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Lord McIntosh of Haringey: My Lords, these amendments reveal the wisdom of the noble and learned Lord, Lord Ackner, not only in arguing the case but in pressing the matter to a Division on an evening when the Conservative winter ball was being held outside the Palace of Westminster while the Labour Peers' party was being held inside the Palace of Westminster. I think we deserve a little credit for providing his troops, even if not for helping with his arguments. I accept that the Government are acting reasonably and in good faith,

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otherwise I should be worried about removing Clause 37 without being certain that they were going to put in the new clause after Clause 53.

Lord Ackner: My Lords, the noble Lord may wish to know that I concede that it is not my powers of advocacy but chance that brings forth the occasional victory. The last one occurred, I think, when it was Ladies' Day at Ascot.

Lord Rodgers of Quarry Bank: My Lords, I would say only that not everyone was enjoying a party downstairs with the Leader of Her Majesty's Opposition. There were others who were not being so entertained, and we were much persuaded by what the noble and learned Lord said. Although I had looked at the papers which had been circulated in advance of our debate on Report, it was only the noble and learned Lord's speech which brought me to my feet in support of his amendment.

Perhaps I may admit also that I was slightly equivocal on that occasion, not about the virtues of the amendment, but about the possibility of a Division being held and carried. So perhaps I was a little remiss in suggesting that, if the amendment were not pressed, the Government would bring forward their own amendment. That was an optimistic position to have adopted. I am delighted that the amendment was pressed to a Division and that the noble and learned Lord the Lord Chancellor accepted it. However, I cannot help but say that, when the noble and learned Lord the Lord Chancellor expressed the view in your Lordships' House on 15th January that considerable examination in depth of the problem was required before Parliament brought forward a solution, he was either ill advised or had a different timescale from the rest of your Lordships. Considerable examination in depth has been accomplished in a remarkably short time, and your Lordships are grateful.

Lord McIntosh of Haringey: My Lords, before the noble Lord sits down, in case he feels that he is the victim of social exclusion, as a member of the Hornsey and Wood Green Labour Party perhaps I may assure him that any application from him to rejoin would be treated with all seriousness.

On Question, amendment agreed to.

Clause 40 [Non-appearance of accused: issue of warrant]:

Baroness Blatch moved Amendment No. 14:


Page 23, line 22, leave out ("above").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 12. I beg to move.

On Question, amendment agreed to.

Clause 41 [Either way offences: accused's intention as to plea]:

Baroness Blatch moved Amendment No. 15:


Page 26, line 1, leave out ("above").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 12. I beg to move.

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On Question, amendment agreed to.

Clause 42 [Enforcement of payment of fines]:

Baroness Blatch moved Amendment No. 16:


Page 26, line 12, leave out ("above").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 12. I beg to move.

On Question, amendment agreed to.

Clause 49 [Orders in respect of certain assertions]:

Lord McIntosh of Haringey moved Amendment No. 17:


Page 29, line 36, at end insert (", or may permit the person about whom the assertion is made to make a statement in open court in refutation of the assertion, after determination of sentence.").

The noble Lord said: My Lords, I shall speak also to Amendment No. 18. Let me say at once that these are probing amendments, partly because I have only been able to bring them forward on Third Reading and it would clearly inappropriate to press them and partly because they contain an error in English usage which I detest profoundly and for which I apologise. They use the words:


    "a statement in open court in refutation of the assertion".
The word "refutation" means to prove falsity or error. It is misused frequently to mean the weaker words "rebuttal" and "response". So if the amendment were to be pressed, it would have to be in terms of response rather than refutation.

I, like the Minister, have been in correspondence with the Guild of Editors, which has expressed its concern about the reporting restrictions introduced in Clause 49 and succeeding clauses about derogatory assertions made in open court, normally in a plea in mitigation. In these clauses the Government have imposed reporting restrictions, alternatively temporary or permanent, in case someone should be defamed and not have an opportunity to reply.

The Guild of Editors has urged me to put forward amendments which would remove the Government's provisions on reporting restrictions and replace them with an opportunity for what it calls refutation, and what I would call response. I do not feel that that is the right course of action. Although I am of course in principle opposed to reporting restrictions whenever any question of freedom of speech is in issue, nevertheless, I was persuaded by the Government's argument on this matter that reporting restrictions might well be necessary to avoid damage to innocent people and possible damage to subsequent trials.

I thought that it was worth raising the issue by putting forward the possibility of a response as a option available to the court in considering whether to impose a reporting restriction. The court might feel that there are circumstances in which reporting restrictions would not be appropriate but that an opportunity for response might meet the case.

As Clause 49 and the subsequent clauses are all couched in the term "may"--in other words, they are permissive for the court to take action--I thought that it would not do any harm to raise the issue to see whether

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the Government felt there was any mileage in the alternative suggestion which in no way damages the Government's proposals in these clauses. I beg to move.

Lord Mackay of Drumadoon: My Lords, I am grateful to the noble Lord for the measured and frank way in which he raised this issue. The matter has been given consideration, and the Government remain of the view that the best way to prevent harm to victims, something which Clause 49 is designed to achieve, is to prevent reporting altogether.

Allowing a right of rebuttal to a victim or any other witness who might be attacked in the manner set out in Clause 49(4) might to some extent serve to increase the distress which such a witness had already suffered. The person might already have been a victim, as proved by the jury's verdict, of a serious crime. If that person's character has been attacked in a false and improper way, he may have suffered stress. To raise the possibility that such a person might have to have the full issue revisited by statements being taken from him, or made on his behalf, would give rise to a serious risk of further distress being caused. What is perhaps much more important, is that there could be no guarantee that any rebuttal made in court along the lines which the amendments are designed to achieve would be reported, let alone reported in the full manner in which the allegations were made.

We are all familiar with reading stories in the newspapers on one day alleging some story about a named individual, and reading a few days later, tucked on the inside pages in small print at the bottom of a column, what is said to be a full apology on behalf of the editor for the fact that an error was made, whether by the editor or those who made the comments which the editor has published subsequently. There could be no guarantee that members of the Guild of Editors would give anything like the prominence to the rebuttal statements that they had to the original allegations.

It is for that reason--on the limited basis which Clause 49 provides--that the Government are persuaded that preventing reporting altogether is the correct attitude to adopt. The noble Lord acknowledged that there was a justification for the Government to have Clause 49 on that basis. He brings forward these probing amendments, as he describes them, to test the Government's attitude.

The Government remain committed to the principle that proceedings in open court should be reported as fully as possible except in strictly limited and exceptional circumstances. When one is dealing with the sort of behaviour set out in Clause 49(4), one has such exceptional circumstances which are strictly limited. Although the amendment was put forward in a responsible manner, I regret that it is not one that the Government can accept.

Lord McIntosh of Haringey: My Lords, I am grateful to the noble and learned Lord for that response. He was unfair only in one small respect. He described the pain that might be imposed on the victim in having to make a statement and of it being repeated in court. The amendments provide only that the person about

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whom the statement has been made will be permitted to adopt the procedure. Nothing would ever be forced upon him. However, in the light of the noble and learned Lord's response, with which I largely agree, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

5.30 p.m.

Lord Williams of Mostyn moved Amendment No. 19:


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