Amendment made: No. 18, in page 5, line 15, leave out
'and the Secretary of State, acting jointly,'.—[The Attorney-General.]
§ Mr. Dewar
I beg to move Amendment No. 19, in page 5, line 17, after 'Act', insert:'shall not extend to Scotland and'.I move the Amendment in the absence of the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie), who, I discover, is attending the Scottish Conservative Party conference, an excellent excuse for being absent.
The Amendment seeks to exclude Scotland from the Bill. This has caused me a great deal of worry during the discussions this morning, because it has become quite clear that there are things in the Bill which I should very much like to see applying to Scotland. When I moved an Amendment to Clause 4, I said that the Clause had received a general welcome, and that that welcome was not confined to England. We should like the provisions of Clause 4 to apply to Scotland, and in moving this Amendment I am conscious of the fact that if we exclude Scotland we lose the benefits of that Clause, and that because of the pressure on legislative time the opportunity of making good that loss may be delayed for many Sessions, never mind many months.
I am the first to concede that there is a tendency on the part of anyone who has any connection with Scotland to be a little over-proud of the independence of Scottish law. There is a tendency to want to exclude Scotland merely because 1898 we have suffered in the past and do not feel that we should be lumped in as Tail-end Charlies at the end of a piece of legislation which is basically proper according to considerations dictated by the law of England. One has to be very careful not to go along too easily with that kind of prejudice.
For all that I have said in its favour, Clause 4 is still a comparatively minor amendment, allowing as it does a slight clarification of the law in actions of defamation as regards pleas in mitigation. There is very little in the Bill which is of great help to us North of the Border. Clauses 2 and 3—there are arguments for and against them, and it seems that on the whole they are against—apply north and south of the Border. I am trying to confine my remarks, as I must if I am to remain in order on this Amendment, to those areas where there is a distinct Scottish case for exclusion from the Bill, as against a general argument which may be made for rejecting the Bill in its entirety, which would apply in English terms as much as in Scottish.
If one takes that narrow definition—does the Bill help or hinder Scottish law and the application in Scotland as distinct from England?—the sponsor of the Bill and those who wish to oppose the Amendment may find themselves in very considerable difficulty.
From a Scottish point of view Clause 1 has been improved by the generosity of the sponsor of the Bill who was quick to accept my Amendment to exclude the provision at the end of the Clause which in an utterly meaningless way gave the Attorney-General a duty to institute proceedings for contempt in Scotland. I accept that if that had not been accepted by the sponsor the case for the Amendment would have been overwhelming, but the hon. Gentleman gave way and agreed to that.
If one reads the Bill, one sees that many of the Clauses are of very little value from our point of view. Clause 5 deals with qualified privilege in newspapers, and purports to add paragraphs 7A and 7B to Schedule 1 of the Defamation Act, 1952. The idea is thatA fair and accurate report of any proceedings before a court exercising jurisdiction in any territory outside Her Majesty's dominionsshould enjoy qualified privilege.
1899 I recognise that I cannot debate the merits, but it is relevant to the debate to point out that Pope v. Outram and Riddell v. Clydesdale Horse Society, which is the decision on which the law of Scotland stands, means that we are in exactly the same position with Clause 5 as with Clause 6, and the House will remember that it was generally agreed that that was almost entirely redundant in terms of Scottish law, because in any case legal submissions are made in the absence of a jury. So we lose no benefit by not having Clauses 5 and 6 applied to Scotland. We have a benefit in Clause 7, and the views put forward by Lord Strachan in the inquiry into the duties of the civil jury have been upheld in the House, and again we are merely reiterating the law as it now is in Scotland.
The Bill is clearly tailored with a great deal of care in a technical sense—and I am not now talking about the merits—to fit the law as it exists south of the Border. I have already said that the distinction between libel and slander is entirely meaningless in Scots law, although the terms are freely spattered throughout the Bill. I must confess that it is a great temptation to argue that we in Scotland would be the better without the Bill.
But I do not want to be over-hasty. It is easy to point to these distinctions between the law of Scotland and that of England and to make a number of general points and to say that the general atmosphere of Scots law and our different attitude towards committal proceedings are a direct reflection of general attitudes to actions for contempt. The provision for an appeal against conviction for contempt in England, of comparatively recent introduction, was specifically excluded at the time from Scotland. Undoubtedly, there are these kinds of differences.
For some reason which I do not understand—and I can find no rational explanation for it—actions for defamation are rare in Scotland although comparatively common in England. I remind the House of what Stair said in 1681 when he remarked:Such actions"—that is, defamatory words— 1900upon injurious words are frequent and curious among the English but with us there is little of it accustomed to be pursued.These broad and general differences between the two systems seem to justify the Amendment.
But I accept that we must not rush too quickly into this. The law of contempt in Scotland, for example, is based entirely upon case law, but I concede that in fact there is an enormous similarity and unity of purpose in the basic definitions of contempt as laid down in the courts in Scotland and in the courts in England. We are not in the kind of situation in which we would be if we tried in a United Kingdom statute to marry the conveyancing law of England with the property law of Scotland where the two systems cannot be brought together. The United Kingdom Town and Country Planning Bill of 1947 had to be abandoned because of the enormous difficulties which emerged because of the difference in the law, and a separate Scottish Bill had to be produced. The Defamation Act, 1952 is a United Kingdom law and I must confess that that is a telling argument against the Amendment, because there is this unity of purpose.
But, having studied the provisions of the Bill, I believe that, as has been formidably pointed out in the debates today and on previous occasions, great advances on a United Kingdom basis are not likely to be made because of the differences of the two situations. For instance, in England one has to consider whether a report is likely to prejudice the fair conduct of a trial or judicial proceedings, and the Scottish precedent is somewhat similar. For example, in Stirling v. Associated Newspapers it was laid down that the consideration waswhether the steps taken by the newspaper were such as to prejudice the impartiality of the ultimate trial".In Smith v. Ritchie, when the Edinburgh Evening Dispatch ran a series of exposés denouncing a gentleman who was forging manuscripts purporting to be by Burns and Scott, it was quite properly laid down by the court thatanything which prejudiced the public mind so as to endanger the plaintiff's prospect of obtaining a fair trialwas prejudice. This is similar to the wording of Clause 1 and similar to the 1901 definitions which have been laid down in English case law in the past.
I accept that if we take some of the obiter in Stirling v. Associated Newspapers, for example, some the the rules appear to be a little different and a little harsher in Scotland. For example, it has been laid down thatonce a crime has been suspected and the investigation authorities are investigating, they alone have the duty of carrying out that investigation".That sounds a very strict interpretation and at its face value it might be held to prevent a defence lawyer from investigating the case in order to put his defence together. But, and this is the great point about it, if one looks at how these rules have been interpreted, one will see that there has been very little difference except that dictated by the somewhat different attitudes towards committal proceedings.
I am the first to concede that in many respects there is a common view. However, considering all the various technical difficulties and all the other factors after they have been amply illustrated as they have been in the House today, on balance I do not think that we ought to attempt to bring two legal systems under one statutory umbrella, although I am prepared to listen to other arguments. It may be better to leave Scotland one one side and to opt out of the doubtful provisions of Clauses 2 and 3 and the almost certainly welcome provisions of Clause 4 because of the general confusion which is being engendered, and thus have a Bill which it is hoped will be a good Bill for England, and at some future date we may find time to introduce suitable legislation for Scotland.
§ Mr. Dewar
They certainly are, and we are particularly pleased that the House has decided to leave that situation as it is. My hon. Friend may be interested to know that in Scotland the jury is a much more widely used piece of legal mechanism than it is south of the Border, where it seems to have been largely abandoned in personal injury cases and in the law of tort.
I leave this as an open question. Had earlier Amendments not been carried, I should certainly have pressed this to a 1902 Division. As it is, I have taken it up for the purposes of discussion, but I still tend to think that we should leave out Scotland, and I shall listen with great interest to what the Attorney-General says.
§ Mr. Edward Lyons
England does not cover a great area. Does not my hon. Friend think that the effect of having an amended law for England and a different law for Scotland is likely to be a number of complications? For example, a Scottish newspaper may be able to print something which an English newspaper could not publish, but the Scottish newspaper could easily be brought over the Border. Would not that create all kinds of anomalies?
§ Mr. Dewar
That is an interesting question. It is obvious that people cannot be made subject to the law in watertight compartments. There is always a problem of jurisdiction in every field in Great Britain. Anyone who has taken part in the long, complicated and at times extremely technical argument on domicile will recognise the validity of that point. It is particularly true of newspapers published in England, or possibly Scotland, and then sent all over the country.
It could be very awkward for the man who has the job of being legal proof reader and adviser to a newspaper on contempt. His is never an easy job, for on his opinion may rest the freedom of the editor concerned, as it is not only the journal but also the editor who may be clobbered if he falls down on the job. It complicates his job if each time he has to construe the law not only in Scotland but also in England or vice versa.
In spite of that, if we leave aside the technical issues of drafting in this Bill and look at what the Bill says, we see that in several Clauses—Clauses 5, 6 and 7—the law of Scotland is in line with that in England, and the Bill offers no improvements of any value. In substance, and bearing in mind the kind of fact which will be considered by the legal advisers to newspapers, I do not think that the dichotomy will be very worrying.
§ The Attorney-General
The Amendment of my hon. Friend the Member for Aberdeen, South (Mr. Dewar), which was originally in the name of the hon. and learned Member for Edinburgh, Pentlands 1903 (Mr. Wylie), is one with which, I confess, I have the fullest sympathy.
As I shall explain if the Third Reading is reached, as is likely to be the case, there are strong objections to the Bill as it stands—to Clauses 1, 2, and 3, in particular, and 5. There are also other difficutlies arising from the Bill. I do not think that it would be appropriate for me at this stage to develop the arguments which in my view support the proposition that the Bill as a whole is objectionable.
But, that being my view of the matter, an Amendment which at any rate limits what I regard as the mischief which would be caused if the Bill were passed by excluding Scotland from its ambit is an improvement. I am therefore, disposed to support the Amendment.
§ Amendment agreed to.
§ 2.14 p.m.
§ Mr. Eyre
I beg to move, That the Bill be now read the Third time.
Having listened to the last speech of the Attorney-General, I fear that he will take a hostile view of the Bill in his contribution to this part of the debate. I see from his activity that he is mustering the troops to take part in a Division, and I understand the consequences which will flow from that decision on his part.
There is no doubt that the law of contempt of court, of defamation and of official secrets is badly out of date in this country and in need of complete overhaul. I am glad that the Leader of the Opposition has set up a study group to review the whole of these matters and to work with eminent journalists and lawyers in bringing forward proposals which are necessary for that complete overhaul.
But I suggest that in the form in which we have discussed it, the Bill is a minor but useful adjustment. Despite the fact that the Attorney-General has taken advantage of a technical difficulty to knock out Clause 7, it still represents a minor adjustment of great importance within its accepted limitations. There must be a period of time before more substantial changes and improvements can be effected, and I very strongly suggest that within the interim period the Bill would enable the engine of the Press to function more effectively.
1904 I suggest that the Attorney-General was over-critical in his unkind reference to Clause 1 as amended. I suggest that Clause 2 is of considerable importance with regard to the use of silencing or gagging writs which inhibit the Press in their exposure of certain frauds and scandals to which I shall refer a little later in more detail.
I suggest that Clause 3, dealing with official secrets, is a practical approach to the problem. I understand all the difficulties about official secrets and the wide-ranging implications of the Clause, but what annoys me is that the Attorney-General moved to leave out the Clause but made no reference at all to the promise which he made on Second Reading and in Committee to make a statement to the House on the form of the official inquiry which is supposed to be going on into the working of official secrets legislation.
§ The Attorney-General
I know that the hon. Member always wants to be fair in debate. I had an Amendment down to Clause 3 which would have given me the opportunity to make a statement. It may well be that before the afternoon is out I shall have an opportunity to make a statement.
§ Mr. Eyre
The Attorney-General uses words which hint that he will make a statement today. I did not know that he intended to do so and I am glad that he intends to do so because, when we remember the recommendations of the Fulton Committee, such a statement is urgently needed.
It is of extreme importance that we have more open discussions of matters of public interest affecting a whole range of domestic activities, such as the National Health Service, and that we know how this inquiry is going on, who is conducting it, into which Departments of the Government it is inquiring and how eventually the House will be informed of the consequences of the inquiry.
It is of great importance to all hon. Members that we should hear from the Attorney-General this afternoon the steps which are being taken in that direction. The question concerning official secrets in Clause 3 is of great importance to us all.
1905 On the private side of the Bill, I suggest that in present circumstances the Press is very creditably undertaking the job of drawing the attention of the public to widespread frauds which affect an enormous range of small savers, people entering into insurance obligations, and people entering into various trading transactions by ordering goods through the post. They are dealing with a thousand-and-one transactions which affect the lives of ordinary people. We have to bear in mind the great difficulties which have developed in recent times because of these widespread frauds. I emphasise that it is not possible for the Board of Trade to deal adequately with these swindles. The Press is in an especially favourable position to give notice of the development of these frauds. It comes into possession of information, and it is creditable that it has tried to draw the notice of the public to these developing swindles.
§ Mr. Alexander W. Lyon
I know that we are on Third Reading and can deal only with what is in the Bill, but even dealing with the Bill as it stands, will the hon. Gentleman answer this question: how would the Bill have offered help to the Press in dealing with the problems which he has mentioned?
§ Mr. Eyre
The hon. Gentleman has been a persistent legal critic of the Bill. I assume that he has not listened to the views of working journalists. If he had, he would have been assured of the existence of the practical difficulties of which I have spoken. I have received a considerable amount of evidence from journalists on this score, and they have told me that Clause 2 will help considerably to overcome the "gagging" writ, which is the procedure used by fraudulent persons to prevent references being made in the Press to various fraudulent activities.
An example was the London and Cheshire Insurance Company. A writ was issued against a well-known Sunday newspaper to prevent it from referring to a scandal and warning the public about what was going on.
The idea of the Attorney-General giving his consent under Clause 1 means that if there is a possibility of imminent criminal proceedings, the Press may be 1906 better protected against vexatious or improper attempts to threaten it with contempt proceedings. This will mean the Press being in a better position to expose scandals. Thus, considerable advantage can result from the Bill to the public in general in that the Press will be enabled to attack scandals and widespread frauds.
I hope, therefore, particularly if the Attorney-General divides the House, that hon. Members will bear these various factors in mind. They should remember the need for greater openness in the discussion of public affairs and the need for the efforts that are made by the Board of Trade to be supplemented in this way, by protecting the interests of a great number of ordinary citizens throughout the country, so that newspapers really feel that we appreciate their difficulties and that we are trying to help them in this important endeavour, which is of great concern to the public. I hope that hon. Members will remember, should a Division take place, that the Bill contains valuable provisions to help the Press in this interim period, pending more substantial reforms.
§ 2.22 p.m.
§ Mr. Deputy Speaker (Mr. Sydney Irving)
Order. It is also excluded from consideration on Third Reading.
§ Mr. Dewar
Precisely, Mr. Deputy Speaker, and that is why I have no wish to speak about Scotland at this stage. However, the fact that Scotland has been excluded does not, in the United Kingdom Parliament, oblige me to leave the House today without commenting on some of the broader considerations which the Bill raises for England.
Like some of my hon. Friends, I am puzzled about exactly how Clause 1 will bring about any major improvement in the position for newspapers. All hon. Members are anxious to ensure that legitimate Press activity will not be unnecessarily inhibited and hindered. I therefore concede the general case made by the sponsors of the Bill about the 1907 need to allow the Press freedom to expose a fraud and to make a fraudulent scheme more difficult to operate. I would not like to see the honourable tradition of crusading journalism—years ago, originally in America, often honourably referred to as "muck raking"—brought to an end by the threat of legal sanction.
The difficulty surrounding the law of contempt is that of definition, and I do not see how the form of words which has emerged in the Bill will take us far in solving this problem. The test in whether the publication of something is likely to prejudice the fair conduct of a trial or judicial proceedings. As my hon. Friend the Member for Accrington (Mr. Arthur Davidson) said on Second Reading, uncertainty arises not from what contempt is, but from when it should begin. That is, in many ways, a genuine difficulty and I fear that the definition contained in the Bill will take us not an inch further in solving this problem.
§ Mr. Dewar
We have had so many criss-cross battles over this matter that I have obviously misunderstood the final position. However, I am pleased that that part of the Bill has been removed because it did not appear to advance matters one whit in the direction of solving the problems that are particularly worrying the sponsors.
I understand that we are left, in Clause 1, with a provision which merely says that the Attorney-General's permission must be sought before action for contempt can arise. Thus, we have had to abandon the attempt to clarify the law of contempt by statutory definition, with the result that we are merely left with the safeguard of needing the Attorney-General's agreement that a prima facie case exists so that proceedings may be instituted.
§ Mr. Eyre
I cannot understand why the hon. Gentleman seems astonished to hear that hon. Members who are promoting a Bill should be taking notice of the arguments adduced by other hon. Members and should be willing to amend the Measure to accord with those arguments. Perhaps our view does not accord with his experience of the legislative process.
§ Mr. Dewar
Earlier, I referred to the flexibility which the hon. Member for Birmingham, Hall Green (Mr. Eyre) had shown. I hope that he does not consider that I wish to withdraw that credit. Necessity drives on occasion; and perhaps the extreme flexibility of his attitude was partly dictated by considerations of a tactical nature.
What remains of Clause 1 will be of little value. Originally, we were trying to define "contempt", but instead of succeeding we are left merely with a limitation, and a limitation which I do not particularly like. As the Attorney-General said on Second Reading, embarrassment could arise if he is solely responsible for the instigation of proceedings. We must remember the question of timing and the need for speed in certain circumstances.
There is also the point of my right hon. and learned Friend being associated with transactions in the sense that his Ministerial colleagues might be indirectly involved, so that at the end of the day the Attorney-General will not be able to say, "If you think I am wrong, you can go ahead and proceed yourself." It is unfortunate that that right—the right of an individual to protect himself—has been abolished.
I do not believe that the Bill will greatly improve the situation or that we have a piece of legislation which will be of great help to the ordinary working journalist. I am sorry to sound a little ungracious about this, but there is no point in one pretending that this is a valuable reform when one does not believe that it is.
An enormous amount lies behind the Bill and I sympathise with the sponsors. I have no doubt that in many ways the motivation has been first class and the intention unexceptionable. However, when one considers the problem of trying to translate that motivation into a 1909 workable legislative draft, one arrives at the conclusion that considerable difficulties have arisen.
If only because of Clause 4, which is useful, I would be loath to vote against the Bill receiving a Third Reading. However, the Measure has been so decimated that I wonder whether it will serve any useful purpose? I shall listen with interest to the speeches of hon. Members before ultimately making up my mind.
§ 2.30 p.m.
§ Mr. Eldon Griffiths
It is good to know that the hon. Member for Aberdeen, South (Mr. Dewar) will wait until he has heard all the speeches before making up his mind on how to vote. May I assure him that we will hold him to that if the matter comes, as I hope it will, to a Division.
I want to refer to a statement made by the Attorney-General on Second Reading. He said:If there is a vote, it will be a free vote on this side of the House, and there is no Whip of any kind."—[OFFICIAL REPORT, 31st Jan., 1969; Vol. 776, c. 1725.]I recall to hon. Gentlemen opposite before they make up their minds this afternoon the words of the right hon. and learned Gentleman. I hope they will not be affected by the efforts of the Chief Whip outside the Chamber at present.
§ Mr. Alexander W. Lyon
Is the hon. Gentleman saying that hon. Members of the Parliamentary Labour Party are afraid of their Chief Whip? If the hon. Gentleman and his Friends had rebelled against their own Front Bench as many times as hon. Members on this side have, then the status of Parliament might very well have been raised. For him, the craven lackey of his own Chief Whip, to come along here and upbraid us is really too much.
§ Mr. Griffiths
Far be it from me to enter into the differences between the Government Chief Whip, whom I see balefully approaching the Chamber, and his hon. Friends on the back benches. I suspect that if the hon. Gentleman had seen his right hon. Friend approaching he might not even have made that intervention.
I welcome the Bill because it breathes a little more freedom into the practice of the Press. I do not have an indis- 1910 criminate regard or affection for the Press. I do not think that it is the best in the world. It has responsible and irresponsible editors, good and bad reporters. I am glad that during the stages of the Bill there has been a conspicuous lack of that fawning which hon. Members too frequently show towards Fleet Street whenever journalism is discussed. For once we have discussed the problems of the Press objectively. My hon. Friend has, to his credit, brought very nearly to completion a Bill which, while it will not resolve all the problems, will certainly resolve some of the difficulties confronting working journalists.
I am sure that it is right to relieve the Press of some of the difficulties about contempt proceedings. What remains in Clause 1 is marginal. The Attorney-General is simply required to give his consent before proceedings for contempt are brought. I would have preferred Clause I as it originally stood, but I recognise my hon. Friend's good sense and openness to argument in accepting the Amendment. I am sure it is right that the Attorney-General should have to give his permission before contempt proceedings are brought.
I speak from personal experience, because I suspect that I am the only hon. Member of this House who has been cited for contempt before the Lord Chief Justice, and who was charged by the Attorney-General of the day, then discharged without a stain on his character. I am very proud to be able to say that, and to say as well that in my later life, having come more centrally into the political arena, I am quite confident that the Attorney-General of the day, if this Measure had existed in the form that it now exists, would not have given his consent to those proceedings.
From personal and practical experience, the Clause, emaciated as it is, will be of material assistance to the Press. Clause 2 is clearly a further advance. It meets the difficulties of the gagging writ. Lest hon. Gentlemen opposite argue that this is not as large a problem as it may seem, I put this to them. The problem is very often not that the Press is brought into court either for contempt or for anything else, it is rather that, like most of us as ordinary citizens, it refrains from doing things that might 1911 render it liable to difficulties if it were to do them.
I have had personal experience of knocking out of newspaper copy in the United States matter that seemed to me to be perfectly proper to be published, of interest and pertinent, and which was published in the United States and almost all the other European countries, but which I thought it best to knock out of the copy for the British audience alone. This was because of an anxiety that the particular aspects of the British law would render the publication of such material liable to difficulties.
I am not for a moment suggesting that the British law is in any way inferior to that of other countries; on the contrary, I believe it generally to be superior. I hope that hon. Gentlemen will recognise that there is a practical problem here, of editors having to expunge from their publications matter that is pertinent and relevant to the British scene, because of their anxieties, sometimes unnecessary, about what might happen in this country.
Clause 3 dealing with Official Secrets, is clearly a delicate matter. In Committee, we had some interesting debates. I am not entirely happy with the Bill as it stands in this respect. Nevertheless, it is an advance in such a crucial matter. Further it is the only advance that we have. It is not enough for the Government to say that they have set up a committee which is looking into it and sooner or later will report.
The whole country is full of committees looking into problems and waiting to report. What we have here, in this Parliament, is a bird in hand. In my view, the bird in the hand is very much better than any bird in the bush that the Government may tell us about, but which we are entitled to doubt will ever be brought forward while this Parliament is sitting.
§ Mr. Griffiths
I have my bird firmly in hand and I undertake not to release it, Mr. Speaker.
Clause 5 will be of particular interest to the Press and broadcasting. It is wholly wrong that matter arising in foreign courts and foreign legislatures should be 1912 capable of being suppressed from the British public. We have had detailed discussion on this point. Surely a fair and accurate report of any proceedings in public of a central or local legislature ought not to be suppressed from the people of this country. It is only a matter of years before, in any event, the orbiting satellites will be making available to the world matter that goes on in the American Senate Foreign Relations Committee, in the Australian Parliament, in the Iranian Majlis, and it is wholly wrong for us to close our eyes to what is happening in technology and to say that the British, uniquely, shall be prevented from receiving this matter.
If the Bill is passed, as I hope it will be, it will engender a little more freedom and a little more certainty in the editing and reporting of the news for the British subject. I would like to congratulate my hon. Friend in his very great success in having brought the Bill this far. I hope that his efforts will be crowned by the House giving it the Third Reading that it deserves. If the Attorney-General has any further difficulties with it, I am quite sure that they will be capable of being ironed out in another place.
§ 2.40 p.m.
§ Mr. Roebuck
I assure the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths), my professional brother, that the Chief Whip on this side has not exerted any pressure—certainly not on me—to vote in any particular way in this debate. That is not how we on this side behave. We preserve all the proper Parliamentary traditions.
I speak on the Bill as a somewhat proud follower in the representation of Middlesex, of John Wilkes. I rather suspect that were John Wilkes with us, he would be sitting on these benches and not on those opposite.
I agree with a great deal of what the hon. Gentleman for Bury St. Edmunds has said, particularly about satellites. They represent a serious problem which will come up over the next year or two. Nevertheless, I seemed to detect in the hon. Gentleman's speech a wish that we could, perhaps, advance more towards United States methods—
§ Mr. Roebuck
The hon. Gentleman indicates that that is not so. I am glad 1913 of that, because the last thing we want in this country is that system. I am glad that the Bill does not push us in that direction.
The hon. Gentleman said that the Bill has resolved some of the difficulties of the Press, but I am not entirely persuaded that it has. I prefer the view of my hon. Friend the Member for Aberdeen, South (Mr. Dewar), who suggested that it would not be of much practical help. The theory behind it may be right, and is to be applauded, but on the practicalities I do not think that it helps the Press in the way suggested.
The hon. Member for Birmingham, Hall Green (Mr. Eyre) referred to the silencing and gagging writ. This is something of which the newspaper which is sure of its facts and has courage need have no fear at all. There was in the 'twenties a notorious swindler who had been pursuing his activities in this country and had then departed to the United States. When he came back, the Daily Mail, which had been making some investigations of him, wrote an article to this effect, "We observe with some surprise that the arch-swindler Doe"—that was not the man's name—"has returned to these shores. How this man can have the audacity to do so in view of the facts we have given our readers, we do not understand." Doe then issued a writ against the Daily Mail for libel, following which the Daily Mail published an article to this effect, "The arch-swindler Doe has had the impertinence to issue a writ against us. If he thinks that this will silence the Daily Mail in pursuing its public duty, he has another think coming."
Proceedings were issued for contempt against the Daily Mail. The judge in the case said that if only half of what the Daily Mail had printed were true, the Daily Mail had done a public service. The action for contempt was thrown out. That case was heard in about 1923, but I am advised that that is still the position in law.
It is no bad thing that newspapers should be compelled to be absolutely sure of their facts before a man's character is destroyed. Newspapers are very powerful instruments, and in many cases the citizen may have a great deal of difficulty when thrown up against a newspaper, because legal aid is not avail- 1914 able. The Bill will not help the newspaper which is sure of its facts and has courage.
The hon. Gentleman the Member for Bury St. Edmunds suggested that this Measure will help in cases of contempt of court, but, again, I doubt it. It is, alas, not well understood in many newspaper offices that it is quite legitimate to criticise a judge provided that it is not done with malice and there is no bearing on subsequent proceedings. It it quite open to any newspaper which feels aggrieved, or feels that the public ought to feel aggrieved at the way in which a judge has behaved, in good faith to criticise the judge—even in stern language. That being the case, I am not persuaded that the Bill will greatly assist there.
§ Mr. Eyre
The main purpose of the Bill is not aimed in the direction mentioned by the hon. Gentleman. It is aimed more at the Savundra type of scandal, where there is the possibility of criminal proceedings pending, but perhaps still months away, as in that case. In the meantime the fraud continues, and the Press and radio and television are afraid of commenting on the developing scandal because of the perhaps unjustifiable fear that they will be involved in contempt proceedings.
§ Mr. Roebuck
The Bill does not do all that is claimed for it, but I concede that the hon. Gentleman has a valuable point there.
On the other hand, I am moved towards the Bill because it continues the system under which juries assess damages for libel. There would be something incongruous if it did not, when what we are discussing is a Freedom of Publication Bill. It is to the juries, and not to the judges, that the Press and the nation owe their present freedom to criticise the Executive. One of the little errors that people make on this subject is to think that the judges are responsible for our freedom.
That such is not the case was established in the 18th century, when Lord Mansfield sought to persuade a jury that a journalist was guilty of an offence when he said that the King did not know the language of truth until he heard it in the complaints of his subjects. The accusation was one of seditious libel. The 1915 jury remained locked up for a very long time, but defied that great judge.
I am moved, as I say, towards supporting the Bill because it retains that present procedure: damages must be a matter left to juries rather than the judges, because juries can make a commonsense approach. I would rather have those people on the top deck of a bus to Clapham, or in the tube train to Stanmore, in my constituency, than any number of red-robed judges deciding such issues.
On that aspect, I adopt some of the observations made on Second Reading by my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman). I should here remark that my hon. and learned Friend has asked me to apologise for his not being here today. His wife is sick. He had hoped to take part in the debate, and has asked that the reason for his absence should be made known.
There is a powerful reason why it is good that the Bill continues the present system. The current issue of the United Kingdom Press Gazette has the following report:Assessment of damages by juries in libel cases is in newspapers' own interests, Peter Carter-Ruck, senior partner in newspaper and libel law solicitors Oswald, Hickson, Collier and Co., told the Institute of Journalists on April 28.He said he would prefer a jury in three-quarters of the cases in which he was acting for the defence. In the last three years there has been no jury award of more than £5,000 damages, while only the previous day a judge sitting alone had awarded £7,000 against a newspaper.It is, therefore, in the interests of newspapers as well as of others that this system should be continued—
§ Mr. Roebuck
I had no wish to do that, Mr. Speaker, but I hope that you will allow me to make a passing reference, because it is implicit in the Bill—
§ Mr. Speaker
I will allow a passing reference: I thought that the debate on what the House has already disposed of was about to begin again.
§ Mr. Roebuck
In fact, I was about to sit down.
1916 Like my hon. Friend the Member for Aberdeen, South, I am still a little undecided about the Measure. Basically, I do not think that it is much good, and I do not see why I should support it; but, if any of those who support it can produce more powerful arguments. I will willingly listen, and may even be persuaded to join them in the Lobby.
§ 2.50 p.m.
§ Mr. Carlisle
As one of the sponsors of the Bill, may I start by congratulating my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre) for successfully bringing the Bill to this stage. Despite what the Attorney-General may say, I sincerely hope that the House will give the Bill its Third Reading.
As a sponsor, I think I am entitled to say that the Bill is a bit like the curate's egg. I do not necessarily go along entirely with all of it and if, for example, the Attorney-General says that Clause 3 needs to be looked at again, I am sure that it can be looked at in another place. Despite that, there are certain minor but important reforms brought about by the Bill.
Clause 1 provides that contempt proceedings can be taken by the Attorney-General, and this is a great advantage. It is accepted that there are problems over the definition of "contempt", when contempt starts, how wide an attack on a judge must be before it becomes scandalising rather than fair comment. The Press would feel that they had much greater protection if the decision whether or not they had over-stepped that line had in the first instance to be taken by the Attorney-General.
The Attorney-General has made it clear to the Press during the passage of the Bill that fair comment on a sentence is, in his view, not contempt. The Press, therefore, knows that the person who has to initiate the proceedings takes that view and it can safely comment without running the danger of contempt proceedings.
The Attorney-General has also said, about the words "imminent and pending", over which difficulty occurs, that in his view the test should be the likelihood of very early arrest. It is because the Attorney-General is able to indicate to the Press in such a manner where the lines are drawn that it is advantageous that the Attorney-General should 1917 be the first to give permission for contempt proceedings to be brought.
At one time I acted as part-time lawyer on the newspaper which then employed the hon. Member for Harrow, East (Mr. Roebuck). It is all very well for him to say that one need not worry about a gagging writ, that one can go ahead and publish. He well knows that the lawyer is approached and the reporter says, "If there is any doubt about it, it must come out". Even if an arrest is imminent the reporter says if there is any doubt it should be left out, because of his justifiable fear of the consequences. This argument applies equally to the gagging writ. It may be that the Sunday newspaper would not be stopped by the insurance company writ but because it was afraid of the consequences of contempt.
Clause 3, I welcome. It throws new light on the Official Secrets Act, although the Attorney-General may have reasons for taking the opposite view. Clause 4 is an excellent Clause, which has been partly fathered by the Attorney-General. The mitigation of damages is a very important matter. I agree with my hon. Friend the Member for Bury St. Edmunds (Mr. Eldon Griffiths) that Clause 5 makes welcome minor changes, and this applies also to Clause 6.
Coming back to Clause 1, one of the reasons given by the Attorney-General for not wishing to have the power to initiate contempt proceedings is that he does not wish to narrow still further that area of the criminal law in which the individual citizen can start proceedings. This I find somewhat strange, coming from a member of an Administration whose Home Secretary during the passage of the Criminal Justice Bill did not hesitate, in Committee, to push in Clause 25, the whole purpose of which was to prevent an individual from taking proceedings under the Obscene Publications Act.
§ Mr. Carlisle
I quite agree. I was using as an analogy what had been done on that occasion and how that Bill had been used to prevent a private Member from taking prosecutions, following the successful prosecution by my hon. Friend the Member for Wimbledon (Sir C. Black). The argument is now 1918 turned round the other way and it is said that that is why the Attorney-General does not want to use the powers.
I hope that the House will give the Bill its Third Reading. It has good features, it attempts to strike a fair balance between the Press and the individual, and it gives protection to the Press in its necessary campaign to expose fraud.
§ 2.55 p.m.
§ Mr. Alexander W. Lyon
I am always pleased to differ from the hon. Member for Runcorn (Mr. Carlisle), as I do on the Bill. Before coming to the reasons for doing so, I join with other hon. Members in congratulating the hon. Member for Birmingham, Hall Green (Mr. Eyre), on sponsoring the Bill and on the way in which he has conducted the Bill through Committee and Third Reading. He has shown felicity of phrase and a great aptitude for timing in ensuring that the Bill moved to Third Reading at good pace.
Although I oppose the Bill, I do not do so, in the somewhat acid phrase of the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths), because my Chief Whip told me to; still less do I do so because, as the hon. Member for Runcorn suggested, I am beholden to the Attorney-General. I do so because from the moment that it was introduced I have had my reservations about the Bill.
It is not that I am not in favour of the kind of proposals that such a Bill might have put forward. I agree with other members of the legal profession and with the Press that there are aspects of defamation, of the Official Secrets Act and of contempt where greater clarity of definition and amendment of the present rigours of the law might be of advantage.
Whenever we talk about the freedom of the Press, which the Press does ad nauseam, we are also talking about the freedom of some other individual. The freedom of the Press to comment implies the lack of freedom of someone else, and this is inevitable in any society. If licence is given to one of a number of individuals to do something, almost inevitably that is at the expense of someone else. Always in this classic debate which has waged since the 18th century between the Press and authority one is 1919 faced with the problem of where to strike the balance, and that is what the Bill is really about.
Mr. Speaker, you ruled in your wisdom that we could not take an Amendment which I put on the Notice Paper to provide that the Bill should not come into force before the coming into force of legislation giving a right to the individual to defend himself against intrusion into his personal privacy. I accept that, but it is that feature of this Bill which most perturbs me. The balance between the individual and the Press is being slightly weighed once again in favour of the Press. I do not believe that we have the most hand-tied Press in the world. I think that the Press in our society is one of the most powerful instruments there are—in many ways as powerful as the Executive itself, and, in relation to the individual, far more powerful.
By casual word, by little sentence, which someone like the hon. Member for Bury St. Edmunds or the hon. Member for Harrow, East (Mr. Roebuck) may import into an article, the Press can destroy the prospects, the life and happiness of some individual, whose only redress is the law. It is the law which fundamentally supports the little man against this power which otherwise would be unfettered. Therefore, the legal restrictions upon the right of the Press to comment should be secured so long as there is no compensating balance for the individual.
For about two years I have been campaigning for a law of privacy. I do not want to go into that in detail now, because I know that it would be out of order. All I say is that I would welcome much more the proposals in the Bill if they were part of a general approach to this problem of where the balance should be struck. Traditionally, we have struck the balance by using the law of defamation, the law of contempt and to some extent—though it is not so clear—the official secrets law, to preserve the rights of the individual.
It would have been much better if, in the days when the common law was coming out of gestation, the common law judges had thought much more clearly about the right of the individual to defend his privacy rather than his property. The 1920 balance would, therefore, have been struck at the point where it really ought to have been struck—in relation to what it is about my own personal life that I want to keep secret and how far it is right that anybody else should have the right to pry into what I want to keep secret.
That balance is hopelessly weighted in favour of the Press at the moment, and until it is redressed I do not want to see any further relaxation of the law which binds the Press. That is what the Bill does. If the two were coming together I might take a different view.
I see that you are somewhat restive, Mr. Speaker, and, therefore, I shall deal with each of the Clauses as quickly as possible, suggesting how, in my view, the balance has been tipped slightly in favour of the Press. In Clause 1, as it stands after the Amendment, there is little change, but such change as there is is against the interests of the individual. It is perfectly true that there are occasions when a legal remedy is available only via the Attorney-General, and on a recent occasion we changed the law in relation to obscene publications.
However, in relation to contempt I am concerned not only about the right of the court to carry out an impartial review of whatever the allegation is, but about the right of the individual who uses that court in order to buttress his inadequate power against someone who otherwise has great economic and social power. He must have the right, if need be, to see that the court is also protected because otherwise he cannot hope to get impartial justice.
Therefore, there comes a moment when he may think that he will not get a fair trial, or that some comment which has been made will be prejudicial to his interests inside the court, but that is not how it strikes the Attorney-General. In most cases this is the practice followed. It is a very rare dilemma for the individual.
Most of the contempt cases have been brought by the Attorney-General. As my right hon. and learned Friend pointed out in Committee, he himself has only once brought proceedings. But, as he also pointed out, the fact that he must make the decision has meant that he has erred more in favour of the Press, simply because he knew that if he made a mistake 1921 individuals would have the right to seek redress in the courts. Under the Bill, they will not.
It may be that one is sometimes dealing with a vexatious litigant and sometimes with a man who wants to use the court for reasons which are beneath contempt. None of us would like to defend the way in which the fraud uses the mechanics of the law to defend his fraud. But one may not be dealing with such people; one may be dealing instead with a perfectly innocent individual who has been grossly abused by the Press in regard to proceedings which are either imminent or pending. We, making the decision here today, do not know which type of person it will be. We take on ourselves the judgment that the decision will always fall in favour of the Press against the rogue, but we do not know.
We may be taking away the right of a perfectly innocent, unblemished individual to use the court to maintain and defend his good name. I do not want to do that unless there is a compensating advantage to the individual, and there is none in the Bill. That and its like predecessor, the Defamation Act, 1952, are the only attempts in legislation to give the Press a particular privilege in law which is not afforded to the individual. In every other respect, the individual is in the same position. It seems to me that the Defamation Act itself represented a tipping of the balance in favour of the Press, and I do not want to see it go further in the Bill.
§ Mr. Eyre
I am not out of sympathy with the hon. Gentleman's basic plea, but it seems to me that extra help must be given to the Press in dealing with the particular responsibility of informing the general public about what is going on in so many trade transactions. I think that he would quickly give power to the Board of Trade if it were possible for it to deal with the situation, but it is not. I merely ask him to consider giving extra help to the Press in this respect.
§ Mr. Lyon
The hon. Gentleman has in his mind that the Press is the only bastion of liberty in this country, but, clearly, it is not. He recognised that when the point was put to him. I, he, you, Mr. Speaker, are just as entitled, if we have evidence of fraud, to declaim that evidence to the public and use what- 1922 ever means are available to us to see that the public know about it. As Members of Parliament, we have a specific responsibility where we discover a fraud that the Press may not know about. Why is it that the Press should have this power of exposure, but not us?
§ Mr. Speaker
Order. The hon. Gentleman can criticise the Bill, but he cannot widen the debate into the rights and privileges of Members of Parliament.
§ Mr. Lyon
With respect, I am seeking not to widen the debate but to answer the point put to me by one of the sponsors of the Bill. The hon. Member for Hall Green said that we need the Bill to preserve the right of the Press to seek out fraud. The same argument would apply to the individual, and I see no reason why the Press should be treated any differently from any individual. If it is right for the Press, it is right for the individual. If it is not right for the individual, it is not right for the Press.
Clause 2 is one on which the sponsors of the Bill have placed some reliance. True, if one takes an example like the insurance fraud which the hon. Member for Hall Green advanced as his justification for the Clause, one can see the logic of it. That is why I said initially that, if this were an academic seminar at which we were discussing what is was appropriate to do in relation to the law, this might well be a matter on which I should express some sympathy for the proposal. But, again, I put the point which I put in regard to Clause 1.
It is all very well to say that this will stop the gagging writ. So it will. But it will stop the gagging writ when the person who has been defamed is completely blameless. It will not only stop the gagging writ in the case of Dr. Savundra; it will stop it in the case of the innocent person.
§ Mr. Carlisle
That is not so, because it in no way prevents anyone who is being unfairly attacked from immediately applying for an interim injunction and also having repetition of the libel recognised by a higher award of damages.
§ Mr. Lyon
With respect, the hon. Gentleman has put the point to which I was coming. I said that it would do it 1923 for the innocent person as for the rogue—if it will do it at all. That is my doubt—if it will do it at all.
The hon. Gentleman says that at present a newspaper is precluded from talking about a matter of fraud by the fraudulent person taking out a gagging writ for defamation which he probably does not intend to pursue. But, as my hon. Friend the Member for Harrow, East cogently pointed out, there is nothing to stop the newspaper going on even against a gagging writ. If the assertion contained in the newspaper reports are true, if they are fair and balanced, no one will expect that newspaper to be brought before the court for contempt.
In Committee, the Attorney-General explained how infrequently this power is used; and so it would be even if there were an attempt by a fraud to use the gagging writ to silence comment about his affairs.
This was so in the case to which the hon. Gentleman pointed, and it is so today. The difference is that in the case to which the hon. Gentleman pointed the newspaper had the courage of its convictions and it also had the facts on which to base its allegation. If I may say so, I know that it is not his intention, but the effect of what the sponsor wants to do in this Clause is to give the power to a newspaper which has neither the courage of its convictions nor the facts on which it bases its allegation. In my view, that will lead to the sort of "yellow" journalism which I do not want to see in this country. There is enough of it already, goodness knows.
Anyone who reads the majority of the Sunday Press knows only too well how ludicrous are the tears shed for the poor journalist who cannot express himself sufficiently savagely. I ask hon. Members to look at the popular newspapers published on a Sunday. If the People were to base its assertions only upon what is factual, what is fair and what is reasonable, it would never come out.
The truth is that we have here a tipping of the balance seriously against the individual. If the individual is a fraud, and if the newspaper knows it and has the facts as distinct from the suspicion that that is true, there is no reason why it should fear.
1924 Now, Clause 3, which deals with the vexed question of official secrets. I have heard what the sponsors have not had to say on this Clause on Third Reading, and I read what they said in Committee.
I notice their delicacy about the matter. Even they recognise that, as it stands, it is quite unworkable. One cannot leave to a dispute in open court the question of whether the revelation of an official secret is in the public interest. If it is revealed, the whole object of the Official Secrets Act is lost.
The difficulty about the right of judges to look behind a ruling by a Government Department that it was not in the public interest to disclose certain documents was that if the judge had to look at the matter and consider the question in open court it was valueless to try to preserve the privacy of the State.
I have spoken of the balance between the individual and the Press. It may be said that I am speaking not on behalf of the individual but on behalf of the most powerful authority in the country, the Executive. So I am, and I recognise the difficulty of that argument. But the Executive does not exist for itself alone. When it does, I shall be entirely in favour of a relaxation of the Official Secrets Act so that the public shall know what is going on behind the scenes.
If all the Official Secrets Act is designed to do is to cloak the mistakes of Ministers, then it is much better that there should be open and free discussion. To that extent I support the theme of the Fulton Committee Report. But the Government concede that. They are prepared—and I will leave time for the Attorney-General to tell us about it—
§ Mr. Lyon
I am sorry, but I thought that we were talking about freedom. The hon. Member for Runcorn (Mr. Carlisle) wants to gag me with one of his writs. I hope that he will do me the courtesy of agreeing that in the 20 minutes during which I have spoken I have not in any way tried to conduct a filibuster. I have made valid points about the Bill.
If the hon. Gentleman disagrees, well and good. I do not want to delay the matter further.
§ Mr. Lyon
The hon. Gentleman cannot have it both ways. Either I am delaying the House, in which case I will allow the intervention, or I will not delay the House. I was intending to deal with the problem of the Official Secrets Act.
The problem would arise for instance in regard to the question of chemical warfare. During the C.N.D. demonstrations there was a discussion about the whole problem at the Old Bailey. One of the C.N.D. demonstrators was brought before the court on the ground that he had breached the Official Secrets Act in disclosing matters about defence organisations.
He sought to use the court as a means of propagating his views against the defence establishments by opening up the whole discussion of whether it was in the public interest that they should exist. By the provision of this Clause he would have had the right to discuss them, but the judge ruled him out of order.
If the Clause is accepted, our rights as individuals collectively as a community can be undermined; our security can be endangered by an open discussion in a public court as to whether it is in the public interest that the matter should be ventilated.
Where the Press is engaged, who can say what it might or might not regard as being within the public interest? It is still a matter of very great controversy as to whether the "D Notice" affair, discussed in this House about two years ago, was a question where the legitimate rights of the Press were invaded or where the legitimate rights of the community, in the person of the State, were invaded. That discussion had, in the end, to take place on the Floor of this House, which was perhaps more public than a public court. In my view, whatever the rights and wrong of that decision, there are certain areas of government where it would be totally inappropriate for the matter to be discussed in open court.
§ Mr. Edward Lyons
What has my hon. Friend to say about the rights of judges to declare proceedings in court to be in camera?
§ Mr. Lyon
That is one way of limiting the damage that might be done. However, anyone who thinks that, with a highly controversial matter being dis- 1926 cussed in camera, when highly important and confidential State secrets are being discussed they would not ultimately find their way into the Press has more trust in the security of the courtroom than I have or, as a parallel example, more trust than I have in the security of the Parliamentary party meetings.
Since I have been accused of delaying the House, I pass over Clauses 4 and 6. I have reservations about Clause 6, but they are not as strong as those on some of the other Clauses. I am concerned about Clause 5 which would allow the publication in any British journal of any fair and accurate report of any proceedings before a court exercising jurisdiction in any territory outside Her Majesty's Dominions, and any fair and accurate report of any proceedings in public of a central or local legislature in any territory outside Her Majesty's Dominions. In principle, there is much to be said for this, but it is also true that, whereas the laws of other countries differ about the extent of defamation and the protection afforded by the law of defamation, it would be possible to say things in court or in the course of legislative proceedings elsewhere which it would not be possible to say in this country.
In such circumstances it might be possible for the statement to appear in this country when it would not otherwise be possible for this to happen. That is not necessarily a great help to the individual, although I recognise that it is perhaps a fear which relates only to a very small and hypothetical number of cases, and is not of the more widespread nature of some of the earlier examples in other Clauses.
I have finished with the definitive parts of the Bill—
§ Mr. Eldon Griffiths
The hon. Gentleman will recall that earlier in his speech he disagreed with me that his Chief Whip had entered into his calculations. Would he accept that there are two ways of killing a Bill? One is the courageous way of voting against it, and the other is covering it with verbal foam.
§ Mr. Lyon
—then he is entitled to his opinion, but he is wrong. In my view this Bill ought to be killed, and I am quite prepared to vote against it. If the hon. Gentleman wants to use that for his column in the Evening News next week, he is entitled to do so. I am entitled to oppose the Bill in any way that I seek if I think it is wrong, and I think that it is wrong.
§ Mr. Dewar
I am interested in the arguments being used by my hon. Friend. I cannot say that I entirely agree with him in his interpretation of Clause 5. I think that the door was truly closed by the judgment in Webb v. Times Publishing Company, when it was said that there had to be legitimate and proper interests and the publication was not due to idle curiosity and a desire for gossip. With that judgment in mind there is little danger of abuse at present, or, therefore, change.
§ Mr. Lyon
There is little danger under the law as it exists, but the law is to be changed by this Clause. Let us face the consequences of the passage of the Bill.
I conclude on the note that I began, that it is about Clause 11(2) that I have the deepest reservations. The Amendment which I sought to make has not been accepted, but it lies within the power of the Lord Chancellor to delay the implementation of the Bill if it ever succeeds in becoming an Act. In my view it would be desirable that he should do so, as long as there is no law to protect the individual against intrusion into his privacy. When that is available I shall accept the Bill, with all its warts, but until that is done I must vote and speak against it.
§ Mr. Hugh Delargy (Thurrock)
Will my hon. Friend say something about Clause 11? He has talked more sense about the Bill than I have heard in any other speech this afternoon.
§ 3.27 p.m.
§ Mr. Sharples
I intervene briefly to add my congratulations to my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre), on having introduced the Bill 1928 and having seen it through its various stages. It may be that the House will be prevented from reaching a decision on the Bill this afternoon, but if that happens it will be in accordance with what happened to similar Bills on this subject which were introduced in the past.
I think that it is now almost beyond dispute that there is a need for legislation on this subject. The report of a committee sponsored by Justice was debated in another place in May, 1965. At that time, after a strong case had been made for legislation, the Lord Chancellor used the usual excuses offered by the Government on occasions of this kind, when he said:I am afraid there can be no question of legislative time being found in this Session for a reform of this branch of the law. The Government have not yet made up their minds what, if any, reforms in this branch of the law there should be."—[OFFICIAL REPORT, House of Lords, 25th May, 1966; Vol. 274, c. 1435.]That was almost exactly three years ago to the day. Surely by now the Government should be in a position to decide what changes should be made in the law, or else be in a position to give the House a firm direction that there is no need for any change at all.
What has happened with this Bill, and what happened to the two previous Bills introduced by my hon. Friend the Member for Ludlow (Mr. Moore) is that progress has been blocked. At this stage, at half-past three on Friday afternoon, it becomes fairly clear to anyone who has listened to this debate and to what has gone before that the Bill is likely to share the fate of the Bills previously introduced by my hon. Friend. I have little doubt that if the Government so wish to organise matters so that the Bill is talked out, hon. Gentlemen opposite will be capable of talking it out.
I maintain that there is a strong case for a Bill of this kind. Perhaps a private hon. Member faced with the difficulties of drafting a complex Measure such as this may not draft a Bill which is perfect in all respects. Nevertheless, I share the view expressed by my hon. Friend the Member for Runcorn (Mr. Carlisle) that the main difficulty which faces the Press in dealing with difficult cases—for example, the Savundra case—is the uncertainty of where it stands in law today 1929 The Attorney-General will no doubt shortly give us the Government's view of the investigation which is taking place into the Official Secrets Act. However, it is in regard to the law of contempt, and particularly the law relating to that Act, that the main uncertainty of the Press, and of those who work for the Press, needs to be resolved. On Second Reading the Attorney-General said:The Bill raises many interesting and important questions touching the delicate balance which, in a free society, must be drawn between the Press, on the one hand, and the individual citizen, the courts, and the Executive, on the other".He went on:In my view, the Bill needs very substantial Amendments indeed if it is to reach the Statute Book."—[OFFICIAL REPORT, 31st January, 1969; Vol. 776, c. 1724–5]Bearing in mind the difficulties which face a private hon. Member in drafting a Bill of this kind, one is entitled to ask what assistance was given by the Attorney-General and his Department to my hon. Friend the Member for Birmingham, Hall Green in his efforts to improve the Bill.
If one studies the Order Paper today, one sees that nearly all the contributions made by the right hon. and learned Gentleman in a so-called endeavour to improve the Bill by way of Amendment are represented by a series of wrecking Amendments—[Interruption.]—to leave out every Clause. The House and the country will have noted that a Division was forced by hon. Gentlemen opposite on an Amendment to delete Clause 7, when the Attorney-General must have known that that Amendment was purely consequential on an Amendment which had previously been rejected.
§ Mr. Deputy Speaker
Order. Before there are any interventions, I warn hon. Members that Clause 7 is no longer in the Bill and that it is, therefore, not in order to discuss it on Third Reading.
§ Mr. Sharples
I will not pursue that, except to point out that I was one of the Tellers in that Division.
§ The Attorney-General
I hope that the hon. Member for Sutton and Cheam (Mr. Sharples) will not further his disorderly references to Clause 7, in which he has spoken in intemperate words about alleged tactics. I hope that he will not pursue the matter further because his remarks are wholly unjustified.
§ Mr. Sharples
I say only this, by leave of the House: those who have listened to the debate will be able to draw their own conclusions.
§ Mr. Simon Mahon
On a point of order, Mr. Deputy Speaker. The hon. Member for Sutton and Cheam (Mr. Sharples) has spoken in derogatory terms about my hon. Friend the Member for Preston, South (Mr. Peter Mahon) suggesting that he has not been in the Chamber. May I point out that, unlike most hon. Members, my hon. Friend was even here for Prayers today.
§ Mr. Sharples
I do not think that the hon. Member for Preston, South has been here for the greater part of the debate.
In conclusion, no matter what happens to the Bill this afternoon, this is not and cannot be the end of the matter. My hon. Friend the Member for Hall Green spoke of our work in the Conservative Party on these matters. It will fall to us, I believe before long, to put into practice the ideas which we shall have and to introduce a Bill of our own.
§ 3.36 p.m.
§ The Attorney-General
I am surprised at the tone and content of the remarks of the hon. Member for Sutton and Cheam (Mr. Sharples) because the biggest vote that the supporters of the Bill were able to muster in a Division was 27, and had it not been for the fact that my hon. Friends were present in sufficient number, the debate would have died about two-and-a-half hours ago. In my submission, therefore, his observations, to say the least, have been churlish in circumstances in which the sponsors of the Bill were unable to muster enough support to keep the debate going. I repudiate entirely any suggestion of any obstruction in the discussion of the Bill by the House.
§ Mr. Simon Mahon
My right hon. and learned Friend has spoken about the promoters of the Bill not being able to gather sufficient numbers to mount a Closure on a matter as important as the Bill. This has happened on successive Fridays when supporters of another Bill have been unable to mount a Closure. We suggest that the sponsors of the Bill see the Government, who might give them more time for it.
§ The Attorney-General
It is an excellent thing that the House in Committee and on the Floor has been able to discuss the law of contempt, the Official Secrets Act and libel. It is the case that the Government have set up the Salmon Committee to investigate an important aspect of the matter in relation to contempt of court proceedings before tribunals of inquiry under the Tribunals of Inquiry Act and we await with great interest that report, which may well give us some valuable guidance on the law relating to contempt. I for my part welcome the setting up of a study group by the Opposition under the leadership of the right hon. and learned Member for Epsom (Sir P. Rawlinson), and it may well be that in the next Parliament, when we shall still be on this side of the House, we shall find some useful guidance from the deliberations of the undoubtedly eminent libel experts and others who are participating in that work.
But while I commend the energy and ability with which the hon. Member for Birmingham, Hall Green (Mr. Eyre) has launched and persevered with the Bill, I greatly regret that, applying my best 1932 will to the matter as Attorney-General, I find the subsisting Clauses of the Bill, or several of them, so wholly objectionable in principle that I must advise the House to reject the Motion for the Third Reading. I shall try to deal with the matter at not too great a length, and I go straight to Clause 1.
The House has deleted the first part of the Clause. I was asked by the hon. Member for Sutton and Cheam (Mr. Sharples) what assistance my colleagues and I had given the sponsors of the Bill. He will have seen that Clauses 4 and 6 have been re-cast. This has resulted from Governmental assistance. Unhappily, our view was that the attempted redraft of the law by Clause 1 was, first, unnecessary, and, second, totally ineffecive and injudicious.
We are left with the second part of that Clause, which proposes to take from the citizen what he may regard in a given situation as an important right; namely, that he should have power to take contempt proceedings even if the Attorney-General had refused to do so. It will be exceptional for the individual to take such proceedings. They are costly, and there would be no legal aid. In effect, the control over contempt is in the hands of the Attorney-General. But I cannot believe that it would be for the benefit of the citizens at large that in the last resort they should not be able to take contempt proceedings themselves. When I have to take decisions on these matters is it a great comfort to me to know that if the citizen still feels aggrieved he can take his own action. Therefore, touched as I am by the confidence in my office shown by the Clause, I do not think that it is in the interests of the citizenry that the Clause should stand.
Clause 2 deals with repetition of defamatory matter. Its object is to prevent justifiable newspaper criticism being stifled by the issue of a writ for libel followed by the threat that if the defamatory matter is repeated proceedings for contempt will be instituted. The difficulty about the Clause is that if it is intended to remove altogether from the court the power to prevent repetition of defamatory statements by the summary sanction of punishment for contempt, it goes too far. But if its sole purpose is to declare that repetition of a defamatory statement already the subject of a libel action is not 1933 ipso facto a contempt, it is totally unnecessary.
As I pointed out in Committee, the plaintiff in the libel action may have persuaded the court to grant an injunction restraining the defendant from repeating the defamatory statement. In that event, repetition of the statement by the defendant would and should be a contempt of court. I think that that is common ground. Repetition by another person might well also constitute a contempt, particularly if it were done with knowledge of the injunction and the approval of the defendant.
Although the effect of the Clause is not altogether clear, the Clause does not appear to affect that situation because in the example I have given repetition of the defamatory matter would not be a contempt by reason only of the fact that the proceedings were pending. It would be a contempt because of the existence of the injunction.
The argument in support of the Clause that a threat of contempt proceedings can be used to stifle justifiable criticism is not sound. Apart from the objections I have mentioned, a genuine attempt to expose a scandal will never lead to an injuction against repetition. If one is sought but the defendant newspaper is prepared to justify, the possibility of the court's granting the injunction is remote in the extreme. I have given an assurance, and repeat it now, that mere repetition, without more, does not constitute contempt. It is inconceivable that contempt proceedings would be brought by reason only of the fact that the proceedings were pending. This deals with a threat which just is not there. Therefore, in my view, the Clause is at best useless and at worst harmful, it is based on a misunderstanding of the law, and its presence on the Statute Book is undesirable.
Clause 3 deals with the Official Secrets Acts. Its effect would be to amend Section 2(2) of the Official Secrets Act, 1911, by providing a person accused under that subsection with the defence that what he had done was not prejudicial to the public interest. He would be entitled to rely on that defence provided that he had given not less than seven days' clear notice to the prosecution before the commencement of the trial.
1934 The issue of whether or not the defence was established would be decided by the judge alone, and in so deciding the judge would have to take into account, among other things, a certificate of a Minister of the Crown to the effect that the act done by the accused was prejudicial to the public interest. The certificate would not be conclusive, but it would be evidence that the judge would have to take into account in determining the issue pleaded by the defendant of whether or not the defendant's act was prejudicial to the public interest.
I remind the House that Section 2(2) of the 1911 Act makes it an offence for a person to receive any official document or information knowing, or having reasonable grounds to believe at the time he received it, that that document or information was communicated to him in contravention of the Official Secrets Acts—in other words, knowing or having reasonable grounds to believe that the person who gave him the information was himself committing an offence because he was giving it without authority.
The Clause is wholly objectionable to my right hon. Friends and myself for reasons which I have already explained to the House and the Standing Committee. The principle objection—and I share the criticisms made so ably by my hon. Friend the Member for York (Mr. Alexander W. Lyon)—is that if the defendant pleaded that what he had done was not prejudicial to the public interest, it would be for the prosecution—namely, the Crown—to produce evidence to the judge to rebut that plea. To do this, it would in many cases be necessary to reveal secret matters perhaps vital to the defence of the country in order to show in which direction the public interest lay and why the defendant's action had prejudiced that interest. There may well be instances where it is only by explanation of other related matters that it can be proved to the satisfaction of the judge that the defendant's action had prejudiced the public interest. No Government could allow the national interest to be prejudiced by revealing such matters in court.
There is the additional objection that the balance of public interest is not something which can be satisfactorily determined by a judge in a criminal court. It 1935 may well raise issues involving international as well as domestic considerations on which it would not be right to ask a judge to adjudicate. It has been said that the purpose of including the Clause is to ensure that in future the Official Secrets Acts should not be used to muzzle legitimate reporting and discussion of matters which should be brought to the notice of the public, and consequently which it is not contrary to the public interest to publish. I submit that such an argument reveals a fundamental misunderstanding of the operation of the Official Secrets Acts.
As I have said, earlier, there is the greatest difficulty in defining satisfactorily what categories of information should be protected so as not to damage the public interest. It was to meet this difficulty that there was included in the Acts a provision requiring the Attorney-General's consent to the institution of proceedings under the Acts. That provision is not unusual where it has not proved possible to define in a statute precisely the mischief at which the statute is aimed. The object of including the provision requiring the consent of the Attorney-General is to ensure that there should be no prosecution unless the Attorney-General is satisfied, having considered all the information which is available to him, that there is adequate evidence against the accused to justify the prosecution, that the evidence indicates that he has committed an offence against the spirit and not merely the letter of the statute in question, and that it is in the public interest to take proceedings.
As to the Official Secrets Acts—I am quite sure that I can also speak for my predecessors in office, and I see one is here—I would never consent to a prosecution unless I was satisfied that there was adequate evidence that the accused had acted in a way prejudicial to the public interest. It is for that reason that prosecutions under the Acts are rare. Since I have been Attorney-General there have been only 12 such prosecutions. I do not think it would be appropriate for me to explain to the House all the circumstances in which I consented to those prosecutions, but I can assure hon. Members that I am quite satisfied that in each case there was evidence that the national 1936 interest had been, or might have been, damaged.
There has also been a further misunderstanding, I think, about the effect of section 2(2) of the 1911 Act. An offence under this subsection is committed only if the person who received the information knew or had reasonable grounds for believing that the person communicating it was doing so without authority, and consequently, was himself acting in breach of the Acts. It is for the prosecution to prove affirmatively that the defendant had that knowledge, or had reasonable grounds for believing it. Accordingly, the representative of a newspaper or any other individual who receives information from a civil servant need have no fear that he is in danger of prosecution under the Acts unless he knows that the person giving it to him does so without authority, or unless the circumstances in which he receives it are such as to make him suspicious about the authority of that person.
The Acts are concerned only with unauthorised disclosure of information. Any suggestion that they operate so as to inhibit the authorised release of information is unfounded. As hon. Members will recall, the Fulton Committee welcomed in its Report the trend in recent years towards wider and more open consultation before decisions are taken, as well as the increasing production of the detailed information on which decisions are made. It wanted both to be carried further.
The Government have now completed a thorough examination of the whole question of the release of official information. In the course of this they have considered what advances have been made in recent years, what more can be done in future and what safeguards will continue to be required. A White Paper showing the results of this examination and setting out the Government's policy will be published soon after the House returns from the Whitsun Recess. The House will not expect me to anticipate the substance of the White Paper, and I must therefore ask the House to await its publication.
Therefore, Clause 3 in its present form is wholly objectionable and is the fundamental ground for the rejection of the Bill.
§ The Attorney-General
It was carried out within the Government, within their agencies within the Civil Service, and the hon. Gentleman will see its range when the White Paper is published.
§ Mr. Griffiths
The Attorney-General has said something of importance to everyone. After the White Paper has been published does he envisage some legislation?
§ The Attorney-General
This is a teasing question. The hon. Gentleman will have to wait to see the White Paper. We shall debate it later. I cannot give any further information now to the House.
Clause 4 is good so far as it goes. It effects a minor amendment to the law of libel, and Clause 6 does the same, although it could have been done by Rules of Court. Unhappily, the advantages of those two minor improvements are greatly outweighed by the objectionable Clauses. Clause 5 remains objectionable. It shifts the burden of proof to the person who complains of being libelled in the foreign reports in question. The law as it stands is sound enough. This matter was considered by Parliament when the Porter Committee's Report was debated, and what is proposed in the Clause was rejected then, as it should be rejected now.
Clause 6 is good so far as it goes, but, if the Bill falls by the wayside, the trouble dealt with in the Clause could, if necessary, be dealt with by Rules of Court.
For these reasons, and because of my view that, broadly speaking, the balance of the law of libel is about right between the need of the citizen to have his good reputation protected and the need of the Press to have the right to report, to expose and to do its duty of informing the public, I must advise the House that the passing of the Bill would tilt that balance unfairly against the ordinary citizen, and that the Bill should be rejected.
§ 3.55 p.m.
§ Mr. Edward Lyons
I do not propose to talk the Bill out, so I shall sit down inside two or three minutes.
Clause 5 is objectionable to me because it enables people in this island to be destroyed by what is said in a foreign legislature. This is wholly wrong, particularly when in that foreign legislature material could be deliberately planted to destroy people in this country.
On Clause 2, if one takes away contempt, it means that a newspaper may risk only damages in saying something which may prove to be untrue, with the result that a man's reputation will be wholly destroyed and will not be resuscitated, since he may or may not get damages a long time ahead, particularly if he has not the money to bring expensive proceedings.
Had I had time I would have made a longer speech, but my hon. Friend the Member for York (Mr. Alexander W. Lyon) dealt in a better way than I could have done with many of the points which I wished to make.
As the Attorney-General has said, the balance is right. There has been much crying out about the working journalist, when the big newspapers are meant. What about a word for the ordinary man-in-the-street, who has great difficulty in getting even an apology from a newspaper unless the newspaper is advised by its legal advisers that it does not have a leg to stand on? There has been very little talk of the individual today, apart from what was said by my hon. Friend the Member for York.
For these reasons, I object to the Bill and will oppose it.
§ Dr. Ernest A. Davies
I objected to Clause 1 of the Bill after it had been considered in Committee. Although I am not a lawyer, I have spent many hours sitting in court attempting to adjudicate as a justice of the peace, and on reading Clause 1—
§ Dr. Davies
Clause 1 as it then stood was objectionable, but it is even more objectionable as amended, and is objectionable even to hon. Members who have 1939 sponsored the Bill. My hon. Friend the Member for Accrington (Mr. Arthur Davidson), who has very considerable experience of the newspaper world, pointed out in Committee that people outside the newspaper world rarely realise the pace and pressure under which editors and members of the journalistic profession work. He argued that that should be taken into account in the Bill. Clause 1 as amended—
§ Dr. Davies
Clause 1 as amended will leave an editor in exactly the same difficulty about time as the original Clause. The situation seems to be now that not only have we got a bad Bill in respect of other Clauses but we have one which does not meet the intention of the original sponsor.
§ It being Four o'clock, the debate stood adjourned.
§ Debate to be resumed upon Friday, 13th June.