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6.24 pm
Mr. John Morris (Aberavon): I should like to express concern, as other hon. Members have done, that the House is being asked--with minimum publicity and certainly none of the widespread consultation that the Minister was boasting about--to amend the Bill of Rights 1688, which is one of the cornerstones of our liberties. We have been told that this House was exclusively concerned with the defence of our liberties in that year, but that privilege is now, of course, enjoyed by another place.
An amendment was passed in another place--after a very short debate in Committee, and another, longer debate on Third Reading--to amend article 9. As the hon. and learned Member for Montgomery (Mr. Carlile) told us, Lord Hoffmann, the proposer, commended the amendment, but curiously did not vote for it. The Lord Chancellor was neutral on it.
I shall not relate article 9 at length because of the need to save time, but it is also our safeguard and our shield. The current problem has arisen because of the difficulty in that the hon. Member for Tatton (Mr. Hamilton) wants to go to the courts to clear his name. In so doing, he issued proceedings for libel, and The Guardian pleaded justification. As I understand it, for the court to investigate the issue would have involved an investigation of what the hon. Gentleman had done in the course of his parliamentary duties. The court held that that was contrary to article 9, and the action was stayed.
Article 9 is the guarantee of our freedom of speech, and it protects us from actions against us for libel for whatever we say in Parliament. It is our shield, and it has been our
shield for centuries. The actions of the hon. Member for Tatton would have involved throwing away the shield and using our proceedings as a spear--they would certainly have had to be used as a spear--in the course of those proceedings.
I say immediately and sincerely that I have sympathy with the hon. Member for Tatton in his efforts to clear his name. Strangely, there has never been a case in English history in which an hon. Member has sought to bring a libel action that raised the question of his parliamentary conduct.
My hon. Friend the Member for Brent, South(Mr. Boateng) has already referred us to the well-known case of R. v. Pebble, a decision of the Judicial Committee. The court then decided that it could not inquire into parliamentary conduct, and that, if the effect was to stifle a defence--in that case it was a television company's--that defamatory allegations were true, the hon. Member's actions would be stayed. As I understand it, that was the position as regards the hon. Member for Tatton.
As I have said, I have the greatest sympathy for the hon. Member, and I certainly would not lend my name to allowing a ministerial career to be wrecked, at least temporarily, because he is denied access to the courts to attempt to clear his name. I am concerned about what is the right way in which to accomplish such access. In my view, an amendment that was passed at Third Reading in another place, without any previous consideration or consultation, is not the way in which to do it.
We are overturning with a simple amendment 300 years of history in which the system apparently worked. The old adage,
In the past few days, I have consulted one of the most eminent of our constitutional lawyers, ProfessorSir William Wade in Cambridge, who has advised Governments all over the world--and individuals--on constitutional law. While he is relaxed on the issue of actually amending the Bill of Rights, he recommends further study before any change is made. That is good counsel, from someone who sincerely believes that justice should be done.
Why should the matter be studied further? First, it is not the privilege of an hon. Member--or any other Member--that we are discussing; it is the privilege of Parliament--the privilege of this House. I would be happier if an amendment had been carried allowing the House, when it was thought right, to waive that privilege in a fit and proper case. Secondly, speech after speech in the debate in the other place pointed out the unfairness of Members' not being able to clear their names, while ignoring the fact that that is precisely the position of the man in the street who is attacked by a Member during a debate in the House.
That curious state of affairs was ignored by advocates of a waiver, who were more than content to bask in the shelter of privilege while continuing to claim a right to disparage those outside without putting themselves in any danger. If a Member is allowed to take up his spear and waive the privilege of the House, may not pressure be exerted in due course for us to lose our shield as well? The public will want to know, and there will be pressure from that source.
There has been considerable interest in the matter in the Commonwealth, and at least one case has been dealt with there. Some may want to follow us, because they also have the advantage of article 9. Should we not hear what they have to say, and take evidence from them?
Thirdly, there is the issue of the definition of proceedings in Parliament. That, too, has been raised in another place. The High Court in the Strand might take one view, and this High Court of Parliament might take another.
Fourthly, what if more than one Member is involved? What if one wants to waive his privilege--or the House's privilege--and the other does not? During the debate in the other place, Lord Hoffmann said that he could not think of an easy answer. "Leave it to the judges": that is what he advised. Judges are used to handling tricky situations.
With respect, I doubt very much that the judiciary who must try such cases would welcome this particular baby if it were put into their lap. Surely, if Parliament wishes to change the position, it should resolve such obvious problems rather than walking away from them.
Lord Simon also asked why the issue should be limited to defamation. What if there were fisticuffs between two Members, or--perhaps more probable--between an investigative journalist and a Member? A reputation can be won or lost in such circumstances. Lord Lester pointed out that a Member who had been defamed would be under pressure to waive our collective privilege so that he could sue.
If the amendment is carried in both Houses, let there be no doubt that cross-examination will have few limits, and could possibly cover the whole of a Member's career and his actions in Parliament, rather than being confined to the narrowness of one incident. If we want to go along that road, we should know what the difficulties are. If the Select Committee agrees to my suggestion, and the suggestion of the Opposition, may I suggest some safeguards to the Committee?
First, the matter should be decided by resolution of the House, because that is the House's privilege--I believe that it can already act in that way--rather than through the waiver of an individual Member. Secondly, a Member should be allowed to refer his case to the new Privileges Committee, to see what the problems are and examine them.
Thirdly, if that Committee agreed--I speak as one who served for many a long year on the Committee of Privileges--it could, if it wished, recommend to the House that the House waive its privilege. That would be a better way of safeguarding a specific situation that had not been considered by the whole Select Committee; we are examining it now, perhaps a little more academically.
There may be other problems. One, raised in the other place, is that the Bill of Rights preceded the Act of Union, and does not, in its present form, apply to Scotland. We should not put our hard-earned right of freedom in the House in jeopardy--the right to speak without fear or favour, knowing that what we say will not be held against us in the courts.
Mr. Edward Garnier (Harborough):
I am grateful to be called, and will be as brief as I can.
First, let me declare an interest--or, perhaps, a predicament--as a practitioner at the libel Bar. Let me also place on record my thanks to the Neill committee, and to Lord Justice Neill and other committee members, for their work. I am afraid that they have not received unstinting praise from some hon. Members this evening; that is a pity, because they deserve it. Irrespective of whether we agree with their conclusions, their work should be recognised and they should not be abused in the House.
I know that a little knowledge is a dangerous thing, and I shall therefore confine my remarks to as brief a compass as possible. I am aware that other hon. Members who have found themselves in predicaments wish to speak. I accept that the new defence under clause 1 is worth having, and that we should allow it to work its way through the law of defamation to see whether it proves useful--I think that it will--but I should like to refer briefly to some other clauses, explaining why I agree with some and am concerned by others. I do not expect an answer to some--indeed, most--of my questions during the debate, but I should be very pleased to receive a written response to some of them if my hon. Friend the Minister finds that convenient.
Clause 2(5) states:
Clause 5 deals with limitation and I wish to echo the concerns of the hon. Member for Brent, South(Mr. Boateng), which, I believe, are uppermost in the mind of my hon. Friend the Member for Torbay (Mr. Allason). I suggest that a year is too short unless other safeguards are built in. I note the point made by the hon. Member for Brent, South that those who are involved in police disciplinary proceedings may exceed the year before the proceedings are concluded, but the court can take that factor into account when it exercises its discretion to extend the limitation period. Would not it be more sensible to leave the limitation period at three years rather than allowing an additional discretion to the court?
The same applies--the point may be made by my hon. Friend the Member for Torbay--to Press Complaints Commission matters. I stand to be corrected, but I
understand that the Press Complaints Commission will not accept complaints if proceedings have already been initiated. If a plaintiff issues proceedings within a few days or weeks of the cause of action arising, he is prohibited from going to the PCC. If the limitation period is to be reduced to a year, the rules of the PCC should be adjusted so that an action can be commenced. The proceedings could be stayed pending the resolution of the PCC hearing. The simple answer is to leave at three years the limitation period for causes of action in libel and slander and others in clause 5(3).
I also note the points that the hon. Member for Brent, South made about poverty. Some litigants will not be able to bring a case immediately because they do not have the funds. Many people are assisted by, for example, the Police Federation, other trade associations and trade unions and they are not inhibited by lack of funds, but others will not have such assistance and they should be given the opportunity to raise the money before bringing proceedings. As I said earlier, the court has a discretion to extend the limitation period, but it is tidier and more sensible to leave the limitation period as it is.
Clause 7 deals with the meaning of a statement and states:
I am worried about some of the philosophy behind the summary disposal aspect of the Bill. The provisions have some good bits and some less good bits and I am concerned about the limit of £10,000 in clause 9(1)(c).I appreciate that that figure can be adjusted--and may be adjusted--upwards, but many litigants do not want an award of what, to a newspaper, is no more than petty cash. They want a public vindication of their reputations. Even when the defendant cannot afford to pay the huge sums awarded as compensation, the fact that a jury or judge has awarded a large sum often acts as a vindication and a message to the world. One has to think only of the case of Lord Aldington, who was awarded £1.5 million. I must confess that I acted for one of the less successful parties in that case. I doubt that Lord Aldington will collect that £1.5 million, but at least the world knows that the jury thought so little of the conduct of the defendants--and possibly at least one of their counsel--that it found it necessary to award £1.5 million to mark its disapproval.
I appreciate that the cases that may come before the courts under the summary disposal procedure will not be the Aldington-Tolstoy type of case--under clause 8(4)(d), cases of serious libel, which are widely published, are not suitable for summary procedure--but the procedure still causes me some difficulties, not least because it gives the court editorial power over newspapers. The court will have the power to order a defendant to publish or cause to be published a suitable correction and apology. It would be better for apologies and corrections to be agreed between the warring parties, rather than ordered by the court. What will be the consequence of disobeying that order? Will there be a contempt procedure or will the court enforce the order in some other unspecified way?
I am also concerned about clause 10, which authorises
"hard cases make bad law",
has more than a grain of truth in it. Lord Simon of Glaisdale, a distinguished former Law Lord, whom some of us--few, perhaps, by now--remember fondly as a particularly able and helpful Solicitor-General in a Conservative Government, advised caution on it in another place. He believed that this was a question of the highest constitutional importance. He wanted the whole matter to go before a Select Committee of both Houses. I am respectfully supportive: Lord Simon has much greater knowledge than me. I consider it strongly desirable for the issues raised in the amendment to be considered in such a way.
"An offer to make amends under this section may not be made by a person after serving a defence in defamation proceedings brought against him by the aggrieved party in respect of the publication in question."
I ask, "Why not?" If a defendant, having overreached himself, realises that he should more sensibly come to terms with the plaintiff and he can do so by offering to make amends under clause 2, he should be allowed to do so even if that requires that he withdraw his already-served defence.
"In defamation proceedings the courts shall not be asked to rule whether a statement is arguably capable, as opposed to capable, of bearing a particular meaning or meanings attributed to it."
I welcome that change to the rules about the joining of issue on what a defamatory statement may or may not mean. At the moment, despite the introduction of order 82, rule 3A, the procedures for defamation are being used as a dead bat and not always as intended, following the case of Keays v. Murdoch Magazines (UK) Ltd.
"the court at any stage of the proceedings--
The intention behind that is that the court should get a grip on proceedings that should not been allowed to live and dispose of defences that have no merit. I applaud the hands-on approach that the courts take these days and that the Bill would inject into this aspect of the law, but we should be careful about allowing the courts to take too interventionist an approach. Proceedings take place between two citizens and, ideally and subject to safeguards, those parties should work out how their cases and defences should be run.
(i) to treat any application, pleading or other step in the proceedings as an application for summary disposal".
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