Defamation Bill [H.L.]

HL Deb 02 April 1996 vol 571 cc211-66

7.10 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

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 DEPUTY CHAIRMAN OF COMMITTEES (Lord Burnham) in the Chair.]

Clause 1 [Responsibility for publication]:

The Lord Chancellor moved Amendment No. 1: Page 1, line 8, at end insert ("of the statement complained of").

The noble and learned Lord said: With Amendment No. 1, I would like to speak to Amendments Nos. 2, 5, 6, 9 to 12, 15 and 20. Amendment No. 1 is a small drafting amendment. It does not affect the meaning of subsection (1), which sets out the conditions which must be satisfied if the statutory defence under Clause 1 is to apply. It moves the words, of the statement complained of", which relate both to the "author editor or publisher" in paragraph (a) and to "publication" in paragraph (b), to an earlier position in the subsection. Amendment No. 2 is consequential on the first amendment, to avoid unnecessarily repeating words which now appear in the previous paragraph.

Amendment No. 5 is a drafting amendment to avoid any doubt that the new defence will be available to a person who has shown that he is within a specification, in subsection (3), of a person who is not to be considered an author, editor or publisher for the purposes of the clause. If he is within that specification, he will not be considered to be the author, editor or publisher even if he might otherwise have fallen within one of the definitions of those terms in subsection (2). Those definitions are now expressed to be further explained in subsection (3).

Amendment No. 6 is a drafting amendment which ensures consistency in the special meaning given to the word "publisher" in subsection (2). The words "publication", "publisher" and "publish" and all related words have very different meanings in the context of defamation proceedings from their usual meaning in the world of commercial publication. In this special context, "publisher" will mean a person whose business is issuing material to the public (or a section of it) and who issues material containing the statement complained of in the course of that business. The revised definition avoids the use of the word "publish" within the definition in either its special narrow meaning or the wider meaning which it usually has in defamation proceedings.

Amendment No. 46 is a drafting amendment to Clause 17(1) which confirms that "publication" and "publish" have the meaning they have for the purposes of defamation generally, although there is a special definition of "publisher" for the purposes of Clause 1 only. The amendment changes Clause 17(1) by making an express reference to that special definition to avoid any suggestion that the words "publication" and "publish", where they appear elsewhere in Clause 1, should be construed otherwise than with the meanings they would normally have for the purposes of defamation.

Amendments Nos. 9 to 12 are four linked drafting amendments to achieve greater economy of words, so that the words "only involved", which qualify all the descriptions in subsection (3) of those persons who shall not be considered the author, editor or publisher of a statement, appear once only instead of being repeated in every paragraph.

Amendment No. 15 is a drafting amendment which makes it clear that, in the context of communications systems, paragraph (e) will apply to those who provide access to such systems as well as those who might be regarded as the "on the spot" operators at a particular time.

Amendment No. 20 is a drafting amendment which spells out for the avoidance of doubt that the list, which plainly could not be and does not purport to be an exhaustive list of those who should not be considered to be authors, editors or publishers, may nevertheless serve as a guide in those cases which are not expressly covered but could be seen as analagous to those which are. I beg to move.

Lord Kilbracken

Some time ago the noble and learned Lord invited suggestions on the drafting of this Bill. I am grateful to him for dignifying two or three of the suggestions that I made as two or three of the Government's amendments. It is helpful to have it made clear in Clause 1(1)(a) that we are indeed talking about the statement complained of. That makes it possible to simplify paragraph (b) by means of Amendment No. 2 and also, I hope, by means of my Amendments Nos. 17 and 25, which I shall move in due course.

The Lord Chancellor

I am very grateful to the noble Lord for his help in these amendments. I have perhaps some less helpful remarks as regards some of the other amendments he has proposed. I have adopted the ones that he suggested to me where we seem to be able to fit them in. I am not so sure about some of the others, but we shall come to them as matters proceed.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 2: Page 1, line 9, leave out from ("to") to ("and") in line 10 and insert ("its publication").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 3: Page 1, line 11, at beginning insert ("either (i)").

The noble Lord said: It is certainly desirable for the defence of innocent dissemination to be statutorily defined and to be extended to cover a wider class of secondary publishers; that is, distributors, printers and others. The problem with Clause 1 as it stands, however, is that it does not contain a wholly accurate formulation of the elements of the existing common law defence of innocent dissemination.

An individual libels someone else when he publishes in permanent form to a third person words or matter containing an untrue imputation against the reputation of that person. At common law, secondary distributors can rely on the defence of innocent dissemination provided that they did not know that the publication contained the libel complained of and did not know that the publication was of a character likely to contain a libel and that such want of knowledge was not due to any negligence on their part. Consequently, it is the current practice of large newsagents, aware that many of the publications they sell contain defamatory statements, to seek and obtain reassurance that there is no libel risk because there is every reason to believe that these statements are true.

Yet the defence of innocent dissemination, as it is set out in Clause 1, would, as I understand it, exclude from its protection those who were aware, or ought to have known, that the material they were handling was merely defamatory whether or not its publication was defensible. This, I believe, would have important implications for the large newsagents I have mentioned. Once they have discovered a defamatory statement in one of the publications they distributed, they would be denied the protection of the defence of innocent dissemination regardless of any steps that they subsequently took to assure themselves that the statement was true and that its publication was not therefore libellous. If I am right, that would have the unfortunate effect that it might encourage newsagents, booksellers and libraries to keep their eyes shut and remain ignorant of the contents of the publications they carry.

This amendment seeks to bring the defence of innocent dissemination in Clause 1 into line with my understanding of the common law defence. I beg to move.

The Lord Chancellor

Clause 1 is intended to provide a defence for those who have unwittingly provided a conduit which has enabled another person to publish defamatory material. It is intended to provide a modern equivalent of the common law defence of innocent dissemination, recognising that there may be circumstances in which the unwitting contributor to the process of publication may have had no idea of the defamatory nature of the material he has handled or processed.

The amendment proposed by the noble Lord would, in effect, create an entirely new defence. It would give a defence to a person who was indeed aware, or on notice, that he was contributing to a defamatory publication, but nevertheless chose to do so. It would allow him to rely on his own judgment as to whether there might be some other defence in the event of the defamed person taking proceedings, and have the effect of presenting him with a real defence because he thought, however wrongly, that he would be able to rely on some other defence.

It is imperative that we do not lose sight of the effect on plaintiffs of giving a defence to those who have in fact been instrumental in bringing material which has defamed the plaintiff to its audience. The effect in practice may be to deprive the plaintiff of any cause of action to remedy the wrong which he has suffered and which he would not have suffered had it not been for the link in the chain of publication provided by the contributor who escapes liability because of this defence. That may happen when the originator of the defamatory statement is impecunious or cannot be found.

That is an important point which I stressed when I consulted on the question of whether it was right for a defence of this nature to be available to printers. That had been recommended by the Faulks Committee in 1975, and the response to my public consultation persuaded me that it was right. However, the Faulks Committee had concluded that it would be wrong to make the defence an absolute defence absolving distributors from any responsibility in any circumstances, for, broadly, the reasons I have sought to explain. I believe that the reasoning of the Faulks Committee, and the public response to my consultation, justifies some broadening of the categories of defendant to whom this defence may be available beyond those to whom the common law defence of innocent dissemination might have been. But in my submission it would not be right to deprive a plaintiff of his cause of action against a defendant who was aware that he might be wronging the plaintiff and misjudged the plaintiff's chances of succeeding in a defamation action. Unlike the defamed plaintiff, those who may participate in the publication of a libel can protect themselves from the consequences by taking care, by taking indemnities or by taking out insurance against liability.

For the reasons that I have given, I hope that the noble Lord will recognise that that would be a considerable and unjustified extension—indeed, a new defence—in the circumstances and, in the light of that explanation, I hope that he may feel able to withdraw the amendment.

Lord Aldington

Perhaps I may detain the Committee for a moment because in the long saga of my libel-factual career recently I have had experience which is relevant to what the noble Lord is trying to cover in his amendment. However, perhaps I should say first that my recent experience in the libel courts was not my first experience of libel. I do not suppose that the Committee is aware that in 1938 I was appointed secretary of the Lord Chancellor's Committee on the Reform of the Law of Defamation—an earlier attempt to do what is being done here—and but for the war I might have been as knowledgeable as the noble Lord, Lord Lester, and but for the war I might never have got into recent troubles with libel action.

Although I am glad to say that it did not result in court action, I had an occasion when a libel was published by an impecunious man with a subsidy from the Scottish Arts Council, which was rather curious, repeating the main Tolstoyan libel. I found it quite impossible to deal with him so I had to deal with the retailers and the newsagents. Immediately I informed them of what was happening, they wanted to know that I was right and that I was not telling them a falsehood. That was communicated to them in the course of a day and they withdrew all of the offending material. That happened with the printers and others in the process also. It seems to me that the law as it is is satisfactory to deal with the point which the noble Lord has in mind.

Lord Williams of Mostyn

I redeclare my interest as a practitioner in defamation, acting for plaintiffs and defendants. I believe that the analysis put forward by the noble and learned Lord the Lord Chancellor is correct and that it should not be an expanded defence for a person who, in certain circumstances such as those outlined in Amendment No. 4, knew that he caused the publication of a defamatory statement simply on the basis that he believed, on reasonable grounds, that the statement was justified on the basis of fair comment. After all, fair comment can only depend on the basis of true, proved facts. I believe as a matter of principle that mere belief in the truth of facts which are incapable subsequently of proof ought not to afford a defence.

A further disadvantage and detriment to Amendment No. 4 is that mere belief that the defamatory statement which is known to be defamatory at the time of publication in certain circumstances—mere belief that qualified privilege attached—should not be sufficient, since whether or not the matter is one of qualified privilege would be a matter for ruling by the trial judge. As the noble and learned Lord said, common practice in a commercial undertaking is to take out insurance or contractual indemnity. It seems to me that there is no reason to expand those defences to commercial organisations, some of which are of great financial power and which are faced by plaintiffs who have no recourse to legal aid and which in many instances may be private litigants.

Lord Lester of Herne Hill

I am grateful to the noble and learned Lord the Lord Chancellor for his clear explanation of his objection to the amendment. I am also grateful to other noble Lords who have spoken, including the noble Lord, Lord Wiliams of Mostyn, to whom I should like to refer as "my learned friend" among other things. I suppose that I too should declare my professional interest as I sometimes appear against him in libel actions: I normally appear for the defendant while he appears for the plaintiff.

I have been persuaded by what the noble and learned Lord has said. We share a common aim: to achieve a fair balance in the Bill between the rights of plaintiffs and defendants. I am reassured by the explanation that Clause 1 is designed to give effect to the common law defence of innocent dissemination. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

The Lord Chancellor moved Amendment No. 5: Page 1, line 14, leave out ("subject to") and insert ("which are further explained in").

The noble and learned Lord said: I have already spoken to Amendments Nos. 5 and 6 with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Burnham)

I must advise the Committee that if Amendment No. 6 is agreed to, I cannot call Amendment No. 7.

The Lord Chancellor moved Amendment No. 6: Page 1, line 21, leave out ("publishes") and insert ("issues material containing").

Lord Kilbracken

As the Deputy Chairman of Committees has just indicated, this amendment, if agreed, would have the effect of pre-empting my Amendment No. 7 which calls for the word "publishes" to be put into the past tense as "published", but Amendment No. 6 would remove the word "publishes" altogether, replacing it with the word "issues".

I would, however, suggest that the past tense "issued" would be preferable here. If there are defamation proceedings in progress, it stands to reason that the statement has already been published or "issued", if the amendment takes effect. Therefore, surely the past tense should be used. The passage would then read, "a person whose business is issuing material to the public … who issued material containing the statement". I hope that the noble and learned Lord will perhaps consider this.

The Lord Chancellor

I have considered the proposal put forward by the noble Lord, Lord Kilbracken. The real point is that the passage with which we are dealing contains definitions of who is and who is not an "author", "editor" or "publisher". Those definitions apply at all times for the purpose of the clause. It is true that that will happen as far as the past is concerned where the statement has already been issued, but the point is that when giving a definition of who is a "publisher", it is right that that should be done—at least, it is an option—in the tense that we have used. A "publisher" is a person who publishes a statement in the course of that business. It is true that because of that he may incidentally have published a particular statement in the course of his business, but I submit to the Committee that the definitions apply at all times for all the purposes of the clause. For that reason, I have not accepted this suggestion. I have been a little selective in accepting the suggestions of the noble Lord.

Lord Elton

Perhaps I may ask my noble and learned friend why, if that is the case, in line 16 the word is "did" rather than "does", since the rule seems to be the same?

The Lord Chancellor

In line 16 the context is a little different: 'author' means the originator of the statement, but does not include a person who did not intend that his statement be published at all". That is anterior to the publication of the statement. That he did not have that intention must precede publication of the statement. Therefore, there is a distinction between the situation in line 16 and the other positions to which the noble Lord, Lord Kilbracken, has referred.

Lord Kilbracken

Clause 1(5) slips into the past tense again. I do not know why we slip from the present into the past. I believe that there is merit in consistency.

The Lord Chancellor

The same point applies. I believe that if the noble Lord looks at it closely he will see it is rigorously consistent. I have re-examined it in the light of the noble Lord's suggestions and concluded that the ones I have accepted are rightly accepted. We have not accepted those where, on the basis of rigorous consistency, we believe we have done it correctly.

On Question, amendment agreed to.

[Amendment No. 7 not moved.]

Lord Kilbracken moved Amendment No. 8: Page 1, line 23, leave out ("is") and insert ("was").

The noble Lord said: In moving Amendment No. 8, I should like to speak also to Amendments Nos. 13, 14, 16, 18 and 19. Here, one is not dealing with a definition, although much the same matter arises as in Amendment No. 7. If defamation proceedings are under way, it is clear that the printing, producing, etc., of the statement will already have taken place. Therefore, in the past tense, the person was or was not (as the case may be) involved. Surely, "is" should become "was" at the end of line 23. The same consideration applies to the other amendments that I have mentioned.

The Lord Chancellor

The point is the same, and I cannot elaborate it. Subsection (3) is in the nature of an exclusion from the definition which applies at all times for all the purposes of the clause. It is perfectly correct as it is. I do not say that the alternative would not be possible. However, if we are to be consistent I believe that this is the right way to do it.

Lord Kilbracken

In the absence of any support, I accept what the noble and learned Lord has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendments Nos. 9 to 12: Page 1, line 23, at end insert ("only involved"). Page 1, line 24, leave out ("only involved"). Page 1, line 26, leave out ("only involved"). Page 2, line 3, leave out ("only involved").

The noble and learned Lord said: I have spoken to Amendments Nos. 9 to 12 with Amendment No. 1. I beg to move the amendments en bloc.

On Question, amendments agreed to.

[Amendments Nos. 13 and 14 not moved.]

The Lord Chancellor moved Amendment No. 15: Page 2, line 7, leave out from beginning to ("statement") in line 11 and insert— ("(d) as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement; (e) as the operator or provider of access to a communications system by means of which the").

The noble and learned Lord said: I have spoken to Amendment No. 15 with Amendment No. 1. I beg to move.

[Amendment No. 16, an amendment to Amendment No. 15, not moved.]

On Question, Amendment No. 15 agreed to.

Lord Kilbracken moved Amendment No. 17: Page 2, line 10, leave out ("a defamatory") and insert ("the").

The noble Lord said: Amendment No. 17 is a minor drafting point. Perhaps the noble and learned Lord can explain why the word "defamatory" in line 11 is necessary. Can it not simply read "by means of which the statement is transmitted"?

The Lord Chancellor

If the Committee looks at Amendment No. 15, it will see that Amendment No. 17 is on that account not necessary. I have accepted the effect of this amendment in my Amendment No. 15.

Lord Kilbracken

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 18 and 19 not moved.]

The Lord Chancellor moved Amendment No. 20: Page 2, line 12, at end insert—("In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.").

The noble and learned Lord said: I have spoken to Amendment No. 20 with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 21: Page 2, line 24, leave out ("cause of action which arose") and insert ("litigation which has commenced").

The noble Lord said: I have put down Amendment No. 21 at the request of the Scottish Law Society. I pay tribute to the quality of its briefing material provided by Mr. Michael Clancey. Deferring to Mr. Clancey's greater knowledge of Scots law, I am told that "cause of action" relates principally to the English and Welsh analysis of rights of action and that, in the context of the United Kingdom, ought more appropriately to be replaced by the words in the amendment. I cannot assist the Committee further.

The Lord Chancellor

Needless to say, I am reasonably familiar with this matter. I accept that the phrase "cause of action" is not as technical a term in Scots law as in English law. However, I suggest that it is capable of being understood by Scots lawyers. I do not believe that the briefing suggests otherwise. The expression is used in other Acts which apply to Scotland; for example, in Section 17(1) of the Defamation Act 1952. I can see the possibility of other phrases, but this seems to me to be a fairly precise phrase which is capable of being understood by Scots lawyers. While the point is worth noting, I believe that what we have is suitable.

Lord Williams of Mostyn

I am obliged to the noble and learned Lord for that explanation. It is not my intention to press any of the amendments in my name to a vote this evening, but I have indicated that on subsequent occasions I may wish to test the feeling of the House. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Clause 2 [Offer to make amends]:

Lord Kilbracken moved Amendment No. 22: Page 2, line 27, leave out ("has published") and insert ("was the author, editor or publisher of").

The noble Lord said: Unlike my other amendments which were all drafting amendments, this amendment raises a question of some substance in which I hope the Committee will see merit. Clause 2(1) at present states: A person who has published a false statement alleged to be defamatory of another may offer to make amends under this section".

That is an important new provision—a fast-track procedure, as it has been called—which should have the effect of reducing the immense cost of litigation to all parties and saving the time of the courts.

As at present drafted, however, it is not made available to the author or the editor, but only to the publisher of the statement complained of. I do not know why that should be the case. It is obvious that the author and the editor may be defendants. Otherwise, why should they be mentioned in Clause 1(1)? It seems clear to me that they, too, should have the right to make this offer on the terms set out in the clause. My amendment would have that effect by amending the subsection to read: A person who was the author, editor or publisher of a false statement alleged to be defamatory of another may offer to make amends under this section".

I suppose that as an author I should declare some kind of interest, though I hope never to be guilty of defamation. I beg to move.

The Lord Chancellor

I do not wish to accept the amendment because these provisions—the fast-track as it has been referred to—are intended to apply to any person who has published a defamatory statement. The word "published" has an established wide meaning in the law of defamation. It makes no difference for this purpose whether the person who has published the statement would be regarded as a publisher, editor or author. Indeed, not all of those who publish defamatory statements would be necessarily regarded as any one of those, using everyday language.

A person who utters a slanderous comment publishes it within the meaning understood in the context of the definition, but it might be artificial to describe him as the author. Accordingly, the procedure of the offer to make amends is a procedure which should be available to everyone who has published a false statement alleged to be defamatory of another, whether that person would qualify as a publisher, editor or author in the strict sense.

Lord Kilbracken

I am surprised. I know that words can mean anything that lawyers want them to, but it seems rather surprising that a person who writes an article or a book is thereby publishing it, or that an editor is publishing it, particularly when we have in Clause 1(2): 'publisher' means a commercial publisher, that is, a person whose business is issuing material to the public…who publishes a statement in the course of that business". It would never have occurred to me, as a layman, that the writer or editor of a book could use this process. However, since the noble and learned Lord has made it quite clear that in the legal use of language that is the case, and that the author of a book counts as the publisher, I am prepared to accept that. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.45 p.m.

The Lord Chancellor moved Amendment No. 23: Page 2, line 27, leave out ("false").

The noble and learned Lord said: The amendment is a drafting amendment to remove a word which became redundant as a result of earlier drafting changes made following our consultation on the draft Bill. That was pointed out to me by the noble Lord, Lord Kilbracken. I have given effect to that in the amendment. When I looked at the noble Lord's suggestions originally, I did not accept this one, but on more mature consideration I have seen that he is right. I gladly acknowledged its authorship. I have published the amendment, but I believe that he is the author, having published it to me.

There are one or two other amendments grouped with Amendment No. 23 with which I could perhaps deal. Amendment No. 28 is in my name. It is a small drafting amendment in the description of the effect which a party's acceptance of an offer to make amends will have on his cause of action on defamation. It substitutes the words "may not" for "cannot" in preventing him from pursuing, or further pursuing, that course of action (which is succeeded by the right to enforce the offer). I beg to move.

Lord Kilbracken

I am grateful to the noble and learned Lord for coming round to my point of view, apparently, after reading the words of wisdom that I published in my letter to him.

On Question, amendment agreed to.

Lord Kilbracken moved Amendment No. 24: Page 2, line 28, leave out ("of another").

The noble Lord said: In moving Amendment No. 24, I speak also to Amendment No. 25. I simply want to ask whether the words "of another" in line 28, and "complained of in line 40 are necessary. They seem to me to be otiose. I beg to move.

The Lord Chancellor

I accept that the two words in Amendment No. 24 may not be necessary to the sense of subsection (1). There would not be a cause of action unless the statement were defamatory of someone other than the defendant himself. Nevertheless, the words do serve a useful purpose in linking together the provisions of this and the following two clauses, which envisage, first, that the publisher of the statement will address his offer to the other person, the person who has been defamed by it, but has not necessarily issued proceedings so that he or she could be described as the plaintiff; and, secondly, that the acceptance or non-acceptance of the offer will have particular consequences as between the publisher and that other person. So although the words are not strictly necessary for the sense of the clause, they provide a useful link, and therefore I wish to retain them, if the noble Lord is willing to withdraw his amendment in the light of that explanation.

Lord Kilbracken

I also raised the question of Amendment No. 25 and the words "complained of in line 40. My feeling is that since we have stated in Clause 1(1) that we are talking about the statement complained of, it is subsequently not necessary to define it each time, and therefore the words "complained of can be left out.

The Lord Chancellor

It may be convenient to answer that point now. Subsection (4) explains what is meant by an offer under the clause. It is an offer to do various things in relation to the statement complained of. The words are necessary for the purpose of identifying the statement to which the offer refers. It is for that reason that I do not feel able to accept Amendment No. 25. One has to specify what it is that one is dealing with, and identify it for the purpose of the offer under the clause.

Lord Kilbracken

I am sure that the noble and learned Lord is right; he always is. However, Clause 2(1) states: A person who has published a false statement alleged to be defamatory", so that is what we are talking about. Subsection (2) states: The offer may be in relation to the statement generally". However, when the word "statement" appears again in line 40 on page 2 for some reason we have to put in the words "complained of". I do not believe that that is necessary but it is not a point of earthshaking importance. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Lord Lester of Herne Hill moved Amendment No. 26: Page 2, line 41, at end insert ("which shall be made by a joint statement in open court unless the parties otherwise agree").

The noble Lord said: The amendment deals with the power of the court to determine the form of fulfilment of an offer of amends. It is the result of a great deal of concern that has been expressed by newspapers such as The Times in its editorial today, the Financial Times and the BBC and other media organisations. They are concerned about how to make the fast track procedure really work in the sense that it will be used in practice. As the Bill is currently drafted, an offer to make amends includes the publication of a correction and apology. If the parties were unable to agree on a suitable correction and a suitable apology, the court would decide the issue under Clause 3(3).

By analogy with Clause 9(3), which relates to the summary of procedure, the court would therefore have the coercive power to specify the terms and the timing of the apology. The power to resolve disputes about the steps to be taken in fulfilment of an offer of amends is already available to the High Court under Section 4(4)(a) of the Defamation Act 1952. However, the defence of unintentional defamation under that Act has proved so unworkable that in practice very few offers of amends have ever been made. Therefore, there has been little opportunity for the courts to exercise their Section 4 powers.

In my view, the Bill rightly seeks in Clauses 2 and 3 to remove the obstacles to the successful operation of the defence of unintentional defamation by means of the creation of the new defence of offer of amends. That is greatly to be welcomed. The new streamlined defence would provide a welcome means of reducing unnecessary litigation while vindicating the plaintiff's good name provided that the procedure was used in practice. The conditions necessary to bring the defence into operation have been amended and that too is welcome. However, the power of the court to make orders dealing with the prominence and wording of apologies and corrections in default of agreement between the parties has not been amended. It is the continued inclusion of that power which is unwelcome to most broadcasters and newspaper editors.

I shall explain why that matters a great deal. An editor or broadcaster confronted with the ultimate prospect of being ordered to give an apology or correct a prominence which he felt was not merited would be most unlikely to be willing to make an offer of any kind. Rightly or wrongly, the threatened loss of editorial sovereignty would be too great. If that is right, the defence will again be little used in practice. If any evidence is needed for that one only has to look at the editorial in today's copy of The Times.

The amendment would alter the focus from an offer to publish an apology or correction to an offer to join in the making of a statement in open court. The power of the judge would be confined to ruling on whether what was said in open court was suitable and efficient as an apology. The statement would come to the attention of the public vindicating the reputation of the plaintiff in two ways. First, the Press Association is, as a matter of routine, present in court when defamation proceedings are disposed of by a statement in open court. The outcome of the hearing is then wired to newspapers and periodicals. Secondly, if the defendant were a newspaper or a broadcaster its respective code of practice would require it to report the outcome of the action. The code of practice of the Press Complaints Commission requires, for example, that a newspaper or periodical should always report fairly and accurately the outcome of an action for defamation to which it has been a party.

Clause 2 as it currently stands would allow for a degree of judicial encroachment of a coercive kind that would be regarded as too coercive to make the offer of amends procedure likely to be attractive in practice. My amendment seeks to make the defence of offer of amends workable for both plaintiffs and defendants and to strike a fair balance between their competing interests. I beg to move.

Lord Williams of Mostyn

I share the concern expressed by the noble Lord, Lord Lester of Herne Hill, and the concern expressed on many occasions both recently and earlier by editors and those who control the contents of broadcast and televised matter. I do not believe that the amendment will deal fully with the mischief that the noble Lord wishes to avoid because it seems to me that his present amendment leaves it open to a joint statement in open court unless the parties otherwise agree. That may well mean that in default of agreement the full offer of amends cannot be acceptable and therefore will not be accepted. But I wholly agree with the fundamental principle. It is wrong as a matter of principle to dictate to the editor of a newspaper or periodical or to the editor or the director of a broadcast item to include televised material, a form of apology which may not be wholeheartedly meant. That is an undue interference with the freedom of the press. I believe that it will vitiate the value and the effectiveness of the offer of amends procedure. I do not believe that the present amendment deals fully with the mischief.

The problem is not restricted to this jurisdiction. There have been serious difficulties in South American countries—for instance, Argentina—which are feeling their way towards a free press after many years of totalitarian dictatorship and interference with the press where editors violently object as a matter of principle to directed corrections or apologies with which they do not concur. Therefore, I believe that in principle the thrust of the amendment is right and I believe that in practice if something is not done by way of useful amendment the procedure will not be used by many newspaper editors when it ought to be.

Lord Elton

Perhaps I may ask my noble and learned friend whether under this or any other construction it would be possible to offer the reluctant editor the alternative of paying a suitably increased financial compensation. I see the difficulty of getting a free press to make an apology which is not sincere. Equally, I see the importance of protecting the victims of press unfairness who are numerous and at present too inadequately defended. I see that the courts should throw their protection over those people and I wonder whether that is a way of squaring that circle.

The Lord Chancellor

I agree that there is a problem in relation to forcing an apology from someone who does not wish to make an apology. I certainly do not wish to do that and we have tried to meet the point in the wording of Clause 9. It states: If they cannot agree on the content, the court may direct the defendant to publish or cause to be published a summary of the court's judgment agreed by the parties or settled by the court in accordance with the rules of court". That is intended to deal precisely with the situation where a party does not wish to apologise because he believes that he was right in the first place but cannot prove it. Therefore, he is likely to have been found liable but does not wish to make an apology. Therefore, we have substituted for an enforced apology a judgment of the court on the outcome to be agreed by the parties or, failing agreement, to be settled by the court. I believe that that deals with that point.

I have read carefully, as I always do, the leaders in The Times. I have thought about the ITN broadcasts which will start with a "bong". I have not yet heard one of those but I am sure that The Times will anticipate the future in a way that I cannot. However, I do not believe that this amendment deals with that point. We have not yet reached the amendment which deals with that point. The answer to the "bong" editorial, if I may call it that, is to be found at the third paragraph of Clause 9(2), which states: If they cannot agree on the time, manner, form or place of publication, the court may direct the defendant to take such reasonable and practicable steps as the court considers appropriate". The use of the words "reasonable" and "practicable" are intended to guard against the scenario which one finds in the leader in The Times.

Of course, it is possible to take the view that the court would act unreasonably or impracticably, but I am not prepared to take that view. The judges would take account of the particular conditions set out in Clause 9. However, this amendment does not directly address those matters and therefore I should have thought that it restricts the scope of an offer to make amends. I cannot see why it needs to take the restricted form which the amendment proposes. An essential element of the offer, which has been accepted, would be missing if the parties were unable to agree.

There is a question of precisely what the formulation should be. I should be the last to want to have a system which would not work for one reason or another. So far I have accepted the essence of the point made by the noble Lord, Lord Williams of Mostyn, and have tried to deal with it in the form of words which I used in Clause 9(2). It may be that something more needs to be done. I shall be happy to consider that because I want this to work. It is a question of whether it needs to be restricted to a statement in open court.

8 p.m.

Lord Hoffmann

I am not sure whether the noble Lord, Lord Lester, is speaking also to Amendment No. 36 and subsequent amendments. If he is not, I shall wait until we reach that point before giving the Committee the remarks that I wish to make about them.

Lord Lester of Herne Hill

Both the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Hoffmann, are quite right to indicate that this amendment should be taken together with the later amendment dealing with Clause 9 and the power of the court to determine the form of the apology by way of summary relief. I have spoken to that matter because I intended the two to be taken together.

Lord Hoffmann

If the same point arises, I would say that Amendment No. 36 and the three which follow it would in effect destroy the main purpose of the summary procedure. The whole idea of the summary procedure was based upon the perception, which I think is widely shared, that a libel victim does not usually want a large sum of money but rather the rapid publication of a correction and the vindication of his reputation as nearly as possible in the same place and with the same prominence as the original libel.

The Bill as it stands provides that in the first instance the courts will in general terms order the publication of a suitable correction and apology. But obviously, as my noble and learned friend the Lord Chancellor said, one cannot make a newspaper say that something is false when, despite the views of the judge, it still believes that it is true. After all, one must allow for the possibility that the judge may be wrong.

Nor is there any point in making a newspaper publish an insincere apology. Therefore, the Bill provides that the publication of an apology is for the parties to agree. But if there is no agreement, then the judge may direct the newspaper to publish a summary of his judgment. That does not commit the newspaper to saying that it agrees with it. In fact, if it is willing to risk another libel action, it can say that it disagrees with the judgment. But that judgment must be published because that is what justice to the victim requires.

It is only the most doctrinaire view of editorial freedom which will seriously object to a newspaper simply having to publish a summary of the judgment. The right to make a statement in court which the newspaper can ignore is perfectly useless. I know that my noble friend Lord Lester says that there is a code of practice relating to those matters, but we have some experience of what happens to codes of practice in this area. You may as well allow the victim to go out and proclaim his innocence to the passers-by in the Strand. The only proper remedy is to bring what the judge considers to be the truth to the attention of the same people who saw the original libel.

If that is thought to be an invasion of editorial freedom, one should remember that that is part of a larger package. First, there is the limitation of summary damages to £10,000. I should not like to see that limit increased to £25,000, as the noble Lord, Lord Lester, suggests, because £25,000 is quite a large sum of money. It is important to make it clear that the summary remedy is intended for people who are not primarily interested in money.

Secondly, the other part of the package is that newspapers have the advantage of using the summary procedure as a cheap way to get rid of gold-digging claims. All that I have heard from editors and newspaper lawyers suggests that they regard this as a useful weapon. The amendment in the name of the noble Lord, Lord Lester, would give them all the advantages of the summary procedure with virtually no concession on their part to the rights of libel victims. I do not believe that that is fair.

Lord Lester of Herne Hill

I am extremely grateful for all the speeches that have been made on this and later amendments. I hope that the noble and learned Lord, Lord Hoffmann, does not regard me as doctrinaire on the approach towards editorial independence and its sovereignty because I certainly do not have that view.

I agree with the noble Lord, Lord Williams of Mostyn—and I believe that all Members of the Committee agree—that we must avoid inserting into a statute coercive judicial powers which dictate unnecessarily the form and manner of publication in newspapers. I am extremely heartened by the fact that all who spoke share that view.

Having heard the extremely persuasive speeches of the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Hoffmann, I should like to reconsider the matter. I am sure that it will be reconsidered also by the press because it is extremely important that the persuasiveness of the noble and learned Lord, Lord Hoffmann, persuades newspapers about the fairness and practicability of that procedure. If my amendment has done no more than serve to raise that issue, it has probably been worth while. Therefore, I shall reconsider the matter in case I wish to return to it on Report. Meanwhile, with gratitude, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 27: Page 3, line 6, leave out ("not").

The noble Lord said: As presently drafted, Clause 2(5) indicates that the procedure of an offer to make amends may not be made by any defendant after he has served a defence. My proposal is that the word "not" should be deleted.

I make that suggestion for these reasons of practicality. Many publications are made responsibly by serious newspapers, although they are erroneous. It is not always discovered that they are wrong until perhaps the close of pleadings or, more often, the exchange of witness statements, which is automatic in libel actions. The usual defences of course would include justification, fair comment or qualified privilege.

It may well be that a perfectly responsible defendant publisher—for example, a newspaper—may wish to plead fair comment on a matter of public interest in the belief that it can demonstrate the truth of the underlying facts or justification to prove the underlying facts themselves, or it might be under a legitimate, genuine misapprehension that qualified privilege did attach.

It seems to me, with great respect, that it is an unnecessary and unneeded restriction on the offer to make amends if the offer may not be made at any time after a defence has been served relating to fair comment, justification or qualified privilege, when the newspaper, for genuine reasons, wishes to abandon any of those defences. I beg to move.

Lord Lester of Herne Hill

I agree with everything that has been said by the noble Lord, Lord Williams of Mostyn. I have nothing to add.

The Lord Chancellor

It is a matter of some interest, to see just what we should do about it. The purpose of the provisions in Clauses 2 to 4 is to encourage defendants who have published defamatory statements to make speedy reparation to the wronged plaintiff. It will be up to the defendant to make up his mind reasonably quickly that he wants to use this machinery, which will curtail the proceedings and avoid trouble and expense for both parties. Speed is clearly of the essence, although one of the reasons why the defence under Section 4 of the Defamation Act 1952 did not achieve popularity as it might have done was that it required the defendant to act so fast that he hardly had any opportunity at all to carry out legitimate investigations and consider whether the best course would be for him to make an offer of amends under the section. Clauses 2 to 4 do not provide a specific time limit within which the defendant must make up his mind, but they do require him to act before he serves a defence. That allows him time to complete any necessary investigation.

Once he has served a defence, he has signalled his intention to go down the other path, and to defend the claim on some other basis, raising other issues, so that the defamation proceedings will take their normal course. The service of a defence, which is the result of his own considered decision, is a natural watershed. It is the point at which he must have decided that there is a defence which he wants to pursue, rather than make immediate amends. If a defendant were permitted to serve a defence first, and then decide that he would, after all, like to take advantage of these provisions, much of the benefit of these provisions might be lost. It could take away all sense of urgency, and fail to provide the plaintiff with the prompt amends that the provisions are designed to achieve.

The clause, as drafted, does not impose any time limit in the sense of a fixed time, but it does suggest a sensible watershed at which the decision is taken not to go down the road of an offer of amends because it has been decided to defend the action. This is the thinking behind the clause. An amendment as simple as this is easily made, but it affects, quite basically, the idea which is embodied in these provisions.

Lord Williams of Mostyn

I am sorry to say that I believe myself to be continually right and the noble and learned Lord, the Lord Chancellor, to be continually wrong in this instance. Everyone who has acted in a defamation case for the defendants realises the value of investigative journalism, particularly in a country as obsessively secret as ours. Many investigative programmes or articles are conscientiously researched and legitimately put forward.

The noble and learned Lord said that there was no fixed time. I respectfully disagree. If a plaintiff issues his writ promptly and his statement of claim promptly then, of course, the rules of court are quite restrictive in terms of time when the defence may be served, unless an extension is applied for and given. They are not frequently given in defamation cases. However, a defendant may honourably come to a conclusion that he was simply honourably wrong in the allegations he made against a wounded and wronged plaintiff. He may realise that his sources were wrong. He may simply realise, on a view, perhaps, of expert evidence from the plaintiff on the exchange of witness statements, that he has it hopelessly, awfully wrong.

The noble and learned Lord said that in effect that gives to the defendant—though he put it more elegantly than I—the penny and the bun but, of course, the answer to that lies in the question which the noble Lord, Lord Elton raised. If an apology is not forthcoming, can the damages be enlarged? The answer is: yes, a thousand times yes. That is because, as every practitioner will recognise, what inflates damages in most defamation cases is the refusal to apologise, or the refusal to apologise promptly. What is suggested here is that if a newspaper realises that it has it wrong, and realises, perhaps, that justification cannot run or that qualified privilege is a mistaken assertion, it ought to be able to say to the wounded plaintiff: "I have it wrong; I will make amends." Of course, if the fast-track procedure allowed an increase up to £25,000, then the plaintiff might well be adequately compensated. It seems to me to be unduly rigid in an area of law which is hide-bound by over-rigidity, to refuse to allow a repenting, repentant defendant to use this procedure simply because he has put the pleader's signature to a defence of fair comment, justification or qualified privilege.

8.15 p.m.

Lord Lester of Herne Hill

I am so grateful to the noble and learned Lord. Is it not the case that, as an example of the very rigidity of which he complains, at present the jury are not allowed to be told about an offer of amends once the matter comes to trial? Therefore, a defendant who does everything he reasonably can to make amends by way of apology and offers of various kinds is not able to place that material before the jury.

I should say, as regards the answer to that question, that it is the subject of a pending appeal in which I am professionally representing the defendant. Is that not now the current position which, therefore, adds force to the amendment in the context of the fast-track procedure, because one cannot remedy the situation once the matter goes to trial.

Lord Williams of Mostyn

I can achieve a lifelong ambition, because I can use the immortal words, "Up to a point, Lord Copper", on a legitimate public occasion. It is not entirely right, because one can always put forward on behalf of a defendant the fact that an apology has been offered. I have done it myself, not always with enormous success. The fundamental point is that it is an undue rigidity which is capable of harming the defendant's interest but, not least, capable of taking away from a plaintiff an offer of amends, which is all he really wants. Having said that, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 2, as amended, agreed to.

Clause 3 [Accepting an offer to make amends]:

The Lord Chancellor moved Amendment No. 28: Page 3, line 14, leave out ("cannot") and insert ("may not").

The noble and learned Lord said: I have spoken to this with Amendment No. 22. I beg to move.

On Question, Amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 29: Page 4, line 7, at end insert ("where the parties so agree").

The noble Lord said: This relates to Clause 3, subsection (9): Proceedings under this section shall be heard and determined without a jury.

My amendment seeks the agreement of both parties for a judge alone so to decide. In essence, this comes down to a question of the approach to the assessment of damages. Many would, perhaps, feel that damages in personal injury cases are grossly unacceptable to the vast body of public opinion, rightly, as I submit, because the power of increasing damages was taken away from juries and now juries virtually never assess damages, at least in England and Wales, contrary to the position which has applied in Northern Ireland.

The reason that I put this forward is that it should be for both parties to agree that a judge alone should assess the damages. Judges are notoriously mean in assessing damages in personal injury cases. That is the basis for this amendment, which I beg to move.

The Lord Chancellor

In introducing this machinery, we are seeking to provide a way in which the parties will be brought together to reach a sensible conclusion which will be for the benefit of both plaintiffs and defendants. In many cases it may be unnecessary for them to seek the assistance of the court at all. But if they cannot agree on the steps to be taken in fulfilment of the offer, they may seek the assistance of the court under Clause 3.

One of the factors which will make the offer to make an amends an attractive option for defendants is the knowledge that if they cannot agree with the plaintiff on the exact details of the steps to be taken by way of amends, any money compensation which would form part of the amends package would be assessed by the judge who would clearly take very much into account such mitigating factors as the defendant's willingness to restore the plaintiffs reputation fully and promptly. It is important to recognise that a defendant who makes an offer under these provisions will be entering into an open-ended commitment to do a number of things which may include the payment of a sum of money on which there is no upper limit. Certainly defendants will recognise that.

The effect of this amendment, providing that Clause 3 proceedings should only be heard and determined without a jury if the parties so agreed, is to give the plaintiff the option of insisting that the steps to be taken to honour that open-ended commitment should be determined by a jury. Immediately, the costs which the parties are likely to meet will be much more substantial. The defendant will bear that in mind when deciding whether to make an offer under Clause 2. But another and more serious objection is that a defendant may not even contemplate making an offer if it will amount to entering into not only an open-ended commitment but a commitment to pay whatever sum, and take whatever steps, a jury may decide upon. Our intention in these provisions is to provide machinery which defendants will want to make use of for the purpose of making amends. We shall fail if defendants find that there is a sting in the tail of that so that they conclude that there is no point in using it.

It is always possible for a defendant to offer to settle at any stage of the litigation on such terms as he or she thinks he should offer. Then it will be for the plaintiff to decide whether to take that offer. In my submission to the Committee this provision is intended to introduce a special procedure in which it is appropriate that the judge should decide the amount in question as a concomitant to the fact that this is a special procedure which is intended to short-circuit the existing procedure and also to involve a degree of constraint on cost, which is an important element in the matter. I hope that, in the light of this explanation, the noble Lord will feel able to withdraw the amendment.

Lord Williams of Mostyn

I shall indeed—although I may wish to return to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3, as amended, agreed to.

Clause 4 [Failure to accept offer to make amends]:

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Williams of Mostyn

I wish to raise some general questions. However, I shall be economic in my words because in a sense I repeat the questions which I raised earlier. Clause 4(3) states, There is no such defence if the person by whom the offer was made … had reason to believe that the statement complained of— (a) referred to the aggrieved party or … was both false and defamatory of that party". "The person" referred to is the defendant. I have mentioned my next question before. If a defendant realises that his earlier belief was wrong and that it was grossly wounding of a plaintiff, why should no offer of amends defence be available to him? Clause 4(5) states, The offer may be relied on in mitigation of damages whether or not it was relied on as a defence". I wonder how that will work in practice and whether there is not some internal inconsistency here, and how a judge will deal with these matters if an offer is relied on in mitigation of damages though it is not relied on as a defence. That is a genuine question as to how this measure will work in practice.

The Lord Chancellor

It is some time since I practised in the field of defamation in another jurisdiction and therefore I offer comment on practice with a degree of diffidence which perhaps I do not always show. As regards the latter matter to which the noble Lord referred, what I assume to be the situation is that if the offer was made but subsection (3) of Clause 4 applies, and therefore the offer either was not put forward as a defence or fails as a defence for the reason that the conditions there referred to were applied, it is still possible to rely on the offer as a mitigation of damages on the view that if the offer had been accepted the resulting damage would have been less than it might otherwise be. That is the way I assume the measure might work.

On the main point, the intention that the noble Lord has evinced is that there should be machinery to determine the steps to be taken pursuant to an offer to make amends which has been accepted, but that the fact that a good offer had been made and not accepted should not amount to a defence. Those modifications together would undermine the purpose of the offer to make amends. In making an offer, the defendant commits himself to making appropriate amends, which may include money compensation assessed by a judge. The incentive to commit himself in this way is provided by the knowledge that he will have an absolute defence if the offer is not accepted (unless it is shown that he knew or had reason to believe that he was defaming the plaintiff). The effect of taking that defence away is that once the defendant has made an offer, the plaintiff must win, and has nothing to lose by disregarding the offer and insisting on a trial. It is most unlikely that any defendant would then use this machinery rather than making a without prejudice offer. It is important to draw attention to the fact that this is an alternative. It is not the same as either a without prejudice offer or an offer of settlement. It is a more particular matter that is being addressed. If Clause 4 were to go, the position would be hopeless. The single most important part of the proposals made for reform remaining to be implemented would go if this were taken out of the package.

I think it is also worth saying that the approach of the Court of Appeal in recent cases, such as those of Elton John and Esther Rantzen, towards the control and rationalisation of libel damages, as well as running quite contrary to the modern attitude of courts towards litigation generally, would be affected in an inconsistent way if Clause 4 were not kept in place. In my submission, Clause 4 is an essential part of the machinery for this special type of offer of amends which is set out in Clauses 2 to 4.

Lord Williams of Mostyn

I am obliged to the noble and learned Lord for his exposition. I do not concur but my observations in respect of Clause 4 relate to the judgments of the Court of Appeal in the case of Elton John v. Mirror Group Newspapers which itself was not consistent with the Court of Appeal judgment which occurred shortly before that in the case of Rantzen. However, I shall withdraw my opposition on the basis that I may well return to it in due time.

Clause 4 agreed to.

Clause 5 [Limitation of actions: England and Wales]:

Lord Williams of Mostyn moved Amendment No. 30: Page 5, line 41, at end insert ("and (d) the conduct of the defendant after the cause of action arose including the extent (if any) to which the defendant responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiffs cause of action against the defendant.").

The noble Lord said: It may be for the convenience of the Committee if I speak to Amendment No. 30 which stands in my name and also indicate the basis of my opposition to the Question that Clause 5 stand part of the Bill because I have indicated my general approach to the Committee earlier.

My fundamental objection to Clause 5 is that it is wrong to take away a plaintiff's right, subject to exceptions, to the three-year period in respect of limitation. Amendment No. 30 includes a further relevant protection for a plaintiff who, if Clause 5 becomes Section 5 of the Act, may need further protection.

Perhaps I may make one or two general observations. If I stand on the pavement outside this House and am run over by the Evening Standard delivery van, I do not understand why I should have three years in which to claim in respect of my broken leg; but if another newspaper defames me, perhaps wounds my life more fundamentally than the break of my leg would represent or imply, I have only the one year. I know it will be said that there are exclusions. I do not see why there should be any reason in principle that a plaintiff should be limited to one year.

There is no legal aid for plaintiffs. Many plaintiffs are private individuals. Very often a plaintiff will want to take action—for instance, if he is a doctor or a member of a profession which is subject to an internal complaints machinery. Very often a plaintiff will have to save quite strenuously to afford the costs. If no legal aid is available, there is normally an inequality of arms between defendants, who tend to be well off, and plaintiffs, who, if they are not a member of a union or a professional organisation, are not well off.

Despite the explanations given on an earlier occasion, it seems to me that there is no proper reason to limit the limitation period to 12 months in respect of false material published which is defamatory as opposed to the personal injury example that I gave earlier.

I recognise, of course, that there are exceptions. But the court will tend to be rigid if the experience of the Limitation Act in personal injury cases is any guide. For the convenience of the Committee, I have sought to address the matter generally. I beg to move.

8.30 p.m.

Lord Lester of Herne Hill

On this occasion I have the misfortune not to agree with the noble Lord, Lord Williams of Mostyn. It seems to me that there is a major difference between a personal injury case involving an accident and the subsequent trial and a claim for defamation. The two main differences are these. Defamation cases are tried by a jury. The same factors which apply in criminal trials—the need for the trial to be brought on quickly while memories are fresh and the defendant given an opportunity to vindicate himself speedily—apply in defamation proceedings. The other factor is that the burden of proof is upon the defendant in a libel case. That is often a heavy burden and if the defendant has to shoulder it, it is right that he knows there is a fairly short time limit within which he will have to prove his case.

I therefore regard the Bill as sensible in giving one year as the limitation period. I do not think that there is a justification for a longer limitation period. But it enables the plaintiff to gather funds to be able to pursue his course of action.

The Lord Chancellor

I am grateful for the anticipatory support from the noble Lord, Lord Lester of Herne Hill, for what I shall say.

Clause 5 implements one of the major recommendations made by Lord Justice Neill's working group; and I need not remind the Committee of the depth of experience which resided in that group.

I think that I discern a difference between the situation in which, unfortunately, the noble Lord had his leg broken by a newspaper van and in which he was defamed either by that newspaper or another. The injury by defamation is an injury done at the time, and the sooner it is corrected the better for everyone. In so far as the injury to the broken leg heals, that is well and good. But the substitution of damages, which is the remedy, depends a good deal on how the injury turns out. One might hope that the injury would heal quickly and that so good and so straight would be the result that one would hardly notice the difference as the noble Lord walked on in his brilliant career. In that case the damages would be somewhat reduced. Therefore, a three-year period of limitation for personal injuries seems reasonable in regard to these circumstances.

However, as the Neill group said, in its experience it would be in only the most exceptional cases that a plaintiff could be justified in delaying for more than a year before starting defamation proceedings. That is the result of a great deal of experience. I think that all of us agree that the sooner these actions are taken the better for reasons of freshness of evidence and the like.

Looking at the law of limitation generally, I cannot anticipate what the Law Commissioners may say, for example, on the law of limitation on personal injuries.

As regards Amendment No. 30, we put the measure into the Bill as published for consultation. Following consultation, and in response to many comments on the clause, it was modified so that fewer examples of "all the circumstances of the case" to which the court might need to have regard were provided. The basic and essential provision is that the court shall have regard to all the circumstances, which was not the case under the previous legislation. Although the reason for and length of delay will always be relevant, and lack of knowledge will often be, it is clearly not possible to identify all the kinds of circumstances which could conceivably in any case be relevant for consideration.

Moreover, it was pointed out in consultation that the inclusion of a specific example could raise two expectations which it should not do. One possible expectation was that a plaintiff who could show that his case fell within that example must succeed. That is clearly not right if it is just an example of a matter which could affect the exercise of the discretion. The reason that we took that out in the final form of the Bill as laid before the Committee was in order to avoid those difficulties.

My answer on the main point is that there is an essential difference between the cause of action in defamation and the cause of action in personal injuries. The accumulated experience of the Neill Committee was in favour of, and recommended as a central recommendation, the limitation to 12 months. The discretion should be a completely open one and particular examples are on the whole unwise.

Lord Williams of Mostyn

I cannot detect a true difference in principle in the examples referred to by the noble and learned Lord. I am not employed as a manual worker. Therefore, if my leg heals up after six weeks I have no loss of wages or anything of that kind. If I am employed in a profession where reputation is important I may have special damage. The consequences of the dissemination of the defamatory material may be very wide and difficult to establish. I detect no difference in principle. I could understand a principled approach which said that the limitation period for the personal injury was to be the same as for defamation. But I fail to see any distinction in principle between 12 months for one and three years for the other. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 agreed to.

Lord Lester of Herne Hill moved Amendment No. 31: After Clause 6, insert the following new clause—

UNJUSTIFIED PROCEEDINGS FOR, OR ACTIONS IN RELATION TO, ALLEGED

DEFAMATION

"(.—(1) If a person (whether or not the person allegedly defamed) without reasonable cause issues a writ for defamation or by letter, advertisement or otherwise without reasonable cause threatens to issue such a writ, or otherwise without reasonable cause attempts to hinder the publication or further publication of allegedly defamatory material, the person aggrieved (whether or not the person to whom or against whom the threats or attempts were made) may bring proceedings against the person issuing the writ or making the threat or attempt, claiming any relief mentioned in subsection (4) below.

(2) In any such proceedings the onus of proving reasonable cause shall be on the defendant or defender but he may discharge it as follows—

1. (a) if he has issued a relevant writ, by undertaking to the court to pursue the consequent proceedings with due expedition,,
2. (b) if a relevant writ has not been issued, by undertaking to the court that such a writ will be issued forthwith and that consequent proceedings will be pursued with due expedition.

(3) Breach of any such undertaking mentioned in subsection (2) above shall, in addition to being a contempt of court, revive the plaintiff's or pursuer's right to claim the reliefs in subsection (4) below.

(4) The reliefs are as follows—

1. (a) dismissal of the writ,
2. (b) a declaration that the threats are unjustifiable,
3. (c) an injunction or interdict against the renewal of the writ or the continuance or resumption of the threats or attempts,
4. (d) damages, including (where appropriate) aggravated or exemplary damages.").

The noble Lord said: The amendment stands in the name of the noble and learned Lord, Lord Simon of Glaisdale, but I have given notice that I wish to move it on his and my own behalf. The noble and learned Lord asked me to apologise that it is impossible for him to be present this evening.

The amendment follows from a point raised by the noble and learned Lord during the Second Reading debate; namely, the notorious practice by some rich and powerful individuals in the commercial world and elsewhere to issue groundless or so-called gagging writs to suppress damaging information about themselves or their malpractices from the public. One of the most notorious examples was the practice of the late Robert Maxwell. He was able to take advantage of the fact that under the law of libel, as under no other branch of the law of tort, the burden is on the defendant to discharge the effective burden of disproving that the words published or to be published are false. That problem would be solved if the burden of proof were shifted. That is the subject of one of my later amendments. On the assumption that the burden remains upon the defendant, I submit that it is fair and reasonable to provide the defendant with an effective remedy for the unwarranted and groundless use of gagging libel writs.

The amendment is based on Section 70 of the Patents Act 1977. Prior to 1883, the position was that the proprietor of a patent could issue threats of proceedings for infringement without rendering himself liable for any damage which he might occasion thereby, provided that those threats were made bona fide. The 1883 Patents Act gave a statutory right of action in certain limited cases to any person damaged by groundless threats of infringement proceedings, whether or not such threats were bona fide. That right of action is substantially reproduced in Section 70 of the 1977 Act. As I explained, the present amendment is based on that section.

If a person were to issue or threaten to issue proceedings for defamation without any cause for doing so, the person to whom those proceedings were issued or the threats were made would be entitled to bring an action against him. If the defendant could not prove that he had a perfectly good cause for bringing a defamation action, the plaintiff would be entitled to various remedies, including an injunction to prevent the threats or the writ continuing and, where appropriate, damages.

Groundless threats by public figures to bring defamation actions accompanied by coercive prior restraints represent an unacceptable encroachment on free speech. The amendment would go some way to restoring the balance between the protection of reputation and the freedom of the press to keep the public informed by providing an effective remedy where the issue of proceedings is truly groundless. I beg to move.

Lord Williams of Mostyn

There is a mischief to be dealt with here, but it seems to me that the amendment is not the remedy for that mischief. If what the noble Lord, Lord Lester, called "prior restraint" is sought by way of injunction, no court gives an injunction if justification is the defence. He mentioned the late Robert Maxwell, for whom I have to say I acted and against whom I acted. But he was resisted. It is quite a roll call of honour to see who resisted him. He was resisted by Tom Bower and Sir Andrew Lloyd Webber who owned Aurum Press. He was resisted by "Panorama" which published its exposé of his misdeeds shortly before his death.

If one is trying to make the law of defamation simple, there is a danger that one will go the American route. That is not an exaggeration. Lawyers in the United States act on contingencies; many of them are now suing tobacco companies and it will not amaze your Lordships to know that the tobacco companies are now suing the lawyers acting on contingencies for improper suits. Now the lawyers who are sued by the tobacco companies for improper suits are themselves suing the tobacco companies on the basis of interference with their right to practise law. I am not sure that I can usefully say anything further in opposition to the form of the amendment, although I fully recognise that there is a mischief.

8.45 p.m.

The Lord Chancellor

I also recognise the possibility of a mischief but, as the noble Lord, Lord Williams, said, it is a mischief which can be resisted. I had the experience of defending someone unsuccessfully against an action on the basis of unwarranted threats in a patent action based on the design of cranes. The circumstances in which the provision exists in the patent legislation is a particular one. It is related to a right in something, whether as a proprietor or otherwise. The person who makes the threats is the person who has a right in the patent in question. So what the person is trying to do is unlawfully to extend the scope of his monopoly.

The section is limited to threats to bring proceedings, whereas the new clause goes somewhat further and includes the phrase, otherwise without reasonable cause….attempts to hinder the publication or further publication of allegedly defamatory material". For much the same reasons as were given by the noble Lord, Lord Williams of Mostyn, at the moment I do not feel able to go along with the new clause. It may be a matter for further consideration as to whether some other remedy may be found for the problem. But, as was pointed out, such things can be resisted. Perhaps that is the best defence to the mischief.

Lord Lester of Herne Hill

I am most grateful. I appreciate that where the defendant indicates that he intends to justify, no interlocutory injunction will be granted against him. The problem arises where the defendant is not able to prove the truth of the defamatory publication. It is in that situation where all or most of the knowledge is in the plaintiff and not the defendant that the problem tends to arise.

I am glad that all noble Lords who have spoken recognise that there is a problem. I am at the disadvantage that the architect of the amendment is not present. I am sure that he and I will carefully consider what has been said, to see whether we need to return to the matter. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Ruling on the meaning of a statement]:

Lord Williams of Mostyn moved Amendment No. 32: Leave out Clause 7 and insert the following new Clause—

RULING ON THE MEANING OF A STATEMENT

(" . In proceedings for defamation, the court shall not be asked to rule whether words are arguably capable, as opposed to capable of bearing a particular meaning or meanings attributed to them.").

The noble Lord said: The amendment relates to the difference between the phrase in Clause 7, the ruling as to whether a statement is arguably capable of bearing a particular meaning, and the proposal which I put forward, which concerns the defamatory words.

The question was raised by the Law Society, to whom I am grateful, as to whether one ought to concentrate on whether the words are arguably capable of bearing a certain meaning. If one deals with a statement, one is looking at perhaps the totality of the statement rather than the words in question. I beg to move.

The Lord Chancellor

The words were used in the version of the Bill which was published for consultation. We thought that we had made an improvement by substituting the word "statement" because that which has been published and whose meaning is in issue may not have taken the form of words or certainly not exclusively words. A cartoonist, for example, may be skilled in conveying a meaning without using any caption. To close that loophole, we have substituted the word "statement" which has an extended definition in Clause 17 and would cover any method by which a meaning could be conveyed. Accordingly, we believe that this is an improvement on the clause put out for consultation.

As will be recognised, we shall have to make a corresponding amendment to the rules of court under which the parties would make applications for rulings as to what the published material was actually, as opposed to arguably, capable of meaning. Like the earlier draft of Clause 7, the rules refer to the meaning of "words". It would be desirable to alter these to make the provision of the rules more in keeping with what is in the Bill.

I hope in the light of that explanation, the noble Lord will feel that in moving to what is in the Bill, we have improved on what was put out for consultation in the light of the responses to consultation.

Lord Williams of Mostyn

I am grateful for that explanation, which I accept. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Lord Lester of Herne Hill moved Amendment No. 33: After Clause 7, insert the following new clause—

BURDEN OF PROOF

(" In an action for defamation, the burden shall be upon the plaintiff to prove that the defamatory words of which he complains are false.").

The noble Lord said: I recognise that this is a bold amendment. I hope the Committee will bear with me if I take a little longer to explain it than I would any other subject. In moving it, I am greatly indebted to Mr. Desmond Browne QC, who, with his very great experience of the law of libel, told me that from his first week in pupillage he regarded this aspect of the law of libel as being the most unfair aspect of it.

Unlike the tort of malicious falsehood, the common law action for defamation is not an action on the case—that is, it is not dependent on proof of damage. It is derived from the common law crime of libel, whose essence was the tendency of all libels (whether defamatory, obscene, blasphemous or seditious) to create a breach of the peace.

Because the Star Chamber and its successor courts were concerned with the preservation of the peace, at common law truth was not a defence to criminal libel. Indeed, it was literally the law that the greater the truth, the greater the libel. The Star Chamber stated: For libelling against a common strumpet is as great an offence as against an honest woman and perhaps more dangerous to the breach of the peace, for, as the woman said, she would never grieve to be told of her red nose if she had not one indeed".

Section 6 of the Libel Act 1843 (Lord Campbell's Act) mitigated the rigour of the common law by providing a defence of justification, so long as, in addition, the defendant could prove that, it was for the public benefit that the matters charged should be published".

That is the source of the present defence of justification in civil proceedings, though there is no requirement for proof of public benefit. However, it explains why historically the burden of proof is upon the defendant.

A rule as to the burden of proof derived from the Star Chamber's concern with preserving peace is hardly consistent with modern day notions of freedom of speech. The public interest if often well served by the publication of defamatory words, for example, where a newspaper exposes a charlatan member of a profession or a dishonest businessman. So why should the newspaper have to assume the burden of proof? The question is seldom posed, and never answered. The leading textbooks merely state the rule as to where the burden of proof lies, without attempting any explanation of the rationale. Nor do they refer to authorities for the rule.

The existence of the rule has important practical consequences for the defence of libel actions. Villains can (and frequently do) recover substantial damages in libel without having to show that what has been published about them is false, or (in the absence of a plea of justification) without having to give discovery of the material documents. Libel counsel need to consider their position very carefully before pleading justification. They must have evidence to support the plea, or reasonable grounds for supposing that sufficient evidence to prove the allegations will be available at the trial.

The way in which the burden of proof on justification chills free speech was realistically described by the noble and learned Lord, Lord Keith of Kinkel, in Derbyshire C.C. v. Times Newspapers, in which I acted for the defendant newspaper, in this way. The noble and learned Lord said: Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public".

A leading academic lawyer, Professor Eric Barendt, has argued in his article in Public Law that if the remarks of the noble and learned Lord, Lord Keith, are taken seriously, as they must be, they provide a powerful argument for reversing the presumption of falsity in defamation actions, at least in actions brought by public officials and politicians".

There is no reason why the reversal of the presumption should be limited in that way. Public officials and public figures are not the only classes of person who may require exposure in the public interest.

As Barendt says, only two arguments have ever been given for the present incidence of the burden of proof. The first is the deterrent argument expressed by the Faulks Committee; namely, that the rule, tends to inculcate a spirit of caution in publishers of potentially actionable statements which we regard as salutary". That argument collapses if the approach of the noble and learned Lord, Lord Keith, based on the chilling effect, is accepted. The two arguments are plainly not consistent one with the other. Faulks echoes in that respect the Star Chamber. The approach of the noble and learned Lord, Lord Keith, for the Law Lords, reflects the strong commitment to free speech, for example, in Article 10 of the European Convention on Human Rights and in the common law.

The second argument used is that the plaintiff cannot be expected to prove a negative. Professor Barendt rightly describes this as, "surely only a debating point". Plaintiffs in actions for malicious falsehood have always had to discharge the burden of showing that the statements sued upon are false, and in practice do so without difficulty.

In its 1991 report on the civil law of defamation, the Irish Law Reform Commission, chaired I believe by Mr. Justice Hederman, examined the presumption of falsity and concluded, by a majority, that the onus of proof should be on the plaintiff to establish that the words complained of are true.

The majority of the Irish Law Commission referred to the chilling effect of libel, and stated that: The law of defamation should protect the citizen from defamatory statements which are untrue, not those which are true… The approach of the law should be that, while there is no public interest in the publication of false statements, there is equally no public interest in penalising the authors of true statements, particularly when they relate to matters of public concern".

The minority contended that to abolish the existing presumption would be to create an unfair presumption that anything said of the plaintiff, no matter how damaging, was true.

That argument by the minority is, I suggest, based on a misconception. The present amendment would result in there being no presumptions in this area of the law: no presumption that the defendant had wronged the plaintiff by the publication of an untrue defamatory statement, and equally no presumption that what the defendant said about the plaintiff was true. The plaintiff would simply be required to prove the commission of the alleged wrong by the defendant in accordance with the general principles of the civil law of tort.

The time has come to throw off the shackles of the Star Chamber and to adjust the law of defamation to contemporary notions of free speech. The noble and learned Lord, Lord Keith, and his colleagues pointed the way in the Derbyshire case with the acceptance of the concept of the chilling effect of the civil tort of defamation as it stands.

I apologise for taking so long. I beg to move.

Lord Williams of Mostyn

I speak against this amendment. In a action for defamation frequently the scales are uneven. The plaintiff is very often a private person. As I said earlier, legal aid is often not available. In a very substantial number of cases the defendants are extremely wealthy corporations with vast resources.

I take the citations from the speech of the noble and learned Lord, Lord Keith, in the case of Derbyshire County Council. But essentially I believe that relates to whether or not a public body has a reputation that is capable of being defamed. I do not believe that those remarks were intended to go or do go to the present question.

I put the matter on the basis of principle. A private person's reputation is his or her property. It may be of infinitely more intimate value than his or her home, which is presently defended by the law. If an attack is to be made on a private person's reputation, why should the attacker not have to justify it on the basis of taking on the burden of proof?

I give an example. I know that the noble Lord, Lord Aldington—he is not in his place at the moment—intends to speak later, but I am sure that he will not object to my poaching part of his territory. How on earth could he possibly have taken on the burden of proof in the case of Tolstoy and Ors? It would have been impossible for any private person.

It seems to me that balances may need to be redressed. The Court of Appeal, as the noble and learned Lord the Lord Chancellor indicated, has begun to redress the balance in terms of the excessive awards for damages which have recently been made. But to put on the plaintiff the impossible, intolerable burden suggested by the amendment tilts the balance far too far against the individual and far too much in favour of the multinational, very wealthy organisations which substantially control the public press and other media.

9 p.m.

The Lord Chancellor

I too speak against the amendment. First, it would be a major change in the law of defamation, with considerable ramifications, and the Bill does not attempt to do anything of that major kind.

As the Committee will be aware, Lord Justice Neill's working group—upon whose recommendations many of the provisions in the Bill are based—considered representations to the effect that the burden of proof was the wrong way round. However, as the group pointed out, it is normally the plaintiff who is the accused and who should be presumed innocent of the defamatory charge unless the defendant can prove that he was guilty; or, to adopt the phraseology of the noble Lord, Lord Williams of Mostyn, he is the person who has the reputation, and if somebody is going to seek to deprive him of it, that person should be under the obligation to show that that deprivation is justified. If the defendant can prove that the plaintiff was guilty, then his plea of justification will succeed.

The amendment would alter the whole structure of defamation law so that every hapless person against whom another chose to allege dishonesty, immorality, dishonourable conduct, incompetence and so forth would always have to prove his innocence in order to protect his reputation.

Professor Barend's comments are interesting. The one that I would wish to mention is part of what he described as the second reason—proving a negative. But it is a negative in which I would say the plaintiff normally has the right to have it presumed that the positive (that is, his reputation) is something of value to him.

The Irish Law Reform Commission, by a majority, decided to do that. I am not sure whether the Doyle—the Irish Parliament—has yet given effect to it. It may be right to wait to see whether anyone introduces it to the Doyle and, if so, what the result is. I also subscribe to the view that the observations of my noble and learned friend Lord Keith of Kinkel in the Derbyshire case were not intended to be as general as the defendant's counsel would seek to make them in this situation.

Lord Lester of Herne Hill

It is not my purpose to seek further to debate the point. The fact that the Irish Law Reform Commission was split three to two shows, I hope, that reasonable people can reasonably disagree about this. I remain convinced that one day, at some time in the future, the burden will need to be readjusted. It may be that the circumstances in which that will happen will be circumstances in which a specific kind of plaintiff is regarded as giving rise to the need to change the burden of proof. However, that is a matter to be dealt with by the courts rather than by Members of your Lordships' Chamber.

I am grateful for the explanations given. This may be the first time in which such explanations have been given in this Chamber. I am sure that Professor Barend will be particularly interested to see the fruits of his article having been commented on in the serious way in which they have. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Summary disposal of claim]:

Lord Lester of Herne Hill moved Amendment No. 34: Page 7, line 42, leave out from ("that") to end of line 44 and insert—

1. ("(a) there is no arguable defence to the claim on the ground of justification or fair comment or under section 1 (responsibility for publication) or section 3 or 4 (accepting an offer to make amends),
2. (b) there is no other defence which has a reasonable prospect of success, and
3. (c) there is no other reason why the claim should be tried.").

The noble Lord said: The present wording of this part of Clause 8 represents a slight variation to the draft Bill in the Lord Chancellor's consultation paper of July last year. To avoid summary relief being granted against him, a defendant now has to do more than show an arguable defence of justification or fair comment. It must appear to the court that there is no defence which has a reasonable prospect of success.

That is a heavier burden than confronts a defendant on an application for summary judgment under Order 14 of the Rules of the Supreme Court. It is difficult to think of a good reason why a defendant's right to defend a defamation claim should be so restricted. Amendment No. 34 would restore the wording of Clause 8 to the form it took in the draft Bill in the consultation exercise and, in my view, would provide a fairer test. I beg to move.

Lord Hoffmann

Amendment No. 34 looks like a minor change in language. The Bill says that the plaintiff may have judgment if there is no defence to the claim which has a realistic prospect of success. My noble friend Lord Lester would substitute for some defences, "no arguable defence" and for others, no other defence which has a reasonable prospect of success". This looks like a rather arcane dispute—the kind of thing which gives lawyers a bad name. But underneath there is a point of some importance. As my noble friend said, he chose his phraseology from the existing general summary judgment procedure under Order 14 because it is well worn and familiar. It has been used for more than a century in connection with applications for summary judgment or to strike out hopeless cases.

There are many cases in which judges have said what these little phrases mean. But the intellectual baggage that they bring with them is from a past time and different circumstances. They were defined by the courts at a time when cost and delay in litigation hardly seemed to matter. Summary procedures were regarded as something quite exceptional; and if there was the slightest prospect of an arguable point, the whole procedure of a full trial had to grind into action. The assumption was that only at a full trial could one have perfect justice.

In our day we have come to realise that if we insist on perfect justice, for many people there will be no justice at all. It is so perfect that hardly anyone can afford it. So the draftsman of the Bill—these are not my words—has deliberately broken away from the old formulae and all the resonances of the old procedures that they carry with them. The words "a realistic prospect of success" are ordinary English words. They have not been used before, but my noble and learned friend Lord Woolf tells me that they are in the draft of the rules for the summary procedure which he is preparing for general use in the courts. Together in this Bill with the very wide discretion which is given by the words, there is no other reason why the claim should be tried", they allow the judge to decide whether there is really anything in the case that needs to go to a full trial—is there really any justification for putting the plaintiff to all that trouble and expense?

Of course, judges are human, and sometimes they will get it wrong, but the more realistic approach to civil procedure which the noble and learned Lord, Lord Woolf, recommends and which we have adopted today is that one will never attain perfection in these matters. A jury sometimes also gets it wrong. The Bill as drafted is intended to encourage judges not to look back to the old Order 14 procedure but to use the power to grant summary relief in a vigorous, humane and commonsense way. I would urge your Lordships therefore not to retreat to the old language which comes from a different age.

The Lord Chancellor

I am grateful to my noble and learned friend Lord Hoffmann for his support for the clause as drafted. The amendment reflects what was in the clause put out for consultation. In the light of the consultation, and as one of the benefits of it, we saw a way considerably to simplify and to focus on the issue which, as far as I can see, is the correct issue to determine whether or not the summary disposal should be given effect. I do not know that the noble Lord, Lord Lester, actually suggested that there was anything wrong with Clause 8 in the sense in which it would deal with the matter. Rather, he preferred the more detailed but not so succinct version of the summary judgment clause. I would submit to the Committee that, as drafted, clear guidance is given as to the questions which the court has to ask, and the result on answering these questions is what justice would suggest was the right answer.

Lord Lester of Herne Hill

The last thing I want to appear to be is a traditionalist when it comes to the procedures of the 19th century. I am wholly persuaded by what has been said both by the noble and learned Lord, Lord Hoffmann, and by the noble and learned Lord the Lord Chancellor. However, I think that the noble and learned Lord, Lord Hoffmann, may turn out to be an optimist if he thinks that the members of my profession will not seek to graft onto the new phrase a great deal of the baggage from the past. But no doubt a Pepper v. Hart reading of this debate may serve to discourage that from happening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 35: Page 8, line 13, at end insert— ("This is not an exhaustive list of the matters which may be considered.").

The noble Lord said: This is an amendment by way of a probing query. It is to establish whether or not it is intended that in Clause 8(4) the statement of matters to which the court shall have regard is to be wholly and exclusively exhaustive. I beg to move.

The Lord Chancellor

This was in the clause for consultation. We concluded in the light of the consultation that it was redundant, and I think it is so. The intention is that these matters are ones that the court should have regard to. But they are not exhaustive.

Lord Williams of Mostyn

I am grateful to the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 [Meaning of summary relief]:

[Amendment No. 36 not moved.]

Lord Lester of Herne Hill moved Amendment No. 37: Page 8, line 22, leave out ("£10,000") and insert ("£25,000").

The noble Lord said: Under Clauses 8, 9 and 10 of the Bill, it is envisaged that every defamation action shall come at an early stage before a judge to determine whether it is suitable for summary disposal. The aim of the introduction of summary proceedings is, according to the Lord Chancellor's consultation paper, to offer a streamlined disposal procedure where the claim is straightforward and less serious. I find it disappointing, therefore, that the initial ceiling on the amount of damages that can be awarded under the summary procedure has been set at a level which is so low. I perfectly understand what has been said already in the debate by the noble and learned Lord, Lord Hoffmann, that it is not designed to deal with cases where the plaintiffs are after serious money. But at the moment few juries would award less than £10,000 to a successful plaintiff. Indeed, £10,000 would hardly begin to cover even the costs of the average plaintiff in a libel action, so heavy are the legal costs of proceedings of this kind.

I believe that the operation of the summary procedure is likely to be constrained as a result. Under Clause 8(3) of the Bill, a case will not be disposed of summarily unless the court is satisfied, that summary relief will adequately compensate [the plaintiff] for the wrong he has suffered". Unless judges were to adopt the attitude that the mandatory publication of an apology or the text of the judgment, provided substantial vindication for the plaintiff warranting a much lower award of damages, it seems likely that £10,000 will be considered such a small sum that the number of cases considered by judges suitable for summary disposal will be very restricted. That will entirely subvert the reasons for the introduction of the summary procedure, resulting in the procedure becoming merely an extra interlocutory stage in every defamation case and actually adding, perversely, to the cost and length of defamation litigation.

The alternative scenario is that judges will frequently dispose of cases summarily by awarding the maximum of £10,000 damages. Although that will be perfectly in accordance with the aims of the summary procedure, it will be likely to result in a host of additional appeals from disgruntled plaintiffs and the courts would then become overburdened. There is a power in Clause 9 for the Lord Chancellor to amend the maximum amount of damages by order. I suggest that it might be preferable for the Bill to be amended on its face to make it workable from the outset rather than seeing it amended by order in council at a later stage out of necessity because the summary procedure proved to be unworkable or much less used than it ought to be in practice. I beg to move.

9.15 p.m.

Lord Williams of Mostyn

I support this amendment substantially on the basis which was put forward by the noble Lord, Lord Lester of Herne Hill. It is true, as he said, that Clause 9(1)(c) allows for an order by the Lord Chancellor to increase the amount, but inertia being what it is, the temptation will be to say, "Well, Parliament thought that it was appropriate in 1996 and therefore there will be no significant increase for some time". It is simply a discretionary power for the judge to manoeuvre within the ceiling of £25,000. It is not a vast sum these days even in terms of personal injury awards, which are far too low, I suggest, and certainly in terms of what one expects in libel awards in the moderate area. Therefore, I invite the noble and learned Lord the Lord Chancellor to accede to this amendment.

Lord Hoffmann

I shall not repeat what I said earlier about the purpose of this procedure. Unless I misunderstood him, some of the points made by my noble friend Lord Lester of Herne Hill seemed to be based on a misreading of the Bill as it now stands, but they might have been properly directed to the Bill as it went out for consultation.

The Bill as it now stands states in Clause 8(3), Unless the plaintiff asks for summary relief, the court shall not act under this subsection unless it is satisfied that summary relief will adequately compensate him for the wrong he has suffered". In other words, if the plaintiff is making the application for summary relief and is content to have £10,000 or less, the court is not concerned whether that will be adequate. It is up to the plaintiff to decide that he is going to act under that procedure and choose that as his limit in order to get the other advantages of the summary procedure. It is only if the defendant is seeking to rely on the summary procedure and have the action dismissed as a trivial one, that the judge has to be satisfied that, come what may, the plaintiff would not be able to recover more than £10,000.

The Lord Chancellor

I gratefully accept the point made by my noble and learned friend Lord Hoffmann. But even with that point it is a difficult matter to decide what the rigid figure should be. The intention behind this series of clauses is to provide a reasonably speedy remedy for plaintiffs who are not particularly concerned about serious money, although in my book £10,000 is quite serious money. I can understand that others have a different appreciation of that. The precise level is difficult to decide. I do not know why £25,000 is thought to be a particularly appropriate amount either. The idea that a plaintiff should be able to go for that means that in many cases it will be an advantage to the defendant to accede to that procedure. I do not want to lose that because I want to give the person who wants a summary and rapid remedy a remedy which is likely to be attractive from the defendant's point of view also. The protection of the £10,000 limit is important for the defendant. I am willing to consider this further, but at the moment I am inclined to think that the £10,000 figure is reasonable for the purposes of this clause.

Lord Lester of Herne Hill

I am grateful to the noble and learned Lord, Lord Hoffmann, for correcting my misreading of the Bill. I suppose that my real concern is to set the figure as high as one reasonably can to compensate plaintiffs without deterring defendants from taking part in the procedure. I think that £10,000 is lower than the amount for which newspapers would be likely to settle under the procedure. It is a question of judgment.

The noble and learned Lord the Lord Chancellor asked: why £25,000? The answer is that in my practical experience that is the sort of figure which newspapers would tend to regard as a reasonable top limit for such a procedure. I am not saying that because that is what I have been told by newspapers; it is a judgment from my experience of seeking to settle cases. I still regard £10,000 as very low. I am seeking to tempt the parties into more and more settlements under this procedure by raising the figure. I am sure that this matter will have to be reconsidered at some stage and I would hope that it will be sooner rather than later. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 and 39 not moved.]

Clause 9 agreed to.

Clauses 10 and 11 agreed to.

Clause 12 [Evidence of convictions]:

On Question, Whether Clause 12 shall stand part of the Bill?

Lord Williams of Mostyn

This is a troublesome clause which, on the basis of the correspondence that I have received, concerns many who act in this area. Its consequence would be that previous convictions would be proof in respect of the plaintiff that he had committed the offence in question, but not in respect of the defendant or any person giving evidence on behalf of the defendant. I believe that that opens the door to collateral attacks on criminal convictions. It may cause unfairness to certain plaintiffs, such as doctors, other professional men, police officers and prison officers. The noble and learned Lord the Lord Chancellor was kind enough to write to me at length on the matter, but I am afraid that I remain unconvinced. I do not see why a plaintiff should be disabled whereas a defendant and/or his witnesses are not.

Lord Lester of Herne Hill

On this matter I respectfully disagree with the noble Lord, Lord Williams of Mostyn. As I understand it, the position is as follows: before 1968 a person's conviction of a criminal offence was not admissible in defamation or any other civil actions. That was amended by the Civil Evidence Act 1968 which provides that in a defamation action, the proof that a person has been convicted of an offence is conclusive evidence that he committed that offence.

The working group under the chairmanship of Lord Justice Neill explained in its 1991 report that the rule could operate unfairly in proceedings where the plaintiff is a person other than the one convicted of the relevant offence. Where a defendant made allegations about the conduct of a police officer, for example, or some other witness for the prosecution in bringing about the conviction, the plaintiff would have an artificial advantage in that the correctness of the conviction could not be challenged in an action for defamation arising out of the allegations. As the Neill Committee recognised, that could obstruct the defendant in justifying the allegations. Indeed, it would be likely to deter him altogether from making the allegations, chilling free speech. In line with the opinion of the Neill Committee, Clause 12 narrows the application of the rule which makes conviction evidence conclusive in those cases where the convicted person is the plaintiff or one of several plaintiffs in a defamation action. Proof of the conviction of any other person will still be admissible evidence under Section 11 of the Civil Evidence Act but it will no longer be conclusive. Consequently, if a newspaper decided to write a defamatory article claiming that a police officer had put the wrong person in gaol, in an action for defamation against the newspaper by that police officer the fact that the person in gaol had been convicted of a criminal offence would be admissible but no longer conclusive.

In my view, Clause 12 has welcome implications for freedom of the press and public discussion of the conduct of those who exercise public powers. Therefore, I welcome the clause as it stands.

The Lord Chancellor

I have already provided a fairly full explanation of this clause to the noble Lord, Lord Williams of Mostyn. I shall not weary the Committee by reading it out. Essentially, the reasons given by the Neill Committee for the recommendation upon which this clause is based are good ones. They have been elaborated somewhat by what the noble Lord, Lord Lester of Herne Hill, has just said. In a sense, a collateral matter of this kind should not be decided conclusively as a result of a conviction of a person when the person in question is not the plaintiff. I do not see why it should be so regarded. The matter has been raised by the Neill Committee, but I have not been able to find any satisfactory answer to that question. I hope that in the light of those explanations the noble Lord, Lord Williams of Mostyn, will feel able to allow the clause to proceed.

Lord Williams of Mostyn

Of course I shall. I still do not understand why a plaintiff should be disabled by the conclusive nature of the finding. I believe that there is a continuing possibility of mischief arising out of a collateral attack on the validity of a criminal conviction before a jury properly directed, possibly even after the matter has gone to the Court of Criminal Appeal (Criminal Division). However, on the basis of the indication that I gave earlier, I beg leave to withdraw the Motion.

Clause 12 agreed to.

Clause 13 [Basis of entitlement to damages]:

Lord Williams of Mostyn moved Amendment No. 40: Page 10, line 26, after ("damages,") insert ("but only after a finding in favour of the plaintiff on liability").

The noble Lord said: If Clause 13 becomes law it will lead to longer trials of defamation cases, more expense and a lot more evidence. If one does not restrict it, it will permit the leading of evidence substantially on credit, which at the moment is not allowed. My proposal is that if evidence of specific fact is to be admitted at all it should be admitted only after the jury has found in favour of the plaintiff on liability. Therefore, it would be true mitigation of damages. There would be no overlay between the proper assessment of damages and the question of whether or not the plaintiff was entitled to succeed on liability. The amendment is intended to give effect to the principle that one should be compensated only for damage to one's real reputation, as it were, and to avoid the confusion between liability—whether or not the plaintiff should succeed—and quantum of damages. I beg to move.

9.30 p.m.

Lord Lester of Herne Hill

I regret that I do not agree with the noble Lord, Lord Williams of Mostyn, on this amendment. It seems to me entirely sensible that the plaintiff should be entitled to recover no more damages for injury to reputation than he deserves when all the facts liable to affect his reputation in relation to the sector of his life to which the statement relates are generally known. Otherwise, if one makes a technical distinction between liability and damages, rather than look at it in a sensible way, given the reverse burden of proof, and so on, it means that unmeritorious plaintiffs will be able to recover more than they deserve. I therefore very much welcome the clause.

The Lord Chancellor

I do not believe that there is anything I can add to what I have said before as regards the clause generally. On the question of whether there should be a statutory rule, there is a passage in the Lord Justice Neill Working Group Report which might suggest that it envisages such a rule, where it says, "In such cases"—referring to the situation we have here: we would see no objection to liability being determined first, and the issue of damages being subsequently resolved by the same judge and jury in the light of the outcome on the pleaded instances of misconduct". It is implicit in that passage that the group did not envisage that evidence going to mitigation only would invariably be left until after the liability verdict. My understanding is that that is the correct interpretation of what the group said. The group agrees with the view that a statutory rule to that effect would not be helpful in practice.

There is no impediment of course to the two verdicts being separated if it appears that mitigation material could be prejudicial to the plaintiff on the issue of liability. That would be a matter for the court to determine in the light of the circumstances of the individual case. If that be right, no statutory power to separate them is required. The court can do that. Automatic separation in every case, whether necessary or not, is likely to increase the length of trials. None of us would wish to do that.

Lord Williams of Mostyn

I thank the noble and learned Lord for that explanation, but I am convinced that trials will become longer. Statements will be served and counter-served on endless material. To take an example, a doctor may be accused of defrauding the NHS. That is the sector of his life as a professional man. It is possible that evidence could be led that he had behaved indecently to a woman patient. It is the same sector of his life as a professional man—a doctor.

What will inevitably happen is that trials will become longer; the volume of evidence will become greater; and attempts will be made to blackguard plaintiffs on the supposed basis that that goes to mitigation. If the material is relevant only to mitigation, it has no proper part in the assessment of liability. Judges should therefore be constrained to exclude from the consideration of liability any material which properly goes only to mitigation of damages. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Lord Hoffmann moved Amendment No. 41: After Clause 13, insert the following new clause—

EVIDENCE CONCERNING PROCEEDINGS IN PARLIAMENT

(".—(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.

(2) Where a person waives that protection—

1. (a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and
2. (b) none of those things shall be regarded as infringing the privilege of either House of Parliament.

(3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it.

(4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.

(5) Without prejudice to the generality of subsection (4), that subsection applies to—

1. (a) the giving of evidence before either House or a committee;
2. (b) the presentation or submission of a document to either House or a committee;
3. (c) the preparation of a document for the purposes of or incidental to the transacting of any such business;
4. (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a committee; and
5. (e) any communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of members' interests.

In this subsection "a committee" means a committee of either House or a joint committee of both Houses of Parliament.").

The noble and learned Lord said: The amendment is put forward to deal with the problem which was raised on Second Reading by my noble friend Lord Finsberg. It arose out of a recent libel action brought by Mr. Neil Hamilton, a Member in another place, against a newspaper which published an article which meant, he alleged, that he had made corrupt use for private gain of his right to ask Questions of Ministers.

The action was stayed—in effect, terminated—by a judge on the grounds that the law forbade the courts to investigate anything which happened in Parliament. That meant that the court could not decide whether the allegation in the newspaper was true. It would not therefore be fair to allow the Member to sue for libel if the newspaper was not allowed to justify what it had written.

Most people would agree that if the newspaper was not allowed to prove that what it said was true, the Member should not be allowed to sue. Newspapers would be extremely reluctant to criticise what anyone said in Parliament if it meant that they could be sued while they had to stand with their hands tied behind their backs. That would be bad for government and bad for democracy.

The question is whether it is necessary to have a rule that the courts cannot for any purposes inquire into proceedings in Parliament. The judge who stayed the action followed a recent decision of the Privy Council on appeal from New Zealand which decided that such a blanket ban on questioning anything that went on in Parliament was derived from Article 9 of the Bill of Rights of 1689. That article provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. That article, with its echoes of the struggle with the Stuart kings, is primarily concerned with the freedoms and privileges of Parliament; the immunity of Members from prosecutions or actions for sedition or libel on account of their speeches or activities in Parliament. It has no obvious application to a case in which a Member of Parliament is not being sued or prosecuted for anything in which he is in fact the plaintiff.

In Australia it has been construed by one judge as concerned only with freedom of speech in Parliament and by another judge as not applying to a case in which a Member of Parliament is the plaintiff. But the Privy Council, in the case to which I referred, stated that over the years since 1689 it had come to have a much wider effect and it now amounted to a total ban on court investigation of any proceedings in Parliament.

The purpose of the amendment is to allow a person who may be a Member of either House, or neither, to waive so far as concerns him the protection of any rule of law which prohibits the investigation of proceedings in Parliament. The waiver does not affect the operation of the rule in respect of anyone else and, furthermore, the immunity of Members from any kind of action in respect of what they have said or done in Parliament remains sacrosanct and cannot be waived. Therefore, in the case that I mentioned, the Member could waive the protection of the rule so as to allow investigation of his own conduct by the court, but not that of anyone else.

The drafting of an amendment to deal with this matter is not easy. I have had the assistance of parliamentary counsel but I do not believe that either he or I would suggest that the form of amendment before the Committee is necessarily the last word on the matter. It raises a point of general public importance and another which is a technical point. I wish to deal first with the general point. The injustice which the amendment seeks to remedy is that a Member of either House of Parliament cannot, like any other citizen, sue to clear his name if he is alleged to have acted dishonestly in connection with his parliamentary duties. The argument against allowing him to do that is that Members of Parliament cannot be sued for defamatory comments that they make in the House about other people. Why, therefore, should they complain if they cannot sue other people for making defamatory comments about them?

I believe that the answer to this tit-for-tat argument is that the immunity of Members of Parliament under the Bill of Rights is not a private privilege for the benefit of individual Members. It is a privilege conferred upon the House as a whole in the public interest to ensure that there will be that complete freedom of debate which is necessary for the functioning of a democracy. All such freedoms have a cost and occasionally the privilege will be abused. But it is for the House to exert its own discipline and prevent its privilege from being exploited by individual Members for their own private ends.

On the other hand, there is no public interest which requires that a Member of Parliament should not be entitled to bring proceedings to vindicate his reputation if he is accused of dishonesty by a newspaper. Members of Parliament are like other men and women; if you prick them they bleed. If you injure their reputations why should they not also be entitled to vindication?

It is true that in theory, the House itself could conduct an inquiry into his conduct and pronounce upon it. One of the reasons which was given in the New Zealand case for complete abstinence by the courts was the possibility of a conflict between the views of the House and the decision of the court on the same question. But I believe that that possibility is rather theoretical. There is always a risk that an internal inquiry may divide the House on party lines and vindication by such an inquiry is never as satisfactory as by a judge and jury. Therefore, I do not believe that the tit for tat argument is a good one.

Members of the Committee will find plenty of saloon bar cynics whom nothing will persuade that any parliamentary privilege or immunity is in the public interest. But I do not believe that the original meaning of Article IX needs any defence from me. It is the wider rule that has been built on it which has been shown to need some adjustment to prevent it causing injustice in cases where there is no contrary public interest.

Finally, there is the technical point. The Privy Council in the New Zealand case said rightly, if I may say so, that Article IX was a privilege of Parliament and not of the individual members. It is a rule of law and not a personal right. Therefore, the amendment is phrased not as a waiver of the right but a waiver which, to a limited extent, disapplies the rule.

An alternative possibility would have been to allow the privilege to be released by a resolution of the whole House. But for the same reasons that I mentioned earlier, I do not believe that that would be very satisfactory because again there would be the possibility of party division. The majority of one party might decide whether or not to release the privilege according to how it felt about one of the Members opposite. Therefore, it seemed best to allow waiver by an individual but to confine its effect to him. It may be that other technical improvements will be suggested in debate here or in the other place.

There is an injustice which needs a remedy and I offer this amendment as an attempt at a constructive solution. I beg to move.

Lord Finsberg

As a non-lawyer, perhaps I may dare to say something about this proposed new clause. Perhaps I may say—and I hope not too frivolously—that having listened to the noble Lords, Lord Williams of Mostyn, and Lord Lester of Herne Hill, it reminded me a little of Box and Cox. If I ever require two lawyers, I could not do better than to have both of them because during the evening they have agreed to disagree with each other on many occasions.

I thank the noble and learned Lord, Lord Hoffmann, for taking up the point which I raised on Second Reading and for tabling the amendment which has been clearly couched with expert advice and moved with great elegance and eloquence. It seems to me that this provides the remedy for the injustice which I think has been done to my ex-colleague, Mr. Neil Hamilton, and, indeed, to my long-standing friend, Mr. Ian Greer.

I have looked at the amendment and I have listened to what the noble and learned Lord, Lord Hoffmann, said. I ask my noble and learned friend the Lord Chancellor to confirm that this applies to cases which have not been what I would call in layman's terms "ended" because for reasons adduced by the noble and learned Lord, Lord Hoffmann, it has not been possible for certain things to happen. That reassurance is needed and I very much welcome this proposed new clause.

Viscount Tonypandy

Perhaps I may follow the brave example of the noble Lord, Lord Finsberg, because I have been fascinated by listening to the legal profession as it has spoken in the Chamber.

The House of Commons feels deeply about its freedom of speech. The noble and learned Lord is absolutely right about that. But I never had the impression, throughout all the years that I served as Speaker, that it would somehow punish a Member, as it has clearly done in the case of Mr. Neil Hamilton, by not allowing him to defend himself properly. I hope that when the Lord Chancellor replies to the debate, he will make it clear that, whatever else he does, there will be no attempt to interfere with that complete protection of honourable and right honourable Members in another place when they speak.

I may say to the noble and learned Lord and to your Lordships that when an honourable Member defames someone outside the House, no one is more watchful or, sometimes, angry than the House itself. The House has its own way of punishing any honourable Member who defames someone who cannot answer for himself in the House. I believe that the noble and learned Lord the Lord Chancellor, as we all love the institution of Parliament, realises that, ever since the Bill of Rights, a cornerstone has been freedom of speech, with no harm to any honourable Member who speaks in the House. The House will deal with him if he goes too far.

9.45 p.m.

Lord Williams of Mostyn

I specifically disqualify myself from saying anything on this matter. The reason is plain: I have notified the noble and learned Lord the Lord Chancellor of the reason I acted for Mr. Hamilton and Mr. Greer and Mr. Greer's company. The only observation I am entitled to make is that it seems, objectively, a suitable reform for another place to consider.

Lord Lester of Herne Hill

The noble and learned Lord, Lord Hoffmann, is to be congratulated on his attempt to tackle a complex and very sensitive problem raised by the decision of the Privy Council, as he said, in Prebble v. Television New Zealand Ltd. in 1994, as subsequently applied in this country.

The problem is sensitive and complex for a number of reasons: first of all, it is part of the ancient, fundamental principles of the British constitutional system of parliamentary democracy that whatever arises in either House of Parliament ought to be examined, discussed and judged in that House to which it relates, and not elsewhere. That means that each House of Parliament, Parliament itself and the courts have to be astute in order to recognise and respect their different constitutional roles, and they do.

Secondly, it is sensitive because, as the noble Lord has indicated, it is part of the ancient privilege of Parliament enshrined in Article IX of the Bill of Rights that freedom of speech in debates or proceedings of Parliament ought not to be impeached or questioned in any court or place outside Parliament. That is a vital protection of parliamentary democracy.

Thirdly, it is sensitive because it is well established that Article IX stops any court from entertaining any action against a member of the legislature seeking to make him legally liable in criminal or civil law, so members of either House may freely defame their fellow citizens in the exercise of their right to free speech and remain immune from libel proceedings. Although one does not wish to encourage it, one would add, "and rightly so". That is a vital protection, going back to 1689.

Fourthly, it is delicate because the parliamentary privilege protected by the Bill of Rights is a privilege of Parliament as an institution and it cannot be waived by an individual Member of either House. As I understand it, there is an absolute prohibition, even when it is the MP himself who brings libel proceedings.

I agree with the noble and learned Lord, Lord Hoffmann, and the other noble Lords who have spoken, that the result of the Prebble case and its progeny has been to create a real injustice. It would be unfortunate, however, if this amendment were seen in some way to be especially for the protection of the rights of Mr. Hamilton or any other MP currently engaged in legal proceedings. We must deal with this, I suggest, as a matter of principle.

There is an element of rough justice about the present position. An MP is immune from being sued for libel for what he says in the House and, on the basis of the Prebble rule, he cannot sue for libel if he depends upon anything which would question proceedings in the House. Therefore there is a kind of reciprocity there, but it is not a fair one. My view is that MPs should be able to sue to vindicate their parliamentary reputation provided that it cuts both ways. Under the amendment of the noble and learned Lord, Lord Hoffmann, as I read it, it would cut both ways because if the MP did not waive the protection, then he would not be able to proceed with his action against the newspaper because the newspaper would not be able to defend itself and therefore the proceedings would be stayed.

The immunity of the MP under the Bill of Rights is a further reason for supposing that the common law might adjust the burden of proof in such cases through qualified privilege. That is not a matter that now concerns the Committee. There is, I think, the problem in the amendment of the notion of an individual waiver. It has been dealt with with great delicacy and rightly not mentioning the Bill of Rights and Article IX as such. But I can envisage problems that may arise where one MP exercises waiver and another MP does not and yet they are both in some way involved as parties or witnesses in the same or related actions. That may cause great difficulty.

It is admirable that the amendment has been introduced and it ought to be passed by this Chamber, but the place where it really needs to be carefully considered is in another place where, as I have indicated, their own position and privileges will be very much in the fore when this is considered. I hope that it can be considered in a way which quite transcends any individual case, any individual Member of Parliament and any individual political party. Having said that, I very much welcome the amendment.

The Lord Chancellor

I wish to express my gratitude to my noble and learned friend Lord Hoffmann for bringing forward this new clause and for—if I may quote my noble friend Lord Finsberg—the elegance and eloquence with which he did so. It has given the Committee a valuable opportunity to reflect on the substantial issues which the clause raises. Of course, as has been said, it is a matter of great importance for the other place but it also affects this place and the privileges of this Chamber.

As my noble and learned friend has explained, the clause would allow a person whose conduct in Parliament is in issue in defamation proceedings to waive protection such as that of Article IX of the Bill of Rights so as to enable evidence to be given in court, and findings made, about his conduct in Parliament. At the same time, the clause preserves the essential protection afforded by the Bill of Rights to Members of both Houses and others such as witnesses before parliamentary committees from any legal liability for anything they may say or do in the course of parliamentary proceedings.

As my noble friend Lord Finsberg reminded the Chamber at Second Reading, the matter has been focused because the learned judge stayed an action for defamation brought by Mr. Neil Hamilton and Mr. Ian Greer against the Guardian newspaper. The judge did so because he decided that the case could not be tried properly without hearing evidence about Mr. Hamilton's conduct and motives in tabling Parliamentary Questions which were the subject of the newspaper's allegations; and that evidence could not be heard because of the prohibition (by virtue of Article IX) on the questioning or impeaching by the courts of proceedings in Parliament. As has been said, that followed the earlier decision of Prebble v. Television New Zealand Ltd before the Judicial Committee of the Privy Council, in which, because of the provisions of Article IX, the committee found that the defendants could not use parliamentary materials to establish the truth of allegedly defamatory allegations made by them.

As the noble Lord, Lord Lester of Herne Hill, has said, this raises a matter of principle quite independent of any particular case. The case I mentioned is just an illustration of the situation in which it might arise. The case for the new clause is, in essence, that it would enable justice to be done in defamation cases such as that brought by Mr. Hamilton. Provided Mr. Hamilton waived his protection, which the clause would allow him to do, the defendants would be able to call evidence to justify their publication and the issue between them and the plaintiffs could be tried by the court. If the plaintiffs went on to win their case they would be able to recover damages which they could not do if they were forced to resort to the machinery which exists within Parliament for dealing with such cases by way of a complaint of privilege.

Therefore, there is a substantial case to be made for the amendment. On the one hand, any interference with the Bill of Rights is a matter of great importance which both Houses will be anxious to assess with the utmost care. I am particularly glad that the noble Viscount, Lord Tonypandy, was able to take part in the debate. His knowledge and experience of the privileges of Parliament in both Houses is very great. I am grateful that he has been able to be with us on this occasion and to contribute to the debate.

The particular way of proceeding which has been proposed inevitably involves an element of one-sidedness. A Member of Parliament would be able to put his conduct in Parliament before the courts when it suited him, but whether it suited him to do that, he would continue to enjoy absolute protection from liability if he so wished. I am sure Members of the Committee would agree that it is essential to preserve, as the clause does, the core privilege of protection from liability in respect of proceedings in Parliament, without which the exercise of free speech in Parliament cannot be fully upheld. But it must be admitted that there is a certain awkwardness in allowing the courts to question parliamentary proceedings only when it is to the advantage of the Member concerned—or, as he sees it, to his advantage.

Finally, I should make what is perhaps a slightly technical point—it has been referred to by my noble and learned friend Lord Hoffmann—that the privilege of either House belongs first to the House rather than to individual Members. In the words of Erskine May, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members". That is essential, in my submission.

That being the case, it may be remarked on that the clause envisages the waiver of privilege by an individual Member, without the House having any say in the matter. But giving the House a say in the matter—by making the waiver dependent on a resolution of the House—could conceivably lead to a greater mischief: a partisan parliamentary majority might decide capriciously to refuse a waiver—or worse, it might impose a waiver on a Member who did not wish to waive the privilege. That is the real question: whether it would be a matter for Parliament to decide, whatever the wishes of the Member, that the privilege in respect of a particular Member should be waived.

Those are among the considerations which the Committee will need to weigh. There is the point about other Members being involved either in that Member's conduct, or closely with it. The noble Lord, Lord Lester of Herne Hill, gave as an example a case where two Members seemed to be in almost exactly the same position. Their position in Parliament could be the subject of adverse comment if one waived the privilege and the other did not.

As I understand the clause—my noble friend will correct me if I do not have it right—it enables a person whose action had been stayed, for example, to waive the immunity and in consequence for the stay to be lifted to enable the action to proceed. If the clause were passed, it would have effect in respect of actions already stayed on grounds such as we have been discussing.

These are among the considerations which the Committee will need to weigh. Speaking as I do on behalf of the Government, their position is one of neutrality. Those are matters for the House rather than the Government. Ministers' concern is that this important issue should be properly ventilated in debate in each House. The Government will want to hear the views of another place in due course before taking a decision on how best to proceed. The debate in the Committee this evening will, I am sure, be of great assistance to Members of another place when they consider the question.

There is the problem of what we should do now. It is a matter of fundamental importance which has only recently been published in the sense of being added to the Marshalled List of amendments to the Bill. So that the whole House may have an opportunity of considering the matter fully before an amendment is made, it may be that my noble and learned friend will feel that the best course to take this evening is, having had the discussion, to withdraw the amendment. Then it can be moved again on Report, giving anyone who may read the debate but who did not have an opportunity to contribute the possibility of studying the subject before the House takes a final decision and the Bill goes to another place.

It must be right for this House to decide, one way or another, before the Bill passes whether it should adopt this clause or any amendment or refinement of it. As I said at the outset, it is a matter for both Houses of Parliament. There are particular sensitivities in the other place to which the noble Viscount referred. However, we too have an important interest in this aspect. Therefore, it is right that the House should decide whether the clause should be added. My noble and learned friend may feel that it is such an important issue that before it is added to the Bill it is considered again at Report stage. Other Members of the House who may not have fully appreciated its importance will then have an opportunity of considering the proceedings in this Committee.

Lord Hoffmann

I am grateful to my noble and learned friend for his remarks and particularly for his acceptance that there is a serious problem. It needs to be dealt with, if not by the precise clause then at least by a clause along those lines. I am grateful to noble Lords for their contribution to the debate. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Clause 14 [Reports of court proceedings absolutely privileged]:

The Lord Chancellor moved Amendment No. 42: Page 10, line 37, leave out from ("before") to end of line 41 and insert ("a court to which this section applies, if published contemporaneously with the proceedings, is absolutely privileged.").

The noble and learned Lord said: With Amendment No. 42, I wish to speak to Amendments Nos. 43 to 45 and 52. Amendment No. 42 is consequential on the recasting of Clause 14 which confers absolute privilege on contemporaneous reports of proceedings of courts in the United Kingdom. The effect of the amendment is that the courts to which the privilege applies are no longer referred to in subsection (1), which now simply refers to the courts "to which this section applies".

Amendment No. 45 is part of the same recasting as I mentioned in relation to Amendment No. 42. A new subsection is inserted to provide a free-standing list of the courts to which the section applies, so that contemporaneous reports of their proceedings will be privileged. It adds the courts attached to the European Court of Justice (which will include the court of first instance) and also the European Court of Human Rights. Those are all courts whose proceedings can have an impact in the United Kingdom in one way or another.

Amendment No. 52 is a drafting amendment to affirm that references to the European Court of Justice in the first schedule will include references to any court attached to the European Court of Justice, as the court of first instance now is.

On Amendments Nos. 43 and 44 in this group, perhaps I should wait to see what the noble Lord, Lord Williams, wishes to say. They are obviously connected and it may be convenient to deal with them all together. In the meantime I beg to move Amendment No. 42.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

I should advise the Committee that if Amendment No. 42 is agreed to, I cannot call Amendments Nos. 43 and 44.

Lord Williams of Mostyn

If it is convenient, perhaps I should indicate my approach to Amendments Nos. 43 and 44. It is on the same basis as indicated by the noble and learned Lord the Lord Chancellor. It seemed to some of us that an international war crimes tribunal, the General Medical Council and the Scottish Solicitors' Discipline Tribunal should be in the same categories.

Lord Aldington

I wish to comment from my experience of the European Court of Human Rights, which has been added to the Bill. The noble Lord, Lord Lester, knows what I am about to say. We are used to absolute privilege here. It applies to proceedings in courts at which all parties relative to proceedings are present and at which counsel obey rules, do not give evidence, and so on.

However, there was a recent case in the European Court of Human Rights which arose out of my libel action in which one of the defendants was the plaintiff against the United Kingdom. I was not a party. Because of the way in which these things happen, the newspapers reported things said in that court which were entirely incorrect and which were damaging to my reputation. My noble and learned friend should be aware that his department is well aware of my complaints in this matter.

I want to draw a lesson from that. We are used to applying these privileges to courts, and indeed to parliaments, which have some control over what is said. But the European Court of Human Rights seems to have a completely different procedure to the one to which we are accustomed. This particular case opened with the spokesman for the Commission giving evidence about the matters as background, which was quite wrong. It happened to cross what I knew to be correct and what had been said in my case. The case continued with the noble Lord, Lord Lester, who had been briefed wrongly. He was kind enough to say so, and corrected the record. But the mistakes he made, which were damaging to me, appeared in the newspapers.

It is doubtful whether we should give absolute privilege to proceedings in a court of that kind. The other way is to give them absolute privilege and try to see that the procedure is tightened up a good bit. It was a very extraordinary thing, as the noble Lord, Lord Lester, said to me, that the proceedings started with a representative of the Commission—which, as the Committee will know, examines cases before the court—actually giving some personal evidence of what he himself found when he was a young officer in the 27th Lancers in Austria. It was a very extraordinary way of conducting affairs. All that gets into the newspapers. I cannot think that it will be right for me. It does not matter. I have had the time and resources to try to correct what was in the newspapers; and I have done it. But it was damaging in the meanwhile.

That example provides a lesson for us all. It relates somewhat to what can happen in United Kingdom courts when there is an outburst during the course of proceedings by one of the parties and the newspapers do not report the proceedings properly; they report the outburst and only part of the proceedings. That is because usually they do not immediately report counsel's reply. That is possible here. Because counsel in a court here does reply, it is possible to get matters put right under the terms that it has to be a fair and accurate report.

The case at the European Court of Human Rights, because of the nature of the proceedings, was one of a private individual against a government. It was really a case against me, but I was not a party. I was not represented; I was not there; I could not correct anything that was wrong. Yet the newspapers can carry, the next day, something that is defamatory. I put that point to my noble and learned friend. I do not suggest that he alters the Bill at this moment, but I should like him to do something about it, because there will be others who, like me, are affected in that way in due course. He may say: you can deal with all that. I did. But it cost quite a lot of money and a lot of time. That is not a good way of conducting our affairs.

Lord Lester of Herne Hill

The noble Lord did not give me notice that he intended to make the speech that he just made. I feel a little embarrassed about it. Had he told me, I might have discussed matters with him in advance, and indeed returned to the documents in the case. In that case I appeared for Count Tolstoy against the United Kingdom before the European Court of Human Rights. What one has just heard is the views of one of the parties to that litigation who feels extremely strongly about it, just as my client himself did.

The issue raised by the noble Lord is whether it is right for the proceedings in courts, including the European Court of Human Rights, to be covered by statutory privilege. I listened to him carefully and believe that he recognised, in the latter part of his speech, that the kind of injustice that he feels, rightly or wrongly—I emphasise both words, "rightly" and "wrongly" without taking sides—is an injustice that many people who are parties to litigation feel when they read reports in newspapers about the conduct of proceedings.

I was an amusing victim this morning when I found myself described in the newspapers as acting on behalf of the traitor George Blake. In fact, I was not; I was acting as the amicus in the case. But I was described in that way with a lot of comments made to me afterwards. That is one of the facts of life that occur with a free press when it is reporting proceedings in courts or, for that matter, in Parliament.

As somebody who has had a great deal of experience of the European Court of Human Rights, in my view it operates independently and impartially as a real court. I know that the noble Lord, Lord Aldington, does not agree either with what was said by Sir Basil Hall, the delegate for the Human Rights Commission who appeared before the court, nor with some of the statements that I made on instructions that were reported in the press. But that is no argument for withdrawing statutory privilege from our courts or from the European Court. As was said many years ago, justice is not a cloistered virtue; the public are fully entitled to know, on the basis of a fair and accurate report of proceedings in public before the courts, what is going on in those courts.

The noble Lord, Lord Aldington, has had every opportunity to make his point known in this Chamber and I am glad that he has had a chance to do so. However, I do not think that that in any way casts doubt on the wisdom of Clause 14 and the inclusion of the European Court of Human Rights within it.

The Lord Chancellor

I understand well my noble friend's concerns in these matters. I know a good deal about the detail of the matter to which he referred. It is a matter of judgment as to which tribunals and so forth should go into the list. The important thing is that what is protected is a fair and accurate report of the proceedings in public before any court.

Without going into any specific situation—I shall not refer again to the circumstances of the particular case—if something is said against an individual in a court and that something is also flatly contradicted in the course of the same proceedings, a fair and accurate report of the proceedings would incorporate those comments. I leave that case and turn to a case where someone is represented wrongly as representing the traitor George Blake. I imagine that that was not a fair and accurate report of the proceedings in that specific case either, unless the submissions were of such a character that someone could fairly and accurately report them as having been made by a representative of George Blake, notwithstanding that the noble Lord, Lord Lester of Herne Hill, was not instructed on behalf of George Blake.

The point is that it is only a fair and accurate report of the proceedings that is protected; it is not a defence to an action of defamation, in my understanding, that the thing simply emanates from a hearing in public before a court. It must be circumscribed by being a fair and accurate report of the proceedings. That is probably the right answer to this matter. In the meantime, I hope that the Committee will approve Amendment No. 42.

10.15 p.m.

Lord Williams of Mostyn

Before the noble and learned Lord sits down, he indicated that he might offer a view on Amendments Nos. 43 and 44.

The Lord Chancellor

I am looking further at the question of Amendment No. 43 because one needs to see what others have done in respect of that. I have instituted inquiries. The General Medical Council and the Scottish Solicitors' Discipline Tribunal are tribunals exercising certain powers. The Scottish Solicitors' Discipline Tribunal would be singled out for some reason—I think possibly because it was mentioned in the excellent briefing of the Law Society of Scotland. It has an English equivalent so it would probably be less clear.

The general rule I have followed is that domestic tribunals are not given the same benefit as those tribunals which are courts. The definition of "court" which I have used consistently in such legislation as I have been concerned with in this area is "a tribunal or body exercising the judicial power of the state". I initially picked that up from the Constitution of Australia and certain of the decisions made there. That gives the essential character of a court and that is why it has been used.

It would not be right to extend the absolute privilege to tribunals which are in the nature of domestic tribunals. There is an argument about whether the particular tribunals to which the noble Lord refers in Amendment No. 44 are of that character. The law has been that domestic tribunals attract qualified privilege under paragraph 14 and that it would not be right to extend the absolute privilege to tribunals of that kind. That is my response.

On Question, amendment agreed to.

[Amendments Nos. 43 and 44 not moved.]

The Lord Chancellor moved Amendment No. 45: Page 10, line 45, at end insert—

("() This section applies to—

1. (a) any court in the United Kingdom,
2. (b) the European Court of Justice or any court attached to that court, and
3. (c) the European Court of Human Rights.

In paragraph (a) "court" includes any tribunal or body exercising the judicial power of the State.").

On Question, amendment agreed to.

Clause 14, as amended, agreed to.

Clauses 15 and 16 agreed to.

Clause 17 [Interpretation]:

The Lord Chancellor moved Amendment No. 46: Page 11, line 30, leave out ("except as provided in") and insert ("but "publisher" is specially defined for the purposes of").

The noble and learned Lord said: I spoke to this amendment with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Extent]:

[Amendment No. 47 not moved.]

Lord Williams of Mostyn moved Amendment No. 48: Page 12, leave out line 23.

The noble Lord said: This amendment speaks for itself. I believe it to be acceptable to the noble and learned Lord the Lord Chancellor.

The Lord Chancellor

I accept the amendment.

On Question, amendment agreed to.

Clause 18, as amended, agreed to.

Clauses 19 and 20 agreed to.

Schedule 1 [Qualified Privilege]:

The Lord Chancellor moved Amendment No. 49: Page 14, line 29, after ("any") insert ("member State or").

The noble and learned Lord said: In moving this amendment I wish to speak also to Amendment No. 50. Amendment No. 49 is a small drafting amendment to avoid any suggestion that the provision in paragraph 9(b) is intended to exclude reference to authorities performing governmental functions in relation to the whole of a member state as opposed to in relation to part only of that state. Amendment No. 50 is a drafting amendment which affirms, in case otherwise there could have been any doubt, that the expression "governmental functions" includes "police functions" both in the United Kingdom and in other member states, so that fair and accurate copies of or extracts from notices or other matter issued for the information of the public by those exercising police functions will attract qualified privilege under Clause 15 of the Bill. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 50: Page 14, line 31, at end insert— ("() In this paragraph "governmental functions" includes police functions.").

The noble and learned Lord said: I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 51: Page 16, line 33, at end insert— (" . A fair and accurate report of a correction or apology pursuant to section 2 of this Act.").

The noble Lord said: As the Bill currently stands, it is possible that a publisher might find himself in the position where, if libel proceedings against him were disposed of under the new offer of amends procedure and he was obliged as a result to publish a correction and apology, a third party might come along and claim that the published correction or apology was a libel of him. That is by no means a fanciful possibility. Frequently, libel proceedings arise out of complicated factual situations involving a considerable number of people, each of whom blames others involved for the scandal that has arisen. Where that happens one or more of the parties involved-might bring libel proceedings.

Under Clauses 2 to 4 of the Bill it is possible that these will be disposed of by way of offer of amends. It might well be impossible, however, to devise a suitable correction and apology in fulfilment of the offer of amends without implying, or even in some cases stating, that other parties involved in the affair were implicated in a way which could be defamatory of them. This amendment would confer qualified privilege on corrections and apologies published by way of offer of amends, reducing the risk that an editor might find himself out of one libel frying pan into the fire of another. I beg to move.

The Lord Chancellor

I understand the reason why it might be thought that reports of the outcome of an offer to make amends should have a special privilege, but I believe that a special privilege for that situation would be unnecessary and have unfortunate consequences. The outcome of an offer to make amends would not often involve a fresh defamation of a person who had not been involved in the original dispute. But if it did, it would raise the question of why a third party had been defamed.

One reason might be that the parties to the offer, and acceptance of the offer to make amends, had been motivated by the desire to gain publicity for their defamation of someone else, knowing that, although they themselves were not worth suing, anyone reporting their publication would have no reason to look into their motives. It does not seem to me right that the reporter of a settlement between two parties should automatically be licensed to pass on their defamatory comments on one another. I should have wanted to consider this amendment if it were shown that a responsible reporter who had not been aware that the reputation of a third party could be adversely affected by the report in respect of which no other defence would be available had made the report in question. I believe that to have a kind of general licence to give special privilege to this type of statement would be rather wider than justified.

Lord Lester of Herne Hill

I am grateful to the noble and learned Lord for showing me that the amendment does not do complete justice. It seems to be a case where complete justice probably cannot be done. I would like to think further about it to see whether there is some method of dealing with the problem I have raised in a more proportionate way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 52: Page 16, line 46, after ("Justice") insert ("(or any court attached to that court)").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Remaining schedules agreed to.

House resumed: Bill reported with amendments.

House adjourned at twenty-five minutes past ten o'clock.