THE PRESS AND THE LAW

HL Deb 25 May 1966 vol 274 cc1371-84

2.48 p.m.

LORD TANGLEY rose to draw attention to the effect on the Press of the law concerning libel, contempt of court, and official secrets; and to move for Papers. The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper, and I am most grateful to your Lordships for allowing me this opportunity to bring to the notice of the House the matters which are mention in it. I believe that they are worthy of discussion, and my belief is confirmed by the number of noble Lords who have expressed a desire to take part in this debate, notwithstanding a certain counter attraction which is now taking place—at Chelsea.

The form of my Motion, I am afraid, inevitably has a somewhat dry legal flavour. Contempt of court and official secrets and libel have become very complicated and technical legal subjects, particularly, perhaps, the law of libel and the practice in actions for defamation. But is it not the case that all legal conceptions and procedures are the outward and visible signs of deep-lying human and constitutional relationships? They are instances—are they not?—of the ways in which the law seeks to regulate and harmonise or balance interests, all of which are valuable and important and in need of preservation, but which may from time to time conflict with one another. If one looks at the subject in that way I believe that my theme becomes far less dry and technical, and gains in human interest.

When I raise the matter of contempt of court, what I am really doing is to invite your Lordships to consider the true basis of the relationship between the Press and the administration of justice. When I consider the Official Secrets Act and its administration I am in reality considering the relationship between the Press and one aspect, at least, of the executive government of the State. And when we are looking at the law of libel we are considering, on the one hand, the need in a free society for the fullest information to be disseminated by the Press and, on the other, the need of individual citizens to be protected from unjustified aspersions on their character and reputation.

I am sure that all your Lordships will agree that there must be a law to regulate these relationships and balances, and that from time to time the law should be looked at in order to see whether, under the conditions of the day, the balance is being held at the right point. But if the Press is to carry out its proper functions, and if at the same time the necessary protection of the courts of justice, the State, and the individual citizens is to be preserved, then I suggest to your Lordships that more than law is needed. There must be mutual confidence and understanding between the various interests. Is it open to doubt that in recent years there has been a breakdown in some important respects in that confidence and understanding?

Perhaps the breakdown became most obvious at the time of the Vassall inquiry. Your Lordships will recall, as I do, the disgust felt at the behaviour of some sections of the Press in that matter—a disgust which I think must be shared by almost everybody. Your Lordships will also recall the dismay with which the Press learned that journalists might be punished for contempt of court if they disobeyed an order to reveal the sources of their information. It was at this point that an organisation known as "Justice" became interested in the matter. As many of your Lordships know, Justice is an inter-Party society of lawyers devoted to the maintenance and the extension of the rule of law. Many leading lawyers work for the society; in particular, the noble and learned Lord on the Woolsack has rendered the most distinguished service, and we have had great help from him and from many other lawyers. Most of the past and future Law Officers take part in the work of this society. The current Law Officers, of course, are precluded by their offices from doing so.

It seemed to us that this growing rift, as we saw it, between the Press and the law ought to be a matter of concern both to the newspaper world and to lawyers. So, as a first step, we arranged a public meeting, to which a distinguished audience came, to discuss the question of contempt of court as it affected the imprisoned journalists. There were three speakers at that meeting: the present Solicitor General, an experienced journalist and myself. To our surprise and pleasure, we found that although each of us approached the matter from a separate point of view, we were much closer together than we had imagined possible. Indeed, the journalist suggested that it might be valuable if the Press and the lawyers got together to study a whole range of problems.

After a long series of confidential discussions, of which the noble and learned Lord on the Woolsack may remember something, if echoes of a previous existence still vibrate in the memory, a joint working party was set up, consisting of members appointed by the British Committee of the International Press Institute and members appointed by Justice. The chairman was the noble Lord, Lord Shawcross, who, may I say, was most anxious to take part in this debate to-day, and would have done so but for the fact that he has been unable to get home from a business journey abroad.

After many months of meetings, during which we had the help of many editors, journalists, newspaper proprietors and lawyers, including some who have had experience in representing plaintiffs, as well as defendants, in libel actions, we came to a series of unanimous conclusions. These conclusions are embodied in a report which has been published and will, I think, be familiar to many of your Lordships. I was a member of the working party, and it is this report which is the basis of my Motion to-day. I think I may fairly claim at least that the suggestions I have to put forward have a respectable and responsible ancestry, though I cannot imagine that they will meet with the unanimous approval of all your Lordships indeed, not all members of Justice are agreed upon these matters. May I say this? I should be rather sorry if there were unanimity on these matters. They seem to me to be so important that every shade and every variety of opinion ought to be brought to bear upon them.

Before I go any further, may I ask this question: What can we legitimately expect from the Press in a free society? I would say primarily that we can expect fair and accurate presentation of the news of the day, accompanied by honest editorial comment on it. I would say, too, that, by and large, we get it. When I get irritated, and sometimes disgusted, by what I read in the newspapers, I find it a useful corrective to remember that there is available every morning, and often in the evening also, to every would-be reader a pretty clear summary of what he needs to know about the affairs of the day. Moreover, the presentation of the news often has a succinctness and concision which I am sure would relieve the mind and delight the heart of the noble Lord, Lord Egremont.

When one considers the state of affairs in a newspaper office while the paper is being set up and got off to the presses, the mass of messages coming in by every known means of communication, all being sifted, edited, sub-edited and squeezed into the limited space available, the result seems to an outsider like myself to be a near-miracle. Although we criticise the Press, as, frankly, I often do, let us also occasionally—and perhaps this is a suitable opportunity for the purpose—recall this basic service that is done for us which we usually take for granted.

Then I believe, too, that on the whole we get in the Press fair comment and honest editorial opinion. Of course, much of it is written from some particular point of view, and that surely is harmless, so long as we know it is written from a particular point of view. Indeed, many readers buy their paper not so much to get new light on current affairs as to be confirmed in their existing views and opinions. I wonder how many broken blood vessels there might be at British breakfast tables if the Daily Express were suddenly found to be advocating the immediate signature of the Treaty of Rome, or if the New Statesman suddenly burst out into pæans of praise for the capitalist system. In addition, of course—one has to accept this—we get a great deal we could very well dispense with: gossip columns, sensational headlines, some sentence taken out of its context and consequent distortion of meaning. These things I detest, but many people seem to enjoy them, or at least to find them inoffensive. But I am certain that each of us would be able, without much difficulty, to add his or her own pet aversion.

Then, too, there is a great deal of unease, and legitimate, justified unease, I think, about the methods used by some sections of the Press in getting their news. Many may complain of intrusion upon privacy. At this moment of time one cannot ignore the alleged behaviour of a newspaper in the Moors murder trial. If it turns out to be as reported, my reaction, and I am sure that of all your Lordships, must be one of revolt and disgust. But I believe that this matter is before the Press Council, and I am trying—I admit, standing before your Lordships to-day, with some difficulty—to suspend judgment until we have heard what the Press Council have to say. It comes to this—does it not?—that the Press display some solid virtues and some rather sordid vices. Personally, I believe that the virtues far outweigh the vices. The object of the law should be the encouragement of virtue and the punishment of wickedness and vice", as we say Sunday by Sunday.

I lay this Motion before your Lordships to-day because in some respects it appears that the law fails in this dual object. Indeed, in some respects it seems to handicap virtue without restraining vice. It is against that background that I wish to turn to the particular branches of the law that are mentioned in my Motion. May I first of all speak for a few moments about contempt of court? Contempt of court has been defined in the standard text book on this matter in these terms: To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with, or prejudice, parties litigant or their witnesses during the litigation.

In practice, contempt of court arises in three particular sets of circumstances. The first is reference to proceedings known to be pending or imminent; the second is comment on trial proceedings and sentences pending a possible appeal; and the third is criticism of the conduct of judges. May I say this at once: that the lawyers on our working party felt that the Press were far too timorous in this matter, and were really much more afraid of the situation than they need have been.

First of all, may I take reference to proceedings known to be pending or imminent? This is a matter of common sense, and I think few editors of experience have much difficulty in feeling, at any given moment of time, what they should or what they should not say. There is one exception, perhaps, to that. It is this: that is it quite a common practice for a man to issue a writ against a newspaper, not really for the purpose of getting damages or protecting his reputation, but really to shut the paper's mouth. If a writ is issued it does not have to be served for a year, and then, if you are an ingenious plaintiff you can keep the litigation going for quite a long time after that. In the meantime the paper dare not say anything about the matter, nor can any other newspaper. That is really an abuse of the law which is designed to shut the mouth of the Press. It is quite a serious matter. Unfortunately, we did not find any remedy for it, except perhaps to suggest that the courts might be much more active in exercising their powers to dismiss actions for want of prosecution.

On the matter of comment on trial proceedings there is really little difficulty, although it is much more uncertain and much more a matter of opinion. I do not think that any newspaper which commented, for example, on the sentences passed by Mr. Justice Edmund Davies in the train robbery trial before the appeals were heard got into any trouble about it. So far as criticism of the conduct of judges is concerned, it is perfectly open to any newspaper, or to any individual, to make a criticism in proper, reasonable terms of the conduct of a judge—a judge holds a public office; he exercises in public and he is subject to public criticism—provided, of course, that justice is not impugned, that the motives of the judge are not impugned and that the course of justice is not brought into question.

Here I think the Press are a bit too timorous, because, so far as I know, there have been only two incidents in the 20th century when any newspaper has been brought before the court on such a charge. In each case there was a scurrilous attack on the personal character and conduct of the judge, and in each case the editor got off extremely lightly. So there is no serious danger there. But, none the less, having regard to the conditions under which a newspaper is prepared, it is difficult to decide on the spot; and the editor must remember that although the law of contempt of court is designed to protect the whole administration of justice, it is open at present to any individual to start proceedings. I suggest that it would be right and proper that proceedings for contempt of court should not be started except by the Attorney General, or with the fiat of the Attorney General. It is part of his business, one would think, to protect the course of justice. This is not an original suggestion on my part. It was made as long ago as 1953 by Lord Goddard, who was then Chief Justice, in the Lilliput case; and I suggest that the time is now ripe for dealing with it.

Now may I say a few words about official secrets? The Official Secrets Act was designed, of course among other things but mainly for the purpose of security, to make the receiving of information in peace time possibly a criminal offence: in other words to make spying in peace time a criminal offence. So far as it concerns security there is little criticism, but a great deal of praise on the part of the Press for the way in which the system operates. There are occasional slips-up, as there are in the best system; hut, on the whole, it works well. Here I should like to pay my tribute to my old war-time friend and colleague, Admiral Thomson, who had so much to do with the building up of this admirable system.

But the Act is used now for things well outside security. There is a tendency, the Press firmly believe—and we had a good deal of evidence of it in our working party—for the Official Secrets Act to be used for the purpose of muzzling criticism or restraining the passage of information, outside the strict realm of security. This has a good deal to do with the privilege of State documents in court, on which I know that noble Lords will take differing views. But this is a dangerous thing which should be looked at administratively. There is no question of changing the law on this matter, but it ought to be looked at administratively, I suggest, because the surest way of shutting up the Press is to give them a little confidential official information. It is not an offence to publish what you receive; it is an offence to receive it, and of course publication is pretty good evidence of receipt.

Now I come to the law of libel, which is the last head that I want to speak about. We feel that there are a number of things which ought to be considered here, but I will deal shortly with only three of them this afternoon. The first is the question of damages. There is no doubt at all that in some recent cases quite outrageous damages have been awarded by juries in libel actions against newspapers. It may be that it is one way in which the public feels it can get its own back on the newspapers for some of the things to which I have referred and to which we all object. But there is no doubt that this is a serious matter, and we considered very carefully whether we ought not to suggest that damages should be a matter for a judge—indeed, that all libel matters should be a matter for a judge, rather than for a judge and jury. We did not take that view because the ordinary Englishman, I believe, still thinks, and rightly, that if it is a matter of life or honour he would prefer to entrust his life or honour to twelve of his fellow countrymen rather than to any one person, however learned and however impartial. But we did feel that there was a case for enabling the Court of Appeal to review, if necessary, damages given by a jury, as they do in the case of damages awarded by a judge.

The second point I wish to mention to your Lordships, which will certainly he controversial, is whether a new form of qualified privilege should not be given to the Press in libel cases. We suggest that it is well worthy of consideration that it should be a defence to a newspaper, even if it cannot plead literal accuracy, to say that it believed the information to be true when it was published; that it had checked and found its sources reliable, and, thirdly, that, if the paper went wrong, a proper and adequate expressed apology had been made at the appropriate moment. Most of us felt, that if those three things were established, one could suggest that it was a case for qualified privilege.

Your Lordships may ask why that should be necessary. It is necessary principally for this reason. I would again invite your Lordships to think of the conditions in a newspaper office. An editor who is going to press has to ask himself, in matters of libel, not only, "Do I believe this to be true; is it true; is my source reliable?", but, "Can I prove all that in three years' time, in court, in a highly technical proceeding?" And, of course, the law of libel has become highly technical, and in that respect has received a great deal of criticism, with which I respectfully agree, from the Bench.

It is an optimist who would say he can win a libel action in three years' time, even if what he has said is true. He would have to hope that his witnesses will still be alive; he would have to hope, even more optimistically, that they will still tell in three years' time the same story as they are telling now—and after 50 years in the law I would not bet on that in any case. He would also have to get through the technicalities of pleading. It is those three things the editor has to keep his eye on at the time, not merely, "Is this true; is my source reliable?" I have been assured by the most responsible editors in this country that, because of that situation which I am describing to your Lordships, there are a number of stories and an amount of information, perfectly true, which ought to have been disseminated but which it was too risky to disseminate. That is the justification in general terms for the suggestion of this new kind of qualified privilege.

The last of the three things I want to mention about libel may amuse your Lordships. There is a statutory provision which says, in effect (I am not speaking in technical language), that if you tell a story about a man, if the general story is correct you are not going to be tripped up simply because you have made one inaccurate statement. For example, if you say that a man is a liar, a murderer, a thief, a forger, and has a hairy wart on his nose, if the whole passage is pleaded as a libel you can say that the wart on his nose was not really relevant and that you had given a fair account of the man's character. But if the plaintiff chooses to pick out the remark about the hairy wart on his nose and not to refer to the rest of the passage, the newspaper cannot put in evidence that this was part of the rest of the passage, I suggest that this situation was not intended when this Statute was passed, and that is another matter which I suggest might be looked at.

My Lords, there are many other matters which could be discussed. I have tried to pick out some of the most important. I have tried to put them against the background, historical and actual, as I see it; and I think I have said enough to justify my temerity in bringing this matter before your Lordships' House. I want to restore the balance to its right point, if only we can find it. I beg to move for Papers.

3.15 p.m.

THE EARL OF DUNDEE

My Lords, your Lordships know that I am one of the most unlearned Members of your Lordships' House, and I certainly cannot try to compete with the wealth of legal talent which has been, and will be, displayed this afternoon. But all through my political life in both Houses of Parliament I have always found that I am the sort of person who is given someone else's job to do on Derby Day. I rise only for a few minutes to say, on behalf of my noble friends who are here, and perhaps on behalf of one or two of them who are not here, that we welcome very much the Motion which the noble Lord, Lord Tangley, has put down. We have listened to him with the respect and attention which is deserved by one of his knowledge and eminence in these matters. I think in many respects we would agree with a great deal of the proposals which he has put before your Lordships in his very interesting and well-informed speech.

The Motion deals with three matters: contempt of court, libel, and official secrets. I think perhaps official secrets, on which the noble Lord said least of all, is in some ways the most difficult. I think that it is true, as the noble Lord said, that at present the Official Secrets Act, which was originally passed purely for reasons of national security, is sometimes—perhaps rather frequently—used by Government Departments in order to prevent things from being known which not only are harmless but which might be useful if they were known. I think perhaps the motive of using this method of preventing criticism is too easily seized upon. But I feel bound to add that the remedy which was suggested by the noble Lord in the report of the working party to which he referred, that it should be a valid defence in any prosecution to show that the national interest or legitimate private interests confided to the State were not likely to be harmed and that the information was passed and received in good faith and in the public interest, might be a rather difficult one to apply.

I think it would be a little unfair on the judges to ask them to decide whether any official document belonging to any Government Department should or should not be regarded as one whose disclosure would be against the public interest. It seems to me that, however much abuse the practice may give rise to, the Minister is really the most appropriate person, although he may not always do it rightly, to decide whether or not any document ought to be secret in the public interest.

The noble Lord dealt at greater length with the subject of contempt of court. I am sure he would agree it is a matter of satisfaction, as is shown in the report of his working party which was appointed partly to deal with the situation which arose out of the Vassall case, that representatives both of the Press and of Justice in that working party were all agreed that the liberty of the Press depends, in the last resort, upon the independence of the law courts; and that the independence of the law courts cannot function properly if in the last resort they are not permitted to demand that a witness shall give evidence on a point which is essential to the decision of the case.

I think everybody recognises that judges sympathise to the full with the difficulties of professional people—priests who have heard statements in confession which they are bound by their profession not to reveal; doctors who have professional secrets which they are not allowed to reveal; and journalists whose professional honour does not permit them to reveal the source of their information—and I think it will be admitted by all professions that the judges always stretch to the limits their desire to respect the scruples of professional witnesses of this kind. They do not positively require, on pain of prosecution for contempt of court, that a witness shall state a fact, unless they feel it is absolutely essential in the interests of justice that he should do.

With much of what the noble Lord said on this subject of contempt of court I think I would agree, such as that proceedings for contempt of court should be undertaken only with the leave or on the instructions of the Attorney General. As the noble Lord said, that has the respectable authority of Lord Goddard behind it. It is also, of course, and always has been, the law of Scotland that prosecutions of this kind can be undertaken only by, or at the instance of, the Lord Advocate. I think it is also reasonable that the Press should be allowed to appeal for witnesses in an important criminal case, without incurring the danger of being in contempt of court. I believe they are in fact allowed to do so, but they are often under some doubt about it, and what the noble Lord proposed in the recommendation of his working party was that their rights should be made clear.

Finally on libel, I think the noble Lord made out his case that Section 5 of the Defamation Act should be amended, so that one small allegation, like having a wart on your nose, could not be taken out of its context and made the subject of a criminal prosecution for libel. I think it is surely reasonable that the whole of the context should be used in evidence, if necessary, in order to prove that the matter complained of was not a major allegation; that it was only a small and perhaps irrelevant part of the whole passage complained of.

With regard to damages, I also agree with what the noble Lord said about the court having power to amend unreasonable damages which have been given by a jury. I would just make this qualification, that I think many of our judges are often inclined to be conservative in their ideas about money. They are still inclined to think that money has the same value today as it had in the days of their youth, and that a fine imposed or damages awarded now, in 1966, will bring the same benefit to the person who is given the damages, and inflict the same penalty on the person who has to pay them—let us say, £1,000—as it would have done in about 1930 or 1935. But the truth may be that, if you allow for the change in the value of money, the satisfaction by the plaintiff who has been awarded damages may not be quite so large as the judge thinks, nor the pain suffered by the offender quite so heavy.

There is one interesting recommendation at the end of the report of the noble Lord's working party in the passage on libel, which I am not sure whether he mentioned—I do not believe he did—in that the Press should be allowed to publish fair and accurate reports of judicial and Parliamentary proceedings abroad, even although they might contain some untrue statement which might be held to damage the character of some person in this country. One can think of all kinds of ways in which that might be abused. For example, you might persuade some friend of yours in the French or Irish or German Parliament to make a speech which was highly derogatory of someone you did not like here. But, on the whole, I think that this is not likely to happen, and that that is probably a recommendation to which we should give our favourable consideration.

But I am afraid I do not feel quite the same sentiments of approval of what the noble Lord said about qualified privilege, in cases in which false statements are published in good faith and where a reasonable apology has been made. I think it might be very dangerous if that were to be a good defence. I can think, and I am sure your Lordships can think, of so many possible cases in which a newspaper might publish the most highly damaging statements, with the plausible explanation that it thought they were true; that it thought there was reasonable authority. One often does say that, and think that, about gossip which is nothing more than gossip. If they thought it was reasonable in the public interest that this gossip should be published, and afterwards they made an apology which exempted them from prosecution, I think that that might open the way to a great deal of abuse and might involve a dangerous possibility of undermining the rights of individuals to redress.

In conclusion, I cannot forbear from quoting one short sentence which I quoted last time I spoke to your Lordships on the Press. That was six years ago now, so I think there is a fairly good chance that your Lordships will have forgotten it and it will not matter if I repeat it again. A great deal had been said about the scurrility and unscrupulousness of our modern Press, and I suggested that it might not be quite so bad as it was 100 or 130 years ago. I quoted a passage from The Times of June 26, 1830, which read: The long and severe illness of His Majesty King George IV was closed this morning at ten minutes past three o'clock by death. We shall reserve our further reflections and our remarks on the character of His Majesty till Monday. Flattery cannot reach him now, and truth may be of advantage to his sucessors". On the Monday, an obituary of seven or eight pages appeared, one sentence of which read: The late King, before his 20th year, was supposed to have been initiated in all the vices by which an advanced and affluent and corrupt society is infested. He led a course of life the character of which rose little higher than that of animal indulgence. Not one but a series of licentious favourites are understood to have presided over the Royal Household of King George IV". It occurred to me that very few obituary notices in The Times have so successfully avoided flattery as this one. If it happened now, I do not know what notice, if any, would be taken of it by the Press Council.

But, my Lords, we are all inclined, I think, to look on the Press as a rather terrifying ogre—because it is now a very large and powerful organisation indeed. We are inclined to look on it as a kind of monster which refrains from reporting anything interesting or intelligent which we say but which, the moment we make a slip, gives it a headline; a monster which consistently ignores our many and consistent virtues but seizes on any odd delinquency to which to give prominence. We are always a little inclined, perhaps, to think mostly of the rights of the individual who may be defamed, or whose interests may be adversely affected by the Press. But the Press, my Lords, has its difficulties, too. It is one of the great pillars of our liberty in a free society. It has to give fair comment, to report news as well as it can, and to voice criticism which otherwise might not find expression. It has to do these things if freedom is to survive; and it is very difficult indeed for newspapers to do them successfully and to make their way successfully through the rather difficult forest of potential law-breaking, in which they may sometimes inadvertently get caught. I think we ought to sympathise with their difficulties, as well as our own. I am sure that the Government and the Law Officers will consider and study what Lord Tangley has said this afternoon with the earnest desire to do justice, both to the individual and to our Press.