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Orders of the Day — Defamation Bill [Lords]

– in the House of Commons at 9:57 pm on 21st May 1996.

Alert me about debates like this

Postponed proceeding on Question, That the Bill be now read a Second time, resumed

Photo of Mr Alex Carlile Mr Alex Carlile , Montgomery 10:09 pm, 21st May 1996

I am pleased that, after that ramble across Bodmin moor, during which the beast of Bolsover was temporarily transmogrified into the beast of Bodmin, I can resume the speech that was interrupted at 7 o'clock. At that time, if my memory serves, I was talking about clause 14 and the Hoffmann amendment. Lord Hoffmann himself did not vote for his amendment and I suggest that it went further than is necessary to achieve the end desired by the hon. Member for Tatton (Mr. Hamilton) in his defamation action against The Guardian and by any other hon. Members who might find themselves in a similar position because of parliamentary privilege.

I suggest that there is an alternative way to deal with the problem, which would not have the effect of handing over decisions on privilege from the House itself to individual Members of the House. The Hoffmann amendment should be altered in due course so that the decision-making power on the waiving of privilege would be held by the Committee dealing with privilege in each House of Parliament.

I propose to make some comments on other clauses, and I would be grateful for the Parliamentary Secretary's observations, either tonight or in due course. Clauses 5 and 6 deal with time limits and we have heard several submissions to the House on that subject, including one from the hon. and learned Member for Harborough (Mr. Garnier) who, as we have discovered, is the in-House expert in such matters. He said that a 12-month time limit may be too short—I respectfully agree—and he gave the good example of a potential plaintiff who has to await the end of police disciplinary proceedings. I am sure that the hon. and learned Gentleman would agree that if we consider the law on the extension of time for the service of writs in personal injury actions, we see that the law can be unpredictable. It would be far better to have a clear statutory definition of the time limit, but it should be longer than one year.

In any event, if the time limit is reduced to one year, it will create an anomaly between the law of England and Wales and the law of Scotland. I am glad to see that my hon. and learned Friend the Member for Fife, North-East (Mr. Campbell) in his place because he has experience of such matters. I am advised that the time limit in Scotland remains three years. If the time limit in Scotland is three years and the limit in England and Wales is one year, that is likely to lead to what is nowadays called forum shopping in cases in which proceedings are not brought timeously in England and Wales, or in Northern Ireland, to which the one-year limit would also apply.

These days, most publication is UK-wide, although generally the burden of publication is in one of the jurisdictions. Although private international law addresses some of the problems that might arise, it does not meet them all. I am told that the doomsday scenario among Scottish lawyers—but I find it hard to believe that Scottish lawyers are reluctant to earn any fees that might result—is that libel lawyers in London might use the Scottish courts as a forum in which to start proceedings that would otherwise be time-barred. It would make us look rather foolish if cases could be brought in Scotland on the same facts in the same publication after a time bar had run out in England. The case for a shared time bar must be strong.

Photo of Menzies Campbell Menzies Campbell Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs)

My hon. and learned Friend is making a good fist of understanding Scots law. Perhaps he has in mind some forum shopping after the next election, or the one after that. Has my hon. and learned Friend turned his mind to the inhibition that the present law places on attacking the character of the plaintiff? That inhibition, from which certain prominent individuals have obviously profited in the past, is to be removed by the Bill, but it will remain in Scotland. Has my hon. and learned Friend given any consideration to the anomaly that will arise if those two different systems stand side by side?

Photo of Mr Alex Carlile Mr Alex Carlile , Montgomery

I have, and I will deal with it in my next point but one. My hon. and learned Friend suggested that I might be interested in the odd wee briefie in Scotland. The answer is, of course, any time that I am free. Perhaps he would like to have a word with his clerk.

Clause 8 deals with the summary procedure. I am concerned that the damages limit of £10,000 is much too low. A point was made earlier about the money that newspapers make from sensational stories—and no doubt they do. What is more, there is no doubt that newspapers calculate the effect on their circulation of publishing a sensational story which may have risks attached to it. They are prepared to pay not very reliable witnesses sums far in excess of £10,000 just to be able to quote them, and photograph them for the story.

The damages payable under a summary procedure, which we do need, should be proportionate to the sums that the newspapers can make from the stories. If we do not do that, newspapers will make £50,000 or £60,000 clear profit from the story, which they will have assessed with great and cynical care. Paying £10,000 to the poor person who has been libelled will pale into insignificance and will go down as a small business expense.

Those who have been libelled, and there are quite a number in the House now, including one or two who share this Bench with me—they will go to the hon. and learned Member for Harborough for advice next time—would share the view that it is important that newspapers should not be able to see libel as a profitable business to be indulged in at will.

I want to make a point about clause 8, and clause 9, which is associated with it. It has been put to me by an entirely partial organisation—the Fleet Street Lawyers Society—but it has expressed it well and may be on to something. In clause 9(2) there appears to be a provision which will enable a judge to draft an apology and direct that those words should appear in a particular form and in a particular place in a newspaper. I am all in favour of newspapers being called to account when they defame—

Photo of Mr Neil Hamilton Mr Neil Hamilton , Tatton

Except in my case.

Photo of Mr Alex Carlile Mr Alex Carlile , Montgomery

If the hon. Gentleman had been listening earlier, he would have heard me make it clear that I support his wish to have his case tried. Does the hon. Gentleman wish to intervene? Many hon. Members would like to see the hon. Gentleman's case tried, and I am one of them.

My point is that clause 9(2) creates a new spectre for the press which is the drafting and placing in newspapers of certain forms of statement by judges. That may be one step too far against the freedom of the press. There are certain circumstances in which the adage, "Publish and be damned" has some validity. The House should hesitate before it goes down the road of judge-drafted apologies, placed in a form directed by the judge and in a place in a newspaper directed by the judge. No doubt, we shall return to that discussion.

Evidence of convictions and character was raised by my hon. and learned Friend the Member for Fife, North-East. It is dealt with in clauses 12 and 13. Clause 13 plainly gives newspapers the opportunity to rake up dirt about employment that was not known at the time of the defamation and that was sought only after an action was started. I have been involved professionally not in defamation cases, but in other cases where expensive private investigators have been sent to rake up dirt on people. The way in which they do so is extremely intrusive. We heard some illustrations earlier. They usually start with the dustbins and go downwards from there. We should hesitate before permitting such activity to take place.

Furthermore, as my hon. and learned Friend intimated, we may allow that to happen in England, but the law of Scotland will remain different. The rule in Scott v. Sampson will continue to be in force in Scotland, whereas it will be abolished in England, Wales and Northern Ireland. The present law in Scotland allows a dishonest pursuer, as they call him there, or plaintiff, as we call him here, to protect his reputation in court. The judge or jury is not entitled to know that, in truth, he is a dishonest person or a person of bad character. The defence is not allowed to introduce evidence to that effect. The likes of, let us say, the late Robert Maxwell have made much use of those provisions to conceal their true character from the courts.

The Bill permits a disparity between England, Wales and Northern Ireland and Scotland. That will encourage forum shopping because, plainly, plaintiffs who feel vulnerable as to their character will start their action, if they possibly can, in Scotland. What is more, as I understand it, in Scotland, they would be able to insist on a jury trial. I see my hon. and learned Friend shaking his head. I ask him to sort that one out with the Scottish Media Lawyers Society when he is next in Edinburgh. There is, however, an anomaly between English and Scottish law. I urge the Minister to resolve it before the Bill is finalised.

Apart from clause 14, which causes great anxiety, and about which the House has heard from me and other hon. Members, the Bill is useful and can be turned into a tidying-up and reform of the law of defamation. That will make it simpler and give more people access to the courts, although still leaving many way outside the financial prospect of bringing an action for libel or slander.

I hope that we shall be permitted to have a full debate on the Hoffmann amendment on the Floor of the House, that we will be able to offer alternatives for debate by the House and that it will not, in any sense, be a whipped debate. There are fairly ugly rumours and suspicions that, in the House of Lords, there was an unofficial whip on the Hoffmann amendment—certainly a great deal of encouragement—and that the neutrality that the Government contend that there was, was somewhat artificial. If that is so, I hope that we will not have a repeat performance when the House considers the matter during later proceedings on the Bill.

Photo of Mrs Teresa Gorman Mrs Teresa Gorman , Billericay 10:23 pm, 21st May 1996

In a House that, as usual, seems to be stuffed with members of the legal profession, it is slightly intimidating for a lay person such as myself to contribute to the debate. I feel already their blood rising when they see someone standing not exactly in the box, but in a sort of court; they are waiting just to get their teeth into what I am about to say.

I want to say only three things. One is about the plaintiff being given a proper right of reply should they be libelled. Clause 2(4) mentions an opportunity to do that in an offer to make amends. Will the Minister consider building into the Bill a provision that, when newspapers make an apology, as they sometimes offer to do when settling out of court, they should have to make it as prominent as the original libel, and—possibly—reproduce in its entirety the apology that they made in court?

In my experience, newspapers usually fillet the large slice of humble pie that they have had to eat. It is reduced to a relatively small piece of pie that they tend to poke away in some obscure part of the newspaper. That is extremely annoying to the person who has been libelled. They do not feel that they have had a fair showing in the paper.

A line in a popular song says, "It ain't what you do do, it's more what you don't do." My second point is that the Bill don't do justice to the fact that newspapers can offset all their costs in actions, whereas plaintiffs have to pay out of their net income. That is totally wrong. Newspapers offset not only their legal costs and VAT, but are often insured—partly at least—against the award that may be made against them. Although it is not the place of my hon. Friend the Minister, the Bill's tax implications should be seriously considered.

An individual, not the newspaper as an institution, should be held responsible for the libel. There is something to be said for newspaper editors being held partially liable. Unless they are hit in their own pockets, they will not have any incentive to act otherwise—not even to make their own staff check the details of what they are about to print. We all know that stories go to print without the person whom they are about to traduce being contacted.

The third thing missing in the Bill, not surprisingly, is any reference to the gouging fees that the legal profession charges people who have to go to court to defend themselves. I admit that, on occasions, some of my hon. Friends have assisted me. Lord Williams said that he did not support an amendment to the Bill in another place on the basis that scales are often uneven in defamation cases—which is absolutely true—where the plaintiff is a private person who cannot get legal aid and the defendant is often a wealthy corporation.

I would love it if we could incorporate something in the Bill to address the fact that plaintiffs who cannot get legal aid can hardly find a barrister to do the job for less than £300 or £400 an hour. In fact, silks charge about £1,000 an hour, which is simply appalling. [Interruption.] That is certainly the case in London libel courts.

In Committee—where I very much hope that I shall have the opportunity to speak—I hope that my hon. Friend the Minister will bear it in mind that we should be trying to establish a level playing field on both sides of a libel action. At the moment, the scales are loaded in favour of newspapers, which is why there is so much discontent about how defamation laws in this country work. In Committee, we must try to strike a balance.

Photo of Tony Wright Tony Wright , Cannock and Burntwood 10:28 pm, 21st May 1996

I have only two points to make. I am neither a lawyer nor a Member with a grievance, which makes me a distinct minority among those who have spoken in the debate. But what I am is a Member of Parliament—one who has an interest in how Parliament has developed, and how it has attempted to claim its rights over the years.

As a Member of Parliament, I view with some alarm the casual way in which, into an otherwise perfectly benign, uncontroversial, helpful Bill, has been slipped an amendment that would have the effect of striking out a fundamental of our constitution. That may seem rather an extravagant thing to say to a thin Tuesday night House on the day before we rise for the recess, but I am afraid that that is what we are talking about, and I hope that the House will understand it.

Many of us will say that we have genuine sympathy with the hon. Members who find themselves in the predicaments that we have heard about, and that we want to do something to help them, but we live in an environment in which privilege has been claimed for proceedings here, and we would be ill advised to trespass on that arrangement unless we had given the whole idea the most careful consideration and knew precisely what we were doing.

In an earlier intervention, the hon. Member for Torbay (Mr. Allason) said that if we did as is suggested we would simply be "closing a loophole". Actually, we would be altering the Bill of Rights of 1688. That is the "loophole" that we would be closing. I know that it may be a bit old-fashioned, but it is worth reminding ourselves what the Bill of Rights says: Freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". On the whole, that formulation has served the House rather well for 300 years. It is rather sharp and acute, and has a point to it. Above all, it has kept Parliament and the courts out of the conflicts that have bedevilled political systems all over the world. Each has known its place, because ever since 1688 privilege has been enshrined in that clause of the Bill of Rights.

When amendments are introduced late in the day to deal, so it is believed, with particular court cases of the moment by allowing hon. Members a waiver of privilege, as though that were a matter affecting no one but the individual hon. Member concerned, whatever our sympathies with such individuals, many of us will say, "I am afraid that things are just not like that." The matter of privilege is just not like that.

It is not possible for individual Members of Parliament to claim waivers of privilege, because privilege belongs to the House of Commons itself, and it is there for a reason. We hold privilege not so much for ourselves but on behalf of the people, who have set up a system of democratic representation and given us certain rights of privilege to speak on their behalf.

We have to exercise that right responsibly. I could stand here and say the most outrageous things, about the chairman of my constituency party—

Photo of Tony Wright Tony Wright , Cannock and Burntwood

—or about the editor of The Times, and sometimes I feel provoked to do both. [HON. MEMBERS: "Oh."] Of course, the first part of that sentence should immediately be deleted from the record.

The right of privilege is there for a reason, and the obligation that goes with it is to use it responsibly.

On the other side, we know that journalists have treated politicians with magnificent contempt not only in latter days but for hundreds of years. They have lampooned them, traduced them, defamed them and done all kinds of monstrous things to them. Despite the predicaments in which some hon. Members find themselves, all that was far worse in the past than it is today,

But in all that time—even when a daily columnist has suggested that an hon. Member does not possess his own hair—it has never been suggested that we should rush to the courts because of such treatment. Such matters are too important for that. Matters of privilege are embedded in how the House works.

This is not the time to rehearse the arguments and anxieties expressed in another place and by hon. Members about some of the implications of the Bill. I want to focus simply and briefly on a fundamental point. Only Parliament itself could waive a privilege that belongs to it on behalf of the people. An individual hon. Member could not waive it because that would undercut the purpose of privilege itself. It might be possible to introduce a mechanism so that Parliament could find a way of allowing individuals to waive privilege, but that would require a special procedure. We are in deep and dangerous territory, and casual amendments to Bills are not the solution.

I end with my second point, which is a procedural one. We are told that Lord Hoffmann tabled the amendment in the other place only so that it could be discussed and debated. As we have heard, he did not feel that he could vote for it. In addition, the Minister said earlier that he wanted only to have the matter debated. The problem is that Parliament does not have the mechanism to enable that immensely important constitutional debate to take place. With great respect to those hon. Members who will serve on it, such a debate will not take place in Committee. It will not take place on Report, although we have been promised some discussion and a vote later. Our discussion will not be informed by the extensive, expert and critical scrutiny that an amendment or a derogation from the Bill of Rights warrants. Such an amendment would require a Committee of Privileges to pronounce on it, and would certainly require a Joint Committee, as proposed by hon. Friend the Member for Brent, South (Mr. Boateng), to consider it.

The real problem is that when Parliament wants to consider such matters, it does not have the mechanism to do so. I speak as someone who favours constitutional change—I am not conservative in these matters. In wanting to make constitutional change, however, we must not make change as Parliament tends to—on the hoof and without thought, storing up problems for the future.

Photo of Jonathan Evans Jonathan Evans Parliamentary Under-Secretary (Lord Chancellor's Department)

The hon. Gentleman's party is committed to a great deal of constitutional change. Is he suggesting that the House is incapable of dealing with such constitutional change and that it would have to refer it to special Committees?

Photo of Tony Wright Tony Wright , Cannock and Burntwood

The Minister's intervention invites me to go further than I intended, but I shall resist that temptation. I shall say simply that the fact that we have no special procedure to deal with constitutional matters, and instead treat them as though they were ordinary laws, is the source of many of our problems and discontents.

The time has come to try to develop the mechanisms and machinery that would enable us to deal with the Bill and all the other things that we propose. Personally, I would favour a constitutional commission—analogous to the Law Commission—to which such matters could be referred and which could produce expert and authoritative advice for the House. The way in which this change is being made is precisely the way in which it should not be done. We should not proceed casually and in a hurry without the reflection and expertise that is required.

We have had a golden rule governing the relationship between Parliament and the courts for 300 years. It has been enshrined in the article of the Bill of the Rights to which I have referred. In so far as we have anything resembling a written constitution, that article of the Bill of Rights is an important component of it. I do not believe that, on reflection, the House would want to sweep all that aside without consideration on the back of a Bill that is really about something else.

Photo of Peter Bottomley Peter Bottomley , Eltham 10:40 pm, 21st May 1996

I shall intervene in the debate for about 60 seconds. On Report, we may be able to go into clause 14 and, in Committee, I hope that I will not have to draw on my personal experience of libel and defamation, but I must repeat the notice that I gave my hon. Friend the Minister about the judgment in Northern Ireland in the case involving The Daily Telegraph. I am glad that paragraph 12(2) of schedule 1 states: In this paragraph a 'public meeting' means a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern, whether admission to the meeting is general or restricted. This is not a criticism of the judge, but it is incredible that a press conference—with members of the press invited to give more publicity to an issue—could have been determined in any court in any part of the United Kingdom as not being a public meeting.

I have no interests as a long-term reader of The Daily Telegraph, but it should be disqualified from trying to argue that it had qualified privilege, subject to explanation or contradiction, in reporting what was said at the press conference. I hope that that can be overturned on appeal, but I certainly believe that that part of the schedule should be sufficient to ensure that a newspaper trying to do its duty in sharing honestly expressed views with the public is able to do so without being liable to being left without any defence if the matter becomes the subject of a libel case.

Photo of Mr Paul Boateng Mr Paul Boateng Shadow Minister (Business, Innovation and Skills), Shadow Minister (Lord Chancellor's Department) 10:41 pm, 21st May 1996

With the leave of the House, Madam Deputy Speaker. We have had an important debate, albeit it one that was interrupted by other matters. My right hon. and learned Friend the Member for Aberavon (Mr. Morris) and my hon. Friend the Member for Cannock and Burntwood (Dr. Wright) made contributions which underlined the importance of the deliberations that the House is about to engage upon in relation to article 9 of the Bill of Rights, as did other hon. Members. I am concerned that the Government clearly do not intend to accede to any provisions by which it might be possible to give that important constitutional issue the airing and deliberation that the Opposition believe that it deserves.

Clearly, the Government are not prepared to accede to the motion for a Joint Committee of both Houses. If that is not to be the case, I urge them at this late stage to consider whether dealing with the matter on Report is the most satisfactory way to proceed, particularly when they have the option of splitting consideration of the Bill hereafter between a Committee of the whole House, on the Floor of the House—to consider clause 14 and debate it at length, with the opportunity for amendment—and a Standing Committee to deal with the remainder of the Bill. That at least would give an opportunity for the full and considered debate that this important issue deserves and would not cause those who take note of our proceedings to believe that we treated it with anything other than the seriousness that it deserves.

Whatever some Conservative Members have said, we are talking about a major constitutional change, and it should not be dealt with in the way that the Government propose. Even at this late stage, I ask the Minister and his colleagues to think again.

Photo of Jonathan Evans Jonathan Evans Parliamentary Under-Secretary (Lord Chancellor's Department) 10:43 pm, 21st May 1996

With the leave of the House, Madam Deputy Speaker. This has been an excellent debate and, in a way, we have managed to focus the attention of the House on those aspects of the Bill that are likely to lead to further debate in Committee and on Report.

A number of contributions have been made—by the hon. Member for Brent, South (Mr. Boateng), my hon. Friend the Member for North-West Leicestershire (Mr. Ashby), my hon. and learned Friend the Member for Harborough (Mr. Garnier) and the hon. and learned Member for Montgomery (Mr. Carlile)—about the position regarding the limitation period. The Government have always said that the limitation period should also be subject to the operation of the discretion that is attached thereto. I do not want go into the detail now, but many of the concerns ventilated in the debate will be addressed by that. I look forward to developing those arguments in Committee.

The ruling on Scott v. Sampson and the Bill's proposals on that—and the way in which it impinges on the Scottish situation—were also of great interest. I hope that those concerns are addressed by the limitations attached to the relevant clause. Again, because of the wide concern that has been expressed in the debate, I hope that we can deal with the matter in more detail in Committee.

Finally, I must deal with some of the points on clause 14. I must correct the impression that it was added as a side wind, as it was described. It was introduced by Lord Hoffmann in the House of Lords. In Committee, the Lord Chancellor said that he did not think it appropriate that a vote should be taken because there had not been enough time to debate the issue at length. It was then debated yet again on Report. That was an excellent and very full debate. People who have read the report of that debate— I know that the hon. and learned Member for Montgomery agrees—know that it was a wide-ranging debate with excellent contributions from people with wide experience. In my opening remarks, I said that that debate would be helpful to hon. Members. I hope that all hon. Members will have had the opportunity of having read it when we discuss the matter on Report.

Photo of Mr Paul Boateng Mr Paul Boateng Shadow Minister (Business, Innovation and Skills), Shadow Minister (Lord Chancellor's Department)

The hon. Gentleman has not dealt with the view of the majority of those who spoke on Third Reading in the Lords that the matter should be considered by a Joint Committee of both Houses. He has had ample opportunity to consider that proposal. If the Government have decided against it, does he not have the responsibility to tell us why? It is not a matter that should be dealt with by a deafening silence. Why will the Government not agree to its being considered in a Joint Committee?

Photo of Jonathan Evans Jonathan Evans Parliamentary Under-Secretary (Lord Chancellor's Department)

Again, I turn to the suggestion that I made in my opening statement that the report of the Lords Third Reading debate should be read by hon. Members. They would see that the Lord Chancellor made it clear that there were two options: the matter could have been referred to a Joint Committee or it could be dealt with then, with a similar vote being taken in this House, and that is the course of action that was taken.

Question put and agreed to

Bill accordingly read a Second time and committed to a Standing Committee, pursuant to Standing Order No. 61 (Committal of Bills).