CLASS III. (Hansard, 9 March 1905)

§ MR. WHITLEY (Halifax)
, said that the first item of this Vote, BB., was £3,500 which it was stated, in a note on the Paper, was a sum for the repayment of the expenses of the prosecution of Whitaker Wright, in addition to £2,000 already voted, making in all a total of £5,500 required for that purpose. He did not know what arrangement had been made by the Government with the gentleman who undertook the prosecution, but what he did remember was that the Attorney-General was frequently pressed in the House to undertake that prosecution and that the hon. and learned Gentleman stated that, in his opinion, it was not a case likely to prove successful. Therefore it had been left to private individuals, on their own initiative, to bring the case into the Courts of justice. When it was remembered that the Attorney-General received a salary of £7,000, and in addition fees to the amount of £12,921, he thought it was a pity that they should be called upon to pay £5,500 for legal proceedings which ought to have been undertaken by the law officers of the Crown. In order to make a protest against the way in which this matter had been mismanaged he moved to reduce the item by £1,000.

§ THE ATTORNEY - GENERAL (Sir ROBERT FINLAY, Inverness Burghs)
said it was rather more than a year since he had the opportunity, in the debate on the Address, of stating very fully the grounds on which he came to the conclusion, after taking the best advice and after full consideration of all the circumstances, that this prosecution should not be undertaken by the Director of Public Prosecutions. The hon. Gentleman had said it might be a question whether these costs should be paid in view of the fact that the Director of Public Prosecutions ought to have undertaken the prosecution. Might he point out that a large part of these costs would have been incurred even if the Director of Public Prosecutions had undertaken the prosecution? The only difference would have been that the fees for counsel, instead of going into the pockets of the gentlemen who did conduct the prosecution, would have gone into the pockets of those very much underpaid officials, the law officers of the Crown. [OPPOSITION cries of "Oh!"] Under these circumstances, he hoped the hon. Gentleman would not object to the Vote after the order made by the Judge, so that the costs of the prosecution, which would be fully taxed, should not fall on the shoulders of private individuals.

§ MR. J. H. LEWIS (Flint Boroughs)
said that the Committee were thoroughly dissatisfied with this wretched business; and he hoped his hon. friend would take a division. As to the Attorney-General being underpaid, many eminent lawyers would be glad to do the work for less.

§ MR. FLYNN (Cork, N.)
said he thought a public apology was due from the Attorney-General, and also that other legal luminary, the Solicitor-General.

§ THE SOLICITOR - GENERAL (Sir EDWARD CARSON, Dublin University)
said he had nothing to apologise for.

§ MR. FLYNN
said although the Solicitor-General might not apologise, he would have heard a great deal more of the case if Gentlemen above the gangway had discharged the duty of criticising the Government which primarily devolved on them. It was all very well for officials to talk in a tone of levity with regard to their fees; but their enormous salaries were no laughing matter for the taxpayers. It was a, public scandal that the right hon. Gentleman had no explanation to offer the Committee for an obvious failure in his official duties. But for the public spirit of private individuals this infamous scandal would not have been exposed. This prince of swindlers blasted the career of one of the most brilliant Irishmen of his generation, whose latter days were shaded and darkened by the misery brought upon him. Yet, apparently, the legal luminaries on the Treasury bench were unable to prosecute him; and he hoped that a division would be taken as a protest against the manner in which they discharged their duties. In times like the present, with a shilling income-tax and extra duties on tea and sugar, it was no light matter to be paying enormous salaries to the law officers. He charged Gentlemen above the gangway, with a few honourable exceptions, with an absolute abandonment of their duty as critics of the Government, which they said should be turned out.

§ MR. SOARES (Devonshire, Barnstaple)
said that the Attorney-General stated that he decided not to prosecute Whitaker Wright after taking the best advice he possibly could. To whom did the right hon. Gentleman apply for advice?

§ SIR ROBERT FINLAY
said the responsibility for every decision rested with him alone; but he had the opportunity of consulting with and discussing these matters with the Director of Public Prosecutions, the experienced gentlemen who acted for the Treasury, and, above all, the Solicitor-General.

§ MR. T. W. RUSSELL (Tyrone, S.)
said that the Solicitor-General stated in the House that it would be impossible, in his opinion, to prosecute Whitaker Wright successfully.

§ SIR EDWARD CARSON
said what he stated was that in his opinion the evidence did not bring Whitaker Wright within the statute.

§ MR. T. W. RUSSELL
said the expression of the right hon. Gentleman was that under the existing law it would be impossible to prosecute Whitaker Wright. That duty then involved on private individuals, and he desired to know whether they would be recompensed for performing a duty which ought to have been performed by the law officers, or whether these men would be ruined.

§ SIR ROBERT FINLAY
said the costs of the prosecution would be taxed and would then be paid out of the money voted by the House.

§ MR. LABOUCHERE (Northampton)
said it was important to know who would pay the costs beyond the taxed costs, which would probably be very considerable. The Attorney-General stated that he had consulted the Public Prosecutor. Was not the reason why the Public Prosecutor was so very slow in advising prosecutions owing to the fact that he was treated almost as a criminal by the Treasury if he did not obtain a verdict?

§ SIR EDWARD CARSON
We are all treated as criminals. I do not mind in the least.

§ MR. LABOUCHERE
said any man would be criminal on £20,000 a year. He would suggest that the Treasury should not take the line to which he referred. They could never be sure of a verdict; he knew that from his own experience, and had suffered for it. The Treasury should accept the fact that they might lose: and if they did, they should not complain about it. In regard to companies, it was very essential in the public interest that the law officers should prosecute when they thought there was a fair case. In most companies many of the shareholders were poor, and would not incur the risk of a prosecution. That was the reason why the Treasury should prosecute, and not object when they did 1029 not get a verdict. A few years ago there was a change in the manner in which the law officers were paid. They were then told that the new method would be cheaper. He would ask the Attorney-General whether, taking year in and year out, that had been the case.

*THE CHAIRMAN
That does not arise on this Vote.

§ MR. JOHN O'CONNOR (Kildare, N.)
said he would not have intervened in the discussion were it not for the highhanded manner in which the Solicitor-General had treated the Committee. He had nothing but praise and admiration for the manner in which the Committee had been treated by the Attorney-General; and for his support of an Estimate for an amount of money which was rightly to be refunded to those who, at the risk of the remnant of their property, determined to see justice done. He was present in Court when the application was made by the hon. and learned Member for Reading and when Mr. Justice Buckley gave his decision. Previous to that learned decision of that very learned Judge he had read with amazement, because he had some knowledge of similar proceedings in another remarkable case, the statement of the Solicitor-General. He read that statement in the light of his knowledge of the Larceny Act, under which the prosecution was eventually brought; and he thought, in his humble judgment, that the conclusion of the right hon. Gentleman was not correct. When he, listened to the decision of Mr. Justice Buckley, with all the respect due to any utterance from such a learned source, he could not help thinking that the judgment was given with a view of letting down the law officers of the Crown as lightly as possible, while at the same time it maintained the public rights that were at stake and which ought to have been asserted by the law officers. To oppose the Vote would be an illogical proceeding; but he thought that the Committee was entitled, if not to an apology from the Solicitor-General, at least to an explanation. The right hon. Gentleman ought to demean himself respectfully to the Committee. Other men as good as he had made 1030 mistakes in their professional career; they were all prone to make mistakes; and he did not think it would detract from the dignity of the right hon. Gentleman's position, which he so worthily and brilliantly filled, if he made an explanation in respect of this prosecution.

§ MR. DALZIEL (Kirkcaldy Burghs)
said if he interpreted the view of the Committee accurately it was their desire, if possible, to bury this unfortunate and wretched business. So far as Whitaker Wright was personally concerned, he had paid the penalty with his life; and he thought the matter might be allowed to rest as far as he was concerned. A very important point was, however, raised by this proposal. He thought the Committee were unanimous in their sympathy with those who instituted the proceedings; but the point which he wished to bring before the Committee was the importance of the precedent they were setting if they passed this Vote. Was it to be the case in future that any private individual could institute a prosecution and rely on the Treasury to pay his expenses if he were successful? That was really the point raised by the Vote. He wished to know what there was in the Whitaker Wright prosecution that induced the Treasury to pay the expenses of the private prosecutors. There were, in his opinion, only two explanations. The first and obvious one was that the Treasury admitted that the law officers had made a mistake in not undertaking responsibility for the prosecution. So far as he was concerned, he did not profess to be able to judge whether the law officers were right in their action or not. He did not know what evidence they had before them; but he did not think that anyone would suggest that they were actuated by any private considerations. He had no doubt that their decision was arrived at dispassionately. The important point, however, was why the Treasury sanctioned this Vote. Surely it was not because the prosecution was successful. Had it failed, would there have been a Vote before the Committee for the expenses? He ventured to say that the Committee would have laughed at any such proposal, and that the law officers or the Treasury would never 1031 have consented to pay the expenses of a private prosecution had it been unsuccessful. Therefore, the Committee ought to be given some explanation. The obvious interpretation was that the law officers admitted that they had made a mistake. Otherwise, it was a Vote given entirely because of sympathy with the public feeling which was created by the unfortunate crash caused by the Whitaker Wright collapse. He did not object to the money being given to these private prosecutors; but they would be establishing a precedent which would have a far-reaching effect. How were they going to distinguish between cases of this kind? In future, according to this precedent, it would be open to form a private prosecution committee, and to prosecute any person, and if the prosecution were successful they would have a claim on the Treasury. If that were not the case, why was this particular instance singled out from all similar prosecutions.

§ MR. JOSEPH DEVLIN (Kilkenny, N.)
said that he had no desire to rake up the evil memories associated with Whitaker Wright; but during his short experience in the House he had never listened to a more cavalier answer given by a Minister than that which they had heard from the Solicitor-General. He told the House he would not apologise for what everyone admitted was a gross dereliction of duty.

§ SIR EDWARD CARSON
If I had been guilty of any dereliction of duty, I most certainly should not only have apologised, but should not have continued to hold my office. I exercised my judgment honestly according to the best of my ability, and that is all any law officer can do.

§ MR. JOSEPH DEVLIN
said the right hon. Gentleman was the only Minister who had sat on the Treasury Bench who would resign for a dereliction of duty. He was delighted that one of his own countrymen was the first to recognise the position. The right hon. Gentleman was not only a law officer of the Crown; he had been the chief apostle in the campaign of slander against Sir Antony MacDonnell, and in fomenting opposition to one of his own colleagues in the Cabinet.

*THE CHAIRMAN
This is not in order.

§ MR. JOSEPH DEVLIN
said he only gave it as a reason why the right hon. Gentleman had not time to examine into the Whitaker Wright case. He accepted the ruling of the Chair, and recognised that even if that were the reason, he had no right to discuss it. As one of his hon. friends pointed out, the law officers were placed in a position to enable them to give all their time to the legal business of the Government, and apply their master minds to cases which concerned millions of money belonging to the people of this country. Here was a case where millions of money were swindled away, but the right hon. Gentleman airily passed the case aside until a Judge on the bench had to tell him what his duty was. Some philanthropists on that side of the House stated that the Vote should pass because private individuals should riot be put to the expense of this prosecution. The law officers had, however, salaries amounting to £32,100; they must admit that they had made a mistake; and he would suggest to them that they should pay the costs out of their salaries, and, in that way, relieve the public from expenditure entirely incurred through their ignorance. He was inclined at first to think that it was a sense of chivalry of a high constitutional lawyer that inspired the mind of the Solicitor-General. Then he remembered that the right hon. Gentleman was a coercion prosecutor in. Ireland, and that he prosecuted Members of Parliament and sent them to prison. He could not, therefore, understand why the right hon. Gentleman had displayed so much squeamishness in connection with the Whitaker Wright prosecution. He did not suppose, however, that his suggestion would be accepted, especially in view of the fact that the salaries were not likely to last long.

§ THE FINANCIAL SECRETARY OF THE TREASURY (Mr. VICTOR CAVENDISH, Derbyshire, W.)
said the Treasury had already paid a sum, though perhaps not a very large sum, in addition to the taxed costs to the persons responsible for the prosecution. As to the reasons why the prosecution was not undertaken by the Attorney-General, the matter had been fully dealt with on a previous occasion, and he had nothing to add to what was then said.

§ MR. DALZIEL
said that possibly the hon. Gentleman did not hear the point he raised. What he wanted was an answer to the question what were the considerations which induced the Treasury to depart in this case from their well-established rule that they should not pay the costs in a private prosecution. Was it because the Treasury were convinced that a mistake had been made by the law officers? Or was it because of the public interest which had been created? If it was for neither of those reasons, was it because the Treasury had so much money at their disposal that they thought they might pay these costs out of their own funds? This was a Treasury matter, and he thought the Committee were entitled to a full explanation from the representative of the Treasury, who doubtless had the whole of the facts at his finger ends.

§ MR. VICTOR CAVENDISH
said his learned friend the Attorney-General had already fully stated the reasons why he had advised the Treasury to pay the costs, and it was on that advice that the Treasury had acted.

§ SIR ROBERT FINLAY
said the Committee would recollect that this case was the subject of a great deal of consideration in February of last year. The precise point which he had to determine was whether the prosecution should be undertaken in the name of the Director of Public Prosecutions. The Solicitor-General was in no sense responsible for the decision which had been come to on that point. The responsibility rested with him, and with him alone. But it seemed to be the general desire of the House, when the matter was under discussion a year ago, that the costs of this private prosecution should be borne by the Treasury, and therefore the Treasury, with his full concurrence, decided to pay the costs. In these circumstances he submitted it would be a little hard were the Committee now to go back upon their decision.

§ MR. WINSTON CHURCHILL (Oldham)
said there must be a great many other cases similar to this though they were not so well known. They wished to know on what particular ground this case 1034 was differentiated from other similar cases. There must be some rule or definite principle laid down to justify a departure from well - established precedent, and his hon. friend desired to know what that rule or principle was.

§ *SIR ALBERT ROLLIT (Islington, S.)
said he was one of those who, when this matter of Whitaker Wright's prosecution was first under discussion, ventured to differ from the opinion expressed by the Attorney and Solicitor-General. There was no question whatever of any dereliction of duty, but he thought the law officers attached too much importance to one principle in their examination of the case, and in their view of the duty of the Public Prosecutor—and that was that there should be, as he understood them to say, some certainty of conviction. He very much questioned that as a principle in the administration of the criminal law at all; in a criminal prosecution the objective ought not to be victory, but truth. The first step in such proceedings would be a magisterial investigation, and if it was then found that an ultimate conviction was improbable there might not be a committal for trial, or the proceedings need not be continued. The fear of a public investigation was a deterrent influence, and one chief object of the appointment of the Public Prosecutor. In this case such an investigation was, in any event, as he had said at the time, fortifying his opinion by references to the statutes under which Wright was ultimately convicted, absolutely necessary, and he was glad the result had been to assert the rights and vindicate the wrongs of many people who had been greatly injured. He thought the law officers had given very proper advice in suggesting the payment of full costs to those who had undertaken the risk and responsibility of instituting the prosecution, with the authority of the learned Judge who authorised it, by which means justice was done and the law vindicated.

§ MR. SWIFT MACNEILL (Donegal, S.)
congratulated the hon. Member for South Islington on having proved himself a better and greater lawyer than either of the law officers of the Crown. In this matter the House of Commons had not 1035 been treated fairly or even respectfully. In 1903 an Amendment to the Address was moved by the hon. Member for South Molton calling attention to this case, and the Government escaped defeat by the skin of their teeth only on the solemn pledge of the Prime Minister that he would introduce legislation to remedy the alleged defect in the law. Down to the present time no remedial legislation whatever had been brought forward. As a matter of fact it was unnecessary, as Mr. Whitaker Wright was prosecuted and convicted under the existing law. In both 1903 and 1904 the "guillotine" was so worked as to prevent discussion on the salaries of the law officers, and thus to silence the House of Commons in regard to their action in the matter. In 1904 an Amendment was again put down to the Address, but before it could be moved some of the respectabilities above the gangway on the Opposition side of the House asked a question in reply to which the Attorney-General made an ex parte statement on which he could not be cross-examined. Why was there a "put up" Question and Answer to prevent discussion? Seeing that the Prime Minister promised legislation to deal with the matter, he thought the right hon. Gentleman's absence on the present occasion most questionable.

§ MR. McKENNA (Monmouthshire, N.)
said the House ought to have a plain Answer to the Question upon what grounds the Treasury abandoned their established practice of refusing to pay for a private prosecution. The Attorney-General had referred to a general feeling in the House. A general feeling to do what? Not to pay the costs of a private prosecution, but for the Treasury themselves to prosecute, and that general desire was resisted 1036 by the hon. and learned Gentleman. If the Attorney-General blundered, he should say so frankly. The Committee wanted a clear explanation from the representative of the Treasury, and in order to give the Secretary to the Treasury time to consult the Treasury records on the subject he moved to report Progress.

§ MR. VICTOR CAVENDISH
said he had already answered the Question. The Attorney-General did not think in the first place that the case was one which ought to be prosecuted, but subsequently a very strong feeling was expressed that the Government ought to have taken up the prosecution, and the Treasury thought they were only doing what was fair and proper in the circumstances in paying the costs of the prosecution. There was nothing behind the decision.

§ MR. T. P. O'CONNOR (Liverpool, Scotland)
expressed his surprise that the Motion to report Progress had not been accepted by the Government. Very strong feeling had been aroused in the country over the failure of the Government to prosecute, and the matter could lot be fully discussed in the short time which had been allotted to it.

§ MR. VICTOR CAVENDISH (interposing)
said he would have no objection to agree to the Motion, but he hoped the Treasury would be allowed to take the Vote without prolonged discussion on a subsequent occasion.

§ MR. J. A. PEASE (Essex, Saffron Walden)
said the hon. Gentleman must understand that no condition was made on the Opposition side of the House with regard to the length of the debate.