§ 3.22 p.m.
§ The Lord Chancellor
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, that the House do now again resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD NUGENT OF GUILDFORD in the Chair.]
Lord Gifford moved Amendment No. 15:
After Clause 7, insert the following new clause:
§ ("Documents disclosed in litigation
§ . It is hereby declared that the obligation to protect and maintain the confidentiality of the contents of a document disclosed to a party to litigation or his agent terminates if and to the extent that the contents of the document are read aloud in open court in proceedings which are not subject to any limitation on reporting.").
§ The noble Lord said: On the last day on which we discussed this Bill the noble and learned Lord, Lord Scarman, moved an amendment which had nothing to do with the Phillimore Report but which had to do with civil contempt rather than criminal contempt, and he argued with great eloquence and competence that his amendment was none the worse for that. My amendment has the same qualities, and I present it with the same confidence, the more so because the noble and learned Lord, Lord Scarman, has gone before me. Like his amendment, this deals with a subject which has been thrown into prominence by recent litigation, in this instance the case of Harriet Harman and the Home Office; but, unlike the noble and learned Lord's amendment, the litigation is not yet over. The judgment of Mr. Justice Park is under appeal to the Court of Appeal.
§ However, it raises a topic of importance. In matters of contempt, experience has shown that once the law has been clarified by a learned judge it tends to be further clarified by three learned judges of the Court of Appeal, and then finally brought into the full light of clarity by five of your Lordships sitting as an Appellate Committee. By the time that process is finished this Bill may well have passed all stages in your Lordships' House. I have checked with the Companion to Standing Orders and, as I undertand it, your Lordships are not precluded by any rule on a Bill from discussing an issue which may be pending before the civil Court of Appeal.
§ Having said that, I intend, if I can, to follow the spirit of this Bill, and particularly Clause 5 of it. I hope my amendment may serve as the introduction of a discussion in good faith of a matter of general public interest, and that if in the course of the discussion the Court of Appeal may be in no doubt about what I think they ought to do in the particular case, that will be merely incidental to the discussion.
§ The topic arises in this way. In any litigation it is 352 the obligation of a party to disclose to his opponent all the documents in the case in his possession which are relevant to the issues. This of course results in many documents being disclosed which may be highly confidential so far as the party disclosing them is concerned. There is, therefore, an undertaking implied that the other party and his legal advisers may not publish those documents to the world. Sometimes they never see the light of day. But sometimes the contents of such documents are read out in open court in the full light of publicity. A witness may be asked to comment on the document—whether he wrote it, what he meant, whether he was telling the truth—and the document which has been confidential is then known to all. In that case one might think that any confidentiality which had attached to the document before would be destroyed. But the law is at the moment to the contrary. A party can be in serious contempt of court if he, or his solicitor on his instructions, discloses to somebody else—a newspaper, for instance—the contents of documents that have been read out in open court. The layman might be forgiven for thinking that that was an extraordinary state of affairs. It may or may not be the law—that will be clarified—but this House is concerned in this Bill not with what the law is but what it ought to be, and with changing it if it is wrong.
§ I mentioned that the issue is of some importance. When one thinks of the implications of the law as it seems to be now one appreciates that they are much wider even than the important issues arising on the facts of the Harman case. A party may well want to write an article or a book about a piece of litigation in which he has been involved. It happens frequently. He may have won the litigation. He may want to bring to public attention all the issues involved in it. He may want to comment most unfavourably upon his opponent who has lost it. In the course of that he may want to publish those written documents which have been read out as part of the evidence in open court. Can he do so? The law is at the moment in doubt. Even if he does not write it himself he may want to supply material to an author to write a book about the case. He may say to the author, "I have a transcript which I obtained for the purposes of an appeal. Here it is. You can quote from it for the purposes of your book". That surely would be completely unexceptionable; no one could possibly say that that was contempt. But if the party did not have a transcript, or could not afford one, he may well say to such an author, "Here is the material which was read out in open court; here are the notes of the evidence, both oral and written, taken in court. You write your book on that, and I will make sure that it is fair and accurate". That, it seems, would be a contempt.
§ What the present situation has shown is that it is open to other parties, who may not like what the person is going to write about the case, to bring proceedings to seek to muzzle them or to inhibit what can be written about the case—what can be written about matters which have been stated in open court. That is the measure of the seriousness of the area of law which has been revealed. As it concerns what can or cannot be legitimately written about litigation, it is very much pertinent to the subjects which are covered in the Bill.353
§ Having outlined, I hope fairly, what my amendment seeks to do—that is, to cure that situation, to say that the disclosure of the contents of a document which has been read aloud in open court is not a contempt, is not a breach of any undertaking to the extent that the matter has been read out in open court—I am, of course, open to suggestions as to how one should proceed in the light of the pending litigation. What I do urge is that this is a matter which we cannot pass by and upon which this House should, at some stage before the Bill passes out of its competence, be able to take a considered view. I beg to move.
§ Lord Hutchinson of Lullington
I should like to support my noble friend on this amendment. In my submission a matter of principle is raised. I shall not, of course, refer to the case which has given rise to the amendment, particularly as I myself played a very small part in it. But the matter of principle is important, and it seems to me to be as follows. Should it be possible to limit or hedge round the reporting of or commenting on matters which form part of the public record of proceedings in a court of law, save where the court has the power to forbid publication?
Personally, as an advocate, I have always taken the view that it was part of my professional duty to the court to assist anybody whose job it was to report or to comment on what forms part of the transcript of the proceedings, if that person happens not to have heard what transpired, or to have heard it wrong, or by inadvertence to have been absent at a crucial moment or, indeed, to have been totally absent from what had taken place in public. Often to give that assistance has in fact been against the interest of one's client, because one's client may well have not wanted any publicity, or, on the contrary, may have wanted it. But one has a duty to the court and my view has always been that if asked to show a document or give a name or assist with anything that has been said in court at which I was present and heard, then I would give that assistance.
If there is not this rule, or this principle, it seems to me that one lays the whole matter open to the strong incentive to anyone who takes part in proceedings in a court of law to resort to every form of stratagem—such as mumbling essential names, referring to matters in documents by referring to the document and not referring to the name, by having cosy get-togethers between advocates as to what shall be mentioned and what shall not be mentioned.
It seems to me that it is deplorable that the necessity for this particuar amendment should ever have arisen at all, because surely everybody would have taken it for granted that anything which forms part of the record of a court of law, which will appear on the official transcript, is open to be quoted or commented upon. If there is not such a principle it seems to me that it throws the whole matter open to every form of subtle suppression of the truth among those who are taking part in the proceedings. For those reasons, I support the amendment.
§ The Lord Chancellor
I understand that the Statement has now been cleared. As we cannot finish this debate before the Statement—and I am not trying to stop the noble Baroness opposite—if the Committee 354 agrees I should like to move, That the House do now resume. I beg to move.
§ Moved, accordingly and, on Question, Motion agreed to.
§ House resumed.