§ 4.26 p.m.
§ LORD GARDINER
My Lords, I beg to move that this Bill be now read a second time. May I begin by apologising to those who I know rearranged their engagements in order to be present at the Second Reading a week ago last Friday. 874 Then, for that Friday there was some alteration in business and the Second Reading was accordingly to be taken last Friday. I am sorry that again, on a second occasion, those noble Lords had to rearrange all their engagements. I understand that Fridays would not have been convenient days for the noble and learned Lords of Appeal to attend. I am sorry for those who in the circumstances would wish to have heard the Second Reading but cannot be here to-day.
I apprehend that I owe some duty to start, as it were, at the beginning. Although most of your Lordships are familiar with this Bill, because in sub-stance it is the same as the Bill that we considered eighteen months ago, of course a number of your Lordships who are Members of your Lordships' House now were not here then. So may I first very briefly explain how the Bill arose. In December 1970 the Howard League for Penal Reform, Justice and NACRO appointed a Committee of which I had the honour to be Chairman, to look at the problem of old convictions. We were not concerned, we felt, with anyone who was in the nature of a real professional criminal, anyone who had ever had a sentence of more than two years; nor were we dealing with those who come out of prison, try to get a job, the police then come round and tell their employers about their conviction so they give the job up and go in and out of prison. We were dealing only with those who, having committed an indictable or other serious offence, usually in adolescence, then settle down, get a job, marry and do not offend again for a considerable time. So that they are people who have done everything they can to rehabilitate themselves. There are great difficuties—and here again I shall not go into any details—in getting employment; in obtaining any insurance; difficulties in being involved in any way in court proceedings—because our law provides that in any case, whether criminal or civil, any witness can always be asked about any convictions he has had at any time in his life, however irrelevant; and particular difficulties in the magistrates' courts where those convicted of a mere traffic offence may have read out a previous conviction for in-decent exposure 15 or 20 years before, and of course it is all reported in the local papers.
875 This Committee was not a committee of "do-gooders". It consisted of three justices of the peace, two London serving stipendiary magistrates, a deputy Crown Court Judge, two barristers and a solicitor, and the Chairman of the London Sessions also attended all our meetings. We did not make any announcement inviting people formally to give evidence before us. It is probably a good thing that we did not because it would not have done any good, I imagine. At pre-sent I am the Chairman of a Committee appointed by the Government to overhaul the security laws of Northern Ireland and we wished everybody to know that anyody who had any observations to make we should welcome. While that notice was published in the newspapers in Northern Ireland, I do not think a single English newspaper published it at all. What we did was to discuss things quite informally with those interests we thought should be consulted and indeed those we wished to consult. I kept in touch throughout with the noble and learned Lord the then Lord Chief Justice, and we also saw representatives of the Home Office and of chief constables, insurance interests, the Confederation of British Industries and so on. The report of this Committee is called Living it Down. It is in the Printed Paper Office, but if any noble Lord wishes to see it he will have to ask for it because, not being a Government Paper, it has to be kept under the counter!
It is entirely my fault, as Chairman of that Committee, that it was not until about halfway through our proceedings that somebody said, "I wonder how many people we are dealing with?" There was no answer to that question, but one of our members was a considerable authority on criminal statistics and at our next committee meeting he reported that although he had tried he had been unable to find out. So we asked the Home Office and they did not know, but they said, "It is an interesting point: what exactly do you want to know?" We said: "We want to know how many people there are who, having committed an indictable or other serious offence, then go straight for four or five years." They promised to have a special survey done. Naturally, it must be more than 10 years ago now. They chose what they said was an average 876 year and went into all the details of 4,000 men, which they said represented an adequate sample. They came back at the end of it and said, "We have found that nine out of ten who go straight for 5 years also go straight for 10 years, and that the number of people concerned is about a million, extrapolating these figures in respect of the whole of England and Wales. It is probably on the high side, because our sample contained only men and there is less reconviction among women. In addition, the prospect of anybody who has gone straight for 10 years committing a further indictable or other serious offence is slightly less than the prospect of somebody doing so who has never been convicted of anything before." So these are really our best citizens because they have learnt their lesson.
The question is whether, in these circumstances, it is not really in the interests of society, when men have done everything they conceivably can to rehabilitate themselves and when society is entitled to conclude, from the length of time which has elapsed, that they really are rehabilitated people, that they should be treated as such by society? It gives such people every incentive to continue to lead an honest life. One would have thought that this proposition would appeal to everybody, and I think as a whole it does—although there has been something of a Press campaign recently by authors, publishers and their lawyers. On the other side stand over a million families who are not people who can afford to write letters to The Times.
We found that we were the only country which was a member of the Council of Europe without a rehabilitation law. If you are to have a rehabilitation law preventing, with certain exceptions, the re-publication of old convictions, there are only four ways in which this object can be achieved. In, I think, only one country there is a pardons board, and those who consider themselves rehabilitated can apply to the pardons board. This is a public application and the police then go to see the person's employers or neighbours to ask whether they think that person is rehabilitated. We did not think that could possibly work: it is, in fact, the last kind of application which such people would be likely to make.
877 Secondly, you can tear up the criminal record; and this is something which occurs in a number of countries. We were against that for two reasons: first, because the police have the responsibility for detecting crime and ought really to be entitled to know who has done what; and, secondly (though this was a lesser reason), criminological research is becoming increasingly important. We have the Criminological Institute at Cambridge and also the Home Office Research Unit; and if the basic facts are falsified the task of those engaged in criminological research would become virtually impossible. Therefore, nobody favoured that method.
The third way is to make it a criminal offence to publish a rehabilitated conviction. We were against that because it was too easy to make more and more criminal offences, and that it would not be effective because it is too heavy a weapon. All experience shows that if you try to use too heavy a weapon the thing simply does not work. Of course, it is a criminal libel which can only be defended on the grounds that what was said was true and that it was in the public interest that it should be published. I do not know when we last had a criminal libel case. Judges do not like them, juries do not like them, and over the years they have been very few. So we were against trying to deal with this matter in the field of the criminal law and, therefore, it can only be dealt with in the field of civil law. Our proposal is basically that a criminal conviction is itself a creation of the law, that the law itself can and should put a term to that which it has created, so that after a certain length of time a conviction may be regarded as spent and that thereafter, with certain exceptions, no evidence to prove a spent conviction should be admissible. One effect of that could be the risk of somebody publishing a spent conviction having to pay damages in an action of defamation.
Broadly speaking, I think this has been very much misrepresented. It has been stated as if it were a self-evident truth that everybody must always tell the truth. This is not argued but stated as a self-evident proposition. It is not one which will stand a moment's examination. There are many occasions on which no Christian would dream of telling the truth, and we can all think of examples 878 where any Christian would tell a lie. The point was made in one of the many letters in support of the Bill which have been sent to The Times, none of which have been published except a long one from me this morning. The author said:By Christian tradition there are three divine attributes—love, truth and justice. They complement each other and if one is exalted to the exclusion of the others the result is always undesirable and often positively evil. Further, the right to tell the truth and to expect others to tell the truth cannot be separated, any more than any other right, from its corresponding duties and restraints.Of course, there are many practical examples in which the law has recognised that there are occasions when you are not only bound to tell the truth but you are bound not to tell the truth. They are all cases based on the fact that the public interest must come first and the cause of justice is part of the public interest. I suppose that all over the country many times a week counsel get up and object to certain evidence being given. They are not objecting that the evidence is not true: they are saying that it is contrary to the law of evidence that it should be admitted. Many years ago, on circuit, a man went into the witness box and said: "I swear by Almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth, except so far as I am prevented from telling the truth by the law of evidence." He had a point; if I remember rightly, it was hearsay. What he wanted to say was true. He was convinced that if he said it, it would win the case, but he was told by his solicitor: "You cannot say that. That is the truth you may not speak. That is not evidence." Ultimately, the judge made him take the Oath in the ordinary form.
In the case of a man charged with shop lifting, any layman would think the most relevant fact of the case is that he has already been convicted of shop lifting 16 times before. The law says that that is a truth which may not be told to the jury, not because it is not relevant, but because it is too relevant. It is felt that it would be too prejudicial. The jury would pay insufficient attention to what they have to decide, which is whether it has been proved beyond reasonable doubt that he committed the offence this time. There are many cases in law in which the law says: "That is true; it may be relevant, but it is one you cannot tell. If you get 879 up and say that to the jury you are in grave danger of being sent to prison.
The Official Secrets Act is a simple example of an Act which makes it a very serious criminal offence to reveal the true contents of a document. What is in a document must not be published. It is perfectly true, but it would be contrary to the security interests of the country for you to publish it. There are legal fictions, always for a good reason. As a distinguished Lord Justice said:When something is deemed to have been done which was not in fact in truth done, it is a legal fiction.There are many Acts which say that A must be treated as if it were B. This does not change A to B; A is still A, and B is still B. That which is not true is ordered by the law to be assumed. A tenant cannot dispute the validity of his landlord's title; a licensee cannot dispute the validity of the patent, though what he wants to say may be true.
Your Lordships will remember a time when one or two Sunday newspapers increased their circulation primarily by reporting in great detail on the more sordid details of divorce and nullity cases—they were particularly fond of nullity cases. Then Parliament intervened and said: "It is not in the public interest that these private details between husband and wife, although heard in open court, should be reported, and that is a truth which you may not tell anyone." A committee of which the noble and learned Lord, Lord Tucker, was Chairman considered the problem caused by the fact that in indictable proceedings, when the committal takes place before the magistrates, it is usual for the whole of the evidence of the prosecution to be called, but none of the evidence for the defence, which is reserved. That meant that a man who had read all about the details of a sensational case in a newspaper and had said to his wife, "It is clear that he is as guilty as Hell", if he found himself on a jury, would find it difficult to serve with an impartial mind. Except with the consent of the accused, those are also truths which can no longer be published.
What is the alternative to the method which we have suggested, which is, broadly speaking, for the law to declare that after a certain lapse of time certain convictions are to be treated in law as 880 spent, and thereafter, subject to a number of exceptions, proof of them will no longer be admissible in evidence? In the long discussions which have taken place on this Bill, everybody has agreed that it is desirable that the objects of the Bill should be achieved, some having doubts in particular about the defamation clause which, in a sense, is the "guts" of the Bill. Nobody has suggested a better method, except Mr. Bernard Levin, who says it ought to have been done by an anti-discrimination law. I must assume that Mr. Levin knew what he meant by that; I can only say that I have not the foggiest idea.
This applies not only in the Council of Europe. In Germany—we set out some particulars of this in the Appendix to Living it Down—access to the record is first restricted after five years for lesser cases, and 10 years for others. The entry is cancelled after 10 years. Once the entry is cancelled the person in general is entitled to state—even in court—that he has no convictions. Rehabilitation in France can take place, according to sentence, after between five and twenty years and wipes out the conviction. The conviction is not mentioned in extracts in the criminal records, and a legal fiction, fiction légal, is created that the reinstated person has not been convicted. I suppose Mr. Levin would say that that shows what a bad effect co-ordinating with the Common Market countries may have.
This Bill has been extensively considered. The Second Reading 18 months ago occupied 84 columns of Hansard. We did a great deal of work in considering whether (his was the right method, and the House decided that it was. I mention this partly because a leading article in that highly respectable paper the Sunday Times said it was surprising that these proceedings had received so little scrutiny. On the Committee stage there were 26 Amendments, of which four were withdrawn and 22 accepted. On the Report stage of the Bill there were a further 31 Amendments. Literally, as those present will remember, on Committee stage and Report stage we went through every clause, line by line, to try to improve the Bill, being agreed on its principle. On the Report stage there were a further 12 Amendments. In all, 66 Amendments were made to this Bill in this House without one Division. This 881 was simply because, being agreed on the principle, we all joined together to make the Bill (which, after all had not had the advantage of being drafted by a Parliamentary draftsman) as satisfactory as we could make it.
When the Bill was sent to the Commons somebody said, "Object!", and that was the end of it for that Session. In the next Session, a Labour Member of Parliament, who had drawn a good place in the ballot, introduced it as a Private Member's Bill there. The Minister of State in Mr. Heath's Government was careful to explain to the House the principle of the Bill—that is to say, in substance, the defamation clause, and any objections which had been voiced to it. There were not many, but it may be surprising now to remember that the Bill that year was supported by leading articles in the Guardian, Mail, Mirror, Evening Standard, New Law Journal and Solicitors' Journal. The only critical article was one in the Justice of the Peace. The Minister referred to what had just been received by the Government, the Interim Report of the Committee on Defamation, and the Minister, Mr. Mark Carlisle, said:The issue that must be decided by the House to-day is whether the means proposed in the Bill to achieve its desirable end are an acceptable method of dealing with the problem. The approach of the Bill received almost universal acceptance in another place, and there is no doubt that it has also had general acceptance outside the House, apart from the strong attack on it in Justice of the Peace. There is no doubt either, in view of the list of backers of the Bill, that it has weighty support from both sides of the House. All those who have contributed to this short debate have supported it.The Government support the intention of the Bill. We believe that it is important that the issue of principle should be fairly and fully stated to the House. If that issue is acceptable to the House, the Government will not wish to attempt to prevent further progress on the Bill or advise the House to reject it."—[OFFICIAL REPORT, Commons, 25/1/74; col. 2125.]He said later—this was on January 25 of this year, at column 2127:The critics of the Bill say, as was said by the hon. Member for Gorton, that it is establishing a group of people about whom the truth cannot be told. It seems to me that the issue of principle which this House has to decide is whether that is an acceptable way of approaching the problem. The Government do not wish in any wav to persuade the House not to find that acceptable. We merely want hon. Members to realise the issues that they face.882 The other place faced that issue and gave the Bill an unopposed Second Reading. It was sent to a Standing Committee and, in accordance with precedent in the other place where a Private Member's Bill receives a Second Reading, it would no doubt have been accorded a parliamentary but for the fact that then came the General Election.
In this Session, and in a new Parliament, the matter was dealt with by a Conservative Member of the other place, Mr. Piers Dixon—and I am grateful both to Mr. Kenneth Marks and to him for having taken the Bill on in the other place. Again, the Minister of State in the present Government stated the issue to the House. He said, on May 3, at column 1546:The Government accept fully the principle contained within the Bill. We were ourselves considering whether we should introduce a Government Bill to this effect.Then he referred to the Faulks Committee and said:Mr. Justice Faulks and his committee recommended that for that reason, and apart from some technical matters that we shall no doubt discuss in Committee, the clause on defamation should be omitted. If that were so the Bill would be without meaning.He ended by saying:We must consider the issue of principle. Is it right that in this community what has been true in the sense that a man has been convicted should be regarded for all practical purposes as untrue? I think that that is right."—[Col. 1547.)For a second time, and in a new Parliament, the elected Chamber accepted the principle and gave the Bill an unopposed Second Reading. There was a Division on the defamation clause in Committee in the other place by somebody who said he had opposed it in principle, but he was the only person to vote for his own Amendment. At that stage the Government, of course, gave the Private Member concerned the services of a Parliamentary draftsman. The whole Bill was redrafted and indeed the Minister of State himself moved all the new clauses.
This is why I find it a little surprising to be told by such a reputable paper that this question has had no scrutiny. I should have thought that it is probably unparalleled that any Bill in what used to be eight clauses, but which for reasons concerned purely with arrangement is now in 11, has ever been so much 883 scrutinised in the two Houses. It must indeed be unusual, if not unique, for a Bill to come to this House having already passed through all its stages in this House and twice having had a Second Reading in the elected Chamber. Many drafting Amendments have been made in the other place, but the formal and conceptual structure of the Bill which passed your Lordships' House has been preserved, and practically there have been only two major Amendments. The first, for the benefit of the Press and others, which they had clamoured for, was a "public interest" clause. If I had been a Member of the other place I do not think I should have opposed that. The effect of that is that, disregarding all the provisions of the Bill, one can always rake up anybody's rehabilitated convictions if it is true and if the publication of that truth is in the public interest; one cannot do so if it is against the public interest. On the face of it that has obvious merits. There is—is there not?—a difference between what I think is now called investigative journalism, when people want to say that a man who is carrying on a business is carrying on a fraudulent business, and muck-raking. It seems sense to say that one is in the public interest and the other is not.
Of course, about this there is nothing original of any kind at all. This is the law in many countries. About the freest Press in the world is the Swiss Press, which is notoriously outspoken. The law of defamation in Switzerland has always been that it is a complete answer to any action of defamation to prove that what one said was true and that the publication of that truth was in the public interest. The Australians have taken their law from us, including our defamation law, but most of them thought that one thing about it was wrong. They said: "Truth ought not always to be an answer if it is against the public interest that the truth should be published." There are many cases of this in our report. Living it Down. It was precisely because all three societies (these were not people who can write to The Times) had so many cases of this kind in their files that the Committee was appointed.
I will take a simple case of someone who happens to be a woman I know. When she was 18 she was convicted of soliciting. She then fell in love; mar- 884 ried; was a good wife, a good mother, and a good grandmother. She is now 68. Her family knows nothing about this very discreditable episode in her past. But all her life she has known that if for any reason she became newsworthy, if any newspaper because it helped them to sell the paper published this old conviction, there was nothing she could do because the truth is a complete answer. At present under our law, however contrary to the public interest it may be that the truth should be published, truth is a complete answer.
Australia thought that this cannot be right—or many States did, including New South Wales, Queensland, Tasmania and, I believe, Western Australia. Their law is that it is a complete answer to any action of defamation if one proves that what one said was true and that the publication was in the public interest. Mr. Justice Evatt, as he then was, in the High Court in Australia said in a case:If AB was convicted years ago of an offence it can seldom be for the public benefit to resurrect the scandal, for AB may be living a private life and one of complete rectitude. However, in special circumstances it may be for the public benefit to publish such a statement, e.g., if at the time of the publication AB has become a candidate for public election.I suppose Mr. Levin would say it only shows what these foreigners get up to But I submit it is in fact a sensible distinction. And I myself would not have opposed the victory won by the Press in the other place in that the Bill now provides for a "public interest" defence.
The only other major change was this. The courts have now been left out of the Bill altogether. I believe this was largely due to a misunderstanding by the Magistrates' Association. We had provided in our report that if an apparently rehabilitated character was convicted on indictment before a Crown Court all his past convictions should become public, but not if he was convicted in a magistrates' court. The magistrates regarded this as a great slight upon magistrates. They said, "Judges are being trusted with information with which they do not trust us". There is a complete misunderstanding.
The reason why we thought that in the Crown Court his record should be re-opened was that if anybody has done something so serious as to be convicted on indictment in a Crown Court—well, 885 bad luck, but he is not, after all, a rehabilitated person. This Bill seeks to protect only those who really are rehabilitated people. On the other hand, so far as the magistrates' court is concerned we did not think that because such a man parked his car in the wrong place this should lead to all his previous convictions being read out in the magistrates' court. We thought that it was difficult to draw a line between different cases in the magistrates' court. Therefore we thought that it would be right that it should have that effect in the Crown Court but not the magistrates' court. However, as I have said, that was misunderstood.
What happened in Committee in the other place was that in order to try to meet this objection in the magistrates' court, a compromise Amendment was moved to provide that cases tried by magistrates which were indictable offences should follow the effect of a conviction in the High Court but not the summary ones. That Amendment was carried against the advice of the Government. I understand that the reason the Government advised against it was because they agreed with our Committee: that it is very difficult to draw a line between different kinds of offences in the magistrates' court. When that was carried, therefore, against the Government in Committee, on Report the Government put down an Amendment which was carried and completely removed from the Act all the provisions about what might or might not be done in court in the way of previous convictions. Subject to this, the noble and learned Lord the Lord Chief Justice, whom we are all glad to see, had already agreed that he would deal with it by means of a practice direction. I understand that the Home Office will do the same in relation to the magistrates' courts. Those are the only major Amendments which were made, compared with the Bill as it was in your Lordships' House.
My Lords, I must refer to some extent to the clauses of the Bill. May I mention briefly the safeguards. Under Clause 4(3) the Secretary of State can exclude by Order the application of the preceding subsections in relation to what questions can be asked in court in appropriate cases. Clause 5(1) of the Bill does not apply to anybody who has had a sentence of more 886 than 30 months. Under Clause 5(11) the Secretary of State can alter both the rehabilitation periods and the age at which a rehabilitation period will be half the normal. At present this is applicable only to those who are convicted at the age of 16 or younger. Under Clause 7(2), a number of matters are outside the Bill. The courts are now outside the Bill; the service of disciplinary proceedings is outside the Bill; and children are entirely outside the Bill. I have written altogether three letters to The Times and in another letter which has not been published I referred to one which had been written by a distinguished member of the Bar who said that the Bill would prevent the criminal records of prospective stepfathers and foster parents from being investigated, thus putting helpless children at risk, and who drew the conclusion that the sponsors of the Bill have not thought the matter through carefully enough. As T said in that letter which I wrote to The Times but which has not been published, if the premise were right the conclusion would certainly follow. In fact, however, Clause 7(2)(c) of the Bill specifically allows evidence of previous convictions and their surrounding circumstances to be given, and I quoted from the Bill:(c) in any proceedings relating to adoption or to the guardianship, wardship, marriage custody, care or control of, or access to, any minor, or to the provision by any person of accommodation, care or schooling for minors;".A similar provision has been in the Bill for well over a year, and therefore it is plain that Mr. Field Fisher cannot have taken the trouble to read it before launching a public attack upon it.
My Lords, anything can, of course, be done under Clause 7(2)(f) with the consent of the rehabilitated person. Clause 7, subsections (3) to (5), refer to various civil proceedings which will be exceptional, and under the following sub-section, subsection (6), the Secretary of State can extend these forms of proceedings to other proceedings. Clause 8 provides for further exclusions to subsection (2)—publications made before the conviction was spent. Subsections (4) and (5) and the following subsections deal with the normal defences of fair comment, absolute privilege and qualified privilege. I think that the position about giving references has been much misrepresented. 887 The Confederation of British Industry set up a special six-man committee to go into every aspect of the Bill. Of course they are concerned for employers. I attended one of their meetings with another member of the Committee, as a result of which they were completely satisfied. Under the Bill as it stands, any employer who in any circumstances gives a reference is completely protected if he honestly believed what he said to be true. That is all he has to prove. There is a further defence of innocent dissemination. Subsection (7) deals with reports and sub-section (9) with unauthorised disclosure.
My Lords, there is no other way. Nobody else has suggested another way. There may always be amendments on points of detail. If anybody considers, for example, that librarians are not properly protected, obviously they can say so. But that is not the case. I mentioned that I had kept in touch with the then noble and learned Lord, Lord Parker, the Lord Chief Justice, and on a previous occasion I read to your Lordships the letter which he wrote to me saying that he thought this is a much better way of dealing with this problem than the way it is dealt with in any other country because it is in accordance with our traditions, and that while he might have reservations on detail he supported the Bill in principle. This principle has been fully discussed and accepted both in this House and in two Parliaments by the elected Chamber. I hope that your Lordships will give it a Second Reading and that it may soon be law. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Gardiner.)
§ 5.8 p.m.
§ LORD HARRIS OF GREENWICH
My Lords, I do not want to take up too much of the time of the House on a Bill which, as my noble and learned friend has pointed out, has already been, although in a slightly different form, before this House and another place on previous occasions. This House is familiar with the legislation on this subject from the Bill of the same title which my noble and learned friend himself presented in the last Parliament. As he has indicated, this Bill differs in a number of respects but has the same objective, and on behalf of the Government I should like to indicate our broad support 888 for the object of this Bill which has now been expressed in another place as well as in your Lordships' House.
The Government believe most firmly that it is right to prevent the damage, and spare the distress, caused to somebody with an old criminal conviction which he has long lived down by the fact or the fear of the needless disclosure of it. I believe that in terms of finding jobs, or otherwise reintegrating into society, for the offender who has paid his price and complied with his sentence the most acute problem arises at once on discharge from prison or on conviction where there is a non-custodial sentence. That is the time when the man with a steady job or a settled way of life may lose it. That is the time when it is most difficult to find a job or a settled way of life if prison has taken him away. But this Bill is directed at another serious problem. It is aimed at the man or the woman who has a criminal conviction other than the one for which a very heavy sentence has been passed and who stays clear of further conviction for a substantial period of time. It deals with two separate aspects of the problem faced by such people.
First, there are many ways in which the existence of a past conviction may block a man's opportunities or, if actually divulged, may do him, his family and his social circumstances actual damage. Secondly, there is the fear of disclosure and its consequences and the effect that this can have over a long period of time in discouraging a man from applying for certain kinds of work and which can, indeed, cast a blight over his whole life by the ever-present fear of a disclosure which may never, in fact, occur. The sponsors have sought to tackle this problem by proposing, in effect, that a conviction which is not followed by a further offence should become spent. In principle, this Bill says that it should be spent for all purposes, but because of competing and conflicting considerations of equal or greater weight, we all agree that there must be some exceptions.
The House will know that the Government have given every assistance to the sponsors, including drafting assistance. The Government have done this because they support, as I have said, the broad objectives of the Bill. We accept that it is the will of Parliament, as expressed 889 by unanimous approval for the Second Reading of Bills on this subject in both Houses of Parliament, that there should be legislation on these lines. If there is to be legislation we must try to get it right even when time is short, particularly with a Bill of this kind which is complex and which interacts with a great many branches of the law.
In another place, considerable doubts were raised about the wisdom, necessity and feasibility of applying the Bill directly to the criminal courts—and my noble and learned friend has alluded to these—so that spent convictions would not be admissible either in the course of the trial—for example, when a witness was under cross-examination as to his credit—or at the time of sentence. In the event, it was agreed in another place, on all sides, that in the interests of justice—both justice to convicted offenders when under sentence and justice between the prosecution and defence in the course of a trial (and, I might also add, justice between offenders appearing in magistrates' courts on the one hand, and in the Crown Court on the other)—the Bill should not apply directly to criminal proceedings.
But as my honourable friend the joint Minister of State said in another place, we propose that the spirit of the Bill should be honoured by the criminal courts, and I am pleased to learn that my noble and learned friend the Lord Chief Justice has indicated that he will be prepared to issue a practice direction, which we will certainly follow from the Home Office with guidance to the police and magistrates' courts. This guidance, which will reinforce advice which has for some years been given to magistrates' courts by the Home Office, will prevent the unnecessary recital in open court of old and irrelevant convictions (judged by the test of whether they have become spent convictions for the purposes of the Bill).
This will entail, I acknowledge, an additional task for the police. The House knows that the police are heavily stretched and I do not underestimate the care we should exercise before asking them to undertake any additional or further work. But I am satisfied that as this Bill now stands the effective and proper conduct of crime prevention and criminal justice will not be impaired. In this connection, we have paid particular 890 attention to Clause 9 which deals with unauthorised disclosure. This will in no way inhibit the police, or the services and agencies dealing with offenders from carrying out their official duties.
I have said that the Bill as it now stands, which reflects the Government's assistance in both matters of substance and expression, deals with complex issues. In doing so, it is unavoidably complex itself, both in its structure and in its language. This is partly because of the short time available to the Government for redrafting, and for consideration of the many points which have been raised in another place. It is also partly because of the inherent nature of the subject matter. But it is the intention of the Government that those who stand to benefit by the Bill—and, indeed, those who may otherwise be affected by its provisions—should have available a short and simple guide to its main provisions. A person with an old conviction who has not offended again, or indeed the man with perhaps an intermittent record of offending in his not too recent past, will be helped in this way to settle with some degree of certainty whether those convictions are spent or not. It is a happy coincidence when legislation can be drafted both to achieve its intended effects in law and to tell the ordinary man what those effects are in simple language. I fear this is not such a Bill but I believe that the issue of a guide will go a long way to help ordinary people to understand its effect.
There is another general assurance which I should perhaps give on behalf of the Government to organisations and individuals who may be affected by the Bill. Although legislation on this subject has been under discussion for the better part of two years, I fear it is only in recent weeks that a number of people have become aware of it. The Government have sought, in conjunction with the sponsors, to meet within the time available as many of those points as we can. And at key points in the Bill there is provision for orders to be made, with prior Parliamentary approval, to accommodate the legitimate needs of different kinds. The Government gave an assurance in another place that, for example, the admissibility of spent convictions in the disciplinary proceedings of professional bodies could be protected. And there is a power to specify by order the 891 circumstances in which a completely truthful answer can be required to a question, even when it relates to spent convictions—as might be the case where investigations are being conducted into the suitability of an applicant for a gaming licence or a firearms certificate.
There is provision in the Bill, once again with power to extend it by order should that be necessary, to protect people who, in the course of their official duties, deal with records of spent convictions and who may have a legitimate cause to pass on such information—where, for example, this may be relevant to medical treatment for a mental illness, or to social work with an offender and his family, for purposes of criminological research and so on. The Government believe that the Bill as it now stands, after prolonged debate in both Houses and following extensive amendment in another place—as my noble and learned friend indicated—is a workable measure. But I should like to assure the House that the Government for their part, and no doubt the sponsors for their part, will want to listen most carefully to the views of this House. Where substantial points arise on which further improvement is required, we will look at them during the remaining stages of the passage of this Bill.
My noble and learned friend the Lord Chancellor has asked me to express his great regret that a long-standing public engagement prevents him from being in the Chamber on this occasion. He alluded to this in your Lordships' House last Thursday. While some of the Bill is the concern of my right honourable friend the Home Secretary, it has substantial implications for the civil law which is my noble and learned friend's responsibility, and he has asked and authorised me to say something on his behalf about that clause of the Bill on which public attention has tended to concentrate during the last few weeks; namely, Clause 8, the defamation clause.
The reason why the clause is in the Bill is clear enough. If an offender who is rehabilitated is to be able to live his life without fear that his spent conviction may be wantonly disclosed, the law must provide some remedy against improper disclosure. The sponsors of the Bill—rightly, in our view—rejected the 892 idea of imposing a criminal sanction for ordinary cases of disclosure, reserving it only for the more serious case of improper disclosure by someone in an official position. The remedy therefore had to lie in the civil law and specifically in the tort of defamation. The Government have paid careful and detailed attention to all the views which were expressed on the introduction of the Bill in another place. Many of those views were against changing the law on defamation in the way proposed, and I should mention in particular the interim report of the Faulks Committee, for whose opinion—whether as a group or as individuals—we have great respect. The Government intend also to consider carefully the views expressed in to-day's debate by Members of this House.
Our view has always been that the defamation clause is an important part of this Bill, and that there is a serious risk that without it the Bill would fail in its intended purpose. For this reason since the time when Government support for this Bill was announced in another place, we have proposed a number of detailed changes in an effort, among other things, to assimilate the provisions of this clause as closely as possible to the present law of defamation, while preserving the principle of rehabilitation. In particular, it was necessary to try to strike the right balance between the principle of rehabilitation and the principle that it should always be possible publicly to declare the truth.
The Bill has been as fully and as carefully considered as time allowed, but we acknowledge that there may remain some respects in which it should be improved. As well as views expressed to-day, we shall pay careful regard to any Amendments proposed at the Committee stage and will look carefully into matters of detail there raised, and, if we think it necessary, we shall ourselves propose some amendment. The Government's position on the Bill during its consideration by this House is what it was in another place; namely, that of support for its broad objective, a willingness to lend assistance, including drafting assistance, on the substance of the Bill, and a wish to hear the views of noble Lords and to ensure that the Bill which is finally enacted expresses the will of Parliament.
§ 5.20 p.m.
§ LORD WIGODER
My Lords, when, some 10 or 11 days ago, I put my name down to speak on this Bill it appeared to me that it was a Bill which had gone through its various stages in another place without a Division and might therefore be a suitably non-controversial subject upon which to venture to address your Lordships' House for the first time. In the last few days much criticism of the Bill has developed in the Press, and therefore I must ask your Lordships' forgiveness if some of the observations that I now wish to make have a slightly more contentious aspect to them than I had originally intended.
My Lords, I support this Bill as achieving a desirable object by means of machinery which is unutterably cumbersome, but which nevertheless will serve. With the observation that the objective is desirable there may possibly be little dispute. It is not difficult for someone who is born into a good home, who is expensively educated, comfortably housed, happily married and profitably employed to keep out of trouble with the law. It is infinitely more difficult, and more meritorious, for someone who may not have had these advantages and who has fallen foul of the law to keep out of trouble for a substantial period of time. It requires a strength of character and determination which are to be commended. In such circumstances those concerned clearly deserve help. They clearly deserve assistance against those who might, from malice or inadvertence, disclose some long forgotten previous trouble.
It is not only in the interests of the particular offender that this Bill is worth while. It is worth while too in the interests of the community, because many of us have had occasion to see people, prisoners, who have kept out of trouble for a very long time, whose previous convictions have in fact been disclosed and who as a result have lost maybe their jobs, maybe their homes, maybe their families, and who have drifted back into the criminal ways they sought to put behind them. In those circumstances, that this objective is desirable it may be, as I say, that there will be no dispute.
I ask next whether it is an objective that can be achieved without legislation. The 894 answer, I regret to have to say, is clearly not. This is not an area in which moral exhortation to the fundamental decencies of human nature is going to achieve its purpose. Therefore legislation there must be. I therefore ask firmly: Is the machinery that is proposed in this Bill adequate? I think it is around that issue, and that issue alone, that this debate might eventually revolve. One must face up to the fact that, if it is to be effective, there is an inherent problem in any legislation of this sort; namely, that it will not work unless the power and the right are given to certain people in certain circumstances to conceal the truth, and that penalties are created to prevent other people in certain circumstances from revealing the truth. There is that inherent dilemma in any legislation of this sort.
I take much comfort from the experience of foreign countries that was referred to by the noble and learned Lord, Lord Gardiner. All the countries in the Council of Europe, and many others besides, have legislation to achieve this objective. It is of differing sorts. In some cases pardons are granted; in other cases records are destroyed. But all those systems have three features in common. First of all, they have to provide that in certain circumstances the truth can properly be concealed; secondly, they are all subject, as systems, to critical, academic, destructive analysis; and, thirdly, they all work. I am not aware that in any of these countries there is any volume of complaint from authors or journalists to the effect that their legitimate activities are being hampered in any way.
In those circumstances, I would venture to deal only briefly with the areas of criticism that appear to have sprung up in the course of the last few days. First, there is some criticism by those who have failed, to understand the provisions of this Bill—and, if I may say so, one can sympathise with them in relation to at least some of the causes. It is perhaps not fully appreciated that in no way has this Bill any application to the criminal courts. The spent convictions will be just as admissible as any other convictions where the character of a defendant or of a witness is in issue; but it will be open to the court, if they think it helpful and relevant, to have access to all a defendant's previous convictions, spent or 895 otherwise. Indeed in the civil courts, too, if spent convictions are relevant to the issue that is being tried there is a provision in the Bill under which they may be admitted. Criticism of a provision of that sort is clearly unfounded.
Secondly, there is an area of criticism which appears to consist of constructing entirely hypothetical situations in order to ask, "What answer does the Bill give to that situation?" One correspondent wrote, I think in The Times, to ask, "What do I tell my neighbour if he asks me whether it is true that my other neighbour had a conviction very many years ago?" One can think of many answers of varying degrees of terseness, but perhaps the short answer is that all of your Lordships have neighbours and I very much doubt whether in any of your Lordships' experience that question has ever been asked.
The third area of criticism is the one which has revolved around the defamation clause in this Bill. This is a matter which I approach with hesitation, keeping an open mind, because I am anxious to hear those speakers who will follow me and who are very much more expert on the law of defamation than I am. I venture to attempt to see whether I can accurately delineate the area of controversy. We are dealing solely with defamation actions which arise out of the printing of the fact that somebody has a spent conviction. They will be a small proportion of the defamation actions that arise. Under this Bill the defence of "fair comment" remains substantially unimpaired, substantially as it is at the moment. Under this Bill the defence of privilege—absolute privilege or qualified privilege—remains entirely unimpaired. It is quite misleading, as suggested in some quarters, that an employer who gives a bona fide reference to another employer in which he refers to a spent conviction of any employee will be in any way oppressed; and under this Bill it will still be a defence to say, "But the details of the spent conviction are true". The only amendment which this Bill makes to the law of defamation is that it goes on to say, "If that is the only defence you are raising then you must go on and establish that it is in the public interest that the matter was disclosed".
896 I do not find this a shattering innovation. The courts, judges and juries are well able to interpret the words "public interest" with abundant common sense. As I understand this clause, there is no need for worry by authors, historians, biographers or criminologists. There is no need for worry by those who indulge in the sort of serious investigative journalism which can be of very great value to our society. The only people that this modification of the law will hinder are those who indulge in scandal-monger-ing gossip in which they produce in print details of long-spent criminal convictions for no other purpose than to titillate or embarrass. If the objective of this Bill is a good one, as I believe it is, then that is an interference with the liberty of the Press which I, as a Liberal, am bound to say I would be prepared to tolerate with some fortitude.
My Lords, I would not want to suggest that the whole of the body of this Bill is entirely attractive. It may be that there are warts, some of which may have to be removed at a later stage, some of which may have to be treated, and some of which it may well be felt could safely be left without interfering with the operation of the Bill. But at this stage I ask leave to support this Bill as being a humane and a civilised gesture of assistance by society towards some of the members of our community who have shown by their own strength of character and determination that they are worthy of all the assistance we can give them.
§ 5.32 p.m.
§ LORD DIPLOCK
My Lords, it is a peculiar pleasure to me that I should have the opportunity of speaking immediately after one whom I can term my noble and learned friend, Lord Wigoder. I know I shall speak for all who have heard him in congratulating the noble Lord on his speech, and expressing the hope that we shall hear him frequently in this House. I may not be expressing the views of a majority of others present when I say how glad I am to have the body of lawyers in this House reinforced so brilliantly.
My Lords, I think no one in this House can do anything but applaud the object of this Bill. I hope that in this debate—and, I believe, in all the stages through this House—the effort of all of us will be 897 to make it a better Bill when it has passed through all its stages than it is in its present form. I share what I have no doubt are the regrets of all your Lord-ships at the limits imposed in the Bill upon the sort of misdeeds which can be wiped out. I am sure everyone would wish that the Bill could provide that disgraceful conduct in the past—whether it was a crime or whether, though a crime, it did not result in a conviction as, for instance, a man dismissed for stealing from his employer but not prosecuted, as so often happens—could be lived down. But I recognise that there are difficulties about that, to which I must confess I see no solution. I would not suggest that this Bill should be opposed because it gives a preferential position to those who have convictions. If we can help even them, though we cannot help the others, that is a worthy purpose to achieve.
I hope I shall not be accused of wanting in kindness, charity and compassion, to use the words which the noble and learned Lord, Lord Gardiner, wrote in his letter in The Times to-day, if I were to join for a few moments those persons and bodies with expert practical knowledge of the law of defamation, the Faulks Committee, the Law Society (who have written to me) the President of the Bar Council and the Publishers Association, in suggesting that there are provisions in the defamation clause which require careful examination if that clause is to achieve its object without bringing unintended evils in its train.
My Lords, the trouble really comes from this. It has for long been a reproach to the English law of libel that it is highly complicated, extremely costly, and, I think everyone with experience of the matter would say, a form of civil litigation in which the result is more unpredictable than in any other. It is because of those technicalities, the cost, the unpredictability, that the Faulks Committee over the years has been studying to find some simplification. I believe their report is to be published within a month or two. Clause 8 of the Bill pre-empts that report. I do not say that that is necessarily a bad thing, but the way in which it pre-empts it is by bringing not simplication, but a further complication to the law of defamation.
Ideally, a civilised law of defamation has two objects: so far as is compatible 898 with legitimate freedom of speech—and that is an important qualification—to enable a man to vindicate his character, and to act as a deterrent to unjustified aspersions on him. The first object of the law of libel, vindication of character, is not the purpose of Clause 8 of the Bill. To bring an action for defamation could only give wider publicity to the spent conviction upon which the action is based, and it is important to remember this. If there is an inference of innuendo flowing from the reference to the spent conviction (that the person who was the subject of it is not reformed, and that is nearly always an innuendo that can be drawn from a gratuitous reference to a spent conviction), no change is needed in the existing law; he can bring his action for defamation as the law stands at present.
I turn to the second object of the law of defamation; that is, deterrence—and undoubtedly that is the purpose of Clause 8, to deter other people from publishing spent convictions. It is indeed a substitute for making it a criminal offence, and I am not sure that the better solution would not have been to make it a criminal offence. But when one looks at it as a deterrent, I think the first thing to remember—and I am looking at the law of libel not as a theory but in practice—is that a threat of action for libel or slander does not deter the impecunious from defaming. An action for defamation is costly to bring. Legal aid is not obtainable for it. I believe that the real danger of spent convictions being talked about lies not in publication in the press, not perhaps even in references by employers, but by gossip on the shop floor, tittle-tattle in the club, the pub or over the tea-cups. There is almost no deterrent to that.
But leaving aside the impecunious muck-raker, despite the complications of the law of libel, it does not deter freedom of speech unsupportably in this country, because there is still one part of the law of libel which is simple. To-day if you tell what is the truth you are safe; no one is likely to bring an action against you, because no one starts an action unless he is advised that there is at least some prospect of success, and if what has been said is the truth he will be advised that there is no prospect of success. But—and this is where the law of defamation in this country has gone so badly wrong—once you get away from a situation where 899 you cannot rely simply on the truth but must rely on something else or something more, privilege or fair comment, you run the risk of being sued for libel, and even though you are advised that you will ultimately win you will also be advised, if you are well advised, that the costs in which you are going to be landed in winning make it better to settle the matter. And if you are advised before you publish it you will be well advised not to publish it.
That that should be so is a reproach upon the law of libel. It was a reproach which the Porter Committee of some twenty years ago, of which I had the honour to be Secretary, tried to remove and failed. It is a reproach which the Faulks Committee to-day it still considering and one hopes will shortly be reporting on some solution to it. What I fear about the introduction of the complication of the necessity for public interest to be proved is that the ruling whether a particular publication was in the public interest necessarily depends upon the personal value judgment of the particular judge who tries the case, and varies with the evanescent flow of public opinion, which may be quite different when the case comes on for trial from when it was published.
May I give three practical examples of problems which it seemed to me must be dealt with and proposals for dealing with them at the Committee stage. First of all, it makes it dangerous for anyone to write or publish reminiscences which may refer to convictions, or may refer to acts which one did not know were convictions; it makes it dangerous for any one to publish them. There is a real problem, too, about librarians. The reminiscences are all right until the conviction is spent, but thereafter every time that book of reminiscences is issued from the library that is a fresh publication. Every time any of your Lordships consults The Times for ten years ago, as well you may, you are bound to find reports of convictions which by now are spent; and the librarian knows perfectly well that that, and indeed local papers in particular, bristles with convictions, so he is not able to rely upon the defence of innocent dissemination which is provided for in the Bill but which requires you to 900 have taken all possible and reasonable care to see that you do not.
May I finish with one word on references. Of course, this Bill does not alter the law of privilege so far as references are concerned. But the real defence in a case where an employer has given a reference is that it is true; as long as it is true he is safe. But once it is not true, once that is not enough and he has to rely upon an honest belief in its truth and an absence of malice, you get into that field where, alas! the law of libel is technical, it is risky, and no one knows where they are going to get out. The protection of honest references to-day, the practical protection, is not the defence of privilege, it is the defence of justification, that it was true.
My Lords, I have ventured to indicate to you, I fear at too great length, why it is that those who are concerned with the law of libel and its practical application are worried about the provisions of Clause 8 of the Bill. I hope that it will be possible for this House at the Committee stage to solve some of those difficulties. I must confess that I think it is a difficult task that we have but, given good will—and I am sure that there is good will on every side and on the Cross-Benches in this House—I believe that we can go some considerable way to improving the methods by which the Bill seeks to achieve its worthy objects, which all of us applaud.
§ 5.51 p.m.
§ LORD SALMON
My Lords, one of the tragedies of modern times is that there are so many men who leave prison with a firm determination to go straight, and who probably would go straight but for some of the terrible difficulties which are put in their path. Sitting as a judge in the Queen's Bench Division and in the Court of Appeal, I have often heard the story, very well authenticated, of a man who has been released from prison, who has disclosed his whole career to his employers, they have determined to give him a job and have taken him on, he has done very well for quite a long time and then suddenly, somehow, the whisper gets on to the shop floor that the man is an ex-gaolbird, and that man is so much tormented and bully-ragged that life is insupportable and he falls back into crime. This is an aspect of man's inhumanity to man which it is beyond the 901 power of the law to curb, but I suggest that the Bill is concentrated on those aspects of man's inhumanity to man which the law can, and should, curb.
I want to detain your Lordships for only a few moments. Take the case of any decent man who has the misfortune to be a litigant or a witness in a case. As the law now stands he can be cross-examined about an offence—it matters not what it was—some comparatively trivial offence of which he was convicted, perhaps ten years ago, and for which he received a sentence of six months imprisonment, and this is blazoned all over the Press where he lives and, if he is a man of any public means, all over the national Press. No one can blame the Press for that, but I blame the law which allows him to be cross-examined about such an old and minor offence.
The Bill is not introducing anything very revolutionary—well, it may be revolutionary, but no one can be dismayed by it. I should think that everybody would be overjoyed if you could not be cross-examined when you have lived down an offence, for which you had been given six months, for a period of seven years. Can anyone suggest that this is not long overdue? If, after you had served a sentence of 30 months you had gone straight for ten years, then that could not be dragged up against you when you are a witness, or a party, to litigation. I should have thought that those sections of the Bill are entirely unobjectionable.
I want to say a word about the defamation clause. I have the greatest respect for the Faulks Committee, for the chairman (who is a great friend of mine), and all the members on it. I can modestly claim to a little personal experience in this field because, during the last five or six years at the Bar, I had the good fortune to lead for many of the large national newspapers in libel actions. I hope that I am a strong unholder of the freedom of the Press, because I think that freedom of us all strongly depends upon it. I do not think that the suggestions in Clause 8 interfere with the freedom of the Press. Although I entirely agree with my noble and learned friend Lord Diplock that the law of libel badly needs clarification and simplification (and I hope that it will receive it after the Report of the Faulks Committee), I do not agree that any complication is intro- 902 duced by Clause 8 that will make the work of simplifying the law in that direction any more difficult than it is now.
I ask my self whether it is conceivable—and, from my experience, I do not believe that is it—that any responsible newspaper would wish to publish the particulars of a man's conviction seven years ago, when he is completely rehabilitated, for the purpose of informing the public that he put his hand in the till and took out £10 that he should not have done, or that he exposed himself indecently. I do not believe that the Press wish for the freedom, if it is a freedom, to publish offences of that kind that took place so long ago, unless it is in the exceptional circumstance that it is in the public interest that they should do so. I can well understand the concern about public interest because, like public policy, it is said to be rather a difficult horse to ride, but the cases in which it is, or could be, in the public interest to publish that kind of stuff must be infinitesimal indeed.
I am not at all disturbed by the gentleman who wishes to write his reminiscences and would like to talk about his conviction that happened seven or ten years ago to a man who completely rehabilitated himself. I would rather inconvenience the author of that reminiscence than I would ruin the life of the man and his family, who would be concerned. I do not know about references. As you law would stand under Clause 8 you would have to prove that what you said was true; and in my respectful view it would not, as I read the clause, have anything to do with your belief. You could prove that it was true, but in addition you would have to prove that you were not using the privileged occasion maliciously; that is to say, that you were not using it for some spiteful or indirect purpose, but that you were merely disclosing the information because you believed it to be true and thought it was your duty. If you could prove those two latter things, the fact that you also proved it to be true would be unimportant. The best way of proving that you believed it is to prove that it is so.
A man who is giving a reference is put in a grave predicament. I do not propose to canvass the infinite variety of circumstances in which you might be called upon to do so, but there are cases where you might know of one minor conviction 903 years ago; for example, indecent exposure. This man is being selected for an important job, which has nothing to do with small boys, but, say, he is being selected for the highest executive position of a big company. I think most men would decide, "Well, I have known this fellow for 10 or 15 years and he has been perfectly straight." This has absolutely nothing to do with the job and probably you would not disclose the offence.
I think there are a number of cases where you might get an employer who, if he knew that he could walk straight out of the box by proving that what he said was true, might indulge his malice. Just imagine this case. An employer takes a man who is out of prison—and knows it—and the man has been with him for eight years and is a valuable and intelligent servant, doing a wonderful job and very underpaid. And the man says to his employer, "I am sorry to ask—I am very grateful for what you have done—but could you please put my wages up a little?" And the employer says, "No, I will not". Then a few months later the man comes back to his employer and says, "I have children to educate, I have been offered a job with a very big company, doing the same sort of work I am doing here and I am being offered 50 per cent. more than you are paying me. I hate leaving you, but I owe it to my family to go." The employer says, "Remember that they will have to come to me for a reference and I shall tell them all about the past. You had better think about that again."
It seems to me that it would be a reflection on the law if that employer were entitled to rely, when he was sued for libel, on the fact that the man did have that conviction ten months ago. I see nothing wrong in making an employer's defence one of privilege, because the occasion is privilege and you owe a moral duty very often to say all you know about a man. If you are worried, as you may well be, that you may be sued for libel, you have a perfectly good alternative. If you are a heartless person, you say you will not give a man any reference at all, which might do him far more harm. But if you behave as a reasonable, decent human being you will go to him and say, "Look, I have got to disclose the information that is in this letter, but I am telling them exactly 904 what I think of you and it is a very good reference, but I cannot hold these facts back. Now do you want me to send it or not?" If the man authorises you to send the letter you are safe from libel. If he does not then you do not send it.
As your Lordships probably have gathered, I am broadly very much in favour of the Bill. It does not mean that I do not think that in the Committee stage some of the clauses ought not to be looked at again. I am particularly worried about Clause 4(2)(a), although my fears may be set at rest. No doubt there are other clauses giving concern. My Lords, I have the honour to support this Bill at its Second Reading.
§ 6.6 p.m.
§ THE LORD BISHOP OF ROCHESTER
My Lords, I should like to add our thanks from these Benches to the noble and learned Lord, Lord Gardiner, for persisting with this important and difficult matter, despite the changes and chances of the Parliamentary scene. Whatever hesitation or anxieties we may have about some of the consequences of the Bill I am personally confident that its principle is sound and that it is right to attempt to put it into legal constitutional form. Speaking in the debate in your Lordships' House on February 1 last year when a similar Bill was introduced for the first time, my reverend friend the noble Lord, Lord Soper, said that if we believe there must be a place in all penal administration for the process of reformation, then we are committed to the subsequent principle that there must be a place for forgiveness and forgiveness is a process by which the past, if it is not obliterated, is disregarded as having no further impact upon either the present or the future in the life of the person who is forgiven. In echoing that affirmation of belief, I would also affirm that the beginning of a new life must be the ending in principle of that life which preceded it. It is at this point that the difficulties for society as a whole are so much greater than they are for the individual.
In the previous debate to which I have already referred, the most reverend Primate the Archbishop of York was one of those who voiced the concern of many about a legal provision which enabled a witness or a defendant to give an untrue answer to a specific question. The Home 905 Office spokesman in another place said earlier this year that truth is no more permanent than any other principle of civilised conduct in a civilised society. There is also, he said, compassion and understanding, and for that reason, he contended, we must believe that compassion and understanding must be balanced against a declaration of truth. My Lords, I listened very carefully to the noble and learned Lord, Lord Gardiner, this afternoon and of course I accept the claims of compassion, but does this argument give sufficient justice to the central role of truth-telling in the whole judicial process?
I have been rebuked here before for referring to myself as a layman in these matters, but on technicalities of the law I can speak in no other capacity—not least in a debate where seven lawyers are taking part. It seems to me that much depends on the way in which questions are put to a witness or a defendant. I was very interested to note a reference in a debate in another place to the Children and Young Persons Act 1963, where it is laid down in Section 16:In any proceedings for an offence committed … by a person of or over the age of 21, any offence of which he was found guilty while under the age of 14 shall be disregarded for the purposes of any evidence relating to his previous convictions; and he shall not be asked, and if asked shall not be required to answer, any question relating to such an offence …My Lords, whether some such phrase as this could be incorporated into this Bill I am not competent to judge, nor would I know whether it could be implemented satisfactorily if it were. I rather hope it could.
My other anxiety about this Bill is that, while it seeks to serve an entirely worthy end—namely, the rehabilitation of former offenders in the community—it seems to do so by assuming as immutable the vindictiveness and the unwillingness to forgive of both individuals and institutions. I think we have been told that about one million people would be directly affected by this Bill, and I have seen it estimated that by the age of 60 about 31 per cent. of the population will have been convicted of indictable offences. My Lords, what we should surely be attacking is the continuing assumption that society can exclude former offenders as permanently unworthy 906 or incapacitated for civil life and responsibility.
But if I understand it aright this Bill, if enacted in its present form, will leave intact the prohibition which several large public employers of labour have against the acceptance into their employment of anyone who has any blemish at all on his past record. The law already prohibits discrimination on grounds of race, and we are well on the way to extending it to discrimination on grounds of sex. If we accept the principle of this present Bill as valid, and if we provide for all the obvious and necessary safeguards, ought there not also to be legal sanctions penalising discrimination against former offenders?
My Lords, the basic need of those who are genuinely seeking rehabilitation in society is a social framework of positive social relationships which will encourage them to make good. We now have statutory after-care services; and we now have a variety of hostels for those on bail, on probation, in the last stages of a long sentence and in need of after-care on returning to ordinary society. Some of these are statutory; many are run by voluntary agencies. Perhaps the greatest difficulty that they confront is the climate of public hostility which so often hinders rather than helps those who live in these hostels from securing employment or from obtaining social rehabilitation. Whatever hesitations I may have about this present Bill, I warmly support its being given a Second Reading, because I believe it may contribute in the long run to changing the deeply-rooted attitudes in society, and to making more effective the efforts of both statutory and voluntary bodies, who are together working for the rehabilitation of offenders against the law.
§ 6.15 p.m.
§ LORD SOPER
My Lords, I am attracted to this Bill, and am the more grateful to the noble and learned Lord, Lord Gardiner, for bringing it before your Lordships this afternoon for two reasons, the first of which is a very practical reason. I would add the particular illustration to what was so movingly said by the noble and learned Lord, Lord Salmon, of a man I know who is in the gutter to-day because, after many years of almost hopeless endeavours, after a conviction, to get a job, he finally got 907 one as a doorman. On a passing bus was somebody who recognised him, and who took it upon himself to go and tell the authorities. That man lost the job, and he has gone downhill ever since. I am not particularly impressed by the fact that he might indeed have summoned up greater courage; but I think he is typical of many people for whom such a change in the law as this would attempt to provide is something eminently to be desired. It will reduce a great deal of human suffering.
My Lords, as this debate has been somewhat unequally distributed between the law and, if I may say so, the prophets, the right reverend Prelate and myself, as members of the Christian Church, are aware that this is a legislative experiment and adventure in the field of forgiveness. If I may so say, forgiveness has been a much-vexed question that has sometimes plagued the theologians of the Christian Church. It might therefore not be inapposite if I were to endeavour to detain your Lordships for a little while in telling you something of the problems that we have had, and that your Lordships now have to shoulder in interpreting in legal terms this most desirable but difficult question of what forgiveness is.
The medieval philosophers distinguished between what they called the nail in the wood and the nail in the flesh. To remove the nail in the wood at the expiry of the sentence that is imposed for a crime or a sin still leaves the hole where the nail once was. The removal of the nail in the flesh under due conditions of health means that, sooner or later, the flesh entirely recovers and is as good as new. As the right reverend Prelate has so eloquently recorded, forgiveness belongs to that second category. It is in fact what Charles Wesley called:Breaking the power of cancelled sin, And setting the prisoner free".But of course he is not free, in the strictly historical sense that he is still within the general framework of original sin, and therefore the Christian Church has had this very difficult job of equating this newness of life, which is the gift of forgiveness, with the historic and indestructible fact of a curriculum vitae in which sin has its part. It would not dare to try to bore your Lordships with this, but there are certain inferences which 908 I think are of value. It is in one sense impossible completely to begin again. Paul solved the problem by saying that the old Adam dies and a new Adam takes his place. That may be spiritually true, but it is extremely difficult to translate that into legal form. But they had some success, of course, in putting it in Latin; and there was a further success which I think is well worth recording, and that distinguishes between the truth as the possession of verity and the truth as something which it is your obligation to declare. I think the itch to utter is very distinguishable from the possession of truth; and I should have thought that in very many respects the Christian Church has been less than garrulous and sometimes indeed almost dumb. In its wisdom, this has preserved doctrines like the infallibility doctrine, but that is another question.
But the question which I believe faces those who would consider this issue is that there is a world of difference between the possession of the truth and the obligation to declare it; and sometimes silence is the golden mean as well as the desirable end. I think that in many cases where fears have been expressed, particularly with regard to the law of defamation, the experience of the Christian theologians is worth remembering, and it is that there is no definite obligation to declare a truth. That truth in many cases ought to be preserved within the decency of quietness for the sake of the common good and what theologians also call the "higher law", and I believe that the Bill represents an excursion into that higher law, a law in which we recognise that reality is richer than thought and that there are many matters which belong to grace which can never be incorporated within the framework of law. It is that consideration which empowers me to give what I honestly believe—and I think that my noble friend would concur in this—to be the general approval of those who are within the framework of the Christian Church for an attempt not only to relieve suffering which is manifest, and to which eloquent reference has been made, but also to provide a measure of new adventure into a field in which grace can take the place of law.
If the Bill receives its Second Reading, I for one believe that there are no final 909 obstacles—particularly with the incorporation of the element of public interest—which cannot be solved in Committee. I will finish by saying that what I am sure about is that not only does the Bill commend itself to decent people—and they have been eloquent in many respects in saying so—but it has presented to your Lordships this afternoon a number of problems which have not been faced and declared with a sense of finality but which have been seen to be incorporated in the good will of a Bill which, when it is given its Second Reading, can move on to the decisions which are necessary in the framework of Committee and in the difficulties which will arise. It is an adventure and I commend it as an adventure to which I believe your Lord-ships will give wholehearted support.
§ 6.22 p.m.
§ VISCOUNT DILHORNE
My Lords, in view of the observations about the true meaning of forgiveness uttered by the noble Lord, Lord Soper, it is with some confidence that I now ask him to forgive me for not following him down the road which he has been treading. The noble and learned Lord, Lord Gardiner, cannot be displeased by the fact that, so far, everyone has supported and spoken in favour of the object of the Bill, as they did on the Second Reading of the Bill when it came before the House last time. I said then that I was in support of the object of the Bill: I have not changed my view about that at all, but I should not be frank with the House if I did not say that I have great doubts about the workability of the Bill in many of its provisions and about whether it will do much to achieve the object of the noble and learned Lord, Lord Gardiner, of myself and, I think, of the rest of your Lordships.
My Lords, we are told that there are about one million people who have these convictions and who, to use the phraseology of the Bill, have now rehabilitated themselves. I suppose that they all have some degree of fear about whether the past may come to light. I do not know how real that fear is. We were given statistics by the noble and learned Lord, Lord Gardiner, of the number of people in that position, but we were not given any information about the number of times in, perhaps, the last ten years that that fear has been realised. Nevertheless, 910 one would like to see that fear removed. That fear of exposure by the man who recognises him from the bus, the door-man case referred to by the noble Lord, Lord Soper—such cases will not be touched by this Bill. It is sad, but, so far as I can see, they will not be. As I see it, the Bill attempts to deal with the problem by applying the sanction of proceedings for defamation in an endeavour to keep the past secret and prevent the spent conviction from being referred to.
My Lords, the right reverend Prelate drew attention to another part of the problem which is not touched; that is, the securing of employment. The noble and learned Lord, Lord Gardiner, when he spoke on the Second Reading of the last Bill drew attention to the difficulty of getting certain types of employment. One case, I think, was the Post Office. If one had had a conviction, perhaps, when one was 12, but had led an honest life ever since, he said—and I take it from him—that one could not get employment with the Post Office. I do not know to what extent the Bill will touch that, but I think we could improve the Bill by saying that that kind of conviction, followed by the period of rehabilitation specified in the Bill, should not be regarded as a ground for not employing a person. In a sense, that is applying the discrimination provisions in another field.
There were two other fields to which the noble and learned Lord, Lord Gardiner, drew attention on the previous Second Reading. There is the difficulty about business insurance, where if it is found that the man with a small business has had a conviction a long time ago, it may invalidate the policy. There is the difficulty about fidelity bond insurance, if one is employing someone with a conviction from no matter how long ago. Far better than just relying on defamation as a deterrent to revealing what has happened, surely one ought to have a provision to declare that a spent conviction followed by a rehabilitation period should not be allowed to invalidate a business insurance policy or a fidelity bond. But the Bill does not deal with that.
I mention these matters because I am disappointed with this new edition of the Bill. Although I believe that the noble and learned Lord, Lord Gardiner, was 911 the author of the last Bill and drafted it himself, I feel that it was far better than the present Bill. To try to find one's way around the present Bill—and I hope that I have understood it correctly—seems to me to be like trying to unravel a tangled fishing line, and sometimes they do get very snarled up.
My Lords, there are a number of points with which I should like to deal. First, there is something which is new in the Bill and which was not in the last Bill, and to which the noble and learned Lord, Lord Gardiner, has not referred at all. I think I am right in saying that. For the first time all Service offences are being brought within the scope of the Bill, and I wonder whether it is right and whether one really need bother about them in this field, except perhaps where the court martial offence is one which is an offence against the criminal law of this country—and those are very easily identifiable. In the rest of those cases, surely they can be forgotten about and surely no one is frightened of such things as absences without leave being mentioned. It is so odd the way they are dealt with.
Your Lordships will see that one of the convictions excluded from the operation of the Bill is a sentence of cashiering. In the last war, a number of persons had the misfortune to be cashiered for conduct of a scandalous nature unbecoming to an officer and a gentleman. That very often consisted of passing dud cheques, though sometimes it was other things. After all, that is an offence which covers a very wide field. But to take the case of cashing dud cheques, tried before the criminal courts, that would almost certainly come within the scope of the Bill and be possible to be rehabilitated from. However, under the Bill as it now stands, a person who had been cashiered in the last war for the cheque offence could not be rehabilitated, no matter what he had done since and no matter what an honest life he had led.
Then, to take the other point, a Service offence which comes within the scope of the Bill, any soldier, sailor or airman who is sent to detention—it may be for some minor purely military offence—can get rehabilitated, but only after seven years. If he is dismissed from Her Majesty's Service he can get rehabilitated 912 after the same period. I must say that I am puzzled to know why one should complicate this Bill by bringing into its scope all these Services offences. If the object of the Bill is to remove from people the fear of exposure of their past I cannot think that there is any real need for this Bill to apply in those cases.
There is in this Bill another change from the last Bill. I remember the noble and learned Lord, Lord Gardiner, making a powerful speech last time and saying that if a man had been fined he should not be able to be rehabilitated unless he had paid his fine. That seemed to me to be sense. Then there were discussions about whether it would matter if he paid his fine a little late. Although as a general rule if a man is to be rehabilitated he must serve the sentence passed upon him, in this Bill if he is fined he can be rehabilitated without paying the fine at all. That is an extraordinary change, a complete volte face, from the Bill as presented last time. My noble and learned friend Lord Gardiner did not say anything about it, and I should like to suggest to him—because I am concerned to try to make this a more effective and workable measure—that no matter whether it is paid on the due date or months or years later, it is a nonsense to say that a man should be rehabilitated when he has been fined and he has deliberately abstained from paying his fine.
There are one or two other points of that sort, but I shall not take up the time of the House by referring to them. However, there are two things to which I think I must refer and the first is that we had a lot said about, and my noble and learned friend Lord Salmon referred to, questions which solicit convictions being asked in the courts. If I understand it aright, this Bill makes no difference at all to the questions that can and may be asked in the criminal courts in the conduct of criminal trials, and the provisions about questions eliciting criminal convictions therefore are limited to civil proceedings. My noble and learned friend has great experience, as has the noble and learned Lord, Lord Hodson, and the noble and learned Lord, Lord Diplock. I can speak only for myself, but I cannot recollect a single case of a witness having what would now be regarded as a spent conviction thrown at him. It could happen on cross-examination as to credit. 913 I think it is highly improbable, and I do not think that we should attach all that importance to that matter.
What worries me is how you are going to work the provisions in this Bill with regard to that point. The provision says that a person shall not be asked and if asked, shall not be required to answer, a question about a spent conviction. How is the court to find out whether the question is one about a spent conviction? That is what bothers me. The only way I can see that it can do so is by finding out what the conviction was and when it took place. It will then have to consider whether or not there has been a rehabilitation period, and that will involve consideration of whether the rehabilitation period has been extended by a subsequent misconduct. At the end of the day, after this inquiry, the court will say "yea" or "nay" as to whether this is a spent conviction. It is only when that happens that the court will be able to rule on whether that question can or cannot be put to the witness. As I see it, when you have reached that stage you might have put the question in the first place with far less harm being done because all the facts will have to come out to be able to rule on the question.
The same thing applies to the next provision. That is why I have great doubt about the workability of that part. I am not sure that it is really necessary. My noble and learned friend Lord Salmon seems to think that it is, but I am inclined to doubt it. Rather than have something of that sort happening which might give the matter an exaggerated importance, I would leave it for the time being to the judges and to the good conduct, which I think usually takes place, of the lawyers involved, to avoid unnecessary mudslinging.
Now I come to the controversial clause about defamation. I do not feel myself so concerned about the Press or what they may or may not do, but I feel considerable concern about the individual who innocently, not out of malice or anything like that, refers to a spent conviction and in consequence finds himself faced with litigation. I have one real criticism of this Bill, and this being a Second Reading speech I hope that the noble Lord will forgive me for drawing attention to these things which I shall seek to raise if I can in Committee, to 914 give him forenotice in the hope that we can find answers to them. What worries me tremendously about this Bill is the difficulty any ordinary individual will have in finding out or in getting to know whether a conviction of which he knows is a spent conviction or not. He will find it frightfully difficult if he looks only at this Bill.
I am glad to hear that the Home Office are to publish a pamphlet. But my experience of Home Office pamphlets and things of that sort is that very often a properly drawn Bill is preferable: first, it is more accurate, and secondly, it is sometimes shorter and less verbose. May I just give your Lordships an example. In Clause 5(4) of this Bill, concerning the difficulty in ascertaining whether or not there has been a rehabilitation, it reads as follows:Where in respect of a conviction a person was conditionally discharged, bound over to keep the peace or be of good behaviour, or placed on probation, the rehabilitation period applicable to the sentence shall be one year from the date of conviction or a period begin ning with that date and ending when the order for conditional discharge or probation order or (as the case may be) the recognizance or bond of caution to keep the peace or be of good behaviour ceases or ceased to have effect, whichever is the longer.My noble and learned friend Lord Gardiner may be able to work that out. I doubt very much whether I could. It would take me a long time. We ought to try to see, even if we have less variation in the length required for rehabilitation, whether we can get those rehabilitation provisions cleared up, made simpler, so that it will be easier for people to know whether the conviction about which they are speaking is one about which, as the Bill now stands, they are allowed or not allowed to speak.
I am not going to follow my noble and learned friend Lord Diplock and my noble and learned friend, Lord Salmon, into controversy about the law of defamation. It is probably even more involved than the provisions of this Bill—and that is saying quite a lot. But we have to deal with it or get it clear, if we can, on Committee. I have a very considerable anxiety whether we shall be able to find enough time to get this measure as near right as we can before this Parliament comes to an end—and I am not asking for any Statement from the Government on that point. I beg the 915 noble and learned Lord, Lord Gardiner, even if we cannot complete our task, to let us work on it to see how far we can go to get it right; and then, should he have to introduce it again in another Session of Parliament, it may well be that it will be a case of "third time lucky". But despite all the approval which he says he has had from other quarters and in different places, I am rather despondent about the possibility of curing what have been called the warts of this Bill in the space of the rest of this month of July. I support the Second Reading, and I have no doubt that the Motion will be carried.
§ 6.40 p.m.
My Lords, I do not think I have ever risen to intervene in a debate in your Lordships' House with a greater sense of inadequacy. I think it was the noble Lord, Lord Soper, who drew attention to the preponderance of eminent legal pundits in the list of speakers over those who are not. I believe the ratio is in the order of 10 to 13—or 14, if you count the noble and learned Lord, Lord Gardiner, twice. It is no good the noble Lord, Lord Soper, talking about the law and the prophets, because I am not a prophet either and I feel no more comforted by that remark.
I came to your Lordships' House today with a troubled mind and I am bound to confess that I am no less troubled—indeed, I am perhaps slightly more so—at this stage in the debate. I have already said, when the Bill was introduced by the noble and learned Lord, Lord Gardiner, under the previous Administration, how much I welcomed the Bill in its general principle. I welcomed it again in its resurrection and its mention in the gracious speech. I share some of the misgivings which have been voiced before this debate in another place, in correspondence in the Press and in the lobbying which, like many others of your Lordships, I have had on this subject, about the defamation clause and not least about the complexities which the Bill now contains. I hope that the noble and learned Lord, Lord Gardiner will not take this amiss.
The noble and learned Viscount, Lord Dilhorne, described this as "a fishing line". To me it is a layman's legal nightmare. Of course, this is merely a confession of my own ignorance, but I should 916 like to express my firm conviction—and it really is my reason for intervening in the debate to-day—from some experience, admittedly at second-hand, that something needs to be done in law to remove the stigma and the prejudices arising from stigma for those who, having committted a crime, or having pursued a life of crime, and having been punished for it, have successfully demonstrated that they have put the past behind them. Something must be done in law, and it is for that reason that I welcome this Bill.
I take a very modest pride in having moved an Amendment to the earlier Bill introduced by the noble and learned Lord, Lord Gardiner, which increased the maximum period which would qualify for the "spending" of a sentence from two years to two-and-a-half years, and I am glad to see that embodied in the present Bill. I should like to reiterate my conviction that the figure of two-and-a-half must not be regarded as an absolute or final limit for all time. There could be no moral justification for doing so, and to do so would imply that a sentence of, say, three years imposed by a certain court for an offence which, in itself and in the surrounding circumstances, was no more heinous than another offence committed by someone else who was awarded two-and-a-half years in another court, could never be redeemed.
In fairness, it follows that it should be possible to earn redemption in respect of much more serious offences carrying much longer sentences, albeit after a suitably longer period of keeping clear. What is more, I think we shall have to keep in mind when this Bill becomes law, as I hope it will, such things as changes in sentencing policy or changes in the law regarding the maximum sentences that may be imposed for particular offences. For instance, if we were ever to arrive at the situation which has been arrived at in Holland, where a few years ago they in effect halved the great majority of their sentences, this would have an immediate bearing on this rehabilitation measure.
I should like to turn now to the other side of the picture which has been portrayed during this debate. I share some of the misgivings that have been voiced about the defamation clause. I think I still share them to some degree, but I shall go on listening to the debate with great care and I should like to assure the noble 917 and learned Lord, Lord Gardiner, that I have every intention of supporting the Bill on its Second Reading. It comes as something of a shock to the layman in these matters to find that a truth must be turned into an untruth, or vice versa, by law, or that a truth must be denied in certain circumstances on oath. I would rather put it in far simpler terms by expressing myself as an ordinary humble citizen. I have long held it as a tenet of common decency and kindness that there are occasions—and here I am very much in agreement with the noble Lord, Lord Soper—when charity commands silence, and when to blazen forth or even to whisper an unpalatable truth, which by the telling has no other purpose or motive than to harm a person, or to feed the vanity or to give expression to the malice of the teller, or (and here I shall be very careful, as a member of the Royal Commission on the Press) which has no other value than as a headline with a commercial pay-off, is morally wrong.
As a very general personal guide, I have always felt that when truth and charity were directly in conflict I should incline towards charity. But the question is: should, or could, such apparent moral wrongs, if that is what they are, be made legally wrong? I am still uncertain about some of these questions after listening to the debate, but I would say that in so far as this Bill gives legal expression to that sentiment regarding truth versus charity, in connection with rehabilitation after a substantial period of good conduct, and in so far as the Bill provides for both these criteria in a workable way—and there seems to be some difference of opinion on this—and in so far as it does not trespass on responsible exercise of freedom of expression, then on those four criteria I support the Bill.
However, this leaves certain other doubts still in my mind which have been put there during the debate this afternoon. Surely rehabilitation does not end there. I do not know whether to be pleased or sorry, but I suppose I should be pleased that the noble and learned Viscount, Lord Dilhorne, has stolen my thunder by taking this point immediately before me, because defamation too often leads to 918 discrimination, and I am concerned that the Bill should go on to provide redress for a person whose sentence has been spent and who can show that he has been prejudiced by a "spent" sentence, whether or not there has been defamation to bring this about, or has been unfairly discriminated against because of that offence committed X years ago. I had wondered before coming here whether perhaps existing legislation catered for that aspect of discrimination. From what the noble and learned Viscount, Lord Dilhorne, has said, I infer that it has not and I would ask my noble and learned friend Lord Gardiner whether he would consider amending the Bill by adding what I would call "a forgive and forget clause" in that sense.
In conclusion, I believe that the need for protective legislation for ex-offenders exists and should be persisted with, despite the complexities which have been revealed and the complications to which this legislation may give rise. I believe in two further values, one of which has already been mentioned by, I think, the noble and learned Lord, Lord Diplock, who pointed out the value of encouraging a person to earn the respect and trust of society by proof of good behaviour. The second one—which has not emerged in the debate though, no doubt, it has been implied—is to give a lead to public opinion towards a more forgiving climate for what has demonstrably been put into the past and should be forgotten. I share the concern over the complexities and complications of the Bill; but, nevertheless, I hope they will be removed or reduced in Committee and I support the Bill.
§ 6.50 p.m.
§ LORD HODSON
My Lords, having no intention of voting against the Second Reading of this Bill, I shall certainly not detain your Lordships for more than a few moments. First of all, I should like to express my admiration of the noble and learned Lord, Lord Gardiner. He and I have known one another for the whole of his professional life. He has always been dedicated not only to justice and fairness—to which he has contributed his great ability—but has also given his energies, learning and qualities to giving help to those people who, in his opinion, need help. This he is doing in this case.
919 The only point I should like to make on the content of the Bill relates to publishers. In that matter I have to admit an interest. I have no pecuniary interest in a publishing firm nor has my daughter, except that she is employed by one as a salaried executive director. Having made that admission, I hope I may be allowed to make a point in favour of publishers. A letter was written to The Times to which my attention has been drawn pointing out the great difficulties in which publishers can be put. A publisher, as we know, sends out books to libraries and book shops and has not practical control thereafter over what happens to the books. If a spent conviction comes to light and is distributed, the publisher is hard put to it to prove that it was in the public interest. Lawyers all know that public policy is an unruly horse. Public interest is, too; it changes from day to day. One opinion about public interest is not the same as another opinion. I regard that as an insufficient protection for the publisher. I am not going so far as to say that the whole of the clause dealing with defamation ought to be cut away, but I hope it will be possible to amend it so as to give some further protection before this Bill becomes law.
§ 6.53 p.m.
§ LORD SIMON OF GLAISDALE
My Lords, I would not be justified at this late hour in detaining your Lordships for long, but I should like to support the principles of this Bill and therefore its Second Reading. In doing so, I feel bound to express grave misgivings about the way that the Bill is drafted and about much of its machinery. I said that I supported the principles of the Bill. I am a member of one society which sponsored the pamphlet on which it is founded, and I had the honour, with the noble and learned Lord, Lord Gardiner, to found one of the other societies. I am naturally predisposed to any recommendations coming from that source, particularly as the noble and learned Lord was Chairman of the Committee.
Although it is many years since I was a Home Office Minister, and although I certainly do not claim the expertise that many of your Lordships have in this field, I remember vividly the difficulty that was impressed on me by a recidivist who was trying to live down his past, 920 and his discouragement should it be suddenly raked up. There are not many of those cases, but if we can save even a few it is worth while. There are other cases mentioned in the report, Living it Down, such as the single offender who has paid the penalty of his offence. Of course courts, in sentencing, take into account the fact that it is extraordinarily difficult to live down an offence. Nevertheless, I agreed very much with the noble Lord, Lord Soper, and many other noble Lords, that society should be prepared, so far as possible, to wipe the slate clean in respect of an offender once he has served the penalty that has been thought suitable.
On the other hand, I do not think that those of us who support this measure do it any service by exaggerating the dimensions of the problem. The figure of one million has been mentioned; that gives a wholly exaggerated idea of the dimensions of the problem. For example, the great philosopher, Professor Alexander, when he was excogitating on the problems of time, space and the Deity, habitually used to bicycle along the pavements, much to the alarm of the citizens of Manchester. Many offenders are of his type and they vastly swell this figure of one million.
The pamphlet Living it Down starts with eight examples, and very moving examples they are. But this Bill deals by way of remedy with only four of those examples. If that is a fair way of looking at the problem, it means that, quite apart from the Professor Alexanders, one has to divide the figure of offenders by two. There is the impact on the recidivist which, in human terms, is a very serious problem; but is a very small one numerically.
Finally, I would utter a word of warning against the invocation of foreign systems, which are a very unsafe guide in this field, since so many of them proceed on the basis of a loss of civil rights, of which our law knows nothing. I always feel considerable misgivings when I hear arguments to the effect that a little injustice is acceptable so that great good may ensue. It always seems to me that the little injustice is certain, whereas the great good designed to ensue is so often problematical. But in this case the authoritative voices that have constructively criticised this measure indicate that it is not merely great good that can ensure, 921 but that considerable injustice is likely to ensue unless this measure is considerably amended.
I do not propose to go into the defamation clause, because the matter was dealt with, if I may say so with respect, in a masterly speech by my noble and learned friend Lord Diplock. However, I would say that it seemed to me that the noble and learned Lord who introduced the Bill was again doing it no service by minimising the problems which it raises. It is no analogy at all to say that the law already suppresses truth in excluding certain evidence. Certainly it does. The law excludes evidence in the interest of justice when it feels that the evidence might be prejudicial or unsafe or might otherwise bring about injustice. But it is one thing, in charity or justice, commanding silence about truth in the way that the noble Lord, Lord Soper, described; it is quite another thing when the law commands a lie, which is what this Bill does. The phrase "licensed perjury" has been used. That is not just a term of rhetoric; that is precisely the principle that the Bill enshrines. However much we welcome its objectives, we should hesitate long before seeing such a principle enshrined, and to do our best to see whether what we all wish to see done cannot be carried out without such violence to justice and to law.
Having said that I myself support the objectives, I should not like it to be thought that I am willing to damn with faint praise and assent with civil leer; and so I am bound to say what I think could and should be done. This is one of the many cases where a good is likely to be sacrificed by trying to do rather better. If we limited our objective we should be more likely to achieve success in this field. The Bill tries to do too much. On the other hand, it is only right to say that in one respect the Bill tries to do too little. The periods of penalty which rank for rehabilitation are now fixed too short, and I prefer the periods that were originally proposed.
There are four provisions which would really in my respectful submission achieve the bulk of the objective which we all have in mind. The first point is that, as your Lordships know, evidence can be called in a court of law only if it goes to some issue which is in question. One cannot call evidence as to a man's char- 922 acter unless his character is an issue in the case, as it will be if he puts it in issue in a defamation action. But what one can do is to cross-examine any witness or party, not only as to any matter at issue but also to show that he is not a person to be believed—what is called, technically, cross-examination to credit. The example that was given by my noble and learned friend Lord Salmon in his powerful speech was an example of cross-examination to credit—raking up some spent conviction. If we dealt with that, we would deal with a great deal of the problem that faces us. If we said that no one shall be asked, or if asked bound to answer, any question relating to his spent conviction, we should have dealt with most of the hard cases—I think all the hard cases—that have been mentioned before your Lordships in this debate.
Secondly, a matter arises out of Clause 4, which deals among other matters with statements about a person's character out of court—questions about a previous conviction raised out of court. I should have thought that that could be dealt with, without requiring either a lie in a reference or—what will be very damaging to a convicted man whose conviction is spent and who may genuinely have lived down and exonerated the offence—a silence on the part of the referee, out of fear of an action. If we said that any question out of court about a previous conviction shall be limited to unspent convictions unless the circumstances are such that the person putting the question owes a legal or moral duty to make the inquiry as to a spent conviction, not only would we then meet the gravest cases, the hardest cases, within that field—questions out of court—but we should also protect the person who would be failing in his legal and moral duty if he did not mention, perhaps in relation to offences against children, that there was some danger that might be apprehended.
The third matter I would venture to suggest is in relation to defamation, because it seems to me that the onus is the wrong way round here. I should like to see it enacted that justification by pleading the truth of the matter published should be no defence if it is proved that the reference to the spent conviction is malicious. That, again, would meet the case that was put by my noble and 923 learned friend Lord Salmon. It seems to me most unfair to journalists, librarians, authors, publishers, that they should have to prove the absence of malice, as they do under the Bill. The onus should be on the plaintiff.
Finally, I would endorse the suggestion of my noble and learned friend Lord Dilhorne that one could deal with discrimination in employment on the lines that it has been dealt with in the Race Relations Acts. In other words, it should be unlawful to discriminate in employment against a person with a spent conviction. It seems to me that that is perfectly simple and perfectly intelligible. I thought that the noble and learned Lord did less than justice to Mr. Bernard Levin when he made that valuable suggestion.
I would venture to suggest to your Lordships that this matter is so important and so complicated that a Select Committee would be the ideal machinery to deal with it. Your Lordships could bring to such a Select Committee great expertise. The objectives of the Bill have been generally welcomed. On the other hand, there has been authoritative alarm about several of the provisions. What we are doing is to pre-empt the findings and recommendations of the Faulks Committee, and I beg the noble and learned Lord, Lord Gardiner, to show patience and flexibility, and to adopt that specific so that a measure that we all wish to see in principle carried into law can be carried into law without disrupting the rest of the law, and without causing injustice to innocent people.
§ 7.11 p.m.
VISCOUNTCOLVILLE OF CULROSS
My Lords, the noble and learned Lord, Lord Gardiner, has always been a very great enthusiast, and perhaps never more than in relation to this Bill. I venture to suggest that he will be rewarded this evening by again seeing it have a Second Reading. This would be right, because the groundswell of opinion in this House this afternoon, in speech after speech, has been very much that expressed by, among others, the noble Lord, Lord Wigoder, that we all find its objective desirable. That is exactly what happened on the last occasion when the noble and learned Lord introduced the Bill into this House. 924 I cannot remember anybody speaking then or, indeed, on any other occasion who did not say that the objective of the Bill was entirely desirable and something that he supported. However, if I may again draw a comparison between what has happened this afternoon and what has happened on earlier occasions, particularly the last Second Reading, I would say that this House has acquitted itself a great deal more creditably to-day than it did the time earlier. That is probably because the course of discussion has, albeit somewhat belatedly, thrown up, to the interest of a number of people who had not realised it earlier, some of the substantial problems which still lurk inherently in this measure.
My Lords, on the last occasion the noble and learned Lord had what was admittedly a Bill which was drafted by a very skilled amateur and, as he rightly said in his speech, he went on improving it all the way through in answer to criticisms largely from me when I was speaking from the Government Front Bench. However, I do not remember many other people bringing profound, analytical eyes to bear upon some of the matters which we have heard discussed this afternoon, and which were, indeed, discussed in another place when this Bill was being dealt with there. It is curious how nobody before seems to have paid much attention to some of the difficulties which I, with perhaps undue modesty, ventured to present to the House. Some of these are beginning to be recognised now as being the severe problems which I always rather feared they were.
In one other way I should like to echo a number of the speeches which have preceded mine; that is, by agreeing very much with the noble and learned Lord Lord Simon of Glaisdale, that we are not always assisted by being told that in every country in the Council of Europe and, for all I know, in every country in the rest of the globe, this, that or the other happens without being given anything more than the general principle. It is perfectly right that a conviction in some countries of Europe carries with it civil disqualification; so of course it is necessary to have machinery whereby in due course a person may be rehabilitated so that he may vote, or act as a member of a local authority or something of that kind, and in the process he gets rid of the criminal 925 conviction for other reasons as well. But that is not the pattern of law in this country and it does not necessarily follow that our legal machinery is well equipped to deal with the kind of concepts that this Bill involves. Therefore, my Lords, while I have always said that the objective is desirable, I have always also said that it is extremely difficult to achieve in legislative form.
It is perfectly plain as well that when people like myself said that all was not well in the Bill as it was originally drafted, not only in detail but also in principle, we had, as it has turned out, a certain amount of justification because the Bill which the noble and learned Lord now brings before us is indeed different in some marked particulars from the form in which it originally appeared—and I do not just mean in drafting. In that respect it is totally different in every possible way. I would not entirely disagree with the noble and learned Viscount, Lord Dilhorne, in finding it rather difficult or in fearing, with the noble Lord, Lord Hunt, that many laymen who have served short terms of imprisonment, or who have been fined, encounter mild difficulties in finding their way around it so as to discover when they may claim to have been rehabilitated. That is the inevitable consequence of getting it into what is technically the right form for our particular form of legislation. If I may respectfully so suggest, in the process it casts certain doubts upon our particular form of legislation.
However, the noble and learned Lord, Lord Gardiner, has now presented a Bill which, thank goodness, leaves out the vexed question of magistrates' courts. I think that if the noble and learned Lord had still insisted upon withholding from magistrates the details of people's past convictions, and had persisted in what I consider to be the purest idiocy in not allowing a magistrates' court to find out that a person had been on probation at the time when a probation order was breached, because the case did not come on for trial until a little too late and small matters of that sort, then I should have had to take a fairly strong line against it. That has all gone, but it has gone as a result of a tremendous amount of argument—and I think probably not even now with the full conviction of the noble and learned Lord that it is right.
926 There have evidently been changes which have had to be made to this Bill and I am not sure that we have yet come to the end of the process. We have got rid of the certificate machinery which I know was originally put in at the suggestion of my honourable friend the Member for Runcorn, who was my co-Minister of State. However, when this was examined it appeared that we in the Home Office, too, had got it wrong. So, very properly, it has come out again. But there will be the resultant difficulty that people will not know—and I do not think they would have known under the certificate machinery, either—when they are rehabilitated, or not, at any rate, with any ease.
My Lords, while we are on points of detail, the noble and learned Viscount mentioned the question of the fine from which one could be rehabilitated even though one had not paid it. Incidentally, for those who are running the mechanics of this matter, there are two rival versions of the Bill which are going around. One of them has nine clauses and until very recently was readily obtainable in the Printed Paper Office. Now there is another version, which I suppose is the revised version. That has 10 clauses and a corrigendum sheet. I think that it is the latter which we should be looking at. Some of the references which have been made in the debate, particularly those by the noble and learned Viscount, were to the former. While I am on the mechanics, those of us who are interested in this matter will be exceedingly anxious to see a copy of the Report of what has been said by some of the noble and learned Law Lords this afternoon, in particular, and some of the more theological points which were made by the inhabitants of the Benches opposite me when it was their turn to speak. I hope that there may be some means whereby a copy of the OFFICIAL REPORT can be made available because on this technical subject those speeches were clearly of the greatest importance.
I was referring to the question of the unpaid fine, and I turned over the page because I remembered also a problem arising in my mind under Clause I(2)(b), whereby a person was not to be disqualified from rehabilitation merely because he broke one of the conditions of, for instance, a suspended sentence, whether or not that breach was dealt with. I do not 927 understand how this works because if one looks at Clause 6(2) one sees that where more than one sentence is imposed in respect of a conviction there are special provisions to calculate the period of rehabilitation. For all I know these two passages may be compatible with each other, but what occurs in practice when a suspended sentence is breached is that the person is sentenced for the criminal act of which the breach consisted and he is also liable to have the suspended sentence itself activated. I imagine that the suspended sentence is then at any rate liable to be overtaken by the sentence imposed in relation to the breach.
Therefore, while it may be that the question does not arise, it shows the complication of the thing that I do not know whether Clause 1(2)(b) overrides Clause 6(2) or vice versa, and a large number of possible complications arise from this particular set of circumstances. We are giving the noble and learned Lord notice of some points that are really Committee points, and that is one of them.
The other thing that concerned me a little was what happened under Clause 9 when a person is dead, he being one who is the subject of a spent conviction. Plainly this does not matter from the defamation point of view—or at least I do not think it does, although relations may possibly in some circumstances (if I am not totally wrong) have some course of action. However, there is no doubt what happens under Clause 9. It does not matter how long ago a person died, as the clause stands at the moment nobody who has charge of official records will be allowed to give details to a biographer of a person's convictions and sentences if during his lifetime they became spent.
The purpose of the Bill is not, as I suspect, necessarily to preserve somebody's reputation at all costs for ever in face of the truth and in face of somebody writing a book to show how, for instance, a sentence of imprisonment affected him and made him act thereafter. I would have thought that the noble and learned Lord did not intend to prevent researchers from being allowed to see the records appertaining to people who are dead. Again, I may have got it wrong, but I cannot see anything in Clause 9 which prevents that being an offence, and I do not think that the Order-making provisions 928 whereby the Secretary of State can make exceptions will really be very easy to apply in such circumstances. He will have to make Orders for each individual researcher, and that will be an extremely tiresome, time-consuming and probably inadequate procedure. So if the noble and learned Lord could either set my mind at rest by writing to me about that or else consider it at the Committee stage, I should be grateful.
These are but some of the rather smaller points that have caused us trouble. The major issue which has emerged—and I hope that the noble and learned Lord, in drawing attention rather pointedly to what has and what has not been published in The Times newspaper, is not really in any way suggesting that these are not major issues—is the conflict, which I am bound to say I had never had brought to my attention so pointedly before, between the concepts of the Tightness of truth and the Tightness of justice. The more one comes to consider these two concepts the more difficult they become.
Everybody would have thought, that at any rate the truth of past events was quite certainly particularly small events like convictions in a court, or something that was so irrefutable that it came as near to be absolute as was possible; but when one comes to consider these things a little further there is a method of re-interpretation of the truth which is adopted, as I understand it, by the dialectical materialists and certainly was done very satisfactorily by George Orwell. It may well be that a conviction for a criminal offence can, in certain circumstances, be turned into martyrdom, or indeed into a positive act of glory, by a change in political thought or something of that nature. Certainly we have had the advice of those who know a good deal more about theology than I do—and that would not be difficult—in suggesting that in some cases there may well be advantages in definitely deciding not to rehearse even the truth about minor and disputable events. This is what the noble Lord, Lord Soper, and the right reverend Prelate were saying. So after all we do not have anything like so absolute a concept as all that, and it is this concept upon which the defence of the present system of defamation has largely rested. So I am still disturbed about the purity of this defence of truth, although I understand and very much appreciate the 929 simplicity of it when it comes to defamation, which the noble and learned Lord, Lord Diplock, so cogently pointed out.
But the rival concept which has been in our minds this afternoon is that of justice, and when one searches for it, as it seems to me in this context and probably in others, it can lead one into many subjective interpretations of what will in fact produce it. So again this Bill is justified by its protagonists on the grounds that it embodies justice. It embodies justice as those who believe in it see justice; but that is no more absolute than, I am afraid, is truth in this concept, and it suffers from a grave extent of subjectivity. Heaven forfend that I, or indeed perhaps this House, should attempt to come to a definitive conclusion about either of these mighty matters, but does it not give us cause to think that when we do consider this matter in Committee, as I am sure we shall, we should do so with extremely open minds? I shall not be wedded to any necessary commitment to truth being the one indisputable stronghold in the quagmire of the law of defamation if the noble and learned Lord will also abandon the rigidity or the robustness of his approach (I do not mean to criticise him in any way) about the way in which the Bill is drafted at the moment. After all, he has put in the concept of the public interest (which was not there before) in response to what I suspect was overwhelming pressure. He is now being pressed to make further changes. If what we want to do is to get a good Bill, then let us by all means attempt further to analyse these matters.
Lastly, what really worries me about the public interest—and I am no expert on the law of defamation—was borne out by those two noble and learned Lords who so pre-eminently do know, Lord Diplock and Lord Hodson, both of whom say that there is this trouble about the public interest, that it changes quite quickly, not only between one judge and another but over a fairly short period of time. If you are a journalist or author, or indeed I suppose if you are a librarian, and you wish to avoid getting into trouble, your faith has to be of a very substantial degree indeed. Your advice has to be very sound and extraordinarily far-sighted before you can know in advance whether you are really safe.
930 The conclusion of the noble and learned Lord, Lord Diplock, was that people would play safe and would not publish, and I do not believe that that is necessarily in the public interest either. After all, what was hushed up might have been information that was held to be in the public interest. Therefore, we are moving in very difficult and complicated areas of the law. If those who have spoken this afternoon will really apply their minds to improving this Bill, then I believe that in his turn the noble and learned Lord, Lord Gardiner, will still be prepared to listen, and I believe that he would do his own cause a very great disservice if he did not.
§ 7.31 p.m.
§ LORD GARDINER
My Lords, I am very grateful to all those noble Lords who have taken part in the Second Reading of this Bill. May I first congratulate the noble Lord, Lord Wigoder, on his admirable maiden speech? If I may say so, I take a special interest in his presence in this House as we have in this House men appointed because they have earned a certain reputation in their own speciality, and while that of course applies to the noble and learned Lords of Appeal, I think that the noble Lord, Lord Wigoder, and I are the only two barristers who have ever found themselves in this House without any other qualification—in my case, at least—except that of being a member of the Bar. We all listened with delight to his speech. There was a point about which I had thought of asking him, because I was a little puzzled about it, and that was regarding a letter from the Bar Council stating the views of our Council, followed by a letter saying that the Bar Council had never considered the Bill. Perhaps he would like to intervene now on this puzzling point.
§ LORD WIGODER
My Lords, if I might give the information, the letter from the Chairman of the Bar Council came as the result of a meeting of the Executive Committee at which ten people were present, the item not being on the agenda beforehand.
§ LORD GARDINER
My Lords, I am very much obliged. It was a modest and, if I might say so, a thoughtful speech, and I am sure that we shall all look forward to hearing him again as soon as we may. Your Lordships will not, I am sure, think me ungrateful for 931 the forecast that has been made of Amendments which may be moved on the Committee stage of the Bill. On the other hand, I am sure I will not be expected to deal with them now. The comments about public interest, like all the observations made by the noble and learned Lord, Lord Diplock, were very interesting. So far as people like librarians are concerned, there would be threats of innocent dissemination as well as public interest involved. Regarding public interest, I am afraid it may be an old failing of mine but I have long found it very difficult to believe that, while practically every other country can have a law, it is absolutely impossible only in England, and could not work. Public interest exists in Australia. They have to construe it and no doubt it changes. If these things work all right in Switzerland or Australia in varying states, why should we assume that they could not possibly work here?
I was interested that the noble and learned Lord, Lord Diplock, said that it might have been better to make it a criminal offence. This issue has gone on all the way through. Everybody has said that we cannot go on and on being the only country in Europe which has no rehabilitation law. If these practices are to be stopped one must have some form of sanction and other than the one which we have proposed, of making things admissible in evidence with the consequences of that, nobody has suggested any alternative at any time, including to-day, except that you might make it a criminal offence, as indeed has been suggested by one member of the Faulks Committee though the others did not agree. I hope very much that the Press will report that, because it might lessen their anxieties about this Bill a good deal if they realised—and of course I quite agree with the noble and learned Lord about this—that the only alternative is to make it a criminal offence. The only two practical ways are either this way or by a law under which editors might be sent to prison.
I am very grateful to the noble and learned Lord, Lord Salmon, for his support and for the support on the difficult moral issues about truth involved in what the right reverend Prelate and my noble friend Lord Soper have said. As 932 regards the words which the right reverend prelate quoted from another Act, about not being asked but if asked not being required to answer, he will find that point covered in the Bill at Clause 4(1)(b). If I may say so both to him and to the noble Lord, Lord Hunt, there are grave difficulties in regard to employers; first, in proving why an employer has not employed somebody; secondly, in making him employ somebody he does not want to employ; and, thirdly, and perhaps, above all, because from a common sense or moral point of view it might be legitimate for an employer to refuse to take a man in one occupation whereas not in another occupation. To take a simple instance, more regard might be had to a criminal conviction for dishonesty when a man is going to handle a lot of cash. But it may well be that if we start in this way we can go on dealing with these other points in the future.
As to the observations made by the noble and learned Viscount, Lord Dilhorne, fines were considered closely in the other place, and were omitted on Government advice because of the difficulty of saying whether somebody had deliberately failed to pay a fine or was not in a position to pay, and, particularly in the case of instalments, the administrative difficulties would be too great. Apparently that was the view taken by the other place. So far as Service proceedings are concerned, we dealt with those to some extent in the previous Bill. It is a matter on which I understand the Ministry of Defence have strong views and they, of course, have had to be taken into account. As I understand it, cashiering with ignominy and so on is regarded as a very serious step. My Lords, there are a number of oher matters which can no doubt be considered on the—
§ VISCOUNT DILHORNE
My Lords, I agree that cashiering is a serious step, so is discharge with ignominy. But I really do not think that cashiering comes into the same category as somebody who has a life sentence imposed upon him. Cashiering is frequently incurred for nothing more serious than passing a dud cheque. I hope that that will be reconsidered by the noble and learned Lord, and that he will use his influence with the Ministry of Defence to get a more sensible view about this.
§ LORD GARDINER
My Lords, I was not expressing a personal view about this at all. I think if the Amendment is moved it will be found that the Government may have some view about it. My Lords, I am sure that the noble and learned Lord, Lord Simon of Glaisdale, was seeking to be of assistance in proposing a Select Committee. I am afraid that in my experience a Select Committee usually means that someone wants to delay something—maybe for a very good reason. But, obviously, if a Select Committee were appoined it would be delayed for three or four years and mean-while nothing would be done.
My Lords, I was of course particularly concerned with what the noble Viscount, Lord Colville of Culross, said. I will write to him on the points to which he referred. On the two Bills, there being some printing difficulty, the first one I had typed and done myself, and it was marked "Not official" so that all noble Lords might have a copy as soon as possible. The other was done by the Public Bill Office with the erratum slip. I agree with him that there is here a question of principle. There are differences now between the present position and the position when this Bill was in this House earlier. One of the differences, of course, and it is rather a material one, is that the principle of the Bill—that is to say, the way in which the desired object is sought to be achieved, which was new in this House and which we first had to decide—has since been approved by the elected Chamber in two different Parliaments. I suggest that in anything we do in Committee stage that we should bear that in mind. Having said that, I am grateful to all noble Lords who have taken part in the debate and in helping us to get a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.