Defamation Bill [H.L.]

HL Deb 16 April 1996 vol 571 cc628-56

7.25 p.m.

Report received.

Clause 2 [Offer to make amends]:

Lord Lester of Herne Hill moved Amendment No.1: Page 2, line 43, leave out ("publish or join in the publication of") and insert ("come forward and join in the making of a public statement in open court which is").

The noble Lord said: My Lords, in Committee I raised the issue of judicial control over the published prominence of apologies and I wish briefly to raise it again. Much of the debate appeared to involve some confusion between two distinct situations. The first is where an apology is made as part of a voluntary offer of amends under Clause 2. The second is where an apology is ordered by the court by way of summary relief under Clause 9.

As a result, the operation of the new defence of offer of amends was not fully discussed. In order to avoid any confusion on this occasion, I shall speak only to Amendments Nos. 1 and 17, which relate to the offer of amends, and shall not move Amendments Nos. 6 and 8, which relate to summary procedure.

I turn to Amendment No. 1. As I mentioned in Committee, as Clause 3(3) is currently drafted where the parties do not otherwise agree, the courts will be given a new coercive power to specify the terms and timing of any correction and apology offered by a defendant by way of amends for the publication of a defamatory statement. The media—that is every newspaper and television company with which I have been in contact—fear that misuse of this quite exceptional new judicial power will bring them into direct conflict with the courts. The net effect will be that a newspaper editor or broadcaster faced with the ultimate prospect of being compelled to publish an apology or correction with a prominence which he considers was not merited would be most unlikely to be willing to make an offer of this kind. Enabling the court to dictate a form of apology which might not be wholeheartedly meant by a defendant would, as your Lordships agreed in Committee, be pointless and threaten editorial integrity and independence and unduly fetter the freedom of the press.

In Committee the noble and learned Lord the Lord Chancellor said that, in introducing the machinery of the defence of offer of amends, the Government are seeking: to provide a way in which parties will be brought together to reach a sensible conclusion which will be for the benefit of both plaintiffs and defendants".—[Official Report, 2/4/96; co1.230.]

I wholeheartedly endorse the aim of an early conclusion to proceedings which achieves a fair balance between the competing interests of defendant and plaintiff. However, I am bound to say that I do not believe that that will be accomplished in practice by Clause 2 as it currently stands.

I most respectfully ask the noble and learned Lord the Lord Chancellor whether the matter might be given further consideration. As a result of the reform of the existing defence of innocent dissemination in Section 4 of the Defamation Act 1952, greater numbers of defendants will find themselves legally able to make an offer of amends. Whether they will then be willing to do so is another question entirely and one to which almost every media organisation in the UK would currently answer no if it resulted in the effective transfer of editorial control to the High Court. I suggest that what matters is not whether one agrees or disagrees with the media, but that the media regard it as fundamental to their free expression. I suggest that we should take note of that if we want the procedure to be used in practice, as we all do.

I turn briefly to Amendment No. 17. In Committee I listened to the concerns of the noble and learned Lord the Lord Chancellor on this issue. I drafted the amendment in an attempt to meet them. As the Bill currently stands, it is possible that a publisher may find himself legally bound to publish a correction or apology in fulfilment of an offer to make amends. As a result of terms required by the plaintiff or dictated by the court, it may prove impossible for the defendant to frame an apology or correction without thereby actually or potentially libelling a third party.

I take a real example. In the recent case of Mr. Nigel Watts, the defendants—Times Newspapers—apparently mistakenly published a photograph of Nigel Watts, the property developer, to accompany an article defamatory of Nigel Watts, the author. Nigel Watts, the property developer, complained to the defendant which offered to publish an apology. The plaintiff's solicitors subsequently pressed for the inclusion in the apology of words which resulted in the defamation of Nigel Watts, the author. The defendant newspaper, in order to achieve an early settlement, published in good faith an apology in the terms desired by the plaintiff and then found itself exposed to a libel action by a third party—Nigel Watts, the author.

It may be true that the outcome of an offer to make amends will not often involve a fresh defamation of a person who had not been involved in the original dispute. But there is a gap in the law, as the Watts case illustrates.

There is also the Tracy v. Kemsley Newspapers type of situation where the newspaper's apology to the plaintiff left it exposed to a libel action by the author of the article—a journalist who was so outraged by the apology which he said was defamatory of himself and his craft and skill that he sued for libel as a result of the apology. I respectfully suggest to your Lordships that we should take this opportunity to fill the gap, however small it may be.

In Committee, the noble and learned Lord the Lord Chancellor expressed the concern that parties to an offer of amends might collude in order to gain a licence, under the umbrella of privilege, to defame a third party. But my amendment would confer only qualified privilege on corrections and apologies made in good faith. It would always be open to a third party to prove that a correction or apology was perpetuated by malice or was a result of a conspiracy.

At present, the code of practice of the Press Complaints Commission places newspapers under a duty to correct and to apologise for inaccuracies. Apologies and corrections resulting from a social and moral duty under the voluntary code should be protected. The amendment is merely an attempt to confer qualified privilege on corrections and apologies published in good faith by defendants keen to achieve a swift and sensible settlement. If it is envisaged under the present Bill that proceedings will be disposed of increasingly by way of an apology and correction, then we should take the opportunity to ensure that editors do not find themselves out of one libel frying pan into the fire of another. I beg to move.

7.30 p.m.

Lord Williams of Mostyn

My Lords, I support the purpose which underlies the amendments to which the noble Lord, Lord Lester of Herne Hill, has spoken. Again, I am not entirely happy in my own mind that the form of his amendment in respect of Clause 2 really meets the mischief which he wishes to avoid. It may be better to have: Publish or join in the publication of", as an alternative to: come forward and join in the making of a public statement in open court". However, it does not seem to me that that necessarily deals with the legitimate concern of newspapers arising under Clause 3(3).

I support the noble Lord when he says that it is not reasonable for a court to be able to direct an apology to be printed in terms and in a position with which the editor does not concur.

I am in a position to wholeheartedly support the noble Lord in relation to Amendment No. 17. I must declare an interest in that I was acting for the newspaper at one stage, as the noble Lord may have been at another, in respect of the two men named Nigel Watts. The only benefit was to lawyers and that is not a small benefit, of course. But nobody had behaved badly. It was found, at first instance and also in the Court of Appeal that there was not any qualified privilege in such circumstances. It seems to me, in a Bill which is only tinkering at the edges of reform, to be a useful amendment. I support wholeheartedly both the motive and the wording of Amendment No. 17.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, as I understand the noble Lord, Lord Lester of Herne Hill, in introducing Amendment No. 1, he spoke of the misuse of this new judicial power. If I have misunderstood, then obviously I shall be corrected.

It is important that that power should be in the hands of the judiciary. I would expect, as would most of us, that that would be used appropriately. If one has been defamed in large letters on the front page of a newspaper which has a large circulation, to receive a correction and apology in diminutive print just above the details of the publisher would be regarded by many as slightly unsatisfactory, to put it mildly.

The Times editorial published on the last day on which this Bill was considered used a dramatic example of the "News at Ten" being introduced by an apology followed by a statement of considerable general political importance in the country. That was because it was thought the judge would have ordered that to take place. It is almost possible to imagine that but I do not believe that it is a realistic scenario.

I am anxious that the problem which I mentioned at the outset is dealt with adequately. But I am also anxious of course that this procedure should be used. Therefore, I wish to reach the best possible solution to the problem. I have initiated discussions with various representatives of the media to see whether we can find an accommodation. There would be difficulty in adopting the words proposed by the noble Lord, Lord Lester of Herne Hill, for, among other reasons, that given by the noble Lord, Lord Williams of Mostyn.

We must try to see whether there is a solution which allows not only for a public recognition of the defamation in the case to which this applies but also a publicised recognition of it. I am anxious to see that the power to require publication is hedged round sufficiently to make it impossible to have the sort of scenario which The Times article suggested, which I do not think would be justified even on the basis of the present Bill. But if I can improve it in that respect, I shall be happy to do so.

My stance in relation to Amendment No. 1 is that I see the problem which the noble Lord puts forward. There are also other problems associated with it. I am anxious to try to secure a solution. I hope that by the time we reach the next stage of the Bill I may have managed to do that to the satisfaction of the noble Lord and the media while at the same time maintaining the interests of those who may have been defamed.

On Amendment No. 17, I notice a coincidence of desire between the noble Lords, Lord Lester of Herne Hill and Lord Williams of Mostyn. What I find difficult about the amendment is that in order to gain a solution to the problem of one person—the party defamed—a privilege is to be given to defame somebody else. I do not see why that should happen. I cannot for the life of me see a justification in an apology to the one Nigel Watts to defame the other. It is possible that there are reasons for it; indeed, I know that the noble Lord, Lord Williams of Mostyn, said that there was a small but not unimportant benefit to the lawyers. Well, no doubt that was so, but I would not, perhaps, wish to encourage that particular type of benefit.

On the other hand, I do not see why it is that the defamation so far as directed against the other Mr. Watts should be protected. Similarly, if a newspaper wants to defend itself and apologise by blaming the journalist who supplied the material, I do not believe that that kind of activity ought to be protected by qualified privilege. As I believe the noble Lord, Lord Williams of Mostyn, said, common law does not apply that doctrine of qualified privilege to such a situation. On that point, I believe that the common law has developed in a way that is satisfactory.

The common law qualified privilege applies, in my submission, in a wholly different context from that which is the subject of the amendment. There is a qualified privilege for statements made in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive them. But, in those cases, the person claiming to have acted under such a duty will be the defendant, who will have to prove his own good motive if the defence is to succeed. Moreover, even if that privilege is upheld, it would not protect repetition beyond the situation in which the duty and corresponding interest applied. In other words, while the defence of qualified privilege applies between the two people, it does not apply outside of that situation if the information is used beyond the area to which the duty applies.

The particular type of qualified privilege that the amendment would introduce into our law, I believe for the first time, would presumably cover the publication to whomsoever and over whatsoever period. Therefore, while I see a certain problem, I do not see why trying to remedy it for one person should be a reason in effect for depriving another person of protection which, apart from that, he would have had in the ordinary law of defamation. Therefore, I fear that I do not envisage any clear way forward in relation to Amendment No. 17, although I do believe it is possible to find a way forward in relation to Amendment No. 1.

Lord Lester of Herne Hill

My Lords, I am extremely grateful to both speakers. I am grateful to the noble Lord, Lord Williams of Mostyn, for his strong support and I am most grateful to the noble and learned Lord the Lord Chancellor for being so alive to the problems that have been raised and so open-minded about possible solutions.

I shall deal first with Amendment No.1. I should like to clarify the fact that I do not believe I said that I was concerned about the misuse of judicial power; indeed, I am concerned that the power itself, properly used, would be regarded as coercive and that it would result in the media not making sufficient use of the procedure because they would see, rightly or wrongly, the court's function as usurping their role. However, I am most encouraged by the response of the noble and learned Lord as regards the need, if possible, to find a solution which strikes a fair balance. I am certainly not wedded to the particular form of words set out in the amendment.

I turn now to Amendment No. 17. I should point out that I have no direct professional interest to declare, unfortunately, because I have not acted for a newspaper or for either man known as Mr. Watts. I listened to the noble and learned Lord the Lord Chancellor and he has persuaded me, subject to any afterthoughts, that it would be very difficult to accept my amendment without creating the further problem that he described. I refer, for example, to the problem that, in such a situation, a journalist would then be aggrieved but would have no remedy against the newspaper which had cast the blame upon him. Of the two amendments, the first one is far more important because it goes to the very heart of the procedure. I beg leave to withdraw the amendment, but I shall return to the issue at a later stage.

Amendment, by leave, withdrawn.

7.45 p.m.

Lord Williams of Mostyn moved Amendment No. 2: Page 3, line 12, leave out ("not").

The noble Lord said: My Lords, there are several amendments tabled in my name this evening. If I may, I propose to adopt the same approach to all of them and simply raise the questions fairly briefly, because many of them were fully traversed on the last occasion. Moreover, it is not my intention to press any of my amendments to secure the feeling of the House.

Amendment No.2 relates to Clause 2(5) which says: An offer to make amends under this section may not be made",

after the service of, "a defence in defamation proceedings".

The present mechanism for making an offer to make amends is almost wholly unused. As I understand it, the principle behind the improved mechanism is that those who wish to compromise—that is, defendants who are defamers—should be encouraged to do so. Therefore, it seems to me to be inconsistent and wrong that the mere service of a defence in defamation proceedings debars a defendant defamer who sees the light, who makes further investigations and who realises that what he has done is wrong, from using the mechanism of the offer to make amends. It may or may not be appropriate in every circumstance; indeed, it might be reasonably refused. Nevertheless, the opportunity ought to be there and I respectfully beg to move the amendment.

Lord Lester of Herne Hill

My Lords, I strongly support the amendment. I do not believe that it is necessary for me to declare any particular professional interest. However, as someone who has acted for newspapers which find that they have made mistakes, I can only say that the ones who find a way out (which will vindicate the plaintiff without the expense and agony for both sides of a trial) are at present driven, many times against their will, either to pay wildly excessive damages—in other words, to throw money at the problem unnecessarily and unjustly—or to go to trial with all that that implies. Anything that could be done to extend the procedure beyond the very early stages of the process seems to me to be extremely desirable. Indeed, the more that we can make the procedure work properly the better. As I said, I strongly support the amendment. I very much hope that there can be flexibility in the area so as to make the procedure somewhat attractive, not just in the very short space of time when the proceedings are originally launched.

The Lord Chancellor

My Lords, it is certainly quite desirable to have a degree of flexibility. But, on the other hand, the procedure is designed to deal with the matter expeditiously at the start of the proceedings. Indeed, one of my advisers has described it as a quick "hands up" way of curtailing the proceedings. It is not designed for later stages and, therefore, I find it difficult to accept the view that we should allow it to be used at any time, as would be the effect of removing the word "not" from the subsection. As I understand it, it would simply make the provision available at any stage in the proceedings.

As the noble Lord, Lord Lester of Herne Hill, said, defendants may realise at some stage in the course of the proceedings that they have made a mistake and may realise that they should not have lodged defences. Well, mistakes sometimes have an effect. In such a situation it is still possible for them to settle, although the terms of settlement may be rather different from what they would have been if they had not lodged the defences in the first place.

The special machinery provided in Clauses 2 to 4 is neither needed nor intended as a substitute or alternative formal procedure for cases that have reached the stage of defences having been lodged. It is designed to provide immediate amends avoiding all the trouble and expense of conventional proceedings where the defendant comes forward at once ready to minimise and make up for the harm he has done. This has advantages for both sides in achieving a mutually satisfactory outcome quickly and cheaply. The plaintiff knows that proper amends will be made without his having to go through an action, and the defendant knows that the steps which he will have to take once he has committed himself to an offer will be reasonable.

The question is why the machinery should not be made available to cut short proceedings which have already gone further down the line, since the lack of immediacy could be reflected by a larger award. There would, I think, be dangers in this. If we try to give the same advantage to the honourable defendant who has been misled by his sources or advisers as to those who have immediately admitted their wrong, advantage could also be taken by those who were less "honourable" and simply did not bother to make appropriate inquiries before deciding to contest the claim or saw the machinery as a useful fall-back to guarantee that they would never have to face a full trial even if the plaintiff was not intimidated by the pleaded defences.

It was suggested on the previous occasion—and I think it is implicit in what was said tonight—that defendants may need more time to make their decisions before lodging defences. Of course there will be flexibility in that. A defendant who has had time to decide to contest the claim on the basis of a particular defence has also had time to make the inquiries on which that decision is based. However, it is right to consider the interaction which this new machinery will have with the new provisions for summary disposal. Under Clause 10 there is an express power to make special rules as to summary disposal. These may include modification of the rules usually governing the timetable for serving pleadings and authorising the court to require a defendant to elect, at or before the summary disposal hearing, whether to make an offer to make amends. In practice, therefore, the defendant may have rather longer to make his inquiries and make his election than if the standard timetable applied.

Therefore I believe that there is an opportunity in the procedures which we are introducing to give defendants a longer time to make their decisions than perhaps exists at the present moment. I believe that is a better type of flexibility to introduce than to allow this procedure to be used after defences have been lodged, when it is a procedure which is really designed to avoid the necessity of a case going that far. I hope that that will meet the type of flexibility that is asked for, and that therefore the noble Lord will feel able not just to withdraw his amendment but to feel reasonable satisfaction that the point is properly dealt with.

Lord Williams of Mostyn

My Lords, I shall certainly not press my amendment, but with great respect to the noble and learned Lord the Lord Chancellor, I do not think that he has dealt with the matters that I and the noble Lord, Lord Lester of Herne Hill, have addressed. A quick "hands up" has its virtue but it would often be brought about after the issue of a writ. Even if the Bill becomes an Act and reduces the limitation period to 12 months, the "hands up" will not necessarily be quick. Speed and shorthand have their value but that is not an overwhelming value. I say with great respect to the noble and learned Lord the Lord Chancellor that the purpose of this offer of amends procedure is to produce settlement not trial, certainty not uncertainty and, as the noble and learned Lord said, to avoid trouble and expense. If there is an easy mechanism available to defendants who find themselves to be in the wrong, why should it not be available? Not all newspapers are ignoble in what they print. Some of them simply honestly get things wrong. Sometimes their sources are not, in the end, reliable. Sometimes further documentation or evidence will come to hand. A defendant is obliged on the rules to serve his defence fairly promptly and it seems a folly to disentitle him from this relief, which may, of course, be a disadvantage from the plaintiff's point of view also. Having said that, and indicating generally that I may well want to return to these matters yet again, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Lord Williams of Mostyn moved Amendment No. 3: Leave out Clause 4.

The noble Lord said: My Lords, this amendment reflects the same approach as underlay my previous amendment. At present Clause 4(3) indicates in respect of offer to make amends: There is no such defence if the person by whom the offer was made knew or had reason to believe that the statement complained of—

1. (a) referred to the aggrieved party or was likely to be understood as referring to him, and
2. (b) was both false and defamatory of that party".

The simple proposition I put forward is that if the defendant's defamer repents, discovers different information and comes to a different conclusion, why should the offer of amends not be available to him? It would be of benefit to him, to the plaintiff in many cases and certainly to the benefit of the system generally. I beg to move.

Lord Lester of Herne Hill

My Lords, once again I respectfully agree with the noble Lord, Lord Williams of Mostyn. One should bear in mind that the burden of proof is cast upon a defendant. No one wants to encourage newspapers to be irresponsible. The law is strong in preventing that. However, it seems to me that this is again an unnecessary limitation upon the new procedure. For the reasons given I support what has been said.

The Lord Chancellor

My Lords, it must be my fault that two such experienced practitioners press upon me such an obviously simple and highly desirable change. However, that is not the way that I see the effect of this amendment. As I understand, its effect would be to undermine the whole purpose of the offer to make amends which has been widely welcomed and is designed to encourage defendants who realise they have erred to take immediate steps to right admitted wrongs. Everyone will benefit if there is an incentive for the defendant to make an offer and for the plaintiff to accept an offer for amends which will provide a satisfying conclusion making conventional proceedings unnecessary.

But in making an offer the defendant must commit 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—which is the effect of leaving out Clause 4—would be 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. The amendment removes a carefully prepared balance. If the plaintiff has nothing to lose by disregarding a genuine offer, I find it difficult to see how the defendant has anything to gain by making it. The machinery provided in Clauses 2 and 3 would have very limited usefulness and would not, without Clause 4, have the desired effect of encouraging sensible settlement. Therefore it seems to me that Clause 4 is an essential part of the mechanisms of Clauses 2 and 3.

However, that does not seem to be the basis on which this amendment has been proposed. That gives me cause for concern, but at the moment that is my position.

Lord Williams of Mostyn

My Lords, I am sure that the amendment could have been more felicitously phrased but I think that the purpose behind it is quite plain. Both I and my noble friend Lord Lester of Herne Hill have tried to explain it. The noble and learned Lord the Lord Chancellor said that the purpose of the new and improved procedure is to right admitted wrongs. We entirely agree. The noble and learned Lord also said that its purpose is to bring about sensible settlements. We entirely agree with that. It is not the whole clause that one is focusing on—although the amendment is crudely put—it is Clause 4(3). I say with great respect that we are simply suggesting that, if one wants to right admitted wrongs and produce sensible settlements, one should shut the door on no one who wishes to avail himself or herself of that opportunity. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Lord Williams of Mostyn moved Amendment No. 4: Leave out Clause 5.

The noble Lord said: My Lords, this is now our old friend; namely, the matter of limitation being reduced from three years to one year. I put forward my stance on the previous occasion we discussed this matter. I am not sure that I can advance my case by putting it further at any great length except to say the following few words. First, plaintiffs have no legal aid in libel cases. Defendants are often wealthy and powerful. To limit a defendant to 12 months to take action is therefore capable of being unjust. Secondly, I see no distinction in principle between a limitation for personal injury of three years and a limitation of one year for libel.

Thirdly, there is a category of persons—doctors, prison officers and police officers, to take a few examples at random—who are often subject to internal disciplinary complaints procedures which are frequently not concluded before the one year is up. It is always open to a judge, and judges frequently direct juries, that if a plaintiff has delayed in bringing his action that may have some effect, first, in damages, and, secondly, as to whether or not they believe the plaintiff in his complaint that he has been wounded, or even that his complaint is genuine. Most plaintiffs—as I believe was said on the last occasion—bring their actions fairly quickly, but many are not able to do so either because they lack financial resources or because other extraneous matters such as disciplinary procedures or criminal cases disable them from bringing their cases within the one-year period. I beg to move.

8 p.m.

Lord Lester of Herne Hill

My Lords, I shall not take up your Lordships' time by repeating what I said last time. On this occasion I respectfully disagree with the noble Lord, Lord Williams of Mostyn.

Perhaps I may clarify one point. The noble Lord referred to disciplinary procedures taking a long time. It is a long time since I looked at the Limitation Act 1980. In replying, can the noble and learned Lord the Lord Chancellor explain whether in such a situation the court would have a discretion to extend time in relation to the limitation period? Although the cause of action will accrue, is there not a discretion to extend time in circumstances where real hardship could be shown? I have the impression that that was the position. In any event, I support the stance taken in the Bill and would not wish to change it in any way.

The Lord Chancellor

My Lords, I have always found some difficulty about limitation generally. There is always a question about precisely what purpose it serves and what the principle should be on which it should proceed. A good deal of concern has gone into that subject matter over the years. The more I have seen of detailed provisions of limitation, the more complicated they look.

The amendment would amount to the rejection of one of the major recommendations by Lord Justice Neill's working group—namely, that the limitation period both for actions in defamation, and actions for malicious falsehood, should be reduced to one year, but that there should be a discretion to extend the period. Therefore there is in the Bill, in this situation, a completely open discretion to extend the period.

I have considered quite carefully, in particular in relation to some of the examples that the noble Lord, Lord Williams of Mostyn, gave last time, whether the discretion should be in some way elaborated so as to indicate what might be done in particular situations. However, I have concluded that that would be unwise. On the whole, judicial discretion in this area without any circumscription would be the right answer. I am comforted in the view that that is correct when I consider the attempts made to limit judicial discretion in other types of limitation. They produce tremendous complexity and metaphysical distinctions of comparative fineness.

The recommendation of Lord Justice Neill's working group was made after careful consideration of the reality and all the issues arising in considering the time limits which should apply to defamation proceedings. Your Lordships will remember that the personnel of the working group were extremely experienced in this area of the law. The group pointed out that only in the most exceptional circumstances could a plaintiff be justified in delaying for more than a year before starting proceedings. It is almost always in his own interest to do so as soon as he knows that he has been defamed. If he acts at once, his action can minimise or even prevent any substantial damage, which is why he has a cause of action, and presumably why he chooses to take proceedings.

This is very different from a personal injuries claim, where it may not immediately be apparent to an injured person that his injury is attributable to some other person's fault, and his action, however prompt, cannot halt, minimise or prevent the injury: indeed it may be impossible to assess the inexorable long term effect of the injury. It is right, therefore, to require particularly swift action as the norm in defamation cases.

The group gave examples of circumstances (other than the plaintiff's lack of requisite knowledge during the running of the limitation period) which would justify extension. The present law allows extension only in the narrow case of when the plaintiff in defamation (not malicious falsehood) did not acquire the relevant knowledge until after the period had expired. Thus this clause is in two ways more generous to plaintiffs than the old ones, since the strict limitation rule may be relaxed, for instance, in favour of a plaintiff who only acquired the requisite knowledge at the eleventh hour, or a plaintiff who had some other good reason for not starting proceedings within the period prescribed.

In my submission, the balance of a very ample judicial discretion is the answer in relation to those cases where there is a special reason for not taking action within the year. I therefore think that it is right that your Lordships should give effect to the recommendations of the Neill Committee having regard to the reasons which it has given and which I have sought both to summarise and to elaborate.

Lord Williams of Mostyn

My Lords, I am most obliged for that summary and elaboration. I regret to say that I remain unconvinced. I do not think that the discretion allowed for in Clause 5 is a completely open judicial discretion since it is circumscribed to an extent by the terms of new Section 32A.

The noble and learned Lord confessed a difficulty with the metaphysical principles of limitation. I do not seek to swim in those waters. However, on limitation one is dealing with balancing the plaintiff's right with the defendant's certainty. Of course it is in the plaintiff's own interest to get on with his claim as soon as possible, but that is true of almost every claim in almost every circumstance in tort. However, if lack of money or the other extraneous circumstances which I indicated tell against that interest being immediately asserted, then it does not seem unreasonable to have the full three-year period.

Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 5: After Clause 6, insert the following new clause— UNJUSTIFIED PROCEEDINGS FOR, OR ACTIONS IN RELATION TD, 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.

(5) The provisions of this section apply mutatis mutandis to the law of criminal libel.").

The noble and learned Lord said: In moving Amendment No. 5, I speak also to Amendment No. 12, which is intimately linked with subsection (5) of Amendment No. 5.

The amendments originate in the speech of the noble Lord, Lord Lester of Herne Hill, at Second Reading. He referred to the notorious mischief of gagging writs. I intervened in the gap to suggest that there might be a model in the patent code whereby what is in effect a gagging writ for infringement of patent may be actionable unless it can be justified.

The noble Lord, Lord Inglewood, who was standing in for my noble and learned friend in replying and who was obviously hotly in pursuit of an honorary silk gown, promised that the matter would be considered in Committee. I accordingly drafted an amendment based on a Patent Act. I could not move it; I had already left London. But it was admirably moved, if I may say so, by the noble Lord, Lord Lester of Herne Hill. There was, too, a helpful speech from the noble Lord, Lord Williams of Mostyn, and my noble and learned friend the Lord Chancellor. All were agreed that there is a problem here: the problem of the gagging writ. The only question is how it should be dealt with. I accordingly put down the amendment again for the Report stage. I wrote to my noble and learned friend during the Recess telling him why I had done so; in other words, asking for his views as to the procedure for dealing with the mischief. He ensured that his answer was in my hands this morning and I am most grateful for it. I know what he has in mind and naturally I shall leave it to him to explain it. I am well content with what he told me.

There is one difference in the amendment which I have put down on Report from the one tabled at Committee stage. The amendment today is in the form that I originally submitted to the Public Bill Office which took the view that subsection (5) and the attendant Amendment No. 12 went beyond the scope of the Bill as they invoked the law of criminal libel. The Public Bill Office kindly pointed out by letter, which I received while I was away during the Recess, that in Clause 20(2) expressly criminal libel is declared to be no part of the Bill.

I took the view that it was important that the two provisions should come before your Lordships for this reason. If, for example, a Mr. Maxwell were precluded from showering gagging writs, he would merely shower gagging summonses for criminal libel. I ventured to disagree with the Public Bill Office as to the scope of the amendment and its propriety. I accordingly insisted that it should go on the Marshalled List so that as a House your Lordships would be able, as you are entitled, to take a collective view as to an amendment's propriety. I do not intend to press the matter to a Division, but I start from the point that all speakers on the previous occasion agreed that there was a problem which required solution.

I tried to draft an amendment modelled on Section 70 of the Patents Act 1977. Obviously, it required considerable modification in the translation from patent to defamation. I concede that the drafting can be criticised in a number of respects, but the amendment is down so that it may be considered.

Only one real objection was raised by my noble and learned friend, who picked up an observation of the noble Lord, Lord Williams. The noble Lord drew attention to a number of respects in which defendants had defied the gagging writs issued by Mr. Maxwell. That is true, but it is not an answer. That some stout-hearted people stand up to that kind of threat is no reason why those who succumb to fainter hearts should not be protected. After all, there are plenty of stout-hearted people who stand up to threats of blackmail. "Publish and be damned", said the Duke of Wellington to Harriet Wilson. But that does not prevent us from having a law of blackmail reiterated in code after code.

In my respectful submission, something needs to be dealt with here. When I wrote to my noble and learned friend I suggested that either the Law Commission should examine it or a reconvened Neill Commission. My noble and learned friend has given me reasons which he will no doubt develop as to why there should be an alternative method of dealing with it and I accept that.

As I do not intend to press the amendment to a Division, I only need to deal briefly with my new subsection (5) and its attendant Amendment No. 12. The reason I took the view that I did, notwithstanding the advice of the extremely able officers of the Public Bill Office, in the end comes down to this. The draftsman thought it desirable to provide expressly for the exclusion of criminal libel. That is not quite conclusive because the draftsman quite often puts in such a provision from an abundance of caution. But it is not in the form of being for the obviation of doubt, "It is hereby declared", etc. It is set down as an enacting provision as though there were something there for it to bite on. In other words, it is at least arguable that some provisions of the Bill would extend to criminal libel but for that provision. That is why I presumed to insist on the matter being in black and white before your Lordships. I beg to move.

8.15 p.m.

The Lord Chancellor

My Lords, I believe that it is the appropriate procedure for me, on behalf of the Leader of the House, to draw attention to the advice, to which my noble and learned friend clearly referred in his speech, which was given by the Clerk of the Parliaments to the Leader of the House. It was to the effect that subsection (5) of Amendment No. 5 and the later Amendment No. 12 are beyond the scope of the Bill for the reasons given. The principal reason is that the Public Bill Office takes the view, as it would in all other Bills dealing only with the civil law, that any amendment which deals with the criminal law is irrelevant; that is, beyond the scope of the Bill.

In view of what my noble and learned friend said about what he wished to do, in a sense it is academic, but it is right for me to draw the matter to the attention of the House as being the advice which the House has received from the Public Bill Office.

Lord Lester of Herne Hill

My Lords, I am delighted that the noble and learned Lord, Lord Simon, is present this evening to move what always was his own amendment. With his great authority, experience and eloquence, he moved it far more effectively than I attempted to do on the previous occasion when he could not be present. The point of procedure raised is one that I perfectly understand and am alive to.

The reason why in debate it is important to examine the criminal implications of a civil Bill of this kind is that there is something extremely special about the civil law of defamation; namely, it springs entirely out of the criminal law. As I said on the last occasion, this is a creature of the jurisprudence of the Court of Star Chamber. The entire civil law of libel comes from it. Therefore, quite apart from the point raised by the noble and learned Lord, Lord Simon of Glaisdale, when trying to understand why we are where we are in relation to civil law, one needs to look over one's shoulder to see the nature of the criminal law.

I think everyone in the House who spoke last time, as the noble and learned Lord said, agreed that there is a problem in relation to the misuse of the civil law of libel. The problem is there because, unlike any other tort, the tort of libel places the burden of proof on the defendant to prove the truth of the publication. I sought to deal with that on the last occasion. I am told that the Australian Law Commission—perhaps it is the Law Commission for New South Wales—recommended, as did the Irish Law Reform Commission, that the burden should be shifted. Given that that is not likely to happen in this House in our lifetime, one of the consequences of the reverse burden of proof is that it enables the Robert Maxwells of this world to issue gagging writs. Unless the defendant is able to swear on oath that he intends to justify, which may be extremely difficult at the interlocutory stage, there is then the danger of an interlocutory injunction being granted.

Everyone is aware of the problem. The solution put forward by the noble and learned Lord, Lord Simon of Glaisdale, is an ingenious one from another field, another kind of intellectual property, namely, patent law. I am encouraged to look forward to any remarks by the noble and learned Lord the Lord Chancellor as to an appropriate way of dealing with the problem. In principle, I very much support the intention behind the amendment.

The Lord Chancellor

My Lords, I am grateful to my noble and learned friend Lord Simon of Glaisdale for his courtesy in letting me know his intentions in relation to the amendment and the other to which he has spoken, and for his remarks about my letter to him.

The question is how far the problem extends. It is true that a problem is created; but I do not know exactly how widespread the particular problem is. Most of the examples given relate to a particular plaintiff who is not in a position to issue any more such writs. Therefore, from that point of view, that aspect of the problem may have been resolved. However, I see the force in requiring us to consider the matter.

The circumstances of patent law are a little different from those referred to here. Patent law is intended to deal with an abuse of the monopoly power itself which the state has conferred in the shape of the patent. These unjustified threats were used in effect to extend the monopoly beyond that which the state had granted. In that sense the state had a special responsibility for seeing that that does not happen.

In the defamation field the matter is rather different. There are other areas, too, in which unjustified threats can be made. The ordinary remedy is to defend the action. And in our system of jurisprudence there is the sanction of cost. That is an important part of our system. It is one which those on the other side of the Atlantic are certainly aware of and in some cases now use. So that particular sanction is available.

What I propose, as I stated in the letter to my noble and learned friend, is that I should undertake, in the department, to consider this matter further. I want to try to find out how extensive the problem is, or continues to be, and to see what is regarded as the best solution to it. Obviously, that cannot happen in the context of this particular Bill. I have no doubt that the law of defamation will require further reform as time goes on. This is a matter that requires more thorough investigation than we are able to give it in the context and timetable of this particular Bill. All the proposals in the Bill have already been the subject of considerable consultation, many of them coming from Lord Justice Neill's working group. I propose therefore to take the matter forward in this particular way.

It may well be that, having done so, I shall want to try to see whether a reconstituted group might help. At the moment I want to find out more about the extent of the problem before setting up machinery to deal with it. I hope that with those assurances my noble and learned friend will feel able to withdraw his amendment, feeling that the purpose for which he brought it forward has been served and that the problem will not be lost sight of, but will be further investigated.

Lord Simon of Glaisdale

My Lords, my only regret about flouting the wishes of the Public Bill Office is that I seem thereby to have forfeited an intervention by the noble Lord, Lord Williams, whom I know has no love for criminal libel.

As to my noble and learned friend, I need say only this. The problem is not confined to Robert Maxwell and his machinations. I raised this matter, although I cannot remember the circumstances, long before Maxwell started to use the gagging writ. Moreover, one can think of other examples.

I do not like mentioning the first case, that of Mr. John Profumo, since he was a ministerial colleague and by his devotion to the service of his fellow man ever since his fall from grace has put all of us to shame. But there was an example of the issuing of a writ which effectively closed down a newspaper revelation about a matter which was subsequently admitted to be true.

The second case I can think of is that of the Moonies, who were very prolific in relation to gagging writs. They were very successful for a long time in hindering investigation into their less salubrious activities.

Therefore I do not accept that this is an isolated problem. It is a serious problem, as was demonstrated in Committee. I am perfectly satisfied that my noble and learned friend should have the matter investigated in his department so long as he puts a stick of ginger behind those who investigate it. With those observations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Meaning of summary relief]:

Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 6: Page 8, leave out lines 24 and 25 and insert— ("(b) an order that the plaintiff have leave to make a statement in open court at such time and in such terms as the court may determine if the parties cannot agree;").

The noble Lord said: My Lords, although this amendment was tabled at Committee stage, I chose not to move it. I intend to do so now instead.

As it is currently worded, Clause 9 would enable a court, following summary judgment, to prohibit the publication or republication of the matter complained of. That is a potentially far-reaching prohibition. On its face it would appear to prevent a newspaper, for example, publishing any further articles on the issue out of which the plaintiff's complaint has arisen, even where new developments and facts have subsequently come to light.

In Sir William Blackstone's parlance, it is a sweeping prior restraint. The present amendment would confine the scope of the court's power following summary judgment to restrain republication of the original defamatory statement. That is why I have sought to narrow it to cover the real vice, not to be over-broad and disproportionate by covering wider matter which, as I said, would be covered by the Bill as it stands.

The Lord Chancellor: My Lords, I am not sure whether the noble Lord is speaking to Amendment No. 8. Certainly the amendment would remove the power of the court to order the defendant to publish a correction or an apology, even if an appropriate wording had been a matter on which the parties reached agreement at the conclusion of the case.

Lord Lester of Herne Hill

I am so sorry, my Lords. The amendment that I seek to move is Amendment No. 7. I shall not move the earlier amendment.

The Lord Chancellor

My Lords, I am grateful to the noble Lord. The amendment that I should call is Amendment No. 7.

Baroness Trumpington

My Lords, Amendment No. 6 has officially not to be moved before we reach Amendment No. 7.

[Amendment No. 6 not moved.]

8.30 p.m.

Lord Lester of Herne Hill moved Amendment No. 7: Page 8, line 29, leave out ("matter") and insert ("statement").

The noble Lord said: My Lords, I apologise for my mistake. I have now spoken to the amendment. I beg to move.

The Lord Chancellor

My Lords, I am grateful that we have reached Amendment No. 7. This is a matter which I would wish to consider. Since we have produced a special definition of the word "statement" which was brought in following consultation, and other provisions of the Bill have already been modified, I am grateful to the noble Lord, Lord Lester of Herne Hill, for identifying this provision as one where it might be appropriate to use the term which we have expressly defined elsewhere in the Bill to provide a clear and certain description. Many other terms have been used in defamation law generally to describe the same thing—that is, what has (or may have) been published and was (or may have been) defamatory, and is the reason why an action has been brought.

The context here is slightly different, however, as this paragraph is directed not to what the defendant has already published but to what he may publish in the future. Those future publications from which he should be restrained would not necessarily take exactly the same form as the statement which has been considered in the proceedings. It may be that he could devise another statement in a completely different form but conveying the same meaning as that which he has been ordered not to make or repeat as the case may be. That is the reason why the word "matter" has been used in this special context. But I should like to consider further the noble Lord's amendment.

Taking the patent situation, obviously, in a patent infringement the defendant is usually subject at the end, if he is found to have infringed, to an injunction against further making or using the particular subject-matter of the invention, as he has already used it, and any comparable imitation of it often. So one wants to be sure that just by a very small change one could not get out of this particular form of order. But I feel that the noble Lord's amendment raises the question of whether we should consider the matter further or whether it should be elaborated somewhat. I am grateful to him for that and would be happy to consider it further.

Lord Lester of Herne Hill

My Lords, the gratitude is on my part for the sympathetic way in which the noble and learned Lord the Lord Chancellor has approached the matter. It is common ground that we must seek to avoid unnecessary and excessive restraints on free speech. I am greatly encouraged. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Clause 12 [Evidence of convictions]:

Lord Williams of Mostyn moved Amendment No. 9: Leave out Clause 12.

The noble Lord said: My Lords, this amendment relates to the benefit which is given to one party and taken away from another in libel actions. In other words, the present Clause 12 in some circumstances will regard criminal convictions possibly having been confirmed in the Court of Appeal Criminal Division as being conclusive for one party or one witness but not conclusive for another. I believe that to be fundamentally unjust as a matter of principle. Secondly, I believe that it will open the door to many collateral attacks on the rightness of criminal convictions. For those reasons I beg to move.

The Lord Chancellor

My Lords, the purpose of this clause is to prevent an injustice which was identified by the working group under the chairmanship of Lord Justice Neill. Where a convicted person seeks to challenge his conviction, he should of course do so by way of appeal in the criminal court. It would be wrong for him to seek an alternative route of appeal by using the law of defamation in the civil courts where the standard of proof is lower. But other considerations apply when the convicted person is someone other than the plaintiff. It is contrary to public policy that plaintiffs in defamation proceedings should enjoy the artificial advantage of the rightness of someone else's conviction being unchallenged so that the defendant may be prevented from pursuing a proper defence. The injustice would, of course, be particularly apparent in a case where the conviction was quashed after the conclusion of the defamation proceedings in which it had been unchallengeable.

It is important to recognise that Clause 12 does not set out to restore the position as it was before 1968, when the conviction was not even admissible as evidence that the convicted person had committed the offence. The conviction will be admissible evidence that that person committed the offence and any other person who disputes that, in defamation proceedings, will have to produce evidence to the contrary. Clause 12 will allow that evidence, if any, to be considered and weighed fairly. I hope that the noble Lord will feel able to withdraw his amendment.

Lord Williams of Mostyn

My Lords, I regret to say that I remain unconvinced that there is any justice in the proposition that a plaintiff who has been convicted of a crime is enveloped in the conclusive presumption that he has committed it but other parties or witnesses are not. On this occasion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Basis of entitlement to damages]:

Lord Williams of Mostyn had given notice of his intention to move Amendment No. 10: Leave out Clause 13.

The noble Lord said: My Lords, I have had the opportunity of re-reading and reflecting further on the indications in column 250 which the noble and learned Lord the Lord Chancellor gave. I am satisfied in my own mind that the problem that I had contemplated is likely to be mitigated if judges follow the indications given by the noble and learned Lord at column 250. Therefore I shall not move the amendment.

[Amendment No. 10 not moved.]

Lord Finsberg moved Amendment No. 11: 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 Lord said: My Lords, I shall move the amendment in the momentary absence of the noble and learned Lord, Lord Hoffmann.

This is an issue that I raised originally at Second Reading. I thought that there was an injustice being caused because it was not possible to waive privilege in the case of individual Members of either House. I wanted to try to ensure in the legislation that it was possible for an individual Member of either House to waive his or her privilege in the case of legal arguments. I am glad to see that my noble and learned friend has now arrived. Perhaps he could put the more detailed arguments on this particular point. I beg to move.

Lord Hoffmann

My Lords, I apologise to the House for choosing to leave at precisely the wrong moment. I spoke at some length to this amendment at Committee stage and I therefore do not propose to repeat what I said at that time.

The purpose of the amendment is to redress what appears to be an injustice which was demonstrated by a recent case in which Mr. Neil Hamilton—a Member of another place—brought proceedings against a newspaper. He alleged that he had been defamed because the newspaper published an article which he said amounted to an allegation that he had accepted money in return for asking Questions.

The proceedings were stayed by the judge on the grounds that the jurisprudence which the courts developed, based upon the Bill of Rights, prevented the courts from investigating whether or not those allegations were true. The court held that the effect of a series of judicial decisions over many years since the Bill of Rights was passed in 1689 meant that the court had no right to inquire, even at the behest of a Member of Parliament, into anything that he had done in the course of his parliamentary duties.

The result was that the judge held that the newspaper was not in a position to defend itself by putting forward a plea of justification and it would therefore be wrong and unfair to allow the plaintiff to continue with his action. The plaintiff was therefore denied the opportunity which others would have, having been, as he alleges, libelled in a professional respect, to vindicate his reputation.

The historic privileges of both Houses contained in the Bill of Rights are of the greatest constitutional importance. I would not table the amendment if I thought that it in any way trenched upon the policy or the intention of that statute. But I see no reason why the preservation of those privileges should be inconsistent with the rights of a Member of either House to invite the court to investigate his conduct, and his conduct alone, within the House in order to clear his name from a libellous accusation. There seems to me to be no inconsistency in that at all. Justice requires that he should be able to do so. I am unable to detect any higher policy which should prevent that from being allowed. For those reasons I support the amendment.

8.45 p.m.

Lord Lester of Herne Hill

My Lords, there was a fairly full debate on this amendment at Committee stage. I reflected upon what was said during that debate. I agree with both noble Lords who have spoken thus far. The existing state of the law is absurd and unjust.

However, the problem that has been created by the way in which the law has been interpreted now raises a complex and sensitive problem which was well understood by the noble and learned Lord the Lord Chancellor in his properly sensitive speech on the last occasion.

The key issue is whether the other place—the amendment primarily affects its Members—will agree to permit, through the statute, what has always been regarded as its collective privilege or immunity since the Bill of Rights was passed to be waived by an individual Member of Parliament to enable her or him to sue for libel while retaining the immunity from suit possessed by every Member of each House. That is the key issue and it is likely to affect another place more than this House, though it affects both.

I am not troubled by the one-sided nature of the position that will arise if the amendment is enacted, provided that the courts develop qualified privilege to cover the case where a Member of Parliament sues for libel. What I mean by that is this. At the moment Members of Parliament are immune from suit for what they say in Parliament. At the moment they are stymied in bringing libel proceedings to vindicate their parliamentary and public reputation. It is exactly that lack of reciprocity or mutuality which caused Mr. Justice Brennan in the American Supreme Court to decide that there should be a constitutional privilege for newspapers when they are dealing with an MP plaintiff.

It seems to me that there is no injustice, no real lack of equality of arms, provided that the courts adopt that approach, if MPs are to be permitted to sue for libel. What would be offensive to justice and any notion of equal treatment is if an MP, starting with Members' complete immunity for what they say in Parliament, was able then to waive that immunity on an individual basis and there was no corresponding qualified privilege. I agree that it must be on an individual basis, since, if it were on a collective basis, party politics might intervene in deciding whether or not an individual MP was to be permitted to take this action. That is why it is right that an individual MP should be able to waive what is regarded as a collective privilege but it would be an affront to justice if he were permitted to do that and then there was to be no qualified privilege in respect of that situation.

It is on that basis that I support the amendment. I remain troubled by the point I raised last time, which concerned what happened when more than one Member of Parliament was involved and one Member of Parliament sought to waive his privilege and the other did not and yet the conduct of the two was closely connected or they were closely associated with the alleged defamatory statement. I cannot see any answer to that. The courts will have to fashion their own answer in such a case. It might be that, if both MPs were unwilling to waive their privilege, the courts would have to stay the action at the behest of one of them. I am not sufficiently clever to be able to think of an answer and perhaps there is no answer.

I agree with what was said by the noble and learned Lord the Lord Chancellor on the last occasion. However, it may be sensible, before reaching any final conclusion, for this House to see what another place says about the situation. On that basis I support the aim of the amendment and the way in which it was moved.

Lord Simon of Glaisdale

My Lords, this amendment raises issues of high constitutional importance. The privilege of Parliament, the privileges of both Houses of Parliament, the privileges of individual Members of Parliament and the Bill of Rights are involved.

It is hardly possible to exaggerate the constitutional importance of this matter. The noble Lord, Lord Lester, indicated just now some of the qualifications that may be required. I hope therefore that the amendment will not be tendered for a Division or tendered to the vote at all to the collection of raised voices this evening. It would be highly inappropriate at this hour, in your Lordships' House, in an empty Chamber, to try to pass an amendment which is a starred amendment and which we only saw this morning, and to seek to get it passed into law. In my view, that would be quite inappropriate.

It is true that a somewhat similar amendment was tabled at Committee stage. But that again was at extremely short notice. Since then there has been the Recess. There has been no opportunity to canvass the views of the many others who are entitled to be considered, not least the Members of the other place. I hope that those who propose the amendment will withdraw it on this occasion. They will lose nothing by doing so because Third Reading will be on 7th May and that will give time for the proper consultation to take place which should take place.

I would make only one other point in relation to the terms of the amendment. It deals only with defamation actions. I should have thought it strongly arguable that, if the principle is admitted at all, it should apply to any action where it might be relevant. As I understand it, we are concerned with three constitutional issues. The first is the privilege of Parliament and of each separate House of Parliament. The second is the Bill of Rights. The privilege of Parliament does not depend on the Bill of Rights. One can easily ascertain that by looking at the famous case of Stockdale v. Hansard where the House of Commons was vindicating its privilege as it saw it to prevent the publication of its proceedings. It ended rather distastefully with the law courts committing to prison the officer of the Serjeant of Arms and the House of Commons committing the Tipstaff to prison. That case shows that the privilege of Parliament is independent of the Bill of Rights. There was a famous judgment by Lord Ellenborough which makes plain the foundation of the privilege of Parliament; namely, that Parliament could not properly carry out its functions unless it was free from the scrutiny of the courts of law or anyone else outside.

The third issue is the privilege of the individual Member of Parliament. That, I think, does depend on the terms of the Bill of Rights. But the Bill of Rights must now be scrutinised carefully in the light of the judgment in Pepper v. Hart. In my respectful submission, the proper procedure when it is desired to waive privilege for an individual Member of either House is to petition that House for waiver of its right to insist on its Members being under its own control. That happens time and again whenever a Member of your Lordships' House is requested to give evidence before a committee of another place. The other place then petitions your Lordships' House to allow that Member to give evidence. The same occurs the other way round.

That procedure by way of petition is not only a matter of everyday occurrence but it was expressly approved by Mr. Justice Pearson in the libel case of Dingle v. Associated Newspapers where I had the duty of intervening on behalf of the House of Commons and submitting that the proper procedure was by way of petition. Mr. Justice Pearson, as he then was—he was subsequently a most distinguished Member of your Lordships' House—agreed with that.

As I said, we lose nothing by not rushing inappropriately into this amendment. On 7th May the Bill will have its Third Reading, when the matter can if necessary be resubmitted in a proper form after consultations with all those who are entitled to be consulted.

Lord Kingsland

My Lords, I rise to support the views expressed by the noble and learned Lord, Lord Simon of Glaisdale. I do so in a sense with some regret because I am acutely aware of and greatly sympathetic towards the dilemma in which Mr. Hamilton finds himself. I think it most appropriate that the noble and learned Lord, Lord Hoffmann, should have tabled this amendment. However, I believe it raises questions that go beyond the scope of the Defamation Bill. Those have been well expressed by the noble and learned Lord, Lord Simon, and I do not propose to go into them in detail. I shall simply underline the two central points that he made.

The first is that this is a constitutional matter. The Bill of Rights is at the heart of our constitution and constitutional matters ought to be considered very seriously by both Houses, with plenty of time to do so. I do not believe that sufficient time has yet elapsed for us to be confident to incorporate an amendment in a Bill in this House at this stage.

The second point is that it goes beyond the scope of the Defamation Bill in a second sense—why should it not apply to other civil proceedings. If this important change in our constitutional arrangements is going to be made, it goes way beyond the scope of the Defamation Bill.

For those two reasons I ask the House to stay its hand on the amendment at the moment, to perhaps set up a committee to consider the matter, to listen to what the other place says and to come back to it at Third Reading. But I should like to say again how much I sympathise with Mr. Hamilton's difficulties and dilemma and that it should not be taken from what I have said that I necessarily oppose the amendment proposed by the noble and learned Lord, Lord Hoffmann.

Lord Williams of Mostyn

My Lords, on the last occasion I specifically disqualified myself since I act in the matter in question for Mr. Hamilton and Mr. Greer. I simply wish to say neutrally that I respectfully agreed with the approach of the noble and learned Lord the Lord Chancellor, in particular at col. 258 of Hansard that, whatever the occasion may be, this is an important issue which should be properly ventilated in debate in each House. I do not put on one side what was said by the noble and learned Lord, Lord Simon of Glaisdale. That it should be properly ventilated is beyond dispute. I do not think I can say more than that.

The Lord Chancellor

My Lords, I do not wish to repeat what I said on the last occasion. This is clearly an extremely important amendment and is at the very heart of the privileges that are associated with Parliament and with individual Members of Parliament. It is certainly a matter which requires very careful consideration. The noble Lord, Lord Lester of Herne Hill, mentioned some difficulties, as have my noble and learned friend and my noble friend.

On the question of other rights of action than those in defamation, I am not particularly clear as to how that might arise. But I am clear that this is a Defamation Bill and it is only in so far as these matters trench on defamation that we could properly deal with them in this Bill. The fact that that problem could arise in connection with other rights of action is of interest, but I do not think that that can determine the matter here.

On consultation, it is important that Members of your Lordships' House should be aware of what is at issue and should have an opportunity to consider the matter. The provision has now been on the Marshalled List twice. It may be that its appearance for a third time would ensure that everybody knew about it.

With regard to consulting the other place, I regard it as important that the other place should be consulted by a clause or an amendment to the Bill being discussed. I think that that is the proper way. I do not think that it is for us to ask the other place about its view on the matter. Obviously, if any Member of this House wants to discuss the matter with a Member or Members of another place, that noble Lord is free to do so. However, the constitutional procedure would be that it is for this House to decide whether it thinks that this amendment is appropriate as far as it affects this House and its Members—

9 p.m.

Lord Simon of Glaisdale

My Lords, I am most grateful to my noble and learned friend. Does he not think that a Joint Select Committee of both Houses would be suitable? That was what was done in the case of disclaimer of peerages which, like this, affects both Houses. That was not just passed by one House and laid on the plate of the other. I respectfully suggest that in a matter of such high constitutional importance it is most important that the other place should be closely identified at this stage with what is proposed.

The Lord Chancellor

My Lords, it is open to noble Lords to propose setting up a Joint Select Committee in connection with this matter. However, my noble and learned friend Lord Hoffmann has proposed this amendment, having considered the matter, and my noble friend has moved the amendment again this evening. Whether or not noble Lords want to pass the amendment is a question for the House. My view is that it is for Members of this House, the amendment having been tabled, to decide whether from their point of view it is an appropriate amendment to include in the Bill. If the amendment is incorporated into the Bill, the position in the other place would be that the Bill (with this amendment) would have to be considered there. I have no doubt that care would be taken in that consideration. Your Lordships have clearly expressed your view of the importance of this amendment and have stated certain of the difficulties implied by passing such an amendment. That matter would be before the other place. I think that that is appropriate.

The Government would not wish to take a view on this matter until the other place has had an opportunity to consider it. Therefore, the government view would be one of neutrality. I say that it is for the House as a whole to decide whether or not to pass the amendment. It may well be that the question of the extent to which the House has been consulted will be relevant in deciding what should happen tonight, but in my view it is right that the House should consider and decide its view on this matter before the Bill leaves this House—

Lord Simon of Glaisdale

My Lords, I am so sorry to interrupt my noble and learned friend again. He has used the phrase, "before the Bill leaves this House", but there is a Third Reading before then.

The Lord Chancellor

My Lords, my noble and learned friend will know that I understand that. That is precisely why I used the phrase that the matter could be considered before the Bill leaves this House. In other words, there is another opportunity than tonight for the amendment to be incorporated into the Bill if that is what your Lordships want. My noble and learned friend's intervention is extremely helpful and points out what I had in mind. It is for my noble friend to decide what he wishes to do with the amendment.

Lord Finsberg

My Lords, first, having listened to the earlier debate I think that the noble Lord, Lord Kingsland, would appreciate that, had the amendment been beyond the scope of the Bill, the Public Bill Office would have said so. It did not, so it is within the scope of the Bill.

Secondly, the question of petitioning the other House was dealt with fully in Committee. The same argument was used, "There are not many people in the House; it is a pity; let's have it again". Here we are a second time. On the last occasion, the amendment received general support, including from the noble Viscount, Lord Tonypandy, who perhaps more than anyone would know the feeling of another place. I am loath to see the amendment withdrawn because that would mean more delay. There is also the fact that I shall be abroad on parliamentary business on 7th May. I have been here twice. I have been able to make that possible twice, but I cannot be here on that occasion. I should feel sad if the amendment were not included in the Bill at this stage.

I remember arguing in another place that if there is a difference of opinion and if there is a later stage, put in the provision in question because that concentrates the mind and it can always be taken out. That is the point that I want to make. Including the amendment now gives us an opportunity. It means that no one can say that they did not know; that it was a starred amendment or that they did not have the time to see it. That could not happen if the amendment were included now in the Bill to be considered, if necessary, on Third Reading.

I am not prepared to withdraw the amendment. I hope that it will go into the Bill. It can always be knocked out at the next stage or in another place. The point is quite simple: it affects both Houses. It only affects the privilege of an individual Member who wishes to withdraw his or her privilege. I do not want to repeat what has been said on two previous occasions. I very much hope that the amendment can go into the Bill on the understanding that it can always be pulled out at another stage. I beg to move.

Baroness Seear

My Lords, surely it is absurd for so empty a House to vote on so important a matter. The opportunity to do this again properly on Third Reading is to be preferred to asking so empty a House to vote on so important a matter.

Lord Finsberg

My Lords, I beg to move.

The Lord Chancellor

My Lords, the Question is, That this amendment be agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content".

Lord Finsberg

Content!

Lord Simon of Glaisdale

Not-Content!

The Lord Chancellor

My Lords, I think that the "Not-Contents" have it.

Lord Finsberg

Content!

The Lord Chancellor

Clear the Bar.

9.7 p.m.

Division called.

9.11 p.m.

The Lord Chancellor

My Lords, I think it is important to notice that if the amendment is not to be put into the Bill tonight, the obvious answer is that those who may be very content with it need not vote for it tonight.

The Question is, That this amendment be agreed to? As many as are of that opinion will say "Content"; to the contrary "Not-Content".

I think that the correct ruling is that the amendment does not go in the Bill at this stage in view of the fact that there are no voices from either side.

On Question, amendment negatived.

Clause 20 [Short title and saving]:

[Amendment No. 12 not moved.]

Schedule 1 [Qualified Privilege]:

The Lord Chancellor moved Amendment No. 13: Page 14, line 27, leave out ("the legislature of") and insert ("a legislature in").

The noble and learned Lord said: My Lords, in moving Amendment No. 13 I should like to speak also to Amendments Nos. 14 to 16 and 18. These are all minor drafting amendments to Schedule 1 which sets out the various reports and other materials which may have qualified privilege under Clause 15. I should also like to mention a matter in connection with Clause 14 which deals with another aspect of statutory privilege. The noble Lord, Lord Williams of Mostyn, tabled an amendment in Committee with the intention that international war crimes tribunals should be included among those courts to whose proceedings Clause 14 applied so that reports of their proceedings would have absolute privilege, provided the reports were contemporaneous. As I indicated then, I am undertaking further inquiries in connection with that proposal. I hope to be in a position to inform your Lordships of the results of those inquiries when the Bill is next considered by your Lordships. As your Lordships have been recently reminded, that will be at Third Reading. I hope to be able to take it forward at that time.

Amendment No. 13 is a small drafting amendment to change paragraph 9(1)(a) of Schedule 1 so that it can be read more easily as referring to a local legislature, as is provided in paragraph 16(1) of the schedule.

Amendment No. 14 is a drafting amendment to confirm that this reference, like others in the schedule, to the ECJ will include courts attached to it. Amendments Nos. 15, 16 and 18 are drafting amendments to include references to dependent territories which would not necessarily be implied in references to the member states. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 14 to 16: Page 14, line 34, after ("Justice") insert ("(or any court attached to that court)"). Page 15, line 26, after ("proceedings") insert ("in any of the Channel Islands or the Isle of Man or"). Page 15, line 51, after ("of") insert ("any of the Channel Islands or the Isle of Man or of").

On Question, amendments agreed to.

[Amendment No. 17 not moved.]

The Lord Chancellor moved Amendment No. 18: Page 16, line 44, at end insert— ("() References in this Schedule to a member State include any European dependent territory of a member State.").

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

On Question, amendment agreed to.

House adjourned at sixteen minutes after nine o'clock.