§ 7.45 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, it was said by Earl Loreburn, in a case in your Lordships' House in 1913, that the inveterate rule in this country is to administer justice in open court. That is not only an inveterate rule, my Lords, but one which is very much prized. There are really two grounds for the pleasure and, I think, the honour in which this rule is held in this country. First, it enables practitioners to see what is the law, to read the judgments of the courts and to be able to advise others who have similar problems about what the likely outcome of their case may be. It is also, I think, of equal importance, whether or not the public are likely to be involved in similar litigation, for them to know what is going on in the courts of this land and the sort of things being said by the judges who give decisions there. Therefore, there is no doubt this is a good rule and one which ought not to be lightly set aside or deviated from in any way.
There are exceptions, my Lords, as in practically every rule in law. These exceptions have grown over the years. The leading case on the subject of what exceptions there may be was the case I have referred to, Scott v. Scott. There was set out, in a series of very learned opinions by the noble Lords who sat on that case, a number of instances where exceptions to the rule might properly be made. The difficulty about that case is that although the actual point at issue, or the three points at issue, did not give their Lordships any great trouble, opinions were given in rather more wide-sweeping terms about the general application of the law, and I regret to say that I think it would be possible to found a number of different decisions on what was said by one or other of their Lordships on that occasion.
Apart from the Common Law reasoning which underlay that case, there have been added since that time various statutory prescriptions on the publication of material which is the subject matter of a court case, or statutory provisions whereby courts may, in certain cases, sit in private or in various forms of secrecy, 1044 or exclude the public from one part or another of the proceedings. In actual fact the main point in the decision of Scott v. Scott has long since gone by reason of a statutory provision which enables courts to sit in private in nullity cases and cases of that sort.
My Lords, the subject did not stop with statutory provisions through the years. It was also referred to by the Evershed Committee which reported in 1953 and in the final Report of the Committee on Supreme Court Practice and Procedure, one of whose members was the noble and learned Lord, the Lord Chancellor. There were certain suggestions made about what the Court of Appeal might be allowed to do by way of sitting in private when it heard appeals on interlocutory matters from the Master or Judge in Chambers. They said that, so far as the Court of Appeal was concerned, they thought that the old rule in Scott v. Scott was quite adequate to protect those cases where publicity was not desirable.
There have been other provisions for cases since then. In particular, in recent times there was some anxiety aroused by a case called B v. The Attorney-General, where the Court decided that under the rule in Scott v. Scott and in the circumstances of that case, it could not sit in private on that occasion. As a result, I think, largely of that case, the Law Commission were asked to look into this matter, and although they did not purport to give a wide review—indeed they said that they could not do it at that stage—they produced a Report which is published as Command 3149. As will be plainly seen from the draft Bill at the back, that Report is really the father of this Bill. Since the provisions of the Bill are all fully described in the Report, I do not think I need go through the individual details quite so carefully as is sometimes necessary in the case of a Private Member's Bill.
But I think I should tell your Lordships that when the Bill went through another place (it was dealt with by my honourable and learned friend the Member for Chertsey; and he introduced a few Amendments: the addition of the Restrictive Practices Court in Clause 1(3), and also Clauses 3 and 4, dealing with Scottish and Northern Irish matters) it was not the subject of any substantial 1045 comment. But since then, there has arisen a certain amount of dispute about the main provision of this Bill. I should like to come to that in a moment.
The Bill, in Clause 1(1), simply gives to appellate courts power to sit for any part of the proceedings in private, if there was power in the inferior court to do so. If your Lordships wish to know what are the powers of the inferior courts to sit in private, they can be seen from paragraph 6 of the Law Commission's Report, which shows that there are four sources, which might overlap one with the other in some cases, depending on the court from which this power is derived. There are the exceptions in Scott v. Scott; there are interlocutory and administrative matters from which there are cases where jurisdiction has been validly delegated by a single Judge sitting in Chambers and there are other express statutory provisions, most of them described fully in the Report.
This Bill does nothing to change any of these provisions. It does not seek in any way to add new rules or new circumstances whereby the courts may sit in private. It does not extend the exceptions in Scott v. Scott, and it does not reduce them. It does not seek (and I think this is perhaps a case in which the Law Commission's Report could have the wrong inference drawn from it) to change the decision in B. v. The Attorney General, which was the case from which the whole thing originally sprang. What it does is to make more clear the powers of appellate courts to sit in private, and extends the opportunities for those courts to do so from what is now their only source of jurisdiction.
At the present moment, unless there may be some statutory provision of which I have not heard, the Court of Appeal has to rely on the decision in Scott v. Scott if it wishes to sit in private. Here again I must draw attention to what I believe to be an error in the Law Commission Report, where they say, in the introduction, that the Court of Appeal…has in recent years held itself precluded under existing law from exercising this right to sit in private".I do not think it has. I can find no case reported where it has done so, and I 1046 believe that the Court of Appeal still has this jurisdiction, which it has had since 1913, in common with every other court in this country. The Bill gives it extra opportunities, if it should so wish, because the Court of Appeal and other appellate courts will no longer have to rely on that Common Law case decided in 1913. They can take the opportunity to sit in private if—and only if—in their discretion they think that the inferior court had itself the power from any of the four sources to sit in private regardless of whether it did or did not do so.
Equally important, there is in Clause 1(4) a provision whereby an application to one of the courts to have a hearing in private may also be heard in private. Plainly, there would be no point in having an application for a private hearing, which no doubt would have to disclose many, if not all, of the facts involved, if that was not also to be in private. Otherwise, the whole object of the exercise would be vitiated from the beginning.
There is a certain exception to the discretion of the court. Under Clause 1(2) there are two occasions when the decision has to be given in public. They are set out in paragraphs (a) and (b). It seems to me that some criticism that I have heard about this Bill might perhaps be modified if something were added to the words in that subsection, and I should be interested to hear if other noble Lords who are to speak on this Bill would think that might set at rest some of the fears expressed. It would seem to me possible that, in addition to the express provision about what has to be taken in public, even when the rest of the hearing is in private, there might be put into the Bill, perhaps at Committee stage, some provision whereby the appellate court, where any part of any proceedings had been heard in private, might consider, before giving judgment, whether the judgment itself should not be given in public: and this for the two reasons which I gave to your Lordships at the beginning.
First of all, it is necessary that important decisions in the appellate courts should be available to practitioners and their clients; and, secondly, it is of great public importance that in what is reported in the newspapers or elsewhere about proceedings in the courts, the 1047 public should not be precluded from reading this sort of case, which might affect the public in an intimate and important way. I should be interested to hear if other noble Lords thought that this should be incorporated in the Bill, and I should be particularly interested if any noble Lord could think of a form of words which might be incorporated in this way.
Clause 2 of the Bill is a little complicated, but it is explained in the Law Commission Report. The first subsection relates to declarations of legitimacy and adds a new subsection (9) to Section 39 of the Matrimonial Causes Act 1965 which enables proceedings to be held in private. Subsection (2) provides that proceedings under Section 22 of the Martrimonial Causes Act, which relates to proceedings by a wife against her husband for maintenance, are to be dealt with differently, in that the provisions of the Judicial Proceedings (Regulation of Reports) Act 1926 are to apply, as they have not hitherto, to these proceedings, with the slight alterations set out in subsection (3). That provision is also to be applied to cases for declaration of legitimacy.
I think that the rest of the Bill is fairly clear on the face of it. Clause 3 makes it abundantly clear that when there are appeals to your Lordships' House, sitting in its Judicial capacity, from the Court of Session in Scotland, there is to be no restriction on its right to sit in private if it should so think fit. The same applies to appeals from England and Northern Ireland. I imagine that it would be exceedingly rare that this House would sit in private, but there might be occasions when it would wish to do so.
Clause 4 deals with the Northern Ireland situation and, as is usual in cases of such legislation, does not prevent the Stormont Parliament from passing its own laws, if it should think it necessary for Northern Ireland, but it applies to appeals from Northern Ireland to this House sitting as a Judicial body.
My Lords, I hope that the further consideration I have been able to give the Bill since I decided not to move the Second Reading a fortnight ago may have been fruitful and may have given an opportunity to other noble Lords to think about the points which are disquiet- 1048 ing some people in the legal and journalistic world. I will gladly listen to what they have to say on this Bill, and I hope that, even if they wish to have some such addition as I have suggested they will all be willing to give the Bill a Second Reading this evening. I beg to move that the Bill be now read a Second Time.
§ Moved, That the Bill be now read 2a,.—(Viscount Colville of Culross.)
§ 8.0 p.m.
§ LORD DENNING
My Lords, I would thank the noble Viscount for the moderate way in which he has moved the Second Reading of this Bill, and indeed for the suggestion he made as to its possible improvement. But it is a Bill which affects very considerably the Court of Appeal over which I have the honour to preside, and I must confess that I have considerable misgivings, and so have many of my colleagues.
It is of course a fundamental principle that justice must be dispensed in public—not only that the lawyers should hear the judgments, not only that the newspapers should be able to report them, but so that the judge should conduct himself properly. The presence of a reporter, the presence of the public, is a check on arrogance, prejudice and distortion. It is not necessary for me to recite the rhetoric of Bentham, when he said:In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.That is the fundamental rule. But of course there are exceptions, as the noble Viscount has said—exceptions in the interest of justice itself.
This is where I take exception to some parts of the Law Commission Report. It proceeds on a false premise, it proposes a bad cure and it contains unfortunate implications. First, as to the false premise, which the noble Viscount acknowledged. It says in its opening introduction that the Court of Appeal has in recent years held itself precluded under existing law from sitting in private, especially in custody and wardship cases. My Lords, I have sat in the Court of Appeal longer than anyone now living, and I have presided over it for a considerable number of years. The Court 1049 has never held itself so precluded. I speak with all the authority I command.
The truth is that the Court has power, in exercise of its parental jurisdiction, to sit in private in any case concerning wards or infants, wherever it is desirable in the interest of the infant so to do. It is part of its parental, administrative power, which was recognised in Scott v. Scott by Lord Haldane. It is the old power of the Crown as parens patriae which, in a recent and very important case concerning blood tests, we held applied to all the Judges of the High Court. That is the false premise. They thought the Court of Appeal had no power to sit in private in such cases. I say that we have, and we do not need more power.
The case to which the noble Viscount referred was not a case in the Court of Appeal—the B. v. B. illegitimacy case, where in the court of first instance the Judge had unfortunately not had referred to him the Statute which gives every court the power to order that there shall be no newspaper report or anything published which would identify the school or the child. It is the 1963 Act, amending the 1933 Act, which says:In relation to any proceedings in any court the court may direct that no newspaper report shall reveal the name, address, and so on, or anything tending to identification in respect of a young person or a child as being the person by or against or in respect of whom the proceedings are taken.Unfortunately, the Judge was not referred to that section of the Act. He could have given such a direction. We in the Court of Appeal do not need to give a direction. Whenever we think it desirable—and in most cases we do—we ask the reporters not to publish the name of the child or to give any identification of it: and they always respond. There is no need for us to invoke our statutory jurisdiction, and I have never known of that trust being broken or heard myself of any harm coming to a child in any of the cases in our court. That is the false basis on which the Law Commission started.
May I go on to the next point: the bad cure which they propose. They propose—it locks logical enough—that whenever the court below has power to sit in private the Court of Appeal should have power to sit in private. Those who know the practice of the court know that 1050 the courts below have no logical basis on which they sit in private. It depends on which Division of the court you happen to go before. If any of your Lordships, or any of the newspapers—as we had the other day—should seek an injunction, as the Daily Mirror did a little while ago against the retail newsagents, or if it happened to be one of the big trade union cases, such a case would go to the Queen's Bench before a Judge sitting in private. It is a very important matter; the Judge sits in private and no one can report the case and no one knows anything about it. It comes to our Court, and of course we sit in public. If the plaintiff in those cases had chosen to go not before a Queen's Bench Judge but before a Chancery Judge, the Chancery Judge in the self-same sort of case would sit in public and not in private, and of course we should hear it in public. So it is mere chance whether the plaintiff chooses to go into the Queen's Bench, where it is heard in private, or into Chancery, where it is heard in public. It is that illogicality—which cannot be defended by anyone, I venture to assert—which it is being attempted to preserve by what I suggest is this bad cure. The powers of the Court of Appeal are not their own hands; they have to look at the power which the court below has had. At all events, it is a bad cure which is there proposed.
Next, my Lords, besides the bad cure, there are the erroneous implications. This is really what troubles me. It looks such a harmless Bill. If there is any doubt as to whether the Court of Appeal have power, why should it not be given?—it appears to be quite harmless. But I have heard the arguments of advocates, and I have heard them persuading judges in this way: "See what Parliament has done: it has given you power to sit in private. Surely Parliament means you to exercise that power, otherwise why should it give it to you?" Indeed, the argument will come with telling force in the future. Take the cases we have had quite recently, interlocutary cases, where the barrister is charged with negligence. As he seeks to strike out the claim against him on the ground that it is privileged or it discloses no cause of action, he could well say, "Please hear this in private, because I do not want my reputation as a barrister made public." Or 1051 in many of the cases we have had, if there has been undue delay in the cases that are asked to be struck out for want of prosecution, the solicitor says, "Please do not hear this in public because my reputation may be affected".
There may be many cases where, on the basis of the implications of this Bill, counsel will argue, and some judges may be persuaded, that the court should sit in private. I hope that would not take place because the appeals which we hear in these matters are some of the most important there could be. At these interlocutory proceedings we have had the most important cases about Crown privilege, about the negligence of a barrister, blood tie cases—the case of an infant that was held in private; we have had the trade union cases, and the like. It is vitally important, in my judgment, that those cases should be heard in public, and anything which gives the impression abroad that the Court of Appeal should sit in private wherever the Court below has sat in private contains a most unfortunate implication.
As to discretion, it is all very well to gives Judges discretion. It means that one Division of the Court may do one thing and another Division may do something different. In that very case of Scott v. Scott, talking of judicial discretion, Lord Haldane says, "The question is not one which rests with the judge, resting on his mere discretion, what is expedient. He must treat it as one of principle, and as turning not on convenience but on necessity". That is why I would suggest that a wide discretion, unfettered, with no principles to guide the court is not in this case desirable when it meets the fundamental principle that justice must be dispensed in public.
I have voiced these misgivings, but on the other hand I realise that we cannot have all our own way in this world and in view of what the noble Viscount has said I can see that there could be a possible way to bridge the gap. If the Court of Appeal were directed, or if it was said, "Well, at least they shall give their reasons in public", that would show the importance which we attached to public hearings and to people being able to read and to see all that is done; except, of course, that there may be com- 1052 pelling circumstances, such as national security or even the interests of a child, why even the reasons should not be given in public. If there are such compelling reasons, then if the Judge states those reasons it may be right that not even reasons should be given in public.
But, my Lords, I cannot help thinking of an analogy. I do not know whether your Lordships remember a little while ago, the case of a ward of court where there was said to be a breach of the control over the ward—a young man wanted to marry the ward, or something like that. That case was heard in private. The application to commit the man for contempt was heard and he was sentenced in private. Of course the newspapers and everyone else were aghast, and an Act was passed to the effect that at least the sentence should be in public. So there the order of the court committing the man is made in public. But what has been the result of that legislation? Only the sentence is given in public, not the hearing of the arguments to and fro as to whether or not the man should be committed; whereas previously quite often those arguments were heard in public. So legislation may have unforeseen consequences and it is for that reason that I voice these misgivings to-day. But if there could be some Amendment so that the reasons for a judgment were given in public, except where the court feels, and states, that there are compelling reasons against their being given in public, and gives reasons, such an Amendment might do a great deal to assuage the misgivings which I, for one, with the majority of my colleagues, feel about this Bill.
§ 8.16 p.m.
§ LORD LEATHERLAND
My Lords, my noble friend Lord Kilbracken has asked me to say that he wishes his name to be taken off the list of speakers. That is not because he has decided to desert us in the battle but because he has an urgent appointment to keep. He went on to say that anything I ventured to say to-night would be exactly the same as he would have said had he been here. In these rather unruly political days it is consoling to find such unanimity of thought and of mutual trust.
I speak as an old newspaper man, one of what used to be called the "Watchdogs of the public", and I feel that one of 1053 the freedoms of the public and of the Press is being eroded in this Bill. So far as my own freedom is concerned, I feel quite comfortable to-night. This is not a Government Bill but a Private Member's Bill. It has been said that it is based upon a Report of the Law Commission. That Report was published eighteen months ago. During those eighteen months have the Government introduced any legislation of their own to give effect to that Report? No, of course they have not. It was merely left to the lucky chance of a Member in another place to pull the right number out of the hat in the ballot. We do not permit our national finances to be solved by a sweepstake, but apparently we are prepared to let a sweepstake determine whether a Bill shall come before Parliament to deal with one of the essential freedoms of our law.
In both Houses the Bill has been sponsored by eminent members of the legal profession. Let me say, as I am sure everybody in this House will say, that we hold the noble Viscount, Lord Colville of Culross, in the very highest esteem, and I say that in order to stress the genuineness of the objective opposition which I have to this Bill. I am sure it was conceived with the best of intentions, but it contains within itself the seeds of a serious danger. It has always been a cardinal principle of our administration of justice that proceedings should be held in the light of day. That is so that justice may be seen to be done, but this unfortunately, is being whittled away by this Bill.
A few weeks ago we had a murder case in which a man was sentenced to life imprisonment without a single one of the circumstances associated with the case being announced in open court. Indeed, the case only lasted 60 seconds. Since then there have been similar but less sensational cases in which justice has been done almost in a whisper. I do not want to hark back to the Criminal Justice Bill, on which there were so many debates on this subject; nor do I want to go back to the Matrimonial Causes Act which further limited the reporting of cases, but it is the cumulative effect of one measure after another that is liable to deprive us of some of the freedoms that we enjoy in the administration of our law to-day.
1054 This Bill goes one step further. In my view this Bill is quite unnecessary. It sets out to remedy a supposed mischief which does not really exist. Even the highest legal authorities in the land admit that it does not exist. I am not one to attack the Law Commission. Certain of our laws need revision, and the high-powered legal experts of the Law Commission are just the people to put forward recommendations. But the Law Commission do not make our laws that is still one of the prerogatives that remain in the possession of this House. We also have to remember that the Appeal Court also makes laws, and alters laws and this making and altering of laws ought not to be done in secret.
This Bill deals with one of the highest Courts of the land and it enables the Judges, with a flip of the finger, to say: "Not a single word about this case shall be reported in the Press, or spoken on television, on radio or by word of mouth." And it enables them to say that not a single hint shall be given about the way in which the Judges have interpreted the law, either re-stating an old interpretation or applying a new interpretation, in the case in question. The citizen is supposed to know the law, yet here we are proposing to put an obstacle in the way of his getting acquainted with what the law really means.
Look how comprehensive is the range of cases that is covered by the Bill. It covers cases previously heard by the High Court, by quarter sessions, by county courts and magistrates' courts, and by practically every court in the kingdom except the Centre Court at Wimbledon; and as an afterthought the Restrictive Practices Court was added to it. I am quite sure that there is nothing like a good conspiracy of silence when you are considering a price-fixing ring or the organisation of some restrictive practices in industry.
The Bill tells us that if the lower court has the right to sit in private during a part or the whole of its proceedings, then the superior court shall have exactly the same right. The noble and learned Lord, Lord Denning, has shown the folly of an attempt to rule along those lines by saying that it would virtually put the superior court at the mercy of the inferior court. The court does not even have to announce its decision to the public. There 1055 is one exception, of course, about announcing decisions; and that is if the appeal is against conviction or sentence or punishment for contempt of court. In such a case the court must announce any order that it makes. But it can keep the whole of the rest of the circumstances of the case completely private. This shows, my Lords, that this Bill goes far beyond the scope of those guardianship cases where infants are concerned, because it speaks of convictions and sentences, which means that cases involving criminal offences might well come under the blanket of the proposals in this Bill.
The conspiracy (if I may use the word, in a nice, friendly sort of way) goes even further than that, because when counsel applies for his case to be heard in private the mere fact that he is making an application has to be censored. So every door that might let out a little glimmer of light to the public is banged shut in the face of the public. What peculiar people we are!We are removing censorship from the theatre, but we are imposing a new censorship on the administration of justice.
I know that a sympathetic case can be made out for shielding from publicity more or less innocent people whose whole lives might be shattered if the full circumstances of their early years were broadcast far and wide: cases involving legitimacy, intimate matrimonial matters, guardianship of infants, wards of court and so on. Incidentally, I should like to say, in parenthesis, that I think the names of all wards of court should be publicised in the Press. Otherwise, some very respectable citizen—perhaps even some high-minded noble Lord—quite unaware of the fact that a lady had been officially placed out of bounds, might, in complete ignorance, find himself in conflict with the law. But I digress from the main thread of my argument.
Let us be realistic about the broad proposals of this Bill, and ask ourselves: Is there really any danger of harmful details about people being published in the Press or through other channels? That danger does not exist, and the history of the Appeal Court shows that it does not. I think one of the reasons why it does not exist can be gathered if we look at the type of reporter engaged 1056 in the High Court reporting these cases. These are senior, responsible men. I know a few of them. Some of them are barristers. They are very jealous indeed of the high responsibility of their calling. They formed themselves into a little close corporation, the High Court Journalists' Association. There are 40 of them, and they have a very high code of conduct.
If the Judge gives an indication that nothing which would identify a party should be published, they immediately comply. That is what happens at the moment. They do not publish the name, and they do not publish the town from which the person comes. And the Law Commission admit that this is the high standard of conduct that prevails among reporters in that court. In fact, these reporters have on occasions gone even further, and when a Judge has overlooked the necessity of giving this warning about disclosing identities, they have gone up to counsel or the court associate and said: "Please remind the Judge that he ought to tell us not to publish the names or addresses in these cases." That indicates the high standard of responsibility which these reporters have.
These reporters have themselves suggested that there are other and better ways of allaying any fears that might exist about the disclsoure of information that might be detrimental to infants and young people. I will come to that later, in view of what the noble Viscount has said. But there has never been any complaint about these reporters. So that if the Bill is supposed to be necessary to deal with a mischief, that mischief does not exist.
When all is said and done, my Lords, this Bill is not concerned only with the cases of infants: it embraces many branches of the law. It has been said—not in this House tonight—that the Bill is designed to remove anomalies. May it not create new anomalies? May it not make the ultimate position really worse than it is to-day? I would ask your Lordships to cast your minds back to the case of Conway v. Rimmer, heard in the Appeal Court, quite properly, and taken on further appeal to the House of Lords. If the Appeal Court it going to sit in secret, you create a new anomaly if the case is later on going to be heard publicly in the House of Lords. Or are we to have another Bill which will bring 1057 down the blanket of silence over the proceedings in the Judicial House of Lords?
VISCOUNT COLVILLE OF CULROSS
I think the noble Lord has not realised that the House of Lords is covered by this Bill.
LORD LEATHER LAND
That makes the Bill even worse than I had imagined it might be. Is there not another danger? Instead of the experienced specialist reporters giving straightforward and restrained stories about what happens in the Appeal Court, will not news editors send ordinary (and I put the words in "quotes") "human interest" reporters to lobby around outside the court and pick up spicy stories which might be ten times as embarrassing as anything that was straightforwardly stated in court? And, of course, their stories would not be related to any mention of the court proceedings at all. News editors are very enterprising, imaginative and persistent people—I was one myself for about ten years—and it is no use a reporter going back to them and saying: "I was unable to get a story", because news editors in such circumstances can be very vocal indeed.
Some of these appeal cases involve important pronouncements on the law, and the public ought to be told about them. There was the blood tie case, which the noble and learned Lord mentioned. In that case a father was granted the custody of his illegitimate child. The decision was a reversal of the law. Surely that is something that should be well publicised in the newspapers throughout the land—without, of course, mentioning the identity of the person concerned. The name of the party to a case could usually be omitted; in fact it frequently is omitted. I have a couple of examples of stories that were recently sent out to newspapers by the Press Association. One of them concerned a policeman who wanted to be allowed to see his illegitimate son. No names were given in the report, just a straight-forward anonymous account of the court proceedings, together with the judge's decision, and some remarks that he made when delivering that judgment.
Then there was another case where the report started like this: 1058Seven-year-old Peter (that is not his real name) has been the centre of a legal custody dispute since his parents were divorced.The report then went on to give the Judge's reasons for giving the child to its mother who was practically a granger to it, rather than to its loving aunt and uncle who had been its foster parents hitherto. Information like that ought to be made available to the public. If names are not mentioned it does no harm at all to anybody. It enlightens the community as to the way the law is being interpreted by learned Judges, and the mere suppression or omission of the name does not detract in any way from the general informative nature of the story.
My final words about the Bill are these. The Law Commission did not ask the High Court journalists to give their views, nor did the Press Council ask the High Court journalists to give their views. Yet those views could have been very useful indeed. And the public have been told very little about this Bill. In the other House the Second Reading was passed without a single word; somebody just nodded his head, and the Second Reading went through. Then in the Committee stage only 22 minutes were taken, and the bulk of it by the addition to the Bill of the provision concerning the Restrictive Practices Court which I have just mentioned. On the Third Reading of the Bill, somebody again nodded; not a single word was uttered, and the Bill went through. And that is the Bill that has come in a form undigested by the Legislature to your Lordships' House.
My Lords, my original intention was to move that the Second Reading be refused or, alteratively, to vote against it. But I have never been in the "awkward squad", and I do not want to join it now. I could take another course. I could pretend to be more clever than I really am. I could challenge a Division; I could take a gamble that there would be fewer than 30 noble Lords present and that the decision would then become invalid. But I am not going to do anything of that kind. I look forward to the Committee stage a little more hopefully than I did an hour and a half ago, in view of what the noble Viscount, Lord Colville of Culross has said. I hope that sufficient Amendments will be acceptable in order to do away with some of the very objectionable features of this Bill. But in 1059 its present form I certainly could not stand for it at all.
My closing words are these. A few weeks ago one of the highest legal authorities in the land—and now, like the court reporters. I preserve anonymity with regard to his identity—said this when he was dealing with another kind of court:The Press has a most important function in the administration of justice. Justice is not a cloistered virtue and it is important that the news of the proceedings should be made freely available to the general public. Where the public is unable to attend then the Press performs the essential service of keeping the public informed.I think that is a sound principle. And it is one we should follow so far as this Bill is concerned.
§ 8.36 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
My Lords, I should like to join with other noble Lords in thanking the noble Viscount, Lord Colville of Culross, for the clear, helpful and moderate way in which he has explained this Bill. I would also respectfully join with my noble and learned friend Lord Denning in all that he has said in full appreciation of the work, the beneficent public work, performed in reference to the law by the Press.
The noble Lord, Lord Leatherland, quoted very appositely some eloquent words in reference to the great power and effect of the Press in regard to the administration of justice. I can assure him that those of us who support this Bill, in which number I am, subscribe fully to the sentiments that he has referred to, both in that quotation and in his own words. We all recognise that. for the due administration of justice, and in order that the public should be fully informed in regard to the law, we depend upon the services of the Press. The term "watchdog" was used. The Press can cast a searchlight into dark corners, and this is very valuable, for in the glare of publicity good causes can prosper but bad causes will scurry away. So we all approach this Bill with full and just appreciation of the invaluable services rendered by the Press in regard to the administration of the law.
But, my Lords, I support this Bill, for two reasons. In the first place, I think it is desirable in order to clarify the law. And in the second place I support it 1060 because it is only an enabling Bill, a Bill giving power; and I believe that the great majority of my fellow-countrymen have confidence in the Judges and are prepared to trust them to exercise a power in a wise way. The Judges have been brought up in the tradition that it is desirable to have full publicity in the administration of the law. All their training leads them to think that the doors of the courts must be open to the greatest extent possible. The noble Lord, Lord Leatherland, I thought, if I may respectfully say so, in some parts of his speech was not giving full weight to the fact that this Bill is only an enabling Bill giving power to the Judges. Can we not trust them to carry out all the beliefs in which they have been nurtured?
Two points of view have been expressed in regard to this Bill. One is that the courts have the power to-day to do what this Bill gives them. Another point of view is that the function of the Press would be eroded if this Bill passed. Those two points of view cannot well march together. May I just say a word or two in regard to each one of these two reasons that I have outlined as to why I support this Bill? In regard to the second of them, on which I will say a word in a moment, I would emphasise that there is nothing in this Bill that directs a court to hear cases in private: it merely gives them power.
The noble Viscount, Lord Colville of Culross, I think quite correctly, if I may respectfully say so, pointed to the fact that the power in the Court of Appeal to-day to sit in camera to hear appeals is a power, unless there is some statutory power, that is derived from Scott v. Scott, and I do not find that the law is as clear as one would like it to be. Scott v. Scott undoubtedly proceeded on the basis that a court may order a case to be heard in camera if justice cannot be done in the particular case if the case is not heard in camera. Scott v. Scott dealt primarily with trials of cases. As has been said, it arose out of the trial of a nullity case, but there were certain general principles.
The then Lord Chancellor, Viscount Haldane, while accepting that a case could be heard in camera if justice could not be done in the particular case if it 1061 were not heard in camera, was careful to say that the principle must be applied with great care and must not be stretched to cases in which there is not—and I quote his wordsa strict necessity for invoking it.He said:Unless it be strictly necessary for the attainment of justice, there can be no power in the court to hear in camera either a matrimonial cause or any other where there is a contest between the parties.Quite what does that involve, my Lords? When is something strictly necessary for the attainment of justice"?
Take the sort of case where the question arises as to where the care, control and custody of an infant should be. The case would, or might, have been heard before a Judge in Chambers. The case goes to the Court of Appeal. In the Court of Appeal there will be voluminous affidavits. All will have been heard in private up to then. Can it be said that the test of Lord Haldane would be satisfied, that it was "strictly necessary for the attainment of justice" that the case should be heard in camera? The Lords Justices can achieve justice though the case is heard in public, but it may be infinitely damaging for the infant.
The noble Lord, Lord Leatherland, has referred to the fact, which I readily endorse, that whenever the Press are invited not to publish a name they loyally and honourably observe the request. My noble and learned friend Lord Denning has referred to 'he provisions of the Act, I think, of 1933. But are they enough? This may be a matter that enables an infant to be identified by those who know the neighbourhood, even though there is no name, merely from the recording of the facts; and furthermore, many whose only concern with the case arises out of idle curiosity may go and hear the case, which has no legal significance and is of no importance whatsoever except to the parties themselves.
Would it not be desirable to have the law made clear? Would it not be appropriate to have it certain that in such a case the Judges have power to sit in private? And can we not trust the Judges entirely in a situation of that kind?
There was a case, I think in 1952, when I was a member of the Court of Appeal, sitting with the late Lord 1062 Evershed; and I think that Lord Jenkins was the other member of the Court. A company had gone into liquidation. The only assets of the company were some minority shares in another company and a question had arisen before Mr. Justice Vaisey in Chambers as to whether permission should be given to the liquidator of the first company to sell to a majority shareholder the minority shares in the other company. Another view was that that should not be done, but that the liquidator should put the other company into liquidation, with a view to taking some proceedings.
The learned Judge sanctioned the sale of shares, and refused to direct the liquidator.
There was an appeal to the Court of Appeal. We heard the appeal in private, but Lord Evershed, when giving judgment, said:We thought, with our then imperfect knowledge of what was going to be discussed, that in the circumstances we should hear the matter in camera, at any rate to start with.The point was taken, "Well, we shall have to discuss whether it is desirable to take some legal proceedings against somebody connected with the other company"; and it was put to us that that would be undesirable. In the result, the appeal was dismissed, and Lord Evershed gave judgment in public and fully dealt with the facts. I cannot but think that the law is really not too clear as to the application of Scott v. Scott to a case of that kind, and I think it would be desirable that the law should be clear.
The other reason why I support the Bill can be stated quite shortly. It is, that the clause really gives power to the Judges "to sit in private during the whole or any part of the proceedings'. The Bill does not say that the court should sit in private. I cannot imagine that in some of the cases to which reference has been made—the case where there was an unfortunate delay in proceeding, the suggestion of a rather bad delay, or in a case affecting Crown privilege which came to your Lordships' House, or a case affecting the liability of a barrister—their Lordships in the Court of Appeal would think they were proper cases to be heard in private. Surely we can trust the Judges in a matter of this kind.
The noble Lord, Lord Leatherland, 1063 said that this Bill imposes a censorship. I submit to your Lordships that all that it does is to clarify the law, and to give to those whom we can trust a power. I heard the suggestion made by the noble Viscount, Lord Colville of Culross, and if there is some further proposal on those lines I should like to consider it, and to reserve my view. But it seems to me at the moment that any such provision would really be superfluous. The Bill only gives power, and it gives power "during the whole or any part of the proceedings" Do we really need a direction to the Judges that, at the end of the hearing, they must give consideration to the question of whether they will give judgment in private? Surely they will give that consideration automatically. Do we need to put on paper that the Judges should do something that they most certainly would do? My Lords, I should hope that the whole country would have confidence in the members of the Court of Appeal and in the Judges. I cannot think that the Judges would ever be false to a tradition in which they have been nurtured.
§ 8.51 p.m.
§ LORD HODSON
My Lords, I shall not detain the House very long. I want to address myself to only one aspect of the matter: that is, the aspect which concerns children, in which all of us, I think, are primarily interested. May I first be allowed to congratulate the Law Commission on this Bill, which I welcome, and to thank the noble Viscount for presenting it in the way he has. I would also preface my remarks by referring to Lord Leatherland's speech. I, too, have been a judge for a very long time. I was a judge before my noble and learned friend Lord Denning, and I sat in the Court of Appeal for nine years, so I have had a good deal of experience of children's cases. My experience is the same as all the others who have spoken. The Press have always played the game, in that if a judge says, "I must ask the gentlemen of the Press not to report this", they always accede. They are not bound to accede, but I have never known a case where our request has been refused.
Nevertheless, I do not think it is at all a satisfactory situation to leave the matter in that way—that we should depend on 1064 the good sense, good-heartedness, loyalty and co-operation of the Press in a matter of this kind. It just is not satisfactory. Moreover, it is not the end of the story, because, as I think has already been pointed out, many people may be in court who have nothing to do with the Press but who happen to be acquainted with either the people concerned, the children concerned, or the locality where the children live, and they are malicious enough to spread the news about the unhappy story which has been unfolded in court.
I now come to the real point of what I am saying, because it is in respect of children that the real difficulty arises, and it is surely wrong that children's cases which are heard in Chambers at first instance, should be heard in public in the Court of Appeal. It just does not make sense to me that that should be so. My noble and learned friend, Lord Denning, takes the view that there is power already to sit in the Court of Appeal in private. I do not wish to cross swords about that, because it would be quite unprofitable, but the noble Viscount, Lord Colville of Culross, has already indicated that the only source of knowledge that we have on this question is derived from Scott v. Scott, and many of us in the past have taken the view that we really had not the power to exclude the public, even in children's cases. I myself resorted to the method which I have just disclosed. I used to say, "I hope the Press will not report this", and they never did.
But now we are going to have a Bill which declares the law, making it clear that the appellate court has power to sit in private where the court had that power, and I think that is absolutely sound. It is surely logically sound and sound in principle in every way, and I do not see any object in having an Amendment to the clause which is supposed to meet some objection, to the effect that the judges in the Court of Appeal shall have power to give judgment in open court. The clause, as drafted now, only gives a power to sit in private during the whole or part of the proceedings, and the whole, of course, includes the judgment. So what is to be gained by adding superfluous words which would, I suppose, satisfy my noble and learned friend, Lord Denning, if judgment in these conditions 1065 were compulsory, but if it is not compulsory adds nothing to the clause as it stands?
I should like to add this in regard to judgments. I do not think it is a good idea for judges in an infant case to give their judgments in open court. I have very much in mind what the noble Lord, Lord Leatherland, has said about the law, that people want to be told in public what the law is; but as a rule no question of law arises in these children's cases. They are dealt with on the discretionary footing, the judge who hears the case exercises discretion one way or another, The decision is never ideally satisfactory. We are dealing with divided homes, where children are the: great sufferers, and the decision which we make in dealing with the lives of these unfortunate children is not going to be of great assistance to anybody. But we have to deal with these cases.
These cases do not often go to the Court of Appeal, simply because they are matters of discretion, but when these unfortunate fights take place they more often than not take place in the Divorce Division which has most to do with divided homes. I cannot stress too much my experience in this matter—which is a very long one, or was; I have not had Anything to do with it for many years—that the children really suffer. It is a most extraordinary thing that when the home is divided and one spouse leaves the home, perhaps leaving the children where they were, the distress caused is very great indeed and is accentuated by the dispute which arises between the parents about what is to be done with the children, what is to be done with them in the holidays, what visits, if any, are to be allowed to them. Indeed, to such an extent is this apparent that a great deal of the evidence in these cases is medical evidence—medical evidence about the health of these unfortunate children.
In one of the last cases I heard in the Court of Appeal, leading counsel who appeared for one of the parents handed me a photograph of the child, a boy of about nine years of age, and said, with truth, "Your Lordship will be surprised to hear, perhaps for the first time in your judicial experience, that this is a photograph of a perfectly healthy child". That is the tragic situation which I have in mind, and I am very anxious that 1066 Clause 1 of this Bill, which is the only one I am concerned with, should go forward in the form in which it now stands, without amendment.
§ 8.58 p.m.
§ VISCOUNT DILHORNE
My Lords, my noble and learned friend, Lord Hodson, has made an impassioned plea for the retention of Clause 1 of this Bill in its present form without Amendment. If this Bill was simply confined to the powers of the Court of Appeal in relation to children, I do not think there would be any difficulty about it at all, but this Bill goes far wider than that. In the course of past years we have seen a gradual restriction on publicity of proceedings in court. I will not go through the long history. We have recently had it in relation to committal proceedings in magistrates' courts. I think that that, in view of the changes we have made in committal proceedings, was an undesirable step; and now here we have a proposal for further legislation restricting the right to report proceedings.
This Bill has been very persuasively introduced by my noble friend Lord Colville of Culross, and I would say straight away that I would, for one, be in support of any Bill which removed any doubt, if there was any doubt, about the power of the Court of Appeal to sit in camera, in private, in cases dealing with both children and legitimacy But, my Lords, this Bill goes far wider than that. It gives the Court of Appeal completely unfettered discretion to sit in private in any case where the appeal comes from a court which itself could have sat in private on that case. I would ask your Lordships to mark that the exercise of that power by the Court of Appeal does not depend on the fact that the inferior court decided to exercise the power to sit in camera. The Court of Appeal will have power to sit in camera, whether or not the inferior court did so, if the inferior court had power to sit in camera.
The case may well arise under this Bill where the Court of Appeal, under another Master of the Rolls, may be persuaded to sit in camera, even though the original trial had not been in camera. I merely mentioned that to show the width of the legislation which is now proposed. Whatever be the views of the Law Commission and whatever be the individual views on 1067 this matter, in dealing with legislation of this sort we should be very careful not to give a wider power than that for which the case is fully made out.
I approach the Bill with strong support for the views expressed by my noble and learned friend Lord Hodson in relation to children and legitimacy. There are not many of those cases which, from a lawyer's point of view, are worth reporting. I suspect that few of them can have real news value. A lot of them if reported and if not held in private might do damage to the children concerned. There will always be this contest between the interests of the private litigant, who on many occasions would prefer privacy, and the public interest in seeing that justice is properly administered. But when we come on to the wider proposition, I share to a considerable extent the misgivings expressed by my noble and learned friend Lord Denning. He called this Bill a bad cure. My noble and learned friend Lord Morris of Borth-y-Gest said that it was desirable to clarify the law. So be it. I have no objection to clarifying the law or enacting it in a Statute. But the decision in Scott v. Scott related to an appeal from the Probate, Divorce and Admiralty Division and my noble and learned friend Lord Hodgson spoke about children's cases, and I would add legitimacy cases. But this legislation goes far wider than that.
The argument was then urged upon us by my noble and learned friend Lord Morris of Borth-y-Gest that we should have confidence in the Judges. We do have confidence in them, and I am sure everyone else has. He said on no fewer than three occasions, "Can we not trust the Judges?" I see no reason to suppose that we cannot equally trust the Press. I am not sure that it is wise to give a completely unfettered discretion to the courts, without laying down guidelines on which the courts should act. That is met by my noble and learned friend saying that the Judges have been brought up in the tradition of full publicity. So they have, and so have this generation of Judges. But can we be sure that will go on? Once one has in a Bill a general provision like this, may it not be argued that Parliament intended this power which is now given to be used more frequently and more fully than it has in the past? Might that argument not pre- 1068 vail, perhaps not with the present Judges, but with Judges in a few years' time who may be unacquainted with the history lying behind this matter? I do not know. I have misgivings about this Bill, while endorsing the views expressed by my noble and learned friend Lord Hodson. If the Bill was confined to that and that alone, I personally would be prepared to give my wholehearted support to it. But I have doubts about the width of the Bill.
I welcome the suggestion put forward by my noble friend Lord Colville as to the possibility of accepting in Committee an Amendment to provide that, in cases where this power is exercised, judgment shall be given in public and be reported, unless there are compelling reasons to the contrary. The noble and learned Lord, Lord Hodson, said that they can do that now under the Bill. I agree, and this is only an enabling Bill. They can have the whole of the proceedings in public: but if one has that addition in the Bill, one is drawing the attention of Judges in the future, as well as the intention of the Judges of the day, to there being a compelling need to give judgment in private before that power can be exercised. Such an Amendment cannot conceivably do any harm, and I believe that it might do some good. I hope that Lord Colville will be prepared to accept an Amendment on those lines.
§ 9.6 p.m.
§ LORD WILBERFORCE
My Lords, the very first case in which I appeared at the Bar which got into the Law Reports was a case about a judge who sat to try a divorce case in the judges' library. The case concerned a prominent politician, and the judge decided to sit in the library outside which the word "Private" appeared. That resulted in an appeal being brought here to the Judicial Committee of the Privy Council. There was delivered a judgment which I hope without impertinence I can describe as not very illuminating. It did not clarify the law as laid down in Scott v. Scott. On the contrary, it obfuscated it. It underlines one of the good reasons for this Bill: the necessity to clarify the law.
An important reason why it is desirable to clarify the law which has not been mentioned is that in cases involving infants—and those cases are the most 1069 important ones touched by the Bill—which have been tried in a court of first instance in private the possibility that if an appeal is brought to the Court of Appeal the Court of Appeal may have to hear that case in public is a very serious deterrent against a possibly very necessary and legitimate appeal.
There is one well-documented case in which it is perfectly clear that a person vitally affected by a decision of a judge of first instance was in fact deterred from bringing her case before the Court of Appeal by that very consideration; and I know of other cases in my own practice in which that is a matter which has weighed very heavily on litigants. So that clarifying the position, and making it clear that the Court of Appeal can—"can" is the operative word—decide to hear such a case in private will be a very great benefit to those concerned in that very delicate type of case.
I do not want to say more about the Bill, because I find myself entirely in agreement with what has been said by my noble and learned friends Lord Morris of Borth-y-Gest and Lord Hodson. But I want to take up one further point, since we have this opportunity. As my noble and learned friend Lord Denning pointed out, the effect of this Bill is to gear the jurisdiction and powers of the Court of Appeal to those of a court of first instance. It is only where the court trying the case has power to hear in private or in camera that this new facultative power is conferred upon the Court of Appeal. As was pointed out, of course that results in certain anomalies, because there are anomalies in the cases in which courts of first instance in one Division or in another jurisdiction can hear in camera, in chambers and so on, and those anomalies are not touched at all by this Bill. They accept the position as it is in courts of first instance, and carry those anomalies upwards into the Court of Appeal.
That led me to note with interest paragraph 18 of the Law Commission's Report on page 11, where they said that they were concerned to deal with two particular anomalies and had had stressed to them the desirability of a more general review, but said that that would be a lengthy operation and might raise controversial issues. All I want to say is 1070 that I very much hope that that more general review will be carried out, nonetheless—in fact, rather more, because it raises controversial issues. I think the only issues worth legislating about are controversial issues, and when I am told that something is non-controversial I begin to suspect that it is useless or superfluous. Therefore, I should like the controversial issues to be gone into and those should include, I most fervently believe, the question of whether the existing law as to the reporting of divorce proceedings is not really a shame on our judicial system. I do not see how we can claim to be a civilised county and a humane country, so long as we allow as we do by Statute, by the Act of 1926, the reporting of divorce cases with the names and addresses and occupations of the persons concerned. Admittedly, the reports are confined to what appears in the judgment of the court, and admittedly judges try so far as possible to prevent unnecessary pain to those concerned. But the judges have to give judgment relating to the facts. They sometimes cannot help referring to very painful and intimate details. If they do so, those cases get into the Press and are reported with infinitely painful consequences to the persons concerned.
There are two cases to which one can refer quite easily. There was one in The Times newspaper last week—and let it be emphasised that we are speaking not only of the Sunday sensational Press; we are speaking of respectable journals—when a divorce case was reported with the names and addresses of the persons concerned. Certainly the case was one which merited reporting. It was a case of some interest about constructive desertion, cruelty and so on. But it was necessary for the judge, I am sure, to go into some very painful sexual details about what had happened, aril that appeared in the report coupled, I repeat, with the names and addresses of those people.
There was a still worse case about a year ago, also reported in The Times, where sexual charges of unnatural practices were made by one spouse against the other. They were found not to be justified but, nevertheless, they were reported in full in The Times newspaper. The consequence of this—and I have verified it with the judge who tried the 1071 case at the time—was that the woman concerned had to sell her house, change her name and go to live somewhere else, because after those details had been published she could not live in the neighbourhood where she was. I was very glad to hear the noble Lord, Lord Leatherland, refer to that sort of case and to accept, as I think everybody would accept, that there is no public interest whatever in allowing that sort of detail to be published, as the present Statute explicitly allows.
Therefore, I very much hope that under this general review the Law Commission would ask the necessary questions, the answers to which we require to know before we accept the present state of the law. What right has a man to know what his neighbour is doing? Is there a public interest that he should? Is it right that persons should be able to inquire into these sort of details? What is the compensatory public interest which requires that they should be published? Of course, one accepts it as quite right—and again the noble Lord, Lord Leatherland, made this point—that the public should be kept up to date with movements in public morality and with what judges are saying about people's conduct, and the kind of conduct which has been brought before the court. That is quite right; but is it necessary that the public should be kept apprised of these matters in conjunction with the details as to the persons concerned? Or, if it is so necessary, is not the price in human suffering which has to be paid by the publication of the names and addresses of the persons concerned so high as to outweigh whatever public interest there is?
My Lords, there is here a question for inquiry. I do not feel that our law is at all sound or humane in comparison with that of European countries or of almost any other country of which one can think; and in that respect at least, as well as in relation to the anomalies at present afflicting the law, I would venture to hope that the Law Commission will carry on their work. But having said that, I welcome this as an admittedly modest but useful stage in the improvement of the law, and I shall certainly give my support to the Bill.
§ LORD ARWYN
Before the noble and learned Lord sits down, may I ask him whether he is satisfied with the disciplines of the Press Council?
§ LORD WILBERFORCE
My Lords, that raises rather a large question. I was not wishing in any way to cast any aspersions on journalists. I accept that journalists are in general very responsible: I accept that judges are tactful. But there are cases, as one can see by results, in which these matters get into the Press, and if a complaint is made to the Press Council about a particular report in relation to divorce proceedings the answer is only too ready to hand: "Here is an Act of Parliament, the Act of 1926, which says that these matters can be published." That is the present policy of Parliament, and it is to that which I am objecting. Therefore, I do not feel that the Press Council really enter into this matter at all.
§ 9.17 p.m.
My Lords, I may be very ill advised to do so, but before the noble and learned Lord on the Woolsack answers perhaps I may speak for one moment as I think the only person who is not a qualified lawyer, to give my impression. As I see it, the main issue here is how far we can trust the discretion and reliability of the Press and how far we can trust the discretion and reliability of Judges not to suppress things. The noble and learned Viscount, Lord Dilhorne, put it in the form of a very clear question. He agreed, as the noble and learned Lord, Lord Hodson, has said, that he has never had any difficulty with the Press, and we all hope that that will be so in the future. But I would submit that there is a difference between the two, in that the purpose of the Press is to give news and the purpose of the Judges is to give justice; and both may be very imperfect or very perfect in doing what they are doing. But on the principle that "Dog bites man" is not news and that "Man bites dog" is, I think one would find that a heading which said, "Judge commits journalist to 50 years" would not be such staggering news as "Journalist commits judge to 50 years".
My feeling is that on a matter where the Press may be tempted to raise as news things which are not important—and 1073 several examples have been given of where they have been so tempted—there is a prima fade case for saying it should be heard in camera, which, as the noble and learned Lord, Lord Morris of Borthy-Gest, has said, would prevent that. But I shall be very interested to hear at Committee stage what Amendment is introduced—for it may well be worth introducing.
§ 9.20 p.m.
§ THE LORD CHANCELLOR
My Lords, the Government support this Bill and hope that your Lordships will give it a Second Reading. That is really all that I had intended to say but for some observations made about the Law Commission by the noble and learned Lord, Lord Denning, about which I must say something. This Bill is not at all the original thought of the Law Commission. It comes from the Judges, first, because a married woman who had gone off with another man and had had two children by him was divorced by her husband and then married the marl. She then wanted a declaration of legitimacy that the children were their children, as in fact they were. She thought that if she was run over by a bus and had left the matter undone then the children would not be able to get such a declaration themselves since the evidence might not be there.
Presumably at some expense to her, she took proceedings for a declaration of the children's legitimacy. The judge was asked to hear the evidence in private because there was a fact about the case which might well result in the case being reported in the papers or generally spread abroad. He ruled that he had no power to do so. As your Lordships have heard from the noble and learned Lords who have spoken, the leading authority, Scott v. Scott, is one of the very difficult cases, partly because the four or five noble and learned Lords who gave judgment all said something different; and everybody knows that it is a difficult case. But he ruled that he had no power to do this. She was told by her counsel that the judge can ask the court reporters not to report the case and that the court reporters are reliable and that it can absolutely he relied upon that if the judge asks them not to report the case they will not.
But, of course, she had to be told that the case was going to be heard in public; 1074 and it is no practical answer to say that nobody will ever know about this because we have asked the court reporters not to report it and they will not. It goes on being heard in public. There are the public; there is the woman in the second row making notes. She is quite entitled to take them; she is quite entitled to go back and to give them to her local paper who will spread it around.
In the interests of the children, the mother refused to go on. The judge felt that justice had not been done The object of the law is to do justice. He felt that he had been precluded by the law from doing justice and he, very properly, reported this to the Law Commission. They, equally properly, asked all the judges what they thought about it; and first they asked the President and the 17 other judges of the Probate, Divorce and Admiralty Division who deal with children. They said that they agreed that a change in the law on this point was desirable; but that they would not consider it any more urgent than a change in the law which would confer on the Court of Appeal the power, which it has in recent years held itself precluded under existing law from exercising, of sitting in camera in custody and wardship cases.
Here, again, there is some difference of view between judges as to what the powers of the Court of Appeal are and what the practice has been. I should have thought, in agreement with n any of those who have spoken, that, the law being in doubt, it is right that it should be clarified. As regards this Bill, it is supported, I know, by all the judges of the Probate, Divorce and Admiralty Division, all the judges of the Chancery Division, who deal mainly with children and all the noble and learned Lords of Appeal in Ordinary. There is some division of opinion in the Court of Appeal. It is not unnatural that judges should not be absolutely unanimous.
My Lords, the other class of cases referred to in the Law Commission Report is the blackmail cases referred to in the Evershed Committee Report. Blackmail, we all agree, is a terrible thing. The essence of it is that you demand money which is not due to you and you say, "If you do not pay me, I will tell the world of some unpleasant facts I know about you." When anybody issues a writ claiming money there is implied there—is there 1075 not?—a statement that when the matter comes to court whatever the facts are they will be made public and put in the newspapers. That is why all lawyers know that there are such things as blackmailing cases, and one has to be on the watch for them. Breach-of-promise cases are particularly apt to be that. One has known of cases where the girl knew all the time that the man was a married man and that there was never any question of a marriage between them. She issues a writ for damages for breach of promise, and what is implied is obvious. The way the law deals with that is this. The plaintiff's lawyers may believe in his or her case, not realising that it is a blackmailing case, and the defendant does not realise that. Then you go to a Master which being an interlocutary proceeding, is heard in private, to strike it out.
My Lords, I remember a case I had involving a well-known Member of Parliament who was at loggerheads with his wife, and his wife issued a writ claiming the family estate which had been in his family for generations, and which was, of course, worth a great deal of money. I had no difficulty in advising him that on the face of it, as she pleaded, she had a very thin case indeed. It sounded a hopeless one, and I did not think that he need worry about it. Then, in the middle of her statement of claim, she made allegations against him of sexual malpractices, which really had nothing to do with it and did not support the claim, even if they were true. So I went to a Master to have these irrelevant and scandalous allegations struck out. And he agreed that they should be. The wife then appealed to the Judge in Chambers who also struck them out. She then asked the Judge in Chambers for leave to appeal to the Court of Appeal. He refused.
But there is also a right to appeal to the Court of Appeal from a Judge in Chambers by leave of the Court of Appeal itself. She then said, "Well, I am going to the Court of Appeal to ask for leave to appeal", and of course I had to advise my client that this application would be in public and that there was no way of stopping it. He said, "Well, I cannot go down fortnightly to my political surgery. I have been a Member of Parliament for 22 years and 1076 with all this in the papers, I could not possibly face it, and I should have to resign". So he gave her the family estate. This is not right my Lords, is it? There are some cases in which I suggest it is obvious that justice simply cannot be done unless the court does sit in private.
In reply to my noble friend, Lord Leatherland, I would point out, as the noble and learned Lord, Lord Morris of Borth-y-Gest has done, that there is nothing in this Bill to make any court at any time sit in private. It is a mere enabling power, and as it primarily relates to the Court of Appeal, and as the noble and learned Lord, Lord Denning, is in charge of the Court of Appeal, the House may well feel that the actual occasions on which advantage is taken of this to sit in private will be extremely few.
My Lords, may I just add this? We all have the highest regard for the High Court journalists and their Association. Everybody has paid tribute to how respectable and reliable they are. But I would just point out that they do not represent the Press. They are the Court reporters. Of course it occurred to the Law Commission that this was of interest to the Press, and the body which represents the Press is the Press Council, which represents owners, editors, reporters, journalists and so on. So naturally, they asked Lord Devlin, and he said, "Well, I see no objection to this. I have a meeting of the General Purposes Committee of the Press Council, but I think that this is too important for that: I think it ought to go before a full meeting of the Press Council." It went before a full meeting of the Press Council, and they said they had no objection.
I mention that only because I think it right that it should be known that the Law Commission invited opinion from the body which exists to represent the Press, their views and their interests. I hope that your Lordships will give this Bill a Second Reading. I do not propose to say anything about the proposed Amendment that has been mentioned. That is primarily a matter for the noble Viscount, Lord Colville of Culross.
§ 9.30 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I will not detain the House for more than a moment, but there are 1077 one or two things I should like to say in reply. First, I think it was the other day that the noble and learned Lord, Lord Morris of Borth-y-Gest, commented that a particular legal discussion was not at any rate characterised by barren uniformity from the Judicial Benches. This appears to be another such occasion. I hope, at any rate, that the noble Lord, Lord Leatherland, will not go home tonight thinking that Parliament has not digested the principle behind this Bill.
I believe that this has been a most useful debate, and, if I may say so. I think that the most striking reason why this Bill should be passed is that the noble and learned Lord the Master of the Rolls—and he was supported by the noble Lord, Lord Leatherland—said that the Court of Appeal already had powers. Other noble Lords were not sure. The noble and learned Lord, Lord Hodson, said that when he was sitting in the Court of Appeal he was not sure that he had powers. If there is any doubt about it, I should think it essential that this matter should be made clear beyond any further question. That is what the Bill does.
The exceptions are not being extended. The case of B. v. The Attorney General is dealt with in Clause 2, but not by extending the exceptions to that ruling. If nobody knows what those exceptions are, nobody can go to the Court of Appeal or to any other appellate court with any confidence whatsoever that they will be on firm ground in asking for a hearing in private. Under this Bill, not only will they be able to do this in any appellate court by virtue of the exceptions in Scott v. Scott, whatever they may be, which stay just as they are, but there will also be the provision in law whereby people may rely on the fact that the court below could have sat in private, though it may or may not have done so.
Whether they are successful or not is entirely a matter for the court. As the 1078 noble and learned Lord the Lord Chancellor has said, at the present moment this is in the charge of the noble and learned Lord, Lord Denning, and frankly I should be surprised if the two sections of the Court of Appeal got out of step while the noble and learned Lord is there to see that they do not. I have a strong suspicion that the Court of Appeal will be in complete control of this and there will be no abuse at all. But the Bill will make the point clear.
Finally, I would say that I purposely refrained in my opening speed from saying anything about the High Court journalists. The fact that all the tributes to them have come from other noble and learned Lords from long experience shows how fully justified those tributes are, and l pay my own tribute, though not from such long experience. I hope that the noble Lord, Lord Leatherland, will not think that anything I have said indicates any lack of confidence in their good sense, their courtesy and tie care with which they perform their job. I hope that the House will later on give a Committee a chance of considering some of the Amendments in the various forms in which they have been put forward by giving the Bill a Second Reading to-night.
§ On Question, Bill read 2 a, and committed to a Committee of the Whole House.