predicament of one, two or even three Members of this House—
§ Mr. Boateng
We all recognise that the privileges attached to membership of the House are attached to us all. To that extent, the plight of one may be the plight of all. We must also recognise our overriding responsibility to those who send us here and who, through the ballot box, confer on us and on the House the privileges of speech that enable us to fulfil our role in this place.
The point was put succinctly in a report of the Privileges Committee when it examined the position of the late and right hon. Member for Streatham in the early days of the second world war. He was threatened with prosecution under the Official Secrets Act 1911 simply for asking a question about the state of London's anti-aircraft defences. The Committee's report, afterwards endorsed by this House, stated:The privilege of freedom of speech enjoyed by Members of Parliament is in truth the privilege of their constituents. It is secured to Members not for their personal benefit but to enable them to discharge the functions of their office without fear of prosecution, civil or criminal.That, surely, is the point.
We must not alter the basis of privilege without careful investigation. That is why Labour proposes that, following Second Reading, the Bill be committed to a Committee 136 of both Houses so that it may be properly examined and so that the constitutional issues that clause 14 throws up can be properly explored.
§ Sir Patrick Cormack
Is not the weakness of that suggestion to be found in the fact that, if that sort of debate took place, it would preclude the full and proper debate on the Floor of the House which is essential—there having been a similar debate in another place?
§ Mr. Boateng
We have been advised that a Joint Committee of both Houses, having taken evidence and debated the matter, would report back to both Houses and that a full debate, informed by the evidence taken and any conclusions reached, might then take place.
That is the attraction of the Opposition's proposal. We make it because we are all too conscious of what the implications would be were clause 14 to pass into law. We are concerned about the overthrow of a long-established protection of parliamentary privilege and of right hon. and hon. Members provided by article 9 of the Bill of Rights and about the erosion of that cherished constitutional principle.
We are also concerned about a possible arbitrariness. A potential litigant would not know if, when and to what extent a Member of Parliament involved in litigation would waive parliamentary privilege. That, in turn, could lead to uncertainty in the law and unfairness. [Interruption.] One bears in mind the predicament of the hon. Member for Tatton, who no doubt will make his own speech in due course. However, such matters are not best debated by way of sedentary muttering.
We have to consider whether the House can view with any equanimity the proposal that the definition of the term "proceedings" should be the subject of judicial interpretation. I see a puzzled expression on the face of the hon. Member for Tatton. Perhaps he should consider the implications of clause 14.
I hesitate to go into too great detail, bearing in mind that we are debating the Bill on Second Reading, but we have to consider what a judge will be asked to do. A judge will be asked to consider whether a particular aspect of the work of the House falls within the definition of "proceedings". That must involve a degree of scrutiny and interpretation by the judiciary of the rights, privileges and functions of the House and that raises serious concerns, not least at a time of increasing judicial intervention. We want those matters to be explored in detail.
The Minister has explained to us that the matter can be explored on the Floor of the House on Report. That is all well and good as far as the House is concerned, but what about the views of the various Commonwealth Parliaments that also rely on the Bill of Rights and that look to article 9 for protection? How are they to be consulted? Have they been consulted? Perhaps they ought to be consulted. After all, the Prebble v. Television New Zealand case and the Privy Counsel ruling therein, which is at the heart of the predicament of the hon. Member for Tatton, arose from a case in a Commonwealth jurisdiction. We should also consider the other Commonwealth jurisdictions. Any change in United Kingdom privilege law is likely to have reverberations across the Commonwealth, the directness of the impact varying according to local constitutional arrangements.
The Bill raises all those concerns that touch the rights and privileges of each and every hon. Member, not least those who may not choose to lift the veil when another 137 does in the course of proceedings—a problem recognised by Lord Hoffmann when he moved clause 14 on Third Reading in the other place.
§ Mr. Alex Carlile
Has the hon. Gentleman observed that Lord Hoffmann called for a vote on the clause, but did not vote for it?
§ Mr. Boateng
That may be a matter of some significance. When one reflects on the high regard in which the noble and learned Lord is held by members of our profession and his wisdom and knowledge of the law, the fact that he did not vote may well tell us something. There is all the more reason for us to take great care before proceeding down the route that clause 14 suggests.
The Minister said that it is not a Government measure, but one contained within a Government Bill. That would have carried a little more conviction had the Lord Chancellor not expressed himself in such clear and unambiguous terms in support of clause 14; nevertheless one hears what the Minister says. It is all the more reason for the Government to make time for the issue to be considered in a Joint Committee—rather than having it dealt with on Report without sufficient time being guaranteed—and to give the motion a fair wind.
The Bill is significant and important. We broadly welcome its main thrust, but one aspect causes the Opposition great concern. We shall return to it repeatedly to make sure that the privileges of the House and its Members—which are not ours, but are held in trust for our constituents—are properly represented.
§ 6.7 pm
§ Mr. David Ashby (North-West Leicestershire)
I was rather disappointed, but not surprised, to hear an establishment speech from the Minister when we have the opportunity of a radical change in the defamation law. I was surprised, however, to hear an establishment speech from the hon. Member for Brent, South (Mr. Boateng), and I expect one in due course from the hon. and learned Member for Montgomery (Mr. Carlile). They are all part of the establishment. I am not.
I have no interest to declare except my experience of one of the more deleterious libel cases. I had the temerity to challenge a national newspaper. I was in a fairly unique position. As a lawyer at the criminal Bar, I had no experience of civil proceedings, and I came to the libel action as an informed layman, and no more than that. I hope that my experience will help the House.
The fact of being defamed was undoubtedly the worst experience of my life, although some say that birth is pretty traumatic. The effect of the article and the newspaper coverage left me with a physical shock that was not dissimilar to that of a serious road accident. Sleep left me, and I found myself bursting into tears for no reason. I suffered acute depression, severe ill health, and mental and physical exhaustion. Many other aspects of my personal and private life have been affected and are well documented by the press, who never leave me alone.
I have no doubt that the libel laws need urgent and radical reform. Let us put the matter in context. For years, hon. Members and the public have been amazed by the antics of the press. Parliament has wrung its hands in anguish, but it has lacked the courage to deal with the problem. Press commissions, press complaints 138 commissions, inquiries such as Calcutt, and drinks in the last chance saloon with Ministers have ended in admissions from one and all that they are too frightened to do anything.
Basically, the problems relate to press standards. Newspaper standards are at a very low ebb. Journalists and editors appear to lack professional integrity, while at the same time the newspaper industry is being concentrated in the hands of a few. The battle is on, with a ruthless, no-holds-barred circulation war, breaches of privacy and salacious intrusions into private lives. Every ethical standard has been sacrificed to the bigger headline that will sell more newspapers.
Newspapers assume a ruthless arrogance: claiming the right to know and holding themselves up as defenders of the public, when they simply want more information so that they can print more lurid stories and sell more copies. The first point that the House must understand is that newspapers do not exist to serve some public good: they exist to make a profit—and sensational and libellous stories make money for the newspaper proprietors. The libel laws must address that point: libel victims and the courts have a right to know how much money the newspapers are making from their libellous activities.
Secondly, the libel laws are the only way of controlling what the press print and, ultimately, press quality. I cannot over-emphasise that point, and I draw it to the attention of all those who think that the Bill is unimportant.
We all want to see a responsible and a courageous press which provides news and comment about important and relevant matters. We do not want to know about Elton John's fictitious diet or about an actor's behaviour 40 years ago. The editor has responsibility and control over a newspaper's contents—whether the stories are written by journalists or by freelance reporters. If we are to improve the quality of our newspapers, we must enshrine that point firmly in our defamation law.
Some people may be surprised to learn that that responsibility is not spelled out in law. The editors must have a vicarious liability for all that is printed in their newspapers—they must be held accountable. Furthermore, if a newspaper wishes to defame, the editor should give evidence in court to explain why he thought it was right to allow that defamation. Editors allow defamation freely because they seldom have to explain themselves: they hide behind a right to silence, while people's reputations are destroyed. When an editor is not called to explain himself, it should be presumed, first, that the article is libellous; and, secondly, that there is no defence for the libel.
In my case, Times Newspapers Ltd. sheltered behind the fact that The Sunday Times editor, Andrew Neill, was sunning himself in Bermuda and did not know about the lying story that was written. The effect was disastrous for me, because I could not put before the jury the sheer malice that was displayed by The Sunday Times. If editors were held accountable for newspaper content, press behaviour would improve at one stroke. Editors would question journalists about their actions and their sources, because they might have to go into the witness box and explain an article. At one stroke, editors would become more responsible.
The Bill arises from the Neill report. My overwhelming impression of the libel courts in the High Court of Justice is that they are there to look after the newspapers.
139 The newspapers can do little wrong. At every interlocutory point, the newspapers are granted extensions of time, orders to give further information, and opportunities to waste the poor victims' time and money. Newspapers have the time and the money on their side, and they know how to use it to their advantage. Even in the Court of Appeal, the judges back the wealthy newspapers that have seriously libelled a victim, and invariably reduce damages. I shall return to the question of wealthy newspapers and damages in a moment.
Therefore, it is no surprise that, when a judge heads a committee on defamation, he totally ignores the victims— as the Neill committee did—and takes evidence only from the newspapers. Solicitors who represent victims of libel—they did not even know of the committee's existence—and the victims were ignored. The only people asked to submit evidence were the gang of in-house solicitors who represent the newspapers. What a committee report.
The result is a report that is a newspapers' charter, and a Defamation Bill that will have journalists laughing with glee in the public houses of Fleet street. At every turn, the Bill makes it harder for the victim and easier for newspapers to defame. God knows it is hard enough for the poor sod whose life is ruined.
I return to the question of newspaper wealth. A libel action is a serious and an expensive business for the victim—I use the word "victim" every time—which can ruin him financially. Newspapers often employ the tactic of prolonging the case and increasing the costs, so that the victim runs out of money.
Newspapers indulge in defamation only to make money. They make vast sums out of the reports of proceedings, and I believe that they should pay for that indulgence. For a few months, I read every part of every national and regional newspaper, and I can report that the press are ruining many lives up and down the country. The victims have no redress, because they cannot afford to sue.
We must do something about that problem. I believe that a new legal aid fund, financed by a levy on the newspapers, should be established specifically to deal with defamation. If the newspapers want to defame, they should finance the consequences. They are getting away with it at the moment, and they must not continue to do so.
It is not a level playing field, for two reasons. First, newspapers can offset the damages and the costs against their vast profits, but the victims cannot. That must be stopped. Secondly, juries understand the severity of the effects of libel on the victim better than appeal judges. The only language that the newspapers understand is money. Juries should be free to assess the damages. Those damages should remain, and should be changed by the Court of Appeal only in the most exceptional circumstances. That would make newspapers better and more responsible—although they would squeal about it.
The third major change required is to the defences open to newspapers. Clause 13 is quite outrageous: it allows newspapers to write a completely fictitious story and then dredge through a victim's life from beginning to end, throwing as much mud as possible in the hope that it will stick and justify their defamation. The House rejected that 140 measure in the past as unfair, unjust and unworthy. Only a libel judge would think of resurrecting it for the benefit of the press.
In my case, the press ruthlessly resorted to every dirty trick in the book to justify the story. I suffered burglary, theft, impersonation and computer hacking. No bank accounts are safe—Mr. Leppard of The Sunday Times boasts that he hacks into every one of our accounts. He does it freely. In my case, there was a note from an editor saying, "Please do not spend too much on hacking into the accounts" to find out how much we owned and how much we earned. That is what they do. I believe that that conduct is not right, that it should not be allowed, and that any evidence obtained in such a manner should not be allowed to be used in any court.
It is simply no good complaining. In my case, the trial judge said that I could take my complaints to the Press Complaints Commission. This was a full-blooded defamation action, and I was the victim. The PCC is a toothless watchdog.
Being defamed is not a game, as the courts, lawyers and newspapers seem to think it is. What is at stake is a person's integrity and reputation. It is absolutely incredible that, if I were in a criminal court, allegations would have to be proved to a standard so that the jury was sure, whereas, in a libel action, I can be absolutely destroyed—as I have been—on the balance of probabilities.
The standard of proof must be changed, and there should be no justification for printing a pack of lies. The burden of proving justification should always lie on the person making the allegations, and the victim should never have to reply to that allegation if he does not wish to.
I have raised points to which we should be addressing ourselves if we are to try to get the law of defamation right. Let us consider the Bill. Clause 1 provides for responsibility for publication. I cannot understand why it is unreasonable that those who broadcast, invariably for commercial gain, should not take responsibility for what is broadcast, because the victim will otherwise be left without any effective redress.
Clauses 2 to 4 deal with making amends. They are a means by which publishers without a leg to stand on can avoid damages being assessed by a jury. As the law currently stands, a publisher can make a qualified offer of amends in respect of one or more defamatory meanings. So, under this section, a publisher can offer to apologise, make a correction and pay damages in relation to one allegation, but seek to justify the rest of the article. The victim, who may reject the offer, may end up losing even the damages to which he was entitled. In this respect, the present law is good enough.
We have already dealt with the limitation period. Why should defamation laws be unique in having a one-year limitation period? Why should it not be three years? It was recently decreased from six years to three years. Why should we not have a three-year limitation period, as in other proceedings?
The summary disposal of a claim simply adds to the victim's burden. The only effect of this section is to create a ceiling of £10,000 for the victim. That is the only effect, because, if the victim wishes to go down the road of summary disposal and the judge finds that there is a realistic prospect of success—as the judge invariably does—for the newspapers, which have masses of money 141 to spend on the most expensive counsel, the poor victim has wasted money, and has to bear the costs of the claim's summary disposal. There is already a swift method, and we should continue with it.
The provision on evidence of convictions worries me, because it could bring the law into disrepute. Obviously investigative journalists want to be able to argue that a conviction was wrong when a libel action is brought by, for example, police officers. So they seek to prove something according to one standard of proof in a jurisdiction in which there is another standard of proof. That brings the law into disrepute.
My speech has had to be somewhat hurried, but I have set out my misgivings about the Bill—in which Lord Justice Neill has clearly been over-impressed by the newspapers' house lawyers. No attempt has been made in the Bill to strike a balance between victims of defamatory articles and publishers. I know that publishers will either squeal about freedom of the press or ignore this speech, in the hope that the less the public know about it the better. I heard squeals earlier from the Press Gallery.
My suggestions are not about taking away press freedoms but about reducing newspapers' arrogant right— as they see it—to defame freely. My suggestions focus responsibility on editors, making them do the job properly and responsibly. My suggestions would improve integrity in journalism and in the newspapers.
Finally, my suggestions would restore a long-lost balance for the victims, who are often in humble circumstances—I agree entirely with the hon. Member for Brent, South on that point—who seem to have been forgotten by the House, and who are frequently sneered at by the newspapers. The House owes a duty to them.
§ Mr. John Morris (Aberavon)
I should like to express concern, as other hon. Members have done, that the House is being asked—with minimum publicity and certainly none of the widespread consultation that the Minister was boasting about—to amend the Bill of Rights 1688, which is one of the cornerstones of our liberties. We have been told that this House was exclusively concerned with the defence of our liberties in that year, but that privilege is now, of course, enjoyed by another place.
An amendment was passed in another place—after a very short debate in Committee, and another, longer debate on Third Reading—to amend article 9. As the hon. and learned Member for Montgomery (Mr. Carlile) told us, Lord Hoffmann, the proposer, commended the amendment, but curiously did not vote for it. The Lord Chancellor was neutral on it.
I shall not relate article 9 at length because of the need to save time, but it is also our safeguard and our shield. The current problem has arisen because of the difficulty in that the hon. Member for Tatton (Mr. Hamilton) wants to go to the courts to clear his name. In so doing, he issued proceedings for libel, and The Guardian pleaded justification. As I understand it, for the court to investigate the issue would have involved an investigation of what the hon. Gentleman had done in the course of his parliamentary duties. The court held that that was contrary to article 9, and the action was stayed.
Article 9 is the guarantee of our freedom of speech, and it protects us from actions against us for libel for whatever we say in Parliament. It is our shield, and it has been our 142 shield for centuries. The actions of the hon. Member for Tatton would have involved throwing away the shield and using our proceedings as a spear—they would certainly have had to be used as a spear—in the course of those proceedings.
I say immediately and sincerely that I have sympathy with the hon. Member for Tatton in his efforts to clear his name. Strangely, there has never been a case in English history in which an hon. Member has sought to bring a libel action that raised the question of his parliamentary conduct.
My hon. Friend the Member for Brent, South (Mr. Boateng) has already referred us to the well-known case of R. v. Pebble, a decision of the Judicial Committee. The court then decided that it could not inquire into parliamentary conduct, and that, if the effect was to stifle a defence—in that case it was a television company's— that defamatory allegations were true, the hon. Member's actions would be stayed. As I understand it, that was the position as regards the hon. Member for Tatton.
As I have said, I have the greatest sympathy for the hon. Member, and I certainly would not lend my name to allowing a ministerial career to be wrecked, at least temporarily, because he is denied access to the courts to attempt to clear his name. I am concerned about what is the right way in which to accomplish such access. In my view, an amendment that was passed at Third Reading in another place, without any previous consideration or consultation, is not the way in which to do it.
We are overturning with a simple amendment 300 years of history in which the system apparently worked. The old adage,hard cases make bad law",has more than a grain of truth in it. Lord Simon of Glaisdale, a distinguished former Law Lord, whom some of us—few, perhaps, by now—remember fondly as a particularly able and helpful Solicitor-General in a Conservative Government, advised caution on it in another place. He believed that this was a question of the highest constitutional importance. He wanted the whole matter to go before a Select Committee of both Houses. I am respectfully supportive: Lord Simon has much greater knowledge than me. I consider it strongly desirable for the issues raised in the amendment to be considered in such a way.
In the past few days, I have consulted one of the most eminent of our constitutional lawyers, Professor Sir William Wade in Cambridge, who has advised Governments all over the world—and individuals—on constitutional law. While he is relaxed on the issue of actually amending the Bill of Rights, he recommends further study before any change is made. That is good counsel, from someone who sincerely believes that justice should be done.
Why should the matter be studied further? First, it is not the privilege of an hon. Member—or any other Member—that we are discussing; it is the privilege of Parliament—the privilege of this House. I would be happier if an amendment had been carried allowing the House, when it was thought right, to waive that privilege in a fit and proper case. Secondly, speech after speech in the debate in the other place pointed out the unfairness of Members' not being able to clear their names, while ignoring the fact that that is precisely the position of the man in the street who is attacked by a Member during a debate in the House.
143 That curious state of affairs was ignored by advocates of a waiver, who were more than content to bask in the shelter of privilege while continuing to claim a right to disparage those outside without putting themselves in any danger. If a Member is allowed to take up his spear and waive the privilege of the House, may not pressure be exerted in due course for us to lose our shield as well? The public will want to know, and there will be pressure from that source.
There has been considerable interest in the matter in the Commonwealth, and at least one case has been dealt with there. Some may want to follow us, because they also have the advantage of article 9. Should we not hear what they have to say, and take evidence from them?
Thirdly, there is the issue of the definition of proceedings in Parliament. That, too, has been raised in another place. The High Court in the Strand might take one view, and this High Court of Parliament might take another.
Fourthly, what if more than one Member is involved? What if one wants to waive his privilege—or the House's privilege—and the other does not? During the debate in the other place, Lord Hoffmann said that he could not think of an easy answer. "Leave it to the judges": that is what he advised. Judges are used to handling tricky situations.
With respect, I doubt very much that the judiciary who must try such cases would welcome this particular baby if it were put into their lap. Surely, if Parliament wishes to change the position, it should resolve such obvious problems rather than walking away from them.
Lord Simon also asked why the issue should be limited to defamation. What if there were fisticuffs between two Members, or—perhaps more probable—between an investigative journalist and a Member? A reputation can be won or lost in such circumstances. Lord Lester pointed out that a Member who had been defamed would be under pressure to waive our collective privilege so that he could sue.
If the amendment is carried in both Houses, let there be no doubt that cross-examination will have few limits, and could possibly cover the whole of a Member's career and his actions in Parliament, rather than being confined to the narrowness of one incident. If we want to go along that road, we should know what the difficulties are. If the Select Committee agrees to my suggestion, and the suggestion of the Opposition, may I suggest some safeguards to the Committee?
First, the matter should be decided by resolution of the House, because that is the House's privilege—I believe that it can already act in that way—rather than through the waiver of an individual Member. Secondly, a Member should be allowed to refer his case to the new Privileges Committee, to see what the problems are and examine them.
Thirdly, if that Committee agreed—I speak as one who served for many a long year on the Committee of Privileges—it could, if it wished, recommend to the House that the House waive its privilege. That would be a better way of safeguarding a specific situation that had not been considered by the whole Select Committee; we are examining it now, perhaps a little more academically.
144 There may be other problems. One, raised in the other place, is that the Bill of Rights preceded the Act of Union, and does not, in its present form, apply to Scotland. We should not put our hard-earned right of freedom in the House in jeopardy—the right to speak without fear or favour, knowing that what we say will not be held against us in the courts.
Having read all the debates in the other place and considered the matter as widely as I could, I advise the House that the only proper course is to refer the matter to a Select Committee for further consideration.
§ Mr. Edward Garnier (Harborough)
I am grateful to be called, and will be as brief as I can.
First, let me declare an interest—or, perhaps, a predicament—as a practitioner at the libel Bar. Let me also place on record my thanks to the Neill committee, and to Lord Justice Neill and other committee members, for their work. I am afraid that they have not received unstinting praise from some hon. Members this evening; that is a pity, because they deserve it. Irrespective of whether we agree with their conclusions, their work should be recognised and they should not be abused in the House.
I know that a little knowledge is a dangerous thing, and I shall therefore confine my remarks to as brief a compass as possible. I am aware that other hon. Members who have found themselves in predicaments wish to speak. I accept that the new defence under clause 1 is worth having, and that we should allow it to work its way through the law of defamation to see whether it proves useful—I think that it will—but I should like to refer briefly to some other clauses, explaining why I agree with some and am concerned by others. I do not expect an answer to some—indeed, most—of my questions during the debate, but I should be very pleased to receive a written response to some of them if my hon. Friend the Minister finds that convenient.
Clause 2(5) states:An offer to make amends under this section may not be made by a person after serving a defence in defamation proceedings brought against him by the aggrieved party in respect of the publication in question.I ask, "Why not?" If a defendant, having overreached himself, realises that he should more sensibly come to terms with the plaintiff and he can do so by offering to make amends under clause 2, he should be allowed to do so even if that requires that he withdraw his already-served defence.
Clause 5 deals with limitation and I wish to echo the concerns of the hon. Member for Brent, South (Mr. Boateng), which, I believe, are uppermost in the mind of my hon. Friend the Member for Torbay (Mr. Allason). I suggest that a year is too short unless other safeguards are built in. I note the point made by the hon. Member for Brent, South that those who are involved in police disciplinary proceedings may exceed the year before the proceedings are concluded, but the court can take that factor into account when it exercises its discretion to extend the limitation period. Would not it be more sensible to leave the limitation period at three years rather than allowing an additional discretion to the court?
The same applies—the point may be made by my hon. Friend the Member for Torbay—to Press Complaints Commission matters. I stand to be corrected, but I 145 understand that the Press Complaints Commission will not accept complaints if proceedings have already been initiated. If a plaintiff issues proceedings within a few days or weeks of the cause of action arising, he is prohibited from going to the PCC. If the limitation period is to be reduced to a year, the rules of the PCC should be adjusted so that an action can be commenced. The proceedings could be stayed pending the resolution of the PCC hearing. The simple answer is to leave at three years the limitation period for causes of action in libel and slander and others in clause 5(3).
I also note the points that the hon. Member for Brent, South made about poverty. Some litigants will not be able to bring a case immediately because they do not have the funds. Many people are assisted by, for example, the Police Federation, other trade associations and trade unions and they are not inhibited by lack of funds, but others will not have such assistance and they should be given the opportunity to raise the money before bringing proceedings. As I said earlier, the court has a discretion to extend the limitation period, but it is tidier and more sensible to leave the limitation period as it is.
Clause 7 deals with the meaning of a statement and states:In defamation proceedings the courts shall not be asked to rule whether a statement is arguably capable, as opposed to capable, of bearing a particular meaning or meanings attributed to it.I welcome that change to the rules about the joining of issue on what a defamatory statement may or may not mean. At the moment, despite the introduction of order 82, rule 3A, the procedures for defamation are being used as a dead bat and not always as intended, following the case of Keays v. Murdoch Magazines (UK) Ltd.
I am worried about some of the philosophy behind the summary disposal aspect of the Bill. The provisions have some good bits and some less good bits and I am concerned about the limit of £10,000 in clause 9(l)(c). I appreciate that that figure can be adjusted—and may be adjusted—upwards, but many litigants do not want an award of what, to a newspaper, is no more than petty cash. They want a public vindication of their reputations. Even when the defendant cannot afford to pay the huge sums awarded as compensation, the fact that a jury or judge has awarded a large sum often acts as a vindication and a message to the world. One has to think only of the case of Lord Aldington, who was awarded £1.5 million. I must confess that I acted for one of the less successful parties in that case. I doubt that Lord Aldington will collect that £1.5 million, but at least the world knows that the jury thought so little of the conduct of the defendants—and possibly at least one of their counsel—that it found it necessary to award £1.5 million to mark its disapproval.
I appreciate that the cases that may come before the courts under the summary disposal procedure will not be the Aldington-Tolstoy type of case—under clause 8(4)(d), cases of serious libel, which are widely published, are not suitable for summary procedure—but the procedure still causes me some difficulties, not least because it gives the court editorial power over newspapers. The court will have the power to order a defendant to publish or cause to be published a suitable correction and apology. It would be better for apologies and corrections to be agreed between the warring parties, rather than ordered by the court. What will be the consequence of disobeying that order? Will there be a contempt procedure or will the court enforce the order in some other unspecified way?
146 I am also concerned about clause 10, which authorisesthe court at any stage of the proceedings—(i) to treat any application, pleading or other step in the proceedings as an application for summary disposal".The intention behind that is that the court should get a grip on proceedings that should not been allowed to live and dispose of defences that have no merit. I applaud the hands-on approach that the courts take these days and that the Bill would inject into this aspect of the law, but we should be careful about allowing the courts to take too interventionist an approach. Proceedings take place between two citizens and, ideally and subject to safeguards, those parties should work out how their cases and defences should be run.
Clause 13 deals with the rule under Scott v. Sampson. I am in two minds about the clause, although I do not intend to join the Liberal Democrats on that account. We must be careful that a case that may be about only the meaning of words—and thus, in addition, damages—does not extend into a long debate about matters that are not directly connected to the libel. I do not accept the criticisms made by my hon. Friend the Member for North-West Leicestershire (Mr. Ashby), sincere though they may have been, because some of them were unreal. But there is a danger that a simple trial could be extended unnecessarily or unfairly because a plaintiff must have a right to respond to, and to seek to demonstrate to be untrue, the allegations made against him in mitigation of damages by the defendant. We must be careful not to extend trials unnecessarily.
Clause 14 is the most contentious. I shall not enter a long argument about the merits or demerits of the amendment tabled by Lord Hoffmann in another place, but I ask my hon. Friend the Parliamentary Secretary, and others interested in the subject, to study carefully the report of the Third Reading of the Bill in another place on 7 May at columns 29–33, 33–35 and 38–42 and to read Lord Hoffmann's speech at columns 24–29. There is much to be learnt there and some of it has been repeated by the hon. Member for Brent, South and the right hon. and learned Member for Aberavon (Mr. Morris). Others may share their views, but I think that it would be a mistake, despite my great sympathy for my hon. Friends the Members for Tatton (Mr. Hamilton) and for Torbay.
Following his success in the law courts on a number of occasions, although not last week, my hon. Friend the Member for Torbay can probably be dubbed "my learned Friend". He certainly claims to be.
I think that it would be unwise to bolt on to a defamation Bill a clause that will fundamentally adjust the relationship of hon. Members with their constituents. After all, we are the guardians of the privileges of Parliament and we should be careful before putting them into the hands of an individual hon. Member.
My hon. Friend the Member for Torbay was not quite right when he said that unless the clause is part of the Bill no Member of Parliament will be able to bring a libel action. Article 9 of the Bill of Rights comes into play only in cases that will require a court to impeach or question the proceedings, speeches or debates of the House or another place. All I ask is that my hon. Friends bear it in mind that this issue is bigger than their personal problems.
147 I do not say that to belittle their appreciation of their own problems, but the constitutional issues are bigger and should be thought about more carefully before we include clause 14 in the Bill. I suggest that a more sensible means of dealing with it should be found.
Statutory privilege is dealt with in clause 15. It is a welcome updating of the list of proceedings that can be safely reported by non-malicious newspapers. I know that my hon. Friend the Member for North-West Leicestershire does not believe that there is such a creature as a non-malicious newspaper, but I can assure him that there is, even if we do not meet it very often.
I have a problem. Paragraph 12 in part II of the schedule to the Defamation Act 1952 states:A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of any government department, officer of state, local authority or chief officer of police.That was included in the category of statement that was privileged subject to explanation or contradiction. It seems to be missing from the schedule to this Bill. I wonder whether that is a mistake.
§ Mr. Peter Bottomley
While my hon. and learned Friend is dealing with qualified privilege, does he think that it would be appropriate, between now and the Committee stage, to look at the judgment referred to this morning in The Daily Telegraph where a press conference was held by a judge not to be a public meeting and a newspaper lost an action on those grounds? Should not that be clarified at the same time?
§ Mr. Garnier
I am sure that if my hon. Friend is lucky enough to be chosen to be a member of the Committee, he will be able to draw that to hon. Members' attention.
Those are my brief comments about this otherwise welcome Bill. It brings up to date certain aspects of the law of defamation and I fear that it may bring me some pleasure a little further down the Strand. That is another matter and the Nolan committee may prevent me from speaking on it in the future. When my hon. Friend the Parliamentary Secretary has a few quiet moments, I hope that he will consider the points that I have made, which apart from my comments on clause 14 are not destructive of the passage of the Bill, which, in broad essence, I am happy to welcome.
§ Mr. Alex Carlile (Montgomery)
Although I am a practising member of the Bar, I would not claim the expertise of the hon. and learned Member for Harborough (Mr. Garnier) in defamation law. I recall once drafting a statement of claim against the Liverpool Daily Post, and there ceases my contribution to the annals of defamation law. Sometimes in later life we gain the opportunity to dip our finger into that lucrative field which the hon. and learned Member has enjoyed for many years, although no doubt less so now because of his responsibilities in the House.
Clause 14 has become known as the Hoffmann amendment. The hon. Member for North-West Leicestershire (Mr. Ashby) took good and ample advantage during his speech of his parliamentary 148 privilege—well, not of his parliamentary privilege, but his right to use the privilege of the House. The confusion in the way in which I just expressed that depicts the misunderstanding of the dilemma facing many hon. Members.
The privilege is not the privilege of an individual hon. Member, but of the House. Indeed, in the Privy Council case of Prebble, Lord Browne-Wilkinson, on behalf of the Judicial Committee, said:The privilege protected by Article 9 is the privilege of parliament itself. The actions of any individual Member of Parliament, even if he has an individual privilege of his own, cannot determine whether or not the privilege of Parliament is to apply".Those words seem to define clearly the dilemma that we face: are we to hand to individual hon. Members an immunity—a privilege—of the entire House, which has been such since article 9 was enacted?
What troubles me greatly is that we do not have the tradition in either this House or the other place of granting hon. Members immunities from suit. The Hoffmann amendment smacks of the continental tradition of giving members of legislatures immunities from suit or at least the right to pick and choose their way among the privileges available to such a member.
It is worth reflecting on the fact that far more hon. Members have enjoyed the protection of privilege than have suffered from its limiting effects. Probably every day in the House hon. Members take advantage of parliamentary privilege for the benefit of their constituents, whereas, once in a lifetime a case such as that affecting the hon. Member for Tatton (Mr. Hamilton) comes before the courts showing itself to be an anomaly.
I am sure that all hon. Members have a degree of sympathy with the hon. Member for Tatton, who wishes to bring his action. I would not seek to obstruct his ability to do so, but it seems that the Hoffmann amendment is not the way to do it. Indeed, it is not clear that Lord Hoffmann thought that it was the way to do it. In the other place he said that it would be wrong not to test the opinion of the House and a Division then took place. One cannot escape noticing that, having commended the amendment to the other place, although Lord Hoffmann did not vote against it, he did not vote for it. That creates a puzzle. It seems to indicate that he may have had some misgivings about whether it was appropriate, although he did not express himself in terms of neutrality when moving the amendment.
§ Mr. Jonathan Evans
For the sake of clarification, I should make it clear that in his speech Lord Hoffmann gave the other place an indication of his intention not to vote on the issue. He indicated, in general terms, that he did not consider himself to be an advocate, but felt that in the circumstances it was necessary that the issue should be debated. It would be wrong to invest some sort of mystery into his actions.
§ Mr. Carlile
I read the debate and saw that he said something along those lines. However, it is right to reflect on the fact that it is not unusual for Law Lords to speak in debates or for them to vote. It is not all that unusual for Law Lords to move amendments where they feel that it is appropriate to do so, and it is normal for them to support those amendments. What happened in this case was highly unusual and we have not heard Lord 149 Hoffmann's explanation of why he acted as he did. Since that debate, it has been brought to my attention that many of their lordships thought that Lord Hoffmann's decision not to support his amendment was odd. They wish to hear an explanation of why he acted in that way.
On this important issue, it does not present much of a challenge to produce an amendment to article 9 of the Bill of Rights that would meet the requirements of the hon. Member for Tatton and the requirement of retaining the privilege as the privilege of the House.
§ It being Seven o'clock, and there being private business set down by direction of THE CHAIRMAN OF WAYS AND MEANS under Standing Order No. 16 (Time for taking private business), further proceeding stood postponed.