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The Lord Chancellor: My Lords, I am grateful to my noble and learned friend Lord Simon of Glaisdale for his courtesy in letting me know his intentions in relation to the amendment and the other to which he has spoken, and for his remarks about my letter to him.

The question is how far the problem extends. It is true that a problem is created; but I do not know exactly how widespread the particular problem is. Most of the examples given relate to a particular plaintiff who is not in a position to issue any more such writs. Therefore, from that point of view, that aspect of the problem may have been resolved. However, I see the force in requiring us to consider the matter.

The circumstances of patent law are a little different from those referred to here. Patent law is intended to deal with an abuse of the monopoly power itself which the state has conferred in the shape of the patent. These unjustified threats were used in effect to extend the monopoly beyond that which the state had granted. In that sense the state had a special responsibility for seeing that that does not happen.

In the defamation field the matter is rather different. There are other areas, too, in which unjustified threats can be made. The ordinary remedy is to defend the action. And in our system of jurisprudence there is the sanction of cost. That is an important part of our system. It is one which those on the other side of the Atlantic are certainly aware of and in some cases now use. So that particular sanction is available.

What I propose, as I stated in the letter to my noble and learned friend, is that I should undertake, in the department, to consider this matter further. I want to try to find out how extensive the problem is, or continues to be, and to see what is regarded as the best solution to it. Obviously, that cannot happen in the context of this particular Bill. I have no doubt that the law of defamation will require further reform as time goes on. This is a matter that requires more thorough investigation than we are able to give it in the context and timetable of this particular Bill. All the proposals in the Bill have already been the subject of considerable consultation, many of them coming from Lord Justice Neill's working group. I propose therefore to take the matter forward in this particular way.

It may well be that, having done so, I shall want to try to see whether a reconstituted group might help. At the moment I want to find out more about the extent of the problem before setting up machinery to deal with it. I hope that with those assurances my noble and learned friend will feel able to withdraw his amendment, feeling that the purpose for which he brought it forward has been served and that the problem will not be lost sight of, but will be further investigated.

Lord Simon of Glaisdale: My Lords, my only regret about flouting the wishes of the Public Bill Office is that

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I seem thereby to have forfeited an intervention by the noble Lord, Lord Williams, whom I know has no love for criminal libel.

As to my noble and learned friend, I need say only this. The problem is not confined to Robert Maxwell and his machinations. I raised this matter, although I cannot remember the circumstances, long before Maxwell started to use the gagging writ. Moreover, one can think of other examples.

I do not like mentioning the first case, that of Mr. John Profumo, since he was a ministerial colleague and by his devotion to the service of his fellow man ever since his fall from grace has put all of us to shame. But there was an example of the issuing of a writ which effectively closed down a newspaper revelation about a matter which was subsequently admitted to be true.

The second case I can think of is that of the Moonies, who were very prolific in relation to gagging writs. They were very successful for a long time in hindering investigation into their less salubrious activities.

Therefore I do not accept that this is an isolated problem. It is a serious problem, as was demonstrated in Committee. I am perfectly satisfied that my noble and learned friend should have the matter investigated in his department so long as he puts a stick of ginger behind those who investigate it. With those observations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Meaning of summary relief]:

Lord Lester of Herne Hill had given notice of his intention to move Amendment No. 6:


Page 8, leave out lines 24 and 25 and insert--
("(b) an order that the plaintiff have leave to make a statement in open court at such time and in such terms as the court may determine if the parties cannot agree;").

The noble Lord said: My Lords, although this amendment was tabled at Committee stage, I chose not to move it. I intend to do so now instead.

As it is currently worded, Clause 9 would enable a court, following summary judgment, to prohibit the publication or republication of the matter complained of. That is a potentially far-reaching prohibition. On its face it would appear to prevent a newspaper, for example, publishing any further articles on the issue out of which the plaintiff's complaint has arisen, even where new developments and facts have subsequently come to light.

In Sir William Blackstone's parlance, it is a sweeping prior restraint. The present amendment would confine the scope of the court's power following summary judgment to restrain republication of the original defamatory statement. That is why I have sought to narrow it to cover the real vice, not to be over-broad and disproportionate by covering wider matter which, as I said, would be covered by the Bill as it stands.

The Lord Chancellor: My Lords, I am not sure whether the noble Lord is speaking to Amendment No. 8. Certainly the amendment would remove the power of the court to order the defendant to publish a

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correction or an apology, even if an appropriate wording had been a matter on which the parties reached agreement at the conclusion of the case.

Lord Lester of Herne Hill: I am so sorry, my Lords. The amendment that I seek to move is Amendment No. 7. I shall not move the earlier amendment.

The Lord Chancellor: My Lords, I am grateful to the noble Lord. The amendment that I should call is Amendment No. 7.

Baroness Trumpington: My Lords, Amendment No. 6 has officially not to be moved before we reach Amendment No. 7.

[Amendment No. 6 not moved.]

8.30 p.m.

Lord Lester of Herne Hill moved Amendment No. 7:


Page 8, line 29, leave out ("matter") and insert ("statement").

The noble Lord said: My Lords, I apologise for my mistake. I have now spoken to the amendment. I beg to move.

The Lord Chancellor: My Lords, I am grateful that we have reached Amendment No. 7. This is a matter which I would wish to consider. Since we have produced a special definition of the word "statement" which was brought in following consultation, and other provisions of the Bill have already been modified, I am grateful to the noble Lord, Lord Lester of Herne Hill, for identifying this provision as one where it might be appropriate to use the term which we have expressly defined elsewhere in the Bill to provide a clear and certain description. Many other terms have been used in defamation law generally to describe the same thing--that is, what has (or may have) been published and was (or may have been) defamatory, and is the reason why an action has been brought.

The context here is slightly different, however, as this paragraph is directed not to what the defendant has already published but to what he may publish in the future. Those future publications from which he should be restrained would not necessarily take exactly the same form as the statement which has been considered in the proceedings. It may be that he could devise another statement in a completely different form but conveying the same meaning as that which he has been ordered not to make or repeat as the case may be. That is the reason why the word "matter" has been used in this special context. But I should like to consider further the noble Lord's amendment.

Taking the patent situation, obviously, in a patent infringement the defendant is usually subject at the end, if he is found to have infringed, to an injunction against further making or using the particular subject-matter of the invention, as he has already used it, and any comparable imitation of it often. So one wants to be sure that just by a very small change one could not get out of this particular form of order. But I feel that the noble Lord's amendment raises the question of whether we

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should consider the matter further or whether it should be elaborated somewhat. I am grateful to him for that and would be happy to consider it further.

Lord Lester of Herne Hill: My Lords, the gratitude is on my part for the sympathetic way in which the noble and learned Lord the Lord Chancellor has approached the matter. It is common ground that we must seek to avoid unnecessary and excessive restraints on free speech. I am greatly encouraged. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Clause 12 [Evidence of convictions]:

Lord Williams of Mostyn moved Amendment No. 9:


Leave out Clause 12.

The noble Lord said: My Lords, this amendment relates to the benefit which is given to one party and taken away from another in libel actions. In other words, the present Clause 12 in some circumstances will regard criminal convictions possibly having been confirmed in the Court of Appeal Criminal Division as being conclusive for one party or one witness but not conclusive for another. I believe that to be fundamentally unjust as a matter of principle. Secondly, I believe that it will open the door to many collateral attacks on the rightness of criminal convictions. For those reasons I beg to move.


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