Amendment 13, in my name, has been grouped with this amendment, but it raises a separate point. It is concerned with the defence of honest opinion or fair comment, as it used to be called. In 1975, the Faulks committee described fair comment as the bulwark of free speech and so, indeed, it is. A few years earlier, that great defender of free speech, Lord Denning, had made exactly the same point, adding that fair comment as a defence must not be whittled down by legal refinement.
My case will be that the defence of fair comment has been whittled down not, I hasten to add, by Clause 3 of the Bill, but by a decision of the House of Lords in 1992. The name of that case was Telnikoff v Matusevitch and I must declare an interest, since I gave the leading judgment in the Court of Appeal in that case, together with Lord Justice Glidewell and Lord Justice Woolf, as he then was. We were, unfortunately, reversed in the House of Lords, so I have a rather selfish interest in satisfying myself and, I hope, persuading the Committee that the Court of Appeal was right and the House of Lords was wrong.
The facts of the case were very simple and typical. The plaintiff wrote an article, published in the Daily Telegraph, criticising the BBC’s Russian service for recruiting its staff entirely “from Russian-speaking ethnic minorities”. The defendant, an emigré Russian Jew, took great exception to the article and, five days later, wrote a letter to the Daily Telegraph referring to the article by title and giving the date on which it had appeared. The letter contained the following sentence:
“Mr Telnikoff demands that [the BBC] should switch from professional testing to a blood test”.
As it stands, that statement looks, on the face of it, like a statement of fact: that that is what he had demanded. If so it was clearly defamatory, if untrue. However, if you look at the same sentence in its context, including the article to which the letter had referred, it looks very different. It was obvious, looking at the article, that the plaintiff had not demanded a blood test, so the words complained of were not a statement of fact at all but a comment. It was a strongly worded comment, but a comment none the less.
The crucial question on which the Court of Appeal and the House of Lords differed was whether you could look at the article as part of the context in which the letter was written. In the Court of Appeal we held, without much difficulty, that you could and should. Accordingly, we upheld the defence of fair comment in the interest of free speech and the action failed.
The case went to the House of Lords and there we were reversed. The only reason that their Lordships gave was that somebody might read the letter without having read the article. To such a reader, the letter would indeed appear defamatory, even though it would not appear defamatory to anyone who had read both the letter and the article. Therefore it followed that the writer of such a letter, if he was going to take a safe course, should set out the whole of the article, or the substance of the article, on which he proposed to comment—or, if he was even more determined to take a safe course, should consult a lawyer.
It seemed to me at the time that the decision was wrong. It did exactly what Lord Denning said one should not do: namely, whittle down the defence of fair comment by a legal refinement. Even so, I might not have been bold enough to table my amendment but for one other factor: the dissenting speech of Lord Ackner in the House of Lords. If ever there was a tour de force, this was it. I should like to quote the whole speech—I had the whole speech before me on Monday of this week—but perhaps I should confine myself to the two sentences that contain the answer. Lord Ackner said that,
“the defence of fair comment is not based on the proposition that every person who reads a criticism should be in a position to judge for himself. It would be absurd to suggest that a critic may not say what he thinks of a play performed only once, because the public cannot go and see it to judge for themselves”.
There could not be a stronger support for the amendment than the speech of Lord Ackner in the House of Lords in that case.
It is true that Lord Ackner was only one of five Law Lords—but five judges in all were in favour of the amendment, if one includes Mr Justice Drake, a great expert in this field, together with the three of us in the Court of Appeal. That makes five in favour of the amendment, with only four against. I hope that the noble Lord, Lord McNally, will find time during the Christmas vacation to read the judgment of Lord Ackner. He may well have time on his hands from now on. At Second Reading, the Minister went as far as to say that he thought that the view of Lord Ackner was probably right. I hope that he is still of that view and will maintain it when he has read Lord Ackner’s speech.
This brings me to the question that I asked at the end of my speech: is the wording of Clause 3(3) sufficiently clear and specific to enable the court to say—and in particular, to enable textbooks to say—that the decision of the House of Lords in Telnikoff v Matusevitch is no longer good law? The noble Lord said that his officials wished to consider the question and would write, but unfortunately they never did. If they had, I feel sure that we could have agreed. My view is that Clause 3(3) is not sufficiently precise. If Parliament is going to reverse an important decision of the House of Lords—and it was an important decision—in the field of defamation, as I hope we will, we must make it absolutely clear that that is what we are doing in the Bill. That is the only purpose of my amendment. The point would then be picked up by the textbooks—this is an important argument—so that we will not have to wait until a decision of the court,
which would only add to the waste of time and money involved. We can do this now, and I hope that the noble Lord will agree to do so and accept the amendment. It will in no way detract from Clause 3(3), but it will cover a specific case, as we often do. I can think of literally no good reason why the Government should not accept the amendment now. I hope that the Opposition will take the same view.
12.15 pm