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I remind the House that the commission is given further power to order a right of reply where it feels that a newspaper has not responded with sufficient urgency to allow the commission to make a judgment within 28 days of the receipt of the complaint. However, nowhere in the
Column 569Bill is there any definition of what is "sufficient urgency". The procedure contained in the Bill has nothing to do with justice but everything to do with making a quick decision.
Sir Nicholas Bonsor (Upminster) : In order for justice to be done in such cases as would arise under the Bill, it is essential that there should be a speedy right of reply. A right of reply that happens months after the original statement is made will serve no useful purpose for the person who has been libelled by the newspaper. Therefore, I oppose the new clause because it will make the procedure even longer than the system proposed in the Bill. Speed is of the essence in any right of reply.
Sir Nicholas Bonsor : That is all very well, but one has to look at what the Bill is seeking to achieve. It seeks to give somebody who has been accused in a factually incorrect manner of having done something, or of being something that he is not, a right of reply to put the opposite case. That is all the Bill is trying to achieve. My hon. Friend talks about justice. The amount of inaccurate rubbish that one reads in national newspapers these days is so appalling that surely it must be right for the House to take the view that somebody should be able to rebut it and that the editors of the newspapers should have a duty to publish that rebuttal.
Mr. Knight : Yes, but I do not know from where people will be found to sit on the commission who are infallible. I am worried that the commissioners may make a mistake, and under the Bill as it is drafted no remedy is available, except an expensive legal process.
Mr. Gary Waller (Keighley) : My hon. Friend mentioned the importance of justice, about which I entirely agree, but does he accept that it often tends to be expensive? Under the new clause, the appeal procedure being proposed will be expensive for not only appellants but defendants. Who will pay the costs of the appeal procedure? Who will pay the costs of newspapers against which complaints of little substance have been made?
Mr. Leigh : Does my hon. Friend realise that he is getting himself into an awful muddle? Supporters of the Bill, such as my hon. Friend the Member for Upminster (Sir N. Bonsor), say that speed, simplicity and cheapness are of the essence. My hon. Friend is trying to impose a quasi- judicial appeal procedure on what should be a simple and rapid system.
Mr. Knight : I am not in an awful muddle. I am trying to drive a course down the middle between my hon. Friend the Member for Upminster (Sir N. Bonsor) and my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh), who are on opposing sides. Surely we can achieve a compromise between no appeal procedure and the only available alternative of the High Court.
Mr. Leigh : In trying to drive down the middle, is not my hon. Friend beginning to understand that the Bill is fundamentally flawed because it is impossible to drive a middle course? There must either be a legal procedure, which we have enjoyed in this country and which protects individual rights, or a statutory procedure. A quasi-judicial process cannot be imposed on a statutory procedure, which is the problem facing my hon. Friend.
Mr. Knight : My hon. Friend and I are at one in our views of the Bill. Some of my hon. Friends may not have heard because of the racket emanating from the hon. Member for Hackney, South and Shoreditch, but at the outset I said that I opposed the Bill. New clause 4 finds a middle way and improves what I still regard as a defective Bill. My hon. Friend's excessive pleading for the existing system of justice is tinged by the fact that he is a member of the legal profession and may fear that if the new clause were passed it would deprive lawyers of their fat appeal fees. I say that, without malice, as a lawyer.
Mr. Batiste : I am relieved that my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) shares my concern about this matter. As a lawyer, I say that we do not wish to perpetuate the system, but from our long experience we know that injustice arises when one tries to take short cuts. One may be able to make summary decisions in many instances about a factual inadequacy, but in many circumstances the issues will be extremely complex, such as allegations of fraud or malpractice that fall short of criminality. I do not understand how a statutory procedure under which qualified lawyers cannot operate, which has no power to call evidence under oath and to subpoena witnesses or documents, can possibly achieve justice in such complex cases. The fabric of the Bill is based on simple cases and ignores the complex.
Mr. Knight : I am not sure that my hon. Friend makes a good point. The new clause provides for new rules to be laid in due course. I expect them to contain requirements for the calling of witnesses and oral hearings at which witnesses can be cross-examined. We are debating not an investigation into complex fraud matters but a factual inaccuracy in a newspaper to which someone is seeking a right of reply.
Mr. Knight : I take my hon. Friend's point. When the rules are laid in due course, I expect them to make provision for the legal representation of both parties appearing before the tribunal. I hope that the Home Office will agree, but I believe that the rules should make such provision.
Mr. Watts : Does my hon. Friend accept that he is being a little naive in expecting that the issues that will fall to be determined by the commission will be clear cut? Surely there is hardly a newspaper in the country that would not be prepared to correct a simple and straightforward inaccuracy. Complaints will arise when facts are disputed and cannot be readily established. In such circumstances, the issues involved will be similar to those in a libel case.
Mr. Knight : I am not sure that my hon. Friend is right. Contention will arise not just on whether a statement of fact is accurate but under clause 1(1)(l), which says that the factual inaccuracy must be such that
"any reasonable person might deem to be damaging to the character, reputation or good standing of that person or body of persons." Most challenges will be to that part of clause 1(1).
Mr. Lewis Stevens (Nuneaton) : Despite my hon. Friend's explanation, does he agree that the establishment of what is a fact is much more complex? Is it not true that in the Chamber, day after day, we dispute so- called facts? Will that not now be carried over into the press?
"certainly known to have occurred or be true".
On appeal, it will be not a particular fact but the effect of a factual inaccuracy that will be in contention.
Mr. Tebbit : My hon. Friend is in deep difficulty. Let us consider cases alleging misdoing in the City, such as insider trading. Initially, such accusations frequently surface in the press. Is my hon. Friend suggesting that if someone took such allegations to the press commission, required a newspaper to set the record straight and publish a correction, the commission would be able to come to a conclusion without an examination as rigorous as if someone were charged with a criminal offence and appeared at the Old Bailey? Such proceedings, especially given that my hon. Friend has said that lawyers should become involved, could go on not for days or weeks but for years, as some major fraud cases do. The press commission itself would not work, let alone the appeal committee of three unfortunate perhaps not legally qualified men or women sitting on an appeal, on a matter that already had been before the commission for two or three years.
Mr. Knight : My right hon. Friend has raised an interesting point, especially as the Bill does not explain what the burden of proof before the commission should be. I have proceeded so far on the assumption that the person making the complaint would need to prove his case beyond reasonable doubt, but the commissioners may take a wholly different view. I accept what my right hon. Friend has said on that, but I should have thought that if the Bill became law, there would be an incentive for editors to ensure that they had the correct facts at their fingertips before they proceeded to publish an article. If they were unable to show that they had the factual details to hand, I would expect to see them lose before the commission and the right to reply to be given.
Mr. Brian Wilson (Cunninghame, North) : No one expects anything better from the general run of the miserable rabble of mediocrities who are conducting this charade, but would the hon. Gentleman agree that it is sad and pathetic to find a former Secretary of State reduced to the level of Friday morning filibusterer? Could the hon. Gentleman arrange among his colleagues for a £10 a head whip round to give the former Secretary of State a sense of being of more central importance in life?
Column 572wholeheartedly, I observe that there are only a small number of Labour Members in the Chamber at the moment.
Mr. Batiste : Does my hon. Friend note the incongruity that Opposition Members argue that there should be a statutory right of reply against factual inaccuracies, yet they have advanced their case this morning only by heaping abuse on those who happen to disagree with them? Does my hon. Friend consider that there is some ambiguity in their approach which reinforces our real fear that the Bill is an Opposition attempt to gag the press?
Mr. Knight : My hon. Friend is right. I shall now return to the argument I was developing a few moments ago. Despite the composition and powers of the commission under the Bill, no right of appeal is contained in it. The only appeal open to aggrieved parties would be by way of a judicial review in the High Court.
Mr. Watts : I thought that my hon. Friend was going to elaborate further on his reply to our right hon. Friend the Member for Chingford (Mr. Tebbit). My hon. Friend has left me confused about his view on the burden of proof required. He started by saying that the complainant would need to prove beyond all reasonable doubt that the facts were as stated and that damage had been suffered. He then said that he would expect the newspaper to be able to prove beyond reasonable doubt that it had a factual basis for its article. I thought that he left the matter in mid air because of the intervention by the hon. Member for Cunninghame, North (Mr. Wilson). My hon. Friend leaves me up in the air. I am not clear what he considers should be the burden of proof when appeal is heard by the tribunal.
Mr. Knight : The reason that I left my hon. Friend in the air was that the Bill leaves the issue in the air. The Bill is badly drafted and does not state what the burden of proof should be. I left the matter in the air because I was merely speculating about how the process might operate. My hon. Friend is right. Where does the burden of proof lie? Does it lie with the complainant or the newspaper? We do not know, because the Bill does not tell us. That is why I began my remarks by saying that I was opposed to the Bill. Its drafting is awful, because it does not resolve the issue. If it is the will of the House that, bad as it is, the Bill should proceed, we should graft onto it a right of appeal which may not be perfect but would seem to remedy some of the difficulties that would, undoubtedly, arise should the Bill become law.
As I said before my hon. Friend the member for Slough intervened, the only way that someone could challenge a decision by the commission would be by applying for a judicial review. That is a wholly inappropriate method of appealing against decisions by the press commission. It would mean that a party would have to show that the commission had acted ultra vires, had misinterpreted the law, or acted wholly unreasonably in the circumstances. That cannot be to the benefit of either the complainant or the newspaper or periodical. I was delighted to see that point picked up by Mr. Bernard Levin in an excellent article in The Times on 18 April in which he said, referring to the press commission :
"And the "judgements" of this kangaroo court are final : there is no form of appeal (for either side), and anyone who is dissatisfied by a ruling has no recourse other than to go to
Column 573the courts for judicial review, which inevitably means that only millionaires can afford to seek justice from this appalling contraption."
Hear, hear. Mr. Bernard Levin has got it right. It is an appalling contraption and to allow an appeal only by way of a judicial review will not remedy the defects that the Bill's promoter, the hon. Member for Clydebank and Milngavie, talked about in Committee. He said that the Bill was intended to be a way of achieving cheap justice so that the common man could have the facts put right. If the Bill allows an appeal only by way of judicial review, only someone like Tiny Rowlands will be able to seek to have decisions overturned. The man on the Clapham omnibus will be left facing an injustice if the comission decides unfairly against him.
Mr. Leigh : Does my hon. Friend know of any appeal procedure in our jurisdiction where the members of the appeal tribunal are drawn from the court of first instance? Is that not the worrying and serious point that Conservative Members are trying to address? This is not a charade ; it is a serious matter of press freedom and upsetting traditional judicial procedures. The hon. Member for Cunninghame, North (Mr. Wilson) is in the newspaper business himself--the working man's Murdoch, although he did not declare an interest. We are obliged to submit the Bill to the closest possible scrutiny. How can my hon. Friend meet the point that the members of the appeal tribunal made the decision in the first place? Does that conform with the principles of natural justice in this country? Of course not.
Mr. Knight : My hon. Friend is rather overstating the case. I would not expect to see the panel for the appeal composed of those commissioners who took part in the original decision. Let me give an analogy. If a police officer is charged with a disciplinary offence, he has an ultimate right of appeal to the Home Secretary. It could be argued that the Home Secretary has an interest in the matter because he is responsible for the police in the first instance. My hon. Friend's fears are not as weighty as he would have the House believe. A system of appeals to review certain decisions is a familiar part of society today.
Mr. Timothy Wood (Stevenage) : I want to pursue the matter further. The analogy with the police is not satisfactory. It is suggested that of the 21 commissioners, three should be taken out. To speak about them as though they would be a wholly separate group, as one police force is separate from another, is wrong. The commission will be a small and coherent group of individuals. To say that three of them will question the decisions of the other 18 is an absurd proposition.
Mr. Knight : It is not absurd. We are discussing intelligent and independently minded people who will have the interests of the press at heart and a desire to see justice done. The situation will not be as bad as my hon. Friend suggests.
Mr. Leigh : We can only deal with the new clause as it appears on the amendment paper. It does not make it crystal clear that someone who has heard a case in the court of first instance will not also hear it on appeal. That is the fundamental problem. Could we not use the more
Column 574traditional way of going about things and provide for appeals to the High Court? Surely that would be preferable to people sitting in judgment on their colleagues.
Mr. Knight : As the debate proceeds, I realise that it was perhaps an error not to include in the new clause the rules that I envisaged that the Secretary of State would ultimately lay. I have every confidence in my right hon. Friend the Home Secretary--
Mr. Knight : I would expect proper rules to be laid in due course to provide for a fair system of appeals. If that does not happen, there is no point in providing for rules to be laid in the first place.
Mr. Watts : May I suggest to my hon. Friend a way out of this difficulty? Could he not table a manuscript amendment to make it clear that no commissioner who had taken part in the original proceedings should be allowed to be part of the panel that would consider an appeal against that decision? Might not that be a way forward if Mr. Deputy Speaker were prepared to accept a manuscript amendment at this stage?
Mr. Knight : I am not prepared to table a manuscript amendment at this stage. Perhaps my hon. Friend will allow me to develop my theme and explain the reasons behind the new clause. Then, if I have not convinced him by the end of the debate, and if he wishes to table a manuscript amendment, I shall not seek to divide the House. I expect these matters to be properly dealt with by my right hon. Friend the Home Secretary in due course. On reflection, I do not think that it would be right and proper for me to set down the rules in the new clause, because the rules should be laid after careful consideration.
Mr. Batiste : As my hon. Friend knows, I support new clause 4, although I have some reservations about the way in which it might work. If we decide against the initial court proposal, we should use the model of industrial tribunals and the employment appeal tribunals as a structure that would be generally acceptable in dealing with the matter. The difficulty that we face is that the membership of industrial tribunals is much more circumscribed than is provided for in the Bill and the membership of the employment appeal tribunals is drawn from an entirely different group of people, who do not sit at a court of first instance. Therefore, while I share my hon. Friend's belief that the Minister will come up with a procedure that works very well, it seems to me that the Bill would prohibit the Minister from putting in place a structure that has proved satisfactory elsewhere.
Mr. Knight : I agree with my hon. Friend's comments about the structure of the Bill ; it is a badly drafted Bill. I know that my hon. Friends are still not happy about this point, but the Home Office has experience in such matters. We have a system of immigration appeals with rules laid down by the Home Office, and I have every confidence in the ability of my right hon. Friend the Home Secretary to deal with the matter properly and fairly. I know that he will try to ensure that justice is done on appeal.
The Bill provides for the press commission to issue guidance on the question of editorial standards.
Mr. Knight : It is there in the Bill. I do not like it, any more than my right hon. Friend the Member for Chingford (Mr. Tebbit) likes it. The press commission's advice on such matters would be better received by the press if it arose from case histories that had been subject to scrutiny by the press commission appeal tribunal that the new clause seeks to establish.
Mr. Batiste : I hope that my hon. Friend will not seek to justify the new clause with reference to the later guideline provisions. An amendment in my name, which has been selected for debate, seeks to strike out that part of the Bill, which seems to me to lay down a framework for censorship.
Mr. Knight : My hon. Friend is right. I, too, would like that provision to be deleted from the Bill. I am proceeding on the assumption that that will not happen and that we are lumbered with it and I have tabled the new clause to make it more palatable. As I have said to my hon. Friends, there are precedents in the immigration procedure and the police disciplinary appeals procedure. I believe that there is also a system of appeal under the Safety of Sports Grounds Act 1975.
I take a fairly flexible view of the rules that I should expect my right hon. Friend the Home Secretary to lay. I ask my hon. Friend the Minister--
Mr. Leigh : On a point of order, Mr. Deputy Speaker. My hon. Friend the Member for Elmet (Mr. Batiste) has made an important point. You will be aware that amendment No. 50 deals with a vital matter--the guidelines on editorial freedom. In view of the importance of that amendment, might it not be convenient if our proceedings on the new clause were suspended so that we could debate amendment No. 50? We could return to the new clause thereafter. Interesting though I find the speech of my hon. Friend the Member for Derby, North (Mr. Knight), the point made by my hon. Friend the Member for Elmet is important. It goes to the core of the Bill and the points about which we are worried. We have limited time and we want to discuss these matters. Would you, Mr. Deputy Speaker, consider suspending our proceedings on the new clause and returning to it later?
Mr. Deputy Speaker : I think that we had better get on with the debate. If we proceed along the lines suggested by the hon. Member for Gainsborough and Horncastle (Mr. Leigh), we shall soon get into a great muddle.
Mr. Knight : I am grateful to you, Mr. Deputy Speaker. I think that I have been extremely generous in giving way to my hon. Friends, and perhaps I should try to make some progress. I am delighted to see that my hon. Friend the Member for Crawley (Mr. Soames) has entered the Chamber. I hope that he is here to give me his support on this important matter.
Mr. Knight : My remarks were not intended as a slur but merely a comment on the fact that my hon. Friend's taste is different from mine. I shall not get sidetracked into discussing my hon. Friend's dress. Perhaps I should not have made the remark in the first place.
Mr. Watts : My hon. Friend has referred several times to the rules being laid by the Secretary of State for the Home Department. He also referred by analogy to immigration appeals tribunals. But the control of the rules for those tribunals is a matter for the Lord Chancellor, and for a very good reason. Any proceedings before any appeal tribunal are, in essence, judicial proceedings and should come under the senior Law Officer in the Government--the head of the judiciary--and not a departmental Minister whose other
responsibilities may well conflict with his duty to ensure that a free and fair judicial procedure is available as envisaged in the new clause.
Mr. Knight : My hon. Friend the Member for Slough is technically right when he says that the Lord Chancellor has responsibility. However, in drafting the new clause I took the view that, as the Bill deals with the press, and as responsibility for the press is clearly a matter for the Home Office, the Secretary of State for the Home Department would be the appropriate Minister to lay the rules.
The Minister of State, Home Office (Mr. Tim Renton) : I have been following my hon. Friend's argument closely. The process is as follows. The adjudication officers and the adjudication appeal tribunals are, indeed, appointed by the Lord Chancellor. That system was set up two years ago to show their distinct identity from the Home Office. The Home Office sets and puts the immigration rules before the House, and it is the job of the adjudicators, appointed by the Lord Chancellor's Department, to interpret those immigration rules.
Mr. Knight : I am grateful for my hon. Friend's intervention. He has shown that the drafting of the new clause is in order and is not as unusual as my hon. Friend the Member for Slough appeared to think.
I now ask my hon. Friend the Minister several questions. I hope that, when he replies, he can confirm certain matters. Will it be feasible for the rules, when they are laid in due course, to contain provision for costs? I notice that in other matters in which there is a right of appeal the Secretary of State may direct that an appellant pay the whole or any part of his own costs. That is important to deter a frivolous appeal from the decision of the press commission. I hope that the rules will contain a provision to allow costs to be awarded--not necessarily in every case, but when it is right and proper to do so. When an appellant is found to have pursued a frivolous and worthless appeal, he should be condemned in costs. I hope that my hon. Friend the Minister will confirm that it is possible to mention that point in the rules.
Does my hon. Friend consider it appropriate--I certainly do--that the press commission should be
Column 577required to give written reasons for its appeal decisions? That is imperative. The rules under the police disciplinary procedure make it clear that an appellant may attend proceedings, conduct his appeal, or be represented. I hope that that matter will be covered in the rules. It is certainly my intention that anyone who wishes to pursue an appeal should be able to be represented by whomever he chooses--a friend, lawyer or, perhaps, someone else who has knowledge of the newpaper industry.
Will my hon. Friend confirm that it is in order for the rules to require that the appellant or his representative may make oral or written representations in support of the appeal? I hope that my hon. Friend agrees that the rules should state that the appellant may adduce evidence only if it is evidence which, for valid reasons, was not adduced at the original hearing. The appeal procedure should not be a complete re-hearing with new evidence without justification for its being admitted. Such a matter could be contained in the rules made by my hon. Friend the Home Secretary.
Mr. Batiste : If an original hearing can be conducted on the basis of written representations only, one of the grounds of appeal would be that insufficient weight was given to certain aspects of evidence, or that a conflict between the written evidence given by both sides was inadequately determined and did not follow the weight of the facts. Would it be incumbent on the appeal tribunal to read evidence--perhaps first-hand evidence--on the subject? I hope that my hon. Friend will not suggest that that would be excluded.
Mr. Knight : When I was considering the matter, I noticed that paragraph 26(6) of the 1985 police disciplinary regulations stated : "The appellant or his representative may make oral or written representations in support of the appeal but may only adduce evidence which could not have been adduced or which was not adduced for reasons which satisfy the person considering the appeal at the hearing at which the charge was found proved."
We need a rule along those lines to prevent a sloppy complaint being made, an appeal being pursued, and evidence being produced on appeal which was readily available at the hearing of the initial complaint before the press commission but which, for no valid reason, was not produced.
Mr. Batiste : I have great difficulty with that proposition. It is inherent in the conflict between having a voluntary procedure and moving to a statutory procedure. My hon. Friend said that he was trying to steer a middle course between the two. If we are trying to have something informal in which people do not need legal representation and have easy access to the press commission, as in many other tribunals, a complainant's initial stab will probably be inept and incomplete, and he may not put in the necessary evidence to do justice to his case.
Mr. Knight : My hon. Friend has taken us back to something with which the majority of Conservative Members agree. The Bill is sloppily drafted. It is a requirement that the chairman of an industrial tribunal is a legally qualified person. That being so, the chairman of the tribunal of first instance will guide an unrepresented complainant through his case and try to elicit information
Column 578which that person would not otherwise have put before the tribunal. The danger with the Bill is that there is no requirement for the chairman of the press commission to be a legally qualified person. 10.45 am
In that case, there may be the problem that the chairman of the press commission will not guide an unrepresented applicant through his case. There is a good argument for the Bill being amended--perhaps in another place--to make it a requirement that the chairman of the press commission is a lawyer. That being so, the problems which my hon. Friend envisages would not arise.
c Mr. Batiste : As drafted, the Bill specifies some aspects of the composition of the press commission, but it does not specify a legally qualified chairman. Consequently, when my right hon. Friend lays down the rules, he would not be able, in secondary legislation, to specify that the chairman of the commission, panel, or appeal must be a lawyer.
Mr. Knight : My hon. Friend is right to a point. My right hon. Friend the Secretary of State would not be able to interfere with the chairmanship of the press commission, but, in laying the rules for the hearing of an appeal, he probably could insist that the chairman of the appeal tribunal should, if possible, have legal
qualifications. That could be written in the rules. I agree that it would have been far better if the Bill had that requirement in it.
Mr. Leigh : What worries me about what my hon. Friend is saying is that, on a Friday morning, in a throwaway line, he starts laying down rules of evidence. He said that what has not been heard at first instance should not be heard on appeal. As a lawyer, is my hon. Friend aware that the rules of evidence in ordinary judicial courts have taken seven centuries to develop? We will have a voluntary system, a statutory system, or a system of common law. I return to my original point, which I made nearly an hour ago. My hon. Friend is in a muddle.
Mr. Knight : My hon. Friend is a lawyer. I do not know whether he has a blue bag or a red bag. If he has a red bag, it should be taken from him, and he should be given back the blue bag. He has not been listening to what I have been saying. I am not trying to lay down rules of evidence. I ask my hon. Friend to read new clause 4. I have made provision for my right hon. Friend the Secretary of State to be able to lay rules in due course. I am seeking to elicit from my hon. Friend the Minister what sort of rules he envisages being laid. I am giving him some suggestions.
Mr. Knight : I shall give way in a moment, but I hope that the hon. Gentleman will not make a frivolous intervention. I have given way many times today. No one can accuse me of being ungenerous. However, I want to make progress because there are many other amendments to consider.
I say to my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) that I am seeking today not to
Column 579lay down rules of evidence but to make the point that the Secretary of State should be given the power to determine in due course what rules should be made for the appeals commission.
The police disciplinary regulations 1985 state :
"The person considering the appeal may in his discretion admit written evidence which would not be admissible but for this paragraph but which would have been admissible if given orally."
I hope that such a rule will be included in the proposed legislation. As my hon. Friend the Member for Elmet says, we must be flexible and take account of the unrepresented appellant who may, for example, produce documents but forget to ensure the attendance of the author of those documents as a witness.