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The Lord Chancellor: I am looking further at the question of Amendment No. 43 because one needs to see what others have done in respect of that. I have instituted inquiries. The General Medical Council and the Scottish Solicitors' Discipline Tribunal are tribunals exercising certain powers. The Scottish Solicitors' Discipline Tribunal would be singled out for some reason--I think possibly because it was mentioned in the excellent briefing of the Law Society of Scotland. It has an English equivalent so it would probably be less clear.

The general rule I have followed is that domestic tribunals are not given the same benefit as those tribunals which are courts. The definition of "court" which I have used consistently in such legislation as I have been concerned with in this area is "a tribunal or body exercising the judicial power of the state". I initially picked that up from the Constitution of Australia and certain of the decisions made there. That gives the essential character of a court and that is why it has been used.

It would not be right to extend the absolute privilege to tribunals which are in the nature of domestic tribunals. There is an argument about whether the particular tribunals to which the noble Lord refers in Amendment No. 44 are of that character. The law has been that domestic tribunals attract qualified privilege under paragraph 14 and that it would not be right to extend the absolute privilege to tribunals of that kind. That is my response.

On Question, amendment agreed to.

[Amendments Nos. 43 and 44 not moved.]

The Lord Chancellor moved Amendment No. 45:


Page 10, line 45, at end insert--
("( ) This section applies to--
(a) any court in the United Kingdom,
(b) the European Court of Justice or any court attached to that court, and
(c) the European Court of Human Rights.
In paragraph (a) "court" includes any tribunal or body exercising the judicial power of the State.").

2 Apr 1996 : Column 263

On Question, amendment agreed to.

Clause 14, as amended, agreed to.

Clauses 15 and 16 agreed to.

Clause 17 [Interpretation]:

The Lord Chancellor moved Amendment No. 46:


Page 11, line 30, leave out ("except as provided in") and insert ("but "publisher" is specially defined for the purposes of").

The noble and learned Lord said: I spoke to this amendment with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Extent]:

[Amendment No. 47 not moved.]

Lord Williams of Mostyn moved Amendment No. 48:


Page 12, leave out line 23.

The noble Lord said: This amendment speaks for itself. I believe it to be acceptable to the noble and learned Lord the Lord Chancellor.

The Lord Chancellor: I accept the amendment.

On Question, amendment agreed to.

Clause 18, as amended, agreed to.

Clauses 19 and 20 agreed to.

Schedule 1 [Qualified Privilege]:

The Lord Chancellor moved Amendment No. 49:


Page 14, line 29, after ("any") insert ("member State or").

The noble and learned Lord said: In moving this amendment I wish to speak also to Amendment No. 50. Amendment No. 49 is a small drafting amendment to avoid any suggestion that the provision in paragraph 9(b) is intended to exclude reference to authorities performing governmental functions in relation to the whole of a member state as opposed to in relation to part only of that state. Amendment No. 50 is a drafting amendment which affirms, in case otherwise there could have been any doubt, that the expression "governmental functions" includes "police functions" both in the United Kingdom and in other member states, so that fair and accurate copies of or extracts from notices or other matter issued for the information of the public by those exercising police functions will attract qualified privilege under Clause 15 of the Bill. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 50:


Page 14, line 31, at end insert--
("( ) In this paragraph "governmental functions" includes police functions.").

2 Apr 1996 : Column 264

The noble and learned Lord said: I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 51:


Page 16, line 33, at end insert--
(" . A fair and accurate report of a correction or apology pursuant to section 2 of this Act.").

The noble Lord said: As the Bill currently stands, it is possible that a publisher might find himself in the position where, if libel proceedings against him were disposed of under the new offer of amends procedure and he was obliged as a result to publish a correction and apology, a third party might come along and claim that the published correction or apology was a libel of him. That is by no means a fanciful possibility. Frequently, libel proceedings arise out of complicated factual situations involving a considerable number of people, each of whom blames others involved for the scandal that has arisen. Where that happens one or more of the parties involved might bring libel proceedings.

Under Clauses 2 to 4 of the Bill it is possible that these will be disposed of by way of offer of amends. It might well be impossible, however, to devise a suitable correction and apology in fulfilment of the offer of amends without implying, or even in some cases stating, that other parties involved in the affair were implicated in a way which could be defamatory of them. This amendment would confer qualified privilege on corrections and apologies published by way of offer of amends, reducing the risk that an editor might find himself out of one libel frying pan into the fire of another. I beg to move.

The Lord Chancellor: I understand the reason why it might be thought that reports of the outcome of an offer to make amends should have a special privilege, but I believe that a special privilege for that situation would be unnecessary and have unfortunate consequences. The outcome of an offer to make amends would not often involve a fresh defamation of a person who had not been involved in the original dispute. But if it did, it would raise the question of why a third party had been defamed.

One reason might be that the parties to the offer, and acceptance of the offer to make amends, had been motivated by the desire to gain publicity for their defamation of someone else, knowing that, although they themselves were not worth suing, anyone reporting their publication would have no reason to look into their motives. It does not seem to me right that the reporter of a settlement between two parties should automatically be licensed to pass on their defamatory comments on one another. I should have wanted to consider this amendment if it were shown that a responsible reporter who had not been aware that the reputation of a third party could be adversely affected by the report in respect

2 Apr 1996 : Column 265

of which no other defence would be available had made the report in question. I believe that to have a kind of general licence to give special privilege to this type of statement would be rather wider than justified.

Lord Lester of Herne Hill: I am grateful to the noble and learned Lord for showing me that the amendment does not do complete justice. It seems to be a case where complete justice probably cannot be done. I would like to think further about it to see whether there is some method of dealing with the problem I have raised in a more proportionate way. I beg leave to withdraw the amendment.

2 Apr 1996 : Column 266

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 52:


Page 16, line 46, after ("Justice") insert ("(or any court attached to that court)").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Remaining schedules agreed to.

House resumed: Bill reported with amendments.

        House adjourned at twenty-five minutes past ten o'clock.


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