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Lord Hoffmann: I am grateful to my noble and learned friend for his remarks and particularly for his acceptance that there is a serious problem. It needs to be dealt with, if not by the precise clause then at least by a clause along those lines. I am grateful to noble Lords for their contribution to the debate. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Clause 14 [Reports of court proceedings absolutely privileged]:

The Lord Chancellor moved Amendment No. 42:

Page 10, line 37, leave out from ("before") to end of line 41 and insert ("a court to which this section applies, if published contemporaneously with the proceedings, is absolutely privileged.").

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The noble and learned Lord said: With Amendment No. 42, I wish to speak to Amendments Nos. 43 to 45 and 52. Amendment No. 42 is consequential on the recasting of Clause 14 which confers absolute privilege on contemporaneous reports of proceedings of courts in the United Kingdom. The effect of the amendment is that the courts to which the privilege applies are no longer referred to in subsection (1), which now simply refers to the courts "to which this section applies".

Amendment No. 45 is part of the same recasting as I mentioned in relation to Amendment No. 42. A new subsection is inserted to provide a free-standing list of the courts to which the section applies, so that contemporaneous reports of their proceedings will be privileged. It adds the courts attached to the European Court of Justice (which will include the court of first instance) and also the European Court of Human Rights. Those are all courts whose proceedings can have an impact in the United Kingdom in one way or another.

Amendment No. 52 is a drafting amendment to affirm that references to the European Court of Justice in the first schedule will include references to any court attached to the European Court of Justice, as the court of first instance now is.

On Amendments Nos. 43 and 44 in this group, perhaps I should wait to see what the noble Lord, Lord Williams, wishes to say. They are obviously connected and it may be convenient to deal with them all together. In the meantime I beg to move Amendment No. 42.

The Deputy Chairman of Committees (Lord Brougham and Vaux): I should advise the Committee that if Amendment No. 42 is agreed to, I cannot call Amendments Nos. 43 and 44.

Lord Williams of Mostyn: If it is convenient, perhaps I should indicate my approach to Amendments Nos. 43 and 44. It is on the same basis as indicated by the noble and learned Lord the Lord Chancellor. It seemed to some of us that an international war crimes tribunal, the General Medical Council and the Scottish Solicitors' Discipline Tribunal should be in the same categories.

Lord Aldington: I wish to comment from my experience of the European Court of Human Rights, which has been added to the Bill. The noble Lord, Lord Lester, knows what I am about to say. We are used to absolute privilege here. It applies to proceedings in courts at which all parties relative to proceedings are present and at which counsel obey rules, do not give evidence, and so on.

However, there was a recent case in the European Court of Human Rights which arose out of my libel action in which one of the defendants was the plaintiff against the United Kingdom. I was not a party. Because of the way in which these things happen, the newspapers reported things said in that court which were entirely incorrect and which were damaging to my reputation. My noble and learned friend should be aware that his department is well aware of my complaints in this matter.

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I want to draw a lesson from that. We are used to applying these privileges to courts, and indeed to parliaments, which have some control over what is said. But the European Court of Human Rights seems to have a completely different procedure to the one to which we are accustomed. This particular case opened with the spokesman for the Commission giving evidence about the matters as background, which was quite wrong. It happened to cross what I knew to be correct and what had been said in my case. The case continued with the noble Lord, Lord Lester, who had been briefed wrongly. He was kind enough to say so, and corrected the record. But the mistakes he made, which were damaging to me, appeared in the newspapers.

It is doubtful whether we should give absolute privilege to proceedings in a court of that kind. The other way is to give them absolute privilege and try to see that the procedure is tightened up a good bit. It was a very extraordinary thing, as the noble Lord, Lord Lester, said to me, that the proceedings started with a representative of the Commission--which, as the Committee will know, examines cases before the court--actually giving some personal evidence of what he himself found when he was a young officer in the 27th Lancers in Austria. It was a very extraordinary way of conducting affairs. All that gets into the newspapers. I cannot think that it will be right for me. It does not matter. I have had the time and resources to try to correct what was in the newspapers; and I have done it. But it was damaging in the meanwhile.

That example provides a lesson for us all. It relates somewhat to what can happen in United Kingdom courts when there is an outburst during the course of proceedings by one of the parties and the newspapers do not report the proceedings properly; they report the outburst and only part of the proceedings. That is because usually they do not immediately report counsel's reply. That is possible here. Because counsel in a court here does reply, it is possible to get matters put right under the terms that it has to be a fair and accurate report.

The case at the European Court of Human Rights, because of the nature of the proceedings, was one of a private individual against a government. It was really a case against me, but I was not a party. I was not represented; I was not there; I could not correct anything that was wrong. Yet the newspapers can carry, the next day, something that is defamatory. I put that point to my noble and learned friend. I do not suggest that he alters the Bill at this moment, but I should like him to do something about it, because there will be others who, like me, are affected in that way in due course. He may say: you can deal with all that. I did. But it cost quite a lot of money and a lot of time. That is not a good way of conducting our affairs.

Lord Lester of Herne Hill: The noble Lord did not give me notice that he intended to make the speech that he just made. I feel a little embarrassed about it. Had he told me, I might have discussed matters with him in advance, and indeed returned to the documents in the case. In that case I appeared for Count Tolstoy against the United Kingdom before the European Court of

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Human Rights. What one has just heard is the views of one of the parties to that litigation who feels extremely strongly about it, just as my client himself did.

The issue raised by the noble Lord is whether it is right for the proceedings in courts, including the European Court of Human Rights, to be covered by statutory privilege. I listened to him carefully and believe that he recognised, in the latter part of his speech, that the kind of injustice that he feels, rightly or wrongly--I emphasise both words, "rightly" and "wrongly" without taking sides--is an injustice that many people who are parties to litigation feel when they read reports in newspapers about the conduct of proceedings.

I was an amusing victim this morning when I found myself described in the newspapers as acting on behalf of the traitor George Blake. In fact, I was not; I was acting as the amicus in the case. But I was described in that way with a lot of comments made to me afterwards. That is one of the facts of life that occur with a free press when it is reporting proceedings in courts or, for that matter, in Parliament.

As somebody who has had a great deal of experience of the European Court of Human Rights, in my view it operates independently and impartially as a real court. I know that the noble Lord, Lord Aldington, does not agree either with what was said by Sir Basil Hall, the delegate for the Human Rights Commission who appeared before the court, nor with some of the statements that I made on instructions that were reported in the press. But that is no argument for withdrawing statutory privilege from our courts or from the European Court. As was said many years ago, justice is not a cloistered virtue; the public are fully entitled to know, on the basis of a fair and accurate report of proceedings in public before the courts, what is going on in those courts.

The noble Lord, Lord Aldington, has had every opportunity to make his point known in this Chamber and I am glad that he has had a chance to do so. However, I do not think that that in any way casts doubt on the wisdom of Clause 14 and the inclusion of the European Court of Human Rights within it.

The Lord Chancellor: I understand well my noble friend's concerns in these matters. I know a good deal about the detail of the matter to which he referred. It is a matter of judgment as to which tribunals and so forth should go into the list. The important thing is that what is protected is a fair and accurate report of the proceedings in public before any court.

Without going into any specific situation--I shall not refer again to the circumstances of the particular case--if something is said against an individual in a court and that something is also flatly contradicted in the course of the same proceedings, a fair and accurate report of the proceedings would incorporate those comments. I leave that case and turn to a case where someone is represented wrongly as representing the traitor George Blake. I imagine that that was not a fair and accurate report of the proceedings in that specific case either, unless the submissions were of such a character that someone could fairly and accurately report them as

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having been made by a representative of George Blake, notwithstanding that the noble Lord, Lord Lester of Herne Hill, was not instructed on behalf of George Blake.

The point is that it is only a fair and accurate report of the proceedings that is protected; it is not a defence to an action of defamation, in my understanding, that the thing simply emanates from a hearing in public before a court. It must be circumscribed by being a fair and accurate report of the proceedings. That is probably the right answer to this matter. In the meantime, I hope that the Committee will approve Amendment No. 42.

10.15 p.m.

Lord Williams of Mostyn: Before the noble and learned Lord sits down, he indicated that he might offer a view on Amendments Nos. 43 and 44.

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