HC Deb 10 February 1893 vol 8 cc1052-62

I wish to ask the Attorney General a question of which I have given him private notice. It is whether it is consonant with the practice of the Bar that a counsel, who has been engaged in a criminal prosecution, should in his capacity of Member of this House make use of and divulge information which he has become possessed of in his capacity as prosecuting counsel, in bringing before the House a Motion relative to the case in which he has been engaged?


Assuming the facts to be that the hon. and learned Gentleman referred to acted as counsel for the Crown in the criminal prosecution of the Gweedore prisoners, it would be contrary to what is understood to be not proper professional conduct in England to use his knowledge of facts obtained as counsel in a criminal case, for the purposes of political discussion in this House. I wish it to be understood that I do not mean for a moment to imply that the hon. and learned Gentleman has knowingly and intentionally offended against the rules of honourable professional practice. Probably when the Amendment was put upon the Paper the matter had not occurred to him in this light. I wish to add that, although I only received notice of this question this morning, I took the opportunity of consulting several of the Judges, and the majority of those Judges seemed to think that the Rule went even further than I have said, and that no counsel should take part in any public discussion relating to any criminal case in which he has been engaged, unless it be under exceptional circumstances calling for explanations or the like.

MR. A. J. BALFOUR (Manchester, E.)

May I ask the right hon. Gentleman, for the information of myself and of the House, whether it is not a fact that, when he was engaged as counsel in the Parnell Commission, he did not, in conjunction with another eminent counsel, who is also a leading Member of this House, engage in, if he did not initiate, a discussion in this House upon the subject of that Commission, and take advantage of his position as a Member of this House to attack another leading counsel?


There is no analogy whatever between the case referred to by the right hon. Gentleman, and my conduct in relation to that matter, and the point involved in the question now before the House. The Parnell case was a Commission constituted by Act of Parliament, and the function of the Judges who were appointed to sit upon that Commission was to report to this House. I initiated no discussion upon it. So far from that, when a discussion did take place before the Re- port of the Commission I abstained from taking part in it.


The hon. and learned Gentleman has no doubt refreshed his memory upon the point whether he spoke on the subject before the Report was issued. Am I not right in saying that the speech was made before the Report of the Parnell Commission was presented? May I ask whether there is any difference between that case and the present one? Both he and the hon. Member for Londonderry (Mr. Ross) were paid counsel.


There is no analogy between the two cases. The Parnell Commission was not a criminal case. It was, as I have already pointed out, a Commission, bound to report to this House.

MR. MACNEILL (Donegal, S.)

Perhaps, Sir, you will permit me to ask a question, seeing that this is a matter which affects the dignity of this House. I wish to ask if the hon. and learned Member who now puts forward a Motion condemning the exercise of the clemency of the Crown in favour of the persons against whom he was employed as prosecuting counsel, does not confound his duties as a barrister with his duties as a Member of Parliament, and is not such conduct in distinct contravention of the Resolution passed by this House on the 22nd June, 1858, which laid down the Rule— It is contrary to the usage and derogatory to the dignity of this House that any of its Members should bring forward, promote, or advocate in this House any proceeding or measure in which he may have acted or been concerned for or in consideration of any pecuniary fee or reward. As this matter is of great importance, you will, I am sure, allow me to briefly describe the circumstances under which Lord Hotham's Rule was laid down. It was carried in a fairly full House by 210 votes against 27, a majority of 183, and in the course of the Debate upon it every lawyer of eminence then in the House spoke. The views of the Lord Chancellor of the day—[Interruptions]—I appeal to you, Mr. Speaker, as the guardian of the dignity of this House, to protect me against these interruptions.


The hon. Member is, I gather, referring to precedents on a point of Order which he has advanced, and, if so, he is in order.


The Lord Chancellor of the day was Lord Chelmsford, and in the Debate to which I am referring the Mover said it was well known that it was the practice of Lord Chelmsford while he was at the Bar to take no part in any proceeding in the House in which he was professionally concerned out of it; and, on the other hand, he would never act as advocate out of the House in any case in which he had been professionally concerned within its walls. Mr. Whitehead, afterwards Chief Justice of Ireland, said that hon. Members were prohibited from practising before any Parliamentary Committees for the reason set forth in the Resolution. Sir Henry Keating, a Judge of great eminence, who was Solicitor General at that time, said he believed that anyone who had that feeling of honour which was common to the whole Bar would decline either to speak or even vote upon a subject in which he had been professionally engaged outside, lest he should, unconsciously perhaps, be influenced by opinions which he had expressed elsewhere. Under these circumstances, Sir, I beg to ask you whether the conduct of the hon. and learned Gentleman the Member for Londonderry does not completely come under the rule thus laid down; and whether it is not only inconsistent with good order, but with good taste, that a gentleman should be a paid advocate one day, and the next day should, as an independent Member of Parliament, take part in a discussion on the ease in which he had previously been professionally engaged, and deal with the ease as a matter of public policy?


As I have been appealed to, I am bound to express an opinion on the subject, but the hon. Gentleman has not given me very much time to consider it. There are two Resolutions of this House dealing with the question. One was passed in the year 1830, and the other in 1858. In the year 1830 it was alleged that Members of this House promoted, for pecuniary reward, Private Bills, in which they were professionally interested, and a Resolution was passed forbidding any Member, by himself or by his partner, to promote in this House Private Bills in which he was engaged. Some years passed, and in the year 1858 another allegation was made—namely, that that Rule had been evaded, and that Members of this House in taking up cases were really paid for advocating those eases in the House, and a very stringent Resolution was passed, which by leave of the House, I will read— It is contrary to the usage and derogatory to the dignity of this House that any of its Members should bring forward, promote, or advocate in this House any proceeding or measure in which he may have acted or been concerned for or in consideration of any pecuniary fee or reward. The House will see that that was strictly confined to the cases in which a Member, in his public capacity as a Member of Parliament, advocated a particular person's cause or promoted any case, and received a pecuniary reward for so doing. That, I think, is the distinction. To say that any Member who has been engaged in a criminal case is not to engage in this House on a subsequent occasion in a Debate relating to the same case I cannot, because as far as the Rules of the House are concerned I do not think it is contrary to them. I can quite understand that it would be highly improper for any Member to take part in a discussion here on a case in which he was concerned and which was still undecided; but after the case had been decided, then there might be information at his disposal which could be usefully supplied for the conduct of the Debate. I am not about to set my opinion against that of the Judges of the land, or to say that it is contrary to or in accordance with professional etiquette for any Member of this House to make use of facts or information which have been gained by him in his capacity either for or against a case. The House will therefore see, on the point of Order, that I cannot stand in the way of the hon. Gentleman to whom reference has been made bringing on this matter; but, at the same time, I shall leave it to the Legal Profession to decide whether it is contrary to legal etiquette for hon. and learned Members to take part in a Debate under the circumstances.


As you, Mr. Speaker, have ruled that it is a question of legal etiquette, may I again press the hon. and learned Gentleman as to whether it is not the fact that, pendente lite and before the decision of the Commisson, he intervened in the Debate, and used these words with regard to my hon. and learned Friend who sits near me (Sir R. Webster)—"I did think that the conduct of the case had been unfair to the defendants"?—(Hansard's Reports, vol.334, page 735.) I must again press him for his views on that point in the light of the answer he gave to the question of the hon. Member for Camborne (Mr. Conybeare).


If the right hon. Gentleman will tell me what was the occasion on which the language was used I will answer his question. I have no reason to doubt the entire accuracy of what I have said. When the statement to which the right hon. Gentleman refers was made, as he says, pendente lite, there was no lis perders; and there is all entire absence of analogy between that ease and this case. Although strongly provoked, I abstained from taking part in the Debate on the occasion referred to.

SIR R. WEBSTER (Isle of Wight)

I shall not, of course, introduce into this discussion the slightest element of personal consideration, but my recollection does not quite accord with that of my hon. and learned Friend. Speeches were made by Members of the Bar, and, I think, by himself, after the date of the Report of the Commission. But even if that does not apply to my hon. and learned Friend the Attorney General (Sir Charles Russell) it applies unquestionably to the hon. and learned Member for York (Mr. Lockwood), to the hon. and learned Member for a Scotch constituency (Mr. R. T. Reid), and to some others who made speeches in this House while the proceedings were pending, and with reference to matters which must have come, to a certain extent, to their knowledge as counsel in the case. I am sure my hon. and learned Friend will acquit me of speaking from personal considerations. I am not intervening now because of any feeling on my part as to the way in which I was treated. If I may humbly say so, I believe, from my study of the question, that you, Mr. Speaker, have laid down the correct Rule—that the Standing Orders of this House, and the rules which govern men apart from Standing Orders, forbid any Member bringing forward or supporting in this House any measure for the purpose of obtaining a fee or reward; and further than that, I think no hon. Member should in his capacity as a Member of this House advocate afterwards any case in respect of which he has received fee or reward. That is the letter and the spirit of the understanding which should actuate Members of my own profession and all other Members. But there is another and an entirely different principle to which you have referred. I have understood that it is a duty which a man owes to his own conscience, and also to his position in our profession, that he should never use, for the purpose of Debate, information which has been communicated to him professionally; and if I had any reason to think that my hon. and learned Friend (Mr. Ross) had contemplated making use of information which came to him as prosecuting counsel, I should have suggested to him, quite independently of any consideration as to the Rules of the House, that he ought to take no part in such a proceeding. But, as I understand, the matter which he wishes to bring forward has become publicly known, and that comments have already been made in Parliament and in the Press on the conduct of the Executive in releasing certain persons who have been in prison, and as to the circumstances of whose trial no question can directly or indirectly arise. I have ventured to intervene because I cherish as keenly as anyone the hope that Members of our profession will obey both the letter and the spirit of the Standing Order; but it does not seem to me that any fact has been brought to the notice of the House from which it can possibly be assumed that my hon. and learned Friend the Member for Londonderry was in any way intending either in spirit, much less in letter, to violate the Standing Orders of this House.


I wish the House to be in possession of the exact facts of the case. I have now referred to Hansard, and find my recollection was strictly accurate. On the occasion referred to by the right hon. Gentleman, a Motion was brought before the House by my right hon. Friend the Chancellor of the Exchequer, in which he impugned, in certain respects to which I will not refer, the conduct of my hon. and learned Friend the Member for the Isle of Wight (Sir R. Webster). On that occasion I took no part whatever in the Debate; I said I would take no part in the discussion, and I absented myself from the House. I found in the reports in the papers next day that a statement had been made by my hon. and learned Friend which was considered a matter of moment on the point raised as to my hon. and learned Friend's conduct, which was that he had handed to me and to my right hon. Friend the present Home Secretary, with whom I was associated, a particular letter on a particular day. I knew that that was not correct, and that I could demonstrate from the shorthand notes that it was not correct, and I came down on the next occasion and explained, and I venture to think demonstrated, to the House that my hon. and learned Friend had fallen into an error. I took the opportunity upon that occasion of stating that I could be no party to making an accusation of dishonourable or intentionally unfair conduct against my hon. and learned Friend; and it is in that connection, and in that connection alone, that I used the language referred to by the Leader of the Opposition, in which I said— I regret to say I still think that the conduct of the case has been practically unfair to the defendants.


The proceedings were pending.


Of course the proceedings were pending. The House will, therefore, see that what I was doing on that occasion was not initiating a discussion, or taking part in a Debate, but after the Debate was over, setting right a mistake which had been made, and showing that a statement which affected me and my learned Friend the Home Secretary was, in fact, incorrect.

*SIR H. JAMES (Bury, Lancashire)

I do not know whether there is any Question before the House, and therefore whether I am in Order in saying one word on a Question which affects both persons and our profession. As regards the point of Order, I would really suggest that there could be no question raised on this matter. I will, if I may, show how little the Rule that has been read applies. Suppose I, as the counsel who had prosecuted James Egan, had stood by the side of the Home Secretary and said I thought that there would be no impropriety in his bringing a fair discretion to bear in that case, would I be shut out from expressing that opinion by virtue of this Rule? And if it would be improper to discuss the prerogative of mercy from a hostile point of view, it would be equally out of Order to say a word from a favourable point of view. But I am disposed to take a somewhat generous view of this Rule. The object of the Rule, no doubt, was that a person should not advocate the same cause in this House for which he bad received fee or reward out of it. Although my hon. and learned Friend the Attorney General has said that there was no litigation in respect of the Parnell Commission, there certainly was a proceeding which comes within the terms of Lord Hotham's Rule, and I am not disclosing any confidence when I say—for I have mentioned it in this House before—that I felt that fact so strongly, that after the determination of the proceedings, and after the Report had been made and when the matter came up for discussion before this House, I appealed to the present Attorney General, and I offered him that if he and all the other counsel, the Home Secretary and the Members for Dumfries and York, would abstain from discussing that proceeding in which they had been engaged, I and the late Attorney General would also abstain. My hon. and learned Friend clung to his right, for reasons I do not complain of; and I am sorry to say the House on that occasion had to listen to six learned counsel who had been in the case. But I wish to say this is a question entirely for the consideration of the hon. and learned Gentleman who brings forward this Amendment. If he thinks, after taking advice from those who act with him, that he will not bring to bear upon the discussion any question which will have an influence cast into it by his being professionally retained in the ease, then he is within his right in bringing forward this Amendment. I cannot and do not understand what Her Majesty's Judges have to do with this question. I know not who are the Judges my hon. and learned Friend has taken into his confidence or consulted, but I speak of them all with the greatest respect, and I am sure that he could not have made a selection that would not be a good one. But this is a question first for the Rule and Order of this House, and why should we consult the Judges upon that? And, secondly, it was a question of professional etiquette in this House. That must be a question for the Members of this House, and I say we are quite competent and fit to form our own judgment and to protect our own honour without receiving the guidance of men even as distinguished and as impartial as Her Majesty's Judges.

MR. T. M. HEALY (Louth, N.)

It has been suggested by the hon. and learned Member for the Isle of Wight and by the Leader of the Opposition that the Attorney General took part in a Debate or initiated a Debate, whereas it seems quite clear from Hansard that what the Attorney General was doing was answering a complaint which had been made against him by the then Attorney General. "I ask the permission of the House," the Attorney General said, To make an explanation with reference to the assertion of facts made by the Attorney General in the Debate on Friday night with which my name has been associated. With regard to the statement of the right hon. and learned Member for Bury (Sir Henry James) a series of accusations or innuendoes were made against myself by the right hon. Gentleman the Member for West Birmingham (Mr. Joseph Chamberlain) who stated that he would not enter into the arrangements that I had had with the Crown in connection with this case. I conceived, at any rate so far as I was concerned, though a mere Nationalist, that I was debarred from making any explanation whatever in reference to my conduct in that case. What is more, I bore for months and months a series of allegations such as that made against me the other night by the right hon. Gentleman the Member for West Birmingham, and bore them in silence; but now, as I understand, a gentleman who has received large fees from the Crown and who is in the expectation of a Judgeship if the present Opposition succeeds, is to be allowed to bring forward the facts in a case in which he was prosecuting counsel.

MR. J. CHAMBERLAIN (Birmingham, W.)

I—[Cries of "Order!"]


I am bound to say that there is no Question before the House. A Question of Order was raised, and I was asked to give an opinion upon it. I have done so.


I only rose to explain, in reference to the gratuitous remark of the hon. and learned Gentleman opposite, that in what I said on the occasion to which he refers I made absolutely no imputation whatever against him. I quoted the exact words which he had used on a certain occasion as proof of the fact that he was himself convinced of the guilt of certain persons.

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