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Page 1, line 23, at end insert ("only involved").
Page 1, line 24, leave out ("only involved").
Page 1, line 26, leave out ("only involved").
Page 2, line 3, leave out ("only involved").

The noble and learned Lord said: I have spoken to Amendments Nos. 9 to 12 with Amendment No. 1. I beg to move the amendments en bloc.

On Question, amendments agreed to.

[Amendments Nos. 13 and 14 not moved.]

2 Apr 1996 : Column 219

The Lord Chancellor moved Amendment No. 15:


Page 2, line 7, leave out from beginning to ("statement") in line 11 and insert--
("(d) as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement;
(e) as the operator or provider of access to a communications system by means of which the").

The noble and learned Lord said: I have spoken to Amendment No. 15 with Amendment No. 1. I beg to move.

[Amendment No. 16, an amendment to Amendment No. 15, not moved.]

On Question, Amendment No. 15 agreed to.

Lord Kilbracken moved Amendment No. 17:


Page 2, line 10, leave out ("a defamatory") and insert ("the").

The noble Lord said: Amendment No. 17 is a minor drafting point. Perhaps the noble and learned Lord can explain why the word "defamatory" in line 11 is necessary. Can it not simply read "by means of which the statement is transmitted"?

The Lord Chancellor: If the Committee looks at Amendment No. 15, it will see that Amendment No. 17 is on that account not necessary. I have accepted the effect of this amendment in my Amendment No. 15.

Lord Kilbracken: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 18 and 19 not moved.]

The Lord Chancellor moved Amendment No. 20:


Page 2, line 12, at end insert--<j>("In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.").

The noble and learned Lord said: I have spoken to Amendment No. 20 with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 21:


Page 2, line 24, leave out ("cause of action which arose") and insert ("litigation which has commenced").

The noble Lord said: I have put down Amendment No. 21 at the request of the Scottish Law Society. I pay tribute to the quality of its briefing material provided by Mr. Michael Clancey. Deferring to Mr. Clancey's greater knowledge of Scots law, I am told that "cause of action" relates principally to the English and Welsh analysis of rights of action and that, in the context of the United Kingdom, ought more appropriately to be replaced by the words in the amendment. I cannot assist the Committee further.

The Lord Chancellor: Needless to say, I am reasonably familiar with this matter. I accept that the phrase "cause of action" is not as technical a term in Scots law as in English law. However, I suggest that it is capable of being understood by Scots lawyers. I do not believe that

2 Apr 1996 : Column 220

the briefing suggests otherwise. The expression is used in other Acts which apply to Scotland; for example, in Section 17(1) of the Defamation Act 1952. I can see the possibility of other phrases, but this seems to me to be a fairly precise phrase which is capable of being understood by Scots lawyers. While the point is worth noting, I believe that what we have is suitable.

Lord Williams of Mostyn: I am obliged to the noble and learned Lord for that explanation. It is not my intention to press any of the amendments in my name to a vote this evening, but I have indicated that on subsequent occasions I may wish to test the feeling of the House. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Clause 2 [Offer to make amends]:

Lord Kilbracken moved Amendment No. 22:


Page 2, line 27, leave out ("has published") and insert ("was the author, editor or publisher of").

The noble Lord said: Unlike my other amendments which were all drafting amendments, this amendment raises a question of some substance in which I hope the Committee will see merit. Clause 2(1) at present states:


    "A person who has published a false statement alleged to be defamatory of another may offer to make amends under this section".
That is an important new provision--a fast-track procedure, as it has been called--which should have the effect of reducing the immense cost of litigation to all parties and saving the time of the courts.

As at present drafted, however, it is not made available to the author or the editor, but only to the publisher of the statement complained of. I do not know why that should be the case. It is obvious that the author and the editor may be defendants. Otherwise, why should they be mentioned in Clause 1(1)? It seems clear to me that they, too, should have the right to make this offer on the terms set out in the clause. My amendment would have that effect by amending the subsection to read:


    "A person who was the author, editor or publisher of a false statement alleged to be defamatory of another may offer to make amends under this section".

I suppose that as an author I should declare some kind of interest, though I hope never to be guilty of defamation. I beg to move.

The Lord Chancellor: I do not wish to accept the amendment because these provisions--the fast-track as it has been referred to--are intended to apply to any person who has published a defamatory statement. The word "published" has an established wide meaning in the law of defamation. It makes no difference for this purpose whether the person who has published the statement would be regarded as a publisher, editor or author. Indeed, not all of those who publish defamatory statements would be necessarily regarded as any one of those, using everyday language.

A person who utters a slanderous comment publishes it within the meaning understood in the context of the definition, but it might be artificial to describe him as the author. Accordingly, the procedure of the offer to make

2 Apr 1996 : Column 221

amends is a procedure which should be available to everyone who has published a false statement alleged to be defamatory of another, whether that person would qualify as a publisher, editor or author in the strict sense.

Lord Kilbracken: I am surprised. I know that words can mean anything that lawyers want them to, but it seems rather surprising that a person who writes an article or a book is thereby publishing it, or that an editor is publishing it, particularly when we have in Clause 1(2):


    "'publisher' means a commercial publisher, that is, a person whose business is issuing material to the public...who publishes a statement in the course of that business".

It would never have occurred to me, as a layman, that the writer or editor of a book could use this process. However, since the noble and learned Lord has made it quite clear that in the legal use of language that is the case, and that the author of a book counts as the publisher, I am prepared to accept that. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.45 p.m.

The Lord Chancellor moved Amendment No. 23:


Page 2, line 27, leave out ("false").

The noble and learned Lord said: The amendment is a drafting amendment to remove a word which became redundant as a result of earlier drafting changes made following our consultation on the draft Bill. That was pointed out to me by the noble Lord, Lord Kilbracken. I have given effect to that in the amendment. When I looked at the noble Lord's suggestions originally, I did not accept this one, but on more mature consideration I have seen that he is right. I gladly acknowledged its authorship. I have published the amendment, but I believe that he is the author, having published it to me.

There are one or two other amendments grouped with Amendment No. 23 with which I could perhaps deal. Amendment No. 28 is in my name. It is a small drafting amendment in the description of the effect which a party's acceptance of an offer to make amends will have on his cause of action on defamation. It substitutes the words "may not" for "cannot" in preventing him from pursuing, or further pursuing, that course of action (which is succeeded by the right to enforce the offer). I beg to move.

Lord Kilbracken: I am grateful to the noble and learned Lord for coming round to my point of view, apparently, after reading the words of wisdom that I published in my letter to him.

On Question, amendment agreed to.

Lord Kilbracken moved Amendment No. 24:


Page 2, line 28, leave out ("of another").

The noble Lord said: In moving Amendment No. 24, I speak also to Amendment No. 25. I simply want to ask whether the words "of another" in line 28, and "complained of" in line 40 are necessary. They seem to me to be otiose. I beg to move.


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