I beg to move, to leave out Clause 10.
I am afraid that here I have not been able to find any way of appeasement. This is rather a tiresome little point which I shall have to explain, I hope not at any length, but I think I must -explain the position in detail. The Clause as it stands says:
No proceedings for defamation shall be taken against Her Majesty's Stationery Office or against any other publisher or printer who at any time shall be authorised by either House of Parliament to publish or print any proceedings of that House by reason of the fact that such publisher or printer shall have published or printed any extract from the Official Report of either House of Parliament.
As we are all aware, there is no doubt about the privilege which attaches to the OFFICIAL REPORT itself. But this Clause refers to an extract from it, and it is particularly relevant in connection with the practice, indulged in more by some hon. Members than others, of securing extracts from those speeches and sending them round in large numbers to their constituents—grateful or otherwise. The object of this Clause apparently was to secure that the maker of the speech should be able to do that whenever he wished; in other words, to give him almost carte blanche to get those extracts and circulate them. It was on that basis that the Clause appears to have been passed during the Committee.
Again I have to apologise for not having been there at the time. I can only say, in mitigation, that I was concerned in a case dealing with the liberty of the subject in the High Court and that that does take precedence, of course, over everything else. I read the debate carefully and I venture to think that there is some misunderstanding about this matter. It was first said that the Crown Proceedings Act, 1947, had altered the position; that before the Crown Proceedings Act this would have been done, this extract could have been published, even though it contained something alleged to be defamatory.
With respect to those who put forward that argument. I think they were unintentionally misleading the Committee. It was the fact that before the Crown Proceedings Act the King's Printer was liable to an action. Compensation would be paid, if it had to be paid, on his behalf by the Crown no doubt, but the King's Printer was liable to an action, and in 1947 the Crown Proceedings Act did not alter the position.
The position was that in every case the Stationery Office took it upon itself to decide whether there was anything objectionable in the extract, and I am informed that that is exactly the same position today after the Crown Proceedings Act; and that it would be exactly the same position if this Clause was passed. The Treasury, who is responsible, would instruct the Stationery Office that they should always scrutinise an extract, and if there were something really undesirable in it they should exercise the right they undoubtedly have, and indeed the duty they feel they have, not to allow it to be circulated.
I venture to think that that does very materially alter the situation as it appeared in Committee, because this Clause, if it is passed, will not give any kind of vested right in every case. The Stationery Office will consider that it is bound—and I venture to think hon. Members will think it ought to consider itself bound—not to say, "We can circulate anything," but to look at it on its merits. Those are the instructions they have, which is not what the hon. Member for Oldham, West (Mr. Hale) said, or was understood to say.
I think I am not doing him an injustice, I sincerely hope I am not, if I say that he said the Stationery Office wanted it. I would hate to quarrel with the hon. Member at any time, and particularly today, after what we both were doing during the early hours of the morning, but I think that he misunderstood. It may be that at some time someone informed him that the Stationery Office wanted it. All I can say is that my instructions are that today they do not want it.
In those circumstances is it really a desirable thing that we should pass this Clause giving this added privilege which is not wanted, and which will have no useful effect at all? I do not think I can add anything to that. I will take it on the broad line that this Clause was inserted under a misapprehension in the Committee stage, and my advice to the House is to exclude it.
I wish to raise a point which was not originally raised by me, but by my right hon. and learned Friend the Member for Sheffield, Neep-send (Sir F. Soskice) who, unfortunately, is not here today. It is a point on which I would be grateful if the Attorney-General could enlighten us.
I appreciate what he says about the Crown Proceedings Act, and the position of the Stationery Office before the passing of that Act, and since. Obviously, what he has said completely changes the whole atmosphere in which the debate took place in Committee. The difficulty is that I do not know how often it has occurred in the past. We are, in this Clause, dealing with a case where a Member of Parliament wishes his speech or an extract from his speech to be published by the Stationery Office or by the Queen's Printer or whoever it is.
The question may then arise whether or not, apart from this Clause, there is any defamation contained in the speech and whether it should be published. I understand that in the past the printers have taken an option on that. What my right hon. and learned Friend was deeply concerned about was that that case for opinion should find its way to the Law Officers of the Crown, and if it should that they would be in an extremely invidious position. If that position can arise, it is obviously one of extreme difficulty. It would mean that the Law Officers would, in effect, have to decide that a speech made in the House of Commons by another Member of Parliament should not be published.
There may be some cases where defamation, admittedly, would be so clear that no question could arise and there would be no difficulty. But suppose the problem arose over a matter of acute political controversy, and the Law Officer in question had to advise on the publication of a speech made by an hon. Member on the opposite side of the House on a matter on which there was great party controversy and on which it might not be too clear that there was, in fact, a defamation, although the Law Officer held the view that there was.
If that position can arise, or is likely to arise, as things are now it is a matter to which the House should give its consideration. In those circumstances there would be a great deal in favour of this Clause. I am sure that the right hon. and learned Gentleman knows of this point and that what he has to say on it will be listened to with great interest.
I should like to comment on what the hon. and learned Gentleman has said. I am sure he will realise that this is rather an embarrassing sort of subject to discuss. As he has asked me the question I must answer it. I should like to suggest this point to the Committee. As the hon. and learned Gentleman knows from personal experience, there are often difficult and delicate questions which have to be decided by the Law Officers. They manage to do that, I believe, without any terrible consequences.
It is always possible for them to take a second opinion on the subject from an expert. I admit that I can do that profitably on some occasions. If one was considering whether or not a matter was defamatory, much the best course to take would be to get the assistance, to which we are always entitled and on which we rely very strongly, of someone who was an expert in that branch of the law.
I should have thought that there was not much difficulty about that. If allegations or criticisms are made on political grounds, our backs must be broad enough to carry them. The proper thing to do is to decide according to our conscience and according to our legal views and knowledge, and not to mind very much what people say about it.
One has to weigh one consideration against another. We have to put in the balance that awkwardness and difficulty which sometimes arises and, on the other side, the consideration that this idea of publishing extracts from one Member's speech is one that does not deserve a great deal of stretching of points to support. It is highly desirable that the general public should read what an hon. Member says in the setting in which it was said, not only that they should read the whole of his speech—which this does not require—but also that they should read the rest of the debate.
Therefore, I feel that one should not have a great deal of sympathy with someone who wants to take one sentence out of his speech and get 40,000 copies of it printed and spread all over the place. That may give a totally misleading impression. One needs to have a sense of proportion in this matter.
I moved this Clause in Committee. I am sure that the whole House shares my regret today that my hon. and learned Friend the Member for Hornchurch (Mr. Bing) is not with us because he would have added to our debate, as this was his proposal. I should like to tell the House, in confidence, just what happened. My hon. and learned Friend was engaged in one of those private meetings of Members in another part of the House which are fully and accurately reported in the Press. He handed his notes to me and asked me to move the Clause.
It was moved to help the Stationery Office. They do not want to be helped. In those circumstances, I do not see why I should worry about it for very much longer. Had the Attorney-General moved this Amendment on that ground, I should have left it at that. But he made some observations on the law which he ought to know is a very dangerous thing to do. We have had a classic example today that there is an important point here. I am glad to see that my hon. and learned Friend the Member for Horn-church has been able to join us.
It will be remembered that in Committee I quoted the case of Lord Barnard, who quarrelled with his solicitor —a fatal thing to do—and decided to say the rudest things he could about his solicitor in a speech in the House of Lords which, of course, was absolutely privileged and which was a new form of being rude to one's lawyer.
Unfortunately, he then decided to disseminate the statement. In respect of that dissemination he was prosecuted, convicted and, I believe, fined £100 and sentenced to three months imprisonment. That was what I would call a happy ending to an interesting story. This morning my right hon. Friend the Member for South Shields (Mr. Ede) voiced similar statements about the legal profession. Heaven knows where it may end if he pursues these observations. I have it in mind that my right hon. Friend's principal contacts have been with Law Officers and with ex-Law Officers, and he may necessarily have a somewhat jaundiced view.
I must apologise for not arriving earlier to deal with this Amendment. As far as I am concerned this Clause has had an unfortunate Parliamentary history. It was moved in my absence and now I understand that consent to its deletion has been given in my absence by my hon. Friend the Member for Oldham, West (Mr. Hale). It would not be proper for any of us to seek the opinion of the Stationery Office permanent officials. What I did was to secure the opinion of my right hon. and learned Friend the former Attorney-General and my right hon. Friend the former Financial Secretary to the Treasury. I did not feel in the least inclined to accept the point of view of my hon. Friend the Member for Oldham, West.
This is a most important matter. It means that every hon. Member's speech is, or can be, submitted to the Attorney-General for censorship if the Stationery Office so desire. That has, in fact, taken place. I hesitate to mention it in his absence, but I understand that one hon. Member opposite at one time was refused the reprint of a speech on an important public matter on the ground that it might contain reflections on hon. Members on this side of the House. Well and good. Let the hon. Members who are affected take their own remedy.
The object of this Clause is to prevent the submission of Members' speeches to the Attorney-General for the purpose of his expressing a view on them one way or the other. It really is absurd that the Attorney-General should defend that point of view. If he is prepared to say, "I will give instructions that the Treasury Solicitor will not be advised to examine any hon. Member's speech" then, in view of the indemnity form contained on the form which is filled in by hon. Members when they ask for their speeches to be reprinted, it would be right and proper for the House to agree to this Amendment. Otherwise, I should never agree to this Clause being removed.
The legal position is simple and obvious. Every Member is responsible and can be proceeded against for libel for his speeches in this House. It was once thought by an ingenious Member of the House of Lords that it was possible to make a speech in Parliament and to send it to the newspapers for the purpose of general dissemination and, in that way, to escape the dangers of a libel action. He had had some quarrel with his solicitor—probably justified I should think, in view of the speech just now by my hon. Friend the Member for Oldham, West. He thought fit to make a speech about this gentleman's conduct in the House of Lords and to send it to the newspapers for publication.
The solicitor, like my hon. Friend the Member for Oldham, West, being not only inclined occasionally perhaps to overemphasise his own point of view and that of his hon. Friends, was also an extremely good solicitor. He immediately took libel proceedings and it was held that the speech was not privileged. The same situation arose in the case of Mr. Creevey, the diarist, who was in a worse position. His speech was misreported. He sent out a corrected version and was, therefore, proceeded against for libel on the corrected version though the uncorrected one might have been protected.
As a result of that, the legal situation was that, until now, under the orders of this House, hon. Members could secure reprints of their speeches. If they did that, of course, they were—and they still will be, if the Bill is left as it is—liable for any libel which occurs in that speech. They will be personally liable. Of course, the copyright of that speech resides in the reporters who take it down—the OFFICIAL REPORT—and, therefore, in order to reproduce the speech textually in that way, the hon. Member has to secure the permission of the OFFICIAL REPORT. What the OFFICIAL REPORT says is that the speech will be reprinted by them if the hon. Member will fill in a form, and it can be reprinted quite cheaply, because the type is already set up.
This matter first came to my attention in the days of the late Administration, when I had occasion to make a speech on the rather technical matter of street planning in my constituency. I used various material provided for me by a local source of the highest repute, which was afterwards published in the minutes of the Hornchurch Urban Council, though it had not been published at the time that I used it.
Somebody, quite properly, looking at that speech said, "It might be libellous on somebody; supposing these things are not true?". He proceeded to submit the speech to the Treasury Solicitor. I said that I understood that everything in the speech was true, and that I would be very pleased to see the Treasury Solicitor, bearing all the authority in the matter, and prove that I was correct, but the answer I got was that it would be improper for me to see the Treasury Solicitor. I prepared it on the advice of someone not personally concerned at all.
This is the position at the moment. As I understand it, so difficult and so unfair did the former Attorney-General find the position that he consulted with Mr. Speaker, and it was suggested that this task of deciding whether hon. Members should or should not have their speeches reprinted should be left to Mr. Speaker, but Mr. Speaker and his Committee refused to undertake this task. That is the present position; let us be quite clear about it.
Now that we have the Financial Secretary to the Treasury here, perhaps he can tell us. He is the responsible officer for the Stationery Office. Does he or does he not want to be in the position of having to censor the speeches of hon. Members? It is a most invidious position and a stupid one, because if an hon. Member wishes to circulate his speech, all that he needs to do is to buy a number of copies of HANSARD and send them round. If he is poor, or if he wants to give it a wider circulation, if he gets his speech reprinted, he has not got the same freedom of circulating his speech in reprint form as in HANSARD.
The matter is even worse than that, because, in the particular case in which I desired to circulate my speech, I also had secured the permission of the Minister to circulate his answer, and that, in fact, comprised the whole debate, so that this was a fair, accurate and complete report of the whole debate. Yet I was prohibited from circulating the whole of that debate, not because there was anything libellous in it, but because the Treasury Solicitor could say that he was not prepared, in those circumstances, to consult or make any further inquiries whatever.
That is a most unsatisfactory position, and I cannot possibly see how the Attorney-General can come to the House and defend his right to censor an hon. Member's speech without even consulting the hon. Member concerned, but that is the present position. It is no good saying that the Stationery Office would like to have this power. This is political power which does not. exist always on the opposite side of the House.
Normally, a Minister is held to be responsible for his Department, and the Minister who should answer is the Financial Secretary to the Treasury. If an hon. Member does not get a speech reprinted, presumably, he ought to be entitled to ask the Financial Secretary to the Treasury why it was not reprinted, but the answer that he will get is that the Stationery Office were advised by the Treasury Solicitor that the matter was libellous, and, when they are asked whose opinion they took, the answer will be that they took the opinion of the Law Officers of the Crown, and yet the only person whom the Law Officers of the Crown do not consult at that time is the hon. Member concerned.
In these circumstances, an hon. Member is in the position in which he really cannot have his speech reprinted at all. The Attorney-General tries to make a joke of this, but it is not a joke at all.
My hon. and learned Friend the Member for Hornchurch (Mr. Bing) did not tell me that he was going to take half a day off today, and I have had to make the best case I could in his absence. I presented it in the best way I possibly could but, because the Attorney-General has written me a personal note on a point of substance which I only received this morning, I could not therefore deal with it. I could not delegate delegatus non potest delegare, It was a question of taste, and the hon. Member knows de gustibus non est disputandum, and, on the whole, I came to the conclusion that it was a case of de minimis non curat lex.
In these circumstances, I am quite prepared, in view of what my hon. Friend has said, to clear him personally.
I did not intervene, much as I would have liked to have done, during the whole day which we spent on this matter on the last occasion, but I wanted to urge on the Committee the importance of trying to meet this particular Amendment, and I do not see why, in those circumstances, I should abandon that attempt now, despite the intervention of my hon. Friend.
This really is a very serious point, and the Attorney-General has said quite rightly that, while, obviously, the speeches of some hon. Members would be better not printed, the speech that is probably of value is the one that deals with a local issue and some important local matter which, owing to the shortage af newsprint, is not fully reported in the local newspaper. This Bill will do a great deal for local newspapers in making it more difficult for someone, faced with a difficulty in misreporting, to get the matter corrected. My hon. Friend says not; I do not know, but this Bill does a great deal for the newspapers.
In these circumstances, I hope that the Attorney-General will allow the continuation of a Clause the purpose of which is merely to protect the right of an hon. Member to circulate his speech, if he so desires. In fact, it does much more for the other side of the House than for us here. It would be unfair to give examples which I have discovered of speeches which have not been circulated for various reasons, but it does place an hon. Member in a very difficult position.
Let us suppose that he has a point of great local importance, and that he goes to the Stationery Office and invites them to reprint his speech. They take advice of the Treasury Solicitor without consulting the hon. Member at all, and they merely tell him that they consider that there is something libellous in his speech. If he goes to any other printer, what is he to say? In all honesty he must say that he tried to get the speech printed and that the Treasury Solicitor said there was something libellous in it. "All right," says the printer, "cut out the libellous part." "Oh," says the unfortunate Member, "I do not know what it is, because the Treasury Solicitor will not tell me what he considers libellous." Therefore, the position is that an honest Member is not only unable to get his speech reprinted by the Stationery Office, but also reprinted by anybody else.
That seems to me to be an unfortunate position. The Attorney-General has been courteous over this, but I do not think he appreciates the point. In the last Parliament—and I think my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) would back me in this—I took the opportunity of consulting both my right hon. and learned Friends who held the offices of Attorney-General and Solicitor-General respectively. Both agreed with me that the present position of the law was bad and wrong, and both agreed that this was a result of a condition that nobody expected to occur from the Crown Proceedings Act, and that we should take the opportunity of correcting the matter when we could.
This Bill is going from us to another place, and it will have the opportunity of expert legal scrutiny there. I appeal to the Attorney-General to leave this Clause in the Bill and to leave the matter to the judgment of the other place. If, after letting the noble Lords there see what the arguments are, he is proved right and I am proved wrong, then let it be struck out there. But if I am right, let us take this opportunity of putting right a small though an extremely aggravating difficulty in which hon. Members can be placed.
At a critical time in General Elections or local elections it may often be of great value to an hon. Member to get a quick reprint of a speech and to circulate it in his constituency. But, as matters stand at the moment, he is prevented from doing that not only by the Stationery Office, but by any other printer as well. In those circumstances, I hope that the hon. and learned Gentleman will fall in with the suggestion I have made.
I would not generally be in favour of this House relying on a decision taken elsewhere. Having heard my explanation, I hope that the hon. and learned Gentleman will agree to that view. In these circumstances, I would certainly press for the retention of the Clause, which was put in by the Committee. As I say, I apologise to the House for my absence, but I suppose that I have to get some sleep some time.
Because I do not want to be like a late Member who always used to dream that he was addressing the House, looked around, saw all the Members yawning, and then woke up to find that he was.
In these circumstances, I apologise for being late. As I understand, the only argument adduced was that the Stationery Office have not offered an opinion. It would, of course, be improper for me to canvass the views of the permanent officials of these bodies, and I hope that in the circumstances the Attorney-General will reconsider the Amendment and leave the Clause in the Bill.
It is with very great reluctance that I differ from the views just expressed by my hon. and learned Friend the Member for Hornchurch (Mr. Bing) but I must differ from him on the fundamental position he has adopted, that a Member has the right to have his speech reprinted by the Stationery Office. I think that is a privilege; I do not think it is a right.
Neither do I think it would be right that a person who happened to be libelled or defamed in a speech reprinted in those circumstances should not have the usual right of a defamed person to proceed against the printer, the publisher and the author, but only against the author, because it may very well be that the author might be a person against whom any remedy normally obtained in the court might, in fact, be unenforceable. That is something of which I think we should not lose sight.
Of course, Members are sometimes challenged—I have not heard it much in recent years, but it was a practice some years ago when debates were far more personal—to repeat outside the House a statement made in the House because it might very well be that while it was privileged in the House it would not be privileged outside. The person defamed might then have the opportunity of proving before the courts that the statement made about him was, in fact, a defamation of his character. I think we ought to preserve that position as much as we possibly can. I dissent entirely from the view that a Member has the right to have his speeches reprinted by the Stationery Office as if it were something which attaches to membership of the House.
When I made my maiden speech, a relative of mine who owned a local newspaper published it in full, with, of course, the necessary embellishments of loud cheers and laugher which, after all, make a speech far more readable than a mere reprint from HANSARD. I paid for several hundred copies of that report to be reprinted and circulated to people whom I thought might be duly impressed when they received it. It was not until afterwards that I discovered that it is cheaper to get one's speech reprinted from HANSARD, although I do not happen to have had a speech reprinted for the last 17 years. My style of oratory has deteriorated during that period.
I share the view expressed by the Attorney-General that it would be a mistake to continue this Clause in the Bill, and although my hon. and learned Friend apologised for it I must say that I always view with misgiving anyone on this side of the House thinking that right will be done in another place when he has not managed to secure it here, because I have no trust in the other place at all.
As I say, I regret having to differ from my hon. and learned Friend, and I would not have spoken but for the fact that he claimed this reprinting as a right. In my view it is only a privilege, and I think it right that legal opinion should be taken as to whether the proposed reprint is, in fact, defamatory before it is printed and published by the Stationery Office. If the Stationery Office reprint something that is defamatory, I can see no reason why they should be put in a privileged position as compared with other printers and publishers who could be sued if they published a defamatory article.
Would my right hon. Friend just deal with this point, which is the real essence of this matter? I would be prepared to agree with a great deal of what he said. I think that it is wrong to say that an hon. Member has the right to have his speech reprinted. But surely my right hon. Friend will agree that what is undesirable is that without any consultation with the Member there should be forced on the Law Officers a task, which they no doubt do not desire, of deciding, without ever going to the source, what might or might not be defamatory.
That is a course which is not adopted by the printer, but here it is done in this quite different way without any reference to the Member, without his being told which passage it is alleged to be defamatory, on advice which he cannot question. If my right hon. Friend would devise some means of getting over that I would be prepared to withdraw my opposition.
I do not accept the position my hon. and learned Friend has stated. My experience of printers and publishers is that they go to a solicitor whom they regard as skilled in dealing with these matters. I am only dealing now with the small newspaper. They ask him whether he thinks it would be safe to publish and they rely on his advice and not on what the author proposes to tell them. I understand that big newspapers retain a person skilled in the law of libel who examines almost everything that goes in the paper.
I recollect that a very serious slip was made once during my period as Home Secretary and that a journalist got into trouble over it. I was told that on that particular day the tame solicitor kept in the office happened to be an holiday. I do not accept the view that printers and publishers consult the author very much. They rely more on the solicitor.
With permission, I should like to say one or two words out of courtesy to the hon. and learned Member for Hornchurch (Mr. Bing), who was not here when I spoke earlier. First of all, I should like to correct the misapprehension on his part. The fact that he did not hear me no doubt explains why he did not get this matter quite right. He rather suggested that I had said that this matter was dependent upon the views of the permanent officials in the Stationery Office and elsewhere, and that I said that the Stationery Office did not want this task. These matters are not decided by permanent officials but by the Chancellor of the Exchequer and what I said was that it was not wanted by the Government, as represented by the Chancellor of the Exchequer. I hope that that is plain.
It would be rather impertinent for me to add anything on the rest of this matter after what the right hon. Gentleman the Member for South Shields (Mr. Ede) has said. But there is one point. The hon. and learned Member for Hornchurch said that the proper thing to do would be to leave this Clause in the Bill and, if necessary, take it out in another place. Another way would be to take it out now, and if anyone wanted to do so it could be put back again in another place. If it turns out that the hon. and learned Member for Hornchurch is not Athanasuis contra mundum he might find someone in another place to put the Clause back.
There were some things which the hon. and learned Member for Hornchurch (Mr. Bing) said which rather differed from my recollection. Can the Attorney-General say who is the actual possessor of the copyright of Members' speeches? The hon. and learned Member said that it was the Official Reporter. Is it the Official Reporter as an individual or as a representative of the House of Commons?
I have not gone into research on that matter, but, prima facie, the copyright of the speech is the Member's. Then the speech may be reproduced by someone else. Another person may have intervened in the reproduction and again that reproduction may be tinkered with or improved. In each case there may be an additional copyright.
In that case I am not going to give advice. As the hon. and learned Member for Hornchurch has said that it is very dangerous for Law Officers to give an opinion in certain matters, I think I will follow his advice here as well.