HL Deb 28 July 1952 vol 178 cc304-24

2.57 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Viscount Simon.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DROGHEDA in the Chair]

Clause 1:

Broadcast Statements

1. For the purposes of the law of libel and slander, the broadcasting of words by means of wireless telegraphy shall be treated as publication in permanent form.

EARL JOWITT moved, to delete all words after "slander" to the end of the clause, and to insert: words spoken and published after the passing of this Act shall not require special damage to render them actionable provided always that in any action for words spoken and made actionable by this Act a plaintiff shall not recover more costs than damages unless the judge otherwise orders. The noble Earl said: I rise to move the first Amendment in my name. I do not wish to discuss it at great length. I merely wish to put the matter as simply as possible before your Lordships, because I quite realise that this is a controversial point.

I have been for many years of opinion that the time has come to abolish the distinction between libel and slander. I told your Lordships on the last occasion that I had been fortunate enough to have been trained in the law by Sir William Holdsworth, and that was his view and the view of many great thinkers on the law. We often talk about the academic lawyers. Some of my colleagues who practise in the Law Courts are apt to feel that they have a chance to get their own back, because academic lawyers always criticise us, and now we have a chance of criticising the academic lawyers. But it is not only the academic lawyers I would cite. I would cite also the Report of the Select Committee of 1843, when many great lawyers such as Lyndhurst, Brougham, Cottenham, Campbell and a large group of them took this view. In spite of that, very little has been done. I was surprised to see that the Lord Chancellor thought that the case against this Amendment was overwhelming, but I cannot think it is overwhelming, unless you are to assert that all these very eminent men were completely and absolutely in the wrong; and I should hesitate to do that. But there it is: that has been the law on the question, and the question is whether it should continue or not.

May I put the matter in this simple way, for the benefit of noble Lords who are not lawyers? Let us assume that you make a defamatory statement in a letter to a friend, mark it "Private and confidential," and send it to your friend. It goes to one person. The law has been that if that comes to the ears of the man who is defamed, he can, undoubtedly, bring his action and recover damages. If, on the other hand, you make a statement in what used to be called the Free Trade Hall, Manchester, or in a broadcast, or at the Albert Hall, if you make a statement to a vast gathering but you do not submit it to writing, that cannot be the subject of an action—subject to certain exceptions—unless the person defamed can prove that he has sustained some pecuniary damage.

For instance, you may say of a man: "Poor old fellow, he has given way to drink." Unless the man can prove that he has sustained some pecuniary damage, he cannot bring an action. You may say of a man: "He goes over to Ostend every week, with a new wife every time." He cannot bring an action—subject to the exceptions. If you accuse a man of a crime and bring yourself within the exceptions, then he can bring an action; or, if he can show that the words are spoken of him in the way of his business, then he can bring an action. But to say of a man: "He has taken to drugs," is not actionable. May I give your Lordships an illustration which came to my notice not very long ago, about a certain lady of some position? It was said at many a dinner table to which I went that she had changed her sex. I expect many of your Lordships heard the rumour. Probably, there was not a vestige of truth in it. I can imagine absolutely nothing more distressing or annoying to that lady, but she could bring no action unless she could prove—and she obviously could not—that she had actually sustained some pecuniary damage. It seems to me that this is a monstrous thing.

Should it be altered? So far as I know—I speak subject to correction—there is one argument, and one argument only, which has been advanced against this proposition. I think this is the only argument, but the Lord Chancellor found this argument overwhelming. The argument is this: that if you allowed people to bring actions for slander (that is, spoken words) without proving special damage, you might have the courts cluttered up with a very large number of comparatively trumpery actions. That is why the great majority of Lord Porter's Commission came to the conclusion that it would be wrong to assimilate the law of libel with the law of slander. Is that true? I referred to this point on the Second Reading, but I refer to it again very briefly. There was introduced into this House in the year 1891 a Bill to enable a woman, where words were spoken against her chastity, to bring an action without proof of special damage. Lord Macnaghten moved the Bill, Lord Selborne and Lord Bramwell were amongst those who supported it, but Lord Halsbury was very hesitant about it, because he raised this argument. He said: "If you do pass this Bill, there will be a large number of trumpery actions." But the Bill was passed and they put into the Bill a clause which I reproduce in this Amendment of mine—my Amendment is borrowed straight from that Act—to this effect: that you are not to recover in such an action more costs than you do damages.

I expect any of my colleagues who has had experience in the courts will agree with me that although there have been actions under the Slander of Women Act, yet they have been surprisingly few. I do not recall ever having myself been concerned in an action under the Slander of Women Act. Possibly people are induced not to bring actions by reason of the fact that actions of this sort can be brought only in the High Court, and they are rather expensive. You cannot get legal aid, or anything of that sort, to bring them and, of course, you always run the risk of having to pay your own costs. If you are awarded only £5 damages, then you can get only £5 costs. I have reproduced that clause here in the belief—I cannot, of course, give any guarantee—that trumpery actions will not be brought. In the discussions in 1891, Lord Bramwell said: "The only way you can guarantee that there will not be actions brought is by not giving a right of action." But are we not to give right of action in a proper case because of the risk that trumpery actions may be brought? A slander may be widely repeated, made to a large audience, and it may do very great harm—far more harm than can be done by a libel, which is written in a single letter. I maintain that it is right and proper that actions for slander should be brought without the necessity of proving special damage.

That has always been the law in Scotland and, so far as I know—I speak as a child in this matter—there are not a large number of slander actions brought in Scotland. It is the law now in two States of Australia, as I said the other day, and I hold in my hand a letter from the President of the Law Council of Australia, in which he explains the law there. He says that in Queensland and in New South Wales, where slander and libel are the same, so far as he can see the number of actions is not larger than in Victoria and the other States where they are not the same. It is the fact that there also they have a provision similar to that which I am proposing to-day. Indeed, they go rather further, because he summarises Section 5 of the Defamation Act, 1912, in this way. He says that it: provides, in effect, that on the trial of any action for defamatory words which do not impute the commission of an indictable offence, if the jury are of opinion that the words were spoken on an occasion when the plaintiff's character is not likely to be injured thereby, then the jury may find a verdict for the defendant. Some provision of that sort would be perfectly satisfactory to me.

I quite understand what is said. It is said that you do not want to interfere with what a judge once called the "tittle-tattle of the tea-table at Tooting." I quite understand that, but is there really any risk of that happening, if there is a provision that a plaintiff is not to recover more costs than damages? Otherwise, there will be, inevitably, very great hardship. I told your Lordships the other day of a case which came to my notice when I was at the Bar, which concerned the headmaster of one of our great public schools who had to resign because of ill health. He got much better. He came back on a visit to the old town about a year afterwards. He was hoping to get some other job as headmaster and he heard a rumour—in fact it was going all over the place—that he had behaved badly and committed adultery with some woman in the town, and that that was the real reason why the council had got rid of him. There was no vestige of truth in the story, but, believe it or not, I had to tell him: "Well, assuming that you manage to prove it, assuming that you prove that these things are said—and I assume that they are wholly untrue—there is nothing you can do about it. It is slander but you cannot prove special damage. There you are." I think that is wrong. In a case of that sort a man ought to be able to go before a jury, in a proper case, and get himself cleared.

I am proud to think that, though the argument to the contrary may be overwhelming, I have at my side in this matter that galaxy of talent in this House of a hundred years ago. I am proud to think also that I am proposing to make our law comparable to the law of Scotland and to the law of those two States in Australia that I have mentioned. Although, of course, there is a risk that more cases may be brought—as, indeed, there is wherever you give a cause of action—experience has shown that the fears which were felt in 1891 when the Slander of Women Act was introduced have not materialised. Now, in this country, we regard both sexes as equal, and I cannot see why it should be actionable per se to make imputations against the chastity of a woman and not actionable per se to make imputations against the morals of a man. I gather that this view does not generally find favour, but I thought it my duty to raise the point because I, at any rate, believe that the time has come when these two systems ought to be on the same footing. I beg to move.

Amendment moved— Page 1, line 5, leave out from ("slander") to end of line 7, and insert the said new words.—(Earl Jowitt.)

3.12 p.m.

VISCOUNT SIMON

The noble and learned Earl, Lord Jowitt, made a speech of much persuasiveness on the Second Reading raising this point, and to-day, as is natural and proper, he has again presented with his usual skill, and I am sure with the greatest sincerity, many of the same considerations. I certainly do not take the view that the argument in this matter is all on the one side. One could not possibly say that when one considers that there is considerable academic opinion at the present time in favour of this change, and in view of the fact that there are other countries under the British Flag where, I understand, there has been a change in the law, to a greater or less degree, in the direction which the noble and learned Earl so earnestly recommends to the House. But just as I am very willing to accept the view that the case for resisting the noble Earl's Amendment is not overwhelming, so I do not think it reasonable that the view should be taken that the argument is practically and considerably the other way. The real truth is that, in framing statutory provisions about the law of defamation, we have to choose the sensible way between two principles, each of which is greatly to be admired but both of which run into some conflict.

On the one hand, it is extremely important that we should have a law which enables people who are damaged by slanderous and untrue statements to have some protection and remedy from the courts. The noble Earl has, with his usual skill, indicated some cases of that kind. But there is another principle commonly known as the principle of free speech. We live in a community in which there is carried on a good deal of verbal horseplay, a good deal of gossipy observations about third persons, sometimes humorous, sometimes sarcastic, sometimes prejudiced, sometimes exaggerated, but which, none the less, ought not to be strictly restrained, because, if it were, we should lose a most priceless element in our society. It is better for us to accept. the fact that people may say what they like; but there are cases where what they proclaim of third parties does so much damage that the law must provide some remedy to prevent it. But it is really not imaginary to say that if we made this change we should expose ourselves to all sorts of claims which could then be made in courts of law but which cannot be made now. I hope that I shall not be thought to be wasting time or acting lightheartedly if I remind your Lordships of one of the passages at the very beginning of Pickwick Papers.

Mr. Pickwick was at a meeting at the Pickwick Club and controversy arose over some very small matter. In the course of this controversy people in the club became very heated, and Mr. Blotton of Aldgate was pleased to say about Mr. Pickwick, "Sir, you are a humbug." Thereupon there began a most tremendous altercation which was only appeased in the end by Mr. Blotton's explanation that the word "humbug" had been used only in a Pickwickian sense. There is not the slightest doubt that if this change in the law were made, Mr. Pickwick would he entitled to bring an action against Mr. Blotton. He would be entitled to say, "You have slandered me and I am entitled to damages without proving special damage." Even though Mr. Blotton explained, with the support of the Chairman, that he had used the word only in a Pickwickian sense, it would remain for a jury at the trial to decide whether or not that was in the circumstances the meaning of "humbug," and whether it was not understood to be defamatory. There would be thousands of such actions brought, not only by men but by women. Every woman who conceived herself to be reflected upon unfairly at a whist drive by some other person taking part in the evening's entertainment would, by virtue of an Amendment like this, be at liberty to bring an action.

My noble friend said just now that something of the sort which he recommended had already been provided for in some Australian States. He has much more information about this matter than I have, but I am informed that in those States there is an express provision in their law which does not allow frivolous actions to be brought. How you define a "frivolous action" I have not the slightest idea. At any rate, such a thing might easily happen, and it is clearly very undesirable. It is not only undesirable because it is not a proper way to use the courts of law but also because, in the circumstances, it does considerable injustice to the defendant. It is all very well to say that the plaintiff will not be allowed to get more costs than damages, but what about the defendant? Even if the defendant succeeds in such cases, he will not get from the plaintiff the full amount of his expenses. There is a risk, in the opinion of many people, that this would be a most undesirable extension of the law.

I agree that there are possible hard cases such as those which my noble friend has mentioned. But what we have to do is to lay down a rule and to decide on the whole which is the better rule to lay down. When it is asked: "What is there to be said against this? "I can shorten what I have to say—and gain, I think, considerable support—by quoting remarks to your Lordships which proceeded from the Porter Committee on this subject. They said, after admitting, of course, that the distinction between libel and slander in these cases is not entirely logical, that none the less The present exception to the general rule that actions for slander to be successful require proof of special damages has, indeed, no logical basis or principle on which to rest, but it exists and forms a not unsatisfactory compromise which gives adequate protection in the common run of cases, whilst avoiding the encouragement of trivial complaints. As a working rule it is not amiss. I must confess that I am impressed that view, and noble Lords will remember that on Second Reading the noble and learned Lords, Lord Porter and Lord Tucker, and the Lord Chancellor, expressed the view that that was the better attitude to take.

There is one further circumstance. This is a Bill which has reached your Lordships' House from another place, where it was fully discussed over many days in Committee, and afterwards on Report, and it comes here with the recommendation that, broadly, it follows the Porter Report. As I have just observed, that Report is directly opposed to the Amendment now suggested. I think it would be a serious thing, in dealing with a Private Member's Bill at this time in the Session, if we were to send the Bill back with this very material change in it. That would give an opportunity for prolonged discussion in another place, at some risk to the prospects of the Bill reaching the Statute Book, as the noble and learned Earl and the rest of us all hope it will.

The real truth is that verbal horseplay is a characteristic of the life of the British people, and I hope that it will remain a characteristic of our life. There is such a thing as being too squeamish about observations, though they may be slanderous, made about oneself to other persons. Whilst I agree that there is academic authority for this change, I hope that, without presumption, I may submit to the House that the sensible view to take is not to endeavour to change the law in this particular. In saying so, I know that I have the support of some who have had the greatest practical experience of conducting actions of this class of case in the courts, and I imagine that noble Lords would be greatly moved by the views expressed, which may be expressed again, by the noble Lords, Lord Tucker and Lord Porter, and by others.

I say nothing about the reference to Scotland. There is present this afternoon a noble and learned Lord much better qualified than I am to speak about that aspect. But I would point out that I do not think it follows, because the law of Scotland is slightly different, that in this Bill we should proceed to adopt the law of Scotland—not in the least because I have not the greatest respect for the Scottish system of law, but because I feel it is not desirable to make this sort of change in English law, change which is necessarily made publicly known, if it is calculated to encourage frivolous actions. If it had always been our law, it would not have mattered so much, but to change the law now because of certain hard and difficult cases would be a mistake. I am anxious that we should get on with the Committee stage and I hope that I have not spoken at too great length, but these are the reasons why I suggest we should not accept this Amendment. I hope that my noble friend Earl Jowitt will feel that I have spoken in a reasonable spirit. I do not at all denounce his view, which he obviously holds with great sincerity. But this is not a case of a view which may be reasonably held; it is a question of balance and of keeping the law as it is, so far as we can, without placing additional difficulties in the way of this Bill going through its final stages and so reaching the Statute Book. For these reasons I must resist the Amendment.

LORD SILKIN

I have listened to two speeches from two eminent lawyers, both with completely conflicting views, and I am bound to say that I feel the noble and learned Viscount, Lord Simon, has not made out his case in opposition to this Amendment. I recognise that there are two conflicting principles at stake; one, that for every wrong there ought to be a remedy, and the other, that we ought not to encourage vexatious and frivolous actions. I should say that the view that for every wrong there must he a remedy ought to predominate and I do not accept the noble Viscount's assumption that the vast majority of cases of slander would be vexatious and frivolous. My noble and learned friend Lord Jowitt has given examples of cases where grievous wrong can be done to an individual, as the result of slander, without there being any remedy at all, and I should halve thought there ought to be a much stronger case for resisting the amending of the law to provide a remedy in these cases than has been given.

On Second Reading, the noble and learned Lord, Lord Tucker, referred to the fact that he was the only member of your Lordships' House who had actually tried these cases. I am the only member who has spoken on Second Reading and to-day, who has actually had to advise clients on these matters over a long period of years, and I assure the Committee that the number of these cases is very small. There is a natural limitation of the number of cases that reach the courts. A slander action is a fairly expensive proposition, and there is no opportunity of getting assistance from the State to fight it. If a person felt himself injured by a verbal statement, the first thing he would do would be to consult a solicitor, who at once would advise him that if lie lost his action he would be involved in several hundreds of pounds of costs. Moreover, if he won and got small damages, he would get no more costs than the amount of damages, if this amendment were accepted, and would have to bear the burden himself. That is a salutory deterrent to the commencement of actions.

The noble and learned Viscount referred to the importance of freedom of speech. Of course it is desirable that people should be able to speak freely about one another, within reason. There should be legitimate criticism. There should even be permitted a certain amount of what the noble Viscount called "verbal horseplay," and a limited amount of abuse; but we are not concerned in this Amendment with that type of case. We are concerned with untrue statements that are calculated to damage the character and injure the person about whom the statements are made. If we are to regard any restraint on statements of that kind as a limitation of freedom of speech, I cannot see a difference in principle between that kind of limitation and limitation of freedom of statement in writing. Every argument which the noble Viscount put forward objecting to this Amendment on the ground that it would limit freedom of speech would apply equally to libel actions. They constitute a limitation of the right to say what one likes in writing.

The noble Viscount made play with the word "humbug" in a Pickwickian sense, but even under present law it is possible to apply for the dismissal of an action on the grounds that it is frivolous and vexatious. If anybody ventured to bring a slander action on the ground that he had been called a "humbug," or some other normal term of abuse, there is no reason at all why a leaned judge should not dismiss such an action, or even the Master in Chambers, on the ground that it was vexatious and frivolous.

VISCOUNT SIMON

I do not think my noble friend, with his knowledge of this subject, and his experience, will say that, in practice, it is possible to get an action dismissed at an early stage because it is frivolous and vexatious.

LORD SILKIN

I do suggest that. I admit that the number of such cases is very small. I readily admit that a judge would not freely dismiss an action at an early stage on that ground; but I have known it happen in the course of my career, and I am sure that the noble and learned Viscount has also known it happen.

VISCOUNT SIMON

No, I have not.

LORD SILKIN

Then I have the advantage of the noble and learned Viscount in that respect. I have myself, on application on behalf of a client, had an action dismissed which was obviously vexatious. But those cases are rare, and I do not make too much of that point.

The fact is that, if we have to choose between the risk, on the one hand, of having a certain number of unnecessary actions in the courts, and, on the other, of a continuance of a wrong—the continuance of a situation in which people have the most cruel and heartless things said about them, without a remedy—then I would rather take the first risk. I would risk opening the door to such people who have been injured, and giving them the opportunity of having their cases heard and their characters vindicated; of allowing a certain number of possibly unnecessary and frivolous actions going to the courts. As I have said, I think there are effective restraints against many of them—one of which is the fact of people having to bear the costs of these frivolous actions themselves. I hope that this amendment of the law—which even Lord Porter's Committee recognised as being a logical one, but which for other reasons they thought it right to reject—will be agreed to by this Committee.

LORD PORTER

I should like to put a proposition to the noble Lord who has just spoken, who said that he had known of the dismissal of a case in limine as being frivolous and vexatious. All I would say is: Was that a libel or a slander case? I have never known such a case dismissed in limine. I do not believe that it could be. That is all I have to say on that matter. The noble and learned Earl who opened the discussion against this Amendment rather suggested that we had not sufficient belief in the views of the academic lawyers. That is not true, so far as I am concerned. I have the greatest possible respect for the academic lawyer and, what is more, I think that a body like ours, which has the final decision in matters, is all the better for having those who can criticise the situation, so that we know where we stand. But it does not follow that they are always right when it comes to practical questions, as opposed to our views, when those views are the matters under discussion. This question we are dealing with now is really a practical one: Would the adoption of this Amendment do more good or more harm? As the noble Lord who has just sat down said, as a logical matter we might well say: "Why not put libel and slander in the same category?" The answer is that, in our view, it would tend to make for frivolous actions. It is all very well to say that the protection lies in the costs which have been incurred. But one of the reasons for this Bill is what has been known as the "gold-digging" action in cases of libel. There, though in fact the "gold-digger" faces the fact that he will have to pay the costs if he fails, nevertheless, as a rule, he is a man (or a woman) of no means whatever, to whom it does not matter two straws whether he (or she) wins or loses the case. One thing we are afraid of is that, if we throw open the courts to actions of slander without special damage, there may be an extension of these claims.

There is then a third proposition. When you have your words written out, anyone can say: "There are the words. What do they mean?"—subject, of course, to a court deciding what may be the innuendo you place upon the words. Anyone who has tried cases—accident cases, depending on people's recollection and that kind of thing—knows that you cannot trust the human memory; nor can you trust human observation. You find people saying: "He said this or that about A B," jumping to conclusions, and thinking that things have been said which in fact have never been said. That is another risk which you run if you throw open the courts to this class of case.

VISCOUNT SIMON

It may be six years afterwards.

LORD PORTER

My noble and learned friend reminds me that in cases of libel you are confined to two years, but that, owing to some misapprehension in the body that recommended it, in cases of slander the limit is not until six years after the alleged slander is uttered.

There are two further matters with which I want to deal. One is this. There has been a good deal of reference to the slander of women. That is an entirely different matter, as I present it to your Lordships. No woman is going to bring an action, with all the scandal involved, unless it is essential. It is not like the case where some petty tittle-tattle has been spoken about her. A woman will not bring an action, knowing that it is likely to be said, "There is no smoke without fire," or something of that kind. That being so, you cannot get any real knowledge from the Slander of Women Act, when you relate it to matters of ordinary tittle-tattle or ordinary conversation. The other thing I want to say is this—and it does not come in here quite so much as it does later. We have put in the Bill a protection for people of whom slander is spoken which will affect them in their business, whether it is spoken of them in the way of their business, or not: if it disparages them in their business, they are protected under the Bill. That does away with a great deal of the criticism the noble and learned Earl made, though not the whole of it. On those grounds, I suggest to your Lordships that the Bill is right and that the criticisms are wrong, even though it may be that you leave some wrongs unrighted.

3.39 p.m.

VISCOUNT ST. DAVIDS

I came down to the House this afternoon convinced that it would be very much for the protection of the individual if this Amendment went into the Bill. In listening to the speeches, I have been impressed by the great weight of those made by noble and learned Lords against the Amendment. But what really impresses me is the fact that this Amendment is, and apparently has been for some time, the law of Scotland, without there having been a large number of frivolous and vexatious actions such As noble Lords apparently fear. With all due respect to the people of Scotland, surely they are not less frivolous or vexatious than the rest of the people of Britain. If it works so well in Scotland, why should it not work here? We have, of course, within the British Commonwealth a great many different sets of law, and some of them differ slightly from others. In many cases the difference adds considerably to the protection or liberties of the people of that particular part of the Commonwealth. Surely we ought to look around our various bodies of law and see where it has been proved possible to add fresh liberties or fresh protection to our people and, where such a proposition in the law has proved successful, to adopt it throughout our other bodies of law. If it works well in Scotland, why on earth should it not work well here?

LORD SALTOUN

I think I can answer the noble Viscount, Lord St. Davids. It is, I believe, for this reason. Long before you had legal aid in England, we had in Scotland what amounted practically to legal aid, and I have known few people so poor that they had not an agent or a man of business. Those are the people who are most ready to take slander actions. I do not believe I have ever met any solicitor or agent in Scotland who would willingly undertake an action for slander, and I think we owe it to the legal profession in Scotland that there are so few actions. I speak humbly in the presence of the noble Lord, Lord Normand, but I do know something about the life of the people in Scotland and I think that that is probably one of the most important reasons.

LORD NORMAND

A good deal has been said about the law of Scotland, and I have been concerned with the practice or the administration of the law in Scotland for more than forty years. It is perfectly true that for centuries the law of Scotland has made no difference between libel and slander. It is also true that for hundreds of years there have been far fewer actions for defamation in Scotland, relatively to numbers, than there have been in England. Therefore it is argued that there need be no fear of assimilating in England the law of slander to the law of libel—no fear, that is, that any material increase in the number of actions will result. I think the argument is fallacious. One reason, and perhaps the greatest reason, why there are so few slander and defamation actions in Scotland is the Scottish jury. Since I came to England I have learned the phrase "a gold-digger's action." I can assure noble Lords that anybody who seeks to "dig gold" using a Scottish jury as a spade is wasting his time, and that one great check upon the number of actions, and particularly trivial actions, is just the reluctance of Scottish juries to award unreasonable damages. One other important thing is the reluctance of Scottish juries to look with favour on far-fetched innuendoes. These two things together have, in modern times—at least since the introduction of the jury trial of civil actions in Scotland, 120 years ago—prevented any large number of defamation actions.

I am sure it is fallacious to think that you can argue from what has happened in Scotland to what may happen in England. In answer to one noble Lord who has spoken, I should like to say that there can be no greater fallacy than to look round England and Scotland and find what parts of the law have worked well in either country and then to try and make an amalgam with both. The one certain way of ruining two good systems of law would be to try and make a patchwork out of those parts of the law which have worked well in Scotland and those which have worked well in England. I know that there are many parts of the law of England which have worked well enough here which would be most unacceptable to the people of Scotland, and I am quite prepared to believe that there may be parts of the law of Scotland which have worked well enough there but which would be unacceptable to the people of England. After all, laws are made for people, and it is important that we should remember that, when we are discussing a matter which may touch the intimate life of members of the public in the way in which the law of defamation—especially defamation by spoken words—may do. I do not rise in order to press upon noble Lords a decision in either sense. I should not take part in a Division. I am not an Englishman, and I have no desire to use any influence at all upon the decision of this particular Amendment, but I do wish to correct some misconceptions about the law of Scotland. One thing I should like to say is that the people of Scotland are at least as defamatory in their language about one another as are the people of England.

LORD TUCKER

I ventured to address your Lordships on the Second Reading of this Bill only on the ground that I have had experience of trying libel and slander actions. On that occasion I referred to the fact that the noble and learned Earl had cited the opinions of academic lawyers in support of his case on this point. In his observations to-day he rather gave the impression that I, or perhaps others, had spoken on this subject with a view to "getting our own back" on the academic lawyers. I can assure your Lordships that that was not my object, nor have academic lawyers anything of mine that I desire to get back. What I was endeavouring to put before your Lordships was the view that judges are sometimes entitled to be heard on these matters. They are seldom heard on any matters to do with the law, because it is not fitting that they should make public comments with regard to the law. It is only when they get to your Lordships' House that they have an opportunity of being heard on this subject.

For better or for worse, my considered view is—despite what may have been said by my distinguished predecessors in the year 1846, and despite what may have happened in the year 1891—that it would be a retrograde movement to introduce this very considerable change in our law, a change which, whatever view you take of it, may vitally affect every man in his everyday life, because few of us, I suspect, pass many days without at some time or another saying something which is defamatory of somebody. This Amendment would introduce a very considerable change in the law of the land, and I believe it would be a change which might tend to produce a number of actions the entertaining of which would be a waste of the time of the courts.

I do not think that the suggested provision with regard to costs and damages would be any great safeguard in that respect, and for this reason. Of course, if the plaintiff gets only a farthing damages, or only £5 damages, well and good. Even then, as has been pointed out, the defendant has his own costs to bear. But take the case—and at present there are many instances of it—where a plaintiff in an action which the judge may consider frivolous and one which should never have been brought, gets £50 or £75 damages. He will, under this proposal, get £75 costs, as well as £75 damages. I think that would be wrong, and I do not consider that this proposal would be much of a safeguard. I rise merely to tender my evidence on that point, and I would support the noble and learned Viscount's opposition.

LORD OAKSEY

I rise for a moment only for the same purpose as that which the noble and learned Lord, Lord Tucker, has just expressed. I do not think that there are any other arguments which need be advanced in favour of opposition to the Amendment. I have had the honour of being a Queen's Bench Judge for twelve years and, of course, have had to try a certain number of these cases. I wish, as Lord Tucker has done, to give evidence that I am in favour of opposing the Amendment.

3.50 p.m.

THE LORD CHANCELLOR (LORD SIMONDS)

I rise for a moment to say something on the language which I used on the last occasion and which the noble and learned Earl, Lord Jowitt, has criticised. When I said that the case was, as I thought, overwhelming against the change which he advocated, I by no means intended to belittle the cogency of the argument which he put forward. What I intended was this. What is proposed by this Amendment represents a great change in the law, affecting us all, possibly, in our daily lives—though I should hesitate to go so far as my noble and learned friend and suggest that something defamatory about somebody is said nearly every day by most of us. But it is a great change in the law as it has subsisted for these many centuries, a change which might, indeed, have been made in the year 1891, when a change certainly was made—a change for which I believe there is no popular demand whatsoever and a change which was carefully considered by the Committee over which my noble friend presided; and a change to which nine out of eleven of the Committee were opposed.

It was in those circumstances that I thought—and I venture still to think—there is an overwhelming case against such a change, for on this Committee there was not only my noble friend who has spoken, and who, as a Judge in the Queen's Bench Division, has had a wide experience of cases of libel, but also Lord Justice Birkett, as he now is, Sir Valentine Holmes, and Mr. Justice Slade, as he has now become. All these men had the widest experience of this branch of the law and they were all against the change. I venture to say that in these circumstances there is an overwhelming case against the change, though I hope the noble and learned Earl will not think that I used the expression on the last occasion in any way as derogatory of his argument.

It has not, I think, been sufficiently brought out that there is a great contrast between words spoken and words written. Where words are written there is no doubt about the words used; as the old saying has it litera scripta manet. Moreover, when a man takes up pen and paper the hand directs the pen, and the brain directs the hand: it is a deliberate act in which he sets out to say something which will be libellous. There is no such deliberate act about slander. Although there may be slanderers who are vicious, in ninety-nine cases out of a hundred the slander is a spontaneous, impetuous observation, calling someone something which he should not be called, and that is the case which is so easily brought before the courts. It seemed to me that the noble Lord, Lord Silkin referred to some hard cases, and such hard cases would make bad law. So it is that, for my part, although this is not a Government Bill, I do speak as a member of Her Majesty's Government; and I say that certainly I could not recommend anybody to vote for this change in the law. Therefore, with all respect to the cogency of the noble Earl's argument, I must resist his Amendment.

EARL JOWITT

We have had a very good discussion on this Amendment and I should not dream of dividing the House. But I would just make a couple of observations. First with regard to the judges. We all welcome them and we wish that we could have their "evidence" more often. At the present moment you cannot bring an action for slander unless you can prove special damage. All the cases they have ever heard, therefore, have been actions where it has been alleged that there had been special damage or that the case came in one of the exceptions. The noble and learned Lord, Lord Tucker, told us on the last occasion that he had tried frivolous actions and that there would be an increase in the number of actions if we altered the law. That must remain in the region of opinion. Personally I do not think there would be. However, people take different views on this matter, and the majority of noble Lords who have spoken have been against me on that.

I very much hope that we shall not be guided in our decision by what the noble and learned Viscount has said, to the effect that this is a Private Member's Bill and that we ought to get it through as quickly as possible. This is expressly the sort of Bill which this House ought to scrutinise carefully, to amend and to examine. It makes changes in the law, changes which will remain constant for the next fifty years or so. I suggest that just because there may be difficulty about getting the Bill through on Wednesday, Thursday or Friday, or whenever it may be, we ought not to pass the Bill unaltered if we know it to be wrong. I hope that we shall go through it carefully, whatever the consequences may be, and if it is not possible for the Bill to pass before the end of the Session then let the Government take it up next Session and give it priority. Therefore, I shall not be moved by the considerations which the noble and learned Viscount mentioned. I shall be moved only by the evidence. Although I think the arguments are overwhelming, the difficulty about saying that arguments are overwhelming is that it sometimes means that you have not appreciated the force of the arguments on the other side; it should mean that after weighing both sides you think one thing or the other is right. It seems that, on balance of convenience, this Amendment should not be made, but I have done my duty. When, in fifty years' time, those who have to consider these matters look back and wonder why we did not make a proper job of it at this time, I at any rate shall be on the safe side. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR FOREIGN AFFAIRS (THE MARQUESS OF READING)

With your Lordships' permission I desire to interrupt the Committee stage to make a statement on Egypt similar to one that is being made in another place by my right honourable friend the Foreign Secretary. I beg to move that the House do now resume.

Moved, That the House do now resume.—(The Marquess of Reading.)

On Question, Motion agreed to, and House resumed accordingly.

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