HL Deb 25 May 1966 vol 274 cc1386-447

3.38 p.m.

Debate resumed.


My Lords, the subject of this Motion to-day is so comprehensive, including as it does three almost different subjects, that I feel I have not the time to touch in any depth on all of them. Consequently, my remarks are going to be confined almost entirely to the matter of libel. I must, of course, declare an interest. I speak as a newspaper proprietor. To some, that may seem to make my comments too partial. I hope at least they will be seen to be informed by more than narrow sectional interests, though on the technicalities of the law itself I will, in this Assembly, pretend no more than a knowledge of where the shoe pinches.

The trouble, my Lords, as I see it, is that the law of libel too often hinders newspapers in doing their public duty, which is to make facts of public importance public knowledge. There is always a narrow balance to maintain between public duty and private right. It is fair and proper that honest individuals should have their reputations and their private lives protected from undue exposure. I am not interested in loosening the law of libel to the point of licence. I have always insisted on decent standards and fair play in my own newspapers, and I would not be speaking here to-day if I thought that anything was proposed here to-day which might enable unscrupulous people to make money out of pure sensationalism.

But, my Lords, this is not the real issue, not the real danger, to-day. It is not that we know too much about private people, but frequently we know too little about public affairs. That balance between the individual's right to privacy and the public's right to know has been tilted too far to privacy. The caprices of the law as it is administered to-day mean that too often it is not the honest man but the scoundrel who is protected—the crooked salesman, the Rachman, the fraudulent speculator, the tax evader. Newspapers have, in my view, a positive public duty to uncover facts in such instances and to make them public knowledge. The law does not recognise that duty.

Of course, a good newspaper will continue to try to do that duty, despite the difficulties and perils; and we should not exaggerate the hindrances that exist. They did not prevent the Sunday Times, for instance, exposing the antique dealers' ring or, more recently, the affair of the cooker that did not cook. However, I believe there are reforms that we could safely make that would assist the newspapers to do their public duty while preserving the private individual's right to his reputation.

I will confine myself to two small reforms which could help. First, the method of trial. Again in this connection I am repeating something I have said before, but I hope with a little more emphasis. Libel actions should be tried by a judge alone. Jurors may be excellent for criminal trials where they have to give simple "guilty" or "not guilty" verdicts. The law of libel is, however, different. It has become so technical that it is asking too much of juries to cope with its complexities. We have recently had the celebrated case of the "Three Little Pigs" in which the jury's verdict resulted in a judgment they had not intended. I do not want to comment on the rights or wrongs of that case; but there is no doubt that it dramatically demonstrated that even the most consciencious jury cannot grasp the technicalities of a libel case even after a fifteen-day trial and a summing-up, which ran to 26,000 words, of a judge who is an expert in the libel field. In the words of one of the jurors: "I did not know whether I was on my head or my heels." In the words of another: "I think the legal mumbo-jumbo beat us".

The result, my Lords, is that libel actions are a lottery and are apt to be decided other than on their true merits. A judge is much better qualified to deal with the technicalities, and a judge, I submit, is certainly in a much better position to fix a proper figure for damages. Juries are given no guidance at all on this in terms of actual figures. As your Lordships will know, previous awards in comparable cases cannot be mentioned to them during the course of the trial. It is not surprising, though very inhibiting for public-spirited newspapers, that in a number of cases juries have gone wildly wrong on damages. A number of them, of course, have had their awards set aside by the Court of Appeal. But this is not the answer. Since we are making judges (in the Court of Appeal) the ultimate arbiter of the rightness or wrongness of a verdict, why do we not do this in the first place? What objection can there be to that? The consistency and fairness which should result would help newspapers without threatening anyone's rights.

The other day a libel case was brought to my notice in which damages were awarded and the foreman of the jury was asked how he had arrived at the figure for damages. He said: "I had each member of the jury write a figure on a piece of paper; I added them up and divided by twelve—and that was the figure." That is not a very scientific way of meting out justice.

My second point is one on the question of privilege. The Press should, in my opinion, be given clear protection for fair and accurate reports of all foreign Parliamentary and judicial proceedings. The noble Earl pointed out the dangers that that might involve; but I submit that if anyone really wanted to do something against an enemy in this country he need only sit in the House of Commons or in your Lordships' House or in a court of law and make those remarks. He would then be quite privileged. Why would he have to go to a German court or a French court? If proceedings in a foreign Parliament or foreign court are to be properly reported, surely it should be a matter of privilege for British newspapers to quote them on the same basis as they can quote proceedings in this House.

We should also consider extending that protection in a qualified way to other matters of legitimate public interest. In this country, of course, newspapers are protected from libel when they give fair and accurate reports of our courts and Parliament. With a world that is getting smaller every day I find it incredible that the same protection does not extend to reports of foreign proceedings. It is true, and I concede it, that since the case against The Times in 1960 these reports can be privileged in certain circumstances. But that is not enough. The privilege should be automatic. Surely it is wrong that a newspaper might have to fight an expensive action right up to this House to establish that it could safely publish fair and accurate reports of, for example, the United States Senate. Those are two reforms that I feel sure we could safely make.

My Lords, there are other areas that we should explore. There is a case for qualified privilege for other reports of legitimate public interest. For instance, it was something of a shock for me to be told the other day that newspapers in this country might have had to pay out some thousands of pounds, or perhaps hundreds of thousands of pounds, in damages for their reports of the assassination of President Kennedy if it had ultimately turned out that Lee Oswald had survived and was innocent. Your Lordships will remember that at the time that was a question which arose; though later, I think, it was resolved to everyone's satisfaction. We published the reports that came across to us at that time, but if Lee Oswald had survived, and had been proved innocent, he could have sued all the newspapers in this country who published those reports and could have been awarded substantial damages. Surely that is not a situation which should be perpetuated. I believe—and I am sure your Lordships will agree—that the newspapers were justified in carrying that news as they did. They did not suppress the news; but they were taking a deliberate and unnecessary risk.

Whether we should go on from this, and say that newspapers should have qualified privilege for other reports published in good faith and without malice on matters of true public interest is a more controversial point. It would have to be made conditional upon publishing a reply in equal prominence; and such a change in the law would need the most careful drafting to see that we did not tilt the balance too much against the individual. At the moment, on the broad issues, I am convinced that the balance is too much against the members of the public who have a right to know.

3.47 p.m.


My Lords, I should like to begin by thanking the noble Lord, Lord Tangley, very much for introducing this subject to the House. I think that both the Press and the public already owe him and other eminent lawyers a great debt for the work they have done on Justice and for what they did on the working party on these matters. That debt will be increased by his raising this subject before the House. Like the noble Lord, Lord Thomson of Fleet, I must declare an interest, although perhaps one not so financially large and profitable as his. I have been for some forty years a working newspaper man, and I am glad to say—and I hope your Lordships will share my pleasure in this—that so far, during those forty years, I have managed to escape being "had up" for libel, or being charged with contempt of court or with a breach of the Official Secrets Act. But whether this is luck or prudence I should not like to say, because I know many very eminent and admirable newspapermen who have not had my good fortune.

Indeed I would say, dealing first of all with libel, that in many matters where it is essential in the public interest and in the safeguarding of the ordinary people that there should be examination and investigation, this is frequently prevented by the fear which hangs over all newspaper offices that they might and themselves faced with a libel action and, nowadays, with quite exorbitant damages. I frankly admit that, to some extent, the immense damages that have been found in some recent libel cases are the direct fault of the Press itself. There was a period, I believe now passing, when the reputation of the Press for harrying the innocent grew to such an extent that it was perhaps natural that when juries found a newspaper before them for libel they should feel that they had a duty to their fellow citizens to cut it down to size and to inflict the most swingeing damages possible upon it. But I believe that the Press has reformed its ways considerably, and that under the stimulation of the Press Council it is doing so even more; and it is in that light, and in the light of the newspapers' traditional duty to seek to safeguard the public, that this matter of libel needs to be looked upon.

At one period I was myself a financial editor. It was the period of the Hatry crash and a whole similar series of financial crashes which inflicted great damage and pain and sorrow upon many innocent people. I as a financial editor at that time, and many others I know who were financial editors, were aware of much that was going on and were deeply anxious to disclose what we could in order that a due and proper warning should be given, particularly to prevent small investors from being rooked to the extent that they were. Again and again during those days, after the most careful examination and inquiry I would try to write something, only to be told by the newspaper's lawyer, quite rightly and properly, "Although I believe, from the investigations you have made and the evidence you have put before me, that this is a true case, I have to advise that it may be extremely difficult to prove it in court, and that if you failed against financial promoters of this kind and wealth the damages would be crippling." Again and again we had to drop stories, which resulted from the most careful investigations, often supported by the advice and information of some of the most reputable people in the City, who were worried about what was happening, because of both the effect on small investors and the effect upon the repute and reputation of the City if things did go wrong.


My Lords, I wonder whether I might put one point to the noble Lord? I fully appreciate his difficulty. I was always very anxious to get this into the law, and indeed I acted accordingly, without its being in the law, when I was President of the Board of Trade. It is always possible in a case of this kind to go to the Board of Trade and to say, "Put in an inspector." If there is the least evidence the Board of Trade has full power to do that, and it has proved extraordinarily effective.


My Lords, it may be effective when it happens—


No, that is not what I mean. I mean if you suspect anything. I will not interrupt too much, but I did it in cases exactly the same as those to which the noble Lord has referred, where the suspicion had not been proved, and the situation was effectively stopped.


I can only say that on several occasions we did, as I believe other people did, speak to the Board of Trade, and they felt that at that time they lacked sufficient grounds to go forward. Moreover, even if there had been a Board of Trade inquiry, many months would probably have passed before it was concluded, during which time we felt—I think rightly as events proved—the harvest was being reaped almost every day, and it was desirable to publish something which would flash an adequate warning light in order to stop the flow of investment into what we believed were fundamentally crooked concerns.

It is, of course, the case, as the noble Lord, Lord Thomson of Fleet, has said, that newspapers do on occasions carry out investigations. The investigation by his own paper the Sunday Times into the "antique ring" is an example. There was another investigation by the People newspaper—not everybody's "cup of tea" in journalism, but nevertheless a paper which on occasions shows great force, courage and pertinacity. It conducted an investigation into allegations which had come to its notice of widespread difficulties and criminal activities in association football. The position then was that, although the police were fully aware of these allegations, and were very strongly of the belief that the suspicions were justified, they lacked, and could not at that stage get, the evidence to take any proceedings. It is very probable that they never would have, if the People newspaper had not acted.

The People newspaper employed a team of special reporters and investigators on the matter for over six months and spent very large sums of money; ultimately getting confessions, for which in one case I have to admit they paid, from some of those involved. Even at that stage they were warned, and I am sure they were properly warned, by their legal advisers that to publish might bring on their heads a libel action, with the possibility of heavy damages. As it happened the then editor of the People, the late Stuart Campbell, was not only a man of courage but had the full confidence of his publishers, and he was able to persuade them to allow him to go ahead despite the possible consequences. Following the disclosures in the People, the police were enabled to act against those who had committed these crimes and, as a result, several of them were sent to prison.

It was only because the People is part of an immensely wealthy organisation, and because the editor had, by his past actions, gained the confidence of his board of directors, and because he was himself prepared to take a very substantial risk, that this material was published about what was indeed a public scandal and, in view of the immense public interest in football, a matter of considerable public importance. Only because of that were the disclosures made, and action in a court of law became possible.

Not all newspapers in the country are large and powerful, or can afford to be courageous in the face of possible heavy damages. When we look at the Press we have to think not only of the great national newspapers, but also of local newspapers which serve their communities and endeavour to see that local government is operated efficiently and well. They endeavour to secure that the small-time, small-town crooks, whose activities may never reach the columns of the national newspapers, are not enabled to "get away with murder", so to speak, against citizens living in the areas where the papers are published. Those papers, because of their comparative lack of financial reserves, are often immensely vulnerable, to threats or fear of libel, even though they may have made the most careful examination and investigation, and want to publish after they have convinced themselves, and believe that they can convince any fair minded man, that there is a case.

We also have to take into account the immense number of trade journals which are concerned with the activities and development of trades and industries of all kinds and are concerned to try to ensure that those trades and industries are run by honest and reputable people, and that if they fall among rogues, the roguery shall be disclosed. Again, it is often the case that editors of such journals carry on in fear of a libel action which perhaps a national newspaper could ride. I therefore strongly support the proposal made by the noble Lord, Lord Tangley, and made in the report of the working party of which he was so distinguished a member, that consideration should be given to a statutory defence of qualified privilege for a newspaper where publication of matters of public interest in good faith, without malice, and upon evidence that might reasonably be believed to be true, can be shown, and where, if there was any error a reasonable letter of explanation or apology has been published on request.

I will try to meet the argument put forward that this means that any newspaper could simply say: "We believed this to be a matter of public interest and that it ought to be published, and, therefore, we published it." But such a clause would specifically lay down that a newspaper would be required to prove that publication was in good faith, without malice and upon evidence that might reasonably be believed to be true. The newspaper would have to convince the court that the evidence upon which it published was of that character: that it was not an idle or irresponsible decision taken by a newspaper.


My Lords, may I ask one question about that, because it may be of some relevance in relation to the Vassall case? Does that mean, if that defence were pursued, that newspaper reporters would disclose their sources?


I think they might well be called upon to do so. There was a great deal of feeling by newspapers, much of which I shared, perhaps emotionally, at the time of the Vassall case about reporters being required to disclose their sources of information, but I would certainly say that in the event of a libel action in which a newspaper entered such a defence it would be right and proper that it should be called upon, in pursuit of that defence, to disclose information of that character. I do not think you could put forward such a defence without readiness to produce everything upon which you had acted in publishing the story, and that obviously would include the reliability, in your view, of the sources from which you had received the information.

I believe that in this matter we are concerned, as we must be, with a balance of the public interest. Nobody want to give the Press the right to harry the innocent, or even to harry those about whom they have suspicions, without basis. Nobody of any repute in journalism wants newspapers to be in any way above the law; and, thank heaven‡ even if they did, Parliament and public opinion in this country would say that they were not. All that is asked is that the law should be looked at and amended in this particular, in order that newspapers should be the better able to carry out what has been their traditional function, and is still one of their most important functions—namely, to attempt to disclose information and material that the public ought to have as a safeguard, and to do so in good faith, without malice, after the most searching investigation it has been possible for them to make, knowing that they will have to show that that investigation has been as thorough and complete as they could make it, and that on the evidence they disclosed they had a reasonable case for publication.

Let we now pass on briefly to the question of contempt of court. I agree that in many cases newspaper editors walk about in perhaps too great fear of a contempt of court. I hope that your Lordships' debate will help to clarify the position about contempt of court, because undoubtedly it is the case that many newspaper editors have come to believe over the years that if they say anything in what they believe to be legitimate criticism of a judgment or of a judge, this may bring upon their heads a contempt of court and there is no appeal against a contempt of court.


My Lord, the noble Lord is wrong about that. There is an appeal.


I am sorry. I was saying that many editors have quite wrongly got this feeling about contempt of court, and one of the things this debate could do in that area would be to clarify the position. I believe, as the noble Lord, Lord Tangley, said, that many newspaper editors, quite unjustifiably, walk about in fear of a contempt of court action. They often fail to do what they ought to do and what their public duty requires them to do, because of what is a quite mythical idea that a contempt of court action could be brought, and because of a fear of what it could do to them.

I now turn to the Official Secrets Act. For most of the last war I had the experience of being Controller of Press Censorship, in which it was my function to be a sort of poacher turned gamekeeper, and to ensure, so far as possible, that nothing that was a breach of security would be published by the newspapers. It was, as your Lordships will know, a voluntary censorship: in other words, the Press was given guidance as to what might be dangerous to the national security. To refuse to follow the recommendations of the censorship was not in itself an offence, although if material published had been passed through censorship, and approved by censorship, it was a defence in any future action, if any such action should be brought.

During the period in which I was Controller of Press Censorship, we operated—and still operate in a somewhat different way—a joint committee of the Security and Defence Services and of the Press to set out the general principles upon which censorship advice should operate.

I want to say here, and to say it as emphatically as I can, that I know of no single incident during all that period when any newspaper sought to publish anything which it could be shown might have created security difficulties. And I am sure that that is exactly the position to-day. No newspaper would want to publish anything that would affect the security of this State.

I well remember Sir Winston Churchill, at a meeting of editors, saying to them that he was proud to meet them because he knew them as men of great fidelity to the State. And they are men of good fidelity to the State. When the Official Secrets Act and its operation are criticised, this is not for any reason of trying to get freedom to publish defence matters which might be dangerous. What is criticised, as the noble Lord, Lord Tangley, has said, is what appears to be a growing extension of the use of the Official Secrets Act to prevent publication in all sorts of areas where security and defence matters do not really arise. There was a case, some years ago, in which a reporter was fined for publishing some wills before they had been officially published by Somerset House.

There have been many cases of fears or threats of action. Indeed, it too often seems in these days that frequently a kind of an unholy alliance is reached between official secrets and public relations, designed not to defend the security of the State, but to prevent legitimate criticism of what is believed to be inefficiency in Government Departments or in local authorities. It is part of the historical movement of the times that all Governments, whether the present Government or any other, tend to take more and more centralised authority into their hands. Similarly, at every level of bureaucracy there tends to be an increase of the attempt to get control and build a fence around activities so that they shall not be subjected to too strong a light of public criticism.


My Lords, may I ask my noble friend one small question? He mentioned local authorities. Does the Official Secrets Act in fact cover the work or doings of local authorities?


No, but the general atmosphere, what I may call the general approval of secrecy of administration, has undoubtedly had a substantial affect on the operations and attitudes of local authorities.

I agree that in the case of the Official Secrets Act it is difficult to suggest any change in the law. What does seem desirable is that there should go out from the Government, and, I suggest, go out from this House of Lords, as an advice to all who occupy positions of authority, whether in Central Government or the Civil Service or local authority, that it is essential, and is becoming steadily more essential, to take a look at how far these possibilities of preventing publication are being misused. And it should be laid down that they shall be used only in issues which are of genuine public security and importance, and shall never be used to create the justified suspicion that they are being utilised simply to prevent the proper examination of public affairs by politicians, public officials or anybody else. All that is desirable is that the Press should be given, not a free ticket to explore and publish whatever pleases it, however sensational, but that the barriers which have grown up in the way of its ability to perform its proper public duties should be removed.

4.16 p.m.


My Lords, I feel that I ought almost to apologise for intervening in this debate, because I have spoken so frequently in recent days. But I rise to-day to intervene because certainly on two of the matters that have been raised I feel I can be of some assistance to the House. Certainly the noble Lord, Lord Tangley, has no reason to apologise or offer an excuse for raising this subject this afternoon. I think it is one which this House can most usefully debate and discuss. But I must say that I do not find myself in agreement with him in his major proposition, that the law is now tilted unfavourably, and unduly unfavourably, against the Press. That some changes should be made I think is certainly desirable, and I should like to refer to them in a moment or two.

I should like to approach the various points referred to in the same order as the noble Lord, Lord Tangley, dealt with them. First of all, with regard to contempt of court, I think it is true that the ignorance on the part of the Press, of editors and journalists, as to what constitutes contempt of court is quite remarkable. With all their resources I cannot see why they do not take enough trouble to inform themselves more about it. From what has been said in the last speech and the speech before, one might think that there were constant applications to the courts for committal for contempt, and also constant prosecutions for offences under the Official Secrets Act. I have had some experience of having to move motions for contempt, and I should like to say something about that aspect.

It was, I think, just before I became Attorney General that my noble and learned friend Lord Goddard recommended what is now the recommendation in this report, that proceedings for contempt by newspapers should be instituted only by the Attorney General. That proposal was considered at that time, and I think I am right in saying that the then Attorney General of that time did not agree with it. Nor did I; nor do I. I will explain why. I certainly agree that it is part of the Attorney General's duties, when matters are brought to his attention which appear to constitute a serious contempt of court, to bring the matter before the court; and that duty Attorney Generals have, I think, consistently followed. On occasions I had to follow it myself. What happened was that other people would bring to one's notice cases where they thought that there was a publication which constituted a contempt, and they would invite action by the Attorney General.

It is one thing to say that the Attorney General should be ready to undertake that duty if he thinks that the case warrants it; it is quite another thing to say that he, and he alone, can undertake it. I do not think I moved motions for committal for contempt very frequently. I had to do it now and then, but in answer to some applications, I had to say:" I do not agree. I do not think this constitutes a contempt, or it does not constitute a contempt of such gravity as to warrant a Motion to the court. But you must remember that, if you disagree with me, you can move the court yourself." Of course, there is a great advantage for the layman to get the Attorney General to do it, because it saves his pocket. It is also, I think, a great advantage that the layman, if he disagrees with the opinion expressed, should be free to move the court himself.

Some time ago we had the Attorney General's fiat for appeals to this House from the Court of Criminal Appeal, and he alone could decide that. That lasted for some time but it has gone, and I am glad that it has gone. I think it would be a retrograde step to make it essential that the Attorney General should consent to a motion's being made to commit for contempt. In my opinion the present system is much better, because if the Attorney General says he is not prepared to move, then at least the layman has a warning. Of course, the court may take a different view; but if the Attorney General does not think much of it, then if the layman goes on it will be at his peril.

In this country, unlike Scotland, anyone as a general rule can institute a prosecution, and I should be sorry to see that right go. There are exceptions, and each time an exception to that rule is made it must be established that there is a good case for exception. And here I think that if this recommended reform were made we should be taking away one of the rights of the individual which he ought to be allowed to possess for his own protection. I take, for instance, the case where perhaps the Crown in involved in a piece of litigation and a layman feels that the publication in some paper may prejudice the trial. He might be not altogether content with the decision of the Attorney General. He might be critical if the Attorney General's decision was final. If it is left to him and if he takes an opposing decision, a layman can take steps, if he wants to. That seems to be a satisfactory procedure and I should be against any change in that respect.

How many applications are there against the Press for motions of contempt? How many have there been in recent years? Very few indeed. At the time when I was Attorney General there was, unfortunately, a slight increase in the number. There were some rather unfortunate cases where there was a contempt, and I believe that if editors and journalists had taken more trouble to acquaint themeslves with the law those offences would not have been committed.

Now may I turn to the Official Secrets Act? From what the noble Lord, Lord Francis-Williams, said, and indeed from what the noble Lord, Lord Tangley, said, one might think that the Official Secrets Acts were in daily use. The noble Lord, Lord Tangley, said the Act was used for muzzling criticism, and I was sorry to hear my noble friend Lord Dundee say that the Act was too often seized upon. What exactly is meant by those statements? Is it meant that there are too many prosecutions? I do not think that can be justified. Prosecutions can be instituted only with the leave of the Law Officers, and there are very few prosecutions for offences under the Official Secrets Act. But it may be that those words "Official Secrets Act" are used in terrorem and that they frighten at lot of innocent people—because, of course, they must be innocent with regard to the Official Secrets Act—innocent journalists and editors, once some official says, "Oh, the Official Secrets Act applies".

So again I think those who want to publish ought to make a more careful study of the Acts. They are wide in scope but they are not as wide as all that, and the prosecutions are very few indeed. However, I come out strongly against the recommendation in this report that in the case of a prosecution under the Official Secrets Act it shall be a valid defence to show that the national interest or legitimate private interests were not likely to be harmed. I should like your Lordships to consider for a moment what in fact that means and what it involves. How is that to be done? Is evidence to be called by the defence to say that the national interest is not likely to be harmed? In my belief, the question whether something is, or is not, in the national interest is really not a triable issue in the criminal courts. Suppose some evidence were called in support of this defence, the prosecution would then have to call evidence, and so the trial would be converted into a political debate and the question whether the accused had done the acts alleged would fade into the background.

May I remind your Lordships that some years ago there was a prosecution which I conducted against some individuals for seeking to invade an airfield on which there were some aircraft thought to be carrying nuclear bombs. These people were charged with conspiracy under Section 1 of the Official Secrets Act, and it was admitted that their object was to ground all aircraft, to immobilise the airfield and to regain the base for civilian purposes. There the charge was that they had conspired, among other things, for a purpose prejudicial to the safety and interest of the State. The accused sought to put forward the defence that the acts which they hoped to accomplish would benefit the State and not prejudice the national interest. The Judge at the trial did not allow that to be put forward, and the matter went to the Court of Criminal Appeal and up to the House of Lords. The Judge's ruling was upheld in each of these appellate tribunals. So what is suggested here is that the decision of this House, sitting judicially, should be reversed, and if there is another case of that kind then evidence will be allowable to prove what is, or is not, in the national interest. Then we shall be converting a criminal trial into a political debate.

The recommendation in this work of Justice, to which the noble Lord, Lord Tangley, referred, is that this defence should be available in all prosecutions under the Official Secrets Act. I cannot think that that is right, and it seems to me that if it were allowed in any case it would put the State in a very awkward dilemma. Supposing some evidence was given to show that it was the view of some that something which they contemplated doing was in the national interest, although possibly the majority of people took a different view then the Crown would have to call evidence in contradiction and the Crown might well be in a serious dilemma. If it called evidence in contradiction it might have to make disclosures which might not be in the national interest.

If this issue had been allowed to be raised in the trial in which I was engaged, the Crown would have been in real difficulty, because one would not have wanted to disclose precisely the role which that airfield played in the defence of this country. On the other hand, if that evidence was not given, then the Crown's case would be seriously prejudiced. I do not think that that recommendation is at all well founded, and I consider it is necessary for some further study to be made by those who feel they are threatened by the provisions of the Official Secrets Act. If need be they should not hesitate to incur the expense of getting a little legal advice, as a result of which I think that on many occasions they will be able to say to those who threaten them that they should go to a place of an inferior character.

May I now turn to the law of libel? I listened with the greatest interest to the speech of the noble Lord, Lord Thomson of Fleet. He was suggesting, I think his words were, just two small reforms, one of which was the abolition of a jury to determine whether or not the verdict should be for the plaintiff or the defendant. That, the noble Lord thought, was a small reform. We in this country have had juries dealing with these actions for many hundreds of years, and I would say to him that it certainly is not an apt description to say that that would be a small reform. It would be a major reform, with major consequences, and in my belief no case for it is made out at all. I do not think any case for it is made out by repeating gossip from some member of a jury or by citing a case where it is alleged, not that the jury did not understand what was happening, but that in fact, inadvertently, they had returned a different verdict from that which they intended. That was the small pigs case. I myself believe that it is right for the protection of the individual that he should have the right to have this kind of case tried before a jury. I do not believe that in the vast majority of cases the technicalities are such that the case is beyond the jurors' comprehension.

I come to damages. It is easy to talk about excessive damages. I entirely agree that in some cases the damages are obviously excessive. It is sometimes worth considering what it is that has led twelve reasonable men and women to award a sum in damages so far in excess of the damage done to the individual's reputation. There is no doubt that at times juries do get carried away. It may be because they think that insufficient care has been taken before putting forward a very serious suggestion against a man's character. However that may be, I certainly should not think that in future, following the decision of this House in the case which your Lordships know well, in another connection, Rookes v. Barnard, the risk of excessive damages is anything like so great as it was. But I would not myself be averse to giving the Court of Appeal power to interfere in the award of damages where they thought the damages were clearly excessive. I think that would be a desirable reform. On the other hand, it would in my view be absolutely wrong to take away from the jury an issue which is just the kind of issue that a jury should determine, the issue of malice where there is a defence of fair comment or qualified privilege. I do not think it would be right to cast that burden on the judge.

So far as the reporting of foreign Parliamentary proceedings or judicial proceedings is concerned, there is, I agree, a case for alteration of the law in favour of the Press. But I do not think that this argument for a new qualified privilege for the Press, which is put forward by Justice, and which was adumbrated by the noble Lord, Lord Francis-Williams, and put forward by the noble Lord, Lord Thomson of Fleet, will really do. The noble Lord, Lord Thomson of Fleet, said how hard it would have been if Mr. Lee Oswald had been found innocent and the Press of this country had had to pay heavy damages. There is the other side of that coin. I would invite the noble Lord to consider, supposing he was accused of some conduct in this country which was widely reported in this country, and which reflected upon his character and he was innocent of it, and supposing his innocence was proved, how hard it would be on him if a Canadian chain of newspapers made a full report of that conduct, and he, with his reputation in Canada, which deservedly stands so high, had no right of redress because the Canadian newspapers could say, "After all, we were only reporting what had been reported in England".

I do not think there is any case for this new qualified privilege for the Press. I do not think it is necessary. And though, of course, the case can be put at its strongest in support of reputable, respectable papers, the Sunday Times and others, one must realise that this kind of defence would be available to any publication, not only to the Sunday Times but also to Private Eye, and I have no doubt they would be able to call a number of witnesses to argue till the cows came home that in all the circumstances they had made reasonable inquiries before publishing a most defamatory libel. Therefore, as I say, I do not think that this new qualified privilege is necessary.

I have made my remarks as short as I can. I am very glad that the noble Lord. Lord Tangley, has raised this issue. I believe that there are changes which can be made with advantage. In particular, I think that Section 5 of the recent Act is not being achieved, and that obviously ought to be amended. But I hope that this House, after discussing this matter, will not be in favour either of this new suggested defence of qualified privilege, or of taking away the issue of malice from the jury; nor, indeed, of fettering the Official Secrets Act in the way proposed, or of placing on the Attorney General the sole responsibility for instituting proceedings for contempt.

There is one last thing I would say. When you have to study the Official Secrets Acts it is very hard to do so. The law is embodied in a number of Acts. There is a great case for clarification of those Acts, and I do commend that particular field to the noble and learned Lord on the Woolsack as a very suitable field for revision and, possibly, reform.

4.38 p.m.


My Lords, I feel very grateful to the noble Lord, Lord Tangley, for initiating this important debate and for the interesting and informative speech that he has made, though I am nervous of discussing any aspect of the law in the presence of so many noble and learned lawyers. However, my very superficial knowledge of the law does not inhibit me from discussing any aspect of the Press. I find myself, very humbly, almost entirely in agreement with the noble and learned Viscount, Lord Dilhorne. At first glance the idea of enlarging the freedoms of the Press fills anyone in public life with despondency, if not with alarm. It seems to me that in this country the Press is very free indeed and is not much inhibited or constricted by any of our laws, when reporting on matters of public interest or in commenting on them. For three months of the year, when I sit on the Human Rights Committee of the United Nations, I continuously extol the freedom of our Press and hold it up as an example to the Soviet bloc and the Afro-Asians.

Of course, all the laws relating to the Press are not perfect, being, after all, man-made. There is scope for many reforms, as has been said in the speeches already made, though not, I believe, for major ones, as the noble and learned Viscount, Lord Dilhorne, has said. The law of libel is often held up as an example, as has already been mentioned. When it comes to the damages granted when a man's honour and reputation is involved, juries can be fanciful, and ridiculous assessments can be made. The Press complains that the level of libel damages inflicted by juries has become an inhibition to fact-finding newspapers. I am perhaps a little sceptical of this charge. Fact-finding for the Press is quite a bulldozing operation. After all, a newspaper need have no fear of being libelled if it sticks to the facts and the truth. The remedy for unrealistic or excessive damages lies not with making exemptions for the Press, but in improving the law and giving the Court of Appeal the power to vary damages awarded by a jury. The Report called The Law and the Press, of a Committee whose chairman was Lord Shawcross, puts forward this suggestion. The Defamation Act 1952, which released the Press from having to prove the truth of each indictment separately—even the negligible ones—also removed another injustice.

A Member of Parliament, Mr. Harold Lever, proposes to bring in another Bill which will incorporate far-reaching reforms, allowing temperate comment on verdict and sentence which might amount to reasonable criticism of our judges. Lord Shawcross argues for what he calls a qualified privilege for the Press—the right to publish statements in the public interest which, because of our rules of evidence, are difficult to prove, only admissions of the inaccuracy and publication of an apology being required. This really fills me with alarm as well as despondency. Few of us in this House have not been the victims of misquotations, sometimes silly, sometimes serious. Few of us have not searched for that tardy line of apology in small print at the bottom of the page. It is rare (though it does sometimes happen) that an apology is headline or front-page news.

I think it would be true to say that the Press lives by the motto, "Everything that interests the public is in the public interest". Many of us would challenge this lowest common denominator for the publication of news. I do not think things have changed much since 1949, when a Royal Commission on the Press reported its findings, among them one that the Press showed a readiness to make statements on inadequate evidence, and that many newspapers fell short of truth and fair-mindedness—I do not say all; I say some. I myself would go further and maintain that in reporting the news and commenting on it there is still too much suppression, distortion, invention, triviality and sensationalism—all part of the stock in trade of some newspapers.

In 1960 the Queen magazine published a brilliant article by Penelope Gilliat which exposed the methods used by certain gossip columnists. The Denning Report, in 1963, after the Profumo affair, drew attention to the same kind of traffic in rumour and scandal. I quote from its conclusions: Scandalous information about well-known people has become a marketable commodity. True or false, actual or invented, it can be sold. I myself have often thought that the bank statements of some gossip columnists might make lively reading. But Lord Denning, who I am glad to see here to-day, goes on to say: The law of libel and the rules of contempt of court exercise an effective restraint. So I should be in favour of reforming the law of libel only if we introduced a law of privacy. They have one in the United States: why cannot we have one here? Otherwise, the private person, already often harassed by the Press, would be at its mercy. I would ask the Press whether they recognise an area of privacy for the individual, because this is a right which I believe should be most valued by civilised society—and we need a brake to stop the invasion of privacy, because to-day people in public life are vulnerable as never before.


My Lords, may I interrupt the noble Baroness for one second to ask whether she does not think that there has been a great improvement in the last few years in this matter of intrusion into privacy? I would also say that there is no such thing left in the British Press as a vicious gossip column.


Well, my Lords, I think there may have been some, though not such a great deal of improvement; but I still think there is an intrusion into private life, even to-day. I believe that the gossip columnists have never raised their heads as high since the articles by Penelope Gilliat—


And since we had a debate in your Lordships' House on this subject at the same time. I should like to think that we also had some effect.


My Lords, I apologise, in that I was not in your Lordships' House at the time and I was not aware of this. Newspapers are still free to rake up a man's past and ruin him. The law and Parliamentary privilege both act against this privacy. After all, the committal procedure of English law, as distinct from Scottish law, provides a feast for reporters, while it does not help unprejudiced trials.

In a free society we know that journalists have to be public watchdogs. That does not give them a licence in this country to be sleuths or King's Proctors. Mr. Baldwin made a memorable remark during a by-election, after he had been grossly libelled. He said: What the proprietors of these papers are aiming at is power. Then he went on to say that power without responsibility is the prerogative of the harlot throughout the ages. When speaking about the Press, I wish, so to speak, to make an honest woman of her, because I regard the relationship between the public and the Press in a democracy as a marriage—an indissoluble marriage; and I maintain that the prerogative of a wife throughout the ages is power coupled with responsibility. So, finally, I should like to stress that, so far as humanly possible, only provable facts should be published as being the only way of ensuring and maintaining the delicate balance between a free Press and the rights of private citizens.

4.48 p.m.


My Lords, I am afraid I must start by apologising for the unlikelihood of my being able to be here for the end of this debate. I deeply dislike committing such a discourtesy to this House, but I shall certainly take great care to read the written record of everything that has been said in my absence.

On the subject of the laws of libel, I do not think there is as much wrong with them as do many distinguished Members of your Lordships' House. I am certain that the Press should have the maximum immunity to report and to comment critically on matters of public interest; but I think also that journalists do have a power to damage, the strength of which they sometimes do not seem to realise themselves. I think it is undeniable that damages have been excessive, and there is a long history of this. The outstanding example is the £100.000 award in the case of Lewis v. Daily Telegraph, when that newspaper had published a statement that the Fraud Squad were investigating the company's affairs. I am glad to say that, since that occasion, there seems to have been a different trend in damages awarded.

I feel that the way to deal with this matter is in the directions which judges give to juries, which should include an instruction that the award is to be calculated according to the principle of compensation but on no account according to any principle of punishment against the newspaper concerned. It is interesting to note that last year there was the case of Broadway Approvals v. Odhams Press, and when the matter came to appeal one judgment recognised this principle. Lord Justice Davies said that the damages which were then awarded, some £15,000, were out of all proportion to any damage the plaintiff could possibly have suffered. The learned judge specifically reproved the judge in the first court for not giving instruction to the jury that they should not consider awarding damages for their punitive nature but simply according to a just view of what the compensation should be. It may be that this signalised—and in some quarters of the legal profession it has been taken to have signalised—a new departure in this respect. If this is so, some of the very justified objections may now have begun to be met.

On the proposal for qualified privilege, although in principle it is attractive, one must admit that it has grave defects. It would enable untrue statements to be made by someone which could cause great damage indeed and could be said to ruin a person's reputation. It is said that, to provide against cases like this, newspapers should be required to print apologies. I have never in my life seen a published apology in a newspaper that looked a sufficient recompense for the damage that might have been done by a libel. I do not blame the newspapers for this. I think that this is probably a very difficult thing to do, and even if an apology were given some sort of prominence in the newspaper, I very much doubt if its effect would be to restore the reputation of the individual to what it was before the original libel was committed.

It is arguable against this that newspapers may take less trouble to check their facts. The principal objection is that probably a range of authorities, possibly from malicious informers up to something as respectable as The Times, could be produced as plausible authorities for the libel which was said to have been committed. One imagines that it is possible for a libel to be passed from one newspaper to another; that is to say, for one newspaper to take it off another. If the first newspaper is highly respectable and has a good reputation for reliability, this could amount to sufficient justification for other newspapers having printed the libel themselves. I believe that there should be an alteration in the "Limitations Act".

At present one can institute proceedings for libel any time within six years of the offence complained of. I feel that this is far too long a period. Justice suggested a period of six months, which is possibly too short, and I feel that it should be something of the order of a year or so, provided that there was an escape clause for special circumstances where it had not been brought to a person's attention, or he was abroad or ill. This might go some way to meet the objection which was mentioned by Lord Tangley.

I agree wholeheartedly with the noble Lord, Lord Thomson of Fleet, that there is no justification whatever, in this age of expanding international interests, why the same privilege should not extend to "fair and accurate" reporting of proceedings in foreign tribunals, even if they are defamatory, as is now extended to domestic tribunals and also proceedings in Commonwealth tribunals. In current law the test as to whether or not it is libel to print proceedings in a foreign court is this—and I quote the judgment in The Times case in 1960: One has to look for a legitimate and proper interest as contrasted with an interest which is due to idle curiosity or the desire for gossip. Clearly, this is a very difficult distinction to draw, and in cases such as the Bobby Baker case in the United States newspapers face a very difficult problem indeed. Some newspapers find it difficult to decide what they are permitted to print, and what they are not.

I consider that in all cases it should be a sufficient defence against libel to prove that there has been a conviction for the offence, for the mention of which the newspaper is being sued. In other words, after the appeal has been heard offences for which a person has been convicted should then become facts which for the purposes of libel are true; that is to say, that it should be possible—which it is not at the moment—to refer to the train robbers without thereby making yourself liable to a charge of libel. At the moment this is not covered. You are not able to say that A is a murderer, or that he stole something, on the basis of his having been convicted of it. I do not think it is even clear whether one is covered if one says that X was convicted of that crime. In principle, there must be an end to litigation, and it is quite wrong that anyone should be able to use a private person to have his case retried, for the purposes of proving whether or not a conviction was correct.

There are only two things I should like to say on the matter of contempt of court. In the first place, I would refer to what recently happened in the Moors case, where the chief prosecution witness was discovered not simply to be in receipt of financial reward from a newspaper for a story that he was providing but with a definite and admitted financial interest in a conviction rather than an acquittal. It seems to me to be in every way thoroughly undesirable that such a thing should have been permitted, and I regret that it has been decided to take no action in this matter. This being so, it seems to me that, unless the Press Council is able to control this sort of thing, there will have to be legislation on this subject.

The final matter to which I will refer is the question of commenting on judgments, convictions and sentences before cases go to the Court of Appeal. This seems to me to be the time when newspapers are likely to want to publish their commentary. At present the rule is that comments may not embarrass a judge in the sense of influencing him so that "his impartiality might be consciously or even unconsciously affected." This seems to me to be an astonishing requirement. I wonder how on earth one could test the likelihood of whether something will affect a judge's impartiality unconsciously? In a case in 1960 concerning an article written in the Daily Sketch, Mr. Justice Hilbery said that he could not imagine a judge reading, let alone being influenced by, the Daily Sketch. The implication is that there are other newspapers which would have to take greater care in this sort of case because they are newspapers which might influence a judge and are obviously more vulnerable. I think that the Appeal Court should be treated as if it were of impregnable impartiality, and I do not imagine that that Court would quarrel with such an assumption.

5.0 p.m.


My Lords, may I apologise for intervening in this debate without having had the opportunity of hearing the speech by my noble friend Lord Tangley? Unhappily, I was occupied on public duties. I am therefore under that disadvantage, but I have taken the opportunity of receiving a rapid report of what he had to say. I gather that the general tenor of his remarks is what I anticipated, and why I have intervened, to commend to your Lordships in substance what has come to be called, perhaps not with entire accuracy, "the Justice report" in relation to reforms in the law of libel so far as it affects newspapers. I should perhaps declare a rather slender interest. I am a trustee of a Sunday newspaper, but I have no editorial commitments in the matter. More important, I have for a long period of my professional career been engaged in matters connected with libel. I have advised, I imagine, many hundreds of people on the subject, often very wrongly; but it has been a matter of special interest and concern to me, and I can speak with an accumulated weight of professional knowledge. However sordid, is another matter.

I would say this. This report comes bearing the commendation, which it necessarily brings with it, of having as its sponsors and authors the noble Lord, Lord Shawcross, and the noble Lord, Lord Tangley, among others. It would show great temerity to question the views expressed by either of those gentlemen on a subject of this kind. I am going to venture to display a little of that temerity, however, because I think that their immense professional standing (Lord Tangley is a most distinguished member of my own profession) will bring a weight and respect to this report which makes it doubly necessary that it should be studied with particular care.

The first point I should like to make about this report is that it is necessary to examine the circumstances in which it was made. I do not mean that there is anything suspect or sinister about the circumstances—it is an immensely respectable report, having the most factual origins—but it contains no published evidence of any kind. There is not a syllable of evidence from anyone in the report—although evidence was, in fact, received by the committee—to support any of the recommendations made by the committee. There may have been a good reason for it—I do not know. But I should have thought it would have been very much better to receive the evidence and publish it, and to ascribe to particular individuals a viewpoint on the matter, so that the reader could assess how many people were in support of one view and how many against it. But that does not appear in the report.

More important, it is disclosed—and I think proudly disclosed—that the committee took evidence only from members of the Press. I would urge your Lordships to consider this. This is a report which is recommending the enlargement of the rights of newspapers; it is recommending that newspapers should have higher privileges. That result can be achieved only by taking away someone else's rights; it can be achieved only by diminishing the rights of the public. I venture to suggest very strongly to your Lordships that a committee which did not hear the voice of the public, which deliberately excluded the voice of the public, could arrive at nothing but a one-sided conclusion, however distinguished the members of the committee, and however profound their knowledge of the law. If ever there is a subject where it is necessary to receive the views of people who have been concerned in this situation I think the law of libel is that subject. And that is particularly so in relation to newspapers.

One of the deficiencies of this report, and it is a very marked deficiency, is that it fails anywhere to indicate the present constitution and control of our Press. I am not concerned to attack the Press. That would be far removed from any desire I have. But I think it is very important, where one uses camouflage words like "the Press", that a report which is supposed to have considered the rights and privileges of the Press should indicate the nature of the Press with which it is dealing. In fact, of course, we are dealing with newspapers owned by a very few private individuals, who wholly control them and exercise absolute powers in respect of them. I do not think our Press is worse than anyone else's Press, but it is a highly fallible human institution, and we must therefore, before increasing the rights that we bestow upon it, take into regard the nature of that fallibility.

The liberty and the safety of the realm are preserved by securing suitable safe-guards against highly fallible human institutions, and I think that the law of libel at the moment constitutes one such safeguard. It would be very dangerous indeed to tamper with that right without an authoritative Royal Commission having heard all the views of the people who are concerned in this matter, which could affect every private citizen in the land. I would venture to say this. I do not for one moment dissent from the views expressed about contempt of court and about official secrets. But when it comes to the law of libel, I do very profoundly dissent from many of the conclusions.

I do not intend to weary your Lordships with a long speech, but I should like to instance a few cases. I should like to touch, first, on the one that was mentioned by the last noble Lord who spoke. He was referring to a suggestion that there is some injustice to a newspaper, in not providing a privilege for the publication of a report of a foreign court. In my opinion the law as it stands at the moment, and as it was enunciated by a learned judge in a most recent case, is absolutely exemplary on this matter, because what the law says is this. If the report of the foreign court is a matter of general public interest in this country, then it receives a qualified privilege. But if it is a matter of no public interest in this country why in Heaven's name (if I may put it in that way) should it be necessary to bestow any privilege upon it?

Let me instance a case from my own experience. A man goes to a foreign jurisdiction. He becomes involved with some notorious or immoral woman. She sues him for an assault. She sues him because she is using the publicity that is attendant on proceedings in foreign parts as a blackmailing weapon to exact money from him. Why, in any circumstances whatsover, should a report of those proceedings receive a privileged position in regard to action in this country? Why, in fact, should a blackmailing weapon be sharpened on behalf of this lady by the law of this country? It is totally unnecessary, and in my opinion this would be a reactionary reform and one that is not in the public interest.

I come to the major recommendation, which is a startling one. I refer to the suggestion that there should be a qualified privilege where a statement is published allegedly as a matter of public interest (whatever that may mean), and where it emerges that although the statement is untrue it is based upon what is regarded as reliable information; it comes from a reputable source. If one analyses this, what it involves is that we should penalise a newspaper when it published a wild rumour but protect a newspaper when it published a plausible rumour. This cannot be right. Just imagine the situation of an unfortunate person who is defamed by a newspaper and who has to go through a lengthy, complicated and expensive libel suit to establish, not whether the statement was justified, not whether he deserves the reputation he holds at the moment, but whether, in fact, the newspaper received its information from a reputable source. I have rarely heard a proposition that commends itself to me less. I would urge upon your Lordships not to send any message from this House which gives the slightest support to an amendment of this kind.

The public interest is heavily involved. It is not necessary to abuse the newspapers. I do not believe they are seeking opportunities to defame people. But the important weapon in the possession of a private person, which enables him to deter newspapers from publishing matters, is one of the things which holds the balance between the public and the newspapers. I believe that in this instance the newspapers require to be protected from their friends. I know that The Times, the Observer and other newspapers did not commend this particular reform to the committee when the report was published. I know that it is not strongly supported by the legal profession. I should be surprised if many of the practitioners of the law of libel, very few of whom had any part in the preparation of this report, would find themselves on the side of a reform of this kind.

That brings us to the question of damages. There is throughout this document an unspoken abhorrence of juries. With this view I have no sympathy at all. I think that a jury does protect the private person from great and oppressive power. It will be a sad day indeed—and I have suffered at the hands of juries; and clients of mine have suffered at the hands of juries—when we abolish the jury and say that, because a jury is prepared to award swingeing damages against a newspaper, there should be discriminatory legislation in favour of one class of the community so that a jury does not adjudicate on those affairs.

I would invite your Lordships to consider this. The quantum of damages in libel matters has been large for very many years. In 1907, I think, Lever Brothers and associated companies recovered damages to an amount of £151,000 from one newspaper, still in existence, for what was undoubtedly a very serious defamation. Nobody asserted or suggested that on account of that verdict damages should be reduced in libel actions. The verdict was accepted and approbated as a rightful verdict for a serious injury. In the 1930s, Princess Yusupoff recovered some £30,000 from a film company, because there was an imputation against her virtue. Nobody suggested that the law in relation to damages should be changed. What has happened since then is a considerable amelioration of the situation in favour of newspapers. The cases cited in this weird and wonderful report, if I may call it that, are nearly all cases which have had an end result in favour of the Press.

The Rookes v.Barnard case has established what I think is the unsatisfactory decision that penal damages can now no longer, as a matter of course, be obtained in libel. I think this is quite wrong, but it is a decision in favour of the Press. The Lewis case decided that the House of Lords could intervene and declare as ridiculous the damages that were awarded by a jury in circumstances which, under analysis—and I do not know Mr. Lewis, and had no concern in his case—were by no means ridiculous. If he succeeded in making out to a jury that he and his company—a public company of substance, as it was—had been accused of dishonesty in a fashion which reduced the value of the assets of the company, why was it wrong, why was it inappropriate, that the jury should award damages which they thought would rectify that situation?

It is, of course, right that a sensible balance can be maintained. It is right that the Press should not be terrified by the prospect of publishing anything; but the Press are great and rich and powerful institutions. I do not think the Press is deterred in any way from publishing something because of the fear of an ordinary libel verdict. It is very significant that, in relation to the newly-claimed defence of privilege for statements which are not true but are based on well-authenticated report, the report does not instance a single statement, if I may say so, of what the newspapers wanted to publish but were prevented from publishing. I have not heard a single word, a single paragraph, instanced to support the introduction of this particular reform. If such a reform were to be brought in, it would be absolutely imperative that a whole list of matters which in the public interest should be mentioned by newspapers should be brought to the notice of the committee which was engaged in preparing the report, that one should be satisfied that there was a serious inhibiting factor in this matter, and that one should be satisfied that the newspapers could not do their duty.

After all, there is nothing to prevent a newspaper from publishing anything provided that it can justify it. The newspapers have an enormous area of privilege in the law of libel, and I will instance a few examples. Take the case of fair comment. Very properly, our law provides that any amount of criticism, however foolish, however misguided, however ignorant, however absurd, can be published without any risk of a libel proceeding. If the comment is fair and if it is a matter of public interest, it does not matter how perverse the comment is, a newspaper may publish it. Yet we find this is not enough. In this strange report, there is a plea for an addition. There is a plea that a newspaper should be entitled to publish a comment which it knows initially to have been malicious, or which was initially malicious, and which, on account of the malice, it can republish without any danger to itself. On what conceivable ground can an extension of a privilege to a newspaper be permitted in such a case?

I think that the law on fair comment, if anything, goes too far. It has been held by the House of Lords to mean not fair but honest comment. It means that you are subjected to anybody's comment on a subject on which you are an expert and he is a complete tyro, and you have no redress of any kind. I think that, on balance, it is probably right. I think it will be a very sad day if we seek to restrain the right of critical expression. But it is an enormous and valued privilege, and the newspapers are very fortunate to have it. Many countries do not have it; and the newspapers should not ask for too much when they already have such a substantial share of the cake.

Another great privilege of the newspapers, nowhere mentioned in this report, is our law in relation to injunction. You cannot get an injunction to restrain the publication of any material if the defendant is prepared to say that he justifies it. If your Lordships think for a moment you will realise what an extremely civilised nation this is. It means that if a newspaper thinks it is in the public interest to publish something, or if a publisher thinks it is in the public interest to publish something, and is prepared to stand by it and justify it, you cannot suppress that publication. This is a most valuable privilege enjoyed by the newspapers.

They have many other privileges. They have special defences of every kind; and they have other privileges which are not found in the law. Nowhere in this document is there to be found a syllable about the difficulty of a plaintiff who wants to institute proceedings. Think of the position of a man of slender means who finds that he has been maligned by a newspaper, resents it bitterly and wants to vindicate himself. What is his situation? He cannot get legal aid because libel is not one of the grounds on which a legal aid certificate can be issued. He must risk his entire fortune. He must take his courage in his hands and decide whether he prefers to preserve his fortune or his reputation. That is the risk he has to take—and he is fighting the enormously long purse of the Press. I do not think the Press is wise to ask for these additional advantages.

I think we enjoy a good relationship with the Press, and that we shall continue to do so, but I believe we enjoy it because the Press realises there are restraints available to people who are tried too far. I do not suggest for a moment that the publication of this report coincides with any particular misbehaviour on the part of the Press. There is a rather comic feature of the report, if I may say so, which is that at various stages we are told the Press is much better, that it has improved, that its image has improved. We are not told what were the cracks or the chips which previously disfigured its image. I do not know how, in fact, it is possible to arrive at a conclusion on this matter without knowing something about its previous enormities, its previous iniquities. What was it that gave it the bad reputation from which it has now redeemed itself? How has it redeemed itself? It appears to have redeemed itself on its own ipse dixit. No one else says that it has redeemed itself except the Press. I do not know, and I am not accusing it of anything, but it appears to have accused itself of very serious crimes and then to have declared that it has reformed, and, as a reformed character, is entitled to special consideration.

Let me now come, if I may say so, to the last of the suggestions which in some ways is the most opprobrious. That is the suggestion that, if a man is sued for libel, there can be introduced into the defence by way of mitigation any evidence relating to his previous behaviour, provided that it has some sort of relevance in point of time or association with the libel. Consider the implications of this. I am, let us say, a malevolently designed editor of a small newspaper—I would not suggest it would be done by a large newspaper—and I know that a particular person has committed particular offences; that he has in the past been, say, a homosexual and has associated with other homosexuals. I know this and I wish to injure him. I therefore publish a statement that he has done it again. I publish an allegation of a homosexual association with another person. My position is absolutely secure, because I know that, although it is untrue of this particular instance, I can bring up against him the earlier instances of which I have known. Nothing is more contrary to the tradition of British justice than that a man may not bury his past. Nothing is more contrary to that tradition than that a man may not redeem himself by subsequent good behaviour. Yet here in this report we find an invitation to revoke both of those principles. It is, if I may say so, totally unacceptable.

The newspapers have another privilege in the realm of criminal libel. No proceedings can be instituted against them without, I understand, the consent of a judge in chambers—I think it is a judge in chambers who must give consent before proceedings can be instituted. This, I think, is right. I think the law of criminal libel can be gravely abused. I should like to say this because it is the first opportunity I have had, and may be the only opportunity I shall have, of mentioning a matter which has been of great concern to me but not in relation to newspapers.

I recently observed that the law of criminal libel—a most terrifying, blunt instrument that has always been regarded as inappropriate for any delicate use—was employed by the police who instituted criminal proceedings against a man who was accused of a particular crime, because he had alleged that the police officers concerned had stolen his possessions. If there is one change that is required, it is to prevent a repetition of this sort of situation. I am not suggesting that the circumstances were not right; I am not suggesting that the man ought not to have been convicted. But think of the situation of a man charged with one crime who wants to make allegations against police officers whom he alleges have assaulted him or stolen from him. What an extraordinary thing it is that the law of criminal libel should be used for this purpose‡ I think myself that the conviction was entirely inappropriate. The law of criminal libel requires as one of its planks that there should be the possibility of public disorder. In relation to a police officer, I should have thought by definition there was no possibility of public disorder. A police officer is a man trained to maintain order. I should like the noble and learned Lord the Lord Chancellor to be kind enough to look into this case because it is a conviction which must give the greatest anxiety and concern to a great number of people. It is a sphere in the law of libel where I think changes are required.

May I conclude by saying this? I have a great respect for the noble Lord, Lord Tangley. I have expressed my view of him as a most distinguished member of our profession, and that he is. I will add only this. I think a man of his public distinction, and a man of Lord Shawcross's public distinction, are entitled to an occassional abberation.


My Lords, may I ask my noble friend Lord Goodman to refer me to the passages on "fair comment" in the report to which he objected, because I could not find them, or any other of his views on "fair comment", in the form in which he made them?


My Lords, I did not refer to "fair comment" in connection with the report. I was alluding to the general law as being extremely wide and protective of newspapers in relation to fair comment. I did not find in the report anything touching on fair comment at all. I should have thought it appropriate for a report which is to recommend various very drastic, draconic changes in the law of libel in favour of one particular section of the community to have instanced the privileges that section already possess.

5.20 p.m.


My Lords, the noble Lord, Lord Tangley, has introduced a Motion of the greatest interest in a characteristic and admirably moderate speech. It has given rise, I think, to a very good debate and, I am bound to say, to the very brilliant speech to which we have just listened. I have not had the good fortune of hearing Lord Goodman's previous interventions in our debates, but I shall certainly look forward to them in future. My greatest regret about his speech was that the noble Lord, Lord Thomson of Fleet, was not here to enjoy it, if that is the correct expression.

The most astonishing statement made in the course of this debate was by the noble Lord, Lord Thomson of Fleet, who suggested, as a quite minor but necessary amendment of the law, that we should abolish trial by jury in libel cases. Let me say at once in the interest of Lord Tangley that this, of course, is not recommended in the report. But I think it is rather interesting that somebody with knowledge, at any rate of the Press, should be quite so ignorant of the history of this country and the importance of trial by jury.

To show that I am not exaggerating this matter, may I read one sentence from a celebrated judgment of Lord Justice Scrutton in the case Broome v. Agar: Since Fox's Act of 1792 it has been a commonplace of civil procedure that libel or no libel, since Fox's Act is, of all questions peculiarly one for a jury …' I need not go on. But, really, to cast aside something so embedded in our law since Fox's libel Act of the 18th century as though it were a matter of trivial importance will not, I think, endear the modern Press even to the Liberal Party. I did not mean that; I should have said that it will not endear them at all to the Liberal Party. I was making a comment on the speech of the noble Lord, Lord Thomson of Fleet, and was not suggesting that the Liberal Party did not value Charles James Fox.

One of the things that pleases me in this debate is that, on the whole, there has been no unnecessary deference to the Press. Let me make my own position clear. I have many very good friends in the Press. I agree with my noble friend Lord Tangley that the Press has many good points and many bad points; and do not let us pretend that the Press is the unique guardian of all that is good and must never be criticised for anything. I was refreshing my memory this morning of a passage about the Newspaper Man by George Bernard Shaw which has always given me pleasure. It will be found in a stage direction in Act IV of The Doctor's Dilemma. Let me read it to the House: Walpole returns with the Newspaper Man, a cheerful, affable young man who is disabled for ordinary business pursuits by a congenital erroneousness which renders him incapable of describing accurately anything he sees, or understanding or reporting accurately anything he hears. As the only employment in which these defects do not matter is journalism (for a newspaper, not having to act on its descriptions and reports. but only to sell them to idly curious people, has nothing but honour to lose by inaccuracy and unveracity), he has perforce become a journalist, and has to keep up an air of high spirits through a daily struggle with his own illiteracy and the precariousness of his employment …". There are many journalists who do not answer to that description; but there are also many journalists who do. So for Heaven's sake let us be free of this nonsense that the Press is an institution to which we owe quite unreasonable respect and allegiance.


My Lords, as one who has earned his living as a journalist for well over 40 years, I think I might apply those very words of Shaw's to lawyers.


Not only "might"; the noble Lord certainly will; frequently. I have no complaint whatsoever of his doing so. I do not think that lawyers are immune from criticism. Nor do I think they are always demanding extra privileges for themselves. But I am saying that I think the Press has some good points and some bad points. The main object of my intervention is to say that, while there may be defects in the law, there are many more defects in the Press—and I think that needs saying.

My Lords, to turn to the report of the committee of Justice (and may I say that I am a member and a supporter of that institution), I read this report last year with the greatest interest. I agreed with some passages and disagreed with others. Perhaps I ought to give an example both of my agreement and of my disagreement. First of all, I think the noble Lord, Lord Goodman, was perhaps a little unfair to the suggestion in the report that the Court of Appeal should be able to deal with cases where the jury, in the opinion of the Court, had gone wrong on damages. I think that that is a passage in the report for which there is a good deal to be said, because under the law as it now stands the Court of Appeal already does so in cases where the damages have been grossly excessive; but it can do so only by ordering a new trial. I think the object of the report was that the power to deal with damages which the Court of Appeal now has by ordering a new trial ought to be exercisable without the necessity of a new trial. For that reform there is rather more to be said than one would have gathered from the speech of the noble Lord, Lord Goodman.

Might I turn to the other suggestion which was not mentioned by the noble Lord, Lord Tangley, but which was a prominent recommendation in the report; that the question of malice should be for the judge and not for the jury. I cannot think of any question of fact arising in a libel case which is more obviously for the jury than the question of malice. If we believe in trial by jury at all in libel cases—and we have had it since Fox's libel Act in the 18th century—it seems to me that we must leave the question of malice to the jury. With the claim for a new qualified privilege I do not propose to deal at any length, first because it has been admirably dealt with by my noble and learned friend Lord Dilhorne and by the noble Lord, Lord Goodman, and secondly because it is, I understand, going to be dealt with by one of the noble and learned Law Lords who are to follow me. I would say only this about the proposed new privilege. I am not at all convinced of its desirability, still less of its necessity.

It is suggested that a newspaper has a duty to publish various matters which at present it is inhibited from publishing for fear of the law of libel. My Lords, I should be more convinced of the genuineness of this complaint if some newspapers were not so very selective in their consideration of what it is their duty to publish. One might have thought, for instance, that newspapers which are so free with their criticism of industrialists who hoard labour would publish their own agreements with the trade unions; agreements maintaining scandalous restrictive practices, which have been brought to light both by a Royal Commission, some three years ago, and by a more recent Report of the Prices and Incomes Board. Those noble Lords who want further particulars might refer to the admirable speech in this House on the 11th of the present month by the noble and learned Lord, Lord Shawcross.

When newspapers ask for new privileges under the law of libel, in order that they may publish information which they say the public ought to have, they might, I think, show their sincerity by letting the public have full particulars of the numbers of men they maintain, either in idleness or ludicrously under-employed, in order to avoid labour difficulties. A subsidiary purpose may be to make the production of newspapers so expensive that they need not fear that any new rival will arise. My Lords, that is a suggestion to the newspapers. The particular evil to which I call attention is, of course, about to be increased in its scandalousness by the lunatic suggestion that they should be given a bonus for the unnecessary labour that they hoard. That is a suggestion of such outstanding lunacy that it will no doubt be the subject of further and different debates.

The other matter to which I wish to allude, and on which I am critical of this report, was mentioned in a speech—with much of which I agreed—by the noble Baroness, Lady Gaitskell. It is the question of the invasion of privacy. My Lords, there is a paragraph in the report which deals with this, paragraph 107. I will not trouble to read it to the House, but I think that it is much too optimistic. It suggests that this is a difficult matter on which to legislate; which it is. But it also suggests that this is eminently a matter for the strengthened Press Council, and that the growing influence of that Council will be sufficient to deal with this evil.

My Lords, I do not share that optimism. I do not think there is any evidence that the Press Council, in spite of its excellent intentions, either can or will cause the newspapers to abandon all these invasions of privacy. I was one of those who spoke and voted in the debate on the Second Reading of the Bill of my noble friend Lord Mancroft on March 13, 1961. The Second Reading was carried by a majority of 74 to 21—a majority of more than 3 to 1. The noble Earl, Lord Arran, interrupted the noble Baroness, Lady Gaitskell, this afternoon to ask whether this was not a matter in which this House had set such an outstanding example that the evil had largely vanished? I am glad that the noble Baroness, making a very temperate reply, reserved her right to look into that. I would only say that the noble Earl, Lord Arran, on that occasion in 1961 voted with the minority, and I am very glad if he now thinks that that debate with that result did so much good.


My Lords, may I interrupt the noble Lord for one second? He has not yet told us what Lord Arran's Bill was about.


My Lords, it was not Lord Arran's Bill, it was Lord Mancroft's Bill. The noble Lord, Lord Boothby, will find the debate in Hansard of March 13, 1961.


I will look it up.


It was a Bill to confer a right to privacy on the individual so that, if there were an outrageous invasion of privacy, it would give a right of civil action. Some very interesting speeches were made in that debate, and I think it was agreed by the majority that there were many difficult questions which had to be looked into. But the House, by a strong majority, supported the Second Reading of the Bill.

Now, my Lords, if it is said that there is now no invasion of privacy by the Press, I wonder whether such a suggestion could be seriously made by those who read our Press day by day. Let me give two examples. The first example is a matter about which our Press has offended far less than the American Press, but still, I think, has offended. Why on earth should the widow of President Kennedy have no right to a private life? Why on earth should the Press speculate on what future arrangements she may or may not be considering, and whether she is considering being married, to whom and things of that sort? It seems to me an intolerable affront that this lady is considered by the Press—here our Press is much less bad than the American Press—to have no right to a private life.

I give another example. What about members of our Royal Family? Is it really thought by Members of this House that the Royal children should have no right at all to a private life into which the Press does not pry? I cannot believe that that represents the view of most noble Lords. But, nevertheless, the Press goes on treating any member of the Royal Family as a person with no right to a private life at all. I could give many other examples, but I will not do so. My view is perfectly simple. I know that there are difficulties about devising a satisfactory law to protect privacy. But, my Lords, I say this. If such legislation is practicable, it should be introduced. If it is not practicable, then the Press should improve its conduct without legislation. Any easing of the law of libel as it affects the Press should follow, and not precede, a marked improvement in its conduct.

5.38 p.m.


My Lords, we are here concerned with a question of balance. Freedom of the Press is essential to our liberties, but it must be combined with responsibility, because the Press owes a duty to every individual not unjustly to accuse him, and the whole of our law of libel, and indeed of contempt of court, is aimed at preserving the right balance. The task eventually is left to a jury, and, as my noble friend Lord Conesford has said, it was established many years ago that the question of libel or no libel was for a jury. Indeed, judges at one time went wrong. Lord Mansfield himself said that "libel or no libel" was for the judge, and in effect directed a jury to find the printers and publishers of a newspaper guilty. They found them not guilty. And Charles James Fox, in Fox's Libel Act of 1762, affirmed that the law always had been: "libel or no libel" was for the jury. And if I may say so to the members of the Press, the freedom of the Press in England was established by the jury.

But juries do occasionally go wrong. There is no doubt whatever that in quite a number of cases lately juries have awarded damages which are far too high. Let me say at once that in the Court of Appeal we regard ourselves as having power to set aside an award by a jury if it is out of proportion to the circumstances of the case. We have the self-same power in regard to the award of a judge, and we have recently declared that we have the self-same power in regard to the award of a jury: and, indeed, we can, if need be, send it back to be assessed by a judge. I feel that we need no further powers in that regard.

Then this report suggests that newspapers should be given a wide and extended qualified privilege in regard to matters which are of public interest. This matter was considered in an Act in 1952, and they have been given all the privileges that they could reasonably desire. For instance, in regard to the publication of the Racing Calendar of the Jockey Club, they can insert the decision of the Stewards without fear. Indeed, quite recently we had a case in our court where they were allowed to publish the request by the police for information as to an offender. Matters of public interest of that kind have been laid down by Parliament as being matters on which newspapers can comment quite fairly as long as they do it without malice.

This brings me to the question of malice. This report suggests that the question of malice should be withdrawn from the jury and reserved for the judge. Comment has been made on the recent case which came into our Court, and perhaps I may remind your Lordships of the details. It was a case where some auctioneers put up three little pigs for sale in a market, and then some man—a fraudulent man—gave the name "Boston of Rugeley" and the little pigs were knocked down to him. He went off with them without paying and was never seen again. He had stolen them. Those auctioneers wrote round to other auctioneers to warn them. They informed the police, and the police put out a television broadcast in order to try to find the thief, in which they said that a man wearing a brown smock, giving his name as Boston of Rugeley, had made off with the three little pigs. This was clearly a privileged occasion for the police.

The matter was tried before a jury, because a true Mr. Boston of Rugeley said that he had been defamed. It was difficult to see that he was, because everybody knew who he was and knew that he would not have taken them; and the auctioneers actually told the police: "Of course, it was not Mr. Boston of Rugeley". The jury, quite properly, after five hours' consideration, found the auctioneers not guilty of malice, and the judge quite rightly awarded the verdict for the defence. The jury afterwards, for some unknown reason, wanted to say that they had made a mistake. I do not want to comment too much on the jury, but they made not the slightest mistake. They had found a full and proper verdict, and it would be quite impossible for any court to let them say the contrary. That really upholds trial by jury; it upholds the right of a jury to say whether it is malice or no malice. It does not in any way shake my confidence in the jury system.

Then I would mention the matter of commenting upon judgments which have been given in a court. Our courts of law are, and should be, as much open to comment and criticism as anyone. We are not afraid of it. Indeed, as my noble friend Lord Reay said, if a judge in a trial court gives a decision or a verdict, we do not mind the newspapers commenting on it. It would not influence us in the Court of Appeal. I do not think we should take too much notice of what the newspapers said.

There is one final matter, the right of privacy. Certainly, scandal of people in public positions is a marketable commodity. I myself have seen how much has been paid for it from time to time by newspapers, who are only too glad to use it whenever they have the opportunity. If it is true, and it is published, no person at the moment can complain in law. And not only that, but some people do not wish to bring libel actions, or actions against the newspapers, in regard to it because of their positions. We ought to have in our law a right of action for infringement of privacy. There was wide support for it in this House in Lord Mancroft's Bill a few years ago. In the United States there has already been developed at common law a right of action for infringement of privacy. We can only do it at the moment under cover of an action for libel, as in Mr. Tolley's case a little while ago. I hope it is still open to the judges, if the occasion should arise, to develop it, and if we have the opportunity I think we have a good chance; but in case we do not have a chance I should welcome a Bill in this House to give a right of action for infringement of privacy.

But all this, as I have said, is a question of balance. Some of the matters which are recommended in this report of Justice have a little foundation, but the major ones, I feel, ought not to commend themselves to your Lordships' House. Over the years we have tried to get the balance, and on the whole we have succeeded. Do not interfere too much.

5.48 p.m.


My Lords, I should like to join with other noble Lords who have expressed gratitude to the noble Lord, Lord Tangley, for introducing to your Lordships to-day a discussion on a subject which is, I think, of wide general importance. I approach the question as one who feels admiration for most of the activities of the Press and admiration for the greater part of the work that they do. We depend so greatly upon the Press. It is quite impossible for any one of us to take an intelligent interest as a citizen in the affairs of the community unless we have the quite remarkable services that are provided for us by the Press. I never cease to wonder that in the morning at the breakfast table there is a newspaper which brings one up to date with an account of the events, not only here but throughout the world, and often most helpful and useful comments which set one on a line of thought. All that has been produced with a race against time. The clock does not stop, and trains do not wait for the finishing touches. So I approach this question with a sense of gratitude for most of the activities of the Press.

But I feel that it is right and proper that we should pause to consider whether the law is being in any way unfair to the Press who are performing for the most part this valuable public service. I respectfully agree with the approach of the noble Baroness, Lady Gaitskell. I do not think we can too often remember that truth in a civil action is an absolute defence—justification. There is not always the necessity to publish something that is published, but if it is published, in a civil action truth is a complete justification. What a great defence that is‡ What a great privilege that is‡ If I may respectfully say so, surely the approach of the noble Lady was a wise one: that if we keep to the truth and adhere to the truth in what is published, then difficulties do not arise.

But I think we must recognise that a libel action is an action in which somebody claims damages for loss of his reputation. We must know that there are cases where a plaintiff is quite un-meritorious; there are cases where a plaintiff becomes a gold-digger. If there are any defects in the law in cases to which such a description can apply, then surely we ought to seek to put them right. If somebody picks out a few words from a publication, and if read in their full context there would be rather a different meaning, if there are any difficulties to-day in the law—and I am not sure that there are—in enabling a court or a jury to have the words in their full and rightful context, then surely we ought to be able to put that right.

As somebody who sues for damages for libel is saying, "My reputation is being harmed", it is possible for the defence to say, "The plaintiff has no reputation to lose". But there are difficulties in that branch of the law, for in general it is said that any evidence of bad reputation or bad character of a plaintiff can only be given in very general terms. And there is much to be said for that. Would it be right if a defendant could say, "I said this about him and that is false, but if only I had said that which I did not, that would have been true"? We could not allow anything to creep in on those lines. But there might be cases in which some details of character or reputation would be helpful. The noble Lord, Lord Goodman, has pointed to certain difficulties in the recommendations that the Committee of Justice has made on this matter, but I feel that there may be some room for further inquiry there, as to whether something could be done to meet the sort of difficulty to which I have referred.

I would agree entirely with those noble Lords who have regretted the suggestion that the part to be played by juries in legal actions should be altered. It is said in the report that sometimes juries may be misled because the judge gives a ruling to say that words are capable of bearing the meaning, leaving it to the jury to say whether they do or not. If there are any possibilities of a jury's being misled there—and I rather doubt it—it could easily be met in some way. But I should be sorry indeed if we did not leave the jury as the tribunal, where a plaintiff claims a jury and is entitled to a jury, to decide on such issues as malice, whether words are defamatory or not, and on the issue of damages.

At this stage of the debate your Lordships will be anxious to hear what the noble and learned Lord on the Woolsack has to say, and I will refer to only one other topic which has been discussed in the debate: that is, the suggestion of a new defence for newspapers, the statutory defence of qualified privilege in respect of the publication of matters of public interest where the publication is made in good faith and without malice and is based on evidence which might reasonably be believed to be true. I am bound to say that I feel there are great disadvantages in that suggested change. "Matters of public interest"—well, there may not be any difficulty there, because, surely, in general, newspapers publish only matters that are of public interest. "Good faith and without malice"—it is reasonable for a newspaper to have to show that they acted in good faith and without malice.

But when one comes to the next words, I think there are great difficulties: "based upon evidence which might reasonably be believed to be true". Could a newspaper, or a reporter, say "Well, I was told this by a friend whom I will not name, but he is one in whom I have absolute faith"? Surely that would not do. Could he say: "Well, I was told by a friend, whom I will not name and whom I trusted, and then I heard it from a second person, and then from a third person, and so I thought it must be true"? Will it be reasonable to allow that? I submit that it would be quite contrary to all that we believe in. We should be introducing the voice of rumour, and the sinister, hushed whisperings of rumour find many amplifiers.

How else would the newpaper deal with the matter? Would they disclose the source of their information? I had always thought that the newspapers would go to the stake rather than do that. When the noble and learned Viscount, Lord Dilhorne, raised this matter in the course of the debate, he received an answer that there would have to be disclosure of the source. Where should we be getting to? The witness on behalf of the newspaper says, "I was told this by so-and-so". Would "so-and-so" then be protected? Could the plaintiff then go and sue "so-and-so" for either libel or slander? That would not seem to be very fair, unless you are to give a qualified privilege to that person. Where are we to stop?

We respect our newspapers because we trust them, and because what we expect to find in them is statements of fact or news. News must imply that what we are being told is the truth. How would this compare with a case where the police receive some information that something is awry? What do the police do? They make careful inquiries, they take statements, they verify the statements and then, if eventually they think there is something amiss that they can prove—but only then—they present a charge. But it is only a charge, and it is a charge which the person concerned can have the opportunity of answering, and he may answer it. It is known to have been only a charge; and, indeed, if the charge was not properly put forward there might, on the dismissal of the charge, be an award of costs.

How different it is in the case of a statement in the newspaper. It is put as a statement; it is not put as a charge. It is put as the decision, the verdict, the conclusion, and accepted as such. How often, perhaps in country districts, has one heard it said, "Well, it must be true; it is in the newspaper"? That is a measure of the respect and faith and dependence that we have regarding our newspapers, but it suggests that it would be very dangerous if we were to give any encouragement by way of an additional defence if there were for some reason a departure from the truth. We have today the defence of fair comment, provided it is fair comment on facts truly stated. Is there to be a new defence of fair comment—fair comment upon facts which one might reasonably have been able to believe to be true? Where should we be getting to?

It is said, "Oh, but there can be a correction and an apology". In the busy race of life corrections and apologies are always a lap behind, and they never catch up. There are many people, even after a correction or apology, who still believe that the smoke of imputation was the product of some hidden fire of truth. I cannot believe that it is in the interests either of the Press or of the community that this new privilege or immunity should be given.

6.5 p.m.


My Lords, I will not keep your Lordships for more than a few moments, but I should like to say a few words on one aspect of the Press which has not been touched upon, and that is the excessive damage which can be done to practising artists. I speak of one art in particular, of course—music. A great deal of damage can be done by irresponsible criticism in the Press. I say "irresponsible criticism" because by no means is all criticism irresponsible, but a good deal of it is and a professional musician can suffer a great deal of damage from a single bad Press notice. The trouble is, of course, that to the general public most of them are merely names and one can imagine what would happen at, say, a local festival where the organisers were thinking of engaging some professional artist. Perhaps they are discussing whether they will have a particular artist and one of them will say, "Well, I saw a shocking notice of him in the paper a few days ago", and that of course will mean that he loses the engagement. If we multiply that by hundreds it can be seen that it could cause serious damage to a man's career, particularly as regards recordings.

Although some critics are very responsible, some of them seem to be unnaturally biased to-day. I really sometimes wonder at the extraordinarily acid outlook which seems to emerge from music critics in some sections of the Press. I remember a distinguished musician with whom I once had the privilege of studying, saying he considered the music critics were chiefly made up of disappointed musicians. Whether that is so or not, I cannot say.

This is not, technically speaking, libellous but it can do just as much damage and it can do damage to those who neither deserve it nor have any defence against it. But now comes the question: how are we to guard against it? The merit or demerit of a single performance is very largely a matter of opinion. The only possible defence that springs to my mind is a jury composed entirely of professional musicians. What a thought, my Lords‡ I confess that I have no solution to this problem—I leave that to those who are more learned in the law than I am—but I do feel it is a problem against which the professional musician should have some sort of defence.


My Lords, may I say a word in reply to the noble Lord, Lord Somers. The answer to his problem is perfectly simple: the critics are acid for one simple reason, because they cannot make music themselves and that is what they all long to do. The only other thing I wish to say is that there is no legislative remedy.


My Lords, the noble Lord, Lord Tangley, has kindly allowed me to intervene. I merely wish to say, for the Record, that in the future—I hope in the very far future—the question of retouching photographs and of cutting tapes may cause serious legal complications.

6.8 p.m.


My Lords, we have had an extremely interesting debate and I am sure that all of us, and the Government, are most grateful to the noble Lord, Lord Tangley, for having given us the opportunity for it. I fear that all I can really say on behalf of the Government is that I am afraid there can be no question of legislative time being found in this Session for a reform of this branch of the law. The Government have not yet made up their minds what, if any, reforms in this branch of the law there should be, and the debate which has taken place to- day has been of great advantage to them because in coming to a conclusion they will naturally take into account and consider most carefully everything that has been said in the course of it.

That is really all I can say on behalf of the Government but I suppose I should add a few words of my own. As the noble Lord, Lord Tangley, said, I have been a member of Justice and a great admirer of their reports. I thought, if I may respectfully say so, that the noble Lord, Lord Goodman, was a little rough on this report, for two reasons. First, because the majority of the recommendations are of a technical character, to put right aspects which the lawyers know are wrong, and are really matters more for lawyers than for laymen. Secondly, whereas every other Justice report is, I think, a report by a committee of Justice, this is a report by a committee on which, apart from the distinguished chairman, there were three members of Justice and three newspapermen. In those circumstances you do not, I think, expect to have the same report as you would have if it had been a report by six members of Justice.

If I may briefly refer to the recommendations which have been referred to, in the order in which they appear, the first seven deal with contempt of court. The first is a recommendation that: Proceedings in relation to publications in newspapers and journals should be brought only on the instructions or with leave of the Attorney General. The case for that was as ably put by the noble Lord, Lord Tangley, as the case against it was put by the noble and learned Viscount, Lord Dilhorne. It is a case in which I think there is a great deal to be said both ways, and I should prefer to express no conclusive opinion.

The second recommendation was this: The question of whether it is contempt for a newspaper to publish a further libel after a writ has been issued or to comment on a libellous publication in another newspaper should be clarified in any future legislation. That is only asking for the law to be clarified, and I think there is something to be said for the view that it is not really clear at the moment. The third recommendation—I do not think we have had much discussion about this—is: In the light of the proposed prohibition of the publication of contemporaneous reports of committal proceedings, the rights of newspapers to publish responsible appeals for witnesses to come forward should be clearly established. I had not thought there was any doubt that a newspaper could publish an appeal for witnesses to come forward. I am not quite clear what is contemplated when they do come forward, but if this means that they are to be directed to the prosecution's solicitors or to the solicitors for the defence, I can see no objection to it. If it means that the Press are to be free to advertise for witnesses so that the Press can then interview them and, if they wish, obtain their life story, this, I think, would be unfortunate.

I forbear to say anything in detail about what happened in the Moors case or in a subsequent case at the Central Criminal Court, because I know that my right honourable friend the Prime Minister and my right honourable friend the Attorney General have discussed the matter with the noble and learned Lord, Lord Devlin, who has told them that he recognises what happened in the Moors case to be a matter of great gravity which calls for urgent consideration, and that the Press Council will consider it from that point of view. But, speaking generally, I would say that if in any case a witness is paid money by a newspaper, or a newspaper agrees to pay money in certain circumstances, in which the probability is that the money will not be payable unless there is a conviction, this I should have thought obviously must be wrong.

But it has a second face to it, which has received much less comment, and that is that if a witness for the prosecution in a case of serious crime is interviewed repeatedly by "ghost" writers and other representatives of a paper with a view to articles all about the crime in question, one effect of that is bound to be that when that witness is called into the witness box he is not really giving his own recollection of the events which happened, but is tending to repeat a story which he has gone over again and again and which may—it may not, but it may—have been added to by questions or suggestions made by the "ghost" writer. Any evidence which is, as it were, learned by heart cannot, I suggest, be fully relied upon.

I remember a case of a schoolmaster who was alleged to have been guilty of indecent conduct with a small boy in the classroom. When the boy gave his evidence—and lawyers all know how dangerous children's evidence can be; how convincing it may seem when in fact it is quite untrue, though often of course it is quite true, and the difficulty is to distinguish between the two—he said, "I had an occasion to go to the desk for a pencil", and then he described in some detail exactly what happened. Counsel who was leading me for the defence said, "You gave your evidence very well, William. Would you mind repeating it?" The boy said, "I had an occasion to go to the desk for a pencil", and then quite a long story came out which was a verbatim repetition of what he had said previously. Inquiries were made, and it appeared that the police officer in charge of the case had taken the depositions round to him and said, "You have got to learn this by heart and I will come round on Saturday to make sure you know it properly", and then when he was satisfied he tore up the depositions. The judge naturally told the jury they had to acquit because you cannot rely on something learned parrotwise.

The next recommendation is: Newspapers should regard themselves as free to comment responsibly on sentences between a trial and the hearing of an appeal and should do so in appropriate cases". The next is: Newspapers should accept their responsibility as guardians of the proceedings in the courts and if criticism of judges needs to be made they should be prepared to risk the consequences of making it. Numerous noble Lords—the noble Lord, Lord Tangley, the noble Lord, Lord Francis-Williams, and the noble and learned Viscount, Lord Dilhorne—have commented on the apparent impossibility of persuading newspapers that they are free to comment on the proceedings of courts of justice. The law is not in any doubt. It is a free country. Anybody is entitled to express his honest opinion about a sentence and about the way in which the judge has conducted a case, though it is desirable that it should not overstep the bounds of courtesy and should not be a virulent personal attack on a judge. But, subject to that, the administration of justice is not, as Lord Atkin once said, a cloistered virtue, and anybody is entitled to express his honest opinion about it. I have tried for about thirty years to persuade newspapers that this is the law. They will not believe it. They say, "No, I cannot say that because that is contempt of court". Member after Member of your Lordships' House has said the same this afternoon.

Newspapers have plenty of good legal advice, lawyers on their own staff, but they cannot be persuaded about this. One result, unfortunately, is that the administration of justice in this country is insufficiently criticised. It is very good for everybody to be criticised. Of course, a man who sentences somebody and finds his sentence is criticised may be annoyed, but that is a very good thing.

I entirely agree with the recommendations which Justice makes in these paragraphs, as with its concluding one on contempt of court, which I think has not been read. It is this: In the public interest newspapers should devote more continual and serious attention to matters concerning the administration of justice and should employ more experienced reporters and editorial stall for this purpose. So much for the contempt of court. As far as the Official Secrets Acts are concerned, here again the proposal made by Justice was supported, I think, by the noble Lord, Lord Tangley, and the noble Lord, Lord Francis-Williams; but I thought, if I may say so, that the case made against it by the noble and learned Viscount, Lord Dilhorne, was right for the reasons which he gave.

Coming to the recommendations in relation to libel, if I may take first the proposal that the question of malice should be for the judge and not for the jury, I entirely disagree with that, for the reasons given by the noble and learned Lord, Lord Denning. I do not think there was much disagreement with the recommendation that the rules should be so that if a defendant can show that a plaintiff has taken no steps to prosecute an action for at least six months he shall be entitled to have the action dismissed unless the plaintiff can show good cause for his delay". Then there is this proposal that Section 5 should be amended to provide that where an action is brought in respect of a defamatory publication, the defendant shall be entitled to rely on the defence of justification in respect of the whole publication so that if the truth of every allegation of fact is not proved the defence shall not fail if the words not proved to be true do not materially affect the plaintiff's reputation taking the publication as a whole. I should have thought we could all probably agree upon that.

So, too, I think with the final recommendation that: Fair and accurate contemporaneous reporting of foreign judicial and parliamentary proceedings published in a newspaper should be the subject of qualified privilege. I know that the noble Lord, Lord Goodman, did not agree with that, but I think the law as it now stands is that which was laid down by the noble and learned Lord, Lord Pearson (as he now is), in the case of Webb v. The Times Publishing Company. The note on that case says he held that qualified privilege attached to the report in that case for its subject matter was closely connected with the administration of justice in England, and was, therefore, of legitimate and proper interest to the English newspaper-reading public. The foundation of all privilege was the public interest, in the sense of a legitimate and proper interest as opposed to an interest due to idle curiosity or a desire for gossip. Where such an interest could be shown there was such privilege for a newspaper report of foreign judicial proceedings. I should respectfully have thought that that was right.

Finally, I come to what are perhaps the three main contentious matters: first, whether trial by jury should be abolished; secondly, whether, if not, the Court of Appeal should be able to fix the damages; and, thirdly, whether there should be this general new plea of qualified privilege. Obviously, there must be specialists; but I have always thought, with many others, that the most fascinating side of life at the Bar is its variety. One can be engaged at one time in the question of whether a ship has been scuttled; then in a divorce case; then at the Central Criminal Court, and then perhaps on a Parliamentary Bill before a Joint Select Committee of the two Houses upstairs. One therefore views with apprehension any suggestion that one is a specialist. I remember the late Mr. Justice Fraser, who was a most able all-round lawyer, but who wrote a good book on the law of libel. The result was that, while he was in every libel case, nobody sent him anything else.

I was at one time in so many libel cases, some a good many years ago, in the days when Mr. Birkett (as he then was), was usually on one side, and Sir Patrick Hastings on the other, and I was usually sitting behind one or the other, and in later years on my own, that I was in some danger of being regarded as a libel specialist. As always happens at the Bar you tend, when you are young, to act for individuals, whereas when you are older, and your practice is larger, and perhaps your fees also are larger, you tend to act for limited companies. So perhaps in earlier life I acted more against newspapers, and in my old age more for them. I had at one time a general retainer from a national newspaper, and appeared for many other newspapers, too. So I think I can say I have seen the problem from all sides.

I would not, of course, put my experience against that of the noble Lord, Lord Goodman, who has enormous experience, not only in fighting libel actions, but also in settling them. If he will forgive me for saying so, I always thought that he was the most astute settler in London. It is a great art. I have known what it is to advise newspapers, in all kinds of actions faced with a man who has not suffered any real damage at all but who brings a sort of "gold-digging" action—and this was particularly so before the Act of 1952, although one does not often see this now.

One knows what it is to say to a man, "I don't think this amount of money is anything like what a jury will award. But you have to remember that you are up against a newspaper. They have all the money in the world. They can hang the whole thing up for a year quite legitimately, by which time all the damage will have been done. If you lose you will have to pay the costs on both sides, and this may absolutely ruin you." Having looked at it from both points of view, if I am asked the question: does our present law, on the whole, operate unfairly to one lot or the other, and, if so, to which, I would reply that I think that, on balance, the law is just about right. I should find it difficult to say whether I thought it unfair to plaintiffs or unfair to newspapers.

When it is said that trial by jury should be abolished to please the Press, I do not agree, because looking back, although of course one is disappointed at losing a case, I can hardly remember a single civil case in which I thought that the jury were wrong. In criminal cases juries do acquit large numbers of guilty people, but in civil cases they get a sort of wisdom which is greater collectively than the wisdom of any one of them. As I say, looking back I think that, as a whole, juries are almost always right.

Then it is said that the Court of Appeal must assess damages for the jury, or that something must be done about the damages because they are far too high. I accept what the noble Earl, Lord Dundee, said. I think he was against that proposal, partly because he thought that judges award too low damages. I think this is so; I think this is so all round. All our damages awarded by judges are substantially on the low side. If you take one of these pathetic paraplegic cases the sort of amount which is awarded here by a judge is about £18,000. Most Continental countries (I will not take America because their living standards are so different) would award in the same sort of case about £40,000. I think that the comment made by the noble Earl, Lord Dundee, that judges do not sufficiently appreciate the fall in the value of money may be right.

But why do juries award large sums against newspapers? There is a document going around Fleet Street which purports to give the appalling history of all the awful cases in which ridiculously large amounts have been awarded by juries against newspapers. It goes back about 35 years. It covers all my time at the Bar, and of course many of the cases I have been in, on one side or the other. But the extraordinary thing is that over a period like that the cases which the newspapers can rustle up, or in which even they suggest that the damages are excessive, are relatively few. In some of them there were obvious reasons. One such case was referred to to-day, that of Yusupoff v. Metro Goldwyn Mayer. Both the jury and all the judges agreed that that film was highly defamatory of Princess Yusupoff. The film was seen by some friends of hers who asked her to go and see it. She did so, and was so horrified that she went to her solicitors, who then wrote and said "While the matter is sub judice—we do not know how quickly we can get the action on—will you stop showing this film?"

The complaint in that case is that the jury awarded £25,000. But the reason may be that when the film company was asked, "Will you agree not to go on showing the film until the hearing", they said "What a ridiculous suggestion‡ Do you realise that if we did that we should lose £25,000 profit?" It may be that, if the defence write a silly letter like that, the jury may think, "They are making £25,000 out of it already by showing the film", and award damages accordingly. Then, of course, there was the fuss made about the Lewis case, in which the amounts of damages were obviously too large. The Court of Appeal and the House of Lords said that the amount was too large, and the newspaper did not have to pay. So I do not see really that they have a great deal to complain about.

Some amounts have done a lot of good. It is, I am sure, the fact that what happens at law has its public effect, and that is true of an award of damages. When legal aid started, the medical profession were most upset because there were a great many actions for negligence against doctors and hospitals. They have all died out now. You now hardly ever hear of one. But at the time people who previously could not afford to bring such actions were in a position to do so. A large proportion of them were cases of terrible burns, from hot-water bottles given to them when they were unconscious. You never hear of this sort of thing to-day. The reason is that as soon as these cases were brought all nursing staff were told, "For goodness' sake take care of the temperature of a hot-water bottle if you give it to an unconscious person". So in that way what happened has done good.

So, too, most of the high awards were in respect of articles of the gossip type which you never see now. My noble friend Lady Gaitskell referred to the article which killed them—I think that it was both the article and also the cases in which there were damages. In many of the gossip cases one could not sue, as one never can, if the report is true. The noble Lady may remember one well-known column which specialised in the sexual lives of the aristocracy, and if a marriage was breaking up or somebody was committing adultery it was always put in the gossip column. I think one case concerned Sir John Somebody and his wife. He apparently had left her, and the column rather suggested that he had gone off with somebody else, but did not say so. Then it said, "Their two sons, Tom and Henry, are at such-and-such a school." When the sons read it in the newspapers at school it was the first time they had any idea that their parents were not living happily together. Is one surprised if juries, when they get the chance, award large damages against newspapers who behave in this way?

It is only if they are hit in the pocket that they will be stopped. If I have to pay damages for libel to somebody it will have to come out of my taxed income; but to the newspapers it is a business expense which is allowed for tax. Whether that means the taxpayer pays for about half of it, I do not know, but it is allowed for tax. I personally would agree with all noble Lords who have disagreed with the proposal that there should be a new special defence of qualified privilege for newspapers, and who have disagreed with the suggestion either that juries should be abolished or that the Court of Appeal should be allowed to fix damages.

I think that covers the substance of the various proposals put forward in the debate. I myself entirely agree with a law of privacy. I have always thought that there should be one, and I agree both with my noble friend Lady Gaitskell and with the noble Lord, Lord Denning, about that, subject only to this. When one comes to sit down to try to compose it and to put into words what exactly are the circumstances which constitute a breach of privacy, one realises it is rather easier said that done. Subject to that, I am in favour of it in principle.

As I have said, all noble Lords, and the Government in particular, are most grateful to the noble Lord, Lord Tangley, for raising this matter. Libel is, after all, something of great importance to people as a whole, and most of the law of libel is not law applicable only to the Press. Our law may seem complicated as a whole, but its main outlines are fairly clear. If you say what is true, you cannot be touched. Lay people have sometimes heard the expression, "The greater the truth, the greater the libel". Your Lordships will therefore forgive me if I say that that applies only to criminal libel, which is very rare; but in the ordinary case, if you say what is true nobody can touch you.

There is a point not referred to in the Justice report which I should have thought worth considering, and it is this—and it would be in favour of newspapers. There is something to be said for the view that, if the issue is whether it is true or untrue, it should be for the plaintiff to prove that it is untrue. Curiously enough, our law assumes that what has been said is untrue. If the defendant then wants to prove that it is true, the onus is on him to do it. This is a little odd because in most cases it is for the man who brings the action to prove his case. What is a man doing when he is seeking to prove a libel? He is saying, "This defamatory thing is being said about me, and it is quite untrue". I do not see why he should not prove that it is untrue, rather than that the onus should be on the newspaper or whoever is concerned. It would not make much difference, and in most cases would not do injustice to the plaintiff.

The law of fair comment does not apply only to newspapers, but to all of us. It is the right of all of us to say what we honestly think on a matter of public inerest. This may seem hard on musicians. It may at first sight seem odd that a man like the dramatic critic of The Times, who obviously has studied the Greek theatre, the classical French theatre, as well as our own classical theatre, should have exactly the same right to express an opinion about a play as a man on top of a bus who has never seen a play before. The answer is that this is the right of all of us whether we are highly skilled and knowledgeable, a newspaper, or anybody else. Even if you have never seen a play before, you are entitled to say, "I went to see such-and-such a play. I thought it was awful tripe, and I advise everybody not to see it." If that is what you honestly think, then that is what you are entitled to say. I do not see why newspapers should have any special privileges which other people do not have, except in one or two respects in regard to which they have already got them. The Government will carefully consider everything that has been said on these many points on all sides of the House. We are all most grateful to Lord Tangley for initiating this discussion.

6.38 p.m.


My Lords, I most sincerely thank every noble Lord who has taken part in this debate. I feel that it has been very worth while. Indeed, for a Cross-Bencher to have provided a platform on which the noble Baroness, Lady Gaitskell, and the noble and learned Viscount, Lord Dilhorne, can stand arm in arm and disagree with him, is something to be remembered for a long time.

I would say a word about the Justice report, to which others have referred much more extensively than I did. There is perhaps some misunderstanding as to the status of that report. It is not a report by Justice. The working party was set up by the Press, on the one side, and by Justice, on the other, and the report was a report to the two constituent bodies. Neither of them has expressed any opinion upon that report, and it was decided just to publish it and get public reaction to it. That is why any member of the working party, such as myself, feels free to support or not to support some of the particular recommendations which were made, or even to ignore some of them. They were not made as recommendations of the working party to the world, but only for consideration by the two parties concerned.

It is worth while remembering that matter because it takes a good deal of the sting out of the friendly and hostile speech I received from my noble friend Lord Goodman. It obviously shows that there was no question of publishing evidence at this particular stage of the proceedings. With reference to Lord Goodman's speech, might I invite noble Lords to read the report, rather than the somewhat picturesque embroidery with which the noble Lord surrounded some of the recommendations?

I do not think I will take up any more of your Lordships' time at this stage. Bearing in mind that I did not recommend the whole report to the House, I find myself in agreement with a great deal that has been said. I expressly said that both the report and my own personal view is that we should not depart from trial by jury. I think I said that the traditional view of the Englishman is that when life or reputation is at stake, he would prefer to have it judged by twelve ordinary people rather than by any one man, however impartial or learned he may be. I think that that is the attitude which both the Press and the law must respect. I certainly do.

With regard to official secrets, I think that in putting the matter before the House in my opening remarks I expressly said that I was not suggesting any alteration in the law, but only in the administration. I do not think that the recommendation which Justice made is a practical one in that respect, and I did not refer to it. But I think the noble and learned Viscount, Lord Dilhorne, was a little simple-minded, if I may say so, about the working of the Official Secrets Act. Of course there are very rarely any prosecutions.

The matter was properly put in its perspective by the noble Lord, Lord Francis-Williams, who pointed out the close connection between the public relations service of the Government Departments and the Official Secrets Act. There is a skilful way of feeding information in such a way that it cannot he used, and it is the extension of that for purposes beyond security—it is covered by the system which has been built up over so many years on the security side—which is rather dangerous, in our view and in the view of the Press. I suggested, therefore, that it was a matter for administrative action and caution on the part of the Government, and not for legislative action. I think I should make that clear. I must not weary your Lordships with any further observations at this stage of the proceedings. I beg leave to withdraw the Motion.

Motion for Papers, by leave, withdrawn.