HC Deb 22 June 1905 vol 147 cc1341-8
SIR ROBERT REID (Dumfries Burghs)

I beg to ask the Attorney-General whether a Royal Commission, in whatever terms it may be appointed, is entitled to require a witness to be sworn, unless a special Act of Parliament bestows upon it that power; whether a witness summoned before such a Royal Commission may, at his pleasure, refuse to attend or to be sworn, or to produce documents; and whether there is any case of a witness who has consented to be sworn, and has given false testimony before such a Commission, being indicted for perjury.

LORD EDMUND FITZMAURICE (Wiltshire, Cricklade)

At the same time I will ask Mr. Attorney-General, with reference to the proposed Royal Commission on the Sale of Stores in South Africa, if a Royal Commission has power to enforce the attendance of witnesses and examine them on oath, to compel the production of documents, to punish persons guilty of contempt, or to issue a Commission to examine witnesses abroad, seeing that it is laid down in Coke's Institutes that a new oath cannot be imposed on any subject without the express authority of Parliament, and that the giving of every such oath must be warranted by Act of Parliament, or by common law time out of mind.


A Royal Commission cannot without statutory authority compel a witness to be sworn, nor can it Without such authority compel the attendance of witnesses or the production of documents. For the purpose of such compulsory powers a statute would be necessary, as the Prime Minister stated yesterday. I am not aware that any case has arisen in which a prosecution has been instituted in respect of evidence given before such a Commission. I may remind my hon. and learned friend and the noble Lord, that the suggestion made yesterday by the Prime Minister was that the precedent of 1886 should be followed. In that case the Royal Commission contained a clause giving power to administer an oath, but it was stated that if the Commissioners should desire further powers they were to apply to the Government to give them. As a matter of fact, however, the work of the Commission was completed without its being found necessary for it to apply for any such statutory powers. I may add that in practice the difficulties apprehended as to the working of Royal Commissions have not been found to exist.


May I ask whether, in the view of the hon. and learned Gentleman, a prosecution would lie supposing a witness was sworn and answered falsely.


I may remind the hon. and learned Member that technically there could not be a prosecution for perjury, as that would relate to a judicial proceeding. In such a case the prosecution would be for the common law disdemeanour of giving a false answer in an inquiry of a public nature.


The Answer of the Attorney-General does not cover the point I put with regard to the power of the Commission to issue a sub-Commission to examine witnesses abroad.


Of course a Royal Commission would have power to send out persons to make inquiry in South Africa and to receive reports. It would not have power to issue a Commission in the sense in which the term is used in a Court which sends out persons to administer oaths and take evidence. They would not have that power, but they would have power to make every inquiry.


Am I to understand that the Attorney-General is of opinion that the taking of an oath and the answering of a question untruly is a common law offence in England?


If such a prosecution were instituted, it would be perfectly open to the defendant to contend, as I understand is contended by hon. and learned friends of mine, that the Crown has not power to authorise the administration of the oath. In 1842 Lord Campbell, in a report on the procedure of a Commissioner who examined a witness without administering the oath, said he thought the point a doubtful one whether, without a statute, an oath could be administered. But since he made that statement in 1842 we have had four cases under different Governments in which a clause has been inserted in the Commission empowering the administering of an oath, and I do not think any one who has regard to the importance of practice in affording us guidance for our procedure in these matters can ignore that in 1860, 1862, 1867, and 1886 a clause to that effect was inserted.


Is it not the case that since these precedents there have been at least two instances in which Parliament itself has expressly by Act given the power to administer the oath?


I think the hon. and learned Member overlooks the fact that for the purpose of giving com- pulsory powers a statute is necessary. [OPPOSITION cheers.] I am merely stating what was stated by the Prime Minister yesterday. The hon. and learned Member's Question seemed to be directed to the question of the power of administering the oath.

MAJOR SEELY (Isle of Wight)

May I ask a Question of which I gave notice last night, viz., whether, in view of the peculiar circumstances of this case, and considering the fact that if this Royal Commission be appointed, although the attendance of officers might be compelled through the power the Government has over them, any one likely to be indicted for fraud who is not an officer could obviously not be compelled to attend, the Attorney-General will consider the desirability of advising the Government to proceed by statute, as otherwise the proceeding may be entirely farcical.


I would appeal to the Prime Minister to tell us whether he will not say at once, in view of all that has been disclosed by the discussion of this subject, affecting a most important matter, whether the Government still adhere to the intention of not having a statutory Commission, what harm would be done by a statutory Commission, and why that obvious course of having a complete inquiry is to be neglected.


The right hon. Gentleman is wrong in his facts. So far from having said we would not have the aid of a statutory Commission, we have distinctly and over and over again stated that if, when the Commission is at work, the necessity for a Commission with statutory powers should be made clear, we should of course grant one—

MR. MACVEAGH (interrupting)

What would happen if the necessity arose in the recess?


Order, order! The right hon. Gentleman has been asked a Question, and is entitled to complete his reply.


So far I have confined myself to correcting what was no doubt a slip. The right hon. Gentleman then asks me whether we have any objection to appointing a statutory Commission. The suggestion I made yesterday was based upon a precedent to which the right hon. Gentleman was a concurring party. It was based upon a precedent which dealt with matters in pari materia to those we are now discussing. It therefore seemed to me that we could not go far wrong if we followed a precedent having this authority behind it. But we have no objection to the statutory powers. The clauses necessary to give these powers are common form; and if the hon. and learned Gentleman opposite, who initiated this conversation, were to consult with my learned friend near me I am sure they would arrive at a conclusion as to the clauses which ought to be introduced into the Bill. That Bill, I presume, would be uncontroversial. I should introduce it and treat it as an uncontroversial Bill. I am confident no opposition will be given to it on this side, and if opposition is given to it on the other side, the responsibility will rest there. As I am on my legs, I may perhaps ask, with regard to this Commission, whether I am to take the Question put to me by the hon. and learned Gentleman the Member for Longford as indicating, in the view of the Opposition generally, that the reference should be so drawn as to enable the investigation to deal with the action, not only of the subordinate officers of the Government, but of the Government itself. Is that the desire?

After a pause.


asked whether the members of the Commission would be nominated by His Majesty's Government?


I do not know whether I can get any guidance from that Question. I should be glad of any guidance from the right hon. Gentleman opposite.


The right hon. Gentleman need not be too particular in demanding guidance from this side of the House, seeing that he has himself twice changed his plans. But let me ask him, do we understand, notwithstanding all that has been said—even to-day—that the right hon. Gentleman proposes to introduce a Bill constituting a statutory Commission for this inquiry? Then may I further ask whether the names of the Commissioners will be included in that Bill as usual? When the right hon. Gentleman asks me whether on this side of the House the Bill will be treated as a non-controversial measure, my reply is that, of course, in its main purpose the Bill will be non controversial; but it is impossible to say, until we see the terms of reference and the names of the Commissioners, if that applies to every detail. Upon these we must leave ourselves open to take such course as we may consider necessary under the circumstances. But saving these sub-points, upon which we may properly claim some reserve—and everyone in the House will admit it to be a proper reservation—saving these we shall do our best to expedite the passage of the Bill.


I do not quite comprehend the first part of the right hon. Gentleman's observations. I have done my best to meet the views expressed. I do not know why the right hon. Gentleman should make that a matter of reproach. I made a suggestion yesterday, and it does not appear to meet the views of hon. and right hon. Gentlemen opposite. I have now, I hope to their satisfaction, told them that I am willing to agree to the appointment of a statutory Commission. An hon. Gentleman opposite asks me whether it is proposed to go on with the Commission at once, and I have to say that I will not be a party to any dilatory action. I propose also to introduce concurrently and independently a Bill giving the necessary powers to the Commission. I gather from what he has said that the right hon. Gentleman is not prepared to pledge himself and his friends to allow the Bill to pass, as it ought to be passed, sub silentio, unless he is satisfied with the reference. ["And the names?"] As to the names I do not ask his assistance, but as to the terms of reference I ask the right hon. Gentleman, does he desire that the reference shall include review of the action of the Government and the higher officials or does he not?


Well, that is a point upon which it would be very convenient that my hon. and learned friend the Member for Dumfries should, as has been suggested by the right hon. Gentleman himself, confer with the Attorney-General, the corresponding legal authority on that bench.


Great as is the admiration and regard I have for the hon. and learned Gentleman opposite, I do not propose to ask him to confer with my hon. and learned friend near me on a question of policy; the conference I had in mind had reference to drafting arrangements. The question of policy there is, I presume, no wish to delegate to my learned friend.


Will not the answer largely depend on the result of researches which, in an Answer given to me this afternoon, I was told had not been made? I asked whether there was any precedent for an inquiry by Commission into the action of the Administration itself having been made with the concurrence of Parliament.


May I ask, do we clearly understand—the words of the Prime Minister were not distinctly heard in this part of the House—did the right hon. Gentleman ask if we wished the action of the Government and of higher officials to be included in the inquiry?




Is he aware that the Government are already pledged to an inquiry that will cover the responsibility of higher officials? An Answer from the Secretary of State for War said that responsibility attached to the general officer commanding, but that the actual nature of the responsibility would be ascertained by further inquiry.


Well, then, I restrict my Question and exclude any reference to officials who are not members of the Government; and the Question I put is whether the right hon. Gentleman considers it desirable that the conduct of the Government should form part of the subject of inquiry by Commission?

MR. JOHN O'CONNOR (Kildare, N.)

I desire to ask if the right hon. Gentleman is aware that the Bill creating the Parnell Commission contained the names of the Commissioners; that the House was asked to allow the Bill to pass sub silentio; that the request was not assented to by Mr. Parnell, who claimed the right to discuss the Bill and to propose Amendments, and that the Bill was discussed and Amendments were proposed and accepted by the Government?


Yes, I remember the circumstances. No doubt Mr. Parnell, as the person into whose conduct the inquiry was directed, did claim that right. Nobody on this bench is going to claim such a right.