---

Lord Lester of Herne Hill: My Lords, like the noble Lord, Lord Williams of Mostyn, I greatly welcome the first amendment and, indeed, all of the amendments to which the noble and learned Lord has spoken. If I may say so, it is particularly gratifying that the noble and learned Lord has responded in a characteristically open-minded way, not only to the debates in your Lordships' House but also to the representations that have been made outside the House.

I should, first, declare a personal interest, as occasionally clients are foolish enough to ask me to appear as counsel in libel cases, normally on the side of newspapers. But, speaking for myself, I view the first amendment as being damaging only to the interests of the libel Bar, as it will surely mean some reduction in our income if, as we hope, the effect of the amendment will be to discourage avoidable libel litigation and favour instead the much more sensible approach which the offer of amends procedure is intended to achieve.

In my view, the great virtue of the amendments is that they strike a fair balance between, on the one hand, the important conflicting public interest--that is, the public interest in vindicating the right to personal reputation--and, on the other hand, the important public interest in freedom of expression. I am glad to see that judicial protection is retained in the amendments. Although editors regard that as being a matter within their exclusive sovereignty, they must surely realise (and I am sure that those who are responsible do) that ultimately it is for the courts and not for them to decide how to strike that balance.

I believe that the fears expressed by the media may have been exaggerated. However, I am sure that the noble and learned Lord is wise to respond to those fears so that the media have no excuse for not making full use of the fast-track procedure; that is, the offer of amends procedure. I very much hope that all those who advise the media will impress upon them the importance of making the system work rather than raising legalistic or pedantic points. For all those reasons, I am delighted that the first amendment has been tabled in such a form that it meets those legitimate interests while still preserving the core of the very sensible procedure of which the members of the committee of Lord Justice Neill were the original architects. I therefore strongly support the amendment.

The Lord Chancellor: My Lords, I am grateful for the support given to the amendments. With regard to the point on the Rules of Court made by the noble Lord, Lord Williams of Mostyn, I think that adjustment of the rules will be required to take account of these procedures.

On Question, amendment agreed to.

Clause 3 [Accepting an offer to make amends]:

The Lord Chancellor moved Amendments Nos. 2 and 3:

Page 3, line 22, at end insert (", as follows.
( ) If the parties agree on the steps to be taken in fulfilment of the offer, the aggrieved party may apply to the court for an order that the other party fulfil his offer by taking the steps agreed.
( ) If the parties do not agree on the steps to be taken by way of correction, apology and publication, the party who made the offer may take such steps as he thinks appropriate, and may in particular--
(a) make the correction and apology by a statement in open court in terms approved by the court, and
(b) give an undertaking to the court as to the manner of their publication.
( ) If the parties do not agree on the amount to be paid by way of compensation, it shall be determined by the court on the same principles as damages in defamation proceedings.
The court shall take account of any steps taken in fulfilment of the offer and (so far as not agreed between the parties) of the suitability of the correction, the sufficiency of the apology and whether the manner of their publication was reasonable in the circumstances, and may reduce or increase the amount of compensation accordingly.
( ) If the parties do not agree on the amount to be paid by way of costs, it shall be determined by the court on the same principles as costs awarded in court proceedings.").
Page 3, line 23, leave out subsections (3) to (5).

The noble and learned Lord said: My Lords, I have spoken to these amendments. With your Lordships' leave, I beg to move Amendments Nos. 2 and 3 en bloc.

On Question, amendments agreed to.

Lord Hoffmann moved Amendment No. 4:

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.
(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: My Lords, this amendment was moved in Committee and withdrawn; it was moved again on Report and, but for a procedural mishap, would have been withdrawn. I now move it again with the leave of your Lordships' House. On the previous two occasions the House was, perhaps not surprisingly considering the subject matter, somewhat thinly attended. As there are now more noble Lords present, I ask the indulgence of the House if I cover what to some will be familiar ground.

This amendment has been stimulated by two recent cases, one in the Privy Council and one in the courts of this country. The English case is that of Mr. Neil Hamilton, a Member of another place and formerly a junior Minister. The Guardian newspaper published an article which he says amounted to an allegation that he made corrupt use of his position. He was said to have received payments from a businessman in return for asking Ministers questions which were intended to further that businessman's interests. The matter was taken sufficiently seriously for him to be asked to resign from the Government with no prospect of return until he had cleared his name from the Back Benches. This he attempted to do. He issued proceedings for libel. The Guardian pleaded justification. It said that what it had printed was true. But then the question arose as to whether the court could decide this matter. It would involve investigation of what a Member of one of the Houses of Parliament had done in the course of his parliamentary duties. The court held that this would be contrary to Article 9 of the Bill of Rights of 1689, which is headed "Freedom of Speech" and provides,

"That the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament".

The primary purpose of Article 9 is of course to protect honourable Members and noble Lords from legal proceedings such as actions for libel, or in the old days prosecutions for sedition, on account of what they say or do in Parliament. This guarantees that complete freedom of speech which is essential to the functioning of Parliament and which was part of the settlement after the Glorious Revolution. In the 300 years since then the courts have given Article 9 a wide construction. It applies not only to actions against Members or noble Lords for what they have said in Parliament, but to any proceedings in which it is sought to question what has happened in Parliament. Indeed, the article has been said to be only part of a wider privilege which Parliament has to control its own proceedings and which in the 19th century was famously held to include the right to prohibit publication of reports of its debates.

There has been no previous case in England in which a Member of either House has sought to bring a libel action which raised a question about his own parliamentary conduct. But there has been at least one in Australia. It so happened that there had recently been a case in New Zealand, Prebble v. Television New Zealand, which came before Members of your Lordships' Appeal Committee sitting in their capacity as Members of the Judicial Committee of the Privy Council. In that case it was decided that the court could not inquire into parliamentary conduct and that if the effect of that was to stifle a defence--on the part of, in that case, the television company, or the newspaper--that defamatory allegations were true, the Member's action would have to be stayed. So following that decision, the judge who was hearing Mr. Hamilton's case decided he could not investigate whether the Guardian's defence was true or not and that Mr. Hamilton's action would have to be stayed. So it remains technically in limbo but for practical purposes dead. Unless there is a change in the law which enables the judge to decide whether or not the Guardian was right, Mr. Hamilton cannot sue it. There is nothing which he can do to clear his name.

I should say at once that I do not know Mr. Hamilton and I have never met him. Nor, of course, do I have any idea as to where the truth lies in the dispute between him and the Guardian. But I am sure your Lordships will agree that it is unjust that he should not be able to put the matter before a judge and jury, like any other citizen who considers that his integrity has been publicly defamed. It is therefore to redress this injustice to Mr. Hamilton and anyone else who may in future find himself in the same position that I put forward this amendment. Its effect--if I may summarise--is to allow a Member of either House in defamation proceedings to lift a corner of the curtain which the Bill of Rights draws over parliamentary proceedings and to allow the judicial gaze to fall upon his conduct alone. In no other way does it touch upon Article 9 or the privileges of Parliament.

If this amendment is passed it will give Mr. Hamilton access to justice which is at present denied him. As to this, I think that your Lordships can be in no doubt. But while access to justice is a matter of high constitutional importance, I recognise that it cannot always take paramount place. There are other aspects of the public interest to which it must sometimes defer; and one of these is the proper functioning of a democratic Parliament, which in our ancient constitution is still underpinned by the Bill of Rights. Notwithstanding my natural concern as a Member of the Appeal Committee of your Lordships' House with the administration of justice, I recognise the importance of these other constitutional issues. For that reason I do not see myself in the role of a partisan advocate of this amendment. The case for the amendment is fairly plain and I have made it already. But I also conceive it my duty to lay before your Lordships the arguments against the amendment so that you may better be able to balance the claims of justice against other interests of state.

One does not have to look very far for an example of access to justice being necessarily subordinated to the proper functioning of Parliament. The absolute privilege which the Bill of Rights gives to parliamentary debates and to newspaper reports of those debates means that a citizen who is defamed by something said in Parliament has no remedy in the courts. Even if the defamation was grave and malicious, his interests are sacrificed to the paramount interest of allowing uninhibited free speech in Parliament. So it is argued by some that the present case is only the other side of the coin. If honourable Members can say what they like about other people without being sued, why should they be able to sue for what other people say about them?

I think that this symmetry is deceptive. The public interest in freedom of speech in Parliament is ancient, plain and obvious. Not only is it greatly prized; it is also jealously guarded against misuse. Both Houses have their own disciplinary procedures against Members who abuse the privilege to defame outsiders. But what is the public interest in allowing anyone free licence to make defamatory statements about what honourable Members or noble Lords do in the course of their parliamentary duties? It may be said that they are public figures and that therefore in the interests of general discussion of public affairs they should have to submit to what may be said about them. The United States comes close to having such a rule. It allows public figures to sue for defamation only if they can prove that the statement was made with malice or reckless disregard of the truth. It is not enough for them to be able to show or even to require the other side to show that it was wrong.

But there is little support for such a rule in this country. And to maintain the rule with which we are concerned today would be a very eccentric way of giving effect to a policy of free discussion of public figures. First, it would apply only to what they did in the course of their parliamentary duties. If Mr. Hamilton had been alleged to be corrupt in the performance of his duties at the Department of Trade, there is no doubt that he could have sued for libel like anyone else. There is simply no logic in a distinction between what he does in that capacity as a public figure and what he does as a Member of another place.

Secondly, under the present rule, Mr. Hamilton is not even able to sue as he could in the United States, if the newspaper were malicious or reckless. He cannot sue at all.

Thirdly, there is no domestic procedure for restraining abuse, as there is in the case of defamatory statements made by honourable Members or noble Lords. It may be theoretically possible for the Committee of Privileges in the other place to declare that a false statement about the way in which a Member of the other place performed his duties was an infringement of the privilege of the House. I have not really considered the matter because I am sure that your Lordships will agree that from a political point of view such a procedure would not in practice be a feasible remedy.

The argument that honourable Members or noble Lords must take the rough of the Bill of Rights with the smooth does not stand up to critical examination. There is not even a connection between those who get the smooth and those who get the rough. To leave an honourable Member defenceless against attacks on his honesty because some other Member might be tempted to abuse his privilege of free speech is like some primitive form of collective punishment. But I readily acknowledge that the argument has a certain superficial attraction and your Lordships may think that regard should be paid to the way in which a proposal may be received irrespective of whether that perception is based upon any very coherent analysis of what the public interest requires.

The second serious argument against the amendment is that it has not been sufficiently considered. It is true that this is the third occasion on which it has been before the House and it will, of course, have to undergo further consideration in another place. But in the scale of the three centuries for which Article 9 of the Bill of Rights has survived untouched, the proposal can fairly be described as novel. It is not surprising, therefore, that concern has been expressed by people who have the interests of Parliament at heart, not only in this country but also in the Commonwealth. In this debate, my noble and learned friend Lord Simon of Glaisdale will be speaking to a Motion which he has put down to refer the matter to a Joint Committee of both Houses of Parliament.

I have great sympathy with my noble and learned friend's point of view. I say at once that I must confess to being extremely nervous at having put down a proposal which touches in any way upon the Bill of Rights, even though at the moment I think it to be totally innocuous and indeed beneficial. I think that my noble and learned friend's proposal would ideally be the right one. And, of course, it may be that my noble and learned friend and other noble Lords, in the course of this debate, will persuade me and others that there really are pitfalls for which such an inquiry is the only answer. But if that course were taken, the remedy, if any, would almost certainly be too late to help Mr. Hamilton. By the time the committee had reported, and parliamentary time had been found to pass its recommendations into law, his claim would be very stale indeed. The beneficiaries would be future honourable Members or noble Lords who might find themselves in Mr. Hamilton's position. And since, so far as I know, his is the first case of its kind in this country for 300 years, it may be some time before the change has any practical effect. So your Lordships have to decide whether or not Mr. Hamilton is to be allowed access to justice. From his point of view, justice delayed will be justice denied. Your Lordships must consider the arguments and decide whether there are constitutional considerations of sufficient weight to require that he should be denied a remedy.

The third argument against the amendment is that there are objections of principle and practical difficulties about the way in which it may operate. It allows, as I said, an honourable Member or noble Lord to permit judicial scrutiny of his own conduct in Parliament and not that of anyone else. The objection in principle is this: that the privilege of Parliament is the privilege of each House as a whole and not that of any individual Member. It should therefore only be capable of being waived, if at all, by a resolution of the House. But I do not think that that would be a practical solution. There is no precedent for the House being able to waive the privilege so far as it protects the free speech of an individual Member and for my part I think that that would be a dangerous doctrine. It would enable a majority to deprive an unpopular member of a minority group of his essential constitutional right to freedom of speech. Equally, in a case like this, the right of a Member to sue for libel would be dependent on a resolution which may be influenced by factional interests. So there should be no general principle of waiver by resolution of the House. The remedy offered by the amendment is essentially a private matter for the Member who has been defamed, and that is how I think it should be.

I am aware of one practical problem, and there may be others. The one I have in mind arises in a case in which two or more Members are together concerned in conduct in respect of which one of them wants to sue for libel. How, in that case, can one of them allow his conduct to be investigated by the court without at the same time exposing the conduct of his colleagues to investigation as well? In a case in which one person's conduct is inextricably mixed up with that of another, how in practice is the subsection to be given effect?

I shall not disguise the fact that there is no easy answer to this question which has never arisen and may never do so. But judges are accustomed to finding themselves in a position in which, in the course of having to do justice between plaintiff and defendant, they have to protect the interests of third parties who have become involved. Sometimes they will find it possible to decide the case without trespassing upon the interests of others; sometimes they will protect him by prohibiting publication of evidence or names. I think that this is a problem which will have to be resolved if and when it arises. It does not, so far as I know, arise in the case of Mr. Hamilton.

Finally, it is said that this is an amendment which should originate, if at all, in another place. It arises out of the particular case of an honourable Member, and the privilege itself, although it belongs to both Houses, is historically more closely associated with the other place. I intend no trespass upon the dignities of the other place. No one could be more conscious of the need to respect its privileges than my noble friend Lord Tonypandy who spoke in the debate on this amendment at Committee stage. He made no suggestion then that anyone would take offence. All that your Lordships are being asked to do is to provide the other place with a text which it may accept, reject or amend with the benefit of such consideration as your Lordships are able to give it.

In conclusion, in placing this amendment before your Lordships, I should emphasise that it is not essentially a matter of lawyers' technical law. The question here is striking the balance between the right of access to justice and any countervailing considerations of public interest. In deciding this question, noble and learned Lords have no advantage over others of your Lordships in knowing what is the right solution. In that spirit, I beg to move.

---