§ 3 Clause 7, leave out Clause 7.
§ 5.52 p.m.
§ The noble and learned Lord said: My Lords, with the leave of the House, I beg to move that this House doth agree with the Commons in their Amendment No. 3. Your Lordships may remember that this was very widely canvassed, both in the earlier stages in your Lordships' House and in the press. The noble and learned Lord will remember that he moved an amendment which, originally, would have met with my own approval in the Bill; but he moved that the effect of Clause 7 should be covered by a little list. This was what I originally wanted to do, but I was strongly advised by the very experienced draftsman who was advising me in such matters that it was not possible to do so. Indeed, at Committee stage the noble and learned Lord did not attempt the task which I had been advised was impossible. I believe this also had a certain amount of support at Report stage—although I am speaking from memory—among the Cross-Benches.
§ The Attorney-General promised in the other place to give the matter further thought. So did the draftsman. Indeed, he produced a list which had all the disadvantages I had foreseen and which, I believe, 238 would not have pleased anybody. There are two fundamental difficulties; one was that the list would have to refer to proceedings and not simply to tribunals, and the other was that it was impossible to devise a list that would not have led to endless wrangling as to what one should omit from it or add to it.
§ Earlier in the discussions the noble and learned Lord, Lord Gardiner, asked why the clause was in the Bill at all, and that was also the view of the press. I will just remind your Lordships what the clause was doing in the Bill. It was included for the benefit of the press, because after the BBC case, when your Lordships' House exercised your judicial jurisdiction, there were speeches by five noble and learned Lords, including one by my noble and learned friend the late Lord Dilhorne, and they did not give quite the same reasoning. The object of Clause 7 was to assist the unfortunate editor by formulating the test in a form basically founded upon the reasoning of my noble and learned friend Lord Scarman. But as the press object to it and do not want it, and since it has been moved out of the Bill in the Commons, I suggest that we should leave it there and not pursue any more controversy about it. I beg to move.
§ Moved, That this House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)
§ Lord Elwyn-Jones
My Lords, I agree with both the Commons' amendment and with what the noble and learned Lord the Lord Chancellor has just said. A provision which extended the law of contempt to the proceedings of all inferior courts, tribunals and bodies, however described and whenever established, when it was impossible for those advising the noble and learned Lord to identify them, would really have put upon the unfortunate editors an even greater task, and I believe wisdom has been shown by removing the words of Clause 7.
§ Lord Wigoder
I should like enthusiastically to support this amendment. I was one of those who at Second Reading criticised Clause 7 on the grounds that it quite obviously created an intolerable burden upon the press in seeking to impose the strict liability rule upon the proceedings of the hundreds of tribunals which sit every day in this country. I point out also that conscientious editors who ventured to do their duty would inevitably be baffled by the criterion that a tribunal was to be included in the clause if it was one constituted by law and exercised any part of the judicial part of the state.
Therefore, I welcome very much the removal of a clause which may not have been intended to restrict the press but which undoubtedly would have had that effect. This clause is one of those which was used by The Times in pointing out in a leading article that the House of Commons had done its duty whereas your Lordships' House had failed to do its duty. I believe that was a total misunderstanding of the position because what happened was that on this clause, as on many other clauses, the arguments started in your Lordships' House when the Bill was first introduced. At that stage public opinion had not yet solidified behind the arguments which had been put forward, and the noble and learned Lord on the Woolsack 239 perfectly properly resisted at that stage almost every attempt to amend this Bill. When this Bill went to the other place, the arguments which were used in your Lordships' House were redeployed in the House of Commons, but by that time public opinion had strengthened and there was a clamour in favour of many of the arguments which had started in your Lordships' House. In those circumstances, perfectly properly, the Attorney-General conceded a number of the very important points which had been registered in your Lordships' House. Far from being a criticism of the proceedings in your Lordships' House, I believe that the way in which the amendments have come to be made to this Bill is in fact a very good justification of two Chamber Government, and a very good example of the way in which it should work.
§ The Lord Chancellor
I am very grateful to both noble Lords for what they have said. I am particularly grateful for the words which have fallen from the noble Lord, Lord Wigoder, who explained the purpose and working of the parliamentary process in a way that I find wholly acceptable. The only coda I would add to that statement is that my right honourable and learned friend did of course ask for my approval first, before he made the concession, and we were perfectly in agreement with one another. I rather doubt whether the press quite realised the situation which they have brought upon themselves—but still, they asked for it and they have got it.
§ On Question, Motion agreed to.
§ 6. p.m.
§ The Lord Chancellor
My Lords, we now come to Amendments Nos. 4 and 5 and the Motion standing in the name of the noble Lord, Lord Hutchinson. I have taken advice on this and I am told that the right course, in accordance with the procedure of your Lordships' House, is to call the Motion standing in the name of the noble Lord, Lord Hutchinson, before moving my own Motion, which would be to agree with the House of Commons in Amendments Nos. 4 and 5. I do now so call upon the Motion in the name of the noble Lord, Lord Hutchinson.