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Lord Lester of Herne Hill: On this matter I respectfully disagree with the noble Lord, Lord Williams of Mostyn. As I understand it, the position is as follows: before 1968 a person's conviction of a criminal offence was not admissible in defamation or any other civil actions. That was amended by the Civil Evidence Act 1968 which provides that in a defamation action, the proof that a person has been convicted of an offence is conclusive evidence that he committed that offence.

The working group under the chairmanship of Lord Justice Neill explained in its 1991 report that the rule could operate unfairly in proceedings where the plaintiff is a person other than the one convicted of the relevant offence. Where a defendant made allegations about the conduct of a police officer, for example, or some other witness for the prosecution in bringing about the conviction, the plaintiff would have an artificial advantage in that the correctness of the conviction could not be challenged in an action for defamation arising out of the allegations. As the Neill Committee recognised, that could obstruct the defendant in justifying the allegations. Indeed, it would be likely to deter him altogether from making the allegations, chilling free speech. In line with the opinion of the Neill Committee, Clause 12 narrows the application of the rule which makes conviction evidence conclusive in those cases where the convicted person is the plaintiff or one of several plaintiffs in a defamation action. Proof of the conviction of any other person will still be admissible evidence under Section 11 of the Civil Evidence Act but it will no longer be conclusive. Consequently, if a newspaper decided to write a defamatory article claiming that a police officer had put the wrong person in gaol, in an action for defamation against the newspaper by that police officer the fact that the person in gaol had been convicted of a criminal offence would be admissible but no longer conclusive.

In my view, Clause 12 has welcome implications for freedom of the press and public discussion of the conduct of those who exercise public powers. Therefore, I welcome the clause as it stands.

The Lord Chancellor: I have already provided a fairly full explanation of this clause to the noble Lord, Lord Williams of Mostyn. I shall not weary the Committee by reading it out. Essentially, the reasons given by the Neill Committee for the recommendation upon which this clause is based are good ones. They have been elaborated somewhat by what the noble Lord, Lord Lester of Herne Hill, has just said. In a sense, a

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collateral matter of this kind should not be decided conclusively as a result of a conviction of a person when the person in question is not the plaintiff. I do not see why it should be so regarded. The matter has been raised by the Neill Committee, but I have not been able to find any satisfactory answer to that question. I hope that in the light of those explanations the noble Lord, Lord Williams of Mostyn, will feel able to allow the clause to proceed.

Lord Williams of Mostyn: Of course I shall. I still do not understand why a plaintiff should be disabled by the conclusive nature of the finding. I believe that there is a continuing possibility of mischief arising out of a collateral attack on the validity of a criminal conviction before a jury properly directed, possibly even after the matter has gone to the Court of Criminal Appeal (Criminal Division). However, on the basis of the indication that I gave earlier, I beg leave to withdraw the Motion.

Clause 12 agreed to.

Clause 13 [Basis of entitlement to damages]:

Lord Williams of Mostyn moved Amendment No. 40:

Page 10, line 26, after ("damages,") insert ("but only after a finding in favour of the plaintiff on liability").

The noble Lord said: If Clause 13 becomes law it will lead to longer trials of defamation cases, more expense and a lot more evidence. If one does not restrict it, it will permit the leading of evidence substantially on credit, which at the moment is not allowed. My proposal is that if evidence of specific fact is to be admitted at all it should be admitted only after the jury has found in favour of the plaintiff on liability. Therefore, it would be true mitigation of damages. There would be no overlay between the proper assessment of damages and the question of whether or not the plaintiff was entitled to succeed on liability. The amendment is intended to give effect to the principle that one should be compensated only for damage to one's real reputation, as it were, and to avoid the confusion between liability--whether or not the plaintiff should succeed--and quantum of damages. I beg to move.

9.30 p.m.

Lord Lester of Herne Hill: I regret that I do not agree with the noble Lord, Lord Williams of Mostyn, on this amendment. It seems to me entirely sensible that the plaintiff should be entitled to recover no more damages for injury to reputation than he deserves when all the facts liable to affect his reputation in relation to the sector of his life to which the statement relates are generally known. Otherwise, if one makes a technical distinction between liability and damages, rather than look at it in a sensible way, given the reverse burden of proof, and so on, it means that unmeritorious plaintiffs will be able to recover more than they deserve. I therefore very much welcome the clause.

The Lord Chancellor: I do not believe that there is anything I can add to what I have said before as regards the clause generally. On the question of whether there

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should be a statutory rule, there is a passage in the Lord Justice Neill Working Group Report which might suggest that it envisages such a rule, where it says, "In such cases"--referring to the situation we have here:

    "we would see no objection to liability being determined first, and the issue of damages being subsequently resolved by the same judge and jury in the light of the outcome on the pleaded instances of misconduct".
It is implicit in that passage that the group did not envisage that evidence going to mitigation only would invariably be left until after the liability verdict. My understanding is that that is the correct interpretation of what the group said. The group agrees with the view that a statutory rule to that effect would not be helpful in practice.

There is no impediment of course to the two verdicts being separated if it appears that mitigation material could be prejudicial to the plaintiff on the issue of liability. That would be a matter for the court to determine in the light of the circumstances of the individual case. If that be right, no statutory power to separate them is required. The court can do that. Automatic separation in every case, whether necessary or not, is likely to increase the length of trials. None of us would wish to do that.

Lord Williams of Mostyn: I thank the noble and learned Lord for that explanation, but I am convinced that trials will become longer. Statements will be served and counter-served on endless material. To take an example, a doctor may be accused of defrauding the NHS. That is the sector of his life as a professional man. It is possible that evidence could be led that he had behaved indecently to a woman patient. It is the same sector of his life as a professional man--a doctor.

What will inevitably happen is that trials will become longer; the volume of evidence will become greater; and attempts will be made to blackguard plaintiffs on the supposed basis that that goes to mitigation. If the material is relevant only to mitigation, it has no proper part in the assessment of liability. Judges should therefore be constrained to exclude from the consideration of liability any material which properly goes only to mitigation of damages. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Lord Hoffmann moved Amendment No. 41:

After Clause 13, insert the following new clause--

Evidence concerning proceedings in Parliament

(".--(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.
(2) Where a person waives that protection--
(a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and
(b) none of those things shall be regarded as infringing the privilege of either House of Parliament.

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(3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it.
(4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.
(5) Without prejudice to the generality of subsection (4), that subsection applies to--
(a) the giving of evidence before either House or a committee;
(b) the presentation or submission of a document to either House or a committee;
(c) the preparation of a document for the purposes of or incidental to the transacting of any such business;
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a committee; and
(e) any communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of members' interests.
In this subsection "a committee" means a committee of either House or a joint committee of both Houses of Parliament.").

The noble and learned Lord said: The amendment is put forward to deal with the problem which was raised on Second Reading by my noble friend Lord Finsberg. It arose out of a recent libel action brought by Mr. Neil Hamilton, a Member in another place, against a newspaper which published an article which meant, he alleged, that he had made corrupt use for private gain of his right to ask Questions of Ministers.

The action was stayed--in effect, terminated--by a judge on the grounds that the law forbade the courts to investigate anything which happened in Parliament. That meant that the court could not decide whether the allegation in the newspaper was true. It would not therefore be fair to allow the Member to sue for libel if the newspaper was not allowed to justify what it had written.

Most people would agree that if the newspaper was not allowed to prove that what it said was true, the Member should not be allowed to sue. Newspapers would be extremely reluctant to criticise what anyone said in Parliament if it meant that they could be sued while they had to stand with their hands tied behind their backs. That would be bad for government and bad for democracy.

The question is whether it is necessary to have a rule that the courts cannot for any purposes inquire into proceedings in Parliament. The judge who stayed the action followed a recent decision of the Privy Council on appeal from New Zealand which decided that such a blanket ban on questioning anything that went on in Parliament was derived from Article 9 of the Bill of Rights of 1689. That article provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. That article, with its echoes of the struggle with the Stuart kings, is primarily concerned with the freedoms and privileges of Parliament; the immunity of Members from prosecutions or actions for sedition or libel on account of their speeches or activities in Parliament. It has no obvious application to

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a case in which a Member of Parliament is not being sued or prosecuted for anything in which he is in fact the plaintiff.

In Australia it has been construed by one judge as concerned only with freedom of speech in Parliament and by another judge as not applying to a case in which a Member of Parliament is the plaintiff. But the Privy Council, in the case to which I referred, stated that over the years since 1689 it had come to have a much wider effect and it now amounted to a total ban on court investigation of any proceedings in Parliament.

The purpose of the amendment is to allow a person who may be a Member of either House, or neither, to waive so far as concerns him the protection of any rule of law which prohibits the investigation of proceedings in Parliament. The waiver does not affect the operation of the rule in respect of anyone else and, furthermore, the immunity of Members from any kind of action in respect of what they have said or done in Parliament remains sacrosanct and cannot be waived. Therefore, in the case that I mentioned, the Member could waive the protection of the rule so as to allow investigation of his own conduct by the court, but not that of anyone else.

The drafting of an amendment to deal with this matter is not easy. I have had the assistance of parliamentary counsel but I do not believe that either he or I would suggest that the form of amendment before the Committee is necessarily the last word on the matter. It raises a point of general public importance and another which is a technical point. I wish to deal first with the general point. The injustice which the amendment seeks to remedy is that a Member of either House of Parliament cannot, like any other citizen, sue to clear his name if he is alleged to have acted dishonestly in connection with his parliamentary duties. The argument against allowing him to do that is that Members of Parliament cannot be sued for defamatory comments that they make in the House about other people. Why, therefore, should they complain if they cannot sue other people for making defamatory comments about them?

I believe that the answer to this tit-for-tat argument is that the immunity of Members of Parliament under the Bill of Rights is not a private privilege for the benefit of individual Members. It is a privilege conferred upon the House as a whole in the public interest to ensure that there will be that complete freedom of debate which is necessary for the functioning of a democracy. All such freedoms have a cost and occasionally the privilege will be abused. But it is for the House to exert its own discipline and prevent its privilege from being exploited by individual Members for their own private ends.

On the other hand, there is no public interest which requires that a Member of Parliament should not be entitled to bring proceedings to vindicate his reputation if he is accused of dishonesty by a newspaper. Members of Parliament are like other men and women; if you prick them they bleed. If you injure their reputations why should they not also be entitled to vindication?

It is true that in theory, the House itself could conduct an inquiry into his conduct and pronounce upon it. One of the reasons which was given in the New Zealand case for complete abstinence by the courts was the possibility

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of a conflict between the views of the House and the decision of the court on the same question. But I believe that that possibility is rather theoretical. There is always a risk that an internal inquiry may divide the House on party lines and vindication by such an inquiry is never as satisfactory as by a judge and jury. Therefore, I do not believe that the tit for tat argument is a good one.

Members of the Committee will find plenty of saloon bar cynics whom nothing will persuade that any parliamentary privilege or immunity is in the public interest. But I do not believe that the original meaning of Article IX needs any defence from me. It is the wider rule that has been built on it which has been shown to need some adjustment to prevent it causing injustice in cases where there is no contrary public interest.

Finally, there is the technical point. The Privy Council in the New Zealand case said rightly, if I may say so, that Article IX was a privilege of Parliament and not of the individual members. It is a rule of law and not a personal right. Therefore, the amendment is phrased not as a waiver of the right but a waiver which, to a limited extent, disapplies the rule.

An alternative possibility would have been to allow the privilege to be released by a resolution of the whole House. But for the same reasons that I mentioned earlier, I do not believe that that would be very satisfactory because again there would be the possibility of party division. The majority of one party might decide whether or not to release the privilege according to how it felt about one of the Members opposite. Therefore, it seemed best to allow waiver by an individual but to confine its effect to him. It may be that other technical improvements will be suggested in debate here or in the other place.

There is an injustice which needs a remedy and I offer this amendment as an attempt at a constructive solution. I beg to move.

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