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Division No. 1


Ackner, L. Acton, L. Addington, L. Allen of Abbeydale, L. [Teller.] Ampthill, L. Attlee, E. Avebury, L. Bancroft, L. [Teller.] Bath, M. Beaumont of Whitley, L. Belhaven and Stenton, L. Berkeley, L. Blackstone, B. Borrie, L. Boyd-Carpenter, L. Bridges, L. Brightman, L. Broadbridge, L. Bruce of Donington, L. Callaghan of Cardiff, L. Carew, L. Carmichael of Kelvingrove, L. Chalfont, L. Chorley, L. Cledwyn of Penrhos, L. Clinton-Davis, L. Craigavon, V. Croham, L. Darcy (de Knayth), B. Dean of Thornton-le-Fylde, B. Desai, L. Donaldson of Kingsbridge, L. Donoughue, L. Dormand of Easington, L. Dubs, L. Ezra, L. Falkender, B. Falkland, V. Freyberg, L. Gallacher, L. Geraint, L. Gladwin of Clee, L. Gladwyn, L. Graham of Edmonton, L. Greenhill of Harrow, L. Halsbury, E. Hamwee, B. Harris of Greenwich, L. Harrowby, E. Haskel, L. Hayman, B. Henderson of Brompton, L. Holderness, L. Holme of Cheltenham, L. Hooson, L. Hunt of Tanworth, L. Jay of Paddington, B. Jenkins of Hillhead, L. Jenkins of Putney, L. Judd, L. Kennet, L. Kilbracken, L. Lauderdale, E. Lawrence, L. Lester of Herne Hill, L. Listowel, E. Longford, E. McIntosh of Haringey, L. Mackie of Benshie, L. McNair, L. McNally, L. Marlesford, L. Marsh, L. Mayhew, L. Meston, L. Milner of Leeds, L. Mishcon, L. Molloy, L. Monkswell, L. Monteagle of Brandon, L. Moore of Wolvercote, L. Morris of Castle Morris, L. Ogmore, L. Orr-Ewing, L. Park of Monmouth, B. Peyton of Yeovil, L. Pike, B. Prys-Davies, L. Redesdale, L. Richard, L. Rippon of Hexham, L. Rochester, L. Rodgers of Quarry Bank, L. Roll of Ipsden, L. Russell, E. St. John of Bletso, L. Seear, B. Serota, B. Shannon, E. Shaughnessy, L. Simon, V. Simon of Glaisdale, L. Stedman, B. Strabolgi, L. Strange, B. Tenby, V. Thomas of Walliswood, B. Thomson of Monifieth, L. Thurlow, L. Tope, L. Tordoff, L. Wallace of Saltaire, L. Walpole, L. Weatherill, L. Wedderburn of Charlton, L. White, B. Wigoder, L. Wilberforce, L. Williams of Crosby, B. Williams of Elvel, L. Williams of Mostyn, L. Winchilsea and Nottingham, E. Winston, L. Wright of Richmond, L.


Addison, V. Ailsa, M. Alexander of Tunis, E. Alexander of Weedon, L. Annaly, L. Archer of Weston-Super-Mare, L. Bethell, L. Blatch, B. Brougham and Vaux, L. Cadman, L. Chalker of Wallasey, B. Clanwilliam, E. Coleraine, L. Colwyn, L. Courtown, E. Cranborne, V. [Lord Privy Seal.] Cumberlege, B. De Freyne, L. Elles, B. Elton, L. Ferrers, E. Finsberg, L. Geddes, L. Goschen, V. Harding of Petherton, L. Hemphill, L. Hogg, B. HolmPatrick, L. Howe, E. Inglewood, L. Ironside, L. Kenilworth, L. Leigh, L. Liverpool, E. Long, V. [Teller.] Lucas, L. Lucas of Chilworth, L. McColl of Dulwich, L. Mackay of Ardbrecknish, L. Mackay of Clashfern, L. [Lord Chancellor.] Mancroft, L. Mersey, V. Miller of Hendon, B. Milverton, L. Montgomery of Alamein, V. Munster, E. Noel-Buxton, L. Northesk, E. O'Cathain, B. Oxfuird, V. Pender, L. Platt of Writtle, B. Rawlings, B. Rennell, L. Renwick, L. Seccombe, B. Selborne, E. Sterling of Plaistow, L. Strathclyde, L. [Teller.] Swansea, L. Swinfen, L. Teviot, L. Trumpington, B. Vivian, L.

Resolved in the affirmative, and amendment agreed to accordingly.

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The Lord Chancellor: My Lords, the Question is that the original Motion, as amended, be agreed to.

On Question, Motion, as amended, agreed to.

Lord Richard: My Lords, before we proceed to the next business, in view of the vote that has just taken place and the firm expression of the view of this House, will the Government now consider whether this matter should be referred to a Select Committee of either this House or of Parliament? As I understand it, that has happened in the case of changes to the Civil Service constitution and working powers on every other single occasion that this issue has been before Parliament. Will the Leader of the House consider that view?

The Lord Privy Seal (Viscount Cranborne): My Lords, I can assure the House that the Government will take very seriously the expression of opinion that the House gave this morning. We will look at the implications of the vote. We will undertake to read with care the criticisms voiced as well as the matters raised on the other side. We undertake also to come back to the House when we have considered the matter and advise your Lordships of the conclusions that the Government have reached.

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Defamation Bill [H.L.]

1.32 p.m.

The Lord Chancellor: My Lords, I beg to move that this Bill be now read a second time.

This is the third of four Bills I have introduced this Session to give effect to recommendations for law reform. Unlike the other three Bills, however, this is not one which has been put forward as a result of the Law Commission's work. It is the result of three separate consultation exercises by my department and additional consultations in Scotland and Northern Ireland. In the most recent consultation, I published a draft Bill inviting views on the detailed drafting, structure and presentation of legislation to implement important reforms to defamation law and procedure, which the Government had already announced. The many constructive responses helped us to produce the present Defamation Bill for introduction in a greatly improved form. I would like to express my gratitude to those who have contributed to this useful process, and I am sure that noble Lords would wish to join me in doing so.

Full Notes on Clauses are available for any Members of the House who may wish to examine the provisions in greater detail. Fuller explanations of the current law and the difficulties which gave rise to the proposed changes may be found in the published consultation documents. I should mention at the outset that the reforms in this Bill derive from three distinct although connected initiatives. A very substantial part of the Bill owes its origins to recommendations made by the working group set up under the chairmanship of Lord Justice Neill, in response to my invitation to the Supreme Court Procedure Committee to examine the rules and practice for pleadings in defamation cases, and to propose reforms. The working group's report on practice and procedure in defamation was published for consultation in July 1991. I would like to record my gratitude to Lord Justice Neill and all the members of the group for all their hard work, both in producing their report in the first place and then in assisting us to produce a Bill to implement the reforms. Their work continued long after the original production of the report.

I should also like to record my thanks to my noble and learned friend Lord Hoffmann who made to me the important suggestion that a special regime should be set up for the summary hearing of defamation claims. That is now embodied in Clauses 8 to 11 of the Bill, and I am indebted to him both for the suggestion and his help in perfecting those clauses. Again, I am sure that noble Lords would wish to endorse those sentiments. It is particularly fitting that my noble and learned friend is to make his maiden speech in this debate. To that and the maiden speech of the noble Lord, Lord Grantley, we look forward with great expectation.

The other reform proposal, now in Clause 1 of the Bill, is the result of my consultation paper on The Defence of Innocent Dissemination which was published in July 1990. Although all the reforms arose

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originally out of my review of defamation law in England and Wales, much of the substantive law is broadly similar in both Scotland and Northern Ireland, and there are some similarities in the procedures. As a result of those consultations last year, the changes (or corresponding changes) will apply in Northern Ireland, and many of the changes will also apply in Scotland.

That is the background to the Bill, and with your Lordships' leave, I propose to explain its provisions in fairly broad terms.

Clause 1 is a new statutory defence which will supersede the common law defence of innocent dissemination, which has always been subject to some uncertainty, particularly as to who could rely on the defence. It concentrates on the concept of responsibility for publication. The new defence will not be available to authors, editors or publishers (in the commercial sense) of defamatory material. But it will be available to others whose work may in some way have contributed to the publication of defamatory material which someone else has chosen to publish unless they knowingly took part in producing a defamatory publication, or had reason to believe that they were doing so.

Clauses 2 to 4 also provide a new defence to replace an existing defence which does not now fulfil the purpose for which it was created. The present statutory defence of unintentional defamation is cumbersome, and very little used. The Neill Committee recommended that it should be replaced by a new defence which would be more streamlined but which would only be available to a defendant who was willing to pay compensation assessed by a judge, as well as publishing an appropriate correction and apology. That is the foundation of Clauses 2 to 4.

Clauses 5 and 6 reduce the limitation period, both in England and Wales and in Northern Ireland, in actions for libel or slander and in actions for malicious falsehood. One year is the time within which most actions are begun, and need to be, if the proceedings are to minimise damage to the plaintiff's reputation. But the court will have a discretion to disapply the strict limitation period, in favour of a plaintiff who had a good reason not to proceed within it, balancing the prejudice which the defendant will suffer if it does proceed against the prejudice which the plaintiff will suffer if it does not.

Clause 7 is part of a lesser reform, designed to eradicate delaying tactics by parties going through the unnecessary stage of applying for rulings as to meanings which statements are "arguably" capable of bearing.

Clauses 8 to 11 bring defamation proceedings into line with most other civil proceedings in providing powers of summary disposal. These clauses introduce a new fast-track procedure which will provide a prompt and inexpensive remedy in less serious defamation cases.

Clauses 8 to 11 give judges new powers enabling them to consider the strength of the claim and the defences raised, and to dispose of the claim summarily in favour of either party. The summary relief which the judge will have power to grant includes damages up to

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£10,000, a declaration that the statement was false and defamatory, and an order requiring the defendant to publish a correction and apology, which may take the form of an approved summary of the judgment. They also provide a substructure for the special rules which will be needed in the context of summary disposal, so that every defamation claim will come before the judge at an early stage, in order that he should consider whether it is suitable for summary disposal.

Clause 12 changes the rule that in an action for libel or slander in which the question whether a person did or did not commit a criminal offence is relevant to an issue arising in the action, proof of his conviction is conclusive evidence that he committed the offence. Plaintiffs in defamation proceedings will no longer enjoy the artificial advantage of the rightness of someone else's conviction being unchallengeable.

Clause 13 prevents the plaintiff from recovering damages for injury to his reputation beyond what he would be entitled to if everything likely to affect his reputation were public knowledge. The defendant will now be allowed to lead and rely on evidence of conduct which, if known, would affect the plaintiff's reputation.

Clauses 14 and 15, with Schedule 1, bring up to date existing statutory privileges. The new privilege under Clause 15--for certain reports of legislative, judicial and other public proceedings--will apply to publications in general, not only newspapers and periodicals, and will extend to a wider category of reports, in particular recognising the need to give reports of proceedings of European institutions protection equivalent to that already given to those in this country. Clauses 16 to 20 contain general supplementary provisions.

The Bill represents a useful measure of law reform. It will, I believe, simplify this complex area of law and procedure and fit well with current developments in the conduct of civil litigation generally. I have the greatest pleasure in commending the Bill to the House.

Before I sit down, I should say that long ago I undertook a commitment to address the magistrates in the Isle of Man this evening. Because of the rearrangement of this business today, it has started rather later than I had expected. Therefore I may be denied the pleasure of hearing the whole of the debate. I shall stay for as long as I can consistent with the necessary travel arrangements, but I hope your Lordships will excuse me if I go. It is not for any want of interest in the proceedings but a desire not to break an engagement which I have undertaken to the magistrates who give so much of their time so willingly to serve the cause of justice.

Moved, That the Bill be now read a second time.--(The Lord Chancellor.)

1.42 p.m.

Lord Williams of Mostyn: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his exposition of the principles which underlie the Bill. Perhaps I may on a personal

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basis echo his praise for Lord Justice Neill, who is held in such affection and high regard by everyone who practises in the field of defamation.

I have two interests to declare. The first is professional. Almost all the work I do at the Bar is libel, slander and media-related, for plaintiffs and defendants. Perhaps that declaration can subsist throughout the remaining stages of the Bill. I have a personal interest to declare; namely, my interest in hearing the maiden speeches of the noble and learned Lord, Lord Hoffmann, and the noble Lord, Lord Grantley. It is not often--this may be a unique occasion--that an advocate can somewhat presumptuously look forward to the maiden speech of a noble and learned Lord, that Lord, in my case, having been on the tribunal as Mr. Justice Hoffmann when I appeared before him, and Lord Justice Hoffmann as he later became. I look forward to his speech with particular interest.

A number of diverse interests are involved here and there cannot be a perfect reconciliation of them. The first is the right to privacy in personal and family life. That is insufficiently regarded, if at all, in our law. Its protection under the European Convention on Human Rights finds no adequate reflection in domestic law. The second is the right to freedom of speech and expression. The third is the English vice--not the usual one but the more important one--of obsessive secrecy for no useful purpose. One recalls the recent debate in your Lordships' House on Lord Justice Scott's Report and reflects how much a freedom of information Act is needed in this country.

The fourth is the public's right to know. We are lamentably lacking in any details of information, except on the occasion of the report to which I referred a moment ago, of what those do who are set in authority above us. The fifth is the inequality of arms in this area of law. There is no legal aid for libel or slander though, curiously, by an anomaly, there is for malicious falsehood. Private people who are wounded and defamed act, by and large, at their own expense except for those who have a union or professional association to support them. It is worth bearing in mind that defendants in this field are normally financially powerful corporations.

Overarching all of this is something which I suggest is too easily forgotten and overlooked, namely, the sense of the very bitter and continuing wound that is caused to a man or woman who is wrongly defamed. Often that wound is much grosser and graver to the plaintiff in question than a physical injury.

The three themes that should have underpinned any review of legislation are privacy, defamation and freedom of information. The last Defamation Act was as long ago as 1952 and it is a matter of regret, though not a partisan point, that an opportunity has been lost on this occasion not to look at the whole spectrum which I have endeavoured to describe. I appreciate that the noble Lord, Lord Inglewood, is to reply for the Government. It might be helpful if he were able to indicate whether the Government have a concluded view about the public figure defence, usually known as the Sullivan defence, which is current in the United States

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and in other jurisdictions, such as the Indian jurisdiction. If a person is in public life and is properly described as a public figure, he or she cannot succeed in defamation unless malice can be proved and demonstrated against the defendant. I have personal reservations about that defence. It might be interesting to know what thinking, if any, the Government have on that.

One or two specific questions trouble me. The first is the reduction of the limitation period from three years to one. Some plaintiffs suffer particular constraints in this regard. I take the example of a doctor who is defamed. Very often if a complaint is made there will be an internal national health or national health trust inquiry. Notoriously, those inquiries very often last longer than a year. I take the example of a prison officer or a police officer. It has become the vogue almost automatically to make complaints against them. Those internal disciplinary proceedings often take more than a year. I cite the position of a police officer who may have been defamed but still has to give evidence in a criminal case. He will be subject to the collateral attack that he has a financial interest in the outcome of the criminal proceedings if he sues within one year.

There will be no incentive to defendants, who, I repeat, are very often large powerful organisations, to retain documents. That will fall into account when the judge decides whether the leave can be extended. I take the point made by the noble and learned Lord the Lord Chancellor that there is a discretion to extend the one-year period. But I would suggest that that discretion is a poor alternative for a plaintiff or a potential plaintiff who is left in limbo. He or she simply does not know what his or her legal position may be in terms of effective remedy when the 12 months has expired. After all, if I leave your Lordships' House quite soon and I am run over on the pavement by a newspaper delivery van and my leg is broken, I shall have three years in which to take action. If my reputation is ruined by the same newspaper this evening, I shall have only the one year. I do not myself understand the rational underpinning for the difference.

The summary disposal procedure, of which the noble and learned Lord, Lord Hoffmann, is the effective progenitor, has value. On subsequent stages of this Bill I shall wish to examine how exactly it is to work. For instance, is the judge to come to his conclusion only after all the witness statements are in? They are required to be exchanged now in defamation as in other civil proceedings. Will affidavits be necessary? Will the process of discovery have taken place? These are questions of detail and not principle. In principle, anything that makes the law of defamation simpler, by and large, is to be approved.

The noble and learned Lord the Lord Chancellor mentioned evidence of previous convictions in Clause 12. Evidence of previous criminal convictions, if this Bill goes through in its present form, is not to be conclusive of the commission of crime, except in the plaintiff's case. Why should it be limited to the plaintiff? A doctor sues about a defamatory allegation; the defendant or a witness has substantial previous criminal convictions. Why should they not be conclusive of the guilt of the party or the witness? One will have the

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co-lateral re-litigation of the criminal matters very often with the plaintiff hobbled because he or she will not have access to the material which demonstrated beyond reasonable doubt to a jury that the person in question had committed a criminal offence. I find the reasoning somewhat shadowy and difficult to follow.

How is Clause 13 to work in practice? I suggest that plainly this evidence of other conduct should be admissible only after the question of liability has been decided, otherwise one will have an elision between the question of liability and that of bad reputation in collateral areas. I am troubled by that. A Bill which is intended, so it is said, to make defamation proceedings simpler, easier and less expensive, is liable to degenerate into very lengthy, complicated hearings about other matters which do not go to the question in issue. For instance, if a professional or lay person, or any individual, has an allegation of financial dishonesty made against him or her, why should it be relevant that sexual impropriety in his or her life should be put before the jury to mitigate the damages? I do not believe that the answer is necessarily plain on the face of the Bill and it is something to which we need to refer in due course.

I appreciate that it is Friday and therefore brevity, as well as abstinence, is appropriate and therefore I shall finish. Clause 20(2) states,

    "Nothing in this Act affects the law relating to criminal libel".

The only question that I ask is this: in 1996, is criminal libel appropriate to be kept as part of our law in any circumstance? Most commentators would think that it had long outlived its usefulness.

I welcome the principle that defamation should be made simpler in its trial, easier in its outcome and less expensive in its conduct, but there are quite detailed questions to which one shall need to return in due course.

1.54 p.m.

Lord Lester of Herne Hill: My Lords, this is a welcome and much needed Bill to reform some aspects of the law of defamation. The noble and learned Lord, the Lord Chancellor, deserves public gratitude for having grasped the prickly nettle of seeking to improve the content of defamation law and its arcane and highly technical procedures. So has Sir Brian Neill and his working group and the noble and learned Lord, Lord Hoffmann, whose innovative work bears fruit in the Bill. It is very pleasing, as has been said already, that the noble and learned Lord will be making his maiden speech in this debate and we eagerly await his contribution.

I too must declare my professional interest as an advocate who appears sometimes in libel cases and sometimes against the noble Lord, Lord Williams of Mostyn--he more usually for plaintiffs and I more usually for defendants, but each of us must try to rise above the perspective that we obtain from our own practices.

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It is worth saying, especially for non-lawyer noble Lords, that the law of defamation is peculiar and unique like no other tort or civil wrong. Its peculiarities derive from its historical origin in the Star Chamber's seditious and criminal libel later developed by the common law into a separate tort or civil wrong.

Defamation law necessarily restricts free speech by protecting the public interest in personal reputation. It is based on the civil right of everyone to the unimpaired possession of his or her reputation and good name. The general rule is that no one should speak falsely of his neighbour, and that it is in the public interest that the law should provide an effective means whereby the individual can vindicate his or her reputation against calumny.

Existing English law is notorious for giving excessive protection is some respects to the civil right to reputation for those who can afford to take up the plaintiff's sword. In the first place, a strict liability rule applies to the tort of libel. The state of mind of someone who publishes a libel is immaterial in determining liability, because malice is implied from the mere publication of defamatory matter. An individual may publish a libel in good faith, believing it to be true, and yet he has no defence to the action, however excellent his intentions may be.

Secondly, the law presumes in the plaintiff's favour that the defamatory words are false unless and until the plaintiff proves to the contrary--a reverse burden of truth. Thirdly, if the defendant attempts unsuccessfully to prove that the words are true, that is likely to increase the damages. Fourthly, juries award huge sums in damages without any proof of actual or probable financial loss and with inadequate judicial guidance to ensure that the award of damages is proportionate to the wrong suffered by the plaintiff. The process often seems closer to an expensive casino than to a court of law. This unacceptable aspect of English libel law has to some extent, but not completely, been reformed by the Court of Appeal in the recent Esther Rantzen and Elton John cases so that juries are better guided. But the position still remains unpredictable and somewhat arbitrary, with remaining risks of grossly arbitrary rewards.

It was those unique features of defamation law--and I make no apology for recalling them--and their chilling effect on free speech, that led the law Lords to reject an attempt by Derbyshire County Council to develop what was in effect a tort of government libel, a more draconian civil version of the crime of seditious libel, which would have chilled the freedom of the press as well as the freedom of speech of the individual citizen critic of government. I again declare an interest specifically as counsel for the newspaper in that case.

Although I agree with the noble Lord, Lord Williams, that would-be plaintiffs can suffer serious injustice in some cases because of the absence of legal aid, it is also important to recognise that the individual citizen critic is especially vulnerable when faced with a libel action by a well-heeled plaintiff, because legal aid is not available even for a defendant with reasonable prospects of proving that the words are true or are covered by

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qualified privilege. The noble Lord, Lord Williams, gave the example of the police officer plaintiff. It is a good example. But a police officer plaintiff is assisted by the Police Federation under regulations approved by Parliament. The defendant of such a claim may be a citizen critic or a small local newspaper and not a national newspaper. In cases of that kind real injustice can occur.

The noble and learned Lord, Lord Keith of Kinkel, in the Derbyshire case, recognised that the chilling effect of libel law,

    "is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public".

That observation by the noble and learned Lord brings to mind the notorious use of gagging writs by the late Robert Maxwell and others like him.

Turning to the point raised by the noble Lord, Lord Williams of Mostyn, the Derbyshire case did not decide whether the common law of qualified privilege should be extended to cover the position where the plaintiff is not a government body, but a Minister, an elected politician or a public officer discharging public functions who is defamed about the manner in which he or she discharged those functions.

I had the privilege, on behalf of Justice--I am delighted to see its distinguished chairman the noble Lord, Lord Alexander of Weedon, in his place--of chairing a steering committee, for which the noble Lord is not responsible, which made submissions on the subject as part of the Lord Chancellor's consultation process. We welcomed the proposals to streamline and simplify procedure and to bring defamation law up to date. We drew attention to the way in which in various Commonwealth courts the law on qualified privilege is developing. In the case of Australia, the law is less favourable to the press than in the United States. While relaxing strict liability where politicians and public officers sue to vindicate their governing or political reputations, it requires the publisher to show that publication was reasonable in all the circumstances. That seems a sensible compromise between the conflicting rights and freedoms, less generous to the media than the position obtaining in the United States, as a result of the New York Times v. Sullivan case and its progeny.

The submissions on behalf of Justice expressed the belief that the importance of freedom of public information and the public's right to be informed about public affairs and political discussion require the development of qualified privilege in this way. It was suggested that that could be done either in this Bill or by leaving it to the courts to develop the common law on a case-by-case basis.

Upon more mature reflection, I have come to the conclusion that it would be unwise to seek to amend the Bill to deal with that important matter. For one thing, the policy implications are difficult to evaluate except in the context of a particular case. For another, we, whether as ordinary parliamentarians like myself or as Ministers, are self-interested. Many people in public life

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would be delighted to be able to use the law vigorously to suppress what we regard as media libels about official conduct.

I suggest that it is better to leave the matter to the independent judiciary to decide upon what public policy requires in weighing free speech against other public interests, honour, reputation and personal privacy, having regard, as they increasingly do, to the rights and freedoms guaranteed by the European Convention on Human Rights. Again, I should declare my professional interest. I am engaged in pending proceedings on behalf of newspaper defendants in a case with the noble Lord, Lord Williams of Mostyn, as my formidable opponent. The central issue will have to be decided by the courts. It is a question which the noble Lord has raised with the Minister and which will have to be decided by the courts. It would be helpful if it could be made clear for the avoidance of doubt that this Bill is not intended to limit the role of the courts in developing that area of the law by closing the categories of qualified privilege. I do not think that it is meant to do that, but I should be most grateful if the Minister could give the House an assurance on that matter in his reply.

I turn briefly to another matter which is not dealt with in the Bill--I refer to damages awards--and with which I can deal shortly. The matter was dealt with in the submissions made on behalf of Justice. The problem is that of excessive damages. Speaking for myself, I strongly support the recommendation that was made 20 or more years ago by Sir Neville Faulks' Committee that the best solution to the problem is for the jury to say whether the damages should be

    "substantial, moderate, nominal or contemptuous",

leaving the judge to decide the actual amount. That would provide an effective way of retaining trial by jury while avoiding excessive damages awards. It would have the benefit that the Court of Appeal would be less troubled in damages cases.

Perhaps I may now make a small but important point about the Internet. I welcome the fact that the Bill applies to defamatory publications via the Internet. I hope that it will be amended in Committee to require those providing Internet facilities to remove information once it has been proved that that information is defamatory.

I turn now in a little detail to some of the other topics dealt with in the Bill. I refer first to responsibility for publication. It is certainly desirable for the defence of innocent dissemination to be statutorily defined and extended to cover a wider class of secondary publishers--distributors, printers and others. The trouble with Clause 1 as it stands is that it does not adequately protect them, and is likely to encourage increased and unnecessarily complicated litigation. To establish that "reasonable care" has been taken in relation to the publication of the statement complained of, as Clause 1(1)(b) requires, would be a difficult and expensive task, requiring detailed evidence of the operations of the particular defendant and evidence, including expert evidence, of usual practice.

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Clause 1 as it stands also fails to protect the secondary publisher who, on discovering that a statement is defamatory, takes reasonable steps to assure himself that it is justified, or that it is fair comment, or is protected by qualified privilege.

I turn now to the offer of amends. As the noble and learned Lord the Lord Chancellor indicated, the present procedure for making an offer for amends is cumbersome, unworkable and needs to be replaced. The new procedure is a welcome way of reducing unnecessary litigation while providing a sensible way of vindicating the plaintiff's good name.

I hesitate to say anything about summary procedure because it was, in effect, invented by the noble and learned Lord, Lord Hoffmann, against whose judgment I would not dare to appeal, but I am troubled. The new summary procedure has the admirable aim, which everyone shares, of weeding out hopeless cases at an early stage where it is clear to the judge that the plaintiff's case has no realistic prospect of success. It should offer the plaintiff with a sound case a quick route to a remedy, where there is no realistic defence for the claim and where the court is satisfied that summary relief would adequately compensate the plaintiff. It is highly desirable that the procedure should be accelerated and more user-friendly, but there is a risk that the summary procedure as it stands might perversely result in increased costs and complicate, rather than simplify, libel actions. It is a matter to be looked at carefully in Committee to ensure that "fast-track" does not become "gridlock".

I turn now to the meaning of a statement under Clause 7. Clause 7 sensibly alters the English procedure, as the noble and learned Lord, explained. Since my noble friend Lord Mar and Kellie is unable to be with us today, he has asked me to raise a point about Scots law on his behalf. I am singularly unsuited to do so. Apparently, the procedural test laid down by the House of Lords in the case of Morgan v. Odhams Press, which is abolished by Clause 7, has never been applied in Scotland. It is unclear why there is therefore any need to apply Clause 7 to Scotland. I should be grateful if the Minister could clarify the position, no doubt with advice from north of the Border.

Statutory privilege: I welcome the extension of the categories of reports which will enjoy statutory privilege to reports of legislative, judicial, and other public proceedings and official publications on a world-wide basis, but I can see no reason for the omission of the European Court of Human Rights from Clause 14. Reports of its proceedings are covered by qualified privilege under Part I of Schedule 1, but surely they, too, should be absolutely privileged, as will be the position for the European Court of Justice.

The definition of "court" in Clause 14 is also excessively restricted, excluding from statutory privilege reports of the proceedings of a whole range of domestic tribunals, like the GMC. I should prefer to see it apply to any tribunal of inquiry recognised by law exercising judicial functions as the Faulks Committee recommended 21 years ago.

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I note that some items which were privileged, subject to explanation or contradiction, under the Lord Chancellor's draft Bill, are not so privileged in the final draft. They include fair and accurate copies of, or extracts from, notices issued by a local authority, a chief officer of police, or a serving officer of Her Majesty's Armed Forces. I should again be grateful if the Minister could clarify the reasons for not extending statutory privilege, as originally proposed in the consultation document.

I do not understand, unless I have misread it, which is possible, why the amended schedule reduces the scope of the 1952 Act schedule by apparently excluding a copy of a fair and accurate report, or summary of any notice or other matter, issued for the information of the public by or on behalf of a chief officer of police. It may be that that will be included under Paragraph 15 of Part II of the schedule. Again, I should be most grateful for clarification.

Those are matters of detail, and I apologise for raising so many points of detail. The general principles upon which the Bill is based are sound. They will strike and maintain a better balance between the three relevant civil rights: the right to freedom of expression; the right to a good reputation; and the right of effective access to the courts.

Like the noble Lord, Lord Williams of Mostyn, I agree that privacy interests are also important and need to be better protected, but I believe that those interests are best protected by the courts developing the common law on a case-by-case basis, not on the basis of detailed legislation. I therefore support the stand taken by the Government in not seeking to legislate in the Bill on the vexed question of media intrusion on privacy, however disgraceful and unjustified that may be. The courts are capable of evolving the law to deal with real social mischief.

With those qualifications, which are not meant in any way to undermine my strong support for the Bill, I support its Second Reading.

2.11 p.m.

Lord Hoffmann: My Lords, I shall speak to one aspect of the Bill only; that is, the summary procedure which my noble and learned friend the Lord Chancellor was kind enough to say originated in a suggestion from me. The introduction of that procedure will be a modest improvement in the law, but your Lordships will better appreciate its usefulness and its modesty if I explain what it is intended to do. The easiest way to do that is to tell your Lordships how the proposal originated.

It began with a dinner which I had, I think in 1989, with the late Lord Rothschild. He had been the chairman of a Royal Commission upon which I had the honour to serve in the 1970s. Afterwards, we saw each other fairly regularly. On that occasion he was expressing his irritation, as he frequently did, over articles in newspapers which insinuated that he might have been a Russian spy. He wanted to know why he could not sue them for libel. I knew hardly anything about libel. I had never taken part in a libel action, either as counsel or as judge, but I thought that I knew enough to urge him

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strongly not to go to law. I said that no one in his right mind would believe that he was a Russian spy and that a libel action would only give currency to tittle tattle which most people had never heard of anyway. It would be long and expensive. It would take over his life when he had better things to do.

I think that someone who knew more about the subject must have given the same advice because Lord Rothschild never did bring a libel action. But his restless intelligence never accepted that there was any problem to which there was not an answer. He said that the law should be able to accommodate people like him who did not want to pursue newspapers for large sums of money. They wanted two things only. First, they wanted a public statement which cleared their reputations; and, secondly, they wanted it quickly. There should be some procedure whereby such people can obtain a remedy.

I discussed the matter with a solicitor who was the in-house lawyer of a national newspaper. She had a different problem with libel law. She found that her paper often received threats of actions from people complaining that they had been libelled in a newspaper article which was ambiguous or accidentally inaccurate but in which the defamatory content, if any, was entirely trivial. Those people were not satisfied with an immediate correction and a small amount of compensation; they wanted to get as much money as they could. They were encouraged by lawyers who knew that, because a libel action is very expensive in legal fees and in the management time of newspapers, the newspapers would eventually settle rather than fight. They would settle by paying a substantial sum to the plaintiff and, perhaps even more important, a large sum in costs to the lawyer. So she wanted some procedure whereby such gold-digging claims could be summarily brought to court.

I sat down and drafted a Bill to create a procedure which could be used both by plaintiffs and defendants. In full pride of authorship I sent it to my noble and learned friend the Lord Chancellor. He was then heavily engaged in other matters concerning the legal profession, which my noble and learned friend Lord Ackner may remember. I received a visit from a civil servant who told me in the traditional phrase that the time was not ripe. Now it seems that the time is ripe and the proposal is in a Bill before your Lordships' House.

It is important to emphasise that the procedure is intended to be for the benefit both of plaintiffs and defendants. It enables a plaintiff who does not want more than a relatively small sum of money by libel standards--the Bill provides for £10,000 but that can be varied by statutory instrument--to go quickly before a judge at a hearing with evidence on affidavit and to obtain an order for the publication of an agreed statement or, if there is no agreement, a publication of the judge's decision.

It also enables a newspaper, as a defendant which considers that after taking into account the publication of the correction the plaintiff cannot reasonably be

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entitled to more than £10,000 in damages, to go before a judge on the same procedure and ask that he make a summary award and stop the case going any further.

Those are the cases to which the procedure is intended to apply. The reason why it is a modest improvement is that there are many cases--I should think most of the cases that have attracted great publicity over the years--in which it cannot apply. In a plaintiff's application the procedure depends upon the judge being able to say, on the basis of affidavits alone--without any discovery, cross-examination or oral evidence--that there clearly is no defence to the plaintiff's claim. If the newspaper wants to justify the allegation as true and can show that it has a reasonably arguable case, the judge cannot give judgment under the summary procedure. Even if the plaintiff is content to take a small sum of damages, the newspaper, or other defendant, is entitled to put its case before a jury. It is important for the freedom of the press that it should have the right to do so.

Therefore, the procedure will have no effect upon the great theatrical libel cases which have entertained the British public over the years. However, there are a few cases in which there is no serious defence and in which an attempt to defend is only in the hope that the plaintiff's money and patience will eventually become exhausted. It is that kind of case which the procedure is intended to help.

Likewise, the procedure has no effect on an action for libel where a serious charge has been made against the person's character. There again he is entitled to take the matter before a jury and to ask the jury to show its disapproval of what the newspaper has done. The judge can deal with the case himself only if he is satisfied that the libel, if any, is not sufficiently serious to be capable of meriting an award of damages higher than the statutory limit.

Despite those limitations, I believe that the procedure will be a useful one. I commend it to your Lordships.

2.18 p.m.

Lord Alexander of Weedon: My Lords, on behalf of the whole House, it is my privilege and personal pleasure as a former colleague and a friend warmly to congratulate the noble and learned Lord, Lord Hoffmann, on his maiden speech. He is one of the select group of South African lawyers who emigrated to this country at the outset of their careers out of distaste for the political regime then current in the country of their birth. In the case of the noble and learned Lord, he has reached the highest ranks of three branches of the law; academic at Oxford, the Bar and the Bench. All who know him know of the qualities which have led him to that position with a dazzling speed of achievement. We know him for his intellect, incisiveness, common sense, imagination and also for his entertaining approachability. I can confidently regard his speech as wholly non-controversial because I happen to agree with it myself. But in the circumstances, because the Bill is in part a progeny of his efforts, I know that the House will feel that it is right that he should have expressed such a clear view.

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At the Bar I often acted for plaintiffs and defendants. Over the years, I felt a real frustration at the anxiety, delay and expense caused by the complex procedures leading to a full-blown trial. I felt also that those procedures were particularly difficult for the plaintiff and I remember the advice that one had to give to a plaintiff who came for advice a few days after he felt that he had been gravely libelled. You had to say to him, "The case, if fought, will be very expensive. There will be a long delay before you can achieve any redress to your reputation. When the action comes to trial in two or three years' time, it will revive public memories of the libel and the reporting will often be painful, selective and sometimes salacious." One would tell the client, "You must appreciate that you have to feel as strongly about the case in several years' time as you do when it is published, and you will have to appreciate that in the meantime, you will have considerable underlying anxiety and a cloud over your reputation."

Not surprisingly, plaintiffs in libel actions needed, and need still, a good deal of sheer dogged courage and the ability and willingness to take a large financial risk. Sometimes when confronted with that advice, a client would remark that all he wanted was the opportunity to correct the libel swiftly. Sometimes that could be achieved by settlement. It always seemed to me vital in that area of the law to leave no stone unturned; to urge a compromise which was fair to the reputation of the complainant but did not inflict undue humiliation or expense on the defendant.

But such redress by sensible compromise needs the co-operation of both parties. In my experience, defendants were often all too ready to use the interlocutory procedures to test the determination of the complainant and the depth of his cheque book. Powerful media groups could afford to play the interlocutory procedural game--which has rightly been described in this debate as arcane--to the full. Many of them did so.

I can think of several plaintiffs over the years who would have welcomed the availability of a summary procedure. But I can equally think of times when newspapers, sensing that a complainant was over-sensitive or possibly even on a gold-digging mission, would have liked to be able to seek a prompt resolution of the action. It is most welcome that this Bill grants defendants the right to seek summary disposal of proceedings.

In some ways, I should have liked to see the Bill achieve a slightly less modest result than that so clearly described by the noble and learned Lord, Lord Hoffmann. I remember the end of one hot July at the conclusion of a libel case which I had found exacting and which, I think, even my normally ebullient client found exhausting, I wrote an article for the Independent expressing my view that there should be an opportunity for a plaintiff to go before a judge at an early stage and ask that an apology be ordered by the court. The judge could then call for immediate material from the newspaper and form an impression of whether a correction was required and, if so, in what terms. While the plaintiff would be entitled to ask for costs, the price for that fast-track procedure should be that he could be

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required to forgo his claim for damages as a term of obtaining an apology. I believe that I then envisaged that a judge would be able to form not only a view of whether a claim was unarguable or certain to succeed, but also a robust prima facie view on a case and seek a commonsense solution. But, nonetheless, I agree that the proposal put forward for a fast-track procedure is modest progress.

Some might say that that would whittle away at the right to a jury trial, but I have not heard that view expressed in today's debate. I would not find that in any way objectionable. Almost all civil rights are now tried by judges sitting alone. The reason why defamation has been an increasingly isolated exception is, as I understand it, because it was said that the importance of the issue of reputation meant that the parties had the right to a jury.

The right to reputation, and defamation actions, has always fascinated the public gaze. Anyone who was led by the late Mr. Colin Duncan and heard him declaim to juries in Shakespeare's words that:

    "The purest treasure mortal times afford Is spotless reputation",

would be swept along by the indignation. But, to my mind, there are many courses of action at least as important--and, possibly a good deal more important--than actions for defamation. I have in mind actions for severe personal injury, or breach of contract, or negligence which might bring a business to its knees, or a serious administrative complaint. I do not believe that trial by jury is sacrosanct or that its modest erosion by the Bill would do any injustice.

We are all increasingly conscious of the need to have flexibility in the way that we resolve disputes. The noble and learned Lord, Lord Woolf, has rightly highlighted that delay, cost and the imbalance of resources referred to by the noble Lord, Lord Williams of Mostyn, which are available, or unavailable, to the parties, may all contribute to injustice. They can do so powerfully under the existing defamation procedures. I should have liked to see a fast-track procedure which went even further; but I warmly congratulate the Neill Committee and my noble and learned friend the Lord Chancellor on introducing the Bill which contains the current proposal.

There is one other significant reason why the change must be fair. Legal aid has never been available for libel actions. The Royal Commission on Legal Services said that that was anomalous and recommended a change. That has not come, and, in the present climate of concern about the expense of public funds, it would be tilting at windmills to argue for that extension of legal aid. But the absence of help to people of small or moderate means to pursue defamation litigation is yet another reason why they should have, wherever possible, an alternative, effective and low-cost procedure which they can use.

I should like briefly to draw your Lordships' attention to one further change that I should like to have seen in the Bill. When an action comes to trial, I believe that the level of libel damages is a lottery. Some 20 years ago the Faulks Committee commented on the,

    "extravagant amounts resulting from the jury's inexperience of the general scale of damages of the whole field of tort".

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I suppose that that was another way of expressing the well known comment that juries have a disposition to be generous with other people's money. The Justice report in 1990 made a powerful comment to the same effect.

I know that the Court of Appeal has recently given greater scope for judicial guidance to juries. But, to my mind, there is a need for still more to secure fairness. In my experience, what juries tend to remember is--vaguely and in general terms--the last high award that they read about in newspaper reports. They base their own comparison at the same level, slightly lower or somewhat higher than that award. In fairness to defendants, I believe that those risks should be sharply diminished. The Faulks Committee recommended that the jury should simply state whether the damages should be,

    "substantial, moderate, nominal or contemptuous".

The actual amount within the chosen category would then fall to be assessed by the judge. Until now this recommendation has gathered dust. I believe it would be timely to attach it to a Bill which is making such other conspicuous improvements in the laws of defamation.

In summary, what I feel about this branch of the law is that until a case comes to trial, the scales are firmly tilted against a plaintiff in terms of anxiety, uncertainty, delay, the blight upon a career, and expense, plus the ability of the defendants to use the interlocutory procedures. But when the case comes to trial, the position changes. Juries then look critically at the conduct of the defendant newspapers, and there can be a real risk that an award is out of proportion to the nature of the libel. I believe that this Bill goes some way to improving the position of plaintiffs before trial. I should also like to see it go some way to securing greater justice for the defendants at trial.

I was not going to comment on the so-called "public figure" defence--the right to publish information responsibly about public figures, even if one cannot prove it to be true. I have grave doubts whether the balance should be moved in that direction. I have felt in recent years that the press have ample ability to draw to the public's attention facts which they consider affect the conduct of a person in public office, and that some of the facts they draw to the public's attention are only doubtfully in the public interest. When they do so, a person's reputation, career, legitimate ambition and aspirations may be blighted. I believe that the substantive law is broadly fair. What I believe need improving are the procedures. I greatly welcome the Bill and thank my noble and learned friend the Lord Chancellor for introducing it.

2.32 p.m.

Lord Grantley: My Lords, in addressing your Lordships' House for the first time I wish to begin by making two comments of a purely personal nature. The first is that I spent a happy year working in this House in 1977-78 on secondment from the Conservative Research Department to the then Opposition Front Bench. I occupied a disused broom cupboard which I am

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pleased to say has since been refurbished and is now occupied by the noble Baroness, Lady White. During the time that I worked here I was most impressed with the tone and quality of your Lordships' proceedings and the excellent work performed so unobtrusively and for so little reward. I appreciate that many things have changed over the past 18 years, but despite the advent of television into this House these characteristics seem to have endured.

My second comment is that I am particularly pleased to be able to make this speech in the presence of my noble kinsman Lord Listowel, for he is no ordinary kinsman; he is my grandfather. Our political views are by no means similar. In particular he favours the replacement of this House by a purely nominated Chamber. I, to the contrary, am a great fan of your Lordships' House and believe that the contribution of the hereditary element is a strength rather than a weakness. Indeed, I regard the career of my noble kinsman, which has been dedicated to work in this House almost continuously since 1931, as evidence of itself in support of my view.

The particular aspect of defamation proceedings on which I wish to focus is the role of the jury in libel cases, which has been commented upon by several previous speakers. The working group chaired by Sir Brian Neill agreed that this is an extremely important issue but considered, apparently, that it did not fall fully within its terms of reference. It was, however, considered at length by the Faulks Committee whose report on defamation (Cmnd 5909) appeared in 1975, although its recommendations on this subject have not yet been implemented.

There is widespread public concern--which I share--that the awards of damages made by juries in libel cases are excessive and out of all proportion to the actual damage suffered by the victims of libel, and way out of proportion to the awards of compensation made to victims of personal injury or crime. I do not intend to mention any individual cases as this would be invidious, but it is fair to say that concern on this subject has been prevalent for many years.

It is interesting to note that the highest award of damages for libel in the period 1967-69 was £7,000. In 1970, in the famous case of Broome and Cassell the plaintiff was awarded £40,000, of which £25,000 were exemplary, for a very serious libel. This was considered at the time to be a very high award. The compensatory element of the damages in that case are worth about £126,000 in today's terms, yet in recent years we have seen a persistent stream of awards much higher than this for libels far less serious than that committed against Captain Broome.

These days, if you are injured by libel and have a modicum of luck, you can get several hundreds of thousands of pounds and get your reputation back. By contrast, if you are unlucky enough to lose a leg in a personal injury case or as a result of a crime, then under the guidelines of either the Judicial Studies Board relating to personal injuries or the Government's guidelines relating to the criminal injuries compensation scheme--I am not quite clear on the subject--you will get about £40,000, but you will not get your leg back.

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The majority of speakers in this debate are distinguished lawyers and judges. I am not even an undistinguished lawyer but a mere merchant banker. My main reason for wishing to contribute to the debate is that I have the experience, which is not important in itself, but may be of some interest, of having served on a libel jury in 1979. I wish to describe some aspects of this experience in order to draw some conclusions and to make, with all due diffidence, some recommendations. I am, of course, conscious of the need not to make any improper disclosure. I shall certainly not identify either the case or any of the participants involved except to say that the plaintiff was described as a showbusiness personality and the defendant was a newspaper.

The conduct of the case was most impressive to the layman, particularly the quality of the advocacy and the clarity of the judge's summing-up. Until the end of the judge's summing-up the impartial observer would have regarded the case as a tribute to the workings of the system of justice. However, on entry into the jury room, things deteriorated fast. The judge had, in effect, instructed the jury to find that a libel had been committed, and this was not controversial. The question for the jury then was to decide on the amount of damages. No figures for damages had been mentioned in court as this would not have been allowed. The plaintiff had requested, as is usual, substantial damages and the defendant argued that damages, if any, should merely be modest. The judge had done his best in his summing-up to explain the purposes of damages in libel cases and the principles on which they should be determined.

In the jury room, however, the judge's summing-up was immediately forgotten. The first eleven jurors, when we went round the table, all suggested amounts which were, if I remember rightly--and my memory may be hazy on this point as it was 17 years ago--in a range of £50,000 to £150,000. I suggested that an appropriate figure would be £5,000. We then spent about four hours arguing this point and eventually compromised on £15,000.

The interesting features of the argument in the jury room were not a difference of view on the severity of the libel. On the contrary, it was generally agreed that the libel was fairly trivial as these things go. Nor was there any particular sympathy for the plaintiff. It was clear that there were two reasons why such excessive amounts were being proposed. One was simply that the defendant was a newspaper: "Well, it's a newspaper isn't it? Newspapers have money, they can pay." Bear in mind this was in 1979 when newspapers were less unpopular and commanded more respect than they do today. The other reason was that the jurors had no figures to go on in deciding what would be substantial or modest, or whatever, and were clearly influenced by the amounts of damages awarded in other libel cases of which they were aware. The noble Lord, Lord Alexander of Weedon, was exactly right when he spoke on this matter. Needless to say, those other cases were those which had attracted great publicity in the

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media and, almost by definition, involved very large sums of money. It was inevitable, rightly or wrongly, that those cases effectively constituted the precedents for the jurors in their own minds in proposing the huge figures that they did. That illustrates that the practice of juries in making excessive awards of damages is self-perpetuating. It is inherent in the system. It is slightly alarming to think that but for the presence of one member of the jury, fortuitously myself, the damages awarded in our case could have been up to ten times higher than the amount actually awarded.

I mentioned that the relevant principles so carefully explained by the judge in his summing up were completely ignored. I did my best to try to remind the other jurors, but without success. Therefore, at one stage I asked the usher if the text of the summing up could be produced and, ideally, photocopied and circulated among the jury, but I was told that that would not be possible whatever the length of the deliberations.

I suggest, therefore, as one modest administrative reform which could usefully be implemented, that the judge's summing up in libel cases should be typed up as soon as possible after delivery and given immediately to the jury. If it cannot be typed up before the jury has concluded its deliberations, so be it. That would indicate a simple case. But in most cases I suspect that the jury would still be deliberating and would find it very useful to be reminded of the specific details of the direction which the judge had given.

Lest it be thought that I am placing too much reliance on the experience of having served on one jury, I should add that in 1983 I was summoned again for jury service and served on two criminal juries. I do not know why my name should have been drawn from the hat twice in the space of five years. I only wish that the authorities would pass on the details of their technique to their counterparts at the premium bond office. I turned up wearing a pin-striped suit, brandishing a copy of the Daily Telegraph and trying to look as reactionary as I could, or indeed as I am. Despite that I was not objected to. Be that as it may, that additional experience merely served to confirm my view that the only proper task which should be entrusted to a jury is to determine the guilt or innocence of someone charged with a criminal offence.

In 1986 the noble and learned Lord, Lord Denning, who was a great fan of juries, recommended the reintroduction of special juries for libel cases, which had been abolished in 1949. I agree that this would be an improvement, but I would much prefer the recommendations of the Faulks Committee in paragraphs 455 to 457. It recommended that libel should be put on the same footing as other actions for tort, in that trial by judge alone would be the norm and by judge and jury would be exceptional, and that in all libel cases with juries the role of the jury should be restricted to determining liability and not the quantum of damages, on which point the jury should simply recommend that damages be substantial, modest, nominal or contemptuous.

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I am convinced that the presence of the jury in libel cases is resulting in serious and consistent injustice, and I believe that this should be brought to an end. If there is any chance of using this Bill as a means of doing so I would warmly support it.

2.43 p.m.

Lord Finsberg: My Lords, it falls to me to congratulate the noble Lord on his maiden speech. In 22 years in the other place I never had such good fortune. Indeed, I did not hear many maiden speeches as good as the one we have just heard.

It is always an ordeal to make a maiden speech. Like some of your Lordships, I have made two--one in the other place and one in this House. It is no easier even the second time round, but many of us would be envious of the speech we have just heard. I hope that the noble Lord enjoyed it as much as he would enjoy making a grand slam double vulnerable, as I see that bridge is one of his hobbies. We look forward to many more speeches from him. I know that that speech must have gladdened the heart of his noble kinsman, his grandfather, who is sitting in the Chamber today.

As another non-lawyer, and as someone who has never been lucky enough to be drawn for jury service, I want to confine myself to two points in the Bill. I told my noble and learned friend of the points that I would raise in the hope that there might be some answers in the response that will be given by the Minister.

The first is as regards the rights of citizens who are unfairly attacked in the press. We all know the sort of thing. There is a comment in the press, "Mr. Bumble of Much Binding in the Marsh is the leader of a group which believes in satanisation". It goes on to give details about satanisation without necessarily linking those directly to Mr. Bumble. However, the average reader would do the linkage. Mr. Bumble, who is neither a satanist nor a supporter of any cult, wants the record put straight. If he is lucky, there will be a letter printed somewhere on the inside of the newspaper, or there might even be a two-line apology somewhere at the bottom of page 38, but well away from the page upon which the statement was made. I wonder why we cannot extend the Bill to cover that point so that a correction has to be made in as prominent a position as was the false statement which the paper printed.

The second point relates to parliamentary privilege. I have to declare a personal interest in raising an issue which concerns two friends of mine, Mr. Neil Hamilton, Member of Parliament, and Mr. Ian Greer, the lobbyist--from whom I had better say straightaway I have never received or sought any financial reward. Both have a case against the Guardian newspaper for defamation. I have known them as friends for well over 20 years. I shall not go into the merits or demerits of the case except to say that the case is on ice with the clock stopped because of the existence of privilege under the Bill of Rights and other legislation.

It is necessary to give some quotations so that your Lordships will get the feel of this issue. I apologise that the first one at least will be very lengthy, but it gives the

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proper flavour of the case. It is from Mr. Justice May's judgment in the case. The date was 21st July 1995. He said:

    "I am constrained by authority to stay the proceedings. The Prebble case is so closely in point that I see no scope for bold innovation by a judge at first instance, even though I am acutely conscious that staying the actions may be perceived as a profound denial of justice to the plaintiffs, as a denial of a forum to the defendants to justify their publication and even as a licence to publish material about parliamentary proceedings which, if it is untrue, may go unremedied.

    "The law undoubtedly being that it is for Parliament alone to regulate its proceedings without questioning from the courts, it is no part of the courts function to call in question the adequacy of parliamentary procedures to achieve such regulation. As Lord Browne-Wilkinson in substance said, to prevent a defendant newspaper from relying, in defence of libel proceedings which nevertheless continue, on matters which could, if they were permitted to rely on them, establish that the publication was true could produce chilling results. Equally, however, to deny plaintiffs a forum for establishing, if it be so, that a publication which has damaged them severely is untrue is to deny the opportunity of remedy which is afforded to every other person and which ought to be afforded without exception. I guess that the public perception would be that such remedies as might be available within parliament for Mr. Hamilton and Greer Associates, if the publication is untrue, would be an inadequate substitute for those available to their fellow citizens in court. It was accepted at the Bar that, whatever procedures might be available and whatever their effect, they would not include the power to compensate the plaintiffs, if that were appropriate, in damages. Reputations might be salvaged, but money losses would remain without compensation. I guess that the public perception would also be that these actions ought to be capable of being tried in court, that the plaintiffs ought to be enabled to make their full cases and that the defendants ought to be enabled to make their full defences, so that the truth may be established in an unimpeded trial by judge and jury.

    "Every Judge is acutely aware that the ability of all persons to come to the courts to have their disputes tried and determined fairly, openly and according to law is a cardinal right upon which freedom under the constitution depends. The courts exist to try cases, not to decline to do so. In this instance, statute and authority require the court to do just that".

That is pretty clear on the state of affairs that exists. This Bill gives an opportunity to make some remedy in that kind of case.

Perhaps I may give one other brief quotation from someone who is well known in this country, Sir Bernard Ingham. In relation to that judgment, he said:

    "The essential point is that Mr. Justice May ... in the face of legal precedents, halted the libel trial last week because, under the 1689 Bill of Rights, courts are banned from looking into Parliamentary proceedings. This, the Guardian opportunistically argued, would prevent it from mounting a proper defence. So, Mr. Greer, an ordinary individual who claims his company lost £2m worth of business because of the allegations, has no right to establish his innocence or to recover the alleged damage to his company. That is injustice enough. But what this ruling really means is that any irresponsible newspaper--and let us not readily accuse newspapers of responsibility--can allege, with impunity, what they like about an MP's activities, within, as distinct from outside, the Commons"--

and I might add the Lords. He continues:

    "This is a ludicrous interpretation of Parliamentary privilege. It was intended to enable MPs [or Peers] to make serious allegations in the House without fear of proceedings. It was never meant to deny them the right to defend themselves in courts".

After that, we had the Nolan Report. The Government made a response, after the Nolan Report was in being, to the Committee on Standards in Public Life. The committee's Recommendation 10 was:

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    "The Government should now take steps to clarify the law relating to the bribery of or the receipt of a bribe by a Member of Parliament".

The response was this:

    "The Government reaffirms its commitment to consolidate the laws on corruption, and welcomes the opportunity to clarify the law relating to the bribery of, or receipt of a bribe by, a Member of Parliament alongside that consolidation".

There was an undertaking that the Government would consider the matter.

I now wish to read a letter received after I sent a letter to my noble and learned friend the Lord Chancellor on the subject. His response is dated 4th September 1995:

    "The Lord Chancellor has asked me to thank you for your helpful comments on the draft Defamation Bill. He is sure that you will be glad to know that the Government is indeed considering whether it would be possible to provide a solution to the difficulties highlighted by recent defamation proceedings involving Members of Parliament".

That is a second and, I should have thought, firmer undertaking that something would be done to remedy these injustices.

I sum up the problem simply. I can understand that a blanket waiver of privilege might not be a happy one. However, surely the Bill of Rights never intended that an individual MP or Peer could not waive his own privilege. That is the point at issue, not blanket waiving but his own privilege. That is all that is sought in this case. Mr. Hamilton and Mr. Greer wish to cite parliamentary proceedings in Hansard in their case for proceeding, but parliamentary privilege prevents them.

There is, I believe, a simple way of solving this; namely, for an amendment to come forward to the Bill which would entitle a Member of Parliament or Peer to waive his own privilege and allow Hansard references to him to be used in legal proceedings. This must also, in fairness, be allowed in suitable form to any other person so defamed. It would not be right that the existence of a potential defamation which could then be used by a Member of Parliament citing Hansard should not, in some form, be available to the ordinary citizen who is himself defamed inside one of the Houses of Parliament. I do not believe that it is a very complicated issue. I look forward to hearing from my noble friend that justice can, in fact, be done.

2.55 p.m.

Lord Ackner: My Lords, in a very short concurring judgment, Lord Justice Russell, later Lord Russell of Killowen, in a case in 1965, in which I was counsel for the plaintiff and once more bit the dust, said:

    "To the comparative newcomer, the law of libel seems to have characteristics of such complication and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels".

He went on to say:

    "Having made that comment (I hope without malice) I will content myself with saying that I agree with my brethren".

The Government are therefore to be congratulated on going some way towards dealing with the complications, some of which I am sure Lord Justice Russell had in mind. While on the subject of congratulations,

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let me congratulate most warmly the noble Lord, Lord Grantley, on a stimulating speech in regard, in particular, to trial by jury in libel matters. He referred to the Faulks Committee's Report and to the comments of the noble and learned Lord, Lord Denning, at an earlier stage. One of the troubles was that the noble and learned Lord, Lord Denning, changed his mind and withdrew his support for the abolition of jury in defamation cases, following another appeal which I lost in the Court of Appeal.

I would resist the abolition of trial by jury in libel cases until, if that event ever occurs, a government do something to protect the citizen from invasion of his privacy. I tried unsuccessfully in one of the criminal justice Bills to introduce very modest amendments, the modesty being attributable to Sir David Calcutt who produced one or two model criminal clauses dealing with the intrusion of long-range photograph instruments, bugging tapes and the like. But they were rejected by the Government, and the promises of White Papers that existed at that stage have never seen the light of day.

Basically, governments are so anxious about antagonising the media that they will take no effective action on this subject, overlooking the fact that they will substantially increase their popularity with the public at large if they show the guts (if I may use that rather vulgar expression) to do precisely that. Until that happens, I am in favour of large awards, not because they are intellectually satisfying but because it is the one way of saying to the press, "Very well, if you invent facts"--as they frequently do--"or if you distort the truth"--as the better quality papers usually do--"then it will be an extremely expensive experience."

If libel damages are brought down to personal injury damages, a high proportion of the press or media will say, "It is worth it. We shall be landed with £100,000 at the most and we shall recover that in our increased circulation." The intensity of the competition between various aspects of the media is such that the current situation is required to protect the public. But I congratulate the noble Lord, Lord Grantley, on the way he addressed your Lordships. I hope that we shall hear much from him in the future.

My noble and learned friend Lord Hoffmann was one of the outstanding advocates from the Chancery Bar. I had the experience of the benefit of his submissions. He was known to some of us as one of the "discount" barristers. That meant one of those barristers whose powers of persuasion were so developed that one had to impose a discount of at least 20 per cent. on his arguments to bring them back to reality.

When he was appointed to the Bench, I wrote to him a letter saying how sad I was that he had left the Bar. When he used to address me, at that stage sitting in the Court of Appeal, there were those rare occasions when I had the folly to interrupt him and a look of such deep sadness would come across his face, mingled with compassion, which said in the clearest possible way, "I thought you were doing so well managing to keep up with me and now I have to start all over again".

Having made those, I hope friendly, observations, perhaps I may say something about his suggestions. Your Lordships heard, quite rightly, from my noble and

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learned friend the Lord Chancellor of the debt we owe to Lord Justice Neill's committee. Lord Justice Neill was one of the outstanding specialists at the Bar in the law of defamation. He was in one of the best known libel and slander chambers headed, when I joined the Bar, by G. O. Slade QC (Mr. Justice Slade) followed by Sir Neville Faulks and with other distinguished personalities such as Lord Justice Hirst and Lord Justice Neill--the latter two I had the privilege, on occasions, of leading.

The Lord Chancellor said that we owe a great debt to Lord Justice Neill and his committee. What your Lordships were not told--it is to this that I wish to devote most of my speech--was that the committee was asked to consider the proposal made by my noble and learned friend Lord Hoffmann. In paragraph 19 of its summary, at page 205 of the report, the committee made this rather blunt observation:

    "The proposals contained in Mr. Justice Hoffmann's draft Defamation Bill should not be adopted".

It went on to give fairly extensive reasons, none of which were divulged to your Lordships. I believe that I should mention them because I should like to know what is the official answer.

Clearly, the criticisms, or some of them, have been carefully considered by my noble and learned friend the Lord Chancellor. One of the complaints made, in chapter 17 of an extensive report, was that it was proposed that an editor should be,

    "forced to publish something which he may not believe or even which he knows to be false (without being able to prove it under the rules of evidence)".

That has been got round by the obligation to publish being limited to the judgment of the court or the substance of that judgment. That is clearly right.

In another part the report says,

    "We can see considerable scope for disagreement too over the notion contained in [what was then] clause 2(1)(b) that the judge should form an opinion as to whether 'summary relief would compensate the plaintiff adequately for such damage as would be likely to be proved if the claim was to be tried and succeeded'".

It goes on:

    "For one thing, libel actions are not generally about 'proving damage' at all. Damage is presumed".

The report then quotes from what the noble and learned Lord, Lord Hailsham, said in Cassell v. Broome. That has been dealt with by changing the word "damage" to "wrong" and it is clearly appropriate that that should be done. The general criticisms raised by the Neill Report are that,

    "opinions notoriously differ as to what is a trivial libel and what is not. This judgment is so subjective that we think this provision would put judges in an embarrassing position. It is eminently a matter of impression for the 'man in the street' rather than for judicial determination ... We also question, however, whether the Bill is actually targeted at any 'pressing social need' ... We very much doubt that if any form of market research were carried out there would prove to be many cases which would fit the criteria contemplated by this Bill".

The report goes on:

    "It is clear that [the Bill] is primarily directed towards trivial cases where there is no substantive defence".

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It continues:

    "The fallacious assumption here seems to us to be that there are 'out there' a significant number of such trivial cases which the parties are incapable of settling for themselves. In our experience this is not so. Generally cases fail to settle either (i) because there is an arguable defence or (ii) because the defendants have information about the plaintiff's conduct which in their eyes makes his demand for damages appear to be disproportionate. If there is a substantive defence, then it should be tried anyway".

It goes on to say that the abolition of the rule in Scott v. Sampson, which is one of the recommendations made in the Bill, will go a long way to tackle the problem, as will the offer of an "amends" defence, again as provided in the Bill. It goes on to say--this is supported by a memorandum from the Bar Council--that a decision by the judge which is unfavourable to the defendant in these summary procedures will result inevitably in appeals which will throw further burdens upon the court.

I wish to deal with one other point. I shall deal with it shortly because it is answered adequately on page 164 of the report. I refer to the public figure defence, what is known as the Sullivan defence. This is what exists in the United States in the light of the decision of the Supreme Court in New York Times v. Sullivan. The process has lead to a fundamental distinction between the defamation law as applied within the United States jurisdiction and our jurisdiction. The report states:

    "In relation to 'public figures', a concept which has been expanded with the passing years, it is necessary to show not only that the words published were defamatory but that they were actuated by malice. Standards of care and accuracy in the press are, in our view, not such as to give any confidence that a 'Sullivan' defence would be treated responsibly. It would mean, in effect, that newspapers could publish more or less what they liked, provided they were honest, if their subject happened to be within the definition of a 'public figure'. We think this would lead to great injustice. Furthermore, it would be quite contrary to the tradition of our common law that citizens are not divided into different classes. What matters is the subject-matter of the publication and how it is treated, rather than who happens to be the subject of the allegations".

The report continues:

    "In our view the media are adequately protected by the defence of justification and fair comment at the moment, and it is salutary that these defences are available to them only if they have got their facts substantially correct".

It concludes with this paragraph:

    "We understand that in recent years as a consequence of the Sullivan decision in the United States lawyers acting on behalf of complainants who are or may be classified as public figures have sought to expand the common law of privacy in order to provide a remedy now closed off in defamation".

The final matter to which I wish to draw attention--

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