§ 3.40 p.m.
§ The Lord Chancellor
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, that the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD AIREDALE in the Chair.]
§ Clause 1 agreed to.
§ Clause 2 [Limitation of scope of strict liability]:
Lord Gardiner moved Amendment No. 1:
Page 1, line 13, leave out ("or any section of the public").
§ The noble and learned Lord said: On the Second Reading of the Bill, the noble and learned Lord the Lord Chancellor said that the onus should be on anybody who wanted to differ from the valuable report of the Phillimore Committee. What has disturbed a certain number of people is that there are a large number of points on which the Government have amended the proposals, or have not adopted the proposals, of the Phillimore Committee, and that in each case it seems that the amendment is made to have the effect of increasing the sphere of contempt of court and, therefore, of decreasing the freedom of speech of the individual.
On Clause 2, the Phillimore Committee took some trouble to arrive unanimously at a definition of the word "publication", which is as follows:
'..'includes any speech, writing, broadcast or other communica-into in whatever form, which is addressed to the public at large",
and to this the Government have added the words "or any section of the public". The first question which I should like to ask the noble and learned Lord
the Lord Chancellor is whether he agrees that the effect, if not the intention, of this is, obviously, to increase the area of contempt of court and thereby to reduce to that extent freedom of speech.
§ The reason he gave on the Second Reading of the Bill for making this amendment to Phillimore was that there might be a publication to a section of the public which ought to be covered and would not be properly covered by the words "addressed to the public at large". An example that he gave was a small local paper. With great respect, I should have thought it was obvious that the Phillimore Committee's wording covered this. No doubt, a local paper will be mainly bought by those living in the locality; but it is in no way limited to them and it is, I think, clear from paragraph 80 of the report itself that this was intended to be covered and, I should have thought, clearly would have been covered.
§ Secondly, I have to submit that the adding of the words "or any section of the public" serves only to make matters more difficult for everyone. There is no definition of a "section of the public". What is a "section of the public"? Does that include two people in a bedroom? Are they a "section of the public"? Does there have to be some specific number? Obviously, a meeting of a branch of a trade union is not a publication for the public at large, but is that not a section of the public?
§ There being no definition, and if it is agreed that the right principle is that we are to start by assuming that Phillimore was right, I submit that no sufficient grounds have been given in this case for departing from Phillimore and for adding these words, which, in themselves, would create very considerable difficulty for editors and journalists. They know what is a publication for the public at large, but what they are to understand by the words "section of the public", I do not know. I beg to move.
§ 3.45 p.m.
§ Lord Simon of Glaisdale
These words "section of the public" have given difficulty in two branches of the law. One was in regard to race relations, where there was considerable litigation about the meaning of the words "section of the public", although in fact your Lordships' House sitting judicially interpreted them, as was subsequently disclosed, in accordance with the construction and assurance that was given by the Lord Chancellor when conducting through your Lordships' House the Race Relations Bill. The other sphere where there has been a good deal of discussion is in the law of charity. But I think—and I hope that the noble and learned Lord the Lord Chancellor will confirm this—that the use of these words is now reasonably clear.
The words "the public" or "section of the public" are used in contradistinction to persons aggregated in their private capacities. I am bound to say that, although there has been litigation about these words in the two branches of the law that I mentioned, their meaning is now reasonably clear and it seems to me that the leaving out of these words will narrow the ambit of the Bill and withdraw protection from a number of publications which might well get it.
For example, a house magazine might well be a publication to a section of the public. It might, of 181 course, fall on the other side of the line and be a section of persons aggregated in their private capacities. But it would be open to argument in that class of specialised publication that the words "publication to a section of the public" were not really wide enough to protect what it is obviously the intention of this Bill to protect. Therefore, I myself would view with great misgiving the passing of this amendment as being restrictive of the ambit of the Bill.
§ The Lord Advocate (Lord Mackay of Clashfern)
The purpose of this amendment, as the noble and learned Lord, Lord Gardiner, has pointed out, is to align the definition of "publication" in this clause with the Phillimore Committee's recommendation as they have expressed it. The present clause as drafted follows the words of the Phillimore recommendation closely, except that the words now sought to be deleted by the amendment proposed have been added. The situation, as we see it, is that the Phillimore recommendation at paragraph 216(8) is merely a summary of the discussion at paragraph 80 of the report. It was not, of course, drafted as an Act of Parliament by parliamentary counsel and, as such, it was not intended to provide a comprehensive legislative formula.
In our view, the formula in Clause 2(1) reflects more accurately the substance of Phillimore's views as set out when one reads paragraph 80 in full. Phillimore made it clear that words addressed to a public meeting, or any function or entertainment to which the public is invited, should be covered. The phrase "or any section of the public" has been included in Clause 2(1) to cover these and other cases where less than the whole public is involved.
In our view, the amendment which the noble and learned Lord has proposed would have the undesirable effect of excluding such cases from the operation of the clause and, at the least, would put these matters in doubt. As the noble and learned Lord, Lord Simon of Glaisdale, has said, the phrase here in question has been the subject of litigation, particularly in the fields that have been referred to. I specially refer to the use of the phrase,in relation to the race relations legislationAs the noble and learned Lord, Lord Simon of Glaisdale said, it has been held in this House, sitting judicially, that members of a club who have been genuinely selected on a personal basis are not a section of the public. These words were words of limitation, "public" being used in contrast to "private" so that there was no public element when a personally selected group of people met in private premises. This distinction between public and private situations is the sort of distinction which Phillimore in the substance of paragraph 80 was seeking to achieve.
We would respectifully agree with the noble and learned Lord, Lord Simon of Glaisdale, that it would be wrong to restrict the operation of this clause by accepting this particular amendment and that we should attract the benefit of the litigation and the discussion of this phrase in your Lordships' House, sitting judicially, and apply it here. I therefore invite your Lordships not to give effect to this proposal.
§ Lord Gardiner
Drafting, of course, is always susceptible to argument. The noble and learned Lord 182 did not, I think, answer the question whether it was not the object to enlarge the area of contempt beyond Phillimore. It is clear that that must be the effect of the addition of the words "or any section of the public". This is not the kind of point I would wish to press to a Division, but I ask the Government to think again about it before the Report stage of the Bill.
It must be remembered that this is dealing only with publications of strict liability. That is to say, you may have meant no harm at all; you certainly may not have intended to commit anything which could conceivably be a criminal offence. But this only applies in cases of strict liability where you may find yourself in prison, however honest your intentions were. In paragraph 80 the committee said:The arguments for drawing the distinction between publications and other conduct lead us to the view that the strict test should be applied only to publications which are intended to be distributed or addressed to the public at large and not those intended only for private circulation. Publication can take many forms. It may be printed, broadcast on radio or television, or a film, a tape-recording or a dramatic performance. We would also include words addressed to a public meeting or any function or entertainment to which the public is invited, as well as to private meetings or functions to which the press is invited, but not an address to a private meeting to which the press is not invited. If in the latter case a person present at the meeting communicated what was said to the press, he and the publisher should be liable to contempt proceedings, but the speaker should only be liable if his conduct were shown to be intended to cause prejudice as described in the previous chapter. In the remainder of this chapter, our concern is only with publications as described in this paragraph".The decision of the committee to end at the words "public at large" was unanimous. I still think that the departure which has been made by the Government from it, clearly intended to extend beyond that which the committee intended, is unhappy. With those observations I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 3.55 p.m.
Lord Elwyn Jones moved Amendment No. 2:
Page 1, line 16, after ("a") insert ("substantial").
§ The noble and learned Lord said: I raised this suggestion at Second Reading. We acknowledge the importance of the change in the strict liability rule which the Bill accomplishes by adding "seriously" before "impeded", as it does in line 18. However, we think that the risk itself, that the course of justice in the proceedings in question should be a serious one, ought to be underlined in this new statutory provision. It is not enough that the risk should be merely trivial, or minimal, or marginal. It should be substantial. The word that I suggested at Second Reading was "serious". It was the noble Lord, Lord Wigoder, who initially put down the word "substantial", and on second thoughts I felt that that was a preferable word. Incidentally, the noble Lord asked me to apologise for not being here to move the amendment, and I undertook to do so in his place.
§ I am supported in this amendment by the views of the International Press Institute that some addition to the mere noun "risk" should be made. They suggested the adjectives "serious" and "immediate", but I venture to think that "substantial" meets the point and that in legislation it is preferable not to use two adjectives where one will do. I beg to move.183
§ The Lord Chancellor
I am happy to say that in this case, whatever our views about the merits of the amendment as an amendment, there is no difference of opinion about policy between the noble and learned Lord and myself. I took the view on Second Reading, and I still do, that we are talking here about the number of angels that exist upon the point of a needle and that it is quite impossible to consider a case in which a risk of substantial prejudice would not be itself a substantial risk. I stick to that. However, because of what both the noble Lord, Lord Wigoder, who I am glad to see in his place, despite his apology, and the noble and learned Lord have said, I took the trouble to consult the very able retired draftsman with whom we have been operating in this Bill, and he does stick to the original text of the Bill. He points out, I think with justice, that not only does this, if I may echo the argument of the noble and learned Lord, Lord Gardiner, on the previous amendment, stick to the ipsissima verba of the Phillimore report but that those ipsissima verba were very carefully chosen. If one looks at paragraph 113 of their report we read:… the law should aim at preventing serious prejudice, not serious risks. It has been emphasised many times by the courts"—that is, independently of the terms of the Bill—that trivial cases ought not to be brought before the courts, and the triviality relates to the degree of prejudice. On the other hand, the creation of a risk of serious prejudice should always be prohibited unless the risk is so slight as to fall within the ordinary de minimis rule".Having, in deference to the noble and learned Lord and the noble Lord, Lord Wigoder, reconsidered the matter with the draftsman, I adhere to my previous opinion that on balance this does not improve the Bill and that Phillimore was right, for the reason I have quoted. I do not think myself at the end of the day that it will make very much difference one way or the other, but the balance of my judgment is as before and I suggest to the noble and learned Lord that, as I have reconsidered the matter and taken professional advice upon it, it might be wiser to say that I was right.
§ Lord Wigoder
May I apologise to the Committee for not being present when this amendment was called. I had arranged for a more than adequate junior to cover me! I have listened to what the noble and learned Lord the Lord Chancellor has said. I am in the slight difficulty that I am not aware of exactly to what extent the noble and learned Lord, Lord Elwyn-Jones, developed the argument when he moved the amendment. Therefore may I merely make three observations: first, that the amendment appears, to some extent at least, to be in line with Phillimore, paragraph 112, where that report certainly quotes with approval the divisional court's test in the Sunday Times case, namely, whether the words complained of create a serious risk.
A serious risk is something rather different from a remote and fanciful risk. It has been put to me, for example, that if a local radio station in Doncaster cared to comment upon proceedings that were taking place before a magistrates' court in the Isle of Wight it might be said that that was creating a risk of serious prejudice. That would not be the same as creating a 184 serious risk of serious prejudice, because of the extreme improbability that any of the magistrates who sit in the Isle of Wight would happen to be holidaying in Doncaster at the time of the particular broadcast. It is therefore of some importance to the media that the risk should not be a slight, remote or fanciful one but should be a very real one, if contempt is to run.
The only other observation I would make (and it may be that the noble and learned Lord the Lord Chancellor has considered this) is that the amendment is perhaps more consistent than the Government draft with the European Court's decision in the Sunday Times thalidomide case, which, as I understand it, indicated that there should be interference with freedom of expression only if it were absolutely certain—I think those were the words used—that the authority of the judiciary might be tampered with or impaired: and the words "absolutely certain" clearly imply a substantial, serious risk rather than a risk without any adjectival qualification at all.
Equally perhaps the amendment might be more consistent with Article 10 of the European Convention on Human Rights, where again it is said that restrictions on freedom of expression should exist only so far as they are necessary to maintain the authority of the judiciary. I should have thought that it would be necessary to maintain the authority of the judiciary only as against a serious risk rather than a remote or fanciful one. So it may be that the noble and learned Lord the Lord Chancellor, after listening to the rest of this debate, will still be good enough further to reconsider the matter before the next stage of the Bill.
§ Lord Elwyn-Jones
In addressing the Committee, I was in the difficulty of not knowing whether the noble Lord was appearing, or at what moment of time, in my endeavour to be his junior! He has added two further matters for consideration. I do not think that this is an issue on which he may be disposed to divide the Committee; I do not intend to do so myself. I will withdraw the amendment but I think there is substance in what we have said.
In my brief observations I acknowledged the important change achieved in Clause 2(2) of the Bill by requiring that the proceedings in question will be seriously impeded or prejudiced, and I think that what has happened is that "serious "came in there, whereas previously it came in with "risk". I think the form of the provision is better as it is than as it was, but that it could be still better; and perhaps even further consideration might be given to the point by the noble and learned Lord the Lord Chancellor. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Clause 2 agreed to.
§ Clause 3 [Defence of innocent publication or distribution]:
§ 4.5 p.m.
§ Lord Wigoder moved Amendment No. 3:
Page 2, line 8, at end insert—
("( ) A person is not guilty of contempt of court under the strict liability rule as the publisher of any matter to which that rule applies if at the time of publication he believes upon reasonable grounds that the relevant proceedings, although active as defined in Schedule 1, are not imminent.").
§ The noble Lord said: This is really a probing amendment. It deals with the question of the time from which strict liability is to run, which is covered in Schedule 1 to the Bill, and it deals with it from the point of view of one who, like myself, accepts in general terms the starting point which is envisaged in the schedule of being the time of arrest or the issue of a warrant. I appreciate that there is a difference of opinion, which we will come to when we deal with Schedule 1, as to whether that is the right starting point. If it be the right starting point I am only anxious to probe a little the thinking of the Government on the issue as to what the position of the press would be where a warrant has in fact been issued but, for one reason or another, it is perfectly apparent to everybody that the proceedings are not imminent. The obvious case to quote is that of Lord Lucan. That is not in any sense an exceptional case. There are a very large number of cases in which warrants are issued for people who it is known have fled the jurisdiction and in which it would be unreasonable to bar the Press indefinitely from comment simply on the basis that a warrant has been issued.
§ In my somewhat amateur attempt at drafting this amendment, my purpose is simply to provide that where a publisher can show that although the relevant proceedings are active in the sense that a warrant has been issued, nevertheless he has reasonable grounds for believing that the proceedings are not imminent. The strict liability rule therefore would not apply and there would be a statutory protection for the press in those circumstances. I beg to move.
§ Lord Mishcon
Many of us have been confounded before (and therefore looked at Phillimore with relief) by the use of the word "imminent". One notices that the amendment, although very frankly spoken to, as one would expect, by the noble Lord, Lord Wigoder, as being a probing amendment, repeats the word "imminent" and thus would introduce again a measure of complete uncertainty in regard to a provision in this Bill if that amendment were accepted.
I go further, having in mind certain contemporary events, in resisting, so far as I am concerned, any such amendment. I believe that many of your Lordships who felt that it was right that the freedom of the press and of the media should not be curtailed and indeed therefore wanted to encourage the principles behind this Bill, have also felt somewhat disillusioned over the past weeks and wondered whether your enthusiasm ought not to be a little curbed. I do not intend to mention names because I should be defeating the very object that these words of mine were intended to further, namely, the course of justice.
Your Lordships will know of an event which occurred during the past few weeks, when somebody was arrested and charged with certain offences of a most serious nature, and those of us who watched independent television and who had any ideas of the principles of justice were horrified, when we read the news items recording these events, to see not only congratulatory messages on that arrest being passed by one police force to another but furthermore to see upon the screen articles which presumably had been taken from a certain vehicle connected with the accused, to show some sort of connection with the crimes with which 186 he was charged. There were interviews with employers, there were interviews with neighbours and I say frankly that, as a humble lawyer, I began to tremble as to where indeed any release of the law of contempt might lead us all, in the interests of justice which all of us hold so dear and which indeed extend to anybody until a jury has found him guilty.
So I felt that instead of minimising the question of the date of strict liability, it may be that we ought to consider very carefully every word and every stage when there drops upon the media the necessity to be careful about what is reported. So I do not view with any favour, especially with that lesson in mind, the excuse that might be given that proceedings which are relevant are not imminent. One does not know whether any charges of contempt are going to be proffered in this case and in regard to these matters or whether some vague defence might be put forward such as, "Well, we understood from the solicitor who appeared for the prosecution that the committal proceedings might not take place for some time". Does that given an excuse for saying that the relevant proceedings are not imminent? No; I think with that lesson in our minds—and it was a very salutary one—one ought to look at this amendment, which was only intended to be a probing one, with the greatest possible care. So far as I am concerned, it is an amendment to which I would not wish to lend my support.
§ Lord Wigoder
If I may respectfully say so, I clearly have not probed with any skill, because the amendment has not got the slightest reference to any of the observations of the noble Lord, Lord Mishcon. He is referring to a case in which there was an arrest, and once there is an arrest or a warrant issued the amendment I have put down has absolutely no relevance unless and until the media can show that thereafter they had reasonable grounds for believing that proceedings were no longer imminent. This deals entirely with the sort of situation where somebody is being looked for by the police, a warrant has been issued and that person has disappeared. All I am saying is that in those circumstances it might be wrong to impose an indefinite gag upon any comment by the press.
§ The Lord Chancellor
Since the noble Lord, Lord Wigoder, described this as a probing amendment perhaps it might be convenient if I took part at the other end of the probe. I do not think that this would improve the Bill, and primarily for the first of the two reasons, or the related reasons, given by the noble Lord, Lord Mishcon. Phillimore, which I am endeavouring to legislate here, came down against the imminence test; he came down against it very strongly, very hard and very firmly. The reason was that the expression "imminence" was too vague and uncertain. I do think, therefore, that what the noble Lord, Lord Mishcon, says—which, if he will forgive me, I do not particularly want to comment upon, for reasons which have nothing to do with the imminence of any proceedings—is particularly irrelevant, because the fact that we have just listened to those two speeches indicates that Phillimore was right in describing the imminence test as too vague and too uncertain.
187 Although this is introduced by way of defence, with a burden of proof on the defendant, I still think Phillimore was right to get out of the imminence test and introduce the test of activity of the proceedings as defined in the schedule. I therefore would ask the noble Lord, Lord Wigoder, to be satisfied with this answer to the probe which he has made, and to reflect that the publisher is adequately protected under Clause 3, which endeavours to follow Phillimore, if he can establish on the balance of probability that he does not know and has no reason to suspect that the relevant proceedings are active, having taken reasonable care, and that the distributor is protected if he does not know, equally having taken reasonable care, that it contains a matter in regard to which there is a risk that it would impede and prejudice seriously the administration of justice in a particular case, and had no reason to suspect that it was likely to do so.
There are other objections which, if we were pursuing this discussion at any length, I would wish to make, and there are also defects in the amendment from the technical point of view, which I do not pursue because I have taken exception to the policy underlying it. I hope that, with that explanation, the noble Lord, Lord Wigoder, will find it possible to withdraw this particular amendment.
§ Lord Elwyn-Jones
May I add a word about my own experience as Attorney General, when this aspect of the law of contempt was the one about which I received most representation from editors in Fleet Street that the concept of imminence is too vague, that they did not know where it began. The pleas I received then were many and continuous that imminence would not do as a test.
§ Lord Wigoder
I again must apologise, because clearly not only is the drafting defective, not only should I obviously not have used the word "imminence"—and I am fully aware of all the disadvantages of that word even in a probing amendment—but I fear I still have not made quite clear the one simple point upon which I would ask for some assurance from the noble and learned Lord the Lord Chancellor. It is merely this. As at present defined in this Bill, is the Lucan case a case which is still active? If it is still active, what defence have the press got if they wish to comment on it?
§ The Lord Chancellor
I endeavoured to deal with this at length in my Second Reading speech. Of course it is active because the conditions are found, but I cannot conceive of anything that an editor might wish to say about it or which he is at all likely to say which would either satisfy the test in Clause 2 or would not get the benefit of the defence in Clause 3. The fact that the man is almost certain—well, I must not speculate. I think that the Lucan case is a gigantic red herring here in the context of this particular Bill, and I explained why in my Second Reading speech.
§ Lord Wigoder
If it were a solitary red herring, of course, I would not pursue the matter. It seems to me that there is perhaps a point here in which the 188 press have a viewpoint which is worthy of consideration. I entirely accept that the amendment as at present drafted is not the correct way to deal with it, and perhaps in those circumstances I might be allowed to withdraw it and consider whether to come back to the matter later.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4 [Contemporary reports of proceedings]:
§ [Amendments Nos. 4 and 5 not moved.]
§ 4.19 p.m.
Lord Elwyn-Jones moved Amendment No. 6:
Page 2, line 24, leave out first ("the") and insert ("a substantial").
§ The noble and learned Lord said: In my submission this amendment would appear to achieve consistency with the language of Clause 2, and line 17, which we have already been discussing. What is required to make the strict liability rule applicable is that the proceedings in question will be seriously impeded or prejudiced. We are similarly, in Clause 4(2), dealing with the risk of prejudice to the administration of justice in proceedings, and it would therefore seem to be at least consistent and, indeed, desirable that the risk should be designated as substantial. I beg to move.
§ The Lord Chancellor
I seem to have received notice of this amendment somewhat late. If I may, I should like to consider the matter. There may be something in it because it corresponds with substantial prejudice in Clause 2. I think that if the noble and learned Lord would withdraw it at the present stage, perhaps we can correspond about it or he could put it down again at the Report stage. I think that there is something to be said for it because there is an element of consistency involved, and it might seem inconsistent if I were to resist it, at any rate without further thought.
§ Lord Elwyn-Jones
Most certainly, in the light of the assurance of the noble and learned Lord the Lord Chancellor, I am prepared to withdraw the amendment. I apologise that it was put down late, but such is the nature of the pressure of work and the facilities provided for us in this great House that inevitably these things happen, if I may say so, as regards legislation introduced also by the Government. In those circumstances—
§ Lord Foot
Before the noble and learned Lord withdraws the amendment I should like to make one suggestion for the consideration of the noble and learned Lord when he is looking at the matter again. Might not this subsection be made to conform with what appears in Clause 2? Might it not be made better to conform if, instead of inserting the words "a substantial" before the word "risk", we were to put in after the words "risk of" the words "serious prejudice"? That would make it comply and conform with the words in the earlier clause.
§ The Lord Chancellor
I am much obliged to the noble Lord, Lord Foot. At first sight I think that he is right.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 7 not moved.]
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ 4.24 p.m.
§ Lord Gardiner
I should like to say a few words on the Question, Whether Clause 4(2) should stand part of the Bill; and I do so, of course, only for the purpose of asking the Government to take some observations into account before the next stage of the Bill. Subsection (2) is that which gives the courts a power to order the postponement of the report of proceedings and that, of course, is entirely in accordance with the recommendation of the Phillimore Committee.
The question which I desire to raise is one with which the Phillimore Committee did not deal at all, and that is the question whether the circumstances in which a court could so order should not be defined or at least guidelines provided. I expect that the noble and learned Lord the Lord Chancellor and others have received a memorandum on the Bill from the Law Society. They have put forward this point as follows. They say:… although it may be necessary to give the judges a power to order that publication of any report of proceedings should be postponed, we think a much more precise definition of the circumstances in which such a power can be exercised should be provided.One of the main sources of difficulty in relation to contempt law at present … is as to whether courts can order publication of reports of proceedings to be delayed … The issue arises often when an accused in one case is likely to be prosecuted on other charges when the case is completed. There is an extensive conflict of judicial views on whether the press should be able to report the first proceedings before the second are complete or not. For example, Mr. Justice Lawton (as he then was) said in R. v. Kray: 'I can see no reason why a newspaper should not report what happens in court even though there may be other charges pending. The reporting of trials which take place in open court is an important part of the function of a newspaper and it would not be in the public interest, in my judgment, if newspapers desisted from reporting trials, and from reporting verdicts and sentences in those trials, merely because there was some indictment still to be dealt with … I have enough confidence in my fellow countrymen to think that they have got newspapers sized up … and they are capable in normal circumstances of looking at a matter fairly and without prejudice even though they have to disregard what they may have read in a newspaper.'".The Law Society goes on to say:As against this, in R. v. Border Television Limited, ex-parte the Attorney-General and R. v. The Newcastle Chronical and Journal Ltd. ex-parte the Attorney-General … the Lord Chief Justice said that every reporter should know about one simple form of contempt, the publication of material 'relating to offences committed by or alleged against an accused other than those charged'.Our view is therefore that unless the situations in which the judges can exercise their powers to order reports of legal proceedings to be deferred are defined in detail the conclusion which now so often arises will continue ".That, therefore, is the point which I would respectfully ask the Government to consider before we come to the next stage of the Bill although, of course, if the noble and learned Lord the Lord Chancellor, would care to make any observations on it now I should be extremely happy. However, it is a difficult position for newspapers when the point is one which has received conflicting decisions in the courts.
§ The Lord Chancellor
Obviously, as the noble and learned Lord has spoken, I shall consider this matter before the Report stage. But my first feeling about it is as follows. The object of the Bill is to make things clear for the potential editor and there is all the difference in the world, therefore, between the test of activation, which is in Schedule 1, or the test of what constitutes contempt, which is in Clause 2, and the case which arises where the court has, in fact, forbidden, or ordered the postponement of, reports, because there the matter is plain, subject to innocent publication, because of the existence of the order. Therefore, a quite different set of considerations arises in relation to a case where there is a direct order of the court from that which there arises, where there is no direct order of the court and therefore the editor may be in some doubt. The matter was, I think, referred to in paragraph 133 or paragraph 134 of the Phillimore Report, and I think that this is the conclusion to which that committee came.
The power to order postponement is a quite old one and has been exercised over more than 100 years. I do not think that the noble and learned Lord was quite right in saying that it may be that the case where other charges may be pending against the same defendant is the only type of case, or even the typical type of case, where an order of this kind is made. I think that the first occasion—and this is a matter of rather peculiar legal history—when the postponement of publication was directed was as long ago as the Cato Street conspiracy, which was really quite a long time ago! I think that the reason it was there ordered was precisely the kind of reason which might occur today: they prosecuted one conspirator in advance of the others. It was thought that the publication of the report relating to the one conspirator would prejudice the trial of the others when it came to pass.
I think that another case, which of course was more recent than that, was the well-known case of Poulson, when I believe another order was made for postponement because a case was then pending but had not yet been brought into court against Poulson together with a man called Pottinger. I am not sure that the Kray brothers was not a third. I do not think that this is a case where I shall be likely to alter my opinion about the clause but, considering the eminence of the source from which the observations have come, I shall certainly put it back in order that I may take advice about it.
§ Clause 4 agreed to.
§ Clause 5 [Discussion of public affairs]:
§ 4.31 p.m.
Lord Mishcon moved Amendment No. 8:
Page 3, line 1, leave out (" in good faith ").
The noble Lord said: In the Marshalled List your Lordships will have noticed an amendment which was not in fact moved but which related to Clause 4, and to which my noble friend Lord Gifford attached his name. That was an attempted amendment of Clause 4 which, as your Lordships know, deals with the question of contemporary reports of proceedings, and the amendment asked for the omission of the words "and in good faith". Those words are to be found in the Phillimore Report as a recommendation and,
indeed, the Phillimore Committee takes the trouble to say why the words "good faith" are recommended by it. At page 60 of the report, at about line 6, it says:
The requirement of good faith removes the defence recommended above from any person who publishes a report maliciously and with the deliberate intention of causing prejudice".
§ Your Lordships may well think that there is very good reason for importing the element of good faith into the offence which is covered by Clause 4 of this Bill, which deals with the reports of legal proceedings. However, when one turns to the clause with which this amendment deals—namely, Clause 5—one sees that it relates, not to a report of criminal proceedings or any other proceedings, but to a discussion of public affairs. Again, this recommendation follows Phillimore. But this time Phillimore does not use the words "in good faith".
§ One will have noticed the great care with which—and those of us who knew him remember him with such respect—the learned judge guided the committee with such precise language, not only in the wording of the report, but in the wording of the recommendations. Therefore, it is worthy of note that, as I say, in this recommendation there are no words such as "in good faith". In this connection one can well see why it would seem to be useless—indeed, almost irrelevant—to include those words, if, indeed, one could not go further and say that to some extent they would defeat the whole purpose of the clause.
Perhaps, very briefly, I can refer to what is this defence. It is that:
A publication made as or as part of a discussion in good faith"—
those are the words now included—
of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion ".
We are dealing with a public discussion, a matter of general interest, and to have a proper defence the defendant would have to show that there was no risk of impediment or prejudice to a particular legal proceedings, or, if there was such, it was merely incidental to the discussion. To impose upon the defendant in that case—and Phillimore must well have had this in mind because of the wording of the recommendation—that in addition he has to show that he acted in good faith, is surely not only, as I have said, unnecessary, but introduces into this sort of situation—unlike Clause 4—a complete unreality as to how one manages to show that there was, in fact, good faith in any such discussion of a public matter. Therefore, I am merely recommending that Phillimore be followed—and, of course, Clause 4 of the Bill should be supported—with the omission from this clause of the words "in good faith".
§ Lord Gifford
First, briefly, I should like to apologise to the Committee for not being present to move amendments which were down in my name, and I should like to thank my noble and learned friend Lord Gardiner, for moving one of them. I certainly do not intend to abuse my position by making the speech that I would have made on Amendment No. 4. 192 In support of the amendment which my noble friend Lord Mishcon has moved, perhaps I may add this: Surely we do not want circumstances where courts trying cases of contempt are in the position of having to scrutinise the motives of those who have been taking part in discussions of public affairs. It is everyone's right to take part in discussions of public affairs, and, if they do so, let their liability for contempt of court be judged on the objective test which the clause, with this amendment carried, would allow, so that the courts can fairly see whether or not the risk of prejudice was incidental to the discussion. However, all sorts of unpopular organisations could be in jeopardy, and the courts themselves could be in some danger of appearing to be questioning the motives of those who discuss politics, if the requirement of good faith has to stand as part of this clause.
§ The Lord Chancellor
The noble Lord, Lord Gifford, need not have apologised to the Committee. We are always glad to see practising members of the Bar take part in our debates. We all know that they have difficulties which are not shared by Ministers. Therefore, he need not think that his courtesy in apologising was necessary either to me or to those who know how difficult life can be for practising members of the Bar who want to play a part in parliamentary life. However, the noble Lord is at least consistent in that he wanted to omit the words "good faith" from the report clause as well as from this defence.
With great respect to the noble Lord, Lord Mishcon, I do not think that he is in quite such a good position from the point of view of consistency as the noble Lord, Lord Gifford; because although the noble Lord, Lord Mishcon, is technically quite right—as he would be, being so careful about everything—in saying that the words "good faith" do not occur in Phillimore, I rather think that he is wrong in saying that our present draft does not accurately reflect what Phillimore said. In paragraph 216(14) of the Phillimore Report we have the report of legal proceedings defence where the words "good faith" occur totidem verbis.
In sub-paragraph (15), which deals with the special defence, with which we are now concerned in Clause 5, Phillimore says:It should be a defence to an allegation of contempt to show that a publication formed part of a legitimate discussion of matters of general public interest".That is what we have sought to do in Clause 5, but noble Lords will not have failed to note that we have used "in good faith" in place of the word "legitimate" I think we were right to interpret "legitimate" in that sense. One has only to ask oneself whether one really wants an illegitimate public discussion to take place to see where we would be getting. One starts with a publication which, to satisfy the requirements of the Bill at all, renders a thing liable to the law of contempt in strict liability. One recognises that whatever is published there is a risk of seriously prejudicing the course and administration of justice and a fair trial which, after all, is the fundamental right under the European Convention which the law of contempt exists to protect. As I say, one has only to ask oneself whether it should be a defence to have an illegitimate public discussion to realise that we would be getting 193 into very strange water indeed; if we were to provide a defence to say that illegitimate public discussion of matters of general interest (notwithstanding that there was a risk of seriously impeding the course of justice) should be allowed as a defence.
What is the difference between legitimate discussion and discussion in good faith? Personally I do not see any difference, but with great respect to the noble Lord, Lord Mishcon, one has only to ask oneself again: supposing one wished to put it plainly and said that one wished to provide a defence for a public discussion of matters of public general interest published in bad faith. Should that be a defence? That must be the consequence of the amendment if it was passed. It would therefore be undesirable in our view to allow an accused person or litigant seriously to be prejudiced in his defence in a criminal case by a discussion which was not genuine, not in good faith, but orchestrated ad hoc for the purpose of causing embarrassment to the litigant or accused person.
It so happens that what is legitimate in the form of a discussion about judicial proceedings has been the subject of judicial decision and observation. Lord Atkin, in a well known Opinion—I do not have the exact citation with me—said this about the law of contempt and public discussion:But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary light of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely"—I emphasise "genuinely" and would say that it means nothing else in the context but bona fide—exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune".I should have thought that our draft correctly reflected both the trend of the wiser element injudicial opinion—and nobody doubts that there were periods of time when perhaps the judges took too authoritarian a view of their contempt jurisdiction—when we had the words "in good faith" in this defence because what we are discussing of course is a defence available to an editor who finds himself in the position of having published a discussion of which there is a risk of seriously impeding or interfering with the course of justice, and we think he should have that defence only if he is in good faith. I cannot put it more plainly than that and I do not think we are being unfair to him.
As always, I admire the noble and learned Lord the Lord Chancellor for acknowledging parentage of even extraordinary arguments like legitimate and illegitimate discussions. Perhaps he will allow me to say with the utmost respect that he should realise the comparative difficulties of an advocate (nobody knows of those difficulties and nobody has taken advantage of them with greater skill in the past than the noble and learned Lord Chancellor) in endeavouring not to show that a discussion was legitimate but that the discussion for which he was responsible, and where there was only incidentally a risk in regard to current proceedings, was in good faith. I would regard it as 194 a comparatively straightforward task, following the language of Phillimore, if he were merely to have to show that it was a legitimate discussion permitted by our law—perfectly in order, not grossly defamatory or anything of that kind—but when you import not into the dictum of a very learned judge in describing somebody but into a clause of a Bill which deals with criminal offences the necessity to translate into that discussion the element of good faith, I say, though I get no advantage out of a repetition of the argument, that you are creating a difficulty and a vagueness.
I should say that this is the view not of this humble member of your Lordships' Committee but of learned bodies associated with the press and indeed associated with the law. I therefore hope that, if nothing else, the noble and learned Lord will agree to have a further thought about this matter, especially as the draftsman here has chosen not to use the word that was used by Phillimore but to use a different expression. If the noble and learned Lord will be good enough to consider the matter further, I shall, with equal grace, withdraw the amendment.
Lord Paget of Northampton
Can the noble and learned Lord the Lord Chancellor assist me by giving an illustration of a discussion of public affairs or other matters of general public interest which is not in good faith? I have been racking my imagination trying to think of one.
§ The Lord Chancellor
I should have thought that would not be very difficult. One could discuss almost anything in such a way as to cast obloquy on an actor on the scene and I think it would be easy to invent a set of circumstances in which one entered into a discussion of public affairs designed solely to take away the good character of almost any one of your Lordships.
I do not want to make this a last-ditch fight and I will certainly accede to the request of the noble Lord, Lord Mischon, to discuss the matter again. On the other hand, I do not want to pretend to be wholly impartial about this; I shall not say I have a closed mind, but I have a mind which at any rate is a long way towards being made up. With that qualification, I certainly accede to the noble Lord's request.
§ Lord Mishcon
I said that provided the noble and learned Lord would in good faith think again about the matter I would ask leave to withdraw the amendment. That I do.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.
§ 4.50 p.m.
§ Lord Gardiner moved Amendment No. 9:
§ After Clause 5, insert the following new clause:
§ ("Influence and pressure
§ . Bringing influence or pressure to bear upon a party to proceedings shall not be held to be a contempt unless it amounts to intimidation or unlawful threats to his person, property or reputation.")
The noble and learned Lord said: The 19th recommendation of the Phillimore Committee is as follows:
It should also be provided by statute that bringing influence or pressure to bear upon a party to proceedings shall not be held
to be a contempt unless it amounts to intimidation or unlawful threats to his person, property or reputation ".
The committee made that recommendation because it was anxious to ensure that our new law, whatever it was, should not conflict with the decision of the European Court in the thalidomide case. The recommendation has not been accepted by the Government, and in the view of many unless it is accepted and incorporated in the Bill, it will be gravely open to doubt whether or not our law is now in accordance with the law of the European Court.
The Law Society itself has raised the point as well in the following way. It says:
As to the claim that enactment of the Bill will ensure that United Kingdom law on contempt conforms with the requirements of the European Convention on human rights following the Sunday Times case, this is in our view questionable. As will be recalled, this case arose as a result of articles in the Sunday Times urging Distillers … manufacturers of the drug thalidomide to pay generous compensation to children injured as a result of the use by their mothers of the drug while pregnant, even though it was doubtful whether Distillers were under any legal liability … Distillers complained that a final article which the Sunday Times proposed to publish would constitute a contempt in that it would put them (Distillers) under undue pressure not to exercise their legal rights and they sought an injunction to prevent the publication. In the action which ensued, an injunction against publication was granted at first instance, by the Divisional Court, removed by the Court of Appeal and reimposed by the House of Lords.
The Phillimore Committee were able to consider the House of Lords' decision (Attorney-General v. Times Newspapers Ltd.). They took the view that the law as laid down in that case imposed unnecessary restrictions and they made the following recommendation:
'It should also be provided by statute that bringing influence or pressure to bear upon a party to proceedings shall not be held to be a contempt unless it amounts to intimidation or unlawful threats to his person, property or reputation'.
Following the House of Lords decision, the Sunday Times then appealed to the European Commission of Human Rights, by whom the case was referred to the European Court of Human Rights requesting it to give a decision as to whether or not the facts which the Commission had found disclosed a breach by the United Kingdom of its obligations under Article 10 either alone or in conjunction with Article 14 or 18 of the European Human Rights Convention.
The court concluded that the restrictions imposed by United Kingdom law did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression. The reasons for the injunction were therefore insufficient and the restraint was not proportionate to the legitimate aims pursued by the House of Lords and was not necessary in a democratic society for maintaining the authority of the judiciary. There had accordingly been a violation of Article 10.
The Phillimore recommendation has been omitted from the Bill, but it seems clear that had it been included, the United Kingdom law would have complied with the Convention as interpreted by the Human Rights Court. Without it, it is difficult to see what change the Bill makes which is sufficient to achieve this result.
It has been suggested that the adoption of the proposed definition of contempt in relation to publications as regards strict liability, that is, that proceedings will be seriously impeded, impaired, or prejudiced, would provide sufficient protection for the publisher of the comment of the type contained in the Sunday Times article, and that the additional Phillimore proposal is therefore not needed.
However, it does not seem that this claim is justifiable. This proposed test of contempt is not in fact new. It is based on that adopted by the Divisional Court in the Sunday Times case and seems to have been accepted by both the Court of Appeal and the House of Lords. It seems therefore that the decision of the House of Lords was made in the light of general acceptance of the test laid down by Clause 2(2) of the Bill. If this is so, statutory adoption of the test would make no difference to the law as it
applies to the kind of situation that arose in the Sunday Times case. In fact the reason why the Government has decided to reject the Phillimore recommendation is made clear in the discussion paper Contempt of Court, where it is said:
'Accordingly it may be contended that the Phillimore recommendation (i.e. on influencing litigants to continue, abandon or compromise proceedings) would tip the balance too far against the interests of justice and that a distinction can and should be drawn between private influence and pressure on one hand and public obloquy on the other'.
Whether or not one accepts the view that the Phillimore recommendation would tip the balance too far may be open to argument, but we suggest that the failure to include a provision implementing the Phillimore recommendation casts doubt on the claim that the Bill will ensure that United Kingdom law conforms to the requirements of the European Human Rights Convention. The Government should therefore proceed to explain how they justify this claim ".
I should have thought that we should all agree that in the existing situation it is very desirable that United Kingdom law in this field should conform to that of the European Convention and the decision of the European Court in the thalidomide case. That I understand to be the Government's view.
§ Now of course lawyers may always differ on various points, but if there is any doubt about this at all, then I should have thought that it would be wise to follow the view expressed by the Law Society and many others by incorporating in the Bill that which Phillimore expressly recommended should be included in the Bill. After all, this is pure Phillimore. Here is an express recommendation as to exactly what should be included in legislation, and it is done for the purpose of ensuring that our law does conform to that of the decision of the European Court. In those circumstances I strongly express the hope that on this point the Government will accept that this is a valid argument and that the recommendation of the Phillimore Committee should be incorporated in the Bill. I beg to move.
§ Lord Mishcon
I ventured to raise this matter and this omission from Phillimore with some amount of diffidence during the Second Reading debate, and I then tried to interpret to the House, I hope without the exaggerated learned language that lawyers are accustomed to use, what I humbly thought to be the position following upon the three courts that had dealt with the Sunday Times thalidomide case—the Divisional Court, the Court of Appeal, and the House of Lords—and how that was dealt with in the European Court of Human Rights.
The noble and learned Lord the Lord Chancellor with his usual courtesy and gentleness, intervened in the speech that I ventured to make and said that I had not correctly interpreted, as he saw it, quite how the House of Lords made their decision and what the European Court had said. I always take it for granted when the noble and learned Lord the Lord Chancellor intervenes in any speech of mine that it is not only necessary to correct me but that the correction is absolutely right, and so I went away in all humility duly chastened.
I hope that I shall not be guilty of getting somebody else into trouble, but I noticed with some amusement in a publication that reached me ony this morning, and which is issued by a body called the Outer Circle Policy Unit, that these dreadful words occur in the script: 197Lord Hailsham was absolutely wrong in this interpretation of the ECHR's judgment. The U.K. Government had always urged that the protection of the reputation and rights of others called for a balance between Article 6 and Article 10".I now omit some sentences only because I do not want to take up the time of your Lordships' Committee. The article then goes on to say:In an exchange with Lord Mishcon (Hansard p. 675) Lord Hailsham also said that 'the so-called prejudgment criterion which we get rid of in this Bill' was the criterion adopted by the House of Lords as distinct from other courts, was the one attacked by the Phillimore Committee's report and was the only live issue before Strasbourg. He implied that it was unnecessary to provide, as recommended by Phillimore and supported by Lord Mishcon"—I regard myself as being in very high company in that quotation—that pressure upon a party to proceedings should not be a contempt unless it amounts to intimidation or unlawful threats In fact"—says this journal—the pressure on Distillers was very much a live issue before the European Court ".It was not my purpose (except, I must confess, almost out of amusement) to quote this paragraph. I am not saying that by way of any disrespect to this publication, which is a most useful one; but what I really wanted to emphasise was that there must be a little bit of doubt about the position, and the laymen in your Lordships' Committee could appreciate that if someone responsible takes up the argument which occurred during the Second Reading debate on this Bill.
If I could put it in the most simple terms—and I hope, therefore, not inaccurately—the divisional court granted an injunction in this case; the Court of Appeal in fact dealt with the judgment of the divisional court; the House of Lords in turn dealt with the judgment of the Court of Appeal and reveresd it, and then the matter came before the European Court. The only relevant thing I want to point out to your Lordships is this: there was an injunction that was granted, and the unjunction that was granted by the divisional court was an injunction granted on grounds which are strictly relevant to the Phillimore recommendation and to this amendment, because it was granted on the grounds that the divisional court felt that there was an interference with the course of justice by virtue of the pressure which was then being placed upon Distillers.
Now there had been introduced into this case other criteria, such as the prejudgment issue, but not the question of pressure. But the European Court—and this is the point that I want, I hope with some simplicity and clarity, to make—dealt with the question of whether there was a contravention of Article 10 of the Convention on Human Rights by virtue of what the courts in this country had said about pressure on litigants; and, indeed, in some of the judgments in the House of Lords comment had been made upon that matter. The inference from the European Court's judgment is that there would be a non-observance of the Convention on Human Rights if what the divisional court had decided to do when it granted the injunction, thinking that there was pressure upon the litigant, was allowed to remain as being the law.
It is a fact that the judgment of the divisional court has been quoted since in support of applications for 198 injunctions upon precisely those grounds, so it still remains a matter which is (if I may use that phrase) argued and tossed before the courts when one is dealing with questions of contempt which originate in the idea of pressure being brought upon litigants. So it is a question of doubt as to whether, if you do not bring this recommendation of Phillimore into the Bill, you are in fact complying with the European Convention on Human Rights and whether you are not walking once again into the difficulties of the matter being challenged before the European Court.
Therefore, if one merely puts it upon the basis of dubiety, and not on the basis of whether the noble and learned Lord the Lord Chancellor was right in his analysis or was, most unusually, incorrect, if there is a doubt, as there must be, is it not right to make it quite sure in our law that, when dealing with the same sort of cases as that dealt with in the divisional court in the Sunday Times case, our law on contempt is clear, and that the pressure which is deemed to be contempt is the one that is clearly defined in a Bill which is meant to deal with our law of contempt? It is therefore in that spirit that I would wish humbly to agree with this amendment.
§ 5.5 p.m.
§ Lord Simon of Glaisdale
Naturally, I do not propose to discuss the thalidomide case at all, because I was a member of the Appellate Committee of your Lordships' House in that appeal; but as a former matrimonial judge I do venture to express some misgivings about this amendment. On many occasions I have known what I regarded as improper pressure being brought on a spouse, particularly a wife, not to exercise her rights before the court, not least where children were concerned. The pressure was far short of intimidation or unlawful threats. I share the view of the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Mishcon, that it is important that, now that we are codifying the law, we should not be doing anything which is contrary to the European Convention, which is indeed part of English law on ultimate analysis.
I need hardly say, I hope, that I have the highest respect for the Phillimore Report. Its chairman was a very old friend of mine, and, indeed, he was himself formerly a matrimonial judge. Nevertheless, in those circumstances, if the Government say that this amendment is necessary to bring our law into line with the European Convention, so be it. I should regret it in the sphere that I have mentioned. If it is not in contravention, I venture to urge on the Government some reserve in accepting it.
§ Lord Scarman
Like my noble and learned friend Lord Simon of Glaisdale, I have misgivings about this amendment. I am not convinced by the noble Lord, Lord Mishcon, even with the support of the Outer Circle Policy Unit, that there is anything in this Bill without this amendment which is inconsistent with the European Convention. I think it is sometimes a little easy in this Chamber to forget the way the European Court goes about its business. It respects national laws of the contracting states; and, faced as it will be with a code which makes it clear that contempt in this context can take place only where there is 199 a serious risk of prejudice, I am quite sure the European Court will not be quick to say that pressure which, even though it does not come up to the standard of this amendment, is nevertheless pressure which has caused serious prejudice, is something which can be ignored.
Like my noble and learned friend Lord Simon, I have also been a Family Division judge and I know all about the insidious power of pressure which cannot come anywhere near the language of this amendment. I have also conducted for two and a half years an inquiry into certain disturbances in Northern Ireland, and I spent days, indeed months of my life, considering all sorts and forms of intimidation which did not of course amount to intimidation as a lawyer would use that word, but yet was immensely effective upon the minds and hearts of the people at whom it was directed. The European Court would not be so foolish as to say that there must be the standard set in this amendment before it can recognise pressures which ought never to have been exercised but which have nevertheless threatened the course of justice. I would say again that I have very grave misgivings about this amendment. I think it is unnecessary, and I think it may weaken the protection of litigants.
§ 5.10 p.m.
§ The Lord Chancellor
I am deeply grateful to all noble Lords who have taken part in this interesting discussion, and particularly to my two noble and learned friends on the Cross-Benches for what they have said; because what they have said reflects largely what has been in my mind from the outset of this debate about this particular aspect of the matter. I am not so much concerned (for reasons which I will give) about what the Strasbourg Court is thought, wrongly I think, to have decided—and I shall say why I think the conception about it is wrong—as about the demerits of this amendment itself, even though it happens to correspond with something in the Phillimore Report—and I will come to that.
I will tell you why what in my opinion was decided by the thalidomide case in a moment; and I speak with trepidation in the presence of those who sat on the Appellate Committee on that occasion. One starts with the fact that we have to give effect not only to Article 10, which preoccupied the mind of the noble Lord, Lord Mishcon, but with Article 6 of the European Convention; and, with the greatest respect to the proponents of this amendment, I believe it to be contrary to the European Convention itself. What does Article 6 of the European Convention say? One has to start by reading it because it is of far greater importance to look at what Article 6 says before you look at the amendment and before you look at the judgment in the thalidomide case, either at Strasbourg or the House of Lords.In the determination of his civil rights and obligations or of any criminal charge against it everyone"—yes, even the most unpopular man in the world, in Northern Ireland, in Scotland, in England and Wales, everyone—is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".200 That is his right. How does the amendment stand up against that right? It does not stand up at all, notwithstanding the eminence of those who put it forward. Everyone is entitled to his day in court. That is what that article says—and a court of law, not a court of public opinion or a court of demonstration or a court of pressure or a court of insidious suggestion or a court of vilification. He is entitled to go to court to get his rights determined. That is what Article 6 says.
I now turn to what happened in the thalidomide case. I am totally unrepentant, despite the "outer circle". I would far rather take it from the noble Lord, Lord Mishcon, than from anybody else; but I am totally unrepentant despite the "outer circle" and despite the noble Lord, Lord Mishcon; because the fact is that although the divisional court in thalidomide went a great deal too far along the lines with which this amendment is designed to deal, in the House of Lords—and in the Court of Appeal for that matter; but at the moment I am concerned only with the House of Lords—the Sunday Times won its case upon this issue.
This is the basic fact which I do not think either the noble and learned Lord, Lord Gardiner, or the noble Lord, Lord Mishcon, have really faced. They won their case on this issue before the House of Lords. The Sunday Times won its case. The articles got by in the House of Lords; they got by on this issue in the Court of Appeal although not in the divisional court. The House of Lords ruled in favour of all the articles—by a majority in the House of Lords and the Court of Appeal—that a temporary campaign against a party is permissible. And the Sunday Times campaign fell within that description. It was on the prejudgment test that the House of Lords and the Court of Appeal ran foul of Article 10. It was not on the grounds with which this amendment is designed to deal.
§ Lord Mishcon
I do not want to interrupt the noble and learned Lord in his flow, but I wish to point out two things with the utmost deference. The first is that the grounds, surely, that the Appellate Court decided on in regard to the divisional court judgment were that the proceedings were dormant. It was not that any newspaper in any circumstances would be quite entitled to deal with the matter as the Sunday Times had. Secondly, would the noble and learned Lord permit me—he is always so kind and patient—merely to say that the European Court in its judgment at paragraph 65 when dealing with Articles 6 and 10—and I quote from the translation—said:The court is not faced with a choice between two conflicting principles but the principle of free expression that is subject to a number of exceptions which must be narrowly interpreted".They dealt with Articles 6 and 10 and came to that conclusion.
§ The Lord Chancellor
I know they did; and they also said that where necessary—and this is the whole point of the case—Article 6 took precedence over Article 10. They explained, too, what they meant by "necessary". Heaven forbid that I should object to being interrupted in what the noble Lord was courteous enough to refer to as my "flow". I want, if I may, to come back to the actual decision in the thalidomide 201 case because although the noble and learned Lord, Lord Gardiner, argued his case with his customary eloquence and skill in advocacy, as did the noble Lord, Lord Mishcon, the most skilful art of advocacy consists in starting on a false premise and then arriving at an unjustifiable conclusion. It is the premise of the argument upon which they founded their case that is now under attack.
What I was intending to show, first, was that the Sunday Times had won on this point in the House of Lords on a majority. Lord Reid—and may I pause once more to pay my tribute to somebody whom I personally regarded almost as a hero in the judicial world; I think that he was one of the great judges of English law in the 20th century, and I think he was all the greater because he was brought up as a Scots lawyer and his contribution to English law was quite incomparable over 25 years as a Law Lord; and therefore I pay particular attention to what he said. Dealing with the point in question, Lord Reid said:The crucial question on this point is whether it can ever be permissible to urge a party to litigation to forego his legal rights in whole or in part. The Attorney-General argues that it cannot. I think that the divisional Court has accepted that view. In my view, it is permissible as long as it is done in a fair and temperate way and without any oblique motive".Then he went on to one of the published articles and said:It is plainly intended to bring pressure to bear on Distillers. It was likely to attract support from others. It did so. It was unspoken. It said there are times when to insist on the letter of the law is as exposed to criticism as infringement of another's legal rights and clearly implied that that was such a time.If the view maintained by the Attorney-General were right, I could hardly imagine a clearer case of contempt of court. It could be no excuse that the passage which I quoted earlier was combined with a great deal of other totally unobjectionable material. It could not be said that it created no serious risk of causing Distillers to do that which they did not want to do. On the facts submitted to your Lordships in argument. It seems to me to have played a large part in causing Distillers to offer far more money than they had at the time. But I am quite unable to subscribe to the view that it ought never to have been published because it was a contempt of court. I see no offence against public policy and no pollution in the stream of justice by its publications".You could not have a stronger position than that. As it happens, it was supported by the noble and learned Lords, Lord Cross of Chelsea and Lord Morris of Borth-y-Gest, to whose memory I also pay a deserved tribute.
These two Law Lords said—and I think it was the noble and learned Lord, Lord Morris, who was delivering the opinion:I am sure that a layman who reflected on the matter would consider that a rule prohibiting the publication of any statement likely to influence, even though it did not relate to, the issues in the action, was an unwarranted interference with the freedom of expression. Surely, he would say, ought it to depend upon the way in which that influence is exerted. That is I think in fact the legal position. To seek to dissuade the litigant from prosecuting or defending proceedings by threats of unlawful action by an abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose and such like, is no doubt a contempt of court. But if the writer states the facts clearly and accurately and expresses his view in temperate language, the fact that the publication may bring pressure and possibly great pressure to bear on the litigant should not make it contempt of court".I think that those three Law Lords got it right. I think that that is the way to put it. The reason I said 202 that Strasbourg was not concerned with this aspect of the matter and made only one oblique reference to it is precisely that the Sunday Times had won its case upon this aspect of the matter. The Strasbourg court was concerned with the pre-judgment test upon which the Sunday Times lost its case. I think that the noble and learned Lords have got it right. I am encouraged in that view and I hold it the more strongly precisely because of the sort of reason that my noble and learned friends on the Cross-Benches put forward: this amendment would limit contempt unless the publication amounts in itself to intimidation or unlawful threats to persons, property or reputation.
How can you limit it in that way without infringing Article 6 absolutely flagrantly? The noble and learned Lord, Lord Simon of Glaisdale, with his immense experience as president of the Family Division, says: "How do you apply the amendment in cases of matrimonial dispute, in the kind of thing which we know is going on every day?" I must say this in parenthesis: that the main difference between my first term of office as Lord Chancellor and my second term of office is the increasing volume of complaint that is coming from the constituencies, through their Members of Parliament, about the operation of the matrimonial jurisdiction. It is becoming far more important than it was 10 years ago.
I reinforce what the noble and learned Lord, Lord Scarman, says: how can you confine the kind of pressure which you are going to exonerate to intimidation and to threats to the person or property, in the light of the situation that you get in Northern Ireland? Also in the light of the situation which, alas!, you get in certain parts of this country? Think of race relations. In parts of this country there are lots of ways of intimidating people, vilifying them, abusing them or misrepresenting their conduct or nature of their proceedings which do not amount to unlawful threats or intimidation. Mind you, if this amendment were passed it would be the publication itself which had to amount to intimidation, the publication itself which had to amount to unlawful threats to the person or property. A publication which did not in itself do these things but excited others to do it or which had the effect of making other people do it would be immune. Think of the growth of anti-semitism, the sensitiveness of race relations, the trouble about matrimonial affairs and the state of affairs in Northern Ireland, and then look at this amendment. It is true Phillimore was in favour of it.
There is a technical reason why I was very dubious about the amendment. I am going to add it not for good measure because it is a very light measure indeed, but it is a question of policy which I think I was wise to take at the very outset. I want this Bill to get on the statute book. I do not care particularly whether every word that we approved a year ago when we got Government approval for it gets on the statute book, but I want it on the statute book. I deliberately limited it. I excluded the law of civil contempt as far as I could; I excluded the law of deliberate contempt so far as I could and I stuck to the strict liability rule so far as I could.
This amendment is about deliberate action and not about the strict liability rule at all, although I think that if it was inserted at this place in the Bill it probably 203 would be limited to the strict liability rule. I think that the House of Lords got the thalidomide case right on the subject of the pressure brought on parties, and I think that this amendment gets it wrong. I think that if we went to Strasbourg again on the Northern Ireland case, a matrimonial case or a race relations case—and we might be taken there any day of the week for aught I know—we should find that Article 6 was coming into its own; and if we pass this amendment we should be found to break it. That is why, despite the evidence and despite the authority of the noble and learned Lord, Lord Gardiner, and the "outer circle", and the even more eminent authority of Phillimore himself and his colleages, I should not wish to see the Committee pass this particular amendment.
§ Lord Gardiner
This has been a most interesting discussion. Those members of the Committee who are not lawyers may have had experience already of the fact that lawyers, however distinguished, do not always agree. That has been the case in this discussion. It has been a most interesting one. I have been persuaded by the arguments of the noble and learned Lords, the Lord Chancellor and Lord Scarman, that I ought not to press this amendment to a Division. My basic reason for raising the point was that here was an express recommendation of the Phillimore Committee. It had not been carried into a Bill. There was undoubtedly a body of legal thinking which felt that unless this recommendation of the Phillimore Committee was carried into the Bill there was at least a grave danger that we should find ourselves again in breach of the European Convention. The future alone will show whether that is right or not. My feeling had been that if there was a doubt about it, it seemed sensible to accept this recommendation of the Phillimore Committee. But because of the arguments put forward by the noble and learned Lord the Lord Chancellor I do not propose to press this amendment to a Division, and I ask leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 [Savings]:
§ 5.30 p.m.
Lord Mishcon moved Amendment No. 10:
Page 3, line 13, leave out paragraph (c).
§ The noble Lord said: I have in mind very much the words that have just fallen from the noble and learned Lord the Lord Chancellor, in saying, with consummate wisdom, that he intended to limit the area of this Bill in order that a very worthwhile Bill should find its way on to the statute book. I do not wish in anything that I shall say now to impede that very worthy aim. In those circumstances, I hope very much that this amendment will be treated as a probing amendment.
If one looks at Clause 6(c) of the Bill, it will be seen that it reads:
Nothing in the foregoing provisions of this Act—
(c) restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice".
At first sight that would seem to mean that within the compass of this Bill the whole of the contempt procedure, as it has gone on up to now except as provided for in this Bill, should still be the law of this land. The reason I say that I am addressing myself to what I regard as a probing amendment is that it might obscure or for ever consign to the wastepaper basket of history an important recommendation that was made by Phillimore—No. 6 on page 92—which dealt with the other questions of contempt which are not contempt in the course of current proceedings and which Phillimore says ought obviously to be dealt with not by the summary procedure of contempt but in accordance with our criminal law, as it normally stands.
§ That, too, was a recommendation made in the report on offences relating to interference with the course of justice which, if I remember correctly, was contained in the Law Commission's Report No. 96. So it was thought proper to draw attention to this and to wonder whether, on Report stage, the noble and learned Lord the Lord Chancellor might not think it worthwhile to substitute for Clause 6(c) something which in principle goes along those lines so that it does not seem as though entombed within this Bill for ever is the law of contempt and its procedure, as we know it now, and that this recommendation of Phillimore has been lost. If the noble and learned Lord the Lord Chancellor, in his reply, once again would intimate that consideration could be given to this matter—and, as I say, I have raised it in this way on purpose—I personally will be content, although other noble Lords may have other views.
§ Lord Mackay of Clashfern
May I say first of all that the purpose of paragraph (c) in this clause, as we intend it, is to ensure that the restrictions contained in Clauses 2 to 5 on the scope of the strict liability rule will apply only in real cases of strict liability: that is to say, in cases where a publisher has not intended to cause any obstruction or prejudice to the course of justice. So it is not intended, by this clause, to give effect to the Phillimore recommendation to which the noble Lord, Lord Mishcon, referred.
The recommendation they made was that conduct which is intended to pervert the course of justice in particular proceedings should continue to be capable of being dealt with as contempt of court, but only if the proceedings in question have started and not yet been finally settled or concluded. That is in the nature of a purely procedural recommendation. It does not affect the substance of the matter, and the committee certainly did not suggest that conduct deliberately designed to pervert, prejudice or obstruct the course of justice should cease to be a crime merely because the proceedings to which the conduct related had not started. There is no suggestion of that kind. Therefore, it is a purely procedural recommendation that over a certain period proceedings of this kind could be treated as contempt of court; otherwise they should be treated in another way.
We have given this careful consideration, but on balance have thought it was not really pursuing this purely procedural recommendation. As a matter of prosecution practice, it would be extremely rare for proceedings for contempt to be taken, as opposed to criminal proceedings, for the common law offence of perverting or attempting to pervert the course of 205 justice in the case of deliberately caused prejudice or obstruction before proceedings begin. Accordingly, we took the view that this is really a matter which depends upon prosecution practice and the spirit of the recommendation could be given effect to in that sphere without the necessity of legislation to deal with the matter. I hope this sufficiently answers the probe of the noble Lord.
§ Lord Scarman
I think there is a little more to it than that. I myself sympathise with this amendment. It would be extremely valuable to preserve or to establish in our law the recommendation of the Phillimore Committee that the operation of the law of contempt should be confined to circumstances where a swift and summary procedure is necessary.
The trouble about the amendment, as I think the noble Lord, Lord Mishcon, appreciated, is that it is premature. There have been recommendations for reforming the criminal law in this field, and when those recommendations have been studied and fully implemented it may then be possible to amend this section, as I hope it will then be, by deleting paragraph (c). But until we are absolutely sure that the criminal law takes care of all these matters then paragraph (c) has to remain, so that there may be some remedy for what is a very serious offence. It is only for that reason I suggest to your Lordships that this amendment should be withdrawn. It is well intentioned and it is sound in policy, but it is premature.
§ Lord Mishcon
I could not have described my amendment in better or more fitting terms that it has just been described by the noble and learned Lord. The purpose, as I hope I intimated to your Lordships, was to keep the Phillimore recommendation alive. The record of these proceedings will have done that. I am content, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ 5.39 p.m.
Lord Elwyn-Jones moved Amendment No. 11:
After Clause 6, insert the following new clause:
§ ("Consent of Attorney-General.
§ . Proceedings for a contempt of court under the strict liability rule (other than Scottish proceedings) shall not be instituted other than with the consent of the Attorney-General.")
§ The noble and learned Lord said: I beg to move the insertion of this new clause, which proposes to require the consent of the Attorney-General to proceedings for a contempt of court under the strict liability rule. Your Lordships will notice that it is confined to proceedings under the strict liability rule and no other kind of contempt proceedings.
§ The Attorney-General, in practice, gets involved in most contempt of court matters. I remember, when I held the office of Attorney-General, being asked many, many times to take proceedings for contempt against the press. I found the circumstances complained of did not justify that. I only did so myself on one occasion, and I have regretted it, at any rate in some respects, ever since. I got into very hot water indeed. However, I am quite impenitent about the decision—but that is another matter.206
§ The sieve or protection which the consent of the Attorney-General would provide is, I think, important. What is his role? His role is to apply, impartially and independently, his consideration to whether contempt proceedings are necessary for the protection of the public interest. That is the approach which I verily believe inspires the Attorney-General in considering these matters.
§ One's regret—if I may say so as cautiously as I can—is that Government departments do not always seek the advice of the Attorney-General. Some of the mischief, although I mention no cases at all, which has arisen has tended to arise when there has been a failure on the part particularly of Government departments to consult the Attorney-General. I hope that due note will be taken of that cautionary word.
§ But the value of the protection which is given by a requirement of the Attorney-General's consent is recognised in Clause 8 of the very Bill that we are considering, when the new form of contempt with which it deals in relation to the publication of jury deliberations is made subject to the Attorney-General's consent. As I said in my opening observations, this amendment goes no further than to subject to the need for consent the system of strict liability contempt.
§ As the House well knows by now—and has, indeed, known all along—that it is a rule of law whereby conduct may be treated as a contempt of court when it is tending to interfere with the course of justice, in particular in legal proceedings, regardless of intent to do so. It is a strict rule, and a rule which certainly, and rightly, imposes important limitations on the press. But, in my submission, it is a situation where a requirement of the intervention of the Attorney-General would prevent some of the difficulties that have arisen recently—if I may say so, without identifying any cases.
§ In moving the amendment, I am encouraged by the support which it is given by the International Press Institute in what seems to be a well-informed statement. My recollection is that that great judge, Lord Goddard, the late Lord Chief Justice, was rather in favour of a requirement of the Attorney-General's consent in all contempt cases. I am more modest than that. I may be wrong about that, but I do not think I am. Accordingly, I hope that this amendment will receive sympathetic consideration.
§ I appreciate that on Second Reading the noble and learned Lord the Lord Chancellor did not find this an attractive proposition. Indeed, he regarded it almost as a basic human right that the ordinary man in the street should have the facility and opportunity to take proceedings for contempt of court. But I think there is a big element of public interest and public responsibility here. I think that in any real case where proceedings are justified, particularly to protect the reputation and integrity of an individual, wrongly and unfairly harassed, an Attorney-General would proceed anyway. Accordingly, I hope that the view may be taken that the additional protection which this would give to a responsible press should receive the approval of the Government. I beg to move.
§ 5.44 p.m.
§ Lord Wigoder
Might I venture to support what the noble and learned Lord, Lord Elwyn-Jones, has said, 207 particularly if in due course we find that Clause 7, in some form or another, stands part of this Bill? I say that because that will then mean that the strict liability rule in relation to reports and comments on proceedings will extend not merely to the courts as we have always known them but to hundreds, and indeed thousands, of administrative tribunals that are growing in an ever-increasing number. The result of extending the strict liability rule to that very large number of tribunals will inevitably be a temptation to the parties concerned to indulge in proceedings for contempt of court, very often of a vexatious or frivolous nature, and that strengthens the case for some form of sieve in the form of the Attorney-General's consent being necessary.
§ Lord Rawlinson of Ewell
I apologise to your Lordships, and to the noble and learned Lord, Lord Elwyn-Jones, in particular, for not being here when he first began to speak on his amendment. I am doing that which a legislator very often does but ought not to do; that is, joining in an argument not having heard the whole of the argument. I apologise to your Lordships, but particularly to the noble and learned Lord. Again, I am doubtful whether it is good manners for former Attorneys-General to disagree, but I fear that I do disagree in this matter. I remember being very personally embarrassed at the Sunday Times thalidomide case. I could not see why the Distillers should not have brought their own complaints before the court, and I am not altogether sure that to force, in some ways, a public officer—in the form of the Attorney-General—to do this function is totally desirable.
I also believe that giving a right to the individual to apply to the courts, particularly where fair trial may have been said to be prejudiced, is a right that ought to be retained for the individual in certain circumstances. Though I see the great force of the argument which the noble and learned Lord has put with regard to the public interest element—because it is enormously important—I feel that to exclude altogether any other person from having any such right would not be wholly desirable.
Therefore, with diffidence, because I have not heard all the argument of the noble and learned Lord, and also because this is a matter about which people can have differing views—and I can see good arguments on both sides—I must say to your Lordships that I come down against the amendment moved by the noble and learned Lord.
§ Lord Mishcon
I intervene but briefly, only to introduce what is possibly a fresh issue. There is a very precious principle that we have been discussing the whole time on this Bill, and that is the issue of freedom of speech. A prosecution under this Bill—and, obviously, the Bill must provide for the causes for such prosecution, because there are other valuable liberties at stake—is a serious matter and a serious threat for those who are concerned with not only the promulgation and publishing of news but comments upon what is happening.
I should have thought that it was an attractive proposition, while still we have the greatest respect for our judicial officers who, we find, with remarkable 208 ability are able to remove political and subjective considerations from their minds when dealing with matters of this kind—and I am talking about the office of the Attorney-General—to say that the responsibility should rest upon the Attorney-General, whose fiat must run before contempt proceedings are brought.
If I may say so with respect to the noble and learned Lord, Lord Rawlinson, it is an evenly balanced judgment. One can come down in one way or the other. But I should have thought it was, at least, worth a trial run in the Bill to make the fiat of the Attorney-General an essential element before a prosecution is brought. If one finds that there are cases where the public feels that it has been let down because prosecutions have not been brought, or because other considerations, such as politics, have somehow entered into the matter, there is always time afterwards to alter it. But it is very difficult, once you have passed this Bill, suddenly to alter a public right and then introduce the necessity to have the fiat of the Attorney-General.
I repeat that it is an evenly balanced argument, but I should have thought that on balance it was just in favour of the Attorney-General's leave being necessary for proceedings to be brought under the Bill.
§ 5.50 p.m.
§ The Lord Chancellor
I do not belong to the trade union of ex-Attorneys General. My father did. I do not pretend that I have found this absolutely easy to make up my mind about, and I am not even sure that I shall not change it to some degree, but not absolutely, at the Report stage. So I am not yet dying in any ditches. However, I should like to make one or two general observations in support of my noble and learned friend Lord Rawlinson of Ewell.
I was, of course, the victim of contempt proceedings brought, I thought frivolously, by a Mr. Blackburn and thrown out contemptuously by the present Master of the Rolls. I minded it enormously. I had a very good counsel on that occasion. His name was, I think, Sir Peter Rawlinson. He would not let me ask for costs, which I richly deserved. He said it was beneath my dignity, and I took his advice reluctantly. I can see both points of view but, as I say, I do not want at this stage to die in any ditches.
First, it is a general rule of English law that the private individual has a right to bring criminal proceedings, although I believe that is not so in Scots law. We Englishmen value the right to bring criminal proceedings. We do not think, as a general rule, that other Directors of Public Prosecutions or Attorneys-General should stop us from exercising that right. There is a limited number of cases where the Attorney-General's fiat is required. Incest is one. There was a day, when my father was Attorney-General, when he was entitled to charge the fee of one guinea every time he gave his fiat. Those happy days have unfortunately ended. They ended long before any present members of the club joined it.
As I say, there are a number of cases where the Attorney-General's fiat is required, but I rather question whether this ought to be one of them. I can see that a vexatious attempt to introduce contempt into civil litigation might be one of them. If you tried to interfere with a libel proceeding by introducing contempt 209 under the strict liability rule, I can see that there might be said to be a very strong case for the intervention of the Attorney-General at some stage. As a rule, Attorneys-General are not very keen on this class of case. In England, they are not very keen on assuming responsibility for giving a fiat as a condition precedent to criminal proceedings because our jurisprudence is based upon prosecutions by the police. This matter was discussed the other day in the Phillips Committee, so I do not intend to go into it. As I say, Attorneys General are not very keen on assuming this responsibility. Attempts to get the Attorney-General's fiat by private litigants of one sort or another sometimes take a great deal of time when, in the law of contempt, time may be very much of the essence.
What rather moves me against the amendment in this case is the matter of criminal proceedings. Who is the prosecutor in the case of criminal proceedings? It may be the Attorney-General himself, but it is always the Crown. Cases are labelled Regina v. So-and-so. Article 6 of the Human Rights Convention says:In the determination of his civil rights and obligations and of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".What is the noble and learned Lord, Lord Elwyn-Jones, proposing in this amendment? In a criminal case in which the Attorney-General may well be a party—the Director of Public Prosecutions is always a party in homicide cases and otherwise takes on rather serious cases—who is to say whether contempt proceedings can be brought at the instance of the defendant? Why, the Attorney-General, the same man who is prosecuting him. Is that really sense? I should have thought that it is not sense.
It so happens that in connection with a quite different amendment I had brought to me a contempt case which was decided a long time ago—in, I think, 1945. No order was made. It was in connection with appellate proceedings. It was about an article in the News of the World. A man had been indicted on 10 counts of abortion. He was a doctor. He had been convicted and that was why it was in contempt proceedings. Just consider this. The article was headed: "Doctor unmasked. Scotland Yard were after him for 20 years". In the body of the article the following statements were made:The first complaint ever received against him was 20 years ago. Without evidence to justify an arrest, the police were patient. The principal question still puzzling Scotland Yard is the whereabouts of the fortune Doctor "X" is believed to have amassed…".Just imagine that that article had been published when proceedings were active before a jury. Why should it depend upon the Attorney-General whether the accused man should go to the court and say, "I have been seriously prejudiced in my defence by the publication of an article of this kind"?
I do not want to dogmatise about this because I see that there is an argument on both sides. I have not come to any positive conclusion. However, I would ask that we should all go away and think about it because at the moment I would resist this amendment in its present form. I am wondering whether civil litigation might be covered or whether some limitation might be put on the average member of the public, the common informer-type member of the pubic, 210 introducing contempt proceedings, as Mr. Blackburn did against me. I am not at all sure that one would be right to make a universal rule that the Attorney-General's fiat should be required before contempt proceedings were brought, especially in criminal cases. It may be at the instance of the person who has a genuine interest in the fair trial to which he is entitled under Article 6.
I should have to consult my colleagues—obviously my own colleague, the Attorney-General, would have to be consulted—before I could accept an amendment of this kind, and at present my instructions are to resist it. Having said that, it may be a little more difficult than the noble and learned Lord suggested. I am grateful for the kind of argument that my noble and learned friend on my right put before the Committee. Perhaps the right course would be for us all to go away and see whether or not some limitation on the right to institute proceedings would be appropriate and whether this particular amendment is really the right one to pursue.
§ Lord Elwyn-Jones
I am most grateful for that helpful, constructive intervention of the noble and learned Lord the Lord Chancellor. My noble and learned friend Lord Gardiner has drawn my attention to the relevant part of the Phillimore Report. An interesting suggestion is made at the end of paragraph 187:We believe…that the normal practice should be, especially where the alleged contempt is in relation to criminal proceedings"—this is the matter which the noble and learned Lord has been emphasizing—that the attention of the Attorney-General should be drawn to the matter before any private proceedings are begun".If that could be put into statutory form it would be some protection against—I will not use the word "vexatious" but the hopeless proceeding which can cause a great deal of concern and expense to defendants.
The report also draws attention to the fact, which I have not wholly overlooked, that there is the additional safeguard that the leave of the court must be obtained before an application can be made. I am certainly prepared to look again at this matter, particularly in view of the infidelity of my successor as Attorney-General to the unions' rules on solidarity, et cetera, but in the light of what the noble and learned Lord the Lord Chancellor said—somewhat more encouraging, if he will permit me to say so, than his more robust rejection without qualification on Second Reading—I am happy to ask leave to withdraw the amendment, looking forward to further discussion of this important matter of public policy, both for the press and for the ordinary individual.
§ Amendment, by leave, withdrawn.
§ 6.1 p.m.
§ Lord Scarman moved Amendment No. 12:
§ Insert the following new clause:
§ ("Defence of confidentiality of source.
§ .—(1) A person is not guilty of contempt of court merely on the ground that he refuses to disclose the source of the information contained in a publication for which he is responsible unless it be established to the satisfaction of the court that disclosure is necessary in the interests of national security or for the prevention of disorder or crime.211
§ (2) "Publication" has for the purpose of this section the meaning assigned to it in section 2(1) of this Act.")
§ The noble and learned Lord said: My noble and learned friend Lord Salmon I know would have wished to be able to move this amendment. He very much regrets that he cannot be here this evening and has asked me on his behalf to make his apologies.
§ I cannot pretend that this amendment is a modest attempt to improve the drafting or the substance of this Bill, or to give effect to a Phillimore recommendation. It raises a question of legal principle. As to the merits of the proposal, I should like to confine myself to two quotations, one from the noble and learned Lord, Lord Denning, the Master of the Rolls, and the other from my noble and learned friend Lord Salmon. Both quotations are to be found in the recent case of the British Steel Corporation v Granada Television, although I hasten to say that the issue with which this amendment is concerned was not of course directly raised in that case.
§ The noble and learned Master of the Rolls and the noble and learned Lord, Lord Salmon, were both so eloquent in that case upon the principle enshrined in this amendment that I cannot do better than to use them as my weapons of advocacy. Indeed, I would say to the noble and learned Lord the Lord Chancellor that, in addition to one test of advocacy, moving from the false premise to an unjustifiable conclusion and carrying your audience unanimously with you, there is a second test; that is, when you can make use of what other people have said it is so much better than just putting it forward yourself.
I have observed that the noble Lord, Lord Mishcon, made use of the outer policy circle unit—or whatever it was called—but I think I am in slightly better company and it is to that company that I now move. In the course of his judgment in the Granada case, on the point with which this amendment deals, the noble and learned Master of the Rolls put it in this way:
After studying the cases it seems to me that the courts are reaching towards this principle. The public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public, to collect that information and to tell the public of it. In support of this right of access the newspapers should not, in general, be compelled to disclose their sources of information, neither by means of discovery before trial nor by questions or cross-examination at the trial".
A little later in his judgment he puts the principle perfectly clearly, as follows:
It is not so much a privilege or freedom of the newspaper—of the press—with which this principle is concerned, as with the right of the public to be informed upon matters which it is in the public interest that they should know.
My noble and learned friend Lord Salmon put it in this way—and again I quote part of his speech. It was, of course, a dissenting speech when that case reached the House of Lords. He said—and I will quote just the critical words:
The immunity of the press to reveal its sources of information, save in exceptional circumstances, has been accepted by the courts for so long that I consider it is wrong now to sweep this immunity away".
§ I will just insert a comment of my own here. I doubt myself whether that sentence is a correct statement of law, but it certainly is a correct statement of the 212 practice of the courts; that is to say, the courts strain—and in my experience have always strained—to protect a journalist, as they strain to protect a priest or a doctor, from revealing the confidence upon which he has acted. With the journalist it is the sources of his information; with a priest it may be the confidence of the confessional; and with the doctor, of course, it is the confidence of the bedside or of the consulting room. As a matter of practice that observation is certainly correct, even though I doubt, with respect, that one can say that the existing law recognises any such immunity as a matter of law.
Then the noble and learned Lord went on to say:
The press has been deprived of this immunity"—
and, bear in mind, immunity in practice—
only twice, namely in the Clough and Mulholland cases".
Your Lordships will remember that those two cases were decided, I think, in 1962 or 1963. They were the cases of the journalists who had published some material about the Vassal inquiry, conducted by the noble and learned Lord, Lord Radcliffe, and who refused to disclose the sources of their information. Of course, the noble and learned Lord, Lord Radcliffe, and his tribunal acted under the statute of 1921 and certified a question for the High Court. The question was, of course, should they be compelled to disclose the sources of their information? They were put under an obligation to do so; they refused to do so and they went to prison.
The noble and learned Lord, Lord Salmon, went on, after his references to those two cases, in this way:
The exceptional circumstances in each of those cases were that the security of the nation required that the press's source of information must be revealed".
Plainly, this is a situation in which the immunity of the journalist must give way and this amendment takes care of that situation. My noble and learned friend Lord Salmon continued:
I do not say that national security will necessarily always be the only special circumstances, but it is the only one which has been effective until now".
Again, as a matter of practice and experience, I think the noble and learned Lord was right. That is the way in which the courts, in their discretion, have handled this matter.
Then a little further on my noble and learned friend said—and these are important words:
The freedom of the Press depends upon this immunity. Were it to disappear, so would the sources from which its information is obtained, and the public would be deprived of much of the information to which the public of a free nation is entitled".
I cannot better that eloquent description of the case for the principle enshrined in this amendment. It is because I and those of us who put our names to this amendment take that view of the importance of the freedom of the press, particularly in meeting the right of the public to be informed about matters of public interest, that we venture to put this amendment forward in this Bill.
§ It may well be asked—and I will deal with it now because I do not wish to detain your Lordships longer at a later stage—is this Bill an appropriate place in which to introduce this amendment? First of all, we have not fallen into the trap of putting our new clause among those clauses that deal with the strict 213 liability rule. We hope that if passed it will be the first clause under the heading "Other aspects of law and procedure". But, secondly, it may be said that this is a Bill concerned with contempt of court, concerned with the business of implementing Phillimore; here is a matter which is, of course, not covered by any Phillimore recommendation and it has implications that go wider than contempt of court. I accept those observations, but I propose, not to ride roughshod over them but, at any rate in perhaps a quixotic way, to take a tilt at them and move on my way.
§ First of all, although this Bill has the bleak title "Contempt of Court Bill" it is largely, and the first six clauses are I think almost entirely, concerned with the freedom of the press and the rights of the public to be informed. Of course these matters, which are very closely allied with the subject-matter of this amendment, if looked at as matters of positive law have their own importance. They appear, of course, in our extraordinary system, in a Bill dealing with contempt of court, because even today one has to look for one's positive and fundamental rights and freedoms in the interstices of our procedural law and in the powers of the courts. Of course, in a civilised system the whole of this subject would be dealt with as a matter of positive and substantive law; but there, we cannot do that; we have too long a history, and therefore we deal with the rights of the press, the freedom of the press and the rights of the public to be informed in a Bill bleakly entitled "Contempt of Court". Therefore I am not dissuaded by the title of the Bill from believing, and suggesting to your Lordships, that it is appropriate to put this amendment into this Bill.
§ It is not covered by Phillimore; that is true. If, for that reason, it is thought that this amendment should not be allowed, I for one would be very disappointed. I can understand that point of view being taken. It is not the point of view I take because it seems to me that as a matter of substantive law this amendment is indeed a direct cousin, a blood relation of many of the provisions in this Bill.
§ Finally, there is the point about further implicatons. There are implications in this amendment which touch on other branches of the law—I am too old a lawyer to pretend otherwise—the question of privilege, lawyer's privilege, should the priest have privilege, should the doctor, should the journalist. These are questions which are mooted in a way quite independently of the law relating to contempt of court. The journalist in the matter of his sources of information is in a special position. I think the freedom of the press derives from the duty that our society sees imposed upon the press—I use that term, of course, to cover all the media of mass communication—to keep us informed, and to keep us informed about matters that go wrong in high places, in the corridors of power, commercial, political, industrial or social. That being so, it seems utterly wrong, I would suggest, that a journalist should run the risk of contempt of court because he desires to keep a confidence with sources of information which he has published and which it may be of immense public importance should be known.
There is one final point. Your Lordships may take the view that the let-out part of the clause is too narrow; that is to say, that he will be guilty of con
tempt if he refuses to disclose his sources of information only if it be
established to the satisfaction of the court that disclosure is necessary in the interests of national security"—
which happens to be the only one which seems to be effective in ordinary life—
or for the prevention of disorder or crime";
and that takes care of the criminal side. It is because in this particular respect there seems to be a duty upon the press that should not be interfered with, even in the cause of other people's litigation, that it is as confined as that. The two terms are in fact taken, as your Lordships will no doubt appreciate, from Article 10 of the European Convention. I am well aware that this is a difficult amendment to move in the context of this Bill, but I am also deeply conscious, as is my noble and learned friend Lord Salmon, that it is a vitally important amendment and that if it should commend itself on its merits to your Lordships it ought to go into the Bill. I beg to move.
§ 6.18 p.m.
The Lord Bishop of London
I intervene in this debate with considerable hesitation in view of the formidable array of noble and learned Lords who up to this point have for the most part been debating these amendments. But this amendment before the House raises a question in the mind of a layman in the law which I think must be voiced. I presume that this clause would give to journalists a particular and special privilege in the courts; that if they were to be asked what was the source of their information they could refuse to answer the question and their refusal would not be interpreted as contempt of court. If this is the case, am I not right in thinking that it opens a door through which a great many other people, with perfect right and legitimacy, could ask to pass?
There are certainly doctors, certainly welfare workers, who would feel that their information and the sources of their information were just as important as those possessed by journalists, and would claim that they ought to have the same privilege that this amendment would give to journalists. I think also of that great army of people who have arisen in recent years who belong to the various counselling services, such as marriage guidance counsellors, Samaritans and so on, who in the course of their work hear very intimate information and confessions from individuals which they would not in any circumstances reveal but yet which might be very important in the courts. I think especially, of course, of the clergy and the ministers of religion, not only of the Christian religion but of other religious faiths, who do, either under the seal of the confessional or in the confidence of pastoral advice, receive information from individuals which is given to them only on the clear understanding that it will never be revealed to anybody else.
I was not quite sure when listening to the interesting and important speech made by the noble and learned Lord, Lord Scarman, whether he did, in fact, presume that doctors and clergy are privileged in their information. But I have had at least some experience in this matter which is, I think, relevant. Some 10 to 15 years ago we were revising the canon law of the Church of England. The canons of the Church of England 215 were made in the past by the convocations and are now made by the General Synod. They are made under Royal licence and they can only be made and passed so long as they do not conflict in any way with the existing law of the land.
If the Church of England wants to make a canon which we are told conflicts with the law of the land, then we first of all have to change the law of the land before we can make a canon. Those of your Lordships who can recollect when we were involved in the laborious process of revising the whole of the canon law of the Church of England, will remember that we had to bring a lot of Measures before your Lordships' House and another place dealing with matters that one would have thought were of minimal importance but which we were told were technically illegal, and therefore we had to change the law before we could make a canon.
We had a great desire to make a canon imposing upon a priest of the Church of England the absolute discretion as regards any information that he might receive under the seal of the confessional in the course of his professional duties. We were told that we could not make this canon because it was a grey area of the law and lawyers were not entirely of one mind as to whether information given under the seal of the confessional was privileged in the courts. "Very well", we said, "then let us change the law of the land; let us introduce a Measure which will leave it without any doubt that this is privileged and then we can make a canon". But we were warned that if we attempted to do so we would be opening a gate which was so wide that it would be difficult to know where the process would stop. Because if we were to claim absolute legal privilege for the information given in the confessional, then doctors, journalists, welfare workers and all others who received confidential information in the course of their work would feel that they ought to have the same privilege.
So the best that we could do was to retain in our existing canons one clause from the old canons of 1603 which otherwise were repealed. For there is a proviso to Canon 113 which reads as follows:Provided always, That if any man confess his secret and hidden sins to the Minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him; we do not any way bind the said Minister by this our Constitution, but do straitly charge and admonish him, that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy (except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same), under pain of irregularity".That exceptive clause was to deal with the situation in those days when a confession of high treason might be made to a priest and later, possibly under torture, the individual would confess to the crime of high treason and that he had told the priest, and in that case the priest himself would have set his life in jeopardy. But we have retained this clause in our present canons, although we are told by the expert lawyers that this does not entirely clear the situation and that it is doubtful as to whether a priest or a minister of religion could be privileged in the courts.
It is largely an academic problem because I do not think that any judge would be likely to compel a minister of religion to reveal in the witness box information 216 that he had received in the confessional or in the privacy of his pastoral administration. Certainly no priest would be prepared to reveal it and he might have to go to prison. Indeed, there were those other priests at the end of the last cenutry who went to prison for contempt of court because they would not abandon the use of the stole, which Lord Penzance told them that they must abandon under the Public Worship (Regulation) Act. They were a confounded nuisance because nobody could get them out of prison and it was only after a year or so that Mr. Green languished in the Lancaster Prison because he refused to accept the jurisdiction of a secular court that he was released.
I merely introduce this matter because I think it is very doubtful as to whether in those matters in which I am most concerned there is a complete privilege. I think it unwise that we should be legislating for one group of people however great may be their need to establish privilege. Therefore, I think that this is an unwise amendment and that if we want to deal with this kind of privilege then it ought to be examined on a much wider scale and the position of not only clergy but doctors, and all others who receive confidential information by way of their professional duties, should be considered in the light of the privilege which they do or do not possess.
§ 6.28 p.m.
§ The Lord Chancellor
I hope that I may intervene at this stage because I think that there is a real danger that this discussion is getting a little out of hand. This amendment was put down at rather late notice. I must say that I was a little surprised to see the name of my noble and learned friend Lord Scarman on it because, as he knows, I not only respect his judgment but seek his counsel on a number of matters upon which I require to be informed and assisted.
Let us just consider what we are asked to do in this amendment. This is not an amendment which gives any privilege to the newspaper man at all. It does not give or take away any privilege to a priest or a doctor at all, or anybody else for that matter. It gives a privilege in a particular class of case to everybody in the island—all 66 million of us. It says that, even though relevant to a cause or matter, anybody, whether the information was given to him in confidence or not, whether he is a professional or not, is entitled to say to a judge, "You may have ordered me to give this information, but I am not going to do so". And, alone of all the orders of the court, this is to be privileged from the law, not of criminal contempt but of civil contempt.
This Bill is concerned only with criminal contempt, as far as I can understand it; and therefore the judge can say that a piece of information from any member of the public is absolutely vital to the determination of litigation and, because it happens to involve the disclosure of a source of information, it is absolutely privileged and the court can be set at defiance. That is what my noble and learned friend is saying.
Let us take a very simple case, a case of slander or libel. Let us suppose that in the course of my social duties I am asked to give a character reference for someone because I know that he wants employment, and that I write or say to his prospective employer: 217 "The man is a scoundrel"; he sues me for slander or libel, as the case may be; he says "You have prevented me from earning my living because you said to my prospective employer that I am a scoundrel". I plead the qualified privilege; I did it in the ordinary course of a social duty or a common interest. I was entitled to say—and I claimed honestly to believe it to be true—that that was what I believed; I believed him to be a scoundrel.
At the present time the very first question that counsel for the plaintiff would ask me, as a defendant, when I went into the witness box is, "Where did you get that information from?" I would say: "I plead the Scarman amendment; I will not tell you". The judge would say: "But you must tell us. Did you make it up?" I would say: "I will not tell you what was the source of my information". Malice is the one matter at issue in that case, and it is absolutely vital for the administration of justice that in that case the defendant should reveal the source of his information. If he does not have it, one would assume that he was malicious. If he obtained it from a totally disreputable source—a source that he knew must have been disreputable—he must have been malicious. If he made no attempt to check the source, which was doubtful, the plaintiff's counsel would say that he must have been malicious.
However, the Scarman amendment says that he is absolutely privileged; and this applies to anybody, however malicious and however scanty may be his source of information. This is what my noble and learned friend is seriously asking me to include in the Bill in the course of law about criminal contempt. The one case of civil contempt which he is asking me to include in the Bill is a provision entitling every person in the island to refuse to obey the order of a court in a particular class of case. Can that be what my noble and learned friend is asking us to do? I must say that I think it cannot. I must say that I am not being pedantic; I am not being a dull old lawyer; I am not being a protector of the courts when I say that this is part of the law of confidentiality, which may well be in need of reform, but it has no proper part in this Bill. The consequences of putting this into the Bill would not only be inappropriate, but would also be disastrous.
§ 6.36 p.m.
In all my life I never thought that I should be in the position of having to attempt to rebut not only a Lord Chancellor of England but also a right reverend Prelate. Frankly, I am astonished; but with the greatest respect, they both have the wrong end of the stick. I would suggest that the fundamental objection of the noble and learned Lord the Lord Chancellor is that this amendment, as drafted, has flaws. To the right reverend Prelate I would say that this amendment is not designed to give protection to Grub Street, and still less to give protection to an informant. These results are nothing other than incidental to the reasoning that lies at the heart of this amendment.
I believe—as, indeed the noble and learned Lord, Lord Scarman, believes—that the public interest would be severely threatened if an amendment like this were not to become part of this Bill. Modern Governments are increasingly responsible for spending millions 218 upon millions of pounds of the taxpayers' money. By way of analogy, the Government, either directly or indirectly, are trustees of other people's funds. Should a person responsible for the publication of a document be compelled in court, under the sanction of contempt—and there lies the relevance of its inclusion in this Bill, if I may respectfully say so—to disclose his source, there is no doubt in my mind that the well of truth would dry up. The public would be deprived of information by which they might well be better placed to judge whether those trustees of their funds were handling those funds competently or otherwise, let alone recklessly, negligently, carelessly, or, indeed, fraudulently or criminally.
It has been accepted for more than 100 years that the public interest is best served by offering those responsible for publication a measure of immunity from compulsion to disclose their source of information. I most respectfully agree with the words of the noble and learned Lord, Lord Denning, the Master of the Rolls, which the noble and learned Lord, Lord Scarman, read to us. For no other reason than that the financial wellbeing of the taxpayer is ever in need of protection, I most humbly suggest that this clause, or one like it, is not only necessary but essential in the public interest.
§ Lord Scarman
I intervene for only two purposes. I had not intended to intervene again, but I am stimulated, if not provoked, into doing so by the scintillating display by the noble and learned Lord the Lord Chancellor of that first advocate's skill that I mentioned; that is to say, arguing from a false premise to an unsatisfactory conclusion and appearing, by the very force of his eloquence, to carry some of your Lordships with him.
The false premise was this. Of course, this amendment, though its drafting no doubt can be improved, does not apply to every Tom, Dick, and Harry who says anything anywhere in this country. If one looks at the amendment carefully, one sees that the application of this amendment is exactly the same as the application of my noble and learned friend's strict liability rule. What is said about this amendment could be said with equal force about the strict liability rule. The strict liability rule applies under Clause 2 only in relation to publications, and then publications are defined. This amendment relates only to publications; subsection (2) of the amendment says so.
On one other point of information, the right reverend Prelate the Bishop of London was asking about the law in regard to the immunities of priests and doctors. As I understand it, "immunity" is the wrong word, and he was quite right, with respect, in saying that this is a grey area in the law. As I explained when quoting from the speech of the noble and learned Lord, Lord Salmon, in the Granada case, the immunity which journalists, priests, doctors and so forth enjoy in our courts is an immunity in practice and not in law because, as the right reverend Prelate pointed out, judges go to great lengths to avoid insisting on a reply to those questions, even if they allow the questions, which they do not normally do.
§ 6.40 p.m.
§ Lord Fraser of Tullybelton
This is one more occasion when the Committee will have the edifying spectacle 219 of lawyers not agreeing with one another, because I rise to oppose the amendment. I do so with diffidence and wishing to be careful in what I say, because I was one of the court who took part in the decision in Granada v British Steel Corporation; I was one of the majority and my noble and learned friend Lord Salmon was in the minority and he dissented. It would be unseemly and probably quite contrary to precedent for Law Lords to engage in long arguments in your Lordships' House in its political sphere on a matter of this sort, and therefore I shall be brief. However, as the case of my noble and learned friend Lord Salmon was put forward on his behalf so eloquently by my other noble and learned friend today, I think it right that I should refer briefly to the other side of the case.
First, however, I wish to make it clear that I agreed with every word that fell from my noble and learned friend Lord Scarman when he suggested that the case figured by the noble and learned Lord the Lord Chancellor—of the man who writes to a potential employer—does not fall within this amendment because it deals only with publications, which is defined to mean to the public at large. Therefore I do not think that a malicious letter to an employer comes within its ambit.
It is true that the proposed clause does not refer to journalists. Although in a sense it applies to everybody, in reality it is giving protection only to refusals to disclose the source of information contained in a publication for which somebody is responsible, and that must in real life and practice mean publications by journalists or people in the professions allied to journalism; so it is really a protection for journalists. I oppose the amendment because I believe it to be the law that the journalist, if this were enacted, would be in a position almost unique of being not obliged to give information which he has in his possession when ordered to do so by the court. The only exception to that rule at the moment is the lawyer, who is not obliged to disclose advice he has given to his client, but that is not for the benefit of the lawyer but for the benefit of the client. Apart from that one case, all other members of other professions, businesses and people having other interests are obliged to answer a relevant and proper question in court when ordered by the court to do so.
It is true that in practice, as the right reverend Prelate the Bishop of London said, there is a grey area about what actually happens; but I do not believe there is much doubt as to what the law is. To fortify myself, I also propose to follow the example of my noble and learned friend and quote Holy Writ. It is well known that the devil can quote the Bible to his cause and I intend to do just that and quote no less a man than the Master of the Rolls, Lord Denning. On this occasion I can do a bit of one-upmanship on my noble and learned friend because I shall quote from a judgment given by Lord Denning in 1963 which was quoted by my noble and learned friend Lord Wilberforce the other day in the Granada case, when he referred to it as a classic passage; so I am reading some words of Lord Denning with the blessing of Lord Wilberforce as being a classic passage. Lord Denning said: 220The only profession that I know of which is given a privilege from disclosing information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of his client. Take the clergyman, the banker or the medical man: none of these is entitled to refuse to answer when directed to by a judge. Let me not be mistaken; the judge will respect the confidences which each member of these honourable professions receives in the course of it and will not direct him to answer unless not only it is relevant but also it is a proper and indeed necessary question in the course of justice to be put and answered".That I believe to be the correct statement of the law. If so, the amendment, it seems to me, will put the journalist in practice in a position above that of the minister, doctor, banker and any other professional man who receives confidential information. It is conceivable, though I very much doubt it, that that would be a desirable thing to do; but is it a desirable thing to do in the course of this Bill by a sort of side wind, by way of a little amendment? It appears to me to be obviously not. I do not wish to develop the argument further and must leave it to your Lordships to decide, but for those reasons I hope the amendment will not be accepted.
§ The Lord Chancellor
I feel I should speak again, because unwittingly I misled the Committee by not reading the amendment of the noble and learned Lord, Lord Scarman, with the body of the Bill, and not appreciating fully that he was limiting his use of the word "publication" to the special meaning which the Bill would otherwise give to the word "publication". For the purposes of the law of defamation, as he is aware, the words "publish" and "publication" have a different meaning and I can only apologise to the Committee for making a mistake on that.
However, I must tell the noble and learned Lord that in a sense it does not invalidate the points I was making. This, with respect, is not a privilege for journalists. It is not a privilege for anybody who issues a publication of any kind within the meaning of Clause 19 of the Bill. It is essential for the purpose of the law of defamation—to give an obvious example, but it is not the only obvious example—for a person to say from where he gets his information. It can be relevant and vital for the administration of justice, and this situation can arise only if the court has in fact decided that that is so and says to a man, "For the purpose of the administration of justice, the source of your information is invaluable". It would not have protected Mulholland, as my noble and learned friend frankly admitted in the course of his opening; it would have given no assistance to Mr. Mulholland (I think his name was in fact Mr. Clough) because he was connected with a case of security. But in the case of civil litigation, one of the commonest questions which one can be asked is, "Why did you say that, who told you so and from where did you get your information?" The amendment, provided the information was contained in a publication, no matter how malicious, would protect it absolutely.
In cases of fair comment—in cases of qualified privilege which a newspaper has in my experience often pleaded; "fair comment" very often, indeed practically always—the question of malice is absolutely crucial, and the question of malice involves almost always (I would say always) the question, "From where did the information come and what steps did you take 221 to check it?" As I say, the amendment was put down at the last minute. I believe my noble and learned friend would be wise to get in touch with my department and go through the possible implications of what he is now suggesting. Otherwise I should have to ask the Committee to divide against the amendment, which I should be very reluctant to do.
§ Lord Scarman
Perhaps your Lordships have heard enough of these unanimous beings, the lawyers, on this amendment, and I am grateful to the noble and learned Lord Chancellor for what he has said, namely, that they will consider the amendment. In those circumstances, bearing in mind that it came in late and that it came in designed almost to set going a mini-Second Reading in Committee, for which I apologise, I am grateful that it will be considered, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Lord Chancellor
I should like at this point to take the view of the Committee. The Chief Whip came to me a short while ago and wondered whether, after dealing with the last amendment, this might be a convenient moment for the Committee to adjourn for a short time. I do not know what the Front Bench opposite thinks about that suggestion.
§ Lord Elwyn-Jones
It would seem that a little locus poenitentiae until 7.30 would be even more acceptable.
§ The Lord Chancellor
Therefore may I move that the Committee do now adjourn until 7.30 of the clock.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The sitting was suspended from 6.50 to 7.30 p.m.]
§ Clause 7 [Scope of jurisdiction to protect inferior courts]:
Lord Gardiner moved Amendment No. 13:
Page 3, line 20, leave out from ("of") to end of line 23 and insert ("the inferior courts and tribunals specified in Schedule 5").
The noble and learned Lord said: The amendment I have put down to this clause is not perhaps the perfect amendment, since there are many who take the view that this clause ought to be removed from the Bill. This is merely the minimum amendment which I think ought to be made. My first difficulty is in understanding where on earth all this about inferior courts comes from. The Phillimore Committee made no recommendation on the scope of jurisdiction to protect inferior courts, and we have consistently been told by the noble and learned Lord the Lord Chancellor that there are many recommendations of the Phillimore Committee which cannot be included in this Bill because then the Bill would take up too much parliamentary time. There is, for example, the very important Recommendation No. 6 of the report that,
such conduct normally should be dealt with as a criminal offence unless there are compelling reasons requiring it to be dealt with as a matter of urgency by means of ordinary contempt procedures".
This is dealing, of course, with non-strict liability.
§ Therefore, if I may repeat what I have already said for the benefit of the noble and learned Lord the Lord Chancellor, the first difficulty, I think, is to see where on earth this comes from. It is not Phillimore at all. We are constantly told there are very important provisions for safeguarding the freedom of speech of the subject which are contained in Phillimore but which unhappily we cannot include in the Bill, so far as it is not a question of strict liability, because this is a very limited Bill and it would take up too much parliamentary time if we included all the recommendations in this one Bill; yet here we get something which is nothing to do with Phillimore at all. Phillimore made no such recommendation about the scope of jurisdiction to protect inferior courts, and the issue does not seem to have been raised at all until this year, as a result of the decision of the House of Lords in Attorney General v. British Broadcasting Corporation, in which it was decided that a valuation court was not a court of justice.
As the Explanatory Memorandum to the Bill points out, Clause 7 is not intended to overrule the House of Lords decision, but this in fact applies only to the specific point on valuation courts, since the House of Lords considered more widely to what inferior bodies in the nature of a court or tribunal the contempt jurisdiction of the High Court should apply. Various of the judges in that case took the view that the extension of contempt jurisdiction should be treated with considerable caution. For example, the noble and learned Lord, Lord Salmon, said:
The host of modern inferior courts and tribunals do not in my view require, and do not have, any protection against comments which may be made by the press and the like in respect of matters which those courts or tribunals have to decide".
The noble and learned Lord, Lord Fraser of Tullybelton, said:
The second objection is even more serious, because if protection is extended widely—that is to say, to courts and tribunals which are not courts of justice in the full sense—the right to freedom of expression would be correspondingly reduced".
§ A further objection to Clause 7(1) is that the definition of those bodies to which the High Court contempt jurisdiction is to extend is uncertain. For example, is a rent assessment committee an inferior court, tribunal or body which is constituted by law and exercises any part of the judicial power of the state? As to its power to fix rents it perhaps does not exercise any part of the judicial power of the state. However, as to its power to order notice to quit to be deferred, it seems that it does. I would therefore contend that there are two possible objections to Clause 7(1). First, it extends the contempt jurisdiction of the High Court to too wide a range of inferior courts, tribunals and bodies; and, secondly, its definition of those inferior courts, tribunals and bodies to which the jurisdiction extends is unclear.
§ I submit that the contempt jurisdiction should apply only to courts of law. I therefore put down this amendment to raise, before the next stage of the Bill, the whole of the contents of Clause 7; and, as I have already said, my amendment is the very minimum 223 amendment which in my submission to your Lordships' Committee ought to be made. It is merely to require a specification of what courts and tribunals are being referred to. It seems to me absolutely impossible for any editor or journalist to decide which courts and which tribunals of the present enormous numbers of committees and tribunals we have are covered by this extraordinary definition about exercising any part of the judical power of the state. So while I respectfully move this amendment, I do so on the footing that it is in my judgment the very minimum amendment which ought to be made to make the thing work at all, to make it at all possible for any editors or journalists or anyone to decide where they are; and it may be that at the Report stage of the Bill someone will put before the House a very much wider amendment. I beg to move.
§ The Deputy Chairman of Committees (Lord Nugent of Guildford)
Before putting this amendment, I should explain that if this amendment is agreed to I shall not be able to call Amendment No. 14.
§ 7.38 p.m.
§ Lord Wigoder
As the proposer of Amendment No. 14, which would be excluded if this amendment were carried, perhaps I might indicate that I would propose not to move Amendment No. 14 in any event because I think, upon reflection, that Amendment No. 13, the present one, is a more satisfactory approach to this difficult problem. I urge upon the noble and learned Lord the Lord Chancellor the desirability of reconsidering the whole approach in Clause 7 of this Bill, and I do so first of all for this reason. As I understand it—and I would be very grateful if the noble and learned Lord would intervene at once if I were wrong—Clause 7 seeks to extend to tribunals and inferior courts not only the strict liability rule as laid down in the previous clauses, but also the law about contempt in the face of the court. If that is right, then the first question that I would suggest needs careful consideration is whether those two areas ought in fact to be coterminous, as they necessarily must be so long as the clause remains in its present form.
Perhaps I might put the matter in its simplest form. I can well see an argument for saying that the chairman of a local valuation court ought not to have, in classical terms, a dead cat thrown into his face, and that if that happens in the course of the proceedings that may well be a contempt which ought to be dealt with as being a contempt in the face of the court. But I do not think it necessarily follows that because you include tribunals of all sorts and seek to protect them against contempts that are committed in the presence of the court, in the face of the court, in that way, then equally one ought in precisely the same number of tribunals to seek to apply the strict liability rule.
I say that for this reason. As noble Lords will know, in the last 10 or 20 years there has been a vast growth in the variety of administrative tribunals which, indeed, I think, the Royal Commission on Legal Services eventually decided are now trying approximately six times as many cases as all the High Court and county courts put together. It would be, I think, very undesirable that the strict liability rule should extend so far as the press are concerned to comments 224 on every single one of those administrative tribunals. There seems to me to be a case for reconsidering the whole approach to this problem and for splitting it up, first, to say what are the tribunals where we will punish a contempt if it happens in the face of the court; and, secondly, and quite differently, is it necessary to extend the strict liability rules to any tribunal and, if so, to which ones?
I think that the approach adopted in the amendment moved by the noble and learned Lord, Lord Gardiner, is in the highest degree desirable and that the present wording in Clause 7 of the Bill which seeks to extend, for example, the strict liability rule to tribunals exercising "any part of the judicial power of the state" really is contradictory in its terms to the observation made by the noble and learned Lord the Lord Chancellor earlier this evening, when he said that one of the objects of the Bill was that editors should be able to appreciate exactly where they stand. One can imagine the animated discussion in a newspaper office whether, for example, a rent assessment committee exercises "any part of the judicial power of the state"—and there are hundreds and hundreds, if not thousands, of tribunals, all with different names, functions and purposes, in respect of which the unfortunate journalist would have to come to a decision as to whether it exercised "any part of the judicial power of the state".
I do believe that there may be some tribunals—perhaps, for example, the Lands Tribunal is one, and the Employment Appeals Tribunals may be one—where it may be desirable to extend the strict liability rule; but I think there is a very strong case for asking the Government to prepare a schedule, putting into that schedule such tribunals as are to be covered by the strict liability rule, so that the press will know in future precisely where they stand in dealing with this difficult problem.
§ 7.44 p.m.
§ Lord Fraser of Tullybelton
I should like also to support this amendment in principle. I think that the words of the present Clause 7 are taken from the recent decision in this House of the Attorney-General v. British Broadcasting Corporation, when the question of the extent to which contempt of court applied was considered. In that case—in which, again, I was one of those involved in the decision, so I must be careful what I say—we were assured, I remember, that on any definition of this sort the number of tribunals falling within the definition was really fairly limited. The spectre was held up of hundreds and even thousands of trivial bodies dealing with fairly trivial matters being protected by contempt of court rules, and this seemed rather horrifying. But when we considered it we were assured by counsel on both sides that the number likely to come within this sort of definition was much less than one might have supposed. I do not have a note of the figures; but in any case it is only somebody's opinion and they might not have been accurate.
The principle which is enshrined now in Clause 7 as originally drafted is derived, I think, from the speech of my noble and learned friend Lord Scarman in that case of the Attorney-General v. British Broadcasting 225 Corporation. He said this—and I am quoting Lord Scarman:I would identify a court in or of law, i.e., a court of judicature, as being a body established by law to exercise, either generally or subject to defined limits, the judicial power of the State. In this context, judicial power is to be contrasted with legislative and executive, i.e., administrative power. If the body under review is established for a purely legislative or administrative purpose it is part of the legislative or administrative system of the State, even though it has to perform duties which are judicial in character".That was the principle on which the decision was largely based and which, I take it, is intended to be included now in Clause 7.
Your Lordships will appreciate that when the BBC case, or any other case, is being decided by a committee of your Lordships' House which happens to be dealing with it, all that the committee can do is decide a particular case, state some principle and apply it to that case. It is quite impracticable to them to draw up a list of tribunals which will fall within the principle. Even if they did do that, it could be said to be entirely obiter, apart from the one tribunal in question.
I must say that it seems to me that when we come to have legislation of this sort seeking to apply a principle stated by your Lordships' House in its judicial capacity, it is most desirable that an attempt should be made to include a specific list of particular tribunals, courts and bodies which fall within that principle. It is a very difficult thing to do and I can appreciate that the Minister concerned may shrink from undertaking such a major and perhaps rather controversial task. But how much better equipped are Ministers, with the assistance that they can summon to their aid and with a reasonable time to consider it, than the unfortunate editor who has to do it within the next hour? I must say that it seems to me to be a little unreasonable to impose this burden upon editors when Parliament could resolve the matter, once and for all, now by drawing up a list.
I hope I am not speaking in any spirit of levity, but it seems to me to be not all that important whether Parliament gets the list right first time. Parliament might not get the list right the first time but it could be amended. It is more important that there should be a definite list which shows which courts and tribunals are protected by contempt. If it turns out that the list is too big or too small, too short, no doubt it could be amended. So far as I can see, in principle, I should have thought it might be acceptable that it be amended by Order in Council, subordinate legislation, without the necessity of a separate Act. I do not know whether that is a controversial matter or not, but that might be possible. In that way, a definite list can be produced now, subject to amendment as time goes on if it turns out to be unsatisfactory.
On a much lower level with regard to the clause as drafted, I have some doubts whether Clause 7, as it stands, is intended merely to restate the existing law or to state something new. If it is intended merely to restate the existing law, I wonder it it is entirely satisfactory; because I have in mind the peculiar case of the Scottish Land Court. The noble and learned Lord the Lord Advocate will correct me if I say anything wrong, but I know I am right in saying that the Scottish Land Court is presided over by a chairman with the status of a judge of the Court of Session. When the Land Court is being presided over by the 226 chairman, if there is any contempt committed, the court or the chairman can deal with the contempt himself there and then. But the Land Court may be presided over by another member. The chairman is not always present. When he is not present, the Land Court has no power itself to deal with contempt but must report the matter to the Court of Session where a Lord-in-Ordinary deals with it.
I am not sure whether Clause 7 would not change the law. It seems to imply that the Court of Session could, in every case of a contempt of the Land Court, deal with it. If so, it seems to take away the power of the chairman to deal with contempt when he is present. I mention that as a minor matter of drafting and of no matter of principle. I suggest that it is most desirable that Parliament, with respect, really would be shirking its responsibilities if it refused to draw up and publish a list which editors or others could rely upon. I hope that this amendment will be approved.
§ 7.49 p.m.
§ Lord Rawlinson of Ewell
It is a crazy thing for anyone practising at the Bar to disagree with the noble and learned Lords who sit in the judicial committees but, taking my future life in both hands, I disagree with what the noble and learned Lord has just said. He referred to "unfortunate editors". Not long ago, I did feel for unfortunate editors; but, as may have been said already this evening, my views have been very much amended by what has been happening recently, as to whether they are "unfortunate editors", and whether or not we are getting into the state where the railroad is getting out of control and the assassin kind of press publicity, which has probably been referred to previously, is not now being accepted. Therefore I do not believe at the present time that "unfortunate editors" so much concern us.
I think that because of what has happened recently we are seeing a new fashion appear, and one which we have to watch carefully. The great advantage of this House is that one does not have constituents and therefore one can say things without being brought to answer those who have control over one's fate in that sense. When we are talking about contempt and contempt of court of newspapers, I always have a sneaking suspicion that some people are rather concerned by their image in the public eye to be popular with the broadcasting authorities, to be popular with the newspapers. To be that lovely liberal person whose views can be published with great satisfaction in newspapers is a very attractive role to play. It is rarely attractive to play the role which says: "Look out! Be careful of having too much liberty given in matters such as this". That leads to license. So though having been a great supporter of the Phillimore Committee and of the recommendations in the Phillimore Report, we ought to have learned a little lesson over the past few weeks about what can happen if people are able to snap their fingers—not only the press but other public authorities as well—at the principle of the fair and unprejudiced trial.
Just to give an example, if you give an inch there are people who take a great amount of power into their hands to alter the law for their own satisfaction and for their own purposes. I am sorry about this and I 227 regret it. I as counsel at the present time have daily duties in respect of parts of the press; but I think we have to view the matter sensibly and try not to put a halo the whole time over everything that the public press does as always being correct, because that is a popular and indeed easy thing to do.
One has to look at the situation with a balanced view. I cannot see why in this particular clause we should not leave it as it is. Why not require the editors not to do anything to prejudice the proceedings in inferior courts? We all agree with that, do we not? Why should there be any prejudice for a person standing trial or having an issue before an inferior court? Why should the tribunals which have these particular judicial powers have their proceedings prejudiced? Who is to gain by this freedom? What about the unfortunate people whose issues come before the tribunals?
I think that we should look with a little care at ideas that "unfortunate editors" find it very difficult and that therefore there ought to be a list. I know not whether the list is going to be two volumes long or a short list. The principle that it has to be set out before a responsible editor takes care about publishing what he says about somebody or something which is coming before a particular body for judicial review, seems to me to be part of the ordinary duty of a responsible editor. A responsible editor and a responsible journalist will accept that and will honour that.
So therefore, with the appropriate diffidence of one of the gentlemen of the long robe who appear before the judiciary at any time—maybe before a tribunal or inferior court—I believe that the tribunals and inferior courts should be given these rights. Unless it can be shown to my satisfaction that we have to have a list, I think it is just as sensible to keep the wording which has perhaps been taken from something which the noble and learned Lord, Lord Scarman, may have said in one of his speeches. Nevertheless, I think it is attractive wording and therefore I should like to leave the clause as it is.
§ 7.55 p.m.
§ Lord Elwyn-Jones
With great respect, I cannot help thinking that the noble Lord has been shooting at quite a different target from that which we are considering in this amendment. Nobody questions—at least I certainly do not—the fact that the rules of contempt of court should apply to inferior courts and tribunals. I do not think that the amendment has anything to do with the over-reaching abuse de pouvoir by press lords on the lines that the noble Lord was indicating in his speech. It is simply a question of whether it is not reasonable, as has been said, when the Bill extends the scope of the law of contempt so widely that those who will be affected by that change ought not to be assisted to know what courts, what tribunals, are covered. Rather significant support to what we are contending is that the noble Lord, Lord Rawlinson, said: "I do not know whether the list is long or short". That is precisely the trouble. Indeed, the noble and learned Lord the Lord Chancellor has said from a sedentary position "Nor any of us". But surely the unfortunate man at the receiving end of this 228 machinery of contempt of court ought to be in a better position than that.
I wonder how burdensome it really is going to be. We have the Council on Tribunals; we know the extent of its jurisdiction. We had not so long ago in the devolution legislation massive details covering this ground. There is a good deal of available information, I should have thought, in the Lord Chancellor's Department—I know that they have a lot to do—which could give very quick guidance on this. We must not carry our views of the press to a point where we are treating them unfairly in the way which I think the Bill now does. I hope that when we hear from the Lord Chancellor he will be able to meet us at least some of the way on this matter.
§ 7.58 p.m.
§ The Lord Chancellor
I am not sure I can meet the noble and learned Lord, although that is always a most agreeable occasion if I am able to do so. What I hope to do in the course of my slightly rambling remarks to is persuade the Committee that this is a rather more difficult question than they have yet realised. When I was much younger, I read an absolutely charming book called Some People by Harold Nicolson. I do not know whether other noble Lords have enjoyed that pleasure. He described how when he was a very young member of the Foreign Office he was confronted by a Foreign Secretary who was displeased with a draft which the office had put up. "It is perfectly simple", he said. "Just say: 'The following is the case—see Annexe 1'". When he got to Clause 2 he said: "The following is the case—see Annexe II". Annexe I and Annexe II were notably absent from his suggestions.
What we are faced with at the moment—and this is the whole problem—is that the noble and learned Lord who moved this amendment is in the position of that Foreign Secretary. He said that we are going to have a little list like Ko-Ko. It says that Schedule 5 is going to contain the little list. When we look for Schedule 5 in the amendment of course it is not there. So we do not know what his little list is going to be. That brings us back to what the problem really is, which, with great respect to the noble and learned Lord sitting opposite me, I do not think has been faced. I think perhaps my noble and learned friend on the Cross-Benches has not really faced this either; but I have had to face it.
Incidentally, I am suffering very much from the absence of my noble and learned friend Lord Scarman, who, having put on a dinner jacket, has had to fulfil a longstanding engagement with the Law Society and who told me what he was going to say—and it was exactly what I should have wished that he would say. He also gave me some leave, with suitable reservations, to indicate that he was going to advocate the retention of the clause as it is without the amendment, for reasons which are not dissimilar to those which I am now going to put forward as my own, although I must take all the responsibility for those. However, I am conscious of the gap on the Cross-Benches, because he was going to say that the clause is better as it is, just as my noble and learned friend Lord Rawlinson of Ewell has said in his characteristically modest but nonetheless authoritative way.
229 The problem really is this: to what bodies does the law of contempt apply? The law of contempt—I am quoting now from Phillimore—…is required as a menas of maintaining the rights of the citizen to a fair and unimpeded system of justice and protecting the orderly administration of the law".Those are the exact words of the Phillimore Committee and it is also virtually what Article 6 of the European Convention says in very different words. Since the war the judicial power of the State has come to be exercised in a vast array of different ways by a very large number of different bodies. Some of them have plainly purely administrative functions; some have arguably purely judicial functions; and even more have functions which are sometimes administrative and sometimes judicial. It was this kind of consideration, in a very different context, which led a predecessor of both the noble and learned Lords opposite and myself to set up a council on tribunals. They, of course, had very wide terms of reference.
Is the law of contempt to apply to any and, if so, which, of those? Of course, there are certain things we know. For example, we know that it does apply to a coroner's court; it applies to the consistory court in the jurisdiction of the ecclesiastical courts; it applies to a county court and to a court-martial. All this has been decided by a series of judicial provisions and, ex post facto, as a result of some so-called "unfortunate editor"—though I have never understood why editors should be thought more unfortunate than Lord Chancellors or, at any rate, than members of the Bar who are prosecuted for contempt, as I was—having broken the law of contempt, as applied to those bodies to which the judicial process has said that it does apply.
Equally, we know that since the war the licensing jurisdiction of the magistrates' court, under the Pet Animals Act, does not attract the law of contempt, because in this case a "fortunate" editor succeeded in persuading the Court of Appeal that this did not attract the law of contempt. We now know, after a procession to the House of Lords, assisted by my noble and learned friend Lord Fraser of Tullybelton, that a local valuation court does not attract the law of contempt.
There are really three or four different options that can be followed and they are not at all so easy as I think the Committee has been tempted in its various speeches to think. The easiest thing for me would be not to legislate at all—and, frankly, rather than accept this amendment, which contains a reference to a schedule which does not exist, I should prefer, rather than follow Ko-Ko along this line, not to legislate at all. It would save me a lot of bother and it would probably do the same for the Attorney-General.
Nobody who has taken part in this debate has suggested that among the varied tribunals which have been set up since the war there are not bodies which ought to attract, at any rate in some of their proceedings, the law of contempt. All noble Lords who have spoken recognise that people who are put to administer what I can only call "justice", who are usually lay people, apart from perhaps legal chairmen, and who may be of quite humble standing, are liable to be harassed, frustrated, intimidated or interfered with in one way or another, should be protected by the law 230 of contempt. If it failed to do that, our law of contempt would not be doing the job which the Phillimore Committee said we ought to be doing. It would not be doing the job of maintaining the rights of the citizen to a fair and unimpeded system of justice. So we cannot exclude by legislation the whole of the apparatus of "tribunaldom", if I may coin a phrase.
Option 1 is to do nothing, which I should vastly prefer. Option 2 would be to exclude the whole range of tribunals; and nobody has suggested that that is right. Option 3 is that suggested by the noble and learned Lords opposite and by my noble and learned friend Lord Fraser of Tullybelton—and that is to have a little list, like Ko-Ko. Of course I was attracted— I do not conceal the fact—to the Ko-Ko position. I said to the draftsmen that it should be quite easy to go through the various departments and find out the various tribunals that had been set up. I said: "Why not let us say that any body to which the Schedule of the Council of Tribunals and Inquiries Act refers should be within the law and a body which would not be within the Council of Tribunals and Inquiries Act should be outside the law?" They said: "Unfortunately there are a lot of bodies which ought to be within the law, like the Mental Health Appeals Tribunal, which directly affects the liberty of the subject, or the Agricultural Lands Tribunal, and, above all, the industrial tribunals, which affect the employment of citizens. They obviously ought to be within the law".
There are equally obvious cases like the local valuation courts which come before my noble and learned friend which ought to be outside. There are a lot of other courts which are sometimes administrative and sometimes judicial, which ought to be protected by the law in some of their activities and not in others, because they have some functions which are judicial and some which are non-judicial, like the Traffic Commissioners or the Civil Aviation Authority. So it is all very well to say: "Let us have a list contained in a Schedule 5"—which you have not bothered, or been able, to draft, or perhaps have not got around to drafting. All I can tell your Lordships—and this is why I am trying to make your Lordships see that the matter is a little more difficult—is that I have got round to that possibility.
§ Lord Elwyn-Jones
With great respect to the noble and learned Lord, he has a great department at his disposal. We poor men on this side of the Committee have no such privilege for the moment—maybe it will come some day before very long—and the more the noble and learned Lord speaks, if he does not mind my saying so, the more strongly he makes out the case of the impossible position the editor is in and the far better position that noble and learned Lord the Lord Chancellor is in for telling the world what the entitlements are.
§ The Lord Chancellor
Not at all. Everything the noble and learned Lord is saying is simply underlining the position that I am in. Of course, I have resources which are not available to the noble and learned Lord. I would not pretend the contrary. I have been in his position and he has been in mine, and we have been facing each other from opposite sides of the Committee. 231 So, of course, I have them. But I have used those facilities; I have used them to the full, and I have used them almost employing the identical words of my noble and learned friend on the Cross-Benches. I have said: "Find me a list. It cannot be difficult. Go along, do some work, root about and force the departments to declare". This is exactly what I have done—of course I have. I should not have been doing my duty if I had not. But they have said "We cannot". With all the resources that I have, with all the advantages at my disposal, with all the numerous and talented counsellors that I have, they have said that such a list cannot be drawn up.
When I made my modest little suggestion about the schedule to the Council on Tribunals and Inquiries Act, they just pointed out the defects in that. "Moreover", they added—and this is what the noble and learned Lord, Lord Scarman, would have said, had he been here and dressed more informally than he is—"you will have to add a rule-making power", which did not frighten my noble and learned friend Lord Fraser of Tulleybelton on the Cross-Benches, "because the number of tribunals which exist is constantly being added to and subtracted from. So you will have to have a rule-making power to add to and subtract from the list".
The noble and learned Lord, Lord Scarman, was saying: "I would rather have the plain, guiding principle contained in your Clause 7, than have a variable list which could be added to and of which nobody can foresee the wisdom or unwisdom". Very well. That is where I am now, and that is why I suggest that the matter is possibly not quite so simple as the noble Lord opposite, with his Ko-Ko list which does not exist, seems to think it is. He has underlined the very point which I was seeking to make, because he has not got down to the nitty-gritty of the problem. He then says: "I am only in opposition. Let the Lord Chancellor do it". That is all very well, but the Lord Chancellor has already tried to do it.
§ Lord Elwyn-Jones
The noble and learned Lord keeps on bringing in Ko-Ko and his little list, but that was simply a list of the prejudices and preferences, human and official, of the dear Ko-Ko. This clause purports to give legal definition to those bodies which are to enjoy the protection of contempt of court. It is not comparable. He is not little Ko-Ko; he is the Lord Chancellor.
§ The Lord Chancellor
Then I am Iolanthe, too. But, on the other hand, the noble and learned Lord must not push too far my humble analogies, which were intended to entertain as well as to instruct. In fact, he has quite clearly said in his clause: "Let us have a little list", without saying what the list should be. I have told him that I do not think one is possible. I have also told him that the noble and learned Lord, Lord Scarman, agrees with me that the disadvantages of having a little list outweigh the advantages.
So I myself believe—and I shall not dogmatise about this; I am simply trying to illustrate the problem with which the Committee is faced—that the options are really two. We can not legislate; the problem is too difficult for us. We can leave the thing as it is, or 232 as it has become since my noble and learned friend on the Cross-Benches, and his noble and learned colleagues, have dealt with it in the BBC case. Or we can use some guiding principle by which the so-called unfortunate editor or the courts can be, and must be, guided.
I know that Parliament—and I think wrongly, because it is a battle that I have fought on many occasions—is always afraid of guiding principles and tries to turn what are basically questions of fact and degree into questions of law. That is one reason, in my opinion—probably wrong—why our statute law is in such a dreadful and disgraceful state. It is because Parliament in debates, of which this must be the fiftieth that I have taken part in during the course of the last forty years, will try to turn questions of fact and degree into questions of law, thereby complicating and rendering impossible of fulfilment the aspirations of the legislators themselves.
There is, in fact, a guiding principle laid down in the speech of the noble and learned Lord, Lord Scarman, in the BBC case. We can leave the situation as it is. That is one perfectly viable option and that is the one that I should adopt, rather than have a list which I do not believe is viable. In that case, the confusion will be greater than it is now. The law will be less clear than it is now, because instead of having one clear and guiding principle we shall have five, each of the five Law Lords having stated his reasons in slightly different language.
If Lord Dilhorne had only lived to hear this debate, it is quite clear that he would have been on my side, because in that case he said:I recognise that this conclusion still leaves an area of uncertainty. If your Lordships agree with me about this it will still be open to argument, whether a court established by Parliament discharges administrative or judicial functions, about whether or not it is a court of law, but the area of uncertainty will be much diminished".The different Law Lords said different things. But the noble and learned Lord, Lord Scarman, I think used words which have been translated and lifted, without respect to his copyright, into the draft of the draftsman. He said:Though the ubiquitous presence of the state makes itself felt in all sorts of situations never envisaged when our law was in its formative stage, the judicial power of the state, exercised through judges appointed by the state, remains an independent and recognisably separate function of Government".He went on to deal with the law as it then was.
I think it is possible for intelligent judges to apply the words in the section. I think it is possible, and not very difficult, for an intelligent editor—and I would tend to add to the word "editor" not the Homeric epithet "unfortunate" but the Homeric epithet "intelligent"—to do what the noble and learned Lord, Lord Scarman, said was possible; and the noble and learned Lord has provided a guiding principle which will enable both the courts and the intelligent editor to come to rational conclusions, as and when the situations arise.
But having said all that—and I have said a good deal, I am afraid, and hope that I have not bored the Committee to distraction; my object was to try to show that this problem is a little more difficult than noble Lords originally thought, or would have originally thought from the first three speeches in this debate, 233 and from that of the noble and learned Lord, Lord Elwyn-Jones—it is a difficult problem, and I am quite prepared to think more about it. I do not conceal the fact from my noble and learned friend on the Cross-Benches that I am a convert from his point of view, which I once held. But I am a convert who is all the more fanatical, in a sense, because I have been converted. I am not the only example of that kind of convert.
I do not say that his point of view is at all irrational or unsustainable. Nor do I say that to the noble and learned Lord, Lord Gardiner, for whom I have profound respect, or to the noble and learned Lord, Lord Elwyn-Jones, for whom I have equal respect. But I have come to the conclusion, rather against my will, that I cannot let it alone, that a list is not viable and that, therefore, I have to state a guiding principle for intelligent but not stupid editors, and intelligent, but not I hope unintelligent, judges. This is the conclusion I have reached.
I do not think we shall finish it tonight. I rather hope that we can all have another think; I shall certainly try to have another think. As I say, my opinion has not been unchanged throughout my lucubrations, but as of now I prefer the draft. If I can be persuaded that it is reasonably viable to have a list, which will none the less be a changing list from time to time, then I will pursue the course of Ko-Ko with the enthusiasm of the Lord Chancellor in Iolanthe.
§ 8.20 p.m.
§ Lord Mishcon
I hope to be brief. If ever there were a principle of law that ought to be enunciated at this moment it is that editors and other citizens of this country, whether they be unfortunate, whether they be malicious, whether they be wicked, nevertheless come within the fundamental principle that the criminal law, if it is to apply to them, must be certain and that they must know whether or not they are breaching it. If we are told that to omit this clause creates even more uncertainty than the clause itself, that must be an option we cannot take. We therefore come back to the clause itself, to see whether or not we can make it more certain.
On Second Reading the noble and learned Lord said very clearly that he had taken advice on valuation courts. I will not trouble the Committee at this stage by quoting his learned words, but they amounted to this: "Those who advise me believe that the valuation courts would not come within this provision, and I believe that to be the case". We cannot leave it at that belief.
If the noble and learned Lord wants what I hope is a helpful suggestion from this side of the Committee, I will make it, but will claim no originality for it because it is the suggestion of the Law Society. It is that if one looks at Schedule 1, paragraph 1, of the House of Commons Disqualification Act 1957, there is a list of holders of judicial offices which could, with adaptation, serve as a model for a schedule. With that, I hope, constructive thought I sit down, but not without echoing again the cardinal principle which the noble and learned Lord has defended all his life as a lawyer: that when you are dealing with the criminal law the citizen must know what it is and whether he is breaching it.
§ Lord Gardiner
It had been my intention to ask the Committee to divide on the amendment, but as the noble and learned Lord the Lord Chancellor has said that he will reconsider the question, I do not propose to do so now. However, I want to make one or two brief observations. First, I can see no practical difficulty about having a provision in the Bill that these committees and tribunals to whom this shall apply are to be contained in a schedule which can be altered by statutory instrument. Secondly, I feel bound to repeat what I said at the start as to the origin of this particular clause, which the noble and learned Lord the Lord Chancellor has not really explained.
I thought that this was a Bill to implement some of the recommendations of the Phillimore Committee on Contempt of Court. It is apparently not possible to implement those recommendations which assist to defend the rights of the citizen, like the right to send cases to trial on indictment and by jury, because we are told there is not enough parliamentary time, unfortunately, to include all Phillimore's recommendations in this Bill. Of others we are told that this has been overtaken by a report of the Law Commission which is to be considered by the Home Office some time during the next 10 years. There is not a word in the Phillimore Report on Contempt of Court about inferior courts or tribunals. We are still very puzzled therefore as to how this ever got into the Bill.
Finally, the noble and learned Lord the Lord Chancellor has told us that in his opinion learned judges will be able to decide which committees and tribunals are referred to in this clause. He is of the opinion that it is quite fair to expect editors to decide which committees and tribunals are referred to, but that it is utterly impossible for a Government department, or for all the Government departments put together, to put them down in a list. I should have thought, with the greatest respect, that both those things cannot be right. If all the Government departments in London are incapable of drawing up a list, what editor or journalist is going to be able to do so? However, we can return to the matter at the Report stage. Accordingly, I beg leave to withdraw the amendment.
§ The Lord Chancellor
Before the noble and learned Lord formally asks leave to withdraw the amendment, I would say that I cannot quite accept what he has said and that if he should want to divide the Committee in that spirit I would have to accept his challenge.
First, it is not correct that we have neglected to legislate those provisions of the Phillimore Committee's report which enlarge the rights of the citizen and the freedom of expression. On the contrary, as was generally accepted during the Second Reading debate we have in fact done so. What we have not done is to go beyond a certain point. What we have also done is to reject one of the noble and learned Lord's amendments which we have already debated and which we thought was wrong. That is all we have done.
Secondly, what the noble and learned Lord has failed to understand is that the question is not so much, or not only, to what bodies the law of contempt should apply, but to what proceedings of bodies the law of contempt should apply. Let me give a very well-known 235 example—the magistrates' court. We know that the law of contempt applies to magistrates' courts. Equally, we know that it does not apply to licensing proceedings. The question concerns what proceedings they apply to rather than what bodies they apply to.
Having said that, I hope that the noble and learned Lord will pursue his intention of withdrawing his amendment. However, I think that his criticism was unfair. It is not simply the case that we are saying that the editor can judge, that the courts can judge but that the Government cannot. We are saying that if you try to draw up a list you will get into an inextricable muddle and that the list itself will be a transient and embarrassed phantom.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 14 not moved.]
§ Clause 7 agreed to.
§ House resumed.