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9.30 pm
Mr. Menzies Campbell: In the seminar that the Minister had with the Secretary of State for Scotland, was his attention drawn to the fact that in a defamation action in Scotland the assessment of damages is almost invariably carried out by a judge, not a jury? That inevitably means that the awards in Scotland are substantially lower than those in the Strand. That, in itself, could easily be a disincentive to anyone who felt that he should go north of the Tweed to try to effect a remedy.
Mr. Streeter: The hon. and learned Gentleman, who speaks with authority on the matter, makes a valuable point about the Government's position on the new clause.
I have explained that the operation of rules of private international law should also prevent differences from being unfairly exploited. The plea of forum non-conveniens, with which we are all familiar, is available to ensure that cases that should be more suitably heard in England and Wales are not heard in Scotland.
Even if a pursuer--the Scottish term for plaintiff--could establish jurisdiction in Scotland over a defamation that occurred in England and Wales, the Scottish court would still have to consider whether that defamation was actionable under the law of the place where it had occurred, and the English laws of limitation would be a relevant consideration. Section 23(a) of the 1973 Act specifically provides that if a foreign law applies to a dispute, that law's limitation rules must also be applied.
Mr. Peter Bottomley (Eltham):
I apologise for not being present during the earlier part of the debate on the
Mr. Streeter:
My hon. Friend raises a theoretical case. He will know that almost every defamation action is started well within the 12-month period. As I have explained, the answer to his question would lie outwith the working of private international rules in a court of law. It would be for the court in which an action was brought to decide whether it had jurisdiction.
For all those reasons, we do not see that having a separate limitation period of one year in England and Wales, while retaining the limitation period of three years in Scotland, could or would cause confusion or difficulty. We have already made it clear that, following significant consultation in Scotland, there is no widespread desire for a change in the prescription period in Scotland. If my right hon. Friend the Member for City of London and Westminster, South wished to be consistent with his amendments, he would also have to seek to harmonise the assessment of damages north and south of the border. He would also have to harmonise the procedures in bringing any such action. That would be a mammoth and unenviable task. For all those reasons, it is not the Government's intention to harmonise the limitation period in England and Scotland and I ask my right hon. Friend to withdraw the new clause.
This debate is perhaps a modest foretaste of the folly of Labour's plans to introduce a system under which a Scottish Member could come to Westminster to make English law, but English Members could not go to Edinburgh to decide Scots law. Frankly, it does not and cannot work: the West Lothian question remains alive and kicking.
Mr. Peter Bottomley:
I repeat my apology to you, Madam Speaker, and to the House for not being here for the resumption of the debate on the new clause.
I shall delay this Report stage for a moment by returning to the beginning. It is wrong to believe that an extension of time in Scotland balances the generally lower damages--the two issues are separate. There is not an argument for saying that, because people in Scotland have not asked for a reduction from three years to one year, we should continue with the unusual system of leaving more time for a potential pursuer or plaintiff in Scotland than for those in England, Wales and Northern Ireland.
I do not believe that we should harmonise everything, but as we have national publishers--broadcasters fall into that category to an even greater extent than newspapers, which may have separate titles north of the border--we should pay attention to them. When they suggest that it would be helpful to them to have more certainty, we should have a reason to say no to them. If the reason is that, when consulted, the people of Scotland did not ask for the period to be lowered from three years to one, and if most of the people who were consulted were lawyers, that is not of much help to those whose duty is to give the public information day after day.
Mr. Bill Walker:
If my hon. Friend had been here when I spoke he might have been a little more careful.
Mr. Bottomley:
My hon. Friend's point might have gone down better if my hon. Friend the Member for North-West Leicestershire (Mr. Ashby) and my hon. and learned Friend the Member for Harborough (Mr. Garnier) had been selected to serve on the Committee. There are others besides my hon. Friend who feel that they have just as important a reason to be sorry that they were not chosen to serve on it. I believe in a United Kingdom. If my hon. Friend is saying that I cannot raise the anomaly of the three years in Scotland as opposed to one in England, he and I have a dispute that I hope will turn out to be an argument, not a quarrel.
Mr. Allason:
Does my hon. Friend accept that the solution is to harmonise on three years across the United Kingdom? Quite often the Press Complaints Commission can take up to two years to investigate a complaint, whereupon the complainant can go to law--but only in Scotland now, not in England. He will have to go to Scotland to bring an action against a national newspaper published in England, but which is also distributed in Scotland--hence my solution of getting rid of the anomaly by imposing a universal three-year limit.
Mr. Bottomley:
That crossed my mind last week, which is why I tabled alternative amendments proposing three years. My personal preference is for three years in each jurisdiction. If a defamation is sufficiently serious to be the cause of an action--subject to the leave of the court where a person may not have been aware of what is published--it is far better if people issue writs very early on. The point about a libel is the damage it has done; the point of a writ is to put others on notice that what has been said is untrue, damaging, unprivileged and actionable. So the sooner the writ is issued, asking for retraction and reward, the better.
The point at issue here is why Scotland should be left with three years. The fact that no Scottish Minister is present suggests that last week's early-day motion has been ignored. It is said that the people of Scotland have not asked for a reduction. We should be able to do better than that in this House. We have a responsibility to the United Kingdom to try to make it possible for people to bring us news, views and comment--as long as it is not untrue or, in a legal sense, unfair comment.
When people say things that are seriously damaging and actionable we should expect them to be open to action for a reasonable period. I believe that more than a year is unreasonable nowadays; the Minister has backed that up by telling us how few cases begin after a year.
Mr. Jeremy Corbyn (Islington, North):
I support amendments Nos. 16 and 17, which are grouped with the new clause--
Madam Speaker:
Order. We are not there yet. We are on new clause 11, which is why I have called Mr. Brooke.
Mr. Brooke:
Thank you, Madam Speaker, for allowing me the opportunity to respond. The hon. and learned
The Minister gave me a very full reply. He did not tell us precisely what advice he has received from the Scottish Law Commission. Had he told us that in Committee, we would not have returned to it tonight.
I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Mr. Peter Bottomley:
I beg to move amendmentNo. 26, in page 2, line 27, leave out 'nature or'.
Madam Speaker:
With this, it will be convenient to discuss the following amendments: No. 16, in page 2, line 28, at end insert--
'(5A) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, where a statement published in an edition of a serial publication is in issue in defamation proceedings, the court shall not have regard to--
(a) a court finding of libel against a previous edition in the same serial publication which was published more than two years before the edition in question; or
(b) proceedings for defamation against a previous edition in the same serial publication which have not resulted in a court finding of libel.'.
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