§ 3.27 p.m.
§ Report of amendments received.
§ Clause 2 [Limitation of scope of strict liability]:
Lord Wigoder moved Amendment No. 1:
Page 1, line 16, after ("a") insert ("substantial").
§ The noble Lord said: My Lords, this amendment was originally the second amendment in the somewhat lengthy Committee stage proceedings on this particular Bill, in the course of which the noble and learned Lord, Lord Elwyn-Jones, and I both sought to argue that where the press and the media were to be liable under the strict liability rule, the proper wording should be that they should only be liable where their publication created a substantial risk that the course of justice would be seriously impeded or prejudiced. We did that because we felt that the inclusion of the word, "substantial", would materially assist the media and would diminish the restricting effect which the liability rule is bound to have upon the media. It was also argued—I can now be very brief about it, I think—that inserting the word, "substantial", would be very much in line with the Phillimore Committee's report at paragraph 112 and very much consonant with the decision of the European Court in the Sunday Times thalidomide case, and indeed with Article 10 of the European Convention.
§ At that stage in Committee the arguments did not appeal particularly to the noble and learned Lord on the Woolsack and the amendment was in due course withdrawn. As the Committee stage went on it became apparent that the amendment had rather more significance in various other aspects of this Bill than had then been realised. For example, it became apparent that if the strict liability rule was going to be extended, as the Government proposed, not merely to 143 courts but to thousands of different tribunals, the question of whether there was a substantial risk was something of great importance to the press if they commented on the proceedings. It became important, because we discussed whether the Attorney General's consent was necessary or whether any aggrieved individual could bring proceedings, and if, as the Bill now stands, it is open to any individual to bring those proceedings, again to make the risk a substantial risk would be a real protection to the media.
§ There was also the situation in which the press might know that proceedings were active within the terms of the schedule and yet in fact not likely to take place in the near future, for one reason or another, because a warrant had not been executed, and again if they wished to comment the issue would be whether there was a "risk" or a "substantial risk". It appeared to those of us who were concerned for the situation of the media in that position that the word "substantial" should be included.
§ I need not pursue the matter any further, because I am happy to be able to say that the noble and learned Lord the Lord Chancellor has written to me to indicate that upon reflection he is prepared to accept the amendment which is being proposed. If I may say so, I regard this as a substantial and generous concession by the noble and learned Lord, and one which I am sure will be widely appreciated both inside and outside your Lordships' House. In these circumstances, I hope this amendment will now find favour with your Lordships. I beg to move.
§ Lord Elwyn-Jones
My Lords, in view of what the noble Lord, Lord Wigoder, said at the end of his speech, I do not wish to add anything to this, save to thank the noble and learned Lord for having given further thought to this. He gave the impression previously that he was, if it is not an indelicate expression, under a bit of pressure from the draftsmen, but he has decided to listen to what was said in this House and to apply his own judgment to the matter. I think this will give reassurance and indicate the intention that contempt of court should really only apply to serious cases giving a risk of serious prejudice. Therefore, while thanking the noble and learned Lord I hope he will permit me to say that I think he has taken a wise course.
§ Lord Ardwick
My Lords, may I say that I am sure the media will be most appreciative of the course the noble and learned Lord has now taken.
§ The Lord Chancellor
My Lords, as has been indicated, it is my intention to accept this amendment. I do not know if the noble and learned Lord or others who participated in the Committee discussion remember that I rather took the view that this was a sort of mediaeval monk's question as to how many angels stood on the point of a needle. I am afraid I still think that, but if it makes no difference, and if persons of such eminence support it and want it, why not give in?—and so I am doing so.
§ Lord Wigoder
My Lords, I am glad to include the noble and learned Lord the Lord Chancellor among the angels.
§ On Question, amendment agreed to.
§ Clause 4 [Contemporary reports of proceedings]:
§ 3.34 p.m.
Lord Gifford moved Amendment No. 2:
Page 2, line 25, leave out from first ("proceedings") to ("order") in line 26.
§ The noble Lord said: My Lords, this is an amendment which I put down at Committee stage but was unable to be here to move. I am rather sorry that I was not here, because I feel that the House has not been able to come to terms yet with the real dangers which the power introduced in Clause 4(2) of the Bill presents. Clause 4(2) gives to the court the power, in the circumstances which are described, to order that the publication of a report of the proceedings or part of the proceedings should be postponed for such period as it thinks necessary. I think we should examine first of all the breadth of that power. It applies to all legal proceedings, whether they are in magistrates' courts, tribunals, or courts high or low. It is exercisable where there is any risk of any prejudice. There are not the qualifying words "serious" or "substantial", which are now introduced into Clause 2(2).
§ The power to order postponement of reporting applies not only to proceedings over which the court is presiding, which it is likely to know all about, but also where the risk of prejudice arises from proceedings which are pending or imminent. The court, in order to assess that risk, is going to have to rely on information, probably put forward to it by a party who wants the postponement of reporting, information which it will have no possibility of verifying. The length of time over which the order of postponement operates is at the complete discretion of the court, and in a case where there may be a series of linked cases it may stretch over many, many months. Finally, there is no possibility of the public interest being represented when this determination is made. The representatives of the media would not, I think, have a right to object in court, nor do they have any right of appeal or review built into the operation of this new power.
§ We know that it is desirable, and the press certainly consider it is desirable, for reports generally to be linked in time to the events which are being reported. Something which has to be reported six months after it has happened loses immediacy. Therefore, an order to postpone reporting is likely in many cases to be in effect an order which suppresses reporting, because in the event the case may never be reported at all, or reported too late for anybody to assess its implications.
§ That being the breadth of this power, one looks to Phillimore to see what justification for it there is. What has to be appreciated is that, as I interpret the Phillimore Report, this Clause 4(2) is not a Phillimore recommendation. The topic is dealt with very fully in paragraphs of the report, beginning with paragraph 134. In paragraphs 134 and 135 the present law is analysed, and the committee conclude that it is important that the position should be clarified.145
In paragraph 136 the case for restricting reporting of cases where there is a risk of prejudice is argued. But then in paragraphs 137, 138 and 139 the contrary case is argued and a number of powerful points are made. One of the most powerful is in paragraph 138. I quote:
A premature prohibition on publication on the assumed ground of future prejudice could be wholly misguided and even misleading".
Then at the end of paragraph 139 the committee come to their conclusion:
But the greater public interest in freedom of press coverage of a public trial, as opposed to committal proceedings, in our view tilts the balance of public advantage the other way when the accused comes to be tried.
We think that the inherent risk in the Poulson situation of successive trials involving some of the same persons, which is fortunately rare, must be accepted".
Finally, at paragraph 140 they say, when talking of the Poulson case:
This reinforces our view that the fair and accurate reporting of proceedings in open court should in no circumstances be liable to be treated as a contempt".
It is true that there is then a recommendation which has been embodied in Clause 4(1) of the Bill. I think it ought to be said also that on the following page there is a footnote which deals with the issue of naming names, which arose in the Socialist Worker case: The footnote says:
We incline to the view that the important question of what the press may publish concerning proceedings in open court should no longer be left to judicial requests (which may be disregarded) nor to judicial directions (which, if given, may have doubtful legal authority) but that legislation, analogous to that referred to in paragraph 136, should provide for these specific circumstances in which a court shall be empowered to prohibit, in the public interest, the publication of names or of other matters arising at a trial".
As I understand it, that much more restricted recommendation has been brought into the Bill in Clause 10 which deals particularly with directions about the non-publication of names or other matters.
§ The far wider power which is put into Clause 4(2) has not been sanctioned by the Phillimore Committee and I suggest that it goes much further than is necessary or desirable. There are obvious dangers. In the civil field there are often a series of linked cases. For example, perhaps a major manufacturer or a drug company is facing a series of cases brought against it in relation to a disputed drug or in relation to the same accident or an alleged defect of design or something of that kind. No doubt it would apply at the end of the first case—win or lose—for an order that reports should not be published until all the other cases are disposed of. A judge might well find the evidence powerful. He might well find that there is a risk of prejudice. He may well give the order and matters which ought to be brought out into the open will not be brought out.
§ In the criminal field there is a difficult question which arises when one accused person is likely to be on trial for a number of different indictments. I would take my stand with the Phillimore Committee, who considered this most carefully and drew up a number of disadvantages of allowing a prohibition of reporting. For example, they say at paragraph 139 that such a prohibition in order to insulate a defendant from any 146 risk of prejudice would have to extend over the whole of the trial, so that the opening of the prosecution and the evidence given, possibly in a very serious case arousing much public interest, would be suppressed because there was a risk of prejudice in subsequent pending proceedings.
§ My instinct was to delete the whole of Clause 4(2), but my amendment is more limited in an attempt to find a reasonable way through. There is, I think, a case for a power which covers only the proceedings which the court is trying. One obvious example is when there is a trial within a trial and possibly, with the new law in Clause 4(1), a reporter would not be guilty of contempt if he reported a trial within a trial. Phillimore thought that that would be covered by the use of the words "fair and accurate", but I am not so sure. Given that a power to order the postponement of the report of those proceedings until they are over might be justifiable, the real dangers arise when the order covers the alleged risk to the administration of justice in any other proceedings, pending or imminent. There the judge, relying on information presented to him partially, may be disposed to make an order and cause much too great a tilting of the balance against the open reporting of what goes on in court. The power should be limited, and I urge this amendment upon the House. I beg to move.
§ The Lord Chancellor
My Lords, I am afraid that, although the noble Lord, Lord Gifford, was unable to be present last time, a number of those now present, were present on both occasions, and I must apologise to them if and in so far as I repeat to some extent what I said in connection with other matters, although not this particular matter, last time.
I do not recommend the House to accept this amendment. The noble Lord, Lord Gifford, is, I think, wrong as regards the first point that he made and, if I may say so, I think that he will see that he is wrong. I think that the first point he made was that the defence of a fair and accurate report was not protected by the word "substantial". As the noble Lord, Lord Wigoder, said when moving the amendment from which we have just passed it is, in fact, so protected, because it is only in relation to the strict liability rule that Clause 4 affords a special defence. And as we have just defined "liability" under the strict liability rule, and defined it so that it contains "substantial risk", and "serious prejudice" to the administration of justice, I should have thought that the protection was in fact there.
Exactly what Phillimore reported can, as the noble Lord rightly divined, be read somewhere around paragraphs 133 to 141 of the report. After arguing the pros and cons they came to the following conclusion at paragraph 141, where they say:We therefore recommend that it should be provided by statute that it is a defence to contempt proceedings to show that the publication was a fair and accurate report of legal proceedings in open court published contemporaneously and in good faith".That is what we think we have done. It is true that they canvassed advantages and disadvantages as regards the right of the court to prohibit reports of proceedings for a time and they are, of course, precisely the pros and cons which would enter into the mind of a court when it came to consider whether such a prohibition should be made.
147 Of course, it would be open to any of the parties to the proceedings to argue for or against it. They are obviously entitled to take into account, for or against, precisely the arguments which were canvassed in the Phillimore Report. But when the noble Lord, Lord Gifford, says, as he did in argument, that what we are doing is contrary to the Phillimore Report, I frankly do not think that he is right. The Phillimore Report made a recommendation for a change in the existing law, and we have made that change. They canvassed the arguments for and against further change and they did not make any recommendation. It may be that the noble Lord, Lord Gifford, is entitled to draw his inference, but I think that I am entitled to suggest that he has drawn the wrong one.
The reason that this was so, and why I think that it is abundantly clear that it was so, is—as I ventured to point out to the House when it was in Committee—that the right which is enshrined in subsection (2) is in fact a statement of an existing right which has existed for more than 160 years, if my mathematics are right, because it was first introduced at the time of the Cato Street conspiracy, which, unless my memory is at fault, was in 1821. I do not think that it has ever given rise to any kind of complaint during the whole of that time.
But what has happened is that in two, three or four cases—those of the Kray brothers, Poulson and the Cato Street conspiracy itself (which for some reason is called R v. Clement)—certain things have happened. One is that the same defendant can be involved in a series of indictments for different offences. It could prejudice his trial if every juror who appeared on the second indictment knew, first, that the defendant had been convicted on the first indictment and, secondly, what convictions had been read out against him as regards his previous record when he was convicted and sentenced.
A more common case is when there is one set of proceedings in which a defendant is accused alone and a second set of proceedings in which he is accused with somebody else. The case of Poulson naturally springs to mind because one has lived through that traumatic experience in previous but fairly recent years. It was a case in which Poulson was widely named and the proceedings were widely discussed, but certain parts of the proceedings would certainly have prejudiced the trial of a second indictment in which Poulson was indicted jointly with a man called Pottinger, or some such name. At any rate, it would have prejudiced the second trial.
One, of course, wants to protect a fair and accurate report and we have done so in subsection (1), but we also want to protect the right of a man to a fair trial. This is set out in Article 6 of the European Convention on Human Rights. If we do not have subsection (2), I think that we should be in breach of Article 6 of the convention, we should be breaking it all over again, and have reports in the Sunday Times the other way round. I think that this is a bad amendment and I do not ask the House to accept it.
§ Lord Mishcon
My Lords, one always listens with the greatest of respect to the words that fall from the noble and learned Lord the Lord Chancellor. If I 148 may say so, that applies especially when he talks upon matters appertaining to the law. I must remind your Lordships, if I may be permitted to do so, that it is not very material for us, or even very relevant, that we should have a recital of what may or may not have been the law in regard to contempt and in regard to the publication of proceedings over the last couple of hundred years, by virtue of the fact that the Phillimore Committee was set up to carry out a very important task and did it so well—namely, to try to collate recommendations in order to deal with a sea of uncertainty which was the law of contempt at the time it sat upon and dealt with its deliberations.
The important point that I believe it is necessary to emphasise is as follows. The Bill which we are now considering deals with the question of strict liability in regard to the report of proceedings, both criminal and civil. I think that it is a fundamental point that here one is dealing with a very valuable principle: that the public shall be informed of what is transpiring in our courts and the media shall not be muzzled, improperly and unnecessarily, in regard to their duty in that respect.
Therefore, there is a strict materiality, when we look at this clause, in regard to the freedom of the press and the media generally to make a report, provided that they do it in the language of Clause 4:published contemporaneously and in good faith".There is an exception to that which is contained in subsection (2), because a power is given to the court in certain circumstances to tell the media that for a certain period of time either the whole or part of such proceedings shall not be published. One imagines that, first, that is absolutely right, when one knows that the court is seized of the whole of the circumstances relating to the question whether or not it is just, in the interests of justice, or in the interests of the accused to postpone the publication of those proceedings.
In his amendment my noble friend Lord Gifford says that he admits that; but what he does not admit is the right of the court to look beyond those proceedings and to listen to the application of an advocate who may be very keen—for the sake of his client's skin, or for the sake of his client's future commercial activities for the next few months, for all one knows—that there should not be publication of those proceedings. The advocate then gets up and addresses the court and talks—it could he very vaguely—about proceedings that might be imminent; rather more vaguely one thinks than about proceedings that are pending. It seems to some of us that it is wrong for such a power to be given to the court in regard to proceedings other than those upon which the court is deliberating; that it is wrong for that court to be given the power to postpone the report and, therefore, to bring within its ambit the strict liability rules that will muzzle the media.
It is a simple point and a question of judgment. I say this with great deference, as the noble and learned Lord the Lord Chancellor knows. It does not help to say that this is or is not consistent with Phillimore. There is one simple fact: this is not a recommendation of Phillimore in these words, and I am sure that nothing that the noble and learned Lord who sits on the Woolsack would say would mislead the House into thinking 149 that this is what Phillimore recommended. One can argue that Phillimore did not necessarily argue against it, but one certainly cannot say that it recommended it.
It is a question of balance, not just for the lawyers, but for people of your Lordships' inordinate common sense and sense of justice; and one always praises your Lordships when one is trying to get your support in regard to an amendment. It is in that spirit that I would support the amendment, which I thought was so well moved by my noble friend Lord Gifford.
§ Lord Gifford
My Lords, may I say one or two things in reply? First, I do not think that the Lord Chancellor's answer took account of the concern which we feel about the breadth of this power. He thought that I had taken a bad point about the absence of the words, "substantial and serious". But look at the wording of Clause 4(2):In any such proceedings"—that is, any legal proceedings held in public—the court may, where it appears to be necessary for avoiding the risk of prejudice"—not a substantial risk; not a risk of serious prejudice—to the administration of justice in those proceedings, or in any other proceedings …".So the standard which the court has to apply is a low one. It need not be satisfied of very much before obviously the power needs to be lawfully imposed.
The second point—and I am not going to labour it, because we cannot, of course, treat Phillimore as some kind of legal text, although in the course of this Bill we have sometimes tended to do so—is that I think that if noble Lords read those paragraphs which I have mentioned, particularly paragraph 140, it is evident that the defence which Phillimore was recommending in paragraph 141 was not intended to be subject to the qualification which is enshrined in this second subsection.
Thirdly, what is perhaps most dangerous of all is that this power is given to courts, all of whom are fallible, all of whom may act on inadequate information, without there being any recourse on appeal. I think I am right in saying that a newspaper which felt that the judge's power had been wrongly exercised could do nothing. It could possibly apply to the High Court in certain cases for an order of judicial review, but on very limited grounds, and then not, I think, when the High Court itself had exercised the power. Therefore, it is an untrammelled power. At some time I would hope that those points would be looked at again, and that some kind of modification of this clause before this Bill passes through, at any rate, all its stages in Parliament should be envisaged, whether according to the limitation I have put forward or according to some other criterion.
§ On Question, amendment negatived.
§ Clause 5 [Discussion of public affairs]:150
§ 4.3 p.m.
Lord Elwyn-Jones moved Amendment No. 3:
Page 3, line 1, leave out ("in good faith").
§ The noble and learned Lord said: My Lords, we discussed this amendment in Committee when it was moved by my noble friend Lord Mishcon. Your Lordships will see that it relates to the important provision in Clause 5 of the Bill relating to discussion of public affairs, and it is a provision which is meant, at any rate in part, to deal with the decision of the Court of Human Rights on the Sunday Times case.
The clause, as it stands, reads:
A publication made as or as part of a discussion in good faith"—
those are the words I seek to leave out—
of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion".
So we are here dealing with discussion of public affairs in respect of a matter appropriate for public discussion.
§ As my noble friend Lord Gifford said in Committee, it is everyone's right to take part in the discussion of public affairs. My submission is that if the words, "in good faith", were left out we should be left with a proper, objective test in relation to a discussion of public affairs, whereas the introduction of the phrase "in good faith" introduces a subjective test which, it seems to me, could restrict very seriously the value of this new provision in regard to discussion of public affairs. It would add greatly to the difficulty of introducing this beneficial change in our law, and accordingly I hope that your Lordships will approve of the amendment. I beg to move.
§ Lord Mishcon
My Lords, my noble and learned friend was gracious enough to remind the House that this was an amendment that I moved on Committee. The noble and learned Lord who sits on the Woolsack was equally gracious at the end of the discussion to utter these words at column 194 on the first day of the Committee proceedings of this House on 15th January:I do not want to make this a last-ditch tight and I will certainly accede to the request of the noble Lord, Lord Mishcon, to discuss the matter again".I wish I could end on that hopeful note, but in sheer fairness I must quote the second sentence.On the other hand, I do not want to pretend to be wholly impartial about this; I shall not say I have a closed mind, but I have a mind which at any rate is a long way towards being made up.Anyone who endeavours to open, even by a small aperture, the mind of the noble and learned Lord who sits on the woolsack when once he has decided that it is in the closing process has indeed an extremely difficult task, but it is one that I hope shortly at least to attempt.
This is a simple issue. It is a question of whether, in regard to strict liability, a discussion which takes place—an article that is written; a publication that occurs—can walk within the defence of really there being no question of any substantial injustice. One would have thought that one could have ended the 151 proposition there, but to put the onus upon those who are endeavouring to avoid strict liability by having to say, and indeed prove, that what they did was in good faith is capable of a very subjective interpretation, as my noble and learned friend Lord Elwyn-Jones indicated. It is a serious onus. Are you doing something in good faith when you feel rather spiteful about the existing Government? Are you doing something in good faith when you attack existing establishment institutions? That may be the matter of very difficult decision by any tribunal.
These are not the words which were used in the Phillimore Report. As the noble and learned Lord who sits on the Woolsack reminded us last time, they did not use those words; they used the word, "legitimate". That is all right, because legitimate—that which may be permitted in law is, I think, a fair interpretation of the word, "legitimate "—is something that any tribunal worthy of the name is capable of being guided upon and deciding objectively. It is in those circumstances that I try to put a verbal wedge into the Lord Chancellor's mind, hoping that it will be sufficiently open to receive my humble offering, which is the amendment moved on this occasion by my noble and learned friend.
§ The Lord Advocate (Lord Mackay of Clashfern)
My Lords, as has been said, the amendment was discussed in Committee and my noble and learned friend undertook to consider it in the words to which the noble Lord, Lord Mishcon, referred. Our view is that the word "legitimate" was intended to convey in the Phillimore recommendation an important idea, and that in the context of this legislation that idea is accurately reflected in the phrase "in good faith" which we have chosen.
As has been pointed out, leaving that phrase in would have the effect of removing the defence from a person who, although he does not intend to cause prejudice, has a malicious or oblique motive in publishing the material which causes the prejudice, and we consider that the clause in its present form would have the desirable result that it would prevent an accused person or litigant from being seriously prejudiced by a discussion which was not genuine but was orchestrated for the purpose of causing embarrassment to the litigant or person accused. The phrase appears in other areas of the law of contempt; for example, the law recognises that the conduct of judges and decisions of courts are matters of legitimate public concern and that bona fide criticism is permissible. Lord Atkin in a well-known passage pointed out:Whether the authority and position of an individual judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith in private or public, the public act done in the seat of justice".Accordingly, our view is that the clause is better with the phrase "in good faith" in than it would be by removing it, and accordingly we must advise the House not to accept the amendment.
§ Lord Elwyn-Jones
My Lords, I am sorry that the indication from the Lord Advocate, if it is correct, is that the Lord Chancellor's mind has become clamlike and that there is no hope of opening it, and so the 152 expectation which we were encouraged to have, to some extent at any rate, has been defeated. I find the response of the noble and learned Lord the Lord Advocate extremely disappointing. It is very important that there should be freedom and a free discussion of public affairs, and I submit that the restriction in this way will limit the discussion of public affairs and achieve the very kind of difficulty that occurred in the Sunday Times case. I therefore feel that we should press the matter to a decision by the House.
§ 4.13 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 81; Not-Contents, 115.153
|Allen of Abbeydale, L.||Kinloss, Ly.|
|Amherst, E.||Kirkhill, L.|
|Ampthill, L.||Leatherland, L.|
|Ardwick, L.||Lee of Newton, L.|
|Aylestone, L.||Leonard, L.|
|Banks, L.||Llewelyn-Davies of Hastoe, B. [Teller.]|
|Beaumont of Whitley, L.|
|Beswick, L.||McNair, L.|
|Birk, B.||Maelor, L.|
|Blease, L.||Melchett, L.|
|Blyton, L.||Mersey, V.|
|Boston of Faversham, L.||Mishcon, L.|
|Briginshaw, L.||Oram, L.|
|Brockway, L.||Paget of Northampton, L.|
|Brooks of Tremorfa, L.||Pargiter, L.|
|Bruce of Donington, L.||Peart, L.|
|Cledwyn of Penrhos, L.||Reilly, L.|
|Cooper of Stockton Heath, L.||Ross of Marnock, L.|
|David, B.||Seear, B.|
|Davies of Leek, L.||Sefton of Garston, L.|
|Donaldson of Kingsbridge, L.||Segal, L.|
|Donnet of Balgay, L.||Shinwell, L.|
|Elwyn-Jones, L.||Somers, L.|
|Fulton, L.||Stamp, L.|
|Gaitskell, B.||Stedman, B.|
|Gardiner, L.||Stone, L.|
|Garner, L.||Strabolgi, L.|
|Gifford, L.||Strauss, L.|
|Glenamara, L.||Tanlaw, L.|
|Gosford, E.||Taylor of Gryfe, L.|
|Greenwood of Rossendale, L.||Taylor of Mansfield, L.|
|Grey, E.||Underhill, L.|
|Hale, L.||Wallace of Coslany, L. [Teller.]|
|Hanworth, V.||Walston, L.|
|Hayter, L.||Wells-Pestell, L.|
|Henderson, L.||White, B.|
|Houghton of Sowerby, L.||Wigoder, L.|
|Hughes, L.||Wilson of Radcliffe, L.|
|Hunt, L.||Winstanley, L.|
|Jeger, B.||Wootton of Abinger, B.|
|Ailesbury, M.||Caccia, L.|
|Airey of Abingdon, B.||Cairns, E.|
|Alexander of Tunis, E.||Chelwood, L.|
|Allerton, L.||Cholmondeley, M.|
|Alport, L.||Clitheroe, L.|
|Auckland, L.||Clwyd, L.|
|Avon, E.||Cork and Orrery, L.|
|Balerno, L.||Cullen of Ashbourne, L.|
|Bathurst, E.||Daventry, V.|
|Bellwin, L.||De Freyne, L.|
|Belstead, L.||De L'Isle, V.|
|Berkeley, B.||Denham, L. [Teller.]|
|Bessborough, E.||Diplock, L.|
|Boyd-Carpenter, L.||Drumalbyn, L.|
|Brookes, L.||Ebbisham, L.|
|Effingham, E.||Malmesbury, E.|
|Ellenborough, L.||Mancroft, L.|
|Elliot of Harwood, B.||Mansfield, E.|
|Erne, E.||Margadale, L.|
|Evans of Hungershall, L.||Marley, L.|
|Exeter, M.||Matthews, L.|
|Faithfull, B.||Monckton of Brenchley, V.|
|Falkland, V.||Montgomery of Alamein, V.|
|Ferrier, L.||Morris, L.|
|Fortescue, E.||Mowbray and Stourton, L.|
|Fraser of Kilmorack, L.||Murton of Lindisfarne, L.|
|Freyberg, L.||Northchurch, B.|
|Gage, V.||Nugent of Guildford, L.|
|Gainford, L.||Onslow, E.|
|Gibson-Watt, L.||Orr-Ewing, L.|
|Gisborough, L.||Pender, L.|
|Glenkinglas, L.||Porrit, L.|
|Gormanston, V.||Ridley, V.|
|Gowrie, E.||Rochdale, V.|
|Gridley, L.||Roskill, L.|
|Grimston of Westbury, L.||St. Aldwyn, E.|
|Grimthorpe, L.||St. Davids, V.|
|Hailsham of Saint Marylebone, L.||Saint Oswald, L.|
|Sandys, L. [Teller.]|
|Henley, L.||Savile, L.|
|Hill of Luton, L.||Selkirk, E.|
|Hillingdon, L.||Sempill, Ly.|
|Hives, L.||Sharples, B.|
|Home of the Hirsel, L.||Skelmersdale, L.|
|Hornsby-Smith, B.||Spens, L.|
|Inglewood, L.||Stradbroke, E.|
|Kemsley, V.||Strathclyde, L.|
|Killearn, L.||Strathspey, L.|
|Kilmany, L.||Swansea, L.|
|Kinnaird, L.||Swinfen, L.|
|Lauderdale, E.||Teviot, L.|
|Lindsey and Abingdon, E.||Tweeddale, M.|
|Long, V.||Vickers, B.|
|Lovat, L.||Vivian, L.|
|Lyell, L.||Westbury, L.|
|McAlpine of Moffat, L.||Wise, L.|
|McFadzean, L.||Wolverton, L.|
|Mackay of Clashfern, L.||Wrenbury, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.22 p.m.
Lord Morris moved Amendment No. 4:
Before Clause 7, insert the following new clause:
§ ("Defence of confidentiality of source
§ . No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.").
§ The noble Lord said: My Lords, I feel sure that my noble and learned kinsman Lord Salmon would wish me to say at the outset that he most bitterly regrets his inability to be with your Lordships this afternoon. I would say further that his regret is nothing to mine, for I feel that there could be no better advocate than he for this important cause. However, as indeed I do, he must draw immense comfort from the fact that so great a lawyer as the noble and learned Lord, Lord Scarman, should be devilling.
§ First, may I deal with one rather technical, but nevertheless important, point which was raised at the Committee stage and met in the redrafting of the amendment at this stage of the Bill. In the course of the Committee stage my noble and learned friend the Lord Chancellor, if I may most respectfully say so, 154 yet again made a most valuable contribution in pointing out that the amendment as originally drafted suffered from a flaw. As I understand it, the noble and learned Lord argued, with telling effect, that particularly in cases of defamation it is both relevant and vital to the administration of justice that the source of information be disclosed; and more particularly in cases where fair comment is pleaded, the establishment of the presence or absence of malice is crucial. That point was made yet again most eloquently by the noble and learned Lord, Lord Denning, the Master of the Rolls, in the course of his Mulholland judgment, albeit indirectly. Bearing in mind that wise advice, your Lordships will see that the redrafting of the amendment meets squarely the point of the noble and learned Lord the Lord Chancellor, by including the phrase "in the interests of justice".
The substantial issue underlying the amendment is clear. It could never be more eloquently expressed than it was by the noble and learned Lord, Lord Denning, in the course of his judgment in the Granada case in 1980, when he said:
After studying the cases it seems to me that the courts are reaching towards this principle. The public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public, to collect the information and to try to tell the public of it. In support of this right of access the newspapers should not, in general, be compelled to disclose their sources of information, neither by means of discovery before trial nor by questions or cross-examination at the trial".
Furthermore, again in the Granada case, the noble and learned Lord, Lord Salmon, put it this way:
The freedom of the press depends upon this immunity. Were it to disappear, so would the sources from which its information is obtained, and the public would be deprived of much of the information to which the public of a free nation is entitled".
However, during the Committee stage of the Bill the noble and learned Lord, Lord Fraser of Tullybelton, in the course of his most valuable contribution, suggested that your Lordships were to be treated not only to the edifying spectacle of lawyers not agreeing with each other but also to the spectacle of one particular lawyer apparently not agreeing with himself; for he drew comfort from quoting the noble and learned Lord, Lord Denning, the Master of the Rolls, in the Mulholland case some 17 years earlier than the Granada case, in which he—that is, Lord Denning—said:
The only profession that I know of which is given a privilege from disclosing information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of his client. Take the clergyman, the banker, or the medical man; none of these is entitled to refuse to answer when directed by a judge. Let me not be mistaken; the judge will respect the confidences which each member of these honourable professions receives in the course of it and will not direct him to answer unless not only is it relevant but also it is a proper and indeed necessary question in the course of justice to be put and answered".
§ So what do we see, my Lords? We see yet again that no man better understands or demonstrates than the noble and learned Lord, Lord Denning, the Master of the Rolls, that the law, like the language, is a living thing, like a river ever moving, ever changing, and ever live. It should never be forgotten that it was 17 years later that the principle underlying this amendment was being striven for.155
§ Furthermore, for the noble and learned Lord, Lord Fraser of Tulleybelton, to consider the amendment as conferring an especial privilege upon journalists is, with the greatest respect, to look down a telescope the wrong way, notwithstanding the fact that the inclusion of the words "in the interests of justice" places the journalist in the same position as the clergyman, the banker, and the medical man. As the noble and learned Lord himself said during the Committee stage—as did the noble and learned Lord, Lord Denning, in the Mulholland judgment—the privilege of the lawyer in not being obliged to disclose advice that he has given to his client is not for the benefit of the lawyer but for the benefit of his client. In other words, it is a privilege in aid of litigation. Similarly, this amendment is not designed to grant a privilege to a journalist, still less to his informant. It is the privilege of the public interest—the client, the ultimate beneficiary of journalistic endeavour.
§ At this stage I must respectfully say that I cannot possibly believe that any of your Lordships would so mislead yourself as to confuse the public interests with that which is interesting to the public. As the noble and learned Lord, Lord Wilberforce, said in the course of his judgment in the Granada case, there is a wide difference between what is interesting to the public and what it is in the public interest to make known. To put it another way, the amendment creates a privilege in aid of truth, a privilege in aid of the public interest, a vital and essential privilege, particularly when one bears in mind the ever-encroaching power, whether direct or indirect, of the Executive over the wellbeing or otherwise of the taxpayer and voter. My Lords, I beg to move.
§ Lord Mishcon
My Lords, I wonder whether, most respectfully and purely on a personal basis, I may venture another view from the one which has just been put before your Lordships. This happens to be an age, some of us may think, of leakages. Some of us may think that some of the principles that we grew up with have flown out of the window—principles of the loyalty of partners and the loyalty of employees. Some of us may think that disclosures are made which contain only half the truth, if even that fraction is achieved, and which do an amazing amount of harm when published in the newspapers. Some people may think of journals or weekly periodicals that have not got the best reputation but have a circulation which is based purely and simply upon the amazing revelations which are made, in which people's reputations are torn to tatters, leaving them with only the remedy of a writ for libel if they wish to go through the courts and have what sometimes appears to be the inevitable apology at the end of the day, but with people saying all the way round, "But, you know, there is no smoke without fire".
If somebody is brave enough to make a statement about a firm, an individual, a Minister or any other public person, whoever he may be, and even if he be the humblest in the land, is that person not also to be courageous enough to say what was the source of his information? If you measure it up in balance, are you really safeguarding public information and the rights of the public when you are in fact saying that people 156 need not, unless they come within the exceptions in this provision, disclose the source of their information? Or are you in fact—I have an obvious dissenter behind me, and when I find it is in the gracious form of my noble friend I do not object. But is it not a graver injustice that, as I say, people can make so-called disclosures without having the guts (if I may use that phrase in your Lordships' House) either to say who it was who told them or to own up themselves?
To me, the issue is simple; and unless people can bring themselves within the privileges that exist, or unless your Lordships have a much broader debate dealing with the right of the minister or religion, of the doctor and of people of that kind, I would have thought it was a very serious disservice to this House, without a full discussion of matters of this kind, to bring this provision within this Bill.
§ 4.34 p.m.
§ Lord Scarman
My Lords, the emotional misconceptions of the noble Lord, Lord Mishcon, have brought me to my feet earlier than I had otherwise intended in support of this amendment. In this amendment we are not discussing the guts or lack of guts of journalists. We are not in any way discouraging journalists from being brave and disclosing their sources when justice, national security or the prevention of disorder and crime require it. What we are doing, or what we are seeking to do in this amendment, is not to preserve the privileged position of fearful or timid journalists, if they exist, but to preserve and strengthen the right of the public to be informed.
One knows that if information is going to reach the public through the media of the press of misdoings or inefficiency in high places, it is more than likely (let us face it) that the channel, the agent or the messenger of that information will be some "weasel", some pretty despicable person, and his confidence is essential if the journalist is to get the information. One does not wish to protect the "weasel"; there is no need to protect the journalist; but there is every need to ensure that the right of the public to get the information is supported.
Whether or not this amendment succeeds to that extent is a matter for your Lordships' House at this particular moment, but I wish to persuade your Lordships to lift your eyes from the so-called privileged journalist, to lift your eyes from the contemptible figure whom, we assume, nobody wishes to protect, and to look face to face at the public interest. That is basically why I support the amendment. I went into the argument in some detail in Committee, and I will not weary your Lordships with repeating what I then said except to say that, notwithstanding the magnificent but misdirected denunciations of the noble and learned Lord the Lord Chancellor, I stand by what I then said.
A word or two about the amendment that is now before your Lordships' House. It has, I think, been improved since the Committee stage. There was, I think, one omission (or certainly many of your Lordships would have felt, I think reasonably, that there was an omission) from the amendment as it was moved in Committee, and that is that there was no exception for the interests of justice. Now the exception provision—that is, the provision in the amendment which requires the information to be disclosed if the 157 court demands it—includes the interests of justice as well as national security and the prevention of disorder and crime. The introduction of that extra exception puts this amendment into an entirely new perspective, and since the matter is important I will ask your Lordships' indulgence for me to explain it, I hope shortly.
As was said in the course of the Committee discussion on the previous amendment, our judges have for long followed the practice of seeking to avoid questions being put to journalists, the answers to which would disclose their source of information, unless they thought it was absolutely necessary; and seeking also to protect the journalist from answering unless they thought it was absolutely necessary. Of course, that practice was unsupported by any rule of law, but it was a wise practice and it was one which led the judge to assess where the true interests of the public lay and how the balance went between the requirements of justice and the public interest, represented by the journalist seeking to protect the confidential character of his source of information. Such has been the practice for a good deal of time. Should this amendment meet with your Lordships' approval and with the approval of another place, it would not in any way alter that practice, that which has been the practice of many judges for a very considerable period of time. What it would do is to give a statutory basis supporting the practice. Judges would not have to rely on their ingenuity or on their personal influence in their court to see that the practice was observed; they would have the statute behind them.
I admit that the practice which I have been describing is applicable also to priests and doctors when they are giving evidence in our courts. The right reverend Prelate the Bishop of London at the Committee stage made a point for which I have great sympathy, even though I think it a bad point: What are you doing here? You are exalting into a rule of law the privilege of the journalist; but what of the priest and the doctor? I understand the motivation of that sort of argument; but if it be right that we are discussing not the privilege of journalists but the right of the public to be informed, then this so-called privilege of the journalist takes on a new character, a character which can distinguish it from the privilege of the doctor and the priest.
It is important to a proper understanding of this amendment and to the practice of the courts which this amendment seeks to support that the journalist is to be regarded in this respect as the agent or the channel for the public interest. It is said—and I think that this was really what was in the mind of the noble Lord, Lord Mishcon—that the journalist will abuse it. No right has ever yet been discovered which some will not endeavour to abuse. But if the courts have the power, where justice requires it, to insist on an answer, and if the refusal of an answer in those circumstances is a contempt of court, then I think that abuse can be taken care of if it should raise its head.
The only point which has ever seemed to me to be a powerful point was the one raised by the noble and learned Lord the Lord Chancellor at the Committee stage, that the Contempt of Court Bill, this Bill, is not the appropriate place for introducing what would be, I recognise, a substantial reform of the law even though its effect would be merely to buttress a practice already 158 followed by the judges. Of course, I see that point but, as I have said before, in our system with its historical concepts it is very difficult to find the appropriate legislative vehicle for reforming positive and sub-stantial rules of law. Too many of our rights and many of our duties are to be found in the interstices of our procedural law. If we are going to wait until we have got substantive law and procedural law into their correct relationship before introducing worthwhile reforms, then it will not be in our lifetime that those worthwhile reforms are ever enacted.
Therefore, recognising the validity to some extent of the procedural point that this is a Contempt of Court Bill and not an appropriate place for this type of reform, I say that, notwithstanding that, we must do something about it now because, if we do not, we never will. And if it be said that the proper time is to wait until somebody produces a Bill dealing with confidences and confidential communications, I think I could say with a certain amount of plausibility that, properly understood, this amendment is not about confidences and not about confidential communications; it is an attempt to ameliorate the law relating to contempt of court so that the public right to be informed is not impeded or obstructed. It is for those reasons that, notwithstanding the difficulties which, of course, I see as a lawyer, and notwithstanding the emotional doubts of the noble Lord, Lord Mishcon, I ask your Lordships to give very careful consideration to this amendment.
§ Lord Wigoder
May I make two brief comments in support of this amendment? First, I would hope that we will not get unduly involved in drawing analogies between the position of the journalist and that of the doctor, the lawyer or the priest. They seem to be so very different in degree as eventually to raise totally different issues in kind. Secondly, I should like merely to go on record in support of what the noble and learned Lord, Lord Scarman, has just said: that the real issue which we are faced with by this amendment is whether we want the greatest possible amount of information to reach the public through the media. One accepts that among that information, if one has a free press, there will be much that is irresponsible; there will be many warts; there will be much that, to use Lord Mishcon's word, is "scurrilous". Nevertheless, the right of the public to know what is going on seems to me to be of crucial importance in the sort of society in which we live.
Perhaps I might pose this question to whoever replies on behalf of the Government to this amendment. Will there be more information reaching the public if this amendment is carried than there will be if the Granada decision remains the law? It seems to me that, under the terms of the Granada decision, the inevitable result will be a slow but steady drying up of much essential information to which the public should have access.
§ Baroness Jeger
I apologise to my noble friend Lord Mishcon for muttering dissent behind his back. I want to say briefly that I am sure that members of my profession and my union are not asking for the support of this amendment for any special category for journalists. If read carefully, the amendment 159 refers to information contained in a publication for which the journalist is responsible. This might apply to a vicar bringing out a parish magazine. It seems to me that it could refer to candidates publishing election addresses. The whole range of publications would be concerned. I think that it would be a mistake to think that in any way there is a special plea for journalists in this amendment. But, as the noble Lord who has just spoken has made so clear, it is a plea for wider access to information by the general public.
§ Lord Ardwick
I have been warned by my doctor not to waste my convalescent energy in debate; but I must say how strongly I associate myself with the words of my noble friend Lady Jeger, and how much I dissent from my noble friend Lord Mishcon on the Front Bench, and how much I agree with what was said by the noble and learned Lord, Lord Scarman, and with what was said, too, from the Liberal Benches.
§ 4.50 p.m.
§ Lord Mackay of Clashfern
My Lords, as has already been made clear, the amendment which is before your Lordships is substantially different from the one which was moved at the Committee stage. One point is underlined by that change and it is that this matter is concerned with contempt only incidentally. As the amendment now makes clear, it is primarily a question of the court not requiring a person in particular circumstances to disclose; in other words, it is a restriction on the compulsory answering of questions. Of course, whatever be the rule about that, matters of contempt may follow if a lawful question is put and the judge requires the witness to answer and he refuses. Then, obviously, that has consequences for contempt. But I think it is proper to regard that as incidental to the main matter which is here in question. Accordingly, we would certainly suggest to your Lordships in the first instance that the amendment, as now drafted, is not really an amendment which directly relates to the subject matter of this Bill.
The next point I should like to mention is that the whole area of which this is a part was considered by the Law Reform Committee in 1967 (Cmnd. 3472) They summarised the results of their inquiries in this way:Privilege in the main is the creation of the common law, whose policy, pragmatic as always, has been to limit to a minimum the categories of privileges which a person has an absolute right to claim, but to accord to the judge a wide discretion to permit a witness, whether a party to the proceedings or not, to refuse to disclose information where disclosure would be a breach of some ethical or social value and non-disclosure would be unlikely to result in serious injustice in the particular case in which it is claimed".As the noble and learned Lord, Lord Scarman, has pointed out, one of the purposes of this amendment is to give statutory backing to that practice. If that is right—as I am sure it is—then the answer to Lord Wigoder's question must surely be that it will not really make any difference because just to give statutory backing to what the judges presently do ought not to have much effect on the flow of information.
The Phillimore Committeee looked at this matter 160 also and they reached the conclusion that the evidence which had been put before them did not lead them to differ from the Law Reform Committee's conclusion to which I have already referred. They set out their conclusions in paragraphs 39 and 40 of the report. As the noble Baroness, Lady Jeger, said, it is not a matter of journalists only, it is a matter of those responsible for publication, and of course there are many types of publication. It has been pointed out to me, for example, that one could find this being resorted to because a publication is made essentially for the purpose of securing this particular protection.
The provisos at the end about the interests of justice of course might mean that such an artifice would not be successful; but still, such an artifice would be possible under this amendment. I should also like to suggest that one cannot leave aside doctors, ministers of religion, priests and so on. The public interest is just as much tied up with the confidence being reposed in such people, in social workers and so on, as it is in journalists and publications. I agree that it is a different form of the public interest but it is no less important. Surely we could properly be accused of not giving a balanced effect to the public interest if we were to afford protection such as is proposed in this amendment for those responsible for publications—
§ Lord Hale
My Lords, would the noble and learned Lord forgive me? I listened to every word of the speech of the right reverend Prelate the Bishop of London who raised this matter. I am afraid that I did not quite hear the concluding sentences in which he suggested a preparedness to accept the existing situation after it had been explained by many of the noble Lords who had taken a substantial part in the debate. With great respect (and rather contrary to his usual practice) the noble and learned Lord on the Woolsack dismissed the right reverend Prelate the Bishop of London—
§ The Lord Chancellor
May I interrupt the noble Lord's interruption? I never dismissed the right reverend Prelate. What the noble Lord is doing is to intervene in the Lord Advocate's speech. He really must not do so. He will have plenty of opportunity of making a speech of his own if he wants to do so.
§ Lord Mackay of Clashfern
My Lords, certainly I am trying to take account of what the right reverend Prelate the Bishop of London said on the last occasion, and I am suggesting to the House that it is wise to take account of that and it would not be a balanced approach to the problem to single out publications for particular treatment on this occasion. Therefore, what I would say in seeking to sum up the position from this point of view is that the present position, as has been found by the Committees that I have referred to, and in the light of the Granada decision, is reasonably satisfactory and therefore best left alone so far as a contempt Bill is concerned. The amendment perhaps does not leave the flexibility which the present law leaves. Above all, it singles out the publication for special treatment in the public interest while leaving many other areas of confidentiality, which are equally important to different aspects of the public interest, untouched.
My Lords, I feel that I ought to disregard the determination of the noble Lord, Lord Mishcon, not only to look down a telescope the wrong way but also to look through a glass darkly—if your Lordships will excuse my mixed metaphors. I must confess that I am surprised that Her Majesty's Government should take so unduly legalistic an attitude regarding the point whether this amendment should lie within the scope of this Bill. I can absolutely assure your Lordships, when somebody is carried protesting into the cells for refusing to disclose something which the judge wishes to hear, which he in all conscience felt it was important that the public should know, when he asks why he is being carried down there, he will be told that he has committed a contempt of court. So far as he is concerned this is very relevant regarding the Bill.
I am puzzled whether the noble Lord, Lord Mishcon, was speaking for Her Majesty's loyal Opposition on this point or whether they have a free vote on this matter.
§ Lord Mishcon
My Lords, I wonder whether I can help the noble Lord. At the very outset of my speech I made it abundantly clear that I was putting before the House most humbly a personal point of view.
My Lords, I must ask your Lordships to forgive me. Obviously I did not pay the noble Lord, Lord Mishcon, the attention which he undoubtedly deserves. Bearing in mind the support that this amendment has received from noble friends behind him and from the Benches of the Liberal Party, I feel that this issue, being of such great public importance, should be decided through the Lobbies.
§ The Lord Chancellor
I wonder whether I can persuade my noble friend that he might possibly be wrong. First of all, one has to ask oneself what this amendment will do and what it will not do. I am sorry to appear to be, as it is alleged, legalistic; but that is what I am paid for. This amendment is supposed to protect journalists. Would it have protected the only two journalists who have been sent to prison for contempt of court for refusing to disclose the source of their information? The answer is, no. Mulholland and Clough would have gone to prison just the same, because it does not apply to tribunals of inquiry. This is not an accident because, as the noble and learned Lord, Lord Scarman, explained on Committee—and I apologise to him for the fact that because his amendment was put down so late in Committee stage I had not had time fully to consider its implications: it was not my fault—quite clearly it is not meant to save Mr. Clough and Mr. Mulholland from going to prison.
Secondly, who does it protect? It protects anyone who makes a publication. Who is a man who makes a publication?—anybody who puts an advertisement in a newspaper; and he is not necessarily a journalist. Supposing I want to put an advertisement in a newspaper, I am protected. However, do the "interests of justice" require it? From a perusal of the definition clause at the beginning it is evident that anyone who makes a public speech, however malicious, is protected. He is not a journalist; he is not an editor; he may be a 162 scurrilous know-all. Anyone who writes to the newspaper a letter of the most scurrilous kind is protected. He is not a journalist.
What is the good of this amendment? Supposing I want to commit a breach of copyright. I hate to say this to my noble and learned friend Lord Scarman, but how does this amendment affect the law of copyright? If I want to publish somebody else's book I am making a publication, and if I do it through a publisher the publisher will be protected. Am I to escape from being known as guilty of piracy? I think this amendment might well protect me. Supposing I am a dishonest servant of a company and I go off with the trade secrets of my employers. I sell those trade secrets to a rival company; I publish an advertisement in the newspaper containing the necessary information. I am protected. Why should I be?
This has nothing to do with journalists, with the press or with confidentiality. I come back to the point of my noble and learned friend: this would bring in by a side wind, using a totally inappropriate vehicle, an absolutely revolutionary concept which might affect the whole range of law. It is not a thing which will protect editors. Of course it does not protect the priest in the confessional: the right reverend Prelate said that, and I do not dismiss him at all. It does not protect the doctor in his consulting room and it does not protect any other form of confidentiality. As a matter of fact, the Law Commission is about to report in a few months' time on confidentiality and presumably the Law Commission will say what it thinks about this sort of thing.
I really do make this appeal to my noble friend Lord Morris, whose persuasive, gracious and obviously sincere speech excited my admiration: Is he really doing right to force this to a Division when, as a matter of fact, he might find that he is pre-empting the report of the Law Commission on confidentiality, which is a totally different subject, and when he is forcing to a Division an amendment which may have the effect which I suggest?
The absurdity of the thing is this. He thinks, as does my noble and learned friend on the Cross-Benches, that their amendment has been improved, in deference to a point I thought I had legitimately made which was limited to the law of defamation, which is in this connection very important. So they thought that they would put in an amendment so that a man may be asked to disclose the source of his information, if that is required "in the interests of justice".
What are the interests of justice? I suggest that they are as long as the judge's foot. What does my noble friend think he is achieving by this, except a mish-mash of muddled thinking? Clearly the interests of justice will demand in a defamation case that the source of the information should be disclosed. The journalist might be protected in a defamation case if malice is an issue. The interests of justice may well demand disclosures in a copyright case when a publisher is asked: "Who gave you this manuscript?" It may be demanded in a trade secrets case. What is it thought is being achieved by this curious amendment? I wonder: am I just being pedantic? I hope not, but I am very puzzled.
I would venture to say—and I say it in fear and trembling with so many pairs of eyes looking at me 163 from the Cross-Benches—that a judge ought never to permit a question of any sort to be asked of anybody which is not required in the interests of justice. Suppose a man goes into the witness box in a running-down case and is asked whether he committed bigamy 20 years ago. I think, if I were a judge of first instance, I might say: "This is not required in the interests of justice" and I would not allow it. But of course if this amendment were passed, a counsel who wanted to press the question in cross-examination might say: "There is no statutory privilege here. You must answer the question; it affects your credit." I think this is a mish-mash of muddled thinking and if my noble friend persists in putting it through the Lobbies, then let it go through the Lobbies, but he will do it against my advice.
§ On Question, amendment negatived.
§ Clause 7 [Scope of jurisdiction to protect inferior courts]:
§ 5.7 p.m.
Lord Fraser of Tullybelton moved Amendment No. 5:
Page 3, line 20, leave out from (" of ") to end of line 23 and insert (" the inferior Courts and tribunals specified in Schedule [INFERIOR COURTS AND TRIBUNALS] ").
The noble and learned Lord said: My Lords, this amendment is, on the face of it, the same as one moved at Committee stage by the noble and learned Lord, Lord Gardiner, and it relates to Clause 7 of the Bill. I hope to explain in a moment that it is really different in substance, because it is accompanied by a suggestion of the particular tribunals to which it refers. Might I remind your Lordships that Clause 7 at present provides that there should be jurisdiction to punish for contempt in respect of proceedings in inferior courts. It says that it applies—
… to … all inferior courts, tribunals and bodies … which are constituted by law and exercise any part of the judicial power of the State ".
The proposal in my amendment is that the reference to inferior courts exercising the judicial power of the state should come out and be replaced by:
It should apply to the inferior courts and tribunals specified in Schedule 5 to the Bill ".
The reason, as your Lordships will appreciate, is to substitute for the present statement of principle, which is lacking in precision, a precise list of the tribunals which are to be affected by this provision.
§ The present clause is drawn, as I said last time (I hope I may be forgiven for repeating myself slightly) from the speech made by my noble and learned friend Lord Scarman in a case during judicial proceedings of your Lordships' House. The principle was there stated in a way which is proper and appropriate for that tribunal but it is a way which, in my submission, is not appropriate for inclusion in an Act of Parliament, because one has not got certainty.
I just ask myself rhetorically, and metaphorically ask your Lordships: how do you apply the expression:
… inferior courts … which are constituted by law and exercise any part of the judicial power of the state"?
That principle was enunciated in the course of considering whether a local valuation court was, or was not, entitled to protection from contempt. It took the Apellate Committee of your Lordships' House two or three days, with the assistance of arguments from counsel, to conclude, in the end, that the local valuation court was not entitled to protection against contempt; that is to say, it was not exercising part of the judicial power of the state.
§ It is, of course, very difficult to draw a precise line and when this Bill was in Committee the noble and learned Lord, Lord Rawlinson of Ewell (who I think is not here today), said that he could not tell whether the list of tribunals which would fall within that definition would be short or would occupy two or three pages, and the noble and learned Lord the Lord Chancellor said that it was impossible to draft a list of tribunals fitting that description.
§ The noble and learned Lord the Lord Chancellor, if I may say so respectfully, rather teased the noble and learned Lord, Lord Gardiner, and perhaps myself also, for being unable to produce a list. He said, "It is all right to refer to a list, but if you do not produce it it is not very much good". Somewhat nettled by that charge, I at least attempted to produce a list which will be found in Amendment No. 16 and, with your Lordships' leave, I should like to refer briefly to it now, because I cannot make sense of the present amendment without doing so.
§ Amendment No. 16 (the last amendment on the Marshalled List) gives a list of the tribunals to which I suggest the law of contempt ought to apply. These are the inferior tribunals. The first one is the magistrates' courts. There can be no doubt that magistrates' courts exercise part of the judicial power of the state. They fall well within the definition and ought to have protection from contempt. I do not imagine there is much doubt about that. The next four courts—county courts, coroner's courts, courts martial and consistory courts—it was decided earlier should each be entitled to protection. The noble and learned Lord the Lord Chancellor mentioned that the other day and I regard that as not being open to doubt. We then come to the Lands Tribunal for England and Wales and the Lands Tribunal for Scotland. They are dealing with what appear to be judicial matters. Their chairmen are distinguished lawyers and I suggest that they are suitable for inclusion in this clause.
Then we have the Employment Appeals Tribunal. That is a body which I put in rather ex abundante cautela. I think it is unnecessary to do so, because the chairman of any sitting of that body is, I believe, always a judge, in which case the tribunal would fall within the last paragraph of the schedule. Your Lordships will see that I have put that
Any court or tribunal of which the Chairman is, or has the status of, a judge of the High Court in England and Wales, or of the Court of Session in Scotland
shall always have protection from contempt. So that an employment appeals tribunal may not need to be specified, but I put it in to be beyond doubt.
§ The last one, the industrial tribunals, may he open to rather more doubt. They do not deal with such major matters, but they have quite an important jurisdiction in industrial law and in various spheres 165 related to that. I paid attention to the speech of the noble and learned Lord the Lord Chancellor, who said that, above all, the industrial tribunal was a body which ought to be included. I have included it, so I do not think he can criticise me at any rate on that ground.
§ There may very well be other tribunals which should go into the list and, if so, I should be the first to agree that that ought to be done. I am not convinced that this list is the last word on the subject, and I said in Committee that I thought that any list was wide open to amendment, both now or subsequently. If it is found that certain tribunals have been omitted I see no reason why they should not be added by amendment at a later stage. The important thing, to my mind, is that there should be a definite list to which people concerned with publications can refer, so that they can say, "This is a court or a tribunal to which the law of contempt applies, and that one is not". That is important for the conduct of publications, and it seems to me to be the duty of Parliament to define a list in some way. If my definition is unsatisfactory—and it may well be that it is—then let us amend it. But, in principle, I submit that there certainly ought to be a definition and that is what I have sought to do. My Lords, I beg to move.
§ The Lord Chancellor
My Lords, is it your Lordships' pleasure that Amendments Nos. 5 and 16 should be discussed together?
§ 5.15 p.m.
§ Lord Elwyn-Jones
My Lords, I rise to support both amendments which we are now discussing together. It is, I think, likely to be agreed that it would be wrong to extend the strict liability rule to the whole mass of tribunals, and some definition of the tribunals and inferior courts in respect of which the contempt rule should apply should be made. The attempt to define the relevant tribunals in the Bill is, in my submission, ineffective and has left nothing but uncertainty. The very uncertainty of it has been manifested in what has been said from the Government Benches, and in their own difficulty in providing now a list of the inferior courts and tribunals to which the provisions should apply.
The attempt that has been made by the noble and learned Lord, Lord Fraser, to present a list is an effective one. In so far as it may be thought that some that ought to have been included have not been included, an amendment could be put down to add to his list. If new bodies arise, which are worthy of inclusion in the schedule, we could make provision in the Bill that, by order, the list could be added to if that were deemed to be necessary.
I appreciate, as the noble and learned Lord, Lord Fraser, said, that the inclusion of industrial tribunals is perhaps less certain. I myself think that they ought to be included. Their jurisdiction is important, they sit regularly up and down the country on controversial matters where a good deal of public interest arises, and it is a very scene where, potentially, contempt of 166 court could well and easily arise. I should therefore strongly favour the inclusion of the industrial tribunals, as the noble and learned Lord, Lord Fraser, has done, and I hope that now this effort, made under some provocation, will be approved by the noble and learned Lord opposite.
The Lord Bishop of London
My Lords, I am interested to see the inclusion of the consistory courts under the heading of Inferior Courts and Tribunals. I confess that I did not come to this House with the preparation that I would wish to have made, to be able to pronounce rather more authoritatively upon this matter. If it is the intention to include the consistory courts in this category, then there must be some careful consultation with those who are more learned than I am in these matters.
For instance, I know that there are some noble Lords who have, at various times in their previous existence, been Chancellors, and therefore they will know exactly what is the status of the consistory court. I understand it to be the case that a Chancellor cannot commit for contempt of court, but must go to the High Court for such order as is required. There are, however, other courts which have been set up under the ecclesiastical jurisdiction measure, such as the courts of ecclesiastical causes reserved, and I should want to know whether they are to be included in this category.
Recently we have also, rather to our cost, included some tribunals under new measures, such as the Vacancies (Benefices) Measure which has not worked very well. There needs to be careful examination of the church courts in general as to how far they come within the scope of the schedule. If therefore this amendment is carried, I hope it will be on the understanding that there will be some consultation with the Dean of Arches and other learned ecclesiastical lawyers as to what exactly is the status of the ecclesiastical courts.
§ Lord Wigoder
My Lords, when the noble and learned Lord the Lord Advocate replies, I wonder whether he would be good enough to deal with one point which was raised by me during the Committee stage. Does not Clause 7 at the moment cover both contempts in the face of a court and the extension of the strict liability rule to inferior courts? Would the noble and learned Lord indicate whether there is any convincing reason why the two areas should be coterminous? May it not be that there is a strong case for extending contempt in the face of a court to all tribunals? And may it not be that there is an equally strong case for not extending the strict liability rule to more than a very few tribunals? Before the Bill leaves this House, would it not be better to try to sever these two issues?
§ 5.22 p.m.
§ Lord Mackay of Clashfern
My Lords, the purpose of Clause 7 is to seek to give-somewhat more precision to this particular area of the law than it enjoys at present. So far as the Phillimore researches went, it did not appear that there was much dissatisfaction with this particular area of the law of contempt from the point of view of confusion about its scope and 167 precisely which tribunals it covered. However, in view of the discussion in the Judicial Committee of your Lordships' House in the BBC case it was thought useful to take the principle which had been stated there very succinctly and put it into this clause as being a clear statement of the doctrine of the law as it defined the scope of contempt.
So far as that goes, therefore, we think that this is the right way to proceed towards greater clarification. What the noble and learned Lord, Lord Fraser of Tulleybelton, wishes to do is to go even further. I should like to say how much we appreciate the effort which he has put into supplying a list. It makes it possible to discuss the matter against the background of an actual list. As the noble and learned Lord has made clear, he does not claim that this list is exhaustive. A good deal can be said about the various tribunals which might or might not go into it. There is the question of the ecclesiastical courts which the right reverend Prelate the Bishop of London has raised. Jurisdiction to deal with contempts so far as these courts are concerned is, as he said, already dealt with in Section 81 of the Ecclesiastical Jurisdiction Measure 1963.
The view which so far we have been able to form on the matter—my noble and learned friend the Lord Chancellor dealt with it in some detail on the last occasion—is that in the present situation it is difficult to frame a list which one can commend as being reasonably acceptable. One of the reasons is that many of the tribunals which are listed in the Tribunals and Inquiries Act—that is the sort of tribunal which one would think of for possible inclusion in this field—exercise both administrative functions and sometimes judicial functions. There is therefore a kind of hybrid within the actual tribunal. A mere list cannot deal with that satisfactorily. One needs to have some criterion for distinguishing that part of the function which is judicial from that part which is not.
If you have to go that far, is it not just as well to maintain that as the principle, which is reasonably recognisable, for determining whether any tribunal in relation to particular proceedings is exercising any part of the judicial power of the state? We would suggest that, looking at a particular proceeding it is reasonably easy to decide whether or not it is a judicial proceeding, whether the tribunal in question is exercising the judicial power of the state, or part of it, and that in many ways that is a better approach, at least at this stage of the development of the law, than to attempt an exhaustive list. However, we are very much obliged to the noble and learned Lord for what he has done in that respect.
May I give one illustration—there are a number one can think of—of a tribunal which the noble and learned Lord has not included but which would obviously be for consideration: the mental health review tribunal. That is a tribunal which has to deal with issues which are very close to the heart of people. The liberty of the subject is a very important matter indeed. We should have thought there was a strong argument for at least some of the proceedings of that tribunal being regarded as covered. This sort of argument one can apply to the very long list of tribunals which occurs in the Tribunals and Inquiries Act.
168 This is the sort of reasoning which has led us to conclude that on the whole it would be wise to be not too ambitious at this stage: to go for the clarification of the law which the clause at present attains and not to go further. So far we have not thought it wise to make any distinction along the lines which the noble Lord, Lord Wigoder, has suggested. Too many distinctions in this area of the law might not be a desirable simplification.
I hope that the noble and learned Lord, Lord Fraser of Tulleybelton, will feel that we have given a good deal of consideration to the matter. I am obliged to him for giving me such early notice of the list that he was proposing. We have not by any means dismissed the suggestion out of hand.
§ Lord Gifford
My Lords, I support the amendment of the noble and learned Lord, Lord Fraser of Tullybelton. Surely we should be able to decide today on the principle. We want there to be in the Bill a list of the courts and the tribunals which are covered and therefore to know which courts and tribunals are not covered. Of course we can all think of some tribunals for which a case might be made for adding them to the noble and learned Lord's list, but surely that should not prevent us from deciding the matter in principle. If at a later stage, either before the Bill leaves this House or in another place, the Government want to perfect the list, if it has imperfections, that can be done.
§ Lord Fraser of Tullybelton
My Lords, with regard to the point raised by the right reverend Prelate the Bishop of London about church courts, I considered that matter more from the angle of the Church of Scotland, with which I am more familiar, than from the angle of the Church of England. It seemed to me to raise great difficulties for the courts of the Church of Scotland go right down to Kirksession. I do not believe anybody would think that it was right to protect Kirksession against contempt of court. I certainly would not do so. The same may be true of some of the lower courts of the Church of England. However, I am not very familiar with them. To let in many church courts would probably be a mistake.
I should like to thank the noble and learned Lord the Lord Advocate for his polite and welcoming reply to my amendment. However, I am bound to say that I do not regard his reply as entirely satisfactory. It is quite clear that he has in view a much longer possible list of tribunals than I have. I should be very sorry if this list became very much extended, partly because the more you extend the list the more you are restricting the freedom of reporting and speech about those bodies and partly for this further reason, that if a large number of bodies, perhaps sitting in various parts of the country, are all protected against contempt it can become difficult for the people concerned—mainly the press—to know what proceedings are pending before those bodies. It would raise great practical difficulties if all sorts of tribunals sitting in country towns all over the place were to enjoy protection against contempt of court. I know that it is a defence under the Act to say that one had made reasonable efforts to find out and did not know that proceedings were going on, but I am not sure how far such "reasonable efforts" 169 would have to go. It would raise considerable difficulties in a long list of tribunals.
Finally, I very much welcomed the intervention at the end by the noble Lord, Lord Gifford, who said exactly what I would wish to say, that we ought to have the principle decided on this matter and that by all means the list itself should be amended in due course.
§ The Lord Chancellor
My Lords, I am told that I must put Amendment No. 5 to the House separately although I got the agreement of the House to do it otherwise. The Question is, therefore, that Amendment No. 5 be agreed to.
§ 5.32 p.m.
§ On Question, Whether the said amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 77; Not-Contents, 105.170
|Airedale, L.||Jeger, B.|
|Ardwick, L.||Kilbracken, L.|
|Aylestone, L.||Kilmarnock, L.|
|Balogh, L.||Lee of Newton, L.|
|Banks, L.||Leonard, L.|
|Barrington, V.||Llewelyn-Davies of Hastoe, B.|
|Birk, B.||McGregor of Durris, L.|
|Blease, L.||Mackie of Benshie, L.|
|Bledisloe, V.||McNair, L.|
|Blyton, L.||Maelor, L.|
|Boston of Faversham, L.||Melchett, L.|
|Bridge of Harwich, L.||Mishcon, L.|
|Briginshaw, L.||Mountevans, L.|
|Brockway, L.||Oram, L.|
|Brooks of Tremorfa, L.||Peart, L.|
|Bruce of Donington, L.||Ross of Marnock, L.|
|Collison, L.||St. John of Bletso, L.|
|Cooper of Stockton Heath, L.||Seear, B.|
|David, B.||Segal, L.|
|Davies of Leek, L.||Shepherd, L.|
|Diplock, L. [Teller.]||Shinwell, L.|
|Donaldson of Kingsbridge, L.||Simon, V.|
|Donnet of Balgay, L.||Somers, L.|
|Elwyn-Jones, L.||Spens, L.|
|Fisher of Rednal, B.||Stedman, B.|
|Fraser of Tullybelton, L. [Teller.]||Stone, L.|
|Gardiner, L.||Tanlaw, L.|
|Gifford, L.||Taylor of Gryfe, L.|
|Glenamara, L.||Taylor of Mansfield, L.|
|Gosford, E.||Tweeddale, M.|
|Grey, E.||Wallace of Coslany, L.|
|Hale, L.||Walston, L.|
|Hampton, L.||Wells-Pestell, L.|
|Harris of Greenwich, L.||Whaddon, L.|
|Hayter, L.||White, B.|
|Houghton of Sowerby, L.||Wigoder, L.|
|Hughes, L.||Wilson of Radcliffe, L.|
|Hylton-Foster, B.||Wootton of Abinger. B.|
|Ailesbury, M.||Brookes ,L.|
|Airey of Abingdon, B.||Cairns, E.|
|Alexander of Tunis, E.||Camoys, L.|
|Allerton, L.||Campbell of Croy, L.|
|Alport, L.||Cathcart, E.|
|Ampthill, L.||Chelwood, L.|
|Auckland, L.||Cockfield, L.|
|Avon, E.||Cork and Orrery, E.|
|Balerno, L.||Craigavon, V.|
|Bathurst, E.||Craigmyle, L.|
|Bellwin, L.||Cross, V.|
|Belstead, L.||Cullen of Ashbourne, L.|
|Boyd of Merton, V.||De Freyne, L.|
|Denham, L. [Teller.]||Margadale, L.|
|Drumalbyn, L.||Marley, L.|
|Duncan-Sandys, L.||Massereene and Ferrard, V.|
|Ebbisham, L.||Mills, V.|
|Ellenborough, L.||Monckton of Brenchley, V.|
|Elliot of Harwood, B.||Montagu of Beaulieu, L.|
|Erne, E.||Montgomery of Alamein, V.|
|Exeter, M.||Mowbray and Stourton, L.|
|Fortescue, E.||Murton of Lindisfarne, L.|
|Gainford, L.||Newall, L.|
|Gisborough, L.||Northchurch, B.|
|Glenarthur, L.||Nugent of Guildford, L.|
|Gormanston, V.||Onslow, E.|
|Gowrie, E.||Orkney, E.|
|Gridley, L.||Orr-Ewing, L.|
|Grimston of Westbury, L.||Renwick, L.|
|Hailsham of Saint Marylebone, L.||Rochdale, V.|
|St. Aldwyn, E.|
|Henley, L.||St. Davids, V.|
|Hillingdon, L.||Saint Oswald, L.|
|Hives, L.||Sandford, L.|
|Home of the Hirsel, L.||Sandys, L. [Teller.]|
|Hornsby-Smith, B.||Savile, L.|
|Inglewood, L.||Selkirk, E.|
|Kemsley, V.||Sempill, Ly.|
|Kilmany, L.||Skelmersdale, L.|
|Kimberley, E.||Soames, L.|
|Kinnaird, L.||Stradbroke, E.|
|Lauderdale, E.||Strathclyde, L.|
|Lindsey and Abingdon, E.||Strathspey, L.|
|London, Bp.||Swansea, L.|
|Long, V.||Swinfen, L.|
|Lonsdale, E.||Thorneycroft, L.|
|Lucas of Chilworth, L.||Trenchard, V.|
|Lyell, L.||Trumpington, B.|
|McFadzean of Kelvinside, L.||Ullswater, V.|
|Mackay of Clashfern, L.||Vickers, B.|
|Malmesbury, E.||Wakefield of Kendal, L.|
|Mancroft, L.||Westbury, L.|
|Mansfield, E.||Woolley, L.|
§ Resolved in the negative and amendment disagreed to accordingly.
§ 5.40 p.m.
Lord Gifford moved Amendment No. 6:
After Clause 7, insert the following new clause:
§ (" Documents disclosed in litigation
§ It is hereby declared that the obligation to protect and maintain the confidentiality of the contents of a document disclosed to a party to litigation or his agent terminates if and to the extent that the contents of the document are read aloud in open court inproceedings which are not subject to any limitation on reporting.").
The noble Lord said: My Lords, this amendment was moved by me in identical form on the Committee stage. It then received expressions of support and concern from a number of noble Lords, including the two former Lord Chancellors who sit in front of me, my noble and learned friends Lord Elwyn-Jones and Lord Gardiner. The noble and learned Lord the Lord Chancellor was good enough to say at the end of the debate that I had rendered a service to the Committee in raising the matter, and on the merits of the amendment he said this:
I do not want finally to close the mind of the Government at some stage in this Bill (though not the present) to examining any issues, when they emerge, with a little greater clarity ".—[Official Report, 20/1/81, col. 369.]
With that, and because it appeared possible that the Court of Appeal might give a decision in the near future, I was, of course, very happy to withdraw my amendment.
The Court of Appeal now has given a decision in the case of the Home Office v. Harman. It was given last Friday. In the very first paragraph of the decision, reference is made to the debate in this House, and I quote these words from The Times report:
Lord Gifford, whose ancestor was Master of the Rolls in 1824, thought that the decision was so wrong that he moved an amendment to the Contempt of Court Bill so that the Court of Appeal might be in no doubt what he thought they ought to do in the particular case. Other peers followed suit, feeling no inhibitions about sub judice".
Having said that, the Master of the Rolls continued:
The court could not criticise the House of Lords proceedings".
§ The Lord Chancellor
My Lords, in fact he said: "Nor did the Lord Chancellor advise them to desist".
§ Lord Gifford
My Lords, I thought he had said that but I did not have the benefit of an exact transcript, so I did not put that bit in. In view of that I think it is necessary to say that the discussion of this issue in your Lordships' Committee did not offend against the sub judice rules, which say, quite rightly and for good cause, that the rules do not apply to Bills or delegated legislation; and for good cause because it is the right and it is the the duty of your Lordships' House, as I perceive it as a comparatively young Member, when legislation is passing through, to raise matters which are of concern to them, even if they affect issues which may be pending in court. The present position, as I understand it, is that leave to appeal to the House of Lords has been refused; it may be that Miss Harman will petition the House of Lords for leave. It may be that they will give it; we know not. But the stage has come when this House ought to take a view on the issue.
The issue in the Harman case, and on this amendment, is really quite a simple one. In the case, as in every case, documents were disclosed by one party, the Home Office, to the other party, Mr. Williams, the prisoner, who was suing them. Miss Harman, as Mr. Williams' solicitor, had a duty to keep those documents confidential, and that was right and proper. That is the condition under which documents are disclosed to other parties in advance of trials. Many of those documents were never read out in court and have been kept entirely confidential. But some were read out in court, and through being read out in court they obviously took on a somewhat different character. Instead of being purely private documents they became part of the evidence in a public trial of an important issue, as to whether the Home Office had broken the law in setting up control units in prisons. As part of the evidence given in a court of law it was a matter of legitimate public and press comment. Miss Harman did not show to any reporter any document which had not been read out in court. She did, with the authority of her client, show a reporter some documents which were read out. He took notes and used them to write an article which was highly critical of the Home Office. That conduct is the conduct which has been held to be a serious contempt of court.
The reasons why it was so held appear, in part at least, to stem from a grave disapproval by the court of the journalist in the case and of the plaintiff prisoner. 172 In part of his judgment—again I quote from The Times—the Master of the Rolls said that there was no public interest in having the highly confidential documents in the present case made public. It was in the public interest that they should remain confidential. The use made of them by the journalist in the present case washighly detrimental to the good order of our society".They had been usedto launch a wholly unjustified attack on Ministers of State and high civil servants, who were only doing their very best to deal with a wicked criminal who had harassed society and was serving a long sentence for armed robbery".It is all very well, with respect, to say the documents were highly confidential. They had been made public. In view of what was said about the journalist, Mr. David Leigh, I think it is right to say that this is a most experienced and respected man. What the Master of the Rolls thinks about the article is his opinion. I do not agree with it, but that should be neither here nor there. The point is that it is not a sound basis for making or enforcing a punitive law of contempt. It is a good example of what many of us are so anxious about in different parts of this Bill, that judges when faced with press comment prove to be so restrictive and suspicious of the right of the press to comment on judicial proceedings that they bring out the bludgeon of contempt to strike at what they do not like.
My Lords, my amendment seeks to bring the law as it has now been declared to he into line with commonsense. The commonsense proposition is surely this, that when evidence is given publicly in a court of law it is no longer confidential. A party to the litigation may, subject to the laws of defamation, talk about the evidence, write about the evidence, tell journalists about the evidence, get people to write books about the evidence. If he has shorthand notes of the evidence he is at liberty to divulge them to whom he pleases. If he has a transcript of the evidence, which any member of the public, if he can afford to, can buy, he can pass it on to journalists or writers or anybody else, however embarrassing that might be to those whose conduct in the case may be held up to question.
That is one of the consequences of open reporting and open justice, and we should be at pains to preserve it. Equally, if the party has documents, if the evidence has taken the form of documents which were read out, then the contents of those documents should equally well be capable of disclosure. What the party to litigation can do in order to draw public attention to a case, so can his solicitor with his authority. If we allow what has been made public to be the subject of contempt of court proceedings, then quite serious dangers can flow. All sorts of misdeeds can remain hidden which may be brought out publicly in court, sometimes in documentary form, by the chance that a reporter happens not to be in court at the relevant time or happens not to have heard what has been said. There is, I suggest, an important point of principle at issue and I beg to move this amendment which cures the now stated law.
§ 5.50 p.m.
§ Baroness Jeger
My Lords, I rise with hesitation among so many legal luminaries to speak as just an ordinary member of the public. It seems to me that 173 if we are to expect respect for the law and consent for the law of our country it is absolutely essential that the law must be seen to be fair to the ordinary people who are expected to obey it. I know that all we ordinary mortals must accept that there are very wise and esoteric beings—many of them in your Lordships' House—who are experts beyond our understanding. But, at the end of the day, respect for the law must depend to a very large extent on a gut feeling among ordinary people that it is fair and sensible.
I am supporting my noble friend's amendment because it seems to me that those criteria are not fulfilled in this case or in any similar cases which may arise in the future. Not long ago we had in your Lordships' House an interesting debate on the use of the English language. There seemed to be a general feeling in the House that words should mean what they say and say what they mean. Therefore, when one reads a report of a law case which seems to maintain that documents previously confidential do not lose their confidentiality when they are read aloud in public, one is bound to wonder about the meaning of words.
Lord Justice Dunn on 6th February referred to "the right of the public and the press"—and I am not making any special pleading for the press—"to take notes" of material read out in open court or even "to buy transcripts". So, there seems to be a terrible muddle of thought when one knows that one can take down something in full, in shorthand, or at a later stage can buy a transcript, and yet there is this element of confidentiality when those matters are used in certain ways. I think that the general public find it difficult to understand that the status of confidentiality seems to depend on the status of the persons disclosing and not on the status of documents, for no one who understands the English language can accept that a document read out in open court must be regarded, in any circumstances, as confidential. There may be an etiquette among lawyers about all this, but I do not see how it can be part of the law of our country.
I cannot help wondering—and I, too, read The Times report very carefully—whether, had the article that was written about the Home Office been complimentary, this action would never have been taken. I think that it is very relevant—and I quote these words—that:The use made of them by the journalist in the present case was highly detrimental to the good ordering of our society. They have been used to launch a wholly unjustified attack on ministers of state".It makes me wonder: Was it part of his reasoning that because of the nature of the article the case had to go the way that it did? It seems to me extraordinary to suggest that if the article had not been critical the case would have not stood up. Once the argument about the critical nature of the article is brought into the case, then ordinary people must wonder about the legal status of that argument.
I do not want to over-emphasise this, but it seems to me that there could creep in an element of censorship, and that a journalist would feel that as long as he says something uncritical it might be all right but the whole majesty of the law might be brought down upon him and upon the person who supplied him with the documents if he uses them for some criticism of government 174 or criticism of some institution, which does not appeal to the establishment. I therefore think that we should take this opportunity to amend the Bill, because there is a great deal of public disquiet about this situation. I hope that your Lordships will support this amendment.
§ Baroness Wootton of Abinger
My Lords, I very much regret that I have to leave the debate in a few moments. However, before doing so I should like to make a short speech of about two sentences. The law is often said to be an ass, but I do not think that it could be a greater ass than if it decreed that a document which had been read out in open court and listened to by any members of the public who happened to be there is still confidential and must not be reproduced in print.
§ Lord Mishcon
My Lords, I have intentionally removed myself from a Bench which I do not say that I grace but which has graced me until now, in order that there can be no doubt whatever that my speech to your Lordships is based upon a personal view, and a personal view only.
However, I cannot as a lawyer allow this debate to go on any further upon one issue and that is my understanding of what the Court of Appeal was saying. I should like to make it clear that I find this amendment to be very attractive and I belive that the principle behind it is a correct one. But the Court of Appeal was not dealing with the particular matter of whether it was right or wrong that documents which are disclosed and read out in court shall be deemed in every event to be confidential and therefore not for publication.
The Court of Appeal dealt with the case of a lawyer who was acting on a case—very properly acting for a plaintiff who was very properly legally aided—and who obtained disclosure of documents in that case first of all upon the basis, which she herself confirmed, that the documents were disclosed to her confidentially and were not to be disclosed to a third party, and thereafter, after an order had been made for specific discovery of documents which the Home Office were not willing to disclose on public policy grounds, impliedly got disclosure of those documents upon the same understanding.
The question of the undertaking and the implied good faith of solicitors and barristers as officers of the court is something valued in my profession and something that I feel your Lordships ought to know about with regard to its relevance to the decision of the Court of Appeal, as I understand it. I therefore have made this contribution to your Lordships' debate not in opposition to the amendment, but only in justice to what was being discussed in the Court of Appeal, as I understand it.
§ The Lord Chancellor
My Lords, I only want to intervene very shortly as regards this amendment because I think that the issue has been wholly misunderstood largely along the lines which have been explained by the noble Lord, Lord Mishcon, already. I had the advantage only today of reading for the first time not a press report of the Court of Appeal judgement but a transcript of the Court of Appeal judgement. I am bound to say that I do not think that the issue, as it was put forward by the noble Lord, Lord Gifford, was 175 correctly stated: nor do I think that it is as simple as he tried to make it out to be. This is not a question of press reporting of a case at all. It has nothing whatever to do with a press report of any case. I start with that proposition. Miss Harman was not adjudged guilty of contempt because she had disclosed to a member of the press a document which had been read out to the court. She was adjudged to be guilty of contempt because, as an officer of the court, she had made a promise and had broken it.
As the matter might conceivably come before the House of Lords, it is open to her to apply for leave to the Appeal Committee of your Lordships' House. Therefore, at this stage I do not want to adjudicate as to whether the Court of Appeal was correct or incorrect in its findings. But that that was the finding there can be no doubt at all, either from the press reports of the case or from the transcript, which I have now read.
On a point of fact, I ought perhaps to defend myself against the obviously implied rebuke by the noble and learned Lord the Master of the Rolls that I should have intervened at the Committee stage and tried to stop the discussion. I think that for once that is unjust to me. I did not, of course, intervene in the debate and ask the House to desist from discussing an amendment for the very good reason that I knew the rules of this House better than the noble and learned Lord the Master of the Rolls. They are as the noble Lord, Lord Gifford, stated them, and there was no sub judice rule attached to the discussion of an amendment, although if he will allow me to say so without the smallest desire to offend him, when he said—if he did say it, because I did not hear him say it—that he was moving his amendment so thatthe Court of Appeal may be in no doubt about what I think they ought to do in the particular case".—[Official Report, 20/1/81; col. 351.]—which is what the noble and learned Lord the Master of the Rolls said he said, all I can say is that although I do not think he was guilty of contempt of court because these proceedings are privileged, on the other hand, I think that he was possibly slightly impinging on the sub judice rule.
§ Lord Gifford
My Lords, perhaps I may seek to clear myself and also put the record straight, because I think that I was somewhat misquoted out of context. What I said was this:I intend, if I can, to follow the spirit of this Bill, and particularly Clause 5 of it. I hope my amendment may serve as the introduction of a discussion in good faith of a matter of general public interest, and that if in the course of the discussion the Court of Appeal may be in no doubt about what I think they ought to do in the particular case, that will be merely incidental to the discussion".—[Col. 351.]
§ The Lord Chancellor
My Lords, I think that the noble and learned Lord the Master of the Rolls was obviously reading a garbled report of the noble Lord's speech, because I certainly did not hear him—and I have already said that I did not—make the particular remark which was attributed to him. I think that the House will be grateful to me for giving him the opportunity of clearing up the matter.
176 I shall come to the main questions of principle in a moment, but there is another question of fact which I think that I ought to make clear. The Court of Appeal did not decide—and it was in dispute—that all the contents of all the documents handed over to the journalist has been read out in court. This is what the noble and learned Lord the Master of the Rolls said about that, and again I make no comment as to whether he was correct as a matter of fact. He said:One week before the trial commenced, Miss Harman selected 800 pages and bound them in two bundles and made nine copies for the use of the judge and counsel. She said that 'all material parts of the documents in the two bundles were read out in open Court by counsel for the plaintiff '. Note her words 'all material parts'. She does not identify those parts. Probably she does not know what they were. She was not in court all the time. I should imagine that no one except the shorthand-writer or the tape could tell what parts were read and what were not. I should be very surprised if every word of every one of the 800 documents was read out".So simply as a matter of fact we are not even discussing whether she was entitled to hand over to the journalist the entire documents, part only of which were read out, which parts she did not identify if the noble and learned Lord the Master of the Rolls is right, and neither did she identify which parts were material. What she did was to hand them all over, as I understand it—at least, that is what I understand from the judgment.
§ Lord Sandys
Order! My Lords, we are speaking on Report and I think that the noble Lord, Lord Gifford, is testing the rules of this House.
§ Lord Gifford
My Lords, I intervene only because it is a small matter of fact about which I had taken pains to find out. Although the matter is not made the subject of any formal finding by the Court of Appeal, I am satisfied, from talking with counsel in the case and others, that in fact the documents were read out and she did not hand them over—she let him read those parts which had been read out. I certainly approach it on that basis.
§ The Lord Chancellor
My Lords, I am not sure that the noble Lord, Lord Gifford, can give evidence of what happened in the court, at which I do not think he was present; but I certainly cannot. All I can do is to tell the House what the Court of Appeal said had happened. I do not put anything further on it than that. I have read the transcript of the judgment and that is what the Court of Appeal said.
I now come to the issues of the principle involved. The point was this. As I explained on Committee—but I think that it is essential that I should say it again here—there is a process in the interlocutory proceedings of an action in the High Court called "discovery", which means that each side must disclose all its documents—even the most private, sensitive and confidential documents—relating to a case. Many of us—I suppose most of us—who have practised at the Bar (including I expect the noble Lord, Lord Gifford, 177 but certainly myself) know how difficult it it so persuade lay clients to make full discovery of documents, when they say "But that was a confidential document". You have to explain to them that that does not give them privilege.
I go on to say that there is a special exception to to that; that is, that the Crown is entitled to object to the disclosure of a class of documents, the disclosure of which it says belongs to a class, the disclosure of which would be contrary to the public interest. I had to swear such an affidavit about the class of documents in the recent libel case in which Judge Doyle in Northern Ireland was concerned, and I swore it about the documents relating to the appointment of Judge Doyle by the noble and learned Lord on the Front Bench, which, being a purse chevalier—although I daresay that I could have seen them if I wanted—I did not look at because I said that they belonged to a class of documents which should not be disclosed in the public interest.
Of the documents which were disclosed, some were disclosed voluntarily by the Home Office on a condition and some were not. Of those which were disclosed on a condition, there was an exchange of letters between the plaintiff's solicitor, who was Miss Harman, and the Home Office. The Home Office said this:However, having regard to the very large number of policy documents intended for internal use which have been disclosed, my client is concerned at the risk of improper use of the documents…my client (the Home Office) would not wish the documents to be used for the general purposes of the National Council for Civil Liberties outside your function as solicitor for the plaintiff".One must emphasise that the plaintiff was a Mr. Williams. He was not for the Council of Civil Liberties. Miss Harman was acting as solicitor for Mr. Williams, although at the same time I believe she happens to be the solicitor for the National Council for Civil Liberties.
Miss Harman replied in her own hand:As far as the general purposes of the NCCL is concerned you may rest assured that as a solicitor I am well aware of the rule which requires that documents obtained on discovery should not be used for any other purpose except for the case in hand".She gave that express undertaking. That was before the Crown privilege point was decided.
A minority of the documents—a fairly small minority—was the subject of a claim for class Crown privilege by the Home Secretary. Again I must emphasise that this has nothing whatever to do with party politics. The documents were the documents of the Labour Government and they contained ministerial statements made in confidence by the Labour Government. Until a very recent date that would have been a conclusive bar to the disclosure of that small quantity of the documents.
Certainly during the war there was a case called Duncan v. Cammell Laird, which lawyers in this House will know. In a later case called Conway v. Rimmer the courts in England attracted to themselves the right which had long been claimed by the courts in Scotland, which was to decide the claim of class privilege for themselves by inspecting the documents quietly, and making out whether they thought that the public interest involved in not disclosing them overrode the private interests of the parties in obtaining judgment. So there was a hearing in chambers before Mr. Justice McNeill and he ordered the disclosure of 178 this minority of documents, again on condition that they were only used on behalf of the plaintiff in the action and not for the general purposes of the National Council for Civil Liberties because the undertaking expressly applied to them. I myself believe, and certainly the Court of Appeal thought, that he would never have ordered that disclosure if he had known what was going to be done with them.
Again I do not want to use any hard words but I must say one or two things. In the first place, if the amendment is passed I think that it will be a serious blow at the legal profession and at the discovery of documents. I think lay clients will be less willing to make a clean breast of them, and it will be more difficult for the profession to ensure that their clients have been absolutely honest. Secondly, I think that the courts inevitably, having regard to what Miss Harman did in this case, will be much more reluctant to exercise the powers (the extremely valuable powers, in my opinion) which were assumed to themselves in Conway v. Rimmer to override class privilege claims by the Crown.
In other words, two serious blows would be dealt to the administration of justice in this country if this amendment were passed, and it is my duty to tell the House that. First of all this has nothing whatever to do with the reporting of a case; and, secondly, the journalist in question was never accused of contempt of court, and it was not suggested, I think, that he was guilty of it. What was found by the Court of Appeal in that case was that Miss Harman had been guilty of a serious contempt—a civil contempt, not criminal contempt—in that she had broken her promise to the court and disobeyed the order of the court. That is what the court decided.
I do not believe that that is obviously or intrinsically a wrong decision, a silly decision, or any of the epithets that have been lavished upon it. It was the subject of a typically rumbustious judgment by the Master of the Rolls. I must however, say that I agree with the Master of the Rolls when he said, on page 2 of the transcript:I wish that people who criticise the decisions of the judges would study the facts first".I think that this is a fairly commonsense remark, and I do not think that in this case the facts have been fairly presented either to the public or to this House. I do not impute the slightest bad faith to anybody.
I also say that the Court of Appeal, being unanimous, consisted not only of that vivacious character whom we all love so much, whose judgment has been so widely quoted, but also two of the most experienced Lord Justices in the business of judging, namely, Lord Justice Templeman and Lord Justice Dunn, both of whom gave considered judgments on the subject. I think, with respect, that this House would be making a grave mistake if, in the course of considering a Bill which is basically to do with criminal contempt, it sought to overturn in the twinkling of an eye the considered opinion of Mr. Justice Park at first instance, and of the Court of Appeal—a Bill which has nothing whatever to do with the particular subject which is under discussion. It is my duty to say that to the House.
I know that we shall be misrepresented in the press. I know that we shall be criticised in many quarters for taking this view. It is perfectly open to Miss Harman if she thinks she has suffered injustice to go to the House of Lords Appeals Committee and ask for leave to 179 appeal. Obviously questions of law of general importance are involved. She has, I suspect, funds at her disposal. If not, she can utilise legal aid.
§ Lord Elwyn-Jones
My Lords, does the noble and learned Lord have knowledge that she has funds at her disposal?
§ The Lord Chancellor
My Lords, the National Council of Civil Liberties certainly, I believe, financed the Williams action, and I think would be behind her if—
§ The Lord Chancellor
What I have said is that if she has not funds at her disposal she can apply for legal aid. The matter is as simple as that. If she has them she has them at her disposal; if she has not she can apply for legal aid.
§ Lord Elwyn-Jones
My Lords, I am sure that the noble and learned Lord does not want to mislead the House, certainly not intentionally, but the action was legally aided ab initio.
§ The Lord Chancellor
My Lords, I am obliged to the noble and learned Lord. I ought to have known that. In fact, I did know it at the back of my mind, and I did not intend to mislead the House. I did know it because I read it in the transcript, which I read for the first time today. It was the first time I did know it.
At any rate, those are her rights. She can go to the Appellate Committee through the Appeals Committee if she thinks she has suffered an injustice. I do not know whether they will give her leave or not. It will not rest with me because it is a case which I should think it improper or undesirable for the Lord Chancellor to sit in, but I think that that is the right way of curing this and not by an ill-considered amendment—I am bound to say that I think it is ill-considered—in this Bill, which is not designed for the purpose.
§ 6.15 p.m.
§ Lord Gifford
My Lords, may I answer some of the points that have been made. First of all, on the point which I think we need to be clear on although it is not very relevant, the question of the funds of Miss Harman. The Williams action was financed by legal aid. Miss Harman's defence to the charge of contempt was not. As I understand it, she has the backing of her employers, the National Council for Civil Liberties, who have been forced to appeal to their well-wishers for funds, which I know to be in very short supply, so that the question of an appeal to the House of Lords of course raises that issue.
May I come to the serious points. What both the noble and learned Lord the Lord Chancellor and my noble friend Lord Mishcon said was that the point of the case was that Miss Harman was found to have broken the undertaking, or promise, which she gave to the court when she received those documents. That is an accurate statement of the court's finding. What was in issue before the court was precisely the extent of that promise. Miss Harman's good faith was accepted 180 by the Home Office and by Mr. Justice Park—that she did not appreciate breaking the promise; and what the promise and undertaking implied was the matter previously obscure but which has now been made clear. The amendment would put an end to that obscurity, although it would put an end to it the other way, by stating clearly that the extent of that promise is that it terminates if and to the extent that the documents are read aloud in open court.
As I see it, Miss Harman did what she did in her capacity as Mr. Williams' solicitor. She would have no business talking to anybody if she did not have his authority, which in fact she had. Members of the Bar do not actually have this problem because they can say, if asked by the press for explanation or clarification, "I cannot talk to you. You must talk to my instructing solicitor". Instructing solicitors often have that responsibility; just as a client may talk to the press, so his solicitor may be asked to talk to the press on his behalf and to clarify, explain and inform the press—whether or not they have been in court—as to the issues raised in the case and the evidence led in the case. If the evidence was given orally, there is no bar to telling the press about it, even if it raises confidential matters. Is it to be any different because the evidence takes the form of a document? The document may have been put to witnesses and commented on. Does it then become a matter which can be disclosed without offence? I suggest that the present position is unclear and unsatisfactory and that my amendment would deal with it.
The next issue raised was that of Crown privilege—that the courts would be reluctant to override a claim of Crown privilege if the amendment were accepted. I fail to see that. The matter which the court has to weigh when dealing with a claim for Crown privilege is, among other things, the detriment which might be caused to public government by the disclosure of the documents in open court. It is anticipated that the documents will be made public. That is not why they are disclosed, but part of the process for which they are disclosed—that they may be used in open court—and any lawyer, client and judge must have that in mind.
Then I come to what your Lordships' House should do. Of course I appreciate that the amendment is being put forward within a few days of the Court of Appeal decision. The noble and learned Lord said it would therefore be hasty and ill-considered to take a view. But what I did not hear from him was any indication that he or his department would be examining the issue raised by this case at a suitable time, either during the passage of the Bill or not. If I were told by the noble and learned Lord, "Yes, this matter raises important issues which have to be and will be considered", then I would not wish to press the amendment to a Division. But I have not been told that and, as I understand it, the advice being given by the noble and learned Lord is to vote against it because it is wrong—not that it may be right or wrong and needs consideration, but that it is wrong. In those circumstances, I feel it right, since apparently there is to be no further consideration of the matter, to ask the House to reach a decision on it.
§ The Lord Chancellor
My Lords, perhaps I might add, with the leave of the House, that I am not going to 181 consider it at all until the time for applying to the Appeals Committee has expired. That is absolutely plain. But if the time for the Appeals Committee expires without an application, or if the application is dismissed, or if the appeal is disposed of in other ways, I will then undertake to put it to my department without prejudice to what may come out of it. That I will do.
§ Lord Elwyn-Jones
My Lords, important consequences arise from the case in regard to the whole question of Crown privilege. It was my privilege as Attorney-General to contest Conway v. Rimmer on behalf of the Crown, and one of the matters of which we were very conscious at that time was the fact that the moment it was decided to waive Crown privilege there was the probability-indeed, the inevitable certainty—that if the document were duly disclosed and read out in open court, there it was; and of course that is one of the factors which should influence the judge's mind in deciding whether or not to waive Crown privilege. In this case he decided that in the interests of justice Crown privilege should be waived, and that gave rise to the great difficulties which have subsequently ensued.
Accordingly, I wonder whether the Lord Chancellor could go further and say that the implications which now become clear from the waiving of Crown privilege—which incidentally I did my best to avoid taking place in Conway v. Rimmer—will be considered in terms of the implications of that case because there is no doubt that there is great concern, not only in Fleet Street but generally, about what appears to be a mess into which the law has got. To avoid the necessity of what can only, in the unhappy circumstances of this debate, result, I am afraid, in not very happy feelings emerging, I hope the Lord Chancellor can go a little further than he has so far gone.
§ The Lord Chancellor
I thought I had gone as far as I could without consulting colleagues, but I would certainly go as far as this: I shall do nothing whatever until the question of an appeal is disposed of one way or the other, and when that is done I will look at all the implications. There are two quite separate complications to this and there are at least three questions to be considered. One is the narrow question of Crown privilege; one is the broader question of the duty of an officer of the court in relation to discovery as a general rule; and then there is the distinction between a report, which was not at issue in this case, of the proceedings, and the use of a document disclosed in discovery for a purpose which was not a report. It was not critical of the Home Office, and if it had been then it would have been critical of the Home Office under previous management. It was the fact that it was used for a purpose other than a report of the case which may have influenced the minds of the judges. All I can say is that when this question of an appeal is out of the way one way or another, which will be long or short according to what happens, I will put it to my department and discuss it with colleagues, but without any undertaking as to what may emerge.
§ Lord Gifford
My Lords, I accept the undertaking which the noble and learned Lord has given. I hope the time sequence is such that this matter can be 182 considered in another place, and perhaps again therefore in this House, before the Bill passes, but whether or not that be so, I accept that the matter should and will be examined, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 8 [Publication of jury's deliberations]:
§ 6.30 p.m.
Lord Wigoder moved Amendment No. 7:
Page 3, line 26, leave out (" subsections (2) and (3)") and insert ("subsection (3)").
§ The noble Lord said: My Lords, we come to a very different topic, upon which I hope feelings may not run so high. It is the topic of the confidentiality of juryroom deliberations, and it is raised by Clause 8 of the Bill. With the leave of the House, I shall speak to Amendments Nos. 8 and 9 at the same time as I move the paving amendment, No. 7.
§ This is a topic of considerable importance because I believe that all those who have any part to play in the administration of the criminal law recognise that it is absolutely essential that in the privacy of the jury-room jurors should feel free to say what they like, to express their own views without fear or favour, muddled and confused, as they sometimes are, in the certain knowledge that nothing that they say will at any time be disclosed to any prying person, whether this involves anybody who has taken any part in the case, or who has been in court, or any journalist, academic, or anyone else wishing to discover what has gone on. To many of us who are concerned with the criminal law it seems that once that principle is breached, once jurors realise that there may be made of them inquiry as to what was their conclusion, why they reached it, what influenced them in so doing, once that confidentiality is known no longer to exist, the self-confidence of jurors will diminish and justice may well cease to be done in many cases.
§ This amendment was moved by the noble Lord, Lord Hutchinson of Lullington, and I at the Committee stage, and I think that it is clear from the reply which was made that perhaps the point that we wanted to put over was not made sufficiently clearly. Therefore I should like to begin by saying that the present position about confidentiality of the juryroom is that it is accepted as desirable and it is imposed by entirely voluntary restraint. There is, it is true, a notice in a juryroom saying that any juror speaking to anybody may be taken off to the Tower of London and beheaded—or some notice of that sort. It is widely regarded as having no legal effect. Nevertheless it is accepted by jurors that they are not to talk about their cases. It is accepted by everybody involved in the case—the legal profession, police officers, court officials, ushers, and so forth—that it is quite wrong during or after a trial to inquire of jurors what has taken place. With conspicuous exceptions, it is accepted by the press and academics that it is quite wrong of them, too, after a trial has been completed to attempt to inquire into the mysterious processes by which a jury have reached their verdict.
§ As I say, those restraints are entirely voluntary. They are supplemented to a very small extent by existing 183 law—but it is a small extent. There is some scope for contempt of court proceedings where at the moment juryroom deliberations are deliberately published, but I think it right to say that almost all the cases and there have been very few in recent years—in which those kind of proceedings have been brought have been unsuccessful. The common law position as to contempt of court in relation to juryroom deliberations is thoroughly unsatisfactory and very limited, if indeed it exists at all. There is also of course the common law offence of attempting to pervert the course of justice, which might be applicable to the more grotesque breaches, but is certainly not applicable to the general run of inquiry of, or incidental conversation with, jurors.
In so far as there is any existing law of contempt of court in relation to juryroom deliberations, it is I think arguable that it is in fact completely replaced by Clause 8 of the Bill. I say that because Clause 6(c) specifically refers to the foregoing provisions of the Bill—Clause 8 is not of course a foregoing provision; it is a subsequent provision—and specifically says that nothing in the foregoing provisions,
restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice ".
I think it highly likely that it would be argued on very many occasions that the implication of placing Clause 6 where it is, and Clause 8 after it, is that Clause 8 presents for the first time a definition of what is meant by contempt of court in relation to juryroom deliberations. The effect of that is that if the Bill goes through, we shall for the first time have a statutory definition of contempt of court, side noted "Publication of jury's deliberations".
§ There are two complaints that I want to make about that position. The immediate result of that will be that it will be assumed by a very large number of people that Clause 8 is the only effective sanction against publication of, or inquiry into, jury deliberations. The result of that in turn will be that all the voluntary restraints that are in existence will crumble away—and will crumble away very rapidly. I think that many of us—I know that the Criminal Bar Association's views were unanimous on this point—feel that the result, the unintended result, of passing the clause in its present form would be that those restraints would wither; that lawyers, police officers, ushers, if not during a trial, certainly immediately after it, would feel entirely free to inquire as to what precisely went on in the jury room. If the trial has resulted in a disagreement, as sometimes happens, the information might be of very material assistance either to the prosecution or the defence at any subsequent trial.
§ Therefore for that reason alone, to attempt to embark upon a statutory definition which is limited to publication of a jury's deliberations, as Clause 8 is, will be regarded as an open incentive to everybody who does not intend to publish to inquire as they will of jurors as to what went on in the juryroom. We at the Bar would regard that as a disastrous, though wholly unintended, by-product of the clause. That is the first reason why I invite the Government to reconsider the form of Clause 8.
§ The second reason why I invite the Government to reconsider not only the form, but also the substance, 184 of Clause 8 is that the clause specifically authorises for the first time publication of jury discussions, jurors' findings, and jury deliberations, provided that the particular case is not identified In other words, it is an open invitation to anyone who wishes—academics, journalists, reporters—to inquire of jurors, saying, "I have come on behalf of so-and-so. We wish to talk to you about this, that, or the other. "We all know what can happen when anyone is being interviewed over a drink in a bar; and in next to no time a vast amount of information will be given out by jurors as to what has gone on in the juryroom, to the general detriment of the jury process and criminal procedure.
§ Some investigations will no doubt be bona fide; some will be mala fide. I suspect that the fides will more often be mala than bona because that is the way of it in this situation. The kind of people who will want to write articles will seek to do so after sensational trials, in a desperate attempt to produce some sensational conclusion as to how the jury disagreed among themselves and were eventually swayed by some remark by a particular juror that really should have had no part to play in the case at all; and so on, and so forth. Giving the exemption in that way to inquiry into the juryroom, as Clause 8 does, in my view will eventually have disastrous results and will bring the whole system of jury trial into disrepute.
§ For those two reasons I venture to think that Clause 8 is very unsatisfactory as it stands, and that the only alternative, and the desirable alternative, is to impose a complete blanket and to say, "Juryroom deliberations are inviolable; they are not to be disclosed to anybody—full stop." Then, if anybody inquires or if any juror discloses, that ought to be a contempt of court in order to preserve the secrecy of the juryroom. I accept, of course, that there are occasions when juries will go home and discuss a case with their wives or their husbands, and nobody in their senses would say that that ought to be a contempt of court. So be it; the mere fact that this may happen on certain occasions in those circumstances is, I think, no reason for encouraging the sort of breaches of juryroom secrecy that are bound to happen if Clause 8 in its present form is passed. I earnestly invite the Government to reconsider this matter in the light of the arguments which were put forward last time and those which have been put forward again today.
§ Lord Scarman
My Lords, I, too, should like to ask the Government to reconsider Clause 8. I cannot really add very much to what the noble Lord, Lord Wigoder, has said.
§ Lord Elwyn-Jones
With respect, my Lords, I do not think the noble and learned Lord has put the Question.
§ The Lord Chancellor
I am sorry, my Lords; I am entirely to blame. I must put the Question first, before the noble and learned Lord addresses the House. I am very grateful. The Question is, That Amendment No. 7 be agreed to?
§ 6.42 p.m.
§ Lord Scarman
Now decently clothed, I can address your Lordships' House, no longer naked and out of 185 order. I support this amendment, and I do so really in the hope that the Government will consider the points that the noble Lord, Lord Wigoder, has made. I have every sympathy with what I believe to be the intention of subsection (3) of the clause—that is to say, that some encouragement, some opportunity, should be given for legitimate research and study of the workings of the jury system—but I very much doubt whether subsection (3) goes far enough to permit worthwhile research, and, if it did, my fear is that the result would be that all sorts of disclosures would come out which harmed the system of jury trial.
I will leave the House with this one consideration. When a jury retires to its room to consider its verdict, it is really exercising its collective mind in private. Of course, a judge, when he decides a case, has at some stage at the conclusion of the evidence and the speeches to exercise his mind. He can do it in private because he does not have to communicate with anyone else; it is a solo performance. When it is a performance by 12 good men and women, then it is bound to have to take place in a room, and there are bound to be communications. They should be as secret at that stage as the processes of judicial decision are in the mind of the judge himself.
The other danger which troubles me is this. Many of our fellow citizens are inarticulate without being unintelligent or lacking in shrewdness. They will have listened to the case and to the summing-up; and they may be quite unable to express themselves effectively. They may be able to express themselves only crudely, and in a way which can be misunderstood. When they come to discuss, however anonymously, what went on in the juryroom, they may be quite unable to give a fair or accurate account, and yet, despite their inarticulateness, they may be possessed of all the intelligence, shrewdness and judgment needed of a juryman. I support this amendment merely because I think Clause 8 as it stands is dangerous, despite its good intentions.
§ Lord Elwyn-Jones
My Lords, when I first read Clause 8 I confess that my inclination was to support it, because I think there is room for legitimate research into such matters, even, as the deliberations of jurors; and I agree with what has just been said by the noble and learned Lord, Lord Scarman, about that. On the other hand, I confess that the speech of my noble friend Lord Hutchinson (alas!, he is not here) was a powerful statement, and it caused me to think again. Since then I have received a memorandum from the Criminal Bar Association. I do not know whether the noble and learned Lord has seen that document, but, again, it seems to me to be a powerful reinforcement from experienced quarters of the effect that the clause as it stands could have on the jury system.
The memorandum makes two objections, and the noble Lord, Lord Wigoder, has given the House the essence of them. The first is that the clause prohibits only approaches to jurors with a view to publication, and they say:We can envisage many other circumstances in which jurors could be approached which would not be covered by the clause. An obvious example would be an approach after a jury have disagreed in an attempt to tailor the defence before the retrial".Then, more significant is the second objection, I think: 186Despite the provisions of sub-clause (2) we feel that the enactment of Clause 8 in its present form would result in jurors being approached by journalists and researchers, some genuine, most not"—some bona and some mala, to turn to more known legal language—to an extent which may become intolerable";and they say that there is a real danger of the sanctity of the juryroom being imperiled, which would of course damage the whole system.
Therefore, I think that this clause needs to be looked at again. There ought not to be any longer, I suppose, any sacred cows in our society. Everything seems to be capable of being put under a microscope and magnifying glass, and there is no reason in principle why there should not be a study of the jury system. But a procedure which would defeat the confidentiality of the juryroom would, I think, be disastrous. It would gravely undermine the administration of justice in the courts and, what is more important, the confidence of the public in it.
§ 6.48 p.m.
§ Lord Mackay of Clashfern
My Lords, the discussion of this matter at Committee stage has certainly been considered again by my noble and learned friend the Lord Chancellor and our colleagues. The situation as we see it is that Clause 8 is limited to dealing with the mischief identified by the Divisional Court in the New Statesman case, and we intend it to do no more than that. It is not intended to be the only law relating to juryroom secrets. We do not intend to replace the existing law of contempt in relation to the disclosure of juryroom secrets; nor the existing law, so far as it might apply, that the noble Lord, Lord Wigoder, referred to in relation to the protection of the administration of justice in ways other than by the contempt jurisdiction. The various possibilities that were discussed in Committee obviously might give rise to contempt under the existing law, or some of them could give rise to suggestions of gross professional misconduct; and there is nothing that we are seeking to do in Clause 8 which is intended in any way to change the existing law in that respect.
I agree with the point that the noble Lord, Lord Wigoder, made, that a good deal of what happens at the moment is voluntary. It is accepted, although I do not know that the reference to the Tower of London connotes to my mind a particularly voluntary restraint; but, still, in fact I think most people recognise it as being substantially voluntary. Clause 8 is really, in its present formulation, based upon the view that where the voluntary works then, on the whole, it is best not to interfere with it. Let it work on and deal only with the situation which has emerged in the existing law as providing a difficulty—as the New Statesman case pointed out. In that connection, may I mention the point about Clause 6(2), because Clause 6(2) is dealing with the earlier provisions as the noble Lord, Lord Wigoder, pointed out—
§ Lord Mackay of Clashfern
My Lords, I am referring at this moment to Clause 6(c). It had been referred to as Clause 6(2): 187Nothing in the foregoing provisions of this Act…restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice".The noble Lord, as I understood him, pointed to the fact that Clause 6 comes before Clause 8 and, therefore, this does not apply to Clause 8 at all. But the point with respect to Clause 6 is that some such provision as Clause 6(c) is required because the foregoing clauses restrict liability for contempt of court. Clauses 2, 3, 4 and 5 are intended to provide defences and, therefore, to innovate upon and restrict the present law of contempt of court. If you do not want these restrictions to apply to a deliberate contempt, you must say so. That is the reason for Clause 6(c).
Clause 8 does not do anything of the kind. It stands on its own. It is not an attempt to restrict the present law of contempt of court. It provides that what is there set out in fact is a contempt of court. That, on the ordinary construction, we suggest means that this is an additional provision, in addition to the existing law.
§ Lord Mishcon
My Lords, before the noble and learned Lord goes to another point, will he kindly deal with something which is worrying us? Where, in this Bill which is supposed to clarify the law of contempt, you deliberately deal with the question of juries and publications in regard to juries, is it obviously not desirable to cover the matters dealt with by this amendment, which the noble and learned Lord seems to think are desirable but which are now dealt with on a voluntary basis? I did not follow his argument in regard to not including this in this Bill.
§ Lord Mackay of Clashfern
My Lords, I am sorry. It is my fault if the noble Lord did not follow my argument. The argument that I put forward is that there is an existing law of contempt. We are not attempting to alter that law so far as Clause 8 is concerned except to add to that law a provision which deals with the mischief identified in the New Statesman case. Therefore, there is no reason to say anything about saving the existing law in Clause 8 because it does not purport to do anything except add a new provision dealing with this particular form of contempt. Accordingly, the existing system is unaffected by the provisions of Clause 8 except in so far as this new provision is a provision making contempt of court what is there set out.
We have not attempted to do more than that. The question is whether, by doing that, by a side wind, or by effect, you demolish the existing structure. I think that, in a nutshell, is what is suggested: that by putting in this specific provision in Clause 8 we would demolish the existing structure in consequence. We would suggest that that is not so. We do not demolish the existing structure. We do not in any way interfere with it. We thought it right not to go further than seemed to be necessary to deal with the particular mischief, and not to make inroads on the freedom of the press or anyone else in this connection more than is necessary to deal with the particular mischief. We think that, so long as the particular case is not identified, the system of jury trial is sufficiently meritorious, 188 sufficiently good, to stand up for itself to proper investigation, so long as the individual case is not identified.
The matters which have been raised in this discussion, I agree, show that there are important questions involved, and we have been glad to consider the memorandum which the Criminal Bar Association put together; we agree that it raises important questions. We have tried to examine these as best we can in the light of information available to us. It is of some comfort, I think, that the New Law Journal, looking at the various possibilities—because not all the objections are on the lines that the noble Lord has suggested; there are people who think that Clause 8 goes too far already—thought that on the whole, my noble and learned friend the Lord Chancellor, who claimed on the last occasion that Clause 8 was about right, is, in fact, about right; and that it does achieve a reasonable balance.
So our view is that, although the risks are risks to be considered, they are risks which should not lead us to depart from what is proposed in Clause 8 and certainly should not lead us to attempt a very large new structure in this particular area. The matters which have been the subject of discussion show, for example, that the noble Lord, Lord Wigoder's amendment would (as I think he accepted) make contempt incidents which he would not think ought to be treated as such. The juror who goes home and tells his wife, and so on, would be covered by the amendment, but it is not desirable to make that contempt of court. That shows how difficult it is to make a reasonable provision in this circumstance. We think it not right to cover such conduct, which is perfectly reasonable, by prohibitions of this kind, even if the consent of the Attorney-General should be required for the prosecution. There is also the question of whether a restriction as strong as that would not, itself, contravene the Convention on Human Rights. In the whole circumstances, we would suggest that these amendments should not be accepted.
§ Lord Wigoder
My Lords, I am grateful to the noble and learned Lord the Lord Advocate for that carefully considered reply. I accept that all the Government set out to do in Clause 8 was to achieve a limited objective to deal with the New Statesman decision. I am perturbed (and many of my friends are perturbed) that even that has been done perhaps unwisely in so far as it is now going to open the way for the sort of research and inquiries with a view to publication that we have been talking about. I am more concerned, as was the noble and learned Lord, Lord Scarman, with what we regard as the dangerous and wholly unintended consequences of the Government pursuing their limited objective in this way. They would be consequences which would not be caught, as I understand it, by the existing law.
I take the example of the Criminal Bar Association quoted. Supposing a defendant or his wife spoke to jurors after a disagreement in order to find out what it was that troubled them and whether a particular point might be dealt with more appropriately on the retrial. I do not believe that that could possibly be held to be a contempt of court; nor an attempt to divert the course of justice.
189 I am worried that, once this clause is enacted in its present form, then the present voluntary restraints will break down and there will be more and more inquiries of that sort which will, in due course, damage the jury system. Having said that, I do not think that this is an issue which ought to be resolved by the tramp of feet through the Division lobbies. I would hope to succeed in due course by quiet persuasion and, threatening in that way to return to the matter yet again at a later stage in the Bill, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 8 and 9 not moved.]
§ Clause 11 [Offences of contempt of magistrates' courts]:
§ 7 p.m.
Lord Scarman moved Amendment No. 10:
Page 5, line 9, leave out ("wilfully") and insert ("intending to do so").
§ The noble and learned Lord said: My Lords, I shall, with the leave of the House, deal with Amendments Nos. 10 and 11, though I think technically I must speak to Amendment No. 10. They both raise the same point. These amendments are no more than drafting amendments but I hope the House will think they have sufficient importance to be raised at this stage. I move the amendment in order that the Government may consider whether it really is appropriate at the end of the twentieth century to introduce into a new statute dealing with the criminal law the word "wilfully", which an academic commentator in the Criminal Law Review has described as "that old warhorse".
§ Clause 11 creates a contempt of court committed by anyone who wilfully insults the justices and certain other persons in the magistrates' court or who wilfully interrupts the proceedings of the court or otherwise misbehaves in court. It is to the word "wilfully" and its adjectival sister "wilful" that I shall confine my few remarks. The adverb and the adjective were familiar in statutes creating criminal offences in the 19th century. They caused all manner of difficulty for the judges. Sometimes they were interpreted as meaning no more than "deliberate" or "intentionally". In other statutes they were interpreted as implying a degree of malice or shamefulness.
§ The judges were at sixes and sevens. Unfortunately, these words have persisted, lingering on into the twentieth century statute law; and they are still causing difficulty. It is a statutory offence if one is guilty of the wilful neglect of a child. In 1898 the Lord Chief Justice of the day, presiding over a divisional court, interpreted wilful neglect of a child in a certain way. His interpretation ruled for almost a century. It ruled until 1981, when the House of Lords, by a majority of three to two, decided that the Lord Chief Justice had been wrong in 1898. Do not blame the judges, my Lords; blame the words that were used.
§ Why should we perpetuate this word in what we hope will be a very modern statute—most of us hope that the Bill will pass—and in our modern criminal law? Thanks to the study of the criminal law by the academic legal profession since the end of the war, and thanks 190 to the work of the Criminal Law Revision Committee and the Law Commission, a new up-to-date vocabulary for the criminal law has been developing. We now do not use (or we try to avoid using) words like "wilful", "malicious" and so forth; using less emotive, perhaps more clinical, words like "intention", "knowledge" and "recklessness".
§ The Law Commission, in Report No. 89 on the mental element in crime, advocated a standard terminology for modern criminal statutes. The Criminal Law Revision Committee, in their 14th report, strongly supported standardisation of the terms defining mens rea, that is the guilty mind required of an offence. It will be unfortunate if at this stage we maintain in existence such old and untameable warhorses as "wilful" and "wilfully".
§ I have in my hands an editorial from the Criminal Law Review for February 1981, written by a distinguished academic criminal lawyer. He speculates—probably rightly—that the reason why the word "wilfully" is to be found in this clause is because the equivalent provision for contempt of the county court, which is Section 157 of the County Courts Act 1959, uses the phrase. Of course it does, because that was re-enacting a provision which entered our law as Section 113 of the County Courts Act 1846. That is the whole trouble. We must get away, if we are going to move towards the goal of standardisation and simplicity recommended by the two committees to which I have referred, from the ancient, difficult and now obsolete vocabulary of the 19th century.
§ It is for those reasons that I ask the Government to reconsider Clause 11—just this one word where it appears twice—and to use simple, modern English either such as I have suggested in this amendment which proposes the words "intending to do so", or, as the Law Commission would prefer, "with intent to do so". I had some discussions with the Law Commission before putting down this amendment, and I have every reason to believe that they would look with favour upon a reconsideration of the place of this word in this clause. I beg to move.
§ 7.7 p.m.
§ The Lord Chancellor
My Lords, I shall of course be prepared, whatever happens to this amendment, to reflect about this at greater length. But may I just say what I am thinking at the moment about my noble and learned friend's amendment. I agreed with about 99.9 per cent. of what he was saying and I disagreed with about .1 per cent. of it. The trouble was that the 99.9 per cent. I agreed with was his argumentation, and the .1 per cent. was his conclusion. I absolutely agree with him that "maliciously" and "wilfully" ought to be taken out of the criminal statute book—or at any rate interpreted in such a way that one could substitute a more rational formula in both cases.
I very much sympathise with the Law Commission's desire to have a statute at some time to codify the mens rea aspects of the criminal law. It would be a very good idea, although all their particular definitions do not as a matter of fact appeal equally to me. They would have to he carried out under the auspices of the Home Office, because, as the noble and learned Lord on the Opposition Front Bench knows, it is a very 191 jealously guarded prerogative of the Home Office to promote changes in criminal law. Lord Chancellors have on those occasions to be seen and not heard. It is a pure fluke I am seen and heard because this Contempt Bill is my Bill. That would therefore be a very good thing.
The old war horse "wilfully" has been gelded this year by the House of Lords itself. It is no longer a war horse but a gelded one, because in the case of Sheppards, to which I think he obliquely referred, of wilful neglect of children, my noble and learned friend Lord Diplock has successfully performed the necessary surgical operation and "wilfully" has been satisfactorily defined, in relation to the neglect of children at any rate, in a way that nobody could complain of. There is no doubt whatever that in my lifetime, and even in the last 15 years since that dreadful case of Smith v. the Director of Public Prosecutions, the judges and particularly the judicial Appellate Committee of the House of Lords have moved very strongly towards a more rational description of mental acts than was current in the more austere days of 1898.
I think it has done a great deal of good. My noble and learned friend, of course, is perfectly right: this textually reproduces a section of an Act of 1959, which textually reproduces a section of an Act of 1946; but the problem that emerges from it is that where I want to produce the same result as the Act of 1959 in relation to county courts I have to use different language. The way to get this thing done properly must be to make a coherent sweep of these mental phrases so that the same language means the same thing whenever and wherever it occurs on the statute book. What my noble and learned friend is really asking me to do is to put in relation to one set of courts one set of language to mean exactly the same thing as is intended in relation to another set of courts and, much worse, to leave intact perhaps the 50 or more uses of the word "wilfully", where they exist, dotted about the criminal code—if I may use that phrase rather laughingly to describe the jungle of the criminal law.
However, I doubt whether it is good drafting practice to do that. I think it is better drafting practice to leave the words identical until we are prepared to deal with them all. As I say, I agree with 99.9 per cent. of what my noble and learned friend is saying, and if he will withdraw this amendment I will certainly reflect upon it again. I know what the Law Commission thinks, both in relation to this amendment and in relation to the coherence of our phraseology relating to mens rea. Whether in fact I shall yield to his blandishments is another matter. I would yield to them in a moment if I could control the whole field, though I would put in a caveat that the word "intent" has also from time to time given rise to considerable judicial discussion, if not difficulty. But to use a different word to mean the same thing as an identically worded statute in a different field of the law is, I would have thought, bad rather than good drafting practice. Having said that, I have gone as far as I can in support of my noble and learned friend.
My Lords, in supporting the noble and learned Lord, Lord Scarman, in regard to this amendment, specifically as a non-lawyer, as I understand it 192 what the noble and learned Lord the Lord Chancellor as a Minister of the Crown is saying in his argument is making yet again another argument by a Minister of the Crown for doing absolutely nothing at all. Unless a start is made in matters like this, nothing ever will happen. I myself am concerned about this. I think the case has been made out quite perfectly and deserves all the support it can get.
§ Lord Scarman
My Lords, I am very conscious of the point made by the noble Lord, Lord Morris: indeed, it is a echo in a less controversial area of a point made earlier dealing with a new clause before Clause 7 of the Bill. I will leave this matter, if I may, with one question and one very gentle correction, or perhaps even a "broadening of the experience" of the noble and learned Lord the Lord Chancellor. The question is this: Is it really a very serious situation if we have in a 1959 statute that contempt in the county court is wilfully doing this, that or the other and we have in a 1981 statute a provision that someone who insults the justices, intending to do so, is guilty of contempt? If one gets behind the rhetoric and looks at what is proposed in its proper context, is there really any very great danger to drafting practice or to the consistency of the law if the obsolete model still goes on for a bit in 1959 and the modern model, in language we all understand, finds itself in the 1981 statute? That is the question I would certainly ask the Government to consider.
As to broadening my noble and learned friend's experience, he seemed to think that geldings were less dangerous than entire horses. Anyone who has followed, as unsuccessfully as I have, the fortunes of the turf will know that geldings very often come in, to the consternation of all of us, at very long prices. I would love to think that "wilful" is a gelding, but I would not like the noble and learned Lord the Lord Chancellor to stand within the kick of the animal even though it was a gelding!
§ The Lord Chancellor
My Lords, by leave of the House, I do not think that anything very dreadful would happen if this amendment were accepted, or I would not have spoken as favourably of it as I did. But, speaking with great humility, I feel that one of the functions of the Lord Chancellor is to try not to make the statute book even worse than it is, and although I would shed few tears if two identically worded sections were separated one from the other, meaning the same thing but expressing it in different words, I think it would be a slight pity—I would put it no higher than that—and I think it would be better to leave it alone and deal with it ordinarily.
As regards this question of geldings, I do not bet on horses but I know that the warhorses of old were not geldings. As for an argument in favour of doing nothing, the whole of my Bill is an experiment in trying to do something. I am afraid that I am being rather "the toad under the harrow": if people try to make me do too much I am afraid that I shall lose my Bill. However, I will reflect upon this point, if my noble and learned friend will let me. To tell the truth, I do not feel very strongly about it.
§ Lord Elwyn-Jones
My Lords, my own feeling, in view of what the noble and learned Lord the Lord Chancellor has said, is to say:To horse, to horse, and away!
§ Amendment, by leave, withdrawn.
§ [Amendment No. 11 not moved.]
§ Clause 18 [Interpretation]:
§ 7.19 p.m.
Lord Morris moved Amendment No. 12:
Page 8, line 25, leave out from ("State") to ("and") in line 27.
§ The noble Lord said: My Lords, this amendment is not a horse, not even a little horse, but a very, very little fish. I believe that the noble and learned Lord the Lord Chancellor will find it a great deal more palatable than the larger fish which was placed before him at an earlier stage of the Bill. It is purely a tidying-up measure which was suggested by my noble friend Lord Renton at the Committee stage; namely, to draw together all the references to proceedings of a tribunal to which the Act of 1921 applies. I shall not go through the argument again, but I think this is a minor improvement in the drafting of the Bill. The tribunals of inquiry under the Act of 1921 are, as your Lordships are well aware, a very special type of hearing. In fact, if I recall rightly, there have been only 16 of the hearings in the 60 years that have passed since 1921. With that, my Lords, I beg to move.
§ The Lord Chancellor
My Lords, I am very happy to accept this amendment and I think my noble friend has performed a service in advocating the principle underlying it. The House, when in Committee, discussed the matter earlier and my noble friend Lord Renton, who could not be here today, pressed me hard on the principle of the amendment. I said that I would take the draftsman's advice, which I have done, in spite of my noble friend Lord Renton, who rather thought that it was a wicked thing for Lord Chancellors to take the draftsman's advice. The draftsman's advice is that I should accept this amendment, and I may modestly say that I myself had nothing whatever to do with the drafting of it.
§ On Question, amendment agreed to.
Lord Morris moved Amendment No. 13:
Page 9, line 8, leave out subsection (2).
§ The noble Lord said: My Lords, this amendment is consequential. I beg to move.
§ On Question, amendment agreed to.
Lord Morris moved Amendment No. 14:
After Clause 18, insert the following new Clause:
§ ("Tribunals of Inquiry
§ .—(1) In relation to any tribunal to which the Tribunals of Inquiry (Evidence) Act 1921 applies, and the proceedings of such a tribunal, the provisions of this Act (except subsection (3) of section 9) apply as they apply in relation to courts and legal proceedings; and references to the course of justice or the administration of justice in legal proceedings shall be construed accordingly.194
§ (2) The proceedings of a tribunal established under the said Act shall be treated as active within the meaning of section 2 from the time when the tribunal is appointed until its report is presented to Parliament.").
§ The noble Lord said: My Lords, this amendment is consequential. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 1 [Times when proceedings are active for purposes of section 2]:
§ 7.22 p.m.
§ Lord Gardiner moved Amendment No. 15:
§ Page 10, leave out lines 23 to 29 and insert—
- (" (a) in England and Wales, when the accused person is charged or a summons served;
- (b) in Scotland, when the person is publicly charged on petition or otherwise or at the first calling in court of a summary complaint.").
§ The noble and learned Lord said: My Lords, we had a very good discussion on this amendment at Committee stage, and it is not my intention to repeat the arguments that I then advanced. I pointed out that this is the one point on which everybody concerned is against the Government in departing from the Phillimore Report. When I say "everybody", I mean The Times, the Guardian, the leading serious newspapers, the legal journals, the legal societies, the Law Society, and so on. In reply, the noble and learned Lord the Lord Chancellor, in his usual robust manner which we all enjoy so much, said that I ought to have referred to Sutcliffe's case.
§ There were two sub judice cases. The first was the case of a man named Tuite who escaped from custody; he has not been seen since and is now believed to be in Ireland. The second was the Sutcliffe case. Of those two, I had on the morning of the Committee stage considered very carefully what Mr. Speaker had ruled as to the application of the sub judice rule. I think we are all agreed that while, in ordinary circumstances, neither case should have been referred to, there is the one exception that, even in detail, cases which are sub judice may be referred to in the context of discussing legislation in Parliament. So we were entitled to refer to either of them.
§ I thought that, as Mr. Tuite had got away, and as his trial was not at all imminent because nobody knew where he was, I should be safer in discussing that case than the Sutcliffe case. But in his reply, the noble and learned Lord attacked me for not mentioning Sutcliffe. I had not mentioned what The Times said about Sutcliffe. I had not mentioned what The Guardian said about Sutcliffe and, as he said quite rightly, the press behaved disgracefully about the Sutcliffe case.
§ The reason why I did not, was because I could draw the lesson which I thought ought to be drawn from both cases equally; namely, that each case had been preceded by the police officers in charge of the case summoning a press conference and then making observations which some might have thought to be in contempt of court themselves. The point which I was respectfully making, which applied to both cases, was that to enforce a law you must have the general body of public opinion behind you, if possible, and that I do not think you will ever get a case where you can 195 send an editor to prison merely because he has reported something which a senior police officer has said at a press conference called by him.
§ We remain in very much the same position. The Times, quite rightly, denounced the conduct of the press in the Sutcliffe case. But I thought, if I may respectfully say so, that what the noble and learned Lord said about Sutcliffe—and I am not talking about Sutcliffe—was something of a red herring, as, first, the Government had not decided to jettison Phillimore on the wording of this Part of the Bill because of anything in the Sutcliffe case, because that had been decided a long time ago—
§ The Lord Chancellor
My Lords, I am reluctant to interrupt, but the point I made was quite different from that. I said that on Second Reading I had treated the matter as very nicely balanced, but that Sutcliffe had enabled me to make up my mind because it was such a startling example that I was right.
§ Lord Gardiner
My Lords, that, of course, I can understand. The Sutcliffe case itself did not happen because the law as to when strict liability should start was at an earlier place rather than later.
In the last communication of the Law Society—which is not a notoriously Left-Wing body—on this matter, it said:We continue to favour the Phillimore proposal. We agree with that Committee's view that the law of contempt, combining strict liability and a summary procedure, should be invoked only where there is"—and then they quote from Phillimore—'a serious and immediate threat to the administration o[...] justice. This in practice is only likely to arise when the trial is due to take place in the near future'.Furthermore, it should also be borne in mind that strict liability is only designed to control the publication of comment which inadvertently causes prejudice or the risk of prejudice. Where the risk is deliberately created, this constitutes contempt regardless of whether strict liability applies or not and this applies to the publication of comment which the publisher knows, or ought to know, to be likely to have this effect, even if not actually intended to do so.In paragraph 6 in Part I of this paper, we mentioned the disquiet which had been caused by the decision of the West Yorkshire Police Authority to hold a press conference after an arrest but before a charge was laid in a recent case, and the possibly prejudicial press reports to which this gave rise. It has been suggested that this incident is evidence of the need for strict liability to run from the time of arrest or issue of the warrant instead of the time of the charge or summons.Distasteful as the incident and its consequences were, we do not agree this conclusion should be drawn from what happened. It was not the absence of strict liability which allowed these reports to be published. There can be no doubt that all concerned knew that proceedings were 'imminent' at the time of the press conference and that the matter was thus sub judice. It is regrettable that this was not sufficient to dissuade certain newspapers from departing from their usual practice in dealing with such matters, but what the incident showed was that strict liability failed on this occasion as a sanction and not that there is a need for a longer strict liability period than that recommended by Phillimore".Then they go back again to their original view, that the time should be when the accused is charged or a summons is served, and not the earlier period.
196 Of course, this Bill has, in any case, to go to another place, but I hope that the Government will continue to think about this and, possibly, to feel that where every single knowledgeable person takes the view that Phillimore was right, it is conceivable that the Government might be wrong. But unless the noble and learned Lord the Lord Chancellor now tells me that he has changed his mind since the Second Reading of the Bill, I shall later on ask leave to withdraw the amendment. My Lords, I beg to move.
§ 7.29 p.m.
§ Lord Mackay of Clashfern
My Lords, one way and the other we have been over the arguments about this matter on a number of occasions, both in sittings on this Bill and indeed earlier when various possible dates were under examination. The point about the recent case, to which the noble and learned Lord, Lord Gardiner, referred, is that, so far as we can judge, the matters to which he referred, which he described as objectionable, took place at a time which, if this amendment were to pass, would not be a time to which the strict liability rule would apply, because they took place at the time of arrest. We say that to choose the time of arrest is a very reasonable time to take. It is a time which is likely to be important. It is a time when a relationship with the court is set up and when, in a real sense, it can be said that the proceedings have properly begun in respect of which the protection is to apply. Accordingly, so far at least our view is that the date in this Bill which we have chosen both for England and Wales and for Scotland is correct, but we will certainly continue to consider all that is said on the subject.
§ Amendment, by leave, withdrawn.
Lord Fraser of Tullybelton had given notice of his intention to move Amendment No. 16:
After Schedule 4, insert the following new Schedule—
§ INFERIOR COURTS AND TRIBUNALS
§ Magistrates Courts
§ County Courts
§ Coroner's Courts
§ Courts Martial
§ Consistory Courts
§ Lands Tribunals for England and Wales and for Scotland
§ Employment Appeals Tribunal
§ Industrial Tribunals for England and Wales and for Scotland.
§ Any court or tribunal or which the Chairman is, or has the status of, a judge of the High Court in England and Wales, or of the Court of Session in Scotland.").
§ The Lord Chancellor
My Lords, I take it that Amendment No. 16, standing in the name of the noble and learned Lord, Lord Fraser of Tullybelton, is not moved because it falls with Amendment No. 5.
§ Lord Elwyn-Jones
My Lords, what the noble and learned Lord has said is absolutely right. That completes the business.