§ 4.6 p.m.
§ House again in Committee on Clause 1.
§ EARL JOWITT moved after "telegraphy" to insert "or by any artificial means of whatsoever nature." The noble and learned Earl said: I desire to extend the definition to include a case of this sort. Some reference has been made to what I would call the "garden wall case." where words slip out without one really thinking what one is talking about. But I think we ought to provide for the elaborate occasion, where a set speech is being made and you have hired a hall and you cannot get all the people in who want to go, and so you wire it up to the next hall. I think you technically do it by means of a telephone and a microphone, so that everyone in all the halls can hear the speech. We all know cases of that sort of thing. Or, if you like, in one hall—the Albert Hall—where the human voice cannot reach without amplifiers or something of that sort. I think you ought to provide for words which come through amplified in that way; that they ought to be treated as you are going to treat broadcasting. At the present moment, of course, broadcast words are treated as slander. This Bill quite rightly treats them as libel and in that category ought to come the sort of words I have mentioned. I am not in the least happy with the words of my Amendment. It may be that a much better form of words can be devised. But on the principle I shall be perfectly content if the noble Viscount in charge of the Bill will tell me that he will look at it between now and the next stage to 327 see if he can find a better form of words. But that is what I have in mind. I beg to move.
Page 1, line 6, after ("telegraphy") insert ("or by any artificial means of whatsoever nature.")—(Earl Jowitt.)
§ VISCOUNT SIMON
I will, of course, do what the noble Earl suggests and study the Report of what he has just said. I should add that, having considered it as far as I can, I hope the Committee will not make this Amendment—and, without delaying the House unduly, I will mention just two considerations. First, it is necessary to read with Clause 1 and the Amendment now suggested the provisions which are to be found in Clause 16—namely, thatAny reference in this Act to words shall be construed as including reference to pictures, visual images, gestures and other methods of signifying meaning.I had no doubt that Lord Jowitt had that matter in mind. He now explains that that is really not what he is thinking about. He suggests that a difference should be made between the legal situation when a man gets up and makes a speech in a hall and the legal situation if he makes a speech with amplifiers. I am afraid I feel that it is not a good distinction, unless you say that a man with a loud voice must be considered as having perpetrated a libel and that a man who has not a loud voice only commits a slander.
I do not think that is possible. I was in some doubt as to what my noble friend really had in mind by "artificial means." Does he mean skywriting? Would it be artificial means if you taught your parrot to utter a slander? Does he mean something written with the assistance of a planchet? None of these absurd illustrations was, of course, in my noble friend's mind. I will look into the matter, but I think the Bill will be better as it is. My attention is drawn to Clause 16, subsection (3). The words are:In this Act 'broadcasting by means of wireless telegraphy' means publication for general reception by means of wireless telegraphy within the meaning of the Wireless Telegraphy Act, 1949, and 'broadcast by means of wireless telegraphy' shall be construed accordingly.I think those words were put in primarily for dealing with the sort of messages which go between Scotland Yard and police cars and similar messages.
328 But, be that as it may, of course I will gladly look at the noble and learned Earl's suggestion. I hope that, with that assurance, he will let us pass on.
§ EARL JOWITT
I am most grateful to my noble and learned friend. I will certainly withdraw the Amendment in a moment, but I will point this out to him. You start with this assumption: that the distinction between libel and slander is not logical to-day. I quite agree that the acceptance of my Amendment would not produce a logical result. However, it is one thing to say that the casual remark that slips out, the ill-considered remark, should not be the subject of action, but it is a very different thing to say that the occasion of a set speech before a large audience, a speech which has been carefully considered beforehand, should not be considered actionable. The fact that you have all the paraphernalia of loudspeakers rather differentiates one from the other and puts the occasion more into what I may call the "set speech" variety and not the "garden wall" variety. If the noble and learned Viscount will look at the point and see if anything can be done on those lines, shall be most grateful. In the meantime, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ 4.12 p.m.
§ Clause 2:
§ Slander affecting official, professional or business reputation
§ 2. In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.
EARL JOWITT moved, after "calculated" to insert:
to degrade the plaintiff in the estimation of the hearers or
The noble and learned Earl said: I can deal with this Amendment shortly because it covers a similar point. This is an Amendment which is designed to reproduce what I understand to be the American law. The noble and learned Lord, Lord Porter, has done me the honour of reading what I said on the last
occasion when I referred to Gatley as my authority of what the American law is. Whether or not Gatley correctly states the American law I do not know, because I have made no researches, but he does state in substance what he says is the American law. If we had some words of this sort, which would indicate that the slander had to be a slander of a serious nature tending to degrade the plaintiff, I might be satisfied, and possibly some objections to the other method would be satisfied too. I do not intend to make another speech on this matter. I beg to move.
Page 1, line 8, after ("calculated") insert ("to degrade the plaintiff in the estimation of the hearers or").—(Earl Jowitt.)
§ LORD PORTER
My noble and learned friend Lord Simon has asked me to deal with this matter. In the first place, I feel that the difficulty is one of draftsmanship. I do not know what the Amendment means. If I read it in its widest sense, it seems to go back to the question of making libel and slander equal, because, if read in that sense, what it says is that if you disparage a man at all, that shall be an actionable wrong, and if you disparage him in the case of his business, that shall be an actionable wrong. As the Amendment is drafted at present it really is an alternative to saying that libel and slander shall be on the same basis. I do net see how, having regard to the fact that the noble and learned Earl has withdrawn his other Amendment, he can proceed with this one as at present drafted.
§ VISCOUNT SIMON
I must say that my noble and learned friend who has just spoken expresses my feeling. I thought that the noble and learned Earl had put down this Amendment before we discussed the broad question, to have the effect of making all slander actionable per se, without even the safeguard contained in his first Amendment I rather thought that this Amendment would fall if the first Amendment was withdrawn. I do not see that the words are needed at all. It seems to be that the clause as it stands is right. Indeed, if there is any difference, I am not sure that it would necessarily be to the advantage of the plaintiff. However, I will gladly look at the matter.
§ EARL JOWITT
I am grateful to the noble and learned Viscount for that. I must admit I am not at all satisfied with the drafting, but I wanted to devise some form of words which would enable an action to be brought in respect of a really serious slander. To say that a fellow is drinking himself to death or is a drug fiend, or something of that sort, is a really serious matter which, obviously, would tend to degrade him. If that is not an appropriate word to use and the noble and learned Viscount can think of a more appropriate one, I shall be grateful. I am trying to have, not all slander actionable per se, but those slanders which do involve the serious degradation of a man's character, albeit not alleging a criminal offence. Consider how foolish the position is. If you say of a man that he habitually rides his bicycle on the footpath, I suppose that would be actionable per se because that is a criminal offence.
§ EARL JOWITT
No; that may be an unhappy illustration. I mean, some quite trivial matter. I mean some matter which does not really affect the good name of the man. On the other hand if you say of a man that he is taking drugs or is drinking himself to death that is something which would really affect his good name, but he cannot bring an action. My Amendment is designed to try to get the serious type of slander actionable per se. I will withdraw the Amendment now, on the undertaking that the noble and learned Viscount will look at it. If it could be looked at between now and Third Reading, perhaps we might have an Amendment then to put it straight.
§ Amendment, by leave, withdrawn.
EARL JOWITT moved, after "publication" to insert "or previously held or carried on by him,". The noble and learned Earl said: This is a more important Amendment because here we are amending the law in a sense that I like. I am afraid that some of your Lordships will be upset by this clause of the Bill—Clause 2—because the ambit and the scope for vexatious actions is hereby greatly enlarged. Your Lordships must
realise that. If we are enlarging the scope and the ambit of vexatious actions, let us see carefully where we draw the line. I think it is wrong to limit it to the fact that the plaintiff must be
in any office, profession, calling, trade or business held or carried on by him at the time of the publication.
To my mind, what really matters is the time to which the slander related. Consider this case—I do not know whether it is a happy illustration or not. Take, for example, the noble and learned Viscount, Lord Simon, and myself. We are both ex-Lord Chancellors, we are both retired, we both have a pension—I do not know whether we have to behave well to get the pension or whether it comes to us anyhow, but that does not very much matter. But does the noble and learned Viscount, Lord Simon, come under this clause, or can I say what I like about him? Must I hold back my comments about the noble and learned Lord, Lord Porter, at the present moment, and console myself by saying all the nasty things I can think of about my noble friend, Lord Simon, while waiting for the day (which I hope will be a very long time ahead) when the noble and learned Lord, Lord Porter, retires, and then make up for lost time by saying what I want to about him? If that is a correct illustration, it seems to me absolute nonsense. After all, the man who needs protection perhaps more than anybody else is the man who is out of a job and wants to get one. If a man is out of a job and wants to get one, why should he not be entitled to bring an action? I think this clause is much too narrow.
§ Take again the case of my schoolmaster. He had lost his employment and was out of a job, and he wanted to get another. He was a man who was going to be affected more than anybody else by rumours and slander. I hope that the noble and learned Lord, Lord Tucker, will support me here, because if we are opening the door and are going to allow this new form of action, let us have it on a logical basis. I suggest that there ought to be inserted here the words "or previously held or carried on by him." That, I think, is only fair. For that reason I am not going to spend any further time on this point. I am trying to get this Bill through and to give all the help I can. I beg to move.332
Page 1, line 10, after ("publication") insert the said words.—(Earl Jowitt.)
§ VISCOUNT SIMON
The Committee have been interested, I am sure, in the explanation which the noble and learned Earl has given. I followed it closely, and definitely on this subject I do not agree with him. We must assume now that there is the distinction between libel and slander which we discussed earlier to-day. What does Clause 2 deal with? It deals with a person who hasany office, profession, calling, trade or business.As the law stands at the present time, even though the person has an office, profession, calling, trade or business, he will not be able to recover damages for something said to his discredit unless the words were spoken of him in the way of his office, profession, calling, trade or business. The instance has been given of the teacher who, it was said, had mis-conducted himself whilst on holiday. That is perfectly intelligible as a principle, and it is the present limitation of the law. This extension by Clause 2 says: "Yes, you have an 'office, profession, calling, trade or business' and you have suffered because something has been said about you in the way of your 'office, profession, calling, trade or business.'" The thing may not itself have been said as being calculated to disparage you in that "office, profession, calling, trade or business"—for instance, the business of a teacher. The whole of that depends upon the man being at the time a person who has an "office, profession, calling, trade or business." If we were to amend this Clause so that it applied to people who have not any such "office, profession, calling, trade or business" and say, none the less, that no special damage need be proved, then we should be going back to the proposition which has been rejected or withdrawn—the proposition that slander and libel should be assimilated. For these reasons I cannot agree to accept the Amendment, though it is a very interesting point, and no doubt we could talk about it for a long time.
THE LORD CHANCELLOR
I can only say that I agree with the words of the noble and learned Viscount who has just spoken.
§ EARL JOWITT
I am sorry about that, because I think that the Amendment is one for which the argument is overwhelming. Having said that, perhaps my view is not worth very much, therefore I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clause 3 agreed to.
§ Clause 4:
§ Unintentional Defamation
§ (5) For the purposes of this section words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to another person if and only if the following conditions are satisfied, that is to say—
- (a) that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or
- (b) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person,
§ VISCOUNT SIMON
This is really a formal amendment but it has been found to be necessary by the draftsman. I think the reason is that we have already used the word "costs" and this is necessary in order to get the language of the Bill consistent. It is a pure formality. I beg to move.
Page 3, line 19, after the second ("such") insert ("costs and").—(Viscount Simon.)
§ On Question, Amendment agreed to.
§ EARL JOWITT had given notice of three Amendments the first being to omit from subsection (5) (b) "words were not defamatory on the fact of them and the." The noble and learned Earl said: I think we can deal with these three Amendments together. What we are now dealing with is unintentional defamation. I am endeavouring to follow the Porter Report here. I think it is an excellent document, at any rate in bits, and this, I think, is a good bit. 334 I do not think the protection given by the Bill as drafted, if it is intended to give protection, is worth anything. I think it is a dreadful lot of words, but you are so conditioning it and all the rest that I think it comes to nothing at all in the end—nothing whatever. I think that what we have to do is alter the wording, and I suggest that we should alter it in these respects.
At present, the Bill says that subsection (4) (b) is not to apply unless certain conditions are applicable. One of the conditions is
that the words were not defamatory on the face of them
That makes the thing absolute nonsense. Suppose you are writing a book, and that in that book you put a character who is a terrible villain, a murderer, what you will—the most dreadful character in the book. You describe how he is in the condemned cell, or what you will, and you give him the name john Jones. Then some John Jones comes along and brings an action against you. Of course the words are defamatory, and it is only because they are defamatory that the man brings an action. What has to be established for the claim to be substantiated is not that the words are defamatory but that they are defamatory of a man of whom you have never heard. I really feel that if you have these words there you strike out the whole benefit of the clause altogether.
THE LORD CHANCELLOR
I think the noble Earl will realise that he is wrong, if he refers to the passages immediately before this paragraph.
§ EARL JOWITT
I am sorry. I gather that I am wrong. I confess that it does not seem to me necessary now to press the first of these Amendments.
§ EARL JOWITT
May I now come to my next Amendment? This is the one which relates to the passage in the Bill about agents. Of course a man is always responsible for the acts of his agents. The effect of adding this provision, I suppose, is to extend the category of those who would normally be agents. Take the case of a printer. Does every man who sets up type have to be considered, because if so that is an impossible task. 335 What is meant is agents who are agents of the printer for the purpose of reading the stuff through, and all that sort of thing. I suggest that these Amendments make a change which is most important. The question is whether we are going to do what the Porter Report recommends. I believe they are absolutely right in saying the principle is that you should not hit a man by reason of the malice of some other man unless he has reason to know or suppose that that other man was malicious. As a matter of form I submit my first Amendment. If, as I strongly suspect, in view of what the Lord Chancellor has said, there is nothing in it, I will withdraw it and we can have a discussion on the next. Perhaps the noble and learned Viscount will tell me what is a convenient course to take.
§ VISCOUNT SIMON
I really think that we have to take these Amendments one at a time. I do not think they follow in an inevitable chain. If I may, therefore, I will take it that we are considering the Amendment to page 3, line 29.
§ EARL JOWITT
I had better not move that Amendment but move the next one, at page 3, line 34, which is to leave out from "publication" to the end of line 37.
Page 3, line 34, leave out from ("publication") to end of line 37.—(Earl Jowitt.)
§ VISCOUNT SIMON
I must say that I agree with the noble and learned Earl that in the form in which this clause comes from another place, it contains language which has to be carefully read. I think that the way the noble and learned Lord, Lord Porter, put it in his Report, though it may come to the same thing, is easier to follow. We will not alter without need. The question is whether we should do something here? I understand that the purpose of this Amendment is to enable a publisher to rely upon the defence of unintentional defamation, notwithstanding the state of mind of any servant or agent of his who may be concerned with the contents of a publication. Is it clear that the Amendment would have that effect? On the ordinary principles of the law of master and servant, which the noble Earl knows so well, it would seem that the publisher would be liable for the actions 336 of his servants or agents. Are not the words which the noble Earl seeks to leave out words which might have a limiting effect, inasmuch as they restrict the publisher's liability to servants or agents who are concerned with the contents of the publication? I should have thought that it was right that the publisher should be liable for actions of his servants or agents who are concerned with the contents of a publication. In the case of a publisher who is a limited company, the publisher must obviously act through his servants or agents. For these reasons I venture to submit to my noble friend that we really do not need to make this change.
§ EARL JOWITT
I want the publisher to be liable for the actions of his servants and agents in the proper sense. Surely we are not going to define the class of servants and agents so that it comprises everybody concerned in a publication, because that, it seems to me, enlarges the class of servants and agents. The illustration I would give is the case of the printer. Obviously he has servants or agents concerned in printing a publication, but I should have thought a printer could not be held liable by the reason of the knowledge of one of his men setting the type, though the man setting the type is obviously concerned in the publication. I think what the noble and learned Viscount has done here is to enlarge the class of servants and agents. If the noble Viscount can give an assurance that he will look at this from the point of view of cutting down the class of servants and agents other than those for whom the publisher is normally responsible, I shall be satisfied.
§ LORD PORTER
Would not the noble Earl bear in mind that the actual words are "concerned with the contents of the publication" and not "concerned with the publication." Therefore, it may be that some of his objections have been met by the actual phraseology.
§ Amendment, by leave, withdrawn.337
EARL JOWITT moved, in subsection (6) to leave out "the words were written by the author without malice" and insert:
publication was made by him under such circumstances that he did not know and ought not to have known that the author had written the words maliciously.
The noble and learned Earl said: This is an Amendment of substance which I formally move. I have much hope that your Lordships will decide with me, and with the Porter Report. Once again, I am on the side of the angels.
Page 3, line 40, leave out from second ("the") to end of line 41 and insert the said new words.—(Earl Jowitt.)
§ VISCOUNT SIMON
This Amendment carries us to subsection (6), and as it is short I will read it to see how the matter stands at present. It states:Paragraph (b) of subsection (1) of this section shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice.The Amendment would exempt a publisher in a case where, although the words were written maliciously, the publisher did not know this and was not negligent in not knowing it. Suppose we altered subsection (6) in this way, would the subsection then add anything to the effect of subsection (5)? It seems to me that it would add nothing, because under subsection (5) the publisher can successfully invoke the defence of unintentional defamation if he can show that he has exercised all reasonable care in relation to the publication. All that the noble Earl is suggesting in this Amendment is to leave out subsection (6). As I see it at present, I do not think I should agree to that.
Considerations for and against subsection (6) seem fairly easily balanced. Let me put them. On the one hand, it may be said that a publisher should be entitled to relief if he has not been negligent in not knowing his authors' malice. On the other hand, it seems not unfair in a case of this kind that the burden should be borne by the publisher rather than fall on the shoulders of the person defamed, especially as the publisher is entitled to recover a contribution even to the extent of a full indemnity from the author. These are the arguments on either side. I ought 338 also to tell the House that this point was discussed in another place with some particularity and it was thought that the deletion of subsection (6) would not be regarded as an uncontroversial Amendment, and Members wanted it retained. This is one of those cases where either view is quite possible. I should most gladly look at this Amendment again, with any additional argument the noble Earl thinks well to suggest, though my inclination is to think we had better not accept the Amendment but leave the clause as it is.
§ EARL JOWITT
I do not mind. I raised the Amendment in order that the matter might be discussed and so that perhaps the noble and learned Lord, Lord Porter, might give his view.
§ LORD PORTER
I have great sympathy with the noble and learned Earl's suggestions. When my Committee discussed it, we thought that the malice of an outside person should not affect the protection of the publisher. I can remember a well-known case in which a malicious person wrote a book which the publisher thought was a mere novel, having no reason for knowing it was aimed at any person, though, in fact, it was, and the publisher had to pay damages. I think our idea was that he should be protected where he had taken all due precautions in these matters. Of course, it is always possible to say that the doer must suffer—I am going back to the most ancient phrase of which I can think—but that is what we desire to get rid of in Clause 4. The only question is, whether we succeed in Clause 4 in giving protection to the publisher.
THE LORD CHANCELLOR
I think that this is the most difficult point in the whole Bill. It raises a question which is always a difficulty in the courts—namely, which of two innocent persons is to suffer? Here we have a person defamed by the malice of an author and by an innocent publisher. In this problem it is assumed that the author is a man of straw, so that damages cannot be recovered against him. If they could be recovered, the question would not matter, because as joint tortfeasors, as we say in the law, the innocent publisher could no doubt recover from the guilty author. But it is a nice question in such a case as this which of two innocent people should suffer. For my part, I have the greatest 339 difficulty in coming to a fair conclusion upon it. On the whole, I should be inclined to leave the matter as it comes to us from another place, because of not being able to come down on one side or the other.
§ EARL JOWITT
That is a reasonable point of view. I think it is a difficult point, and I am prepared to withdraw the Amendment on that.
§ Amendment, by leave, withdrawn.
§ Clause 4, as amended, agreed to.
§ Clause 5:
§ 5. In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
§ 4.41 p.m.
EARL JOWITT moved to delete all words after "slander" and to insert:
a defendant may rely in mitigation of damages on specific acts of misconduct by the plaintiff other than those charged in the publication complained of provided that due notice in accordance with rules of Court which shall he made for that purpose has been given to the plaintiff of the instances upon which the defendant intends to rely.
The noble and learned Earl said: This is an endeavour to deal with what I feel is an unsatisfactory clause. I take this view. Supposing that you have a case of a man who has been a thoroughly "bad hat" for a long time—he is a burglar, a robber, and goodness knows what, with a long catalogue of crimes against him—but that the one crime he has never committed is forgery. In writing the libel about him you add the words "and forgery"—a comparatively small thing, if you will, compared to the crimes he has committed. What ought you to do? The Bill as drafted—which here follows the recommendations of the Porter Committee—seems to think that you could say: "Well, you have accused him of a long list of things, which are terrible things indeed, and whether you add forgery or not does not much matter." Therefore, you can have a defence to the action. I believe that is wrong. In my view, the right way to deal with it is this. The man should have an action against you, and you should not have a defence to it, because you have accused
him of forgery when he is not a forger. On the other hand, I feel that you ought to be able to bring out all these things to indicate that he ought not to get much damages. In short, not that it should be a defence to the action where you have stated something that is wrong, but that it should be a matter that could be dealt with in damages—and in all probability the man would get only one farthing damages. I do not think it is right to say that, where you have taken upon yourself to libel a man, and you have something which, but for this Bill, would not have allowed you the defence of justification,
a defence of justification shall not fail by reason only that the truth of every charge is not proved.
I think that if you include a charge which you cannot prove, you cannot justify it. I believe that this is the wrong way of doing it.
§ I would add this. Although it is true that Clause 5 is recommended by the Porter Committee, I think I am right in saying (Lord Porter will correct me if I am wrong) that the substance of the Amendment which I have down on the Paper was something which was recommended by the Porter Committee. I have always thought that the position we have reached at present is quite ridiculous. May I remind your Lordships of what it is? It really becomes a matter of manœuvring in these libel actions. In the old days the noble and learned Viscount, Lord Simon, and I used to manœuvre against each other with great profit and content to ourselves, if not to our clients. If you simply call your client into the box, but do not ask him any questions at all, then you can say to the jury: "I have called my client into the witness box. They have had every opportunity of asking him any questions they liked, but he cannot be cross-examined as to credibility." The result is that to-day the whole thing has become quite farcical. If you have to ask him some question, whatever it may be, then, technically, he should be cross-examined as to credibility. I do not think the present situation is right. It can happen to-day that you may have one of the greatest rogues unhung going before a jury and getting damages just as though he was a man of saintly character. That cannot be right. I think the jury ought to deal with real facts. That is another reason why 341 I feel that this Amendment should be put in the Bill. It is not a matter on which I feel strongly, but here again I am doing the best that I can for Lord Porter. I am trying to strengthen and hold up his arm, and to encourage him. He seems to be running away from his Report. It is a very good Report, and the noble Lord must support it and fight for it with that vigour which he sometimes shows. If he does that, then almost certainly all the Amendments that I advocate will be carried. I beg to move.
Page 3, line 42, leave out from ("slander") to end of line 47, and insert the said new words.—(Earl Jowitt.)
§ VISCOUNT SIMON
Neither the noble and learned Earl nor I are attempting to manœuvre now: we just want to get at the substance of the thing as quickly as we can. May I say at once that, though I appreciate that the form of the Amendment is different, it seems to me that this is, in substance, the same thing as leaving out Clause 5, which is the suggestion made by the noble Lord, Lord Silkin? At all events, this is the story about it—and it is not irrelevant to see just how it worked out in the other place, though I am far from saying that we should not make an alteration if it seems proper to us to do so. As the noble Earl says, it would restore to the Bill what I believe was the proposal of the Porter Committee. They said that a defendant should be able to give evidence of acts of misconduct on the part of the plaintiff other than those charged in the publication complained of. The noble Earl puts it in his Amendment:A defendant may rely in mitigation of damages on specific acts of misconduct by the plaintiff other than those charged in the publication complained of provided that due noticeis given. That is the form in which the clause appeared in the Bill as introduced in the other place. The introducer was entirely faithful to the Porter Report: he, at least, did not depart from it in that respect. In the other place it met with strong opposition, I believe from all sides, on the ground that it was unreasonable that a defendant should be able to rake up the plaintiff's past life: it might be to rake tip his past life and bring out something which happened long ago before he was a reformed character. No doubt there have been cases which have 342 illustrated that aspect of the matter very forcibly. On the Committee stage in the other place an attempt was made to redraft the original clause in a manner which would take account of these objections, but it was not found possible to do it in a way which was wholly satisfactory. I ought to add that the Solicitor-General—who, with the Attorney-General, rendered a great deal of help in the other place, if I may say so, in connection with the Bill—advised the Committee that it would be better to delete the clause. However, it comes before us in the form which your Lordships see.
I entirely agree with what the noble and learned Earl has just said, that this is a matter about which two views may be held. We all want to do the best thing. I think that, had it not been for what the noble Earl has said, I should have been rather more confident that we should keep the clause as it is, though I should want to hear what the noble Lord, Lord Silkin, has to say. However, I am impressed by the fact that what the noble Earl is proposing is to get back to the Porter Committee. I should rather like to hear what Lord Porter has to say about this.
§ LORD PORTER
I think there is a slight misapprehension about this matter. Our Committee recommended two things. We recommended the clause which appears in this Bill, arid we recommended the clause which the noble Earl, Lord Jowitt, proposes to substitute for it. But the clause which it is proposed to substitute for the clause in the Bill is not really an Amendment of the clause at all. It is a proposal for an entirely new clause, dealing no doubt, as all matters of defamation must deal, with the same type of thing but not dealing with the same problem. The first aim, and the one which appears in the Bill, was an endeavour to deal wilt an actual case which occurred where a litigant got damages because something comparatively small had been added to the facts by mistake—the case of a scamp, not deserving of any damages but yet entitled to those damages because of one slip. There was the further difficulty with regard to those matters. Suppose that somebody were to defend and paid a small sum into court to deal with that 343 particular problem. The man in question might take it out and say: "Well, I won that action. They have paid damages into court, and I took them out." It is to deal with that class of topic that this suggestion was made. I would ask your Lordships to notice that, at the end, the clause is careful to say provided that the words complained of do not do further injury to his reputation. Therefore, you do get those two protections.
I should also deal with the proposal of the noble Earl. My own feeling about it is that, though it is an admirable suggestion in its way, it is not one to be dealt with in a Defamation Bill. It goes far beyond defamation. There are many cases when you want to say that a man has not got a reputation, or you want to attack his reputation on individual matters. At the moment, you cannot do that in any case whatever. That is a matter which, I suggest to your Lordships, goes beyond a mere Defamation Bill. Just as in a later matter I shall have to say the same thing. so I think this is too wide to include in a Defamation Bill. That is the objection, as I see it, to that part of the Amendment.
§ LORD SILKIN had given notice to leave out Clause 5. The noble Lord said: I thought it might be convenient if I said a word about the next Amendment, to delete the clause altogether, because this is all part of the same subject. Indeed, most of the arguments that I would put forward in favour of the deletion of the clause have been put forward by my noble and learned friend Lord Jowitt in support of his Amendment. So far as I am concerned, I am equally in favour of his Amendment as of my own. I think that one or the other ought to be accepted, and I do not mind which. The case for leaving out the clause is, I think, a strong one. It was discussed at considerable length in another place in Committee, on the Report stage and in Third Reading. It seems to have aroused a good deal of feeling. As noble Lords who have read the Report of the discussions in another place know, the clause was saved by only one vote in Committee, and there was a good deal of cross voting. I believe a number of eminent lawyers supported the deletion of the clause. I agree fully with everything the noble and learned 344 Earl has said, and I think that his argument would point equally to the deletion of the clause as to his own Amendment.
§ The case which is made for this clause must, I think, be influenced by the extraordinary difference of opinion about it. Feeling seems to be equally divided on the matter and, therefore, there can be no very strong reason for the clause. I think that the real view of it is this. In the case of libel, we are dealing with a calculated series of defamatory statements about an individual, and I imagine that that would be equally true in the case of slander, because the clause refers to "two or more distinct charges." In the case we are contemplating, these are deliberate charges made against an individual. Contrary to the provisions of Clause 6 of the Bill, there is no duty on the part of the person making the statements to make them. I can well understand that where the defence of fair comment is available there would be a public duty on the part of a person to make certain statements. He might go wrong in a minor respect and one would have some sympathy with him. But this is not such a case. This is not a case where the defence of fair comment on a matter of public interest is available. It is a case where a person deliberately sets out to defame another. On the merits of the thing, I would say, therefore, that if a person has gone wrong and has said more than he is entitled to say, there is no injustice in such a person suffering.
§ Two arguments have been adduced in support of the clause. First, there is the procedural difficulty that the plaintiff might succeed on a minor point, and in the result get the costs of the action and be able to say that he has had some success. As regards costs—I speak here with all humility—is it not possible for Her Majesty's Judges to make rules of court (if they are not already made) by which it would be possible to deal with a matter of this kind? Judges have considerable discretion in the matter of costs, and if the answer is that they have no discretion in a matter of this kind where a plaintiff succeeds on one portion of the case, then I should myself have no objection to Her Majesty's Judges being given discretion in the matter of costs. I can see nothing wrong with a plaintiff, having had charges made against him which are not true, however minor they are and however much they do not materially 345 damage his reputation, being exonerated from that charge and it being put on record that, however black this man's character is, he is at any rate not guilty of this particular charge against him. The other point was in regard to the defendant being able to pay a sum of money into court and the plaintiff taking it out, thereby becoming entitled to the costs of the action. Again, is it not possible to deal with this—if it cannot he done under existing powers—by way of an alteration of the rules of court, so that, for instance, in a libel or slander action a plaintiff who draws the money out of court must then make an application to the judge for the costs of the action? It is then within the discretion of the judge whether the plaintiff becomes entitled to the costs or not.
§ I believe those were the only justifications for this clause. I feel that there is, perhaps, in our desire—which I think would he common to everybody in this Committee—to prevent "gold-digging" and unjustified actions, a danger that we may go a little too far in the opposite direction and not give to a person who has been defamed the justice to which he is entitled. It is going to be exceedingly difficult for anybody to say that a person's reputation has not been materially injured having regard to the truth of the remaining charges. That is an exceedingly difficult thing for anybody to take upon himself to say, and for this reason I feel the best thing would he to leave out this clause.
§ VISCOUNT SIMON
With great respect, it seems to me that, while we are trying to shorten the discussion, we are discussing two quite different things at the same time. I rather question whether, if Lord Jowitt's Amendment were adopted, the clause he seeks to amend could by any possibility have the side note of Justification. He has moved an Amendment to Clause 5 by cutting out all the words afterin an action for libel or slander …and writing in another proposition which has nothing to do with justification. Therefore, I am wondering whether we ought not to look at the two things separately. If I take Lord Silkin's Amendment first—to leave out Clause 5—that is a straightforward one. He says he thinks that if a man brings an action for 346 defamation, saying that lie has been defamed by what the defendant has said in various particulars, and if the defendant fails to justify a single one of those particulars, the plaintiff ought to recover damages. But the unanimous view of the Porter Committee, as I understand it, was that if the words which are not proved to be true in the opinion of the jury do not in fact materially injure the plaintiff's reputation at all, then the sting of the libel is justified and the plaintiff ought not to succeed. It has nothing to do with calling evidence about the previous bad life of the plaintiff.
§ LORD SILKIN
The noble Viscount says: "… do not injure the plaintiff's reputation at all," whereas the words of the clause are:… materially to injure …There is some justification.
§ VISCOUNT SIMON
Quite right. But I should be prepared to leave to the jury. under the direction of the High Court Judge, the question whether or not the words which have not been proved to be true do in fact materially injure the plaintiff's reputation. It seems to me that if 99 per cent. of what has been published is proved by the defendant to be true, the circumstance that in some immaterial extent the plaintiff's reputation may be affected k really not the reason for giving the plaintiff judgment. I will not say anything about the costs, which is a technical point. For my part, I should stand by the Porter Report.
The other question which the noble and learned Earl, Lord Jowitt, raised in his Amendment is, again, supported by the Porter Report, but it does not seem to me to come under the topic dealt with in Clause 5. It is a matter that we should deal with by re-numbering the clauses. I personally should be prepared to defend Clause 5; I think it ought to be in the Bill. But ill the Committee think that on Report stage we might have this other matter raised, it might be possible to see whether there is a strong argument for accepting what the Porter Report says about that.
THE LORD CHANCELLOR
I am much obliged to the noble and learned Viscount for saying whet I was going to say. The Amendment of the noble Lord Lord Silkin, to leave out Clause 5 seems 347 to fly straight in the face of the unanimous Porter Report. I think it will commend itself to most of us that a plaintiff, having been libelled—we will say in five particulars—and proved to have been guilty on four out of the five offences which are stated in the libel, but who proves that in regard to the fifth the libel is false—that is to say, that it a libel—should not recover damages unless the jury come to the conclusion that he materially suffered in his reputation having regard not to matters outside the case but to the matters of which he complained and in regard to which it is shown that he rightly complained. That is what the Porter Report advocated, and I think it is a reasonable view which should commend itself.
As to the other matters which formed the subject of Lord Jowitt's Amendment, I think you are travelling far outside the peculiar law of libel if what the noble Lord is suggesting is that, apart from any manœuvre or false manœuvre by which the plaintiff may lay himself open to cross-examination, it should be open to the defendant to say: "Yes, but you who complain of this libel have been guilty, either in your youth or only the other day, of some offence." It may be a case of a man who had committed some offence and lived it down; and yet it may be raked up by the defendant in order to mitigate damages for injury which the plaintiff had suffered in a recent libel. I think that that is not right. For that reason I should not myself be prepared to accept this Amendment.
§ EARL JOWITT
I must say that I object to Clause 5 in toto. I think it is a bad clause, as at present drafted. You have left out something in the Porter Report which was very useful, and put in this peccant clause. It would have been better to put in the good bit from the Porter Report. When the Lord Chancellor was enjoying the Arcadian and lush peace of the Chancery Division he knew that if something that a man had done many years ago were brought up, the chances were that the damages would be enormously increased.
THE LORD CHANCELLOR
I never thought anything to the contrary—not even in my days of "Arcadian and lush peace"!
§ EARL JOWITT
He knows that if a jury thought a man was raking up something which a man had done a long time ago there might be a great many noughts added to the amount of the damages.
THE LORD CHANCELLOR
Is not that just what the noble and learned Earl suggests—that a defendant may rely, in mitigation of damages, on specific acts of misconduct committed by the plaintiff, other than those charged?
§ EARL JOWITT
I say he may find that he will have to pay very heavily indeed unless he realises this procedure. I believe this Amendment is the right way to deal with this matter. It does deal with the law of libel. It was recommended in the Porter Report. It was unanimously pointed out by the Committee that it was something which extended far beyond the law of libel, like limitations. They did not hesitate to say so. But here is something typical, a problem of the law of libel and slander. However, I shall ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Amendment moved—
§ Leave out Clause 5.—(Lord Silkin.)
§ On Question, Amendment negatived.
§ Clause 5 agreed to.
§ Clauses 6 and 7 agreed to.
§ EARL JOWITT had given notice of an Amendment to insert after Clause 7 a new clause dealing with money paid into court. The noble and learned Earl said: I understand that this is already provided for by rules of court which I myself signed. That being so, I do not propose to move this new clause.
§ 5.11 p.m.
§ LORD SILKIN moved, after Clause 7 to insert the following new clause:
§ Defamation of Groups
§ ". Where any defamatory statement is published of and concerning any group of persons distinguishable as such by race creed or colour which would be actionable if published of and concerning an identifiable person or persons, any person or group of persons claiming to belong to such group may institute proceedings for defamation as if he or they had been expressly defamed:
§ Provided that no proceedings under this section shall he brought without the leave of the Attorney-General."349
§ The noble Lord said: I do not propose to move this Amendment at any length, because the subject matter of this proposed clause has been considered and discussed at great length and all the arguments which I could put forward in its favour are perfectly well known. It is designed to meet an admitted evil, the evil that whereas if certain things are said about an individual then clearly they may be defamatory and he has a right of action, but if the same things are said about a group of which that individual is a member, then, as the law stands at present, there is no effective remedy. It is true that there is an offence of seditious libel but it is not the kind of remedy which is seriously open, and as a recent case has shown it is at the best a very uncertain method. This matter has been considered by the Porter Committee, and I think I may say that they were in sympathy with the objects which this clause seeks to secure. They found themselves in difficulties on two grounds, as did those who were opposed to this clause in another place.
§ In the first case, I think the Porter Committee thought that this proposal might in some way interfere with freedom of expression. That is something which frankly I have not been able to understand. We are speaking of something which is defamatory, and the whole of this Bill and of the law is designed to discourage and, if possible, prevent defamatory statements from being made. On that argument it could equally be said that to award damages for any defamatory statement was discouraging freedom of speech or freedom of expression, and I must confess that I fail to understand in what way a defamatory statement about a group differs materially from a defamatory statement about individuals. In this Amendment I am not concerned about statements which are calculated to cause breaches of the peace. They can be dealt with by the ordinary law, and if the ordinary law is not adequate I think this is not the place in which to amend it. I am concerned only with defamatory statements that are made about groups in the same way as they might be made about individuals.
§ I have given the first objection to dealing with the matter in this Bill. The other objection was one which I frankly accept as a real difficulty, and that is the 350 difficulty of definition. I can see it as well as any noble Lord who has taken part in the discussion to-day. What is a creed? Would it apply to such and such groups of persons? And so on. There are words here which are intended to cover the difficulty of an unidentifiable person and any person "claiming to belong" to the group can bring an action; but there would, of course, be the difficulty of determining whether the particular person bringing the action was or was not a member of the group. If there was any difficulty it would be for the jury to decide whether such a person did belong to the group. Also, there is the difficulty of distinguishing a race, group or colour. Colour I suppose would not present a great difficulty. It might in marginal cases; and race and creed might. I see those difficulties, and it is mainly because of them that it was not found possible to accept this provision in another place. Nevertheless I hope that noble Lords will be prepared to give this matter further consideration, and if the clause is not acceptable as it stands be prepared to consider it further at a later stage.
§ There is no fear of frivolous actions being commenced under this clause, for the consent of the Attorney-General has to be obtained before the proceedings can be begun, and obviously the Attorney-General would satisfy himself that there was a prima facie case for taking proceedings. There is possibly one weakness—I want to be frank with the Committee—and that is that if every member of the group distinguishable by race, creed or colour, sought to bring an action, or rather if there were one successful action and everyone thereafter sought to bring a similar action, it would be somewhat embarrassing. In another place a provision was there added that no damages should be awarded but that instead the court should be empowered to award an injunction. If that were thought to be an improvement of the clause, I should have no objection. I do not see why anyone who brought an action in those circumstances should not get damages, but, if noble Lords who have given consideration to this clause think that that is an objection, I should certainly not in any way object to adding a provision that there should be no damages but merely an injunction.351
§ It is, perhaps, pertinent to remind noble Lords that there have been some very cruel and wicked statements made against groups which, if they had been made against individuals, would undoubtedly have resulted in heavy damages being awarded. The most notorious is well known—that is, the statement that has from time to time been made about the Jewish community, that they indulge in ritual murders and that they use the blood of non-Jews for the purpose of carrying out ritual ceremonies. The noble and learned Lord, the Lord Chancellor, seems to disapprove.
§ LORD SILKIN
I may say that in recent years in one country I have known cases where statements of that kind have actually resulted in serious not causing loss of life. We all like to feel that that could not happen here. I do not suppose it is in the least degree likely, but one cannot be certain that it will not happen when public feeling is inflamed in certain special circumstances. As the law stands at present, it is impossible for any member of the Jewish community to take proceedings even in order merely to get a decision of the court that there is no justification at all for these statements. Similar statements have been made about other communities.
Possibly an objection to this clause might be that it might be invoked by political Parties. I have no desire at all that that should be the case—I think that political Parties should look after themselves without recourse to the courts—but if, on a reasonable construction of the clause, it is found that it would lend itself to that interpretation, again, I should not in the least object to some form of amendment. I feel that the House ought seriously to consider whether the time has not come when defamatory statements about groups of people should be treated just as seriously as defamatory statements about individuals. There are several European countries where that is already the law, though after the statement of the noble Lord, Lord Normand, that one cannot draw inferences from one country to another, one hesitates to take the case of those other countries. Nevertheless, it is a fact that there are 352 in several countries laws which deal with group defamation, and so far as I have been given to understand, deal with them quite successfully. Therefore I should think that no serious difficulty would arise here. I hope the Committee will give serious consideration to this clause. I beg to move.
After Clause 7, insert the said new clause.—(Lord Silkin.)
§ VISCOUNT SIMON
This is undoubtedly a clause which will be regarded as of much interest and importance by some sections of the population. I certainly wish to do what the noble Lord has suggested, and deal with it seriously. It is desirable, in the first place, to state what I, at any rate, believe to be the law on this subject at present. because there were one or two phrases in the speech to which we have just listened which seemed to suggest that if there were defamation of a determinate body or a determinate class of persons, as the law stands at present no civil action for defamation could be brought in respect of it. I hope I shall state the law correctly if I begin in this way. When defamatory matter reflects upon each and every member of a determinate body or class of persons—for example, the clergy attached to a particular Church, the lawyers engaged in a particular case or the directors of a particular company—then each and every member of that body or class can, under our present English law, maintain an action.
In contrast with that—and it is, I think, inevitably so—it has been laid down, and I should think everybody would accept it, that an individual cannot bring an action for defamation in a civil court if the objectionable matter is published about a much wider and vaguer group. For example, the great Mr. Justice Willes laid it down that if somebody said, "All lawyers are thieves," no particular lawyer, whether a solicitor or a barrister, could bring an action and recover damages. It is inevitable, I think, that that distinction should be made. But it would be quite incorrect to suppose that, as the ordinary civil law at present stands, there are not many cases in which any and every member of a determinate body or class of persons can bring an action. If somebody says that the clergy of this Church 353 do not attend to their duties, or perhaps says something worse even than that, every single clergyman in that Church can bring an action. If somebody says that the directors of this company are engaged in an elaborate swindle, you could not stop the action on the ground that there are quite a lot of directors. That is what the law is at present. The whole question is whether it can go further than that.
I feel a great deal of sympathy, if I may say so with great respect, with some of the considerations which weigh with the noble Lord who has moved this Amendment. He will not think any the worse of me if I say bluntly that the instance which I dare say is in the mind of himself and others is, I think, shocking. There is a document, I believe, very widely spread through Europe which is called The Protocols of Zion. I believe it contains allegations that devoted members of Jewry, in pursuing their religious rites, are engaged in shocking practices. I do not believe a word of it and I sympathise very much with anybody who feels that it would be desirable to have some remedy for a case of that sort. Up to a certain point, there is a remedy. It is not in the form of a civil action—this Bill deals with civil actions—but there is a remedy if the person who publishes that libel is charged with the crime of seditious libel and is proved to have published the libel with the intention of promoting violence by stirring up hostility and ill will between different classes of Her Majesty's subjects. That is a part of our criminal law, and a very necessary part of our criminal law, though it is not often resorted to. I think in times past it has been very unwisely used. If we could strengthen the criminal law on that point I should not be opposed to considering it. But that is not this Amendment. This Amendment contains a proposal that in certain circumstances, which are here described, a member of what is called agroup of persons distinguishable as such by race, creed, or colourmay bring an action in a civil court—I presume for damages, though the noble Lord has suggested we should consider the question of an injunction—because the group to which he belongs has been defamed.
I can assure the noble Lord that what I am going to say is not quarrelling with 354 the words of his Amendment, merely to imply that there might be better and more appropriate words. But I am afraid, much as I sympathise with some of the feelings which have prompted this Amendment, that, however you try to frame this particular proposal, you will fail to produce a satisfactory clause. Therefore, I criticise the words of the proposed new clause not in the least with the suggestion that if only we look at it a bit we shall get something better, but because I believe this has been very carefully considered. I believe these are the words which were proposed in the House of Commons by Mr. Silverman and which were the subject of discussion for two or three days then. The real difficulty is not that these particular words will not do but that no one can find words that would do.
Just look at the words of this proposal for a moment:. Where any defamatory statement is published of and concerning any group of persons distinguishable as such by race, creed or colour …Let us stop there for the moment and consider what is meant, and what it is that the courts would have to try to interpret, when you speak of "persons distinguishable as such by race.…" That is not, of course, limited to any particular race. If we take for the moment those who are Jews, does it mean people both of whose parents were Jews? Does it include people who are not practising Jews? Does it include people one of whose grandparents was a Jew? It is almost impossible, I think, to see what would be the answers to the sort of questions raised by this phrase: "any group of persons distinguishable as such by race.…" Of course, it is not limited to Jews at all. A good many Scotsmen would say that they were a race. Some Welshmen might say the same, and I do not know how many races there are in Ireland. How any court would ever be able to give intelligent directions to a jury about the law to be followed is extremely difficult to see.
I hope that I shall not be thought to be ridiculing what is, I realise, a very serious question, if I tell the House how, some years ago, a former Chinese Ambassador to this country related this story to me. He said: "You know, we Chinese have no conception of race." I think 355 he meant that the Chinese knew Chinese, but that all people who were not Chinese were, in the Chinese view, lumped together as foreigners. To illustrate his proposition he said that there was a Chinese boy who had been educated in a missionary school in China and who was no doubt receiving instruction on views as to the population of the world held by those who were teaching him. He was asked in an examination paper: "What are the five principal races of mankind?" The Chinese Ambassador told me that the boy replied:The five principal races of mankind are the hundred yards, the quarter-mile, the half-mile, the mile and the hurdles.This is an extremely difficult thing to put into an Act of Parliament, and I myself have tried to see whether I could do it any better. But it seems impossible to find a phrase to cover this subject which will not lead to all sorts of trouble.
Let us consider next what is meant by: "a group of persons distinguishable as such by … creed." Are the Communists persons "distinguishable as such by … creed"? I think a great many of them would say that they are. Now suppose that someone writes that Communists do not believe in God. I have not the slightest idea whether that is right or wrong. Is it seriously suggested that any particular Communist—a high ecclesiastical person in the English Church, for example—can say: "I am a Communist, I am a member of the group; you have defamed me and I will bring an action against you."? It seems to me quite fantastic. Similar difficulty really arises about colour.
There is a further difficulty which, I am sorry to say, seems to be quite overwhelming. If an action for defamation is going to be brought by any plaintiff against any defendant, it is the law of England, and has been for hundreds of years, that in a civil action you can avoid a judgment against you by proving that what you, said is true. If you can imagine a claim brought by a member of a group of persons "distinguishable as such by race, creed or colour." Is there to be any defence? Supposing the defendant says: "I say it is true." You get yourself then into a line of country. I am afraid, which it is almost impossible to provide for satisfactorily. I can assure 356 the noble Lord that I have not approached this subject with the slightest want of sympathy for what I feel sure is in his mind and in the minds of many others. I should like to see something done if it could be done effectively, but I do not believe for the moment that this class of Amendment in a Bill dealing with civil libel could be wisely made.
There was great discussion in another place on this very question—it went on, I believe, for several days. There was a most careful analysis of the matter and all sorts of suggestions were made. I am not excluding anything. I have only to say now, as one who is for the time being responsible for the Bill, that, subject to any point being raised by the Lord Chancellor and others in authority, I do not think that this clause could possibly be accepted. The truth is that here we come into this conflict as between the individual who feels himself aggrieved and the great principle of not interfering with public comment and pronouncement on matters of general concern. The Apostle Paul wrote a letter to Titus, in the course of which, as I daresay some of your Lordships remember—and quoting, indeed, a Cretan—he said: "The Cretans are always liars." That is in the Epistle to Titus, Chapter 1, verse 19, I think. Could a Cretan reasonably issue a writ against the Apostle Paul and say: "I am a Cretan and you have defamed me"—for it would be none the less defamation because in that passage Paul was quoting someone else. The thing cannot be done.
I think we have not to try to cover this difficulty by what to my mind is, I regret to say, an impossible Amendment to the law of civil libel. I believe we shall be doing our duty best by doing our utmost to show our respect and our tolerance for people of every race and every colour, by making a stand for doing what is fair and decent by them, and by not believing readily shocking libels which may be told or published about them. For the rest, in really bad cases, we must rely on the criminal law. I do not believe that any other course is possible. Therefore, while I assure the noble Lord that I do not treat this matter lightly, for I know how deeply it interests some good citizens, I have with great respect to tell the Committee, having looked into it as closely as I can, that in my judgment this Amendment should not be accepted.
THE LORD CHANCELLOR
I think it would not be right, upon so important a question as this, that I should be absolutely silent. I join with the noble and learned Viscount, Lord Simon, both in the sympathy which he feels for those who suffer under what is called group libel and in recognising the impossibility, as he said, of giving effect to such an Amendment as the noble Lord, Lord Silkin, has proposed. Therefore I can say only that I should not feel it possible to vote in favour of this Amendment or to recommend those who sit on this side to do so.
§ EARL WINTERTON
As a layman, I should like to address your Lordships for a moment, because I had particular opportunities of observing the suffering of the Jewish race as chairman and British Government representative for six years under three successive British Governments on the Inter-Governmental Committee for Refugees. I can well realise the feeling which the noble Lord has on such a matter as the protocol. As the result of my experience, I think there is no country in the world where the Jews need special protection less than they do in this country. May I say, with a feeling of great responsibility, to the noble Lord, Lord Silkin, and others of his race, that in the long run there is nothing more damaging to the Jewish race than to suggest that they need special protection. In the eloquent words of the noble and learned Viscount, Lord Simon, we should rely on the good sense and integrity of the British people in cases of this kind and not put anything in an Act of Parliament which would be completely unworkable.
§ LORD SILKIN
I deeply appreciate what has fallen from the lips of the noble Viscount, Lord Simon, and the noble and learned Lord the Lord Chancellor. When I put down this Amendment, I was sure that the Committee would view it with great sympathy, but I had some doubt whether it would be possible to formulate words that would be satisfactory and achieve the object I had in mind. I am certain that this has been properly considered by those who are in a position to improve the wording, and I accept what the noble Lords have said, that it is not possible to obtain a form of words which would be satisfactory. In 358 the circumstances, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 8 and 9 agreed to.
§ 5.44 p.m.
§ LORD KENNET moved, after Clause 9 to insert the following new clause:
§ Documents at public or lending libraries
§ ".—(1) In an action for defamation against a local authority or a member or officer of a local authority in respect of matter published in—
- (a) the notice of an intended meeting of a local authority;
- (b) the summons specifying the business to be transacted at any such meeting;
- (c) copies of any reports or other documents which relate to the business to be transacted at such meeting and which are sent to members of the local authority; or
- (d) the minutes of proceedings of a local authority;
§ (2) The placing of any book or document which has already been published in a public library or a lending library and the handing thereof to a person attending the library for perusal shall not for the purposes of the law relating to libel be deemed to be the publication of such book or document.
§ Provided that nothing in this subsection shall affect the jurisdiction of the court to grant an in junction in respect of such book or document.
§ (3) In this section—
- references to a local authority include a joint board or joint committee comprising representatives of local authorities and the expression "local authority" has the meanings assigned thereto by the Local Government Act, 1933 and he London Government Act, 1939:
- the expression "public library" means a library provided in pursuance of the Public Libraries Acts, 1892 to 1919:
- the expression "lending library" means a library where the business of lending books or periodicals is carried on."
§ The noble Lord said: This clause is of warm interest to local authorities and, in particular, to municipal corporations, who are specially concerned with one section. There is a history behind this clause. A similar, but by no means identical, clause was proposed in another place, and from observations which were made there it seemed that the sponsors of the Bill would have been willing to accept a clause of this kind, in view of the strong representations made by those 359 who had acquainted themselves, as I have, with the feelings and responsibilities of local authorities on this subject, but exception was taken to the precursor of this new clause on the ground that it went too far and gave too absolute a protection to local authorities in the cases with which the clause deals. The clause I now move has been prepared with a view to overcoming this difficulty and thus assisting the sponsors of the Bill to introduce these provisions, which have such strong support in equity and which in their present form I trust will excite no opposition. I venture to suggest that the acceptance of this new clause would facilitate the passage of the Bill and not in any respect delay it, which is very far from being my desire.
§ As regards the actual contents of the clause, I should like to say a few words on the protection to be afforded to local authorities. This comes under two headings—first, in respect of the publication of such matters as notices and agenda of meetings beforehand and minutes afterwards which may subsequently he ascertained to contain defamatory matter. As regards these, this clause, as distinguished from its precursor, would give additional protection to local authorities, subject to the ordinary provisions of the law on malice and evil intent. Those with a superior knowledge of the law will recognise that this deals with the well-known case of Dabruzzi v. Stepney Borough Council, in which the local authorities were actually cast in damages. They had put on a notice board a notice of a meeting which referred to the possible prosecution of some of their servants.
§ LORD KENNET
On the notice board at the local library. I think—in any case, in some place accessible to the public. It is the strong contention of the local authorities that it is their duty, as representatives of the public, to acquaint the public with their proceedings beforehand, as well as afterwards, and that they are not fulfilling their duty to those whom they represent unless they let them know what they are about at all stages of their proceedings.
The second part of the clause deals with the publication of what may be de- 360 famatory matter by depositing a book in the public library without the local authority knowing that it contains defamatory matter. The contention of the local authorities is that they have a duty to the public to keep a library, and in the discharge of that public duty they should be protected against actions done without knowledge and not done with malice or evil intent. That is the whole matter as regards this clause. As I say, it has been devised in a manner to preserve those safeguards of the rights of the public which may have been thought to be too much excluded in the first form of the draft. I commend it to the Committee and to the sponsors of the Bill as effecting a substantial improvement in the law, which I trust will cause no strong dissent in any quarter. I beg to move.
After Clause 9, insert the said new clause.—(Lord Kennet.)
§ LORD BURDEN
As a mere layman I hesitate to intervene in this discussion, but I hope that my intervention will not be taken too unkindly. In my limited experience of municipal life, I have always felt it desirable that, so far as possible, names should not be mentioned in minutes or documents of that kind. Before I continue, I should say that I have a limited measure of interest in this Amendment, because it is backed by the Association of Municipal Corporations, of which I have the honour to be one of the Vice-Presidents. I should not have intervened in this discussion in support of the Amendment but for the curious position in which the Bill will leave us if it is passed in its present form. As the noble Lord, Lord Kennet, has said, the ordinary and normal method of acquainting the electors of any borough of a council meeting and the matters to be discussed at that meeting is by placing in the public library the recommendations which are to be considered.
Let us suppose that a committee has had referred to it a matter in which some one has committed, or is thought to have committed, some defalcation, or something of that kind. The committee, having looked at the matter in all its aspects, recommends either dismissal or some other form of dealing with the matter. That is included in the recommendations of the committee, and is exhibited in the 361 public library. The recommendations of the committee then come before the council, and for some reason or other the council do not accept those recommendations. I speak subject to correction, but the curious position, as I read the Bill, is this. In Paragraph 10 (a) of the Schedule, as I read it, a limited protection is given in connection with the publication of any debate on that recommendation which may take place in the council, whether the recommendation be accepted or not. But if it is not accepted, the person concerned, if mention were made of his name and the alleged offence, following the precedent which has already been referred to by the noble Lord, Lord Kennet, world have the opportunity of taking action.
§ LORD BURDEN
The noble and learned Viscount will see the words:A fair and accurate report of the proceedings at any meeting or sitting in any part of the United Kingdom of:(a) any local authority or committee of a local authority or local authorities"—and going to the bottom of the page—not being a meeting or sitting admission to which is denied to representatives of newspapers and other members of the public.What I am venturing to submit is that the matter which may be regarded as defamatory would be considered by the particular committee at a meeting to which the public and the Press were not admitted, but the recommendations would be submitted to the council for confirmation, or otherwise. The argument I was venturing to develop was this. The council in their wisdom, may turn down the recommendation of the committee. But if those recommendations have been published in the sense of being placed in the library, then action would lie against the council or the officer. I am sure that that is not a position that would commend itself to the noble and learned Viscount. As the noble Lord, Lord Kennet, has said, this is an Amendment which comes to this Committee out of the wide experience in connection with the administration of local authorities of responsible men, and it is one which I 362 believe will tidy up the Bill and remedy what might be a serious position in the future.
I should like to say a few words in support of this Amendment. I can tell your Lordships of something which occurred to me and which I feel gives support for the Amendment. At the commencement of the war the Secretary of State asked me, under a seal of confidence, for some information which I was in a unique position to give. I was reluctant to give the information, but eventually I gave it under a seal of confidence. I found later on that, by a pure slip, it was given in an incorrect form to a large committee in my own part of the world. It did some damage. Much later I was able to rectify the position. The point I want to make is that had that report been known to the committee, and the committee alone, not being a member of the committee I should never have found out about it and the damage would have been irretrievable. As it was, I immediately took the natural and necessary steps to get the matter corrected, and, as nobody is ever actuated by malice on these committees, it was corrected without harm being done to anybody else. I feel it is important that people should have that opportunity. As a matter of fact, it all passed off smoothly and happily. In my view, that justifies my noble friend's Amendment.
§ VISCOUNT SIMON
What my noble friend behind me has just said is vividly in his mind, and I am glad that what he has told us happened in his case was so happily and smoothly disposed of. But, with great respect to him, I think he will see that what we have to deal with on this Amendment is not quite in point with what he has been saying. The Amendment proposes two things, as was very clearly explained by my noble friend Lord Kennet. There is a subsection (1) and a subsection (2). It might he convenient to take the two things in the reverse order and look at subsection (2) first, because really it is quite a separate point. In subsection (2) the noble Lord wants to provide that proceedings for defamation cannot be taken against whoever is responsible for the conduct, either of a public library or of a lending library, in respect of a libel contained in a book which is placed in the library, and which those in charge might hand out to a 363 borrower. I quite understand that those specially skilled and interested in local government want to have that matter considered, because it is the local government people who run public libraries who, quite correctly, I think, suggested that the Amendment would deal with both public and lending libraries. It would deal with The Times Book Club and anything of that sort.
With great respect, I venture to doubt whether, in recommending this as an important Amendment to the Bill, the existing state of the law has been quite appreciated. It certainly would be the most outrageous thing if a man who found inside the pages of a book handed out in good faith by the official in a public or lending library something which defamed him, could issue a writ and say to the public or lending library: "You have published a libel about me." If he ever attempted to do anything so curious, he would at once be met by a perfectly well understood part of the law of libel, which is that the law protects "innocent dissemination." It is the same law which protects W. H. Smith and Sons every day of the week when they sell for the necessary number of pennies any newspaper you ask for. They are not expected to have read what they sell. They are asked to provide a perfectly reputable thing; they are paid for it and they supply it. But the law has long ago laid down that that is what is called "innocent dissemination," and is not publication of the contents at all. Life could not continue on any other terms.
The consequence is that no such library, whether public or lending library, runs the least risk because, with all due care, it proceeds to hand out the book which it is asked to hand out. On the other hand—and this applies both to public and lending libraries—if indeed they have on their shelves a book which a careful person would know to be the sort of book which scatters libels abroad, then there may arise a duty on the people to look at the book and see what it contains before they hand it out. This was all laid down by a very distinguished Master of the Rolls who is now dead—Lord Justice Cozens-Hardy—and I will read a passage of a judgment of his in the Court of Appeal in a case against The Times Book Company. He said: 364It was quite impossible that distributing agents such as the respondents should be expected to read every book they had. There were some books as to which there might be a duty on the respondents or other distributing agents to examine very carefully because of their titles or the recognised propensity of their authors to scatter libels abroad. Beyond that the matter could not go. It was impossible to say that there was a liability to examine the contents of books like the two in question, which were by authors of high character.I do not think there is any doubt at all about the law, and I do not think, as a matter of fact, that lending or public libraries have ever been in jeopardy on that subject.
Of course, it is quite true that if a library deliberately takes in a few copies of a sort of book which they ought to know is spreading libels and other matter, they ought not then to treat it as a thing which should be lent to the public. With that exception, that sort of problem never arises at all. I think, therefore, with respect, that the defence of innocent dissemination—and it is well recognised by those of us who have to concern ourselves with this rather murky subject—is an ample measure of protection. If you want to go further than that, you reach a point where you expose the person defamed unreasonably to the circulation of a document which does, as the circulator ought to know, contain libellous matter. That does not touch the whole point raised by the noble Lord opposite, because he was concerned, as indeed was my noble friend Lord Kennet with subsection (1) as well as with subsection (2).
§ LORD KENNET
The noble Viscount quite rightly said that subsection (2) is in a completely different context. The two subsections bear no relation to each other at all. What the noble Viscount has just told the Committee with so much clarity and authority differs from previous opinions which have been received by many authorities on the subject. If I may say so, I prefer the noble Viscount's authority. In the circumstances, I think I may say on behalf of myself and noble Lords who have been good enough to support this clause that we should be quite content to leave subsection (2) in view of what my noble friend, Lord Simon, has said, and trust that he may be able to accept the first part.
§ LORD PORTER
Might I add that there was a case recently in which a jury 365 found that a library ought to have examined right through its magazines to see if they contained any libel? They said there was not a proper examination of the magazine. Thereupon, the Court of Appeal promptly said there was no evidence upon which they could be found liable. Therefore, you have the protection of a case actually deciding that point—that there cannot be a demand for a library to examine with care the documents in its possession.
§ LORD KENNET
I am obliged to the noble Lord because, with his great authority, he fills up just the single gap in the position of the local authorities on this matter about which anxiety was felt—that was, the action of, shall I call it, an unaccountable jury as to the measures the authority should have taken.
§ VISCOUNT SIMON
That is really all right now. I quite agree that subsection (1), which I take now, raises quite a different question, and nothing that I have said up to now touches that at all. I am afraid I must trouble your Lordships to consider that subsection for a moment. What is the proposal? As a matter of fact, it was a proposal which was put down, though not discussed, in another place, and now we can look at it. The proposal is that, in the case of a local authority, they shall still have qualified privilege, as the law calls it, in every case of their publishing in a public library or a lending library the notice of the intended meeting, the summons specifying the business to be transacted at the meeting, copies of any reports relating to the transactions of such meetings, or the minutes of proceedings of a local authority. The defence is "qualified privilege"—that is to say, that there was no malice in the publication and that it was done in good faith. The defence is "qualified privilege" and it is not to be defeated by reason only of the fact that such document has been exhibited in the public library or lending library.
Here again, one has to be very careful to see exactly what is meant by "qualified privilege." If there is a duty to publish to others a document, even though it is a defarnatoy document, the publication is in discharge of that duty; that is covered by qualified privilege, and no action could succeed. Even though there is not a duty to publish, if it is really in 366 the interests of a local authority, on the one hand, and of the citizens, on the other, that there should be necessary and reasonable publication to protect the interests of the citizens and to inform the citizens of what their elected representatives are doing—which is one of the principal reasons for local government—then all that confers qualified privilege. The question can never be anything but this: was it really nothing beyond what is reasonable that this information should be published or exhibited in a public library? My own experience of the English jury tells me that there would be no doubt as to the result, because it appeals to one's common sense; and juries do exercise a high degree of common sense—and in any case they are assisted by the judges. So I do not see that there is anything there to be troubled about.
But, of course, if the local authority are regarded as publishing these things—which I am assuming contain some defamatory matter—in such an indiscriminate way as goes entirely beyond their duty or the interest of the citizens, I think that the judge would rule that that may not be qualified privilege, and the jury may find it is so. Then the person defamed will get his remedy. But it is not the case, so far as I know, that a local authority at the present moment, when they publish these documents in a public library, are exposing themselves to damages unless indeed it is established that what they have done is a reckless and indiscriminate use of their opportunities of making these things known. But who is to decide that? Can we possibly do it in an Act of Parliament? We cannot. We can only rely on the court to draw the lines sensibly, having regard to the facts of the case.
I will, however, gladly examine this point afresh, for I want to do what is right. I should not think at present that it was necessary to have this Amendment. If what I have said were proved to be true, and others who are authorities agree, this might well give some comfort to local authorities. No one would wish to urge that the matter should go beyond what is a reasonable discharge of the duty of the local authority or the interests which the local authority and the citizens together share. Therefore, while I think the Amendment is not necessary, 367 and while I should be sorry to include it in the Bill, because it would suggest that there was some new law being made which was going too far, I will, as I say, look at the matter afresh and no doubt the noble and learned Lord, the Lord Chancellor, will kindly give me a little assistance in the matter.
THE LORD CHANCELLOR
It seems to me, with great respect, that the Amendment would go much too far, because it is unqualified in this sense: that it gives a qualified privilege to the publication of copies of reports or other documents which relate to the business to be transacted at such meetings and which are sent to the members of such local authorities. It may be unfair and unwise that documents which are to be the subject of the scrutiny of the members of the local authority should be scrutinised beforehand, as they would be in a public library. On the other hand, I think that what the noble and learned Viscount has said is correct with regard to reasonable publication, and that it must be left to the court in each case to decide. But I will certainly assist the noble and learned Viscount so far as I can in this matter.
§ LORD TUCKER
If the matter is going to be further considered I would commend to those who are going to consider it this point. I am speaking only from recollection, but I think that probably the origin of this Amendment is this. There was, I think, a decision that a local authority lost the privilege which otherwise attached to a communication, on occasion, simply by publishing the agenda of a meeting in the public library. The privilege would clearly have covered any communication to the members summoning them to the meeting which they had an interest and a duty to attend. The notice was put in a public library where it could be seen by persons other than the members of the council. That was the origin of this Amendment, and I think it is a matter deserving of some consideration.
§ LORD BURDEN
I should like to thank the noble and learned Viscount and the Lord Chancellor for what they have said. But I submit that neither has 368 answered the point which I ventured to submit—namely the provisions in the Schedule to the effect that if a matter has gone to the council, if reports are submitted to the council—it would not matter if the report were read in full—there would be limited protection under the Bill. But I shall be quite happy if the matter is looked at again, because I am certain that the case which has been referred to, the Stepney case, is one which needs to be corrected in this Bill.
§ LORD KENNET
I obliged for the assistance which has been given to me out of the experience and knowledge of the noble and learned Viscount and the noble Lord. The noble and learned Viscount's remarks with regard to the Stepney case made me a little unhappy, but, subject to any obligations and limitations which are allowed as regards limiting the clause, I shall be happy to co-operate. In the meantime I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 10 agreed to.
§ Clause 11:
§ Agreements for indemnity
§ 11. An agreement for indemnifying any person against civil liability for libel in respect of the publication of any matter is lawful unless the agreement relates or extends to the publication of matter which the person indemnified knows to be defamatory.
§ 6.20 p.m.
EARL JOWITT moved to omit all words after "matter" and to insert:
shall not be unlawful unless at the time of the publication that person knows that the matter is defamatory, and does not reasonably believe there is a good defence to any action brought upon it.
§ The noble and learned Earl said: I hope I shall get a little concession here—this is a very important matter. It has been for years the practice for people to insure against libel. If the clause is left in this form, I think it will do great harm, for the clause makes it appear that you can no longer insure if you are writing something you know perfectly well to be defamatory but also to be true. If you were writing say some great piece of history, you might have to say about people some very unkind things which you honestly believed to be true. If you could not do that, you need not write at all—which perhaps might be just as well, but I will not comment on that. I should 369 like to make it plain that what is intended in this clause is that you can insure your risk if you believe either that the words are not defamatory or, if defamatory, that you have a perfectly good defence if an action is brought. I beg to move.
Page 5, line 21, leave out lines 21 to 23, and insert ("shall not be unlawful unless at the time of the publication that person knows that the matter is defamatory, and does not reasonably believe there is a good defence to any action brought upon it").—(Earl Jowitt.)
§ VISCOUNT SIMON
I am very glad to say that on this point I agree with the noble Earl and it seems to me that this is an Amendment which should be accepted. I must have an opportunity of looking at it when it is reprinted, but as I see it at present, and subject to the view of others, I think it is quite right to insert it. It is not only the case of ordinary insurance. I think the agreement now commonly made between an author or a prospective author and a publisher is likely to be one which says that the author undertakes to protect the publisher against actions for defamation, and it is quite right that it should be lawful to do that so long as the matter, even though it may be called defamatory, is matter which he reasonably believes gives rise to a perfectly good defence—it might be privilege, or justification, or what you please. I entirely agree with what my noble friend says.
§ On Question, Amendment agreed to.
§ Clause 11, as amended, agreed to.
§ Clauses 12 and 13 agreed to.
EARL JOWITT moved, after Clause 13, to insert the following new clause:
. In actions for defamation the Court of Appeal shall have power to review the amount of damages awarded whether by judge or jury and if they consider such amount either inadequate or excessive to substitute such a sum as should in all the circumstances of the case have been awarded.
§ The noble and learned Earl said: I hope the same pleasure and alacrity will be manifest in regard to this clause, although I do not think it likely, so far as Lord Porter is concerned, because this is one of the recommendations in the Report, and although he did not want to 370 strangle them at birth he obviously wants to drown them afterwards. There is really a very strong case for this Amendment. It was unanimously agreed to in the Report, and it was not one of those cases in which we must wait for it to be done in all sorts of actions. Here the Committee made perfectly specific recommendations on these lines. There is a practical reason behind it. It is very difficult to assess damages in all cases. It is very difficult to decide what you should give for a compound fracture of the leg, but in any case of that kind the standard adopted is perhaps rather more real and less hypothetical than it is in actions on defamation. I have known in my own time—and so have the other noble Lords who have practised in defamation cases—perfectly ridiculous damages given. I was careful to set out on the last occasion I spoke a passage from a speech of Lord Justice McKinnon which is a very good illustration of how this thing can work.
§ I have known enormous damages given—obviously something has gone wrong in the mind of the jury, who perhaps did not quite understand the matter. I think the Court of Appeal should have wider control than they have to-day. They have power but it must be a very strong case for them to interfere. I want to give them wider powers than they have to-day. The words I have chosen are those which come in substance, almost precisely, from the Porter Report; but although the noble Lord does not agree with them I like to think that all the other members of the Committee, so far as I know, say that this Amendment should be made.
After Clause 13, insert tile said new clause.—(Earl Jowitt.)
There is a Committee now sitting on Supreme Court practice and procedure. It is under the chairmanship of the present Master of the Rolls, and one of the matters which I believe it is considering and on which it has not yet reported is whether the Court of Appeal should have a wider latitude than it has at present in common law actions to say that the damages are too big or too small, without necessarily relying on the present narrower rule which is the only case in which the damages can be modified. I am not able to say 371 whether the Master of the Rolls' Committee is going to recommend one way or another. My difficulty is that I do not want to involve my noble friend Lord Porter in the embarrassment of having recommended something which this very authoritative Committee might not agree with. It seems to me that the wiser course will be—I do not think we shall have to wait very long—to learn what is the view of the Evershed Committee on this and other matters. It may well be that their recommendations will fall into line with what Lord Porter's Committee says about libel and slander. I have no opinions about it except to say that I have been very surprised at some of the figures of damages that have had to stand in libel actions. Really, therefore, I think it would be better to leave this proposed clause out at present and see what happens.
§ LORD PORTER
I am quite unrepentant on two matters. The first is on the recommendation that says that the Court of Appeal ought to interfere more; and the other is that I do not think the matter ought to be dealt with in this Bill. They are not the same thing. There is going to be this recommendation from the Master of the Rolls. Which way it will go I do not know, but it is very undesirable that one portion of the law should be dealt with and the other left alone. I have just as much difficulty in reconciling awards of a jury in accident cases as I have in cases of defamation. They are just as likely to differ. I remember cases of loss of expectation of life where one jury gave nothing and another jury gave £5,000. There was not so much difference between the two cases. But that is the difficulty which we feel in regard to this particular Bill. May I illustrate it by saying that I am against murder and if murder were not punishable with death in this country and someone said that we ought to stop murder by shooting by passing a Bill to say that murder by shooting shall be liable to capital punishment, I should say, "Let us make all murder liable to capital punishment and not confine it to murder by shooting." You ought not to confine to one Act of Parliament your recommendation that the Court of Appeal should have wider powers.
THE LORD CHANCELLOR
I feel much sympathy with the Amendment which the noble and learned Earl has moved, but I hope that he will find it possible to wait until the Evershed Committee has reported. That Report, whenever it comes, will cover, I think, all cases of damages awarded by a jury, and I believe it will commend itself to all your Lordships that the same rule should apply to libel cases as to other cases of the type where damages are awarded by a jury.
§ EARL JOWITT
This is a case of "jam to-morrow but never jam to-day." I am glad to find one proposition on which the noble and learned Lord, Lord Porter, and I agree—that we are against murder. I would say this to your Lordships. I think that this was a sensible and sound suggestion. I know a good deal about law reforming now. I do not know at all when the Evershed Report will be out, but may I ask the Lord Chancellor this? If the Evershed Report contains a recommendation on the same lines as this, will he give me an assurance that he will promptly put at any rate this passage of it into law, or bring in a Bill to do that? If so, by all means let us wait. But if, on the other hand, as generally happens in the case of law reform, we have to wait for about twenty years until that Report comes out—that is about the average time; the Donoughmore Report took about twenty-odd years, I think—we had better have a little bit of "jam" now. If we have this clause now, there is nothing to prevent this excellent principle which has been here enunciated being extended to other fields after the Evershed Committee has reported. How nice that will be! My noble and learned friend Lord Porter will then be in his element in supporting that. But, until we do have time to extend it to other fields, let us at least have it in this field. I suggest that the principle is: "A little jam to-day is possible, with the hope of a lot of jam tomorrow." Let us hope we get a lot of "jam" to-morrow but, in the meantime, let us have a little to-day. It does not in the least prejudice what is going to happen in the future. We may be able to extend it to all forms of action. I hope the noble and learned Viscount in charge of this Bill will accept this Amendment.
THE LORD CHANCELLOR
I think the noble and learned Earl asked me for an assurance as to what would happen when the Evershed Committee made their Report. I think he will realise that it is quite impossible for me to say that there will be room in the legislative programme for any such Bill at any particular time. He will perhaps remember that it was only by the aid of a Private Member that we were able to get this Bill to-day. Surely, the noble and learned Earl does not expect me to give him an assurance of that sort?
§ EARL JOWITT
I knew perfectly well that the noble and learned Lord would not give me an assurance, because he could not possibly give such an assurance. That means that I hope that the noble and learned Viscount, Lord Simon, realising that, in the nature of things, there can be no assurance that any Bill on those lines will be introduced this side of the Greek Kalends, will let us have this little clause in this little Bill at this little moment.
§ VISCOUNT SIMON
I do not think I can yield to that blandishment, but I certainly will, if I may, as soon as ever we get through the Committee stage, have a further communication with the Lord Chancellor and the noble and learned Lord, Lord Porter, because I quite appreciate the strength of the point which the noble and learned Earl has been good enough to make.
§ Amendment, by leave, withdrawn.
§ Clause 14 [Application of Act to Scotland]:
LORD NORMAND moved, in paragraph (b), to delete the last word "and" and to insert as a new paragraph:
(c) subsection (2) of section four shall have effect as if at the end thereof there were added the words 'Nothing in this subsection shall be held to entitle a defender to lead evidence of any fact specified in the declaration unless notice of his intention so to do has been given in the defences.'; and
§ The noble Lord said: This Amendment is purely one of procedure, to bring the new enactment into line with the general rule of Scottish procedure, that no reference may be made to any material of which notice has not been given in the pleadings. The Amend- 374 ment has been considered by the Lord President of the Court of Session and by the Lord Advocate and his predecessor in office, all of whom agree and support it. I commend it to your Lordships. I beg to move.
Page 5, line 48, at end, leave out ("and") and insert the said new paragraph.—(Lord Normand.)
§ On Question, Amendment agreed to.
§ Clause 14, as amended, agreed to.
§ Remaining clauses agreed to.