HL Deb 24 July 1974 vol 353 cc1806-52

8.29 p.m.


My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, that the House do now again resolve itself into Committee.—(Lord Gardiner)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord Champion in the Chair]

Clause 8 [Defamation actions]:


Amendment No. 29. I gather this Amendment should stand in the name of the noble Lord, Lord Simon.


I apologise to my noble and learned friends Lord Diplock and Viscount Dilhorne that this Amendment has been put down in their names in the Marshalled List. I originally put down all the Amendments, including this one, as alternatives to the way my noble and learned friends wished to deal with this clause. I think at this stage it is preferable that their proposals should be considered. I can, if necessary, put down these Amendments on Report stage, but I do not propose to move them to-night.

LORD DIPLOCK moved Amendment No. 30:

Page 11, line 8, leave out from ("shall") to ("an") in line 9 and insert ("affect").

The noble and learned Lord said: This is purely a drafting Amendment to substitute for the words "restrict the defences available to the defendant in" the single word "affect". That follows the precedent used in Clause 7(1). As I said, it is purely a drafting Amendment, and is also an improvement.


It appears that this Amendment is unnecessary but innocuous. Therefore, I advise the Committee to accept it.

On Question, Amendment agreed to.

LORD DIPLOCK moved Amendment No. 34:

Page 11, line 25, leave out subsection (5) and insert— (" (5) A defendant in any such action shall not by virtue of subsection (3) above, be entitled to rely upon the defence of justification if the publication is proved to have been made with malice.")

The noble and learned Lord said: I hope I shall be forgiven if I spend a little time on this Amendment. What I say covers the comparable Amendments Nos. 35 and 37, which deal with subsequent subsections. With the exception, I think, of the licensed perjury clause these are the most controversial subsections in this Bill. They are controversial, because they have an impact on a wider field of law of outstanding social importance, the legal framework which preserves the freedom of speech in this country—the law of defamation. Unfortunately—and this, I fear, is largely the fault of past generations of judges and of lawyers—it is a highly technical framework. In considering these clauses, one must remember that they deal with what happens in actual proceedings in courts of law.

The law of defamation is not applicable only to the Press, to broadcasting and to publishers. It is a matter which affects every one of us, whenever we speak, whenever we put pen to paper, whenever we lend a book from our library to a friend, or hand over a newspaper for him to read, for each of these occasions is a fresh publication which may render us liable for publishing a defamatory statement. The reason the media attract attention principally in this field is because they are worth powder and shot for suing, because they are rich, and because this is what gets the greatest publicity today.

The principle of the law of defamation as it has been developed is that it seeks to safeguard three principles. They are that no man shall be penalised for what he says about another if it is not calculated to lower that other in the estimation of right-thinking people, whether it is true or not; the second principle is that he shall not be penalised if what he says is true, however much it may damage the reputation of another; and the third principle is that if what he says is said in the performance of a legitimate duty, or for the protection of a legitimate interest, and in the honest belief that it is true, then, if he takes no improper advantage of the occasion for saying it he will not be penalised.

That position safeguarding freedom of speech was reached only after a long battle over the centuries, a battle in which, I am sorry to say, judges perhaps played a leading role in seeking to enable the suppression of the truth. Originally, the criminal law of libel was the weapon used. At Common Law, the object of criminal libel was not to protect a man's reputation, but to prevent resort to violence in a violent age. Every defamatory statement was a crime at Common Law, however true it was, and even if published only to the person defamed. But in the 18th century, the law of criminal libel was a weapon widely used by the Government to suppress publication of views of which Government did not approve. Quite properly, juries resented this, judges endeavoured to thwart them and, eventually, Fox's Libel Act was passed which enabled juries to refuse to convict persons prosecuted for expressing views which were unpopular with Government.

It was not until 1842 that we had Lord Campbell's Act, which allowed as, a defence to a prosecution for criminal libel if the defendants proved not only the truth of the statement, but also that publication was for the public benefit; and theoretically, up to this very day, that still remains the law of criminal libel in this country. But over the last 100 years, it has fallen into disuse as being incompatible with the views as to freedom of speech which are common to-day, and which, indeed, are provided for in the European Convention on Human Rights. It is very rare for any prosecution for criminal libel to be brought to-day, and so far as I know in the last 100 years there has been brought only one in which the words complained of were not false.

The civil law of libel, which is the branch of the law of defamation with which Clause 8 deals, has always been more civilised than the criminal law. It has always accepted the three principles that I mentioned earlier, and it never adopted those features of the criminal law which are now quite out of consonance with modern views of the right to freedom of speech. Subsection (5) of Clause 8 of the present Bill as it stands is modelled on the obsolete criminal law of libel, and for the first time introduces these principles into the civil law of defamation. The civil law of defamation works in two quite proper ways in practice.

First, it acts as a deterrent to prevent abuse of freedom of speech; and secondly, it acts as a remedy to recompense the victim of abuse of freedom of speech for unjustified damage caused to his reputation. In the present Bill the primary purpose of the defamation previsions in Clause 8 is to act as a deterrent, to deter persons unjustifiably bringing out a suspended conviction. But as a deterrent it deters in some ways too little and in some ways too much. And this for practical reasons. It deters too little because actions for defamation are so costly and so complicated that it is only worth while suing a defendant who is wealthy or who is insured. So that whatever we do about the "law of defamation this will not in practice strike at what I believe is the greatest evil, or the greatest risk of disclosure; the gossip on the shop floor, the tittle-tattle in the club and over the coffee cup. We cannot cure that.

The other defect of the law of civil defamation as a deterrent is because it deters too much. Unless you are able to rely simply on the defence of truth of the words published, the defence of justification, the technicality of the law, the unpredictability of the result and the cost of litigation, running into tens of thousands of pounds, make it very ill-advised to run the risk of publication, even if the prospects of success are very good, if the plaintiff is impecunious. And in any event you will be advised by any sensible lawyer not to run the risk if there is any danger or any risk of lack of success.

It is because of these defects in the law of libel that the Faulks Committee has been set up and has been considering for some years past ways of simplifying the law, of trying to overcome these disadvantages of the law of civil defamation as an instrument for preventing abuse of the right of freedom of speech. My objection to subsection (5)—and the same applies to (6) and (7)—is that it pre-empts the Report and adds enormously to the complications of the law of libel where spent convictions are concerned.

I recognise that there are certain instances in which the truth of the statement about spent convictions ought not to suffice as a defence; for example, when the disclosure of a spent conviction is actuated by spite or where it is dragged in gratuitously in order to make an article in a newspaper, book or magazine more sensational and so enable it to sell better. Amendment No. 34, which I shall come to in a moment, is, I hope my noble and learned friend Lord Gardiner will accept, a genuine attempt to do this; to prevent unnecessary and unjustified disclosure of spent convictions, but to do it simply and by applying well-known concepts already existing in the law of defamation. The present subsection (5) has, I recognise, the same purpose in mind, but, I would submit, sets about it in the wrong way and in a way which involves immense complications, as indeed are illustrated by the later Amendments, Nos. 37A to 39A, which have been put down in the name of my noble and learned friend on the Woolsack—five pages dealing with librarians.

What subsection (5) is really saying is that where a spent conviction or circumstances ancillary to it have been disclosed you cannot rely upon truth alone, you must rely on something else, and the something else that you must rely on is either, (a) that publication of the words complained of was in the public interest ", or (b)—on which I will not pause at the moment—or (c) that he did no more than to republish innocently a document first published before the conviction became spent ".

Paragraphs (a) and (c) are trying to deal with entirely different kinds of defence. I will, if I may, deal first with (a), which is intended to deal with deliberate muckraking, disclosure of conviction for motives of spite or motives of sensationalism; and it does it by referring to the necessity to prove that the publication of the words complained of was in the public interest.

The first question which is not clear in that is whether the question, whether the publication was in the public interest, is a question of law, in which case it is a question for the judge, or whether it is a question of fact, in which case it is a question for the jury. The concept of public interest is well known in the law of civil defamation, but in the context of the defence of fair comment, whether the matter on which the comment is made is a matter of public interest, in English law is a question for the judge to decide. But it is a very different question from whether a particular publication—which may be a private publication on a particular occasion from one friend to another, and by no means necessarily a publication by the media—is in the public interest.

What it really means is: does he, the judge, think that it ought to have been published, and the answer which he gives to that must depend upon his personal idiosyncracies, his personal attitude, to that kind of thing. It is not a suitable question for a judge. In the criminal law and in the legislation of New South Wales, to which the noble and learned Lord, Lord Gardiner, referred in his speech on Second Reading—and which, incidentally, has nothing to do with rehabilitation, but deals with the general law of libel in that country—the phrase used is "whether publication is for the public benefit", and there it is a question of fact for the jury. A jury in libel actions is extremely unpredictable, but if it has to be a choice between a jury's decision and a judge's decision on that particular matter, I should have thought that, as in the criminal law and as in the legislation of New South Wales, it ought to be a matter for the jury.

It has seemed to me—because the basic idea behind this Bill is to erect a wall of silence around the spent conviction (one of which I approve)—that if the purpose of doing it in this way is to prevent disclosure in the course of an action for libel, it will not work because no publication could be in the public interest unless the words were true. So you will have to go into the details of the conviction—the circumstances of it, anyway— in order to determine whether the matter was in the public interest.

The alternative way of dealing with the matter is provided for in the Amendment which I am moving which reads:

" A defendant … shall not … be entitled to rely upon the defence of justification if the publication is proved to have been made with malice."

This follows and applies the concept and the wording which has been familiar in the law of libel in analogous situations since as long ago as the Law of Libel Amendment Act 1888. Malice, the word which appears in the Amendment, is a well-known concept in the law of defamation. It was defined as recently as January of this year by this House in its judcial capacity in the case of Horrocks v. Lowe. In a sentence it means taking improper advantage of the occasion of the publication. I understand that the Faulks Committee will recommend that as a statutory definition of malice.

If you apply that concept and wording to the muck-raking type of disclosure that we all of us wish to prevent—bringing in a gratuitous reference to a spent conviction, whether it is in a newspaper article or in a private communication—under the existing law if there is a gratuitous reference it will almost certainly carry the innuendo that the person whose description has been referred to is still one of a criminal disposition. It would therefore be defamatory, if that were the true innuendo, under the existing law, and no alteration is needed for it. But muck-raking journalists and their legal advisers know how to be careful, and it may be that to avoid the innuendo they can make it clear that they are suggesting that the person whose spent conviction they have disclosed is, in fact, a reformed character. That is the kind of cleverness that would be prevented by this Amendment. The Amendment is equally appropriate to private communication, taking improper advantage of the occasion.

As I have said, the concept that malice defeats a defence which would otherwise be available on the publication of particular matters was first introduced in 1888 to cover fair and accurate reports of particular kinds of proceedings of local authorities, and the like, which were not protected before that date. These fair and accurate reports have been protected unless malice is proved by the Law of Libel Amendment Act 1888, and that Act worked satisfactorily for 60 years until the Porter Committee considered it in about 1948—a committee of which I was secretary.

Having found that it had worked satisfactorily, they recommended its extension to various other kinds of reports of which the one most analogous, and very closely analogous, to the kind of matter with which we are dealing, was proceedings in courts in Commonwealth countries. That extension was made by Parliament in 1952, and 30 years have passed since then and no complaints that I know of have been made that it did not work satisfactorily. What is proposed in this Amendment is the kind of test that has stood the test of time for nearly 100 years.

May I turn next to paragraph (c), the innocent republication of a document first published. That is intended to cover librarians and publishers reissuing documents, books, and newspapers which have referred to spent convictions, having been published at a time before the conviction was spent, and generally at the time it took place, As the Bill stands, there is no real protection to such persons, librarians, those who have in their files past numbers of newspapers. In order to try to provide adequate protection, your Lordships will see the lengthy Amendments Nos. 35D and E, and 38A to 39A. Those are sufficient illustrations of the complication of trying to deal with the matter in this way.

With great respect to my noble and learned friend on the Woolsack, if we come to those Amendments I do not think they succeed in doing what I know he is trying to do. But if all that is rendered unnecessary by the short and simple redraft of subsection (5) which is suggested in this Amendment, it covers paragraph (a), the matters intended to be covered by paragraph (b) and it covers those intended to be covered by paragraph (c). It does everything that is legitimately possible to protect rehabilitated persons. It does it simply, it does it within the framework of the existing law of defamation and it does it by means which experience has shown works, and has worked effectively over many years in very closely analogous situations. I beg to move.


As one sympathetic to the Amendment, may I ask a question of the noble and learned Lord? How does he see the way a trial would proceed? It seems to me that his Amendment is open to the objection which he made himself about public interest considerations, in that one would have to prove the fact that the conviction had been published before one could start considering the question of whether there had been malice. I wonder whether this raises a difficulty which is perhaps fundamental to this particular clause?


The noble Lord is right. There is no way of dealing with this either in the form of the present Bill or by the Amendment which I have suggested which will not involve giving publicity to a spent conviction. But if you are going to try to use the law of defamation to deter people from doing that, that is the price you have to pay. The price is less by doing it in accordance with the Amendment than would be the price of doing it in the form of the Bill as it stands.

9.2 p.m.


With some diffidence I rise after the noble and learned Lord, Lord Diplock, to speak from the point of view both of a layman and as a member of the Faulks Committee. During the three years I have been on the Committee I have been terrified by the potential of this clause in the Bill, if it goes through, for all ordinary and simple laymen. The complications seem to be enormous. In my capacity both as a layman and a Faulks Committee man I am astonished at the way in which the Bill has some how crept up on us, almost by stealth—I am not imputing any wrong motive to the noble and learned Lord, Lord Gardiner—but it has taken us all by-surprise at how nearly this proposition has Heaven knows we have had plenty of warning. The Press, the other place, the layman, everybody, have been taken by surprise at how nearly this position has already become law. By courtesy of the noble and learned Lord, Lord Gardiner, the Faulks Committee was able to see early on the original draft of the Bill, the pamphlet Living it Down, and so on. We have been very much alive to it, both the professionals and the "silly soldiers" who found themselves on that Committee. I am still astonished how it has crept up on us, almost unnoticed.

As a member of the Faulks Committee I would say that we have not been unanimous about several things. A more libellous body of people I have never been associated with than my colleagues on the Committee on Defamation, but on this matter we were all agreed. Laymen, barristers, solicitors, former judges, people from the publishing and journalistic world were all unanimous that the clause is full of anomolies and we think it cannot be resolved in its present form. We have pondered it long and carefully, and I would claim that we pondered it with great sympathy for the views which obviously inspired it. We still think it is wrong from end to end.

We were so alarmed by the way in which it seemed to be slipping past unnoticed that we published the interim Report from which I quoted a paragraph on the last occasion, when prematurely I fired off my first barrel. It was: … we view with disfavour the creation by this Bill of a special class of person about whom the truth cannot safely be told after a specified period. We think it is in the public interest that truth should at all times remain a defence to actions for defamation. It is in our view wrong, in principle, that a man about whom the truth is told should be entitled to damages on that account. Where it is unfair and not in the public interest to tell the truth about a person the publisher can be charged with criminal libel. It is as simple as that. There are so many anomalies. I will quote only a few, but not any that have been quoted already. The Press has been full of such correspondence lately and other anomalies have been quoted in your Lordships' House. I will repeat as an example the lack of protection for the man fortunate enough not to be convicted. While the man who has been convicted is protected, the man who may have been in close cahoots with him has no protection at all. That, speaking as wearing both my lay hat and my Faulks hat, seems to be an unacceptable anomaly.

I remember a young man, a very good one, who was my pupil at Sandhurst just before the war, who got into trouble for passing "dud" cheques and was cashiered. After the war he came to me after what would have been the spent period asking me to back him for a job with one of the security organisations. I backed him to the hilt, but I had to confess that I knew about his conviction, otherwise what would have been my situation if a packet of diamonds in his charge disappeared on the way to Hatton Garden? I have no daughter, but if I had one and she became engaged to someone who was known to have had a spent conviction I would not have regarded your Lordships who knew of that fact as very kind friends of mine if you concealed it from me.

Only last week there occurred in Scotland the incredibly sad case of a boy of three who was sent to foster parents who beat him up—I think it has been reported in the English as well as the Scots Press—so that he is now a vegetable for life. This is a delicate matter because it is the subject of inquiry at the moment. But these people to whom he had been sent had in fact been convicted of cruelty to their own children five years ago. Plus or minus the time limit, they would have been protected under this Bill and the boy might still have gone to them. This Bill, we think, is full of anomalies. It does enormous justice to the individual whom we all want to rehabilitate, but we do not think it is fair to society.

Going back to my laymen's hat for my last paragraph, on one of the innumerable occasions on which this debate has been postponed I was enabled to take part in a ceremony which I had scrubbed as Chancellor of St. Andrew's University, and I heard our Professor of Moral Philosophy say this in a graduation speech: It is the first duty of a man or woman that the only justification he needs for concerning himself with any proposition is that it is true or false, and the only thing that finally matters to him is that it shall be true and not false. Meaning is an essential ingredient of the truth, and one which becomes increasingly difficult to achieve". I submit that it is not our job to make it yet more difficult than it already is. I think, finally, that when it becomes a question between living it down or covering it up, the latter can lead to dry rot. Once you start manipulating the truth, you are in danger of introducing dry rot —and a dry rot which might gnaw at the very roots of society.


May I initially apologise for the fact that, as your Lordships will see from my garb, it is my intention to attend some splendidly artistic function as soon as I can escape from here. However, I want to proffer a remark or two, because I believe that, notwithstanding the fighting speech made by the noble and learned Lord who has fired his first barrel and will no doubt fire his second shortly, there is more or less unanimity in this Committee that the principle of this Bill is right, and that it is right that if a man has vindicated his career after five years of going straight it should not be held against him that he has had a previous conviction which will impair his future life or prevent him from leading a useful life in the future. What we are seeking to do is really an exercise in technicalities. We are trying to find a means to provide a sanction so that a person who wantonly infringes the principles of this Bill shall in some way be deterred.

Might I venture to suggest to the noble and learned Lord, Lord Gardiner, that the use of the law of defamation is really totally wrong. First of all, it is totally inappropriate for most of the people who will be concerned with wishing to have their convictions erased. I do not want to suggest that it is a class matter, but it is certainly the case that the lower income groups in this country, the working classes of this country, very wisely do not resort to the law of defamation. They are wise enough not to become involved in the manifest absurdities of English legal procedures. I have never known of a case where two people living alongside each other in a working class area have sued each other for defamation. They may have engaged in fisticuffs or found other ways of resolving the matter, but the notion that defamation is an appropriate remedy is, I think, wholly misconceived.

I do not want to keep your Lordships long, but it is necessary to say a word about the really lamentable drafting of this Bill—I say this with great diffidence and really with great regret—because if you read this Bill with care, and I spent some hours over the weekend trying to work my way through its very entangled provisions, you find that this is the position. In his Clause 4, the noble and learned Lord has provided for a net covering a very wide area. It shall be totally inadmissible to refer to a previous spent conviction in any legal proceeding. Nothing could be wider than that, and perhaps nothing could be more admirable than that.

When you come to read the Bill in detail, however, you find that the immense erosions of this principle leave almost nothing behind, and what is left behind is an astonishing anomaly and inconsistency; because you find that all criminal proceedings are excluded from the operation of Clause 4. Also excluded from the operation of Clause 4 are civil proceedings if the judge considers, except in a specialised instance, that the issue of justice demands that you should admit evidence about the previous conviction. You find, in fact, that it is only where a man is proposing to institute an action for libel, a solemn civil action, on the basis that his very first document, his statement of claim, is going to assert a total falsehood by saying that someone has falsely and maliciously (to use the words in a statement of claim) made a statement about him which he knows is totally true. How the action would be conducted heaven only knows.

What happens in the witness box, I have not the beginning of an idea. The plaintiff goes into the witness box and presumably says that the defendant said of him that he had been convicted six years ago. What he then says I have no idea. His counsel is not allowed to ask him whether in fact he was so convicted. What the jury think, what conclusion they arrive at, how they are to assess the damages, is really one of the most obscure matters that is to be found outside the more suspect texts of The Bible. I do not think, if you consider for a moment, that it is remotely possible to use the law of libel in a context where a plaintiff is called upon to give evidence and cannot give evidence except of the truth.

It is, I think, not that we are such purists and so dreadfully concerned about the possibility of telling a falsehood but that, if one starts to launch legal proceedings on the assumption that one has a licence for legalised falsehoods, the proceedings become an absolute nonsense, because it is only in that matter when a man is going to say something that is untrue that the provisions of the Bill will apply. I venture to suggest to the noble and "learned Lord, Lord Diplock—though he requires no praise from me; he gave us I a masterly dissertation on the law of libel—that what he has been trying to do is very kindly to throw a small sop in the direction of the noble and learned Lord, Lord Gardiner, in the hope that by inserting this subsection we may find a quick way out of the problem.

If there is a quick way, it is the way provided by the noble Viscount, Lord Colville, in his later Amendment, which seeks to make it a criminal offence of a moderate character, subject to a moderate penalty, if a person infringes the Act. It seems to me that this is a much better and more effective way of doing this. What kind of deterrent it will be, I have no idea. A rich man would not be deterred at a smart dinner party from telling of an undisclosed previous conviction for some sexual offence of his closest friend by a threat that he would have to pay £100, but one cannot base the law on the activities of mischievous and wealthy people.

I think that there will be a deterrent in this suggestion, although I can see difficulties in the drafting. I see diffi- culties in the whole Bill, but it is infinitely better than an attempt to complicate the law of libel by for the first time ever and despite what was said by a noble Lord at an earlier stage of this Committee, authorising by an Act of Parliament a man to state categorically that a falsehood is true and a truth is falsehood. Only by Alice in Wonderland standards—or, indeed, by Alice Through the Looking Glass standards, more appropriately, because truth and falsehood are inverted—can one really accept that this is a proper way of dealing with the matter.

I have said some rather unkind words about the drafting of the Bill. I think that the reason why the drafting is so unintelligible is that the draftsmen have sought to achieve an impossible task, and I think that we should to-day review what is not really a crucial part of the Bill. The crucial part of the Bill is that we have recognised that after five years a man's conviction is erased and he can start again. That is the humanitarian result which will be achieved by the mammoth effqrts of the noble and learned Lord, Lord Gardiner, and, if the Bill gets on to the Statute Book, it will stand to his credit for many generations, I do not think that, if we complicate the Bill by retaining this attempt to eliminate defamation, we shall do anything but create a situation in which the Bill is not passed.

9.17 p.m.


My Lords, I have listened with my usual interest and attention to the noble Lord, Lord Goodman, but, as I listened, it occurred to me that we have not heard fall from his lips a single word relevant to this Amendment. I gather that the noble Lord is to disappear soon: he has taken the opportunity to make a Second Reading speech on the Bill and it had no relevance to the Amendment. Apparently, he is a supporter of the Amendment which is to be proposed by the noble Viscount, Lord Colville, but he will not wait to hear the argument about that. So, if I may say so with respect, while the noble Lord contributes greatly to the entertainment of this House, he has not on this occasion contributed to its usefulness.

I should like, with the greatest possible diffidence and hesitation, to attempt to make some reply to the speech of the noble and learned Lord, Lord Diplock. I do so with the greatest diffidence, because I am a humble lay solicitor and he holds the position he does; but, if I understand the matter right, what we are discussing at the moment is whether the test—as to whether a person is justified in publishing to the world the facts of somebody's spent conviction—should be decided by considering if it is in the public interest to do it or by asking whether the person who published the facts was guided by malice. That, as I understand it, is substantially the difference between the words in the Bill and those of the noble and learned Lord's Amendment.

The first point that I should like to make about that matter is that I fear that the substitution of the test of malice or non-malice for the test of public interest weakens the protection afforded to the rehabilitated person. It weakens it for two reasons: first, that the Amendment moved by the noble and learned Lord throws on to the plaintiff, the complainant, the onus of proof that the publisher was acting with malice. As compared with the way in which this matter is presented in the Bill, that is shifting the burden of proof. Under the Bill if the publisher of the facts of a spent conviction is going to justify it he not only has to prove the truth of it but he has to go on and prove positively that the publication of it was in the public interest. Whether it be that he acted non-maliciously or in the public interest, I see no reason why the burden of proof should be thrown upon the plaintiff. Indeed, I would have thought that it was contrary to all the principles of the present law of defamation. If I have got this wrong I shall be corrected by the noble and learned Lord.

As I understand it, as the law of libel stands in this country at the moment, once you have proved or satisfied the judges that what was said was in fact defamatory, the burden of proving that the publisher of the defamatory statement had some excuse immediately passes to the person who made the publication. Whether or not the defence put up is a defence of justification, the burden of proving it was true passes to the defendant.

If the defence is one of fair comment in the public interest the burden of proving that passes to the defendant. If the defence is one of qualified privilege without malice the burden passes to the defendant. The noble Lord's Amendment proposes, as I understand it, that that basic principle in the law of evidence in libel and slander should now be turned on its head and the burden of proving malice I should be passed to the plaintiff. I suggest that if that happens the plaintiff in the great majority of cases will be put in an almost impossible position because he may not have available to him the material by which he could possibly prove that that is so.

I suggest that it is contrary to principle in this way: under our present laws of libel and slander the position we take is that if somebody publishes something which is defamatory he is doing something which is prima facie wrong. In this case, it should be up to him to produce a good explanation and excuse for what he has done. Under the Bill we are making it a prima facie wrong to publish facts about a rehabilitated person's spent conviction. If we are establishing that principle under the Bill, then if the publisher of the information about that spent conviction is going to try and justify it the onus of doing so should be upon him.

May I now go back to one sentence which fell from the lips of the noble Lord, Lord Goodman. He was arguing—and indeed in one sense this was argued by the noble and learned Lord, Lord Diplock—that this defamation clause does not bite because there are so many cases where in practice it will not be of any avail to anybody who is injured by the publication of a spent conviction. That is perfectly true. Take the phrase which the noble Lord, Lord Goodman, used, I think, of the "two working class people". He said that in his experience when working class people get into a dispute they never bring an action for defamation against the other person. The noble and learned Lord, Lord Diplock, said, You only bring an action for defamation if you are going against somebody who is not a man of straw. There is one case in which quite clearly the Bill will bite and prevent this publication of people's previous spent convictions. That is the case of the newspaper, or any part of the media, which is considering whether it will publish a story about a man and refer to a conviction for something which happened many years ago, with the result that the publication of that matter to all the world may well break him, ruin his career, ruin his family and ruin all his family relationships. I suggest that in the case of any part of the media, particularly the newspapers, this defamation clause bites and will serve as a real deterrent. That, after all, is the object which we are seeking to achieve.

I now come back to the question as to whether the test of whether a man was justified in publishing particulars of a spent conviction should be that of malice or whether it should be the test of public interest. We have heard a great deal. We have heard to-day from the noble and learned Lord, Lord Diplock, that one of the disadvantages of the test of the public interest is that it is a highly subjective concept and that it is very difficult for any newspaper editor and the like to tell in advance what a judge or a jury will decide—because I suppose that the question in this instance as to whether something is in the public interest is something that will be left to the jury. But whether it is a judge or a jury the argument is that it is very difficult for a newspaper editor, who is contemplating the publication of the facts of a spent conviction about somebody, to judge whether he will be able to raise successfully the defence of the public interest.

I will consider, if I may, the example of the newspaper editor who has a story about somebody who has suddenly been brought into public prominence for one reason or another. They have made an investigation of this man's history and found out that 20 years ago when a young man he was convicted of some offence. They are going to publish a story about that man, and the newspaper editor has to decide, "Am I to put that in or not?" It is a difficult matter for him to judge at that stage as to whether if he publishes that fact he will subsequently be able to satisfy a court that he was acting in the public interest. That is difficult, I concede, but is it any more difficult for him to make that judgment than to answer the question which is posed by the noble and learned Lord's Amendment, "If I publish this will the courts decide that I was acting maliciously or not?" Is that not just as difficult a judgment to make in a newspaper editor's office as is the judgment as to whether it is in the public interest?

I should have thought that, if the newspaper editor does publish something of that kind, and an action for defamation is brought against him, when he comes forward and attempts to rebut the allegation that he acted maliciously, he is almost bound to say, "No, I did not act maliciously because I acted in the public interest". I should have thought that in the vast majority of cases the only defence one could put forward to rebut the allegation of malice was that the publication was in the public interest.

Therefore, the noble and learned Lord's Amendment would not be effective in removing the concept of public interest from this argument. I will not weary the Committee any further with any comment upon paragraph (c), but comparable arguments to those which I have already sought to advance can be advanced there. Although the Amendments that are to be moved in due course by the noble and learned Lord the Lord Chancellor to paragraph (c) are complicated in their verbiage, they are a much better solution of the problems of the authors, booksellers and librarians than the solution which is offered to us by the noble and learned Lord's Amendment.


I wonder if I might, having stayed to hear the noble Lord's speech following his strictures, ask him a question. He is asserting that this action for defamation is of value against newspapers. Does he suggest that if a newspaper is able to say, as it is under this Bill, that a man is a rogue and a criminal and has a low character and rely under Clause 7 on the strong likelihood that the judge would allow the evidence to be admitted, because it is crucial to the question of truth, that that is of the slighest value to him in terms of defamation? It is only if he is founding his action on the single fact that there is the revelation of a spent conviction. In no other circumstances does Clause 8 apply. Under Clause 7 it is open to a newspaper to make any allegations it likes about a man's character and to seek to introduce the conviction, and they are not defaming under this Bill as now drawn.


I am glad I have never been in the position of being cross-examined by the noble Lord. If a newspaper were to publish an article saying that a man was a rogue and a scoundrel and he was then to sue them for defamation, they would be precluded from relying upon any evidence of a spent conviction to support their allegation that he was a rogue.


Under Clause 7 they are entitled to ask the judge to admit that as being relevant to the issue. I can think of few judges, if the man's character was at issue—as is crucial in defamation—who would not admit it.


Surely the allegation that a man is a rogue and a scoundrel goes very much farther than saying that he was convicted of some offence 20 years previously and has not been in any further trouble since. I do not understand what the difficulty is in the noble Lord's mind. If a person says, simply on the basis of a spent conviction of 20 years before, that a man is a rogue and a scoundrel to-day, I should have thought he had the clearest possible action for libel whether or not the judge allowed the evidence of the spent conviction to be admitted at his subsequent trial.


This Bill is complicated, and I wonder if I can make a short and simple point. The noble Lord, Lord Goodman, has pointed out that Clause 8 will either deter, in which case there will be no cause for anything to come to court at all, or else it will lead to a civil action. If it does that, it will be because somebody has worked his way through what is inevitably a complicated piece of drafting, and come to the conclusion that he has a legitimate cause for complaint. He will come to court. But he will not come to court in order to preserve the secrecy of his spent conviction. I do not understand how any action for defamation can get on its feet in those circumstances. He will come before the court in order to get damages because the deterrents will not have worked, and he will therefore have to have his recourse in law in terms of money.

The other day the noble and learned Lord, Lord Salmon, said that he was not in favour of licensed perjury in the criminal courts. I believe that this has now been struck out of the Bill. I consider that the question of onus of proof is crucial to the choice between the Amendment of the noble and learned Lord, Lord Diplock, and the Bill as it stands. The noble Lord, Lord Foot, has said that it should be for the person who publishes to prove that the publication of the truth was also in the public interest. The Amendment says that the person who is complaining about he publication of the truth should also have to prove that the publication was done maliciously.

I hope that the Committee will not think that either the word "malice", as used here, or the words "public interest" mean what anybody ordinarily thinks. They are terms of art of the greatest subtlety and complexity and they do not mean the simple things that normal people believe. Therefore one does not think of nasty, viperous, slanderous, tittle-tattling people full of ill-will and malevolence. That is not the sole context of "malice". It is a good deal more complicated than that, and so is the public interest.

May I say to the Committee that if one is, as one is bound to be in an action for defamation under this clause, standing the truth on its head—saying that a past conviction is no past conviction and that somebody who says that it is a conviction ought to be required to pay damages for mentioning the fact—then, if we take any account of the history of the law of defamation and of the value of truth, it is for the person who wishes to say that the truth should not be told to do something in addition. What he must do under this Amendment is to say that the truth should not be told because there was an extra motive in telling it which was illegitimate. In the terms of the Amendment it was malicious, it was unnecessary, and it was something which should not be allowed. That is what he has to prove. He does not have to prove it according to a criminal standard of proof. He does not have to prove it beyond reasonable doubt. He has simply to prove it so that on the balance of probabilities the person who published it did so without a reasonable cause for doing so.

If we are to abandon the truth in defamation, could we not also require the person who wishes so to abandon it to prove that small element? That is all that the Amendment of the noble Lord does and I think that it is a sensible way of dealing with it.


Amendments Nos. 34, 35, 37, 38 and 39 deal with this point. so I trust that it will be in order if I address myself to them ail at the same time. This group of Amendments seeks to delete from the Bill the defence of public interest—that is, a complete defence for everybody—if what they publish was true and it was in the public interest that that truth should be known and to substitute for it a wholly new basis: that a plea of justification alone is a good defence unless the injured person also proves malice. I accept, of course. that the Amendment is well mentioned but my difficulties are these.

First, malice is not defined. As the noble and learned Lord, Lord Diplock, rightly said on a former occasion on this Bill, our law of defamation is extremely complicated, and I think possibly the most complicated part is what "malice" means. I am sorry that the noble and learned Lord, Lord Salmon, had to go, owing to the lateness of the hour, because I know that this was a point with which he wanted to deal. There are innumerable cases as to the meaning of "malice". Gatly on Libel is the standard textbook. If you look at the index under "malice" you will find that there are 88 sub-headings. Twenty-seven of them alone are under the heading of "malice, evidence proving". Then there are about a dozen under the heading "malice, evidence not proving". There is no branch of the English law on defamation which has occasioned more difficulty than what is meant by "malice". Here in a new measure it is not defined at all. At present it may be one thing in the context of what is called a privileged occasion, and another in relation to fair comment, but there is no guide of any kind.

Of course, in the field of qualified privilege—that is to say, where A has an interest or is under a legal, moral or social duty to communicate something to B, who has a similar interest or duty to receive it—very often, in the end, it can be tested by whether the publisher has abused the occasion for which he was given the privilege. But of course news- papers have no privilege—they have the same right as you or I to say what they like, subject to the law.

I must say that I have not the faintest idea what would constitute malice and what would not. Take the simple case of a newspaper which publishes a 30 year-old conviction, not out of spite, not because it has a grudge against a person, not for an ill-will, but simply because it is thought that it will sell more copies of the newspaper if it is put in than if it is not. Is that malice? Newspapers have to make money; that is what they exist for. If they lose money they will not go on. But whether or not that would be malice appears impossible to decide.

On the other hand, so far as public interest is concerned, there we have in the field of Crown privilege the cases which tell us fairly clearly what "public interest" means and I would agree with the noble and learned Lord, Lord Diplock, that that ought to be for the jury. It is, and always has been, a very troublesome question in the English law on defamation what "malice" means. Why should the onus be on the plaintiff? If the policy of the Bill is right, why should not the onus be on the man who wants to act contrary to that policy, and who alone knows what was in his mind when he published the matter complained of? It is always difficult for a plaintiff to prove malice, because the man who knows and can explain what his motive was in publishing it is solely the defendant.

I much enjoyed two Second Reading speeches, one from the noble Lord, Lord Ballantrae, and one from the noble Lord, Lord Goodman. I have the highest regard for the Faulks Committee which has on it men of the highest distinction, many of whom are my personal friends. We have occasions on which we know when legislating that there is coming along behind some other piece of legislation. But we always take the view that we must deal with the legislation we have, and if and when other legislation comes along we shall deal with it. I cannot possibly subscribe to a proposition that a departmental committee which has not yet reported—we do not know exactly what they will say—is somehow to govern legislation which is now before Parliament.

We are at the moment littered with reports which have never been carried out and some of us will look a little critically at the report when it comes from the Faulks Committee, not because they are not men of the highest probity and distinction, but simply because on the Committee on Defamation they include a well-known author, a highly reputable publisher, a well-known figure from the British Broadcasting Corporation, a solicitor who usually acts for publishers of books when they are said to have broken the law and not a single representative of the people who are said to be defamed.


I thought I was just the sort of chap who might well have been defamed.


I have never followed the point made about the Bill not extending to someone who has not been convicted and it is very hard on him. For example, take the case of three men who commit the same crime: A is convicted, B is acquitted and C runs away. A is the only one of the three who has been punished and has done what he can to wipe away the offence, while B can go on saying that he was acquitted for the rest of his life. Why do we have to worry about C who has run away?

It is fair to say that the noble Lord, Lord Goodman, has not changed his view at all. The Committee will remember that on each occasion in two Parliaments that this Bil has been before the elected Chamber it was explained to them on Second Reading that the question of principle which had to be decided on Second Reading was whether the sanction should be via the law of defamation or by a criminal offence, or not. Eighteen months ago the noble Lord, Lord Goodman, made it perfectly clear that he was against the principle of the Bill. He did not think it ought to be done via the law of defamation. This is what has always been called the principle of the Bill, very clearly explained in the last Parliament to the Commons by the then Minister of State in Mr. Heath's Government, explained again in this one and twice accepted by the elected Chamber.

May I just add this, because I think the Comimtte ought to bear it in mind. In 1843 this House appointed a Select Committee on the law of defamation. It was indeed a formidable Committee. Lord Campbell was the chairman. The members were Lord Lyndhurst, the Lord Chancellor; Lord Brougham and Vaux; Lord Denman, Chief Justice; Lord Abinger, Chief Baron; the Lord Privy Seal, the Lord President and about 10 other noble Lords. I think perhaps they dealt with things a little more quickly in those days, because this was early in 1843: they were appointed on the 13th, named on the 14th and started taking evidence on the 15th. They took evidence from numerous newspapers. This went on for weeks, usually on Wednesdays and Saturdays, and then in June they published their Report. In their Report they said: The Committee think that the existing law is defective, in permitting Veritas Convicii" that is to say, the truth— by itself to be an absolute Bar to a Civil Action. They consider there are many Cases in which a Wrong may be maliciously done to an Individual for which a Remedy should be given by making public what may be proved to be true—as where the Imputation refers to some personal Defect, or an Error of Conduct long atoned for and forgotten—and that the Justification ought not to be complete without showing to the Satisfaction of a Jury that the Community had an Interest in the Truth being made known. This Qualification for the Defence in Civil Proceedings rests on the same Principle on which the Committee propose that the Veritas Convicii should be admitted as an Ingredient in the Defence upon Indictments or Informations for Libel. In another paragraph they said—and here they were considering whether this would best be done by public interest or by malice— The Committee are of opinion that the Truth ought not to amount to an absolute Defence in a Criminal or Civil Proceeding for Libel, but that it ought to be received as an Ingredient in the Defence, to enable the Jury to determine whether upon the whole the Publication was justifiable. A Difficulty arises as to the Question to be submitted to the Jury beyond the Truth of the Imputation. Some Witnesses suggested that it should be the Motive of the Defendant, but the just Consideration seems to be, whether the Public have an interest in the Truth being made known to them. It is only in such a Case that private Offences ought to be made the Subject of public Comment, and in such a Case, for the Good of the Community, the Publication must be tolerated, though prompted by Spite. The Committee think that admitting Evidence of the Truth under this Limitation Will remove a Scandal from the Administration of Justice, On introducing the Report the chairman, Lord Campbell, said, on June 1, at column 1230: Errors may have been committed by a party, and may have been long atoned for and forgiven. It seemed a reproach to the administration of justice that in such cases a man's forgotten misconduct, or the misconduct of a relation, in which the public had no interest, should be wantonly raked up, and published to the world, on the ground of its being true. A great wrong here was committed, and no remedy was obtained. Shortly afterwards the Bill was introduced in this House, and the first of its two most important clauses was a clause which provided that in criminal libel the truth should be no defence unless the defendant also proved that the publication was in the public interest. The other clause was that in civil proceedings the position should be exactly the same. Both clauses were accepted by the House of Lords. When that went to the House of Commons, while they accepted what had been proposed in relation to criminal libel, there were objections to the clause applying to civil libel. There was a Division.


I thought my noble and learned friend gave the impression that when the law was changed in 1843 by Lord Campbell's Act it was in order to take away or to add to the necessity of proving public interest as well as truth. What happened, in fact, was that truth was not a defence to the law of criminal libel at all before then, and the change made in the law was that truth was made a defence if it was also proven to be for the public benefit.


That is quite right; truth had not been a defence, but what they were proposing and put forward in the Bill were these two clauses to provide both in civil action and in criminal action in future that you could prove the truth but only subject to your also proving that the publication was for the public benefit.

When that went to the Commons, as I was saying, there were some objections so far as civil cases were concerned. On the Question, That the clause stand part?, there voted Contents, 30, Not-Contents, 38. It was because of this majority of eight that English law went wrong. When the Bill came back to this House, Lord Campbell was annoyed. He pointed out how illogical it was that if a thing was a criminal offence the injured party should have no right to claim damages for the wrong done to him. He said: Another important clause had been rejected—that which allowed the truth to be pleaded in certain cases in civil actions, by which, he thought, the law was made more inconsistent than at present. It took away from the civil action all remedy, if the words were proved to be true. As the law now stands the truth of libel is an absolute bar against the civil remedy. The Veritas convici, absolved the parties from defamation. That, too, was I peculiar to the law of England. It was not known in the law of Scotland nor in the law of France. nor he believed in the law of any part of Europe. It was monstrous that it was so. What right had any man to publish the infirmities of another, or the youthful error which might have been forgotten and atoned for, or some misfortune of his family for which he was not responsible? Egregious wrong might be done in this way, it was manifest, and great pain inflicted on an individual, without any benefit to the public or anybody. Now, if the Commons were of opinion that to publish truth of this nature ought to be punished criminally, being wrong, why should not the individual who suffered, have his remedy by-civil action? Where there was a wrong, there was also a remedy, was the maxim of the law of England, and accordingly a clause had been inserted in the bill, enacting that the truth should not be an absolute bar in civil actions, unless the defendant could make out that it was published for the public benefit. That clause had been rejected by the House of Commons; and they left on the bill this strange anomaly, that truth was not to be an absolute bar, but only sub modo, in criminal proceedings … ".—[OFFICIAL REPORT, August 22, 1843, col 992.] He then pointed out that as it was now August 22, he advised them to accept the Commons Amendment because otherwise the Bill would have been lost.

To-day we are in a strange position because it is the elected Chamber which on two occasions has accepted the principle of the Bill and has put into it the defence of common interest. It is from this House really that the objections now come. I should just add that not only has the principle of the Bill, namely, the defamation clause, and the defence of public interest been accepted by the elected Chamber, but that although given the Second Reading without a Division, on the Committee stage of the Bill there was one man who said that he himself was against the principle of the Bill. He divided the Committee and was the only Member to vote against the Amendment on that Division.

I have only to add that it was three years after the Bill to which I have referred that most of the Australian States said that the House of Lords Select Committee were right and they then provided that in civil actions the truth should be no defence unless the defendant also proved that the publication was for the public benefit. I think that no practical difficulty arises in the action. As I am sure the noble Lord, Lord Goodman, knows, "falsely and maliciously" is a survival of an old form, and means nothing. Indeed, one of the two leading criminal chambers has not put it in for years. In libel, the defamation proceedings, the words complained of are assumed to be untrue, and the burden is on the defendant, if he wishes, to prove they are true. Therefore, the defendant would have to prove the truth and that what he was publishing was in the public interest. In this alternative clause we have to prove malice. I would hope the Committee would reject this Amendment, but no doubt the Committee would wish to hear what is the Government's view on this Amendment.


Before we hear the noble and learned Lord the Lord Chancellor on this, may I say a few words in answer to the speech of the noble and learned Lord, Lord Gardiner. He began by attacking the noble Lords, Lord Ballantrae and Lord Goodman.


With great respect, I did not attack the noble Lords at all.


I was about to go on to say what I thought was the attack, but if the noble and learned Lord, Lord Gardiner, objects to the word "attack", I do not mind. However, he said on the Committee stage that the noble Lords had made Second Reading speeches, and if that is not a criticism or attack, I do not know what it is. The noble and learned Lord, Lord Gardiner, made a speech almost as long as that which he made on the Second Reading of the Bill. He went in to a great many matters which were really unrelated to this Amendment. The noble Lord. Lord Foot, went into a great many matters of detail.

At this time, I do not propose to speak for any length on this Amendment. The reasons for it have been deployed in a masterly speech by my noble and learned I friend, Lord Diplock. This is an important Amendment, it is true, and in judging of this Amendment, what was said in reports of over 100 years ago I suggest is quite irrelevant. I am not going into past history of what happened, in 1848 in regard to criminal libel and Lord Campbell's Act. We have to consider what goes into the Bill. When the noble and learned Lord, Lord Gardiner, says repeatedly that the principle of the Bill lies in this defamation clause, I venture to cast in his teeth the words that he used in relation to an earlier Amendment ' when he said, and I think I am quoting his language correctly: the guts of the Bill are in this clause". I support the object of the Bill. I do not regard the principle of the Bill as being embodied in this clause or any part of it. The object of the Bill and all the earlier parts of the Bill is to provide that convictions can be spent. It is a complete misuse of language from noble Lords to talk about rehabilitation, because one does not become rehabilitated by the conviction being spent. What happens—and what one wants—is to remove from individuals the risk of their past—which has been lived down—being brought to light years later, and their suffering injury to their reputation and in their life on that account. That is the principle of the Bill. All the rest is machinery. It is no use the noble and learned Lord going on emphasising that defamation is the principle of the Bill. It is part of the machinery. We want to try to make the machinery as good as it can be made.

In relation to that machinery, this is a most important Amendment. It has been criticised in various respects. I do not intend to deal in any detail with the criticism, because I feel the Committee would like at this late hour to come to a decision without much further debate. However, the first criticism made by the noble and learned Lord, Lord Gardiner, is that malice is not defined, nor is it in the Bill. He says there is much about malice in the textbooks. Of course there is. He did not refer to a recent decision of this House in its judicial capacity which, I think, threw, at least I hope it did, a considerable light on the extent of the meaning of that term of art. As the noble Viscount, Lord Colville of Culross, said, it is not just spite and malice and ill will; it goes beyond that.

I think it is fairly clearly established now that, if you take an improper advantage of the occasion, in publishing something defamatory, that is malicious. If, therefore, some newspaper gratuitously publishes defamatory matter about a person's private life—and one sees instances of that now and then in newspapers in which one would not expect to see it, where it appears to be completely gratuitous—I would have thought from the very nature of the article there would be no difficulty at all in the plaintiff in an action establishing on the balance of probabilities that that was malicious.

I do not really think that there is much in that first point made by the noble and learned Lord, Lord Gardiner, about malice not being defined. He says that in no branch of the law of libel has there been more difficulty. There has been no difficulty, so far as I am aware, in the proof of malice under the Law of Libel Act which was passed in 1888.

Then he says with regard to public interest, "Oh, that is quite easy; there are cases on that, Crown Privilege cases". I venture to suggest that public interest is a phrase the content of which depends very much indeed on the context in which it is used, and I cannot conceive that what is said with regard to the public interest of protecting something from publication for the purposes of Crown Privilege has really any relation to this. A difficulty I see about public interest is that it is a I very vague and indefinite term. A difficulty I see, too, is if you get a book which does not come within the very narrow definition of subsection (5)(b), the difficulty of an author showing that a I book is written quite seriously, how it can be established, and if the onus is on him to do it.

The noble Lord, Lord Gardiner, has made references to the distinction—and it is quite true—of the Committee on Libel, the distinguished members of it. He has not said that he has consulted them about this clause in this Bill. But I think my noble and learned friend and I are aware, from what the noble Lord, Lord Ballantrae, has said, what are the views of that Committee. It was not so I very many years ago, and the noble Lord, Lord Gardiner, will recollect it, that I had the temerity to move 27 Amendments to a Bill drafted by a Committee composed of very eminent and distinguished lawyers.

I drew on my head a tirade from the noble and learned Lord, Lord Gardiner. He reminded me of the distinction of the members of that committee, and then he said he thought it was a very brave thing to say on 25 different Amendments "I know better than them". I should add that when it came to Report stage he himself tabled 37 Amendments, but that is by the way. Here the noble and learned Lord, Lord Gardiner, is really being much braver; he pays tribute to the distinction of these hardworking members, but what is he doing? Have they been consulted about the terms of this Bill? Do they agree with this clause? The answer is clearly, no. He is pre-empting their conclusion. He is ignoring them.

One reason why I feel that this is wrong is because it is difficult enough in all conscience for a Lord Chancellor to get eminent and distinguished and busy men to serve on committees of this sort and give up a lot of time voluntarily to do that kind of work, but then to say, "Oh, well, we are going to do this in this Bill without regard to your views; we are going to ignore them; we are not even going to ask you for your views", is indeed not only a brave but, I would suggest, a very wrong thing to do.

May I come back shortly to this Amendment. I suggest to the Committee, for the reasons given by my noble and learned friend Lord Diplock, that this really will be an improvement to the Bill. It will make it simpler and more effective. As the noble and learned Lord, Lord Gardiner, knows, and also my noble and learned friend Lord Diplock as well, I have worked long hours this week, and sometimes very early hours, in trying to remove what I think the right reverend Prelate called the "warts on the Bill". I think that the right reverend Prelate described the provision for lying on oath as a wart on the Bill.

I think that we have met with considerable success. This is the last real difficulty, but it is an important one. If this Amendment is accepted or carried, I can say for myself that I should certainly not vote for this clause being left out, despite the persuasive eloquence of the noble Lord, Lord Goodman, who nearly convinced me that that would be the better course. It may be, but I should like to see what happens to this Amendment. If this Amendment is carried, I must say that I cannot see that there will be really any difficulty in this Bill concluding its passage through this House this week with the knowledge that I have, thanks to the kindness of the Lord Chancellor and his officials, of the Amendments that it is proposed to table at Report stage. If this Amendment is not carried, despite the work that I and my noble and learned friend Lord Diplock have done to remove the warts on the Bill, I think that it would be better that the Bill should not pass this Session, that this matter should be looked into again, and the Committee on Libel consulted about it before this Bill—which, in the opinion of many, and not cast of the Law Society, and they are not speaking on their own behalf, would be a blot on the Statute Book—goes on the Statute Book.

Is there such great urgency? We heard that a million people are at risk. There must be very few cases in the course of any year where that risk fructifies. I want to see that risk removed, but if we are going to remove it let us do the job properly, and not as is proposed by the subsection which this Amendment proposes to leave out.

10.9 p.m.


The noble Lord, Lord Ballantrae, said that this Bill has crept up on us almost unnoticed. It seems to have been creeping up on me for a very long time; first in another place, where we debated it, and here we are confronted with it now. Parliament has been giving thought to this for a very long time indeed, and I should have thought that it is now appropriate for Parliament to begin to make up its mind upon it.

Amendments Nos. 34, 37, and 38, which were so seductively moved by the noble and learned Lord, Lord Diplock, on the face of it attracted me very much. Their simplicity is attractive, and if I could have found the Amendments acceptable they would have eliminated the difficulties which undoubtedly are involved in dealing with the problems created by the need to protect librarians and others which I and those assisting me have endeavoured to deal with in out Amendments, Amendments which, as we shall see, are certainly complex and somewhat lengthy, but with patience and sympathetic understanding they do, I think, as the noble Lord, Lord Foot, said, deal with that aspect of the problem.

But the difficulty which I find about the Amendments which have been moved by the noble and learned Lord, Lord Diplock, is that in my view they would create unacceptable problems in practice. In addition to that they would create a problem of principle which I shall endeavour to deal with in a moment. I believe that the practical problem will arise because there is no certain test by which to decide whether on any given occasion a true statement was properly published.

As I understand it—and it is a difficult field—the essence of malice as the term is used in the law of defamation is that the defendant has to take advantage of the occasion of publication to use it for some improper purpose. In considering whether a true statement has been maliciously published the court will have to consider whether the defendant improperly used it, and used that occasion, for some ulterior purpose. In my view that test is a very uncertain one, a test which is difficult to apply. In this regard I agree with the noble Lord, Lord Foot, and my noble and learned friend Lord Gardiner. In my view it is a more uncertain and more difficult test to apply than the test of public interest. That is a test which the courts have applied. There is case law in our own country with regard to it.

I remember all too vividly, after endeavouring to sustain the Crown privilege in the Conway v. Rimmer case in the House of Lords sitting judicially, the careful consideration and judgment that was given there to the concept and the balance of public interest. I find myself, I regret to say, in disagreement with the noble and learned Viscount, Lord Dilhorne, in his assessment of the comparative difficulties. In my submission, the assessment of the public interest which subsection (5) now contains, is one which is comprehensible and which a jury would have no difficulty in coming to grips with.

But apart from uncertainty in the courts, I submit that the Amendment has drawbacks for the parties. It places on the plaintiff a burden which I think he will find it hard, indeed almost impossible, to discharge. He will not often have direct evidence of ill-will on the part of the defendant. He will hardly be so foolish as to give him that evidence. Nor if the matter published is worded with any care will it be possible to spell out evidence of malice by reference to the words used. In most cases the plaintiff would be forced to rely on the argument that there was no occasion to justify publishing the statement complained of and he would have little material on which to base such arguments.

But the fundamental reason why, in my view, this Amendment is unacceptable is that, despite the words of the noble and learned Viscount, Lord Dilhorne, I think it does, and will in practice, interfere with the purposes of the Bill in a very real sense. In the Bill, Parliament states that it is in the public interest that rehabilitated persons should be allowed to live down their convictions. That is the heart of this Bill; that is the guts of the Bill, if I may use that expression—that it is unjust, that it is anti-social, that persons who have lived down their convictions should not be able to benefit from that fact. It goes to the root of the encouragement of rehabilitation in our community. There is a considerable public interest, therefore, in the maintenance of the principle that those who have lived down their convictions should be entitled to lead their future lives without prejudice, without harassment, without disaster, by a belated, unreasonable and unjustified disclosure.

The only excuse for publication of a spent conviction that can properly be set against that public interest which Parliament has so clearly favoured is another, possibly greater public interest. In my submission, it is not enough, as the Amendment states, to say that publication is to be allowed if it is not malicious. Further, it would not in my view be enough to accept the general approach of the Amendment but to alter the onus of proof of malice and make the defendant disprove malice. The mere fact that the publisher of the fact of the spent conviction bore no ill to the victim of the publication is not strong enough a reason for removing the protection which the Bill seeks to confer on rehabilitated persons.

In my submission, the defendant's state of mind is really not the right test to I apply. If the principle of the Bill is applied in the way I submit it should be applied, a statement concerning a spent conviction should not be published unless there is a good reason to do so. It may well be a good reason that publication in a given case is in the public interest; but, in my submission, it is not satisfactory that the test should relate to the defendant's motives in making the statement.

Perhaps I can give an example. Two newspapers independently publish reports concerning a man who is a candidate for some office of high public trust. Both report the fact that he has had a conviction, now spent, which makes him in that publicity unsuitable to hold that office. One of the reporters was malicious, and published the report simply to injure the candidate. The other was not malicious, and published the report because he thought it was his duty to inform the public. In both cases, so far as the rehabilitated person is concerned, the mischief is precisely the same: a statement about his spent conviction has been published. In both cases the question whether there should be a remedy should have the same answer, and the answer turns on the policy of this Bill.

The policy of this Bill has now been propounded. Everyone who speaks says that they support the policy of the Bill. If the public interest test is applied, the answer would be the same in both cases and would turn on the decision where the higher public interest lay—in revealing or concealing the spent conviction. But if the test proposed in this Amendment were applied, the answers would differ. Against the malicious reporter there would be a remedy: against the other there would not, although the victim would suffer similarly in both cases.

I regret, therefore, that, quite apart I from the complications which would arise as a result of Amendment No. 35 in the field of fair comment, with the introduction of yet another concept of malice into the morass of legal difficulty which is involved in the law relating I to malice, the practical problems which would be created in the field of fair comment, would, in my submission—attractive as the Amendment is, and clearly as I appreciate the sincerity of the effort to live with the principle within the law of defamation—make the Amendment unacceptable.


I will not detain your Lordships for more than a minute or two. The point involved in the Amendment is whether one should employ a concept which has been used in this context in the law of libel—that of malice or taking improper advantage of the occasion—and used successfully since 1888, so successfully that Parliament in 1932 extended it further and it has caused no difficulties. The proposal is to substitute public interest. I have asked in vain whether public interest is a question of law for the judge or a question of fact for the jury. If the model used by my noble and learned friend is the model of 1843—Lord Campbell's model—it is a question of fact for the jury. The other difficulty about the public interest is that it is an expression whose meaning will vary very much with its context, and nobody knows what meaning will be attached to it in a wholly new context. The context in which it is used is whether a particular subject matter is one of public interest. That causes difficulty enough, but now

Resolved in the affirmative, and Amendment agreed to accordingly.

we are seeking to apply that chameleonlike phrase in a wholly different context, and all that that can do can add uncertainty to what is already an uncertain branch of the law, instead of the comparative certainty available by using a well-known concept which has been used for many years.

As to the question of burden of proof, I hold an open mind about that. In all other cases, the burden of proving malice lies, with great respect to the noble Lord, Lord Foot, upon the person alleging the malice, and, as I say, that seems to have worked quite well in the past in this sort of context. However, I have an open mind upon that question and that could be put right upon Report. I should be only too happy to have discussions. There are certain technical implications which I should like to consider further and which could readily be put right on Report. I recognise the force of what has been said about the Amendment.

10.24 p.m.

On Question, Whether the said Amendment (No. 34) shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 25.

Auckland, L. Drumalbyn, L. Mountevans, L.
Balerno, L. Effingham, E. Mowbray and Stourton, L.
Ballantrae, L. Emmet of Amberley, B. Northchurch, B.
Berkeley, B. Evans of Hungershall, L. Orr-Ewing, L.
Brougham and Vaux, L. Ferner, L. Rankeillour, L.
Cathcart, E. Gage, V. Salisbury, M.
Chelwood, L. Goodman, L. Sandford, L.
Colville of Culross, V. Gowrie, E. Sandys, L.
Cranbrook, E. Hartwell, L. Selkirk, E.
Cullen of Ashbourne, L. Hornsby-Smith, B. Selsdon, L.
De L'Isle, V. Inglewood, L. Sharpies, B.
Denham, L. Lauderdale, E. Simon of Glaisdale, L.
Dilhorne, V. [Teller.] Macleod of Borve, B. Snow, L.
Diplock, L. [Teller.] Mersey, V. Wigg, L.
Birk, B. Hale, L. Melchett, L. [Teller.]
Boyle of Handsworth, L. Harris of Greenwich, L. Platt, L.
Brockway, L. Janner, L. Ruthven of Freeland, Ly.
Castle, L. Leicester, Bp. Segal, L.
Davies of Leek, L. Listowel, E. Shepherd, L. (L. Privy Seal)
Elwyn-Jones, L. (L. Chancellor.) Llewelyn-Davies of Hastoe, B. Stamp, L.
Foot, L. [Teller.] Lloyd of Kilgerran, L. Strabolgi, L.
Gardiner, L. Longford, E. Wigoder, L.
Greenwood of Rossendale, L.

10.32 p.m.


I beg to move Amendment No. 34G. This is consequential on the acceptance by the Committee of Amendment No. 26 on July 19.

Amendment moved— Page 11, line 40, after ("action") insert ("where the matter complained of includes any expression of opinion").—(The Lord Chancellor.)

On Question, Amendment agreed to.


This Amendment is exactly comparable to that on which there has been a Division. I beg to move Amendment No. 35.

Amendment moved—

Page 11. line 41, leave out from ("above") to end of line 57 and insert: ("be entitled for the purpose of establishing the defence of fair comment, to rely upon the truth of any facts alleged or referred to in the matter complained of if the publication of such matter is proved to have been made with malice.")—(Lord Diplock.)

On Question, Amendment agreed to.


I beg to move Amendment No. 35A. This is also consequential on an earlier Amendment.

Amendment moved— Page 11, line 42, leave out from ("any") to ("complained") and insert ("fact imputed by the matter").—(The Lord Chancellor.)

On Question, Amendment agreed to.


This Amendment is also consequential, in similar circumstances. I beg to move Amendment No. 35B.

Amendment moved— Page 11, line 45, leave out from ("the") to ("was") in line 46 and insert ("fact in question").—(The Lord Chancellor.)

On Question, Amendment agreed to.


I beg to move Amendment No. 35C. This is a consequential Amendment.

Amendment moved Page 11, line 48, leave out ("words were") and insert ("matter complained of was")—(The Lord Chancellor.)

On Question, Amendment agreed to.

10.35 p.m.

THE LORD CHANCELLOR moved Amendment No. 36A: Page 12, line 6, leave out ("words") and insert ("matter")

The noble and learned Lord said: This is a consequential drafting Amendment. I beg to move.

On Question, Amendment agreed to.

LORD DIPLOCK moved Amendment No. 37:

Page 12, line 7, leave out from ("proceedings") to end of line 12, and insert: ("if it is proved that the publication was not contemporaneous with the proceedings and either

  1. (a) was made with malice; or
  2. (b) contained a reference to evidence which was ruled to be inadmissable in the proceedings by virtue of Section 4 above").

The noble and learned Lord said: This is the third of the batch which we dealt with in Amendment No. 34. I beg to move.

On Question, Amendment agreed to.

LORD DIPLOCK moved Amendment No. 38: Page 12, line 26, leave out subsection (9).

The noble and learned Lord said: This is consequential upon the Amendments to the earlier clauses. I beg to move.

On Question, Amendment agreed to.

VISCOUNT DILHORNE moved Amendment No. 39: Page 12, line 40, leave out subsection (10).

The noble and learned Viscount said: This is also, consequential upon the Amendment which has been carried. It contains the definition of "document", etc., which I do not think is necessary now. I beg to move.

On Question, Amendment agreed to.

On Question, Whether Clause 8, as amended, shall stand part of the Bill?


May I make one comment on the Question, That this clause stand part? I put down Amendment No. 41 as a long stop in case the Amendments that we have just voted on were not accepted. I do not think that I really agree with the noble Lord, Lord Goodman, that a criminal sanction is right, but I was determined that we should not have the wrong civil law sanction. That is the explanation for it. It is not a violent recantation on my part.


I am not sure that an intolerable criminal sanction would not have been a far worse public mischief?


I do not propose to cast a vote about this clause because, in my respectful submission to your Lordships, it has been vastly improved by the Amendment which your Lordships have just made. However, I should like to deal with what we are still doing, which is to vote on a clause relating to defamation in advance of the recommendations of a committee which has been set up to examine the law of defamation. I cannot help feeling that to take that course is a very severe setback to the cause of law reform, which has been so prominent and which has been so successfully achieved under recent successive Administrations.

It seems to me, although this clause is improved, and although a Member of your Lordships' House who is a member of the Faulks Committee seemed content with the clause as amended, that it is contrary to every interest of law reform based on the setting up of departmental committees, calling on busy men to sacrifice their time and bring their mature judgments to a problem, that one should not have the patience to await what they have to say. Already in the interim report which they have issued they have shown that they desire to have their views weighed on this matter. Although, as I say, I do not propose to vote against this Motion, I would ask the noble and learned Lord who is in charge of the Bill to consider very seriously what we are doing to set back the cause of law reform in a sphere where reform is urgently called for. If we insult committees by pre-empting their judgments on the eve of judgment, it will, as my noble and learned friend Lord Dilhorne said, with the experience he has had on the Woolsack, be extremely difficult to get people to serve and sacrifice their time and leisure and give their counsel on matters on which we desire to call on their judgment.

The other matter which I should like to mention is the drafting of this clause, and indeed the drafting of the rest of the Bill. It has been greatly simplified by the Amendment that has been carried, but, nevertheless, it remains true that this clause, like the rest of the Bill, is what the noble Lord, Lord Hunt, in supporting the Second Reading, called "a layman's nightmare". The noble Lord, Lord Goodman, referred to it as "lamentable drafting". It seems to me that we are doing a very ill service, not only to the cause of law reform generally, but to the simple drafting of Statutes—I know that the noble and learned Lord has that very much at heart, because he gave evidence, as I did, to the Renton Committee—in putting forward a measure as complicated as this, the object of which could be achieved with far greater simplicity. So that although I am not now prepared to cast a vote against this clause, I demur to the pre-emption of the views of the Faulks Committee. I have grave reservavations about the drafting of the clause.

The views of the Society of Authors and of the Publishers' Association have not really been taken into account. They have made quite plain that they are very anxious about this clause. They are not unenlightened men, they are not un-influential men. If we, who have the cause of penal reform and law reform at heart, alienate so articulate a section of the community, we shall do this cause considerable damage. I can well conceive, with the noble and learned Lord in his Lady Chatterley mood, the roll of institutions that he would enunciate who have expressed their anxiety about this clause; the famous names from letters and law who have submitted a view. Certainly I would never attempt to emulate him, but I know that before parting from this clause your Lordships will wish to consider the damage that has been done to law reform generally by the way the Faulks Committe has been treated, the blow that has been struck at improvement by way of simplieation of drafting, and the damage that has been done to penal reform by alienating an influential and enlightened part of the population.

Clause 8, as amended, agreed to.

10.46 p.m.

VISCOUNT DILHORNE had given notice of his intention to move:

After Clause 8 insert the following new clause—

Unlawful discrimination as to employment

(". It shall be unlawful for an employer or any person concerned with the employment of others to discriminate against any other person

  1. (a) if that other person is seeking employment by refusing or deliberately omitting to employ him on work of any description which is available; or
  2. (b) if that other person is employed on work of any description, by dismissing him in circumstances in which other persons employed on work of that description by the employer are not or would not be dismissed,
on account of a conviction for an offence (other than a sexual offence) which is spent by virtue of this Act.")

The noble and learned Viscount said: May I just say a word about this new clause which is in my name. I have never been entirely satisfied that the law of defamation is the proper safeguard for those who may be damaged on account of a spent conviction. The noble and learned Lord, Lord Gardiner, drew attention—I think it was on the Second Reading of the Bill, the first time round—to the fact that a man might not get employment, or might get the sack on account of a spent conviction, and that was wrong; and also to the question of insurance policies being invalidated, and I thought that positive clauses would improve this Bill.

I have since had the advantage of seeing a number of Government officials and seeing some Amendments which it is proposed to table at the Report stage. I am grateful to the noble and learned Lord the Lord Chancellor for enabling me to have consultations with them. I should like to express my thanks to them for their efforts, and to congratulate them on what must have been a very difficult drafting task which they have accomplished in a very short space of time, with a clarity of drafting which I think is a model for this Bill and many others, and I hope the House will agree with me when they see it. It deals with it far better than I dealt with it in my two clauses, which were drafted in a considerable hurry and were defective in some respect, I readily admit. Having had the advantage of seeing these new drafts which have already been tabled, there is no need for me to move either of these new clauses. But I wanted to take this opportunity of expressing my thanks to those concerned for relieving me of that burden, and I believe that those Amendments will make a very significant improvement to the Bill.


May I express my gratitude on behalf of my own Department for those generous words which have fallen from the noble and learned Lord? If I may say so he, from long experience, knows the quality of those who are assisting Lord Chancellors, and they will be very grateful. I should like to say to the noble and learned Lord, Lord Simon of Glaisdale, that we have paid very careful regard to the representations that were made, and in my Department we have struggled to try to deal, within the context of the Bill, with some of the important public issues that were raised. The matter has developed in a somewhat piecemeal way with various Departments expressing a view upon one aspect or another, and I should not like the chastisement of the draftsmen to pass without some attempt at any rate to explain that it is this piecemeal process which has made the drafting so very difficult. I should not like the draftsmen to feel affronted or hurt by what has been said in your Lordships' House.


I wonder whether I may just add that when we were debating Clause 7 (4) and (5), at the suggestion of the noble and learned Lord the Lord Chancellor, that discussion was postponed until we had discussed these new clauses. May I add to the mutual self-congratulations which are going round, by saying that what I understand are likely to be the Government Amendments will solve my problems, too.

Clause 9 [Unauthorised disclosure of spent convictions]:

10.50 p.m.

LORD DIPLOCK moved Amendment No. 44. Page 13, line 26, leave out ("tending to show") and insert ("imputing")

The noble and learned Lord said: This is a drafting Amendment, I think corresponding to one made at an earlier stage. I beg to move.

On Question, Amendment agreed to.

VISCOUNT COLVILLE OF CULROSS moved Amendment No. 45: Page 13, line 28, after ("rehabilitated") insert ("living").

The noble Viscount said: There has been a certain amount of dismay about Clause 9. It comes mainly from the justices' clerks, and from the people in local government who keep records. Perhaps I can come back to this in a moment. But one thing of entirely my own invention is a point I made on Second Reading, that whereas under Clause 8 one cannot get into trouble under the law of defamation when the person concerned is dead, because one cannot bring actions for defamation, as I understand it, when the victim is dead—this is very difficult anyway—there is no such curb on prosecutions being made under Clause 9. As I understand it, this would mean, in practice that people who were doing genuine historical research would be greatly inhibited because no one who has public records would be prepared to allow them to be looked at because he may be prosecuted.

I had a very interesting letter from the friend of the noble and learned Lord, Lord Gardiner, who was doing the job while the noble and learned Lord, Lord Gardiner, was in Northern Ireland, whereby I was told that this was perfectly all right because the Director of Public Prosecutions had to consent to any prosecution under Clause 9(8). So everybody could be perfectly reassured that the Director of Public Prosecutions would never allow anyone to be prosecuted who disclosed information from records about people who were dead. But I have never known it to be a tenet of legislation that that on the basis of a single letter passing between two private individuals, one a Member of this House, all those for ever after in charge of public records may be perfectly assured that they are completely safe from prosecution. I would suggest to the Committee we ought to make this plain in the Bill.

If the Director of Public Prosecutions does not propose to consent to any prosecution for disclosure of information about a dead person, there is no harm, I hope, in putting it in. It may come into a category where we have already by Amendment accepted that it is harmless and adds nothing to the Bill. But these are Amendments which the noble and learned Lord, Lord Gardiner is prepared to accept, and I should have thought it would have set at rest the minds of many who keep public records, who get genuine requests from people writing books or other historical material, and who would like to be able to disclose this material without it doing any harm any more. They will not know whether they can safely do so, because under the terms of the Bill as it stands they might be prosecuted. Therefore, as we are all at one that it is not intended that they should be prosecuted, let us write it into the Bill. I beg to move.


I suggest that the reason for this Amendment is unnecessary. On the other hand, I cannot see that it can do any real harm, and therefore I advise the Committee to accept the Amendment.

On Question, Amendment agreed to.

On Question, Whether Clause 9 shall stand part of the Bill?


I wonder whether the noble Lord, Lord Harris of Greenwich, or possibly the noble and learned Lord the Lord Chancellor, could help on this question of the official keepers of records. I did pass to the noble Lord, Lord Harris, the other day a couple of letters from worried people in the magistrates' clerks' world and also the local authority world, who wanted, I am perfectly certain, to stick to the rules the Bill is laying down, but who found that the concept of what was "in the course of their official duties" —to quote from subsection (2)—was a rather vague concept. They wanted to be able to make proper disclosure where this was intended. They also wanted to be able to avoid being taken (I do not know which bench you would take a justices clerk in front of) and prosecuted if they made a mistake.

We do not know at this stage what orders are to be made under Clause 5, nor what they all are; we have an indication of what some may be. I think there is a certain amount of reassurance which is due. What has happened is that people have woken up to the implications of this Bill rather late in its Parliamentary progress. The reasons for this I know not. They have now extreme worries. They are people of the highest repute and integrity. They deserve reassurance and, with the notice I have given, I think there is a reasonable chance that one or other of the Government spokesmen will be able to give it. One of these days they will be able to read it. Meanwhile, I could perhaps go so far as to convey the gist of what was said to those who have corresponded with me. Any help will be gratefully received.


The noble Viscount passed to me the letters he has referred to, and indeed the Home Office have received representations from justices' clerks and from a number of other individuals and organisations.

In the hope, in which I join the noble Viscount, that Hansard will appear in some year or decade later, let me for that happy moment say a few reassuring things. First, the clause has in fact been deliberately drawn in such terms so as not to catch the routine and necessary exchange of information by public officials, be they policemen, court officials, social workers and so on. That is the object and I hope we have succeeded; certainly that was our intention. Secondly, it has been drafted to ensure that those who act in good faith in disclosing information about spent convictions in the course of their official duties do not risk prosecution. And the third is the longstop to which the noble Viscount has referred; namely, that only the Director may bring proceedings. This will, I think, ensure that public officials can be reassured that there is no serious risk of frivolous prosecutions being brought against them. I hope they will be reassured by those few words.


May I ask a question on subsection (5) of this clause, as to what sort of situations it is designed for?


I know some of them because I used to answer on this subject before. One of the things was that people compiling social inquiry reports were allowed to put in details of people's convictions even if they were spent; that includes, for instance, mental health and things of that sort. We were also going to allow compilation of lists by the Department of Education and Science of people convicted of offences against children and not to be employed in schools. I can- not remember any others, but they were things of that sort, where there would obviously have to be exemption from disclosure provisions, and some of which we had identified when the Bill was given its first run through this House.

Clause 9, as amended, agreed to.

Remaining clauses agreed to.

On Question, Whether the Title shall stand part of the Bill?


May I make one very rapid and final apology? I think that it is unlikely that I shall be here on Friday on account of a professional engagement. Will noble Lords who have suffered my interventions in silence and resignation please forgive me. No discourtesy is intended, but it is unlikely that I shall be able to get back.

On Question, Title agreed to.

House resumed: Bill reported, with the Amendments.