HC Deb 01 August 1916 vol 85 cc90-8

(1) The Commissioners appointed under this Act (in this Act referred to as the Commissioners) shall have all such powers, rights, and privileges as are vested in the High Court or in any judge thereof, on the occasion of any action, in respect of the following matters:

  1. (a) The enforcing the attendance of witnesses and examining them on oath, affirmation, or otherwise, and the issue of a commission or a request to examine witnesses abroad; and
  2. (b) The compelling the production of documents; and
  3. (c) The punishing persons guilty of contempt;
and a summons signed by one or more of the Commissioners may be substituted for and shall be equivalent to any formal process capable of being issued in any action for enforcing the attendance of witnesses and compelling the production, of documents.

(2) A warrant of committal to prison issued for the purpose of enforcing the powers conferred by this Section shall be signed by one or more of the Commissioners, and shall specify the prison to which the offender is to be committed, but shall not authorise the imprisonment of an offender for a period exceeding three months.

(3) Any person may appear before the Commissioners by counsel or solicitor if authorised to do so by the Commissioners.

(4) The Commissioners may act notwithstanding any vacancy in their number, and three shall be a quorum.

Mr. CHAMBERLAIN

I beg to move to leave out Sub-section (3), and to insert instead thereof the following: (3) The Commissioners may authorise the representation before them of any person appearing to them to be interested by counsel, or solicitor, or otherwise, if they consider that any injustice would ensue if that person were not so represented. This is a subject which was discussed in Committee, and some difference of opinion was disclosed as to the best course to pursue, but, so far as I can recollect the opinion of the House, it was considered that it would certainly be undesirable, as a general thing, that anyone who appeared before the Committee should have a right to be heard by counsel or be represented by counsel. On the one hand, our object or desire was to restrict the use of counsel within the narrowest limits, in order to expedite the inquiry as much as possible, and to secure an early Report. On the other hand, it was urged that there might be cases in which, if representation by counsel were not allowed, real hardship might be done to a person if he were not represented by counsel. It might be that the person concerned was unable to be present, and that he ought to have somebody to watch for him; and the words I propose are in effect to embody the view, that the use of counsel should be restricted to exceptional cases, within the discretion of the Commission, and that the Commission should have the right to authorise any one person appearing before them to be represented by counsel, or solicitor, or otherwise, "if they consider that any injustice would ensue if that person were not so represented." The words "or otherwise" would cover the case of an officer preferring to be represented by an officer to being represented by counsel, and it would also cover the case raised by the hon. Member for Roxburghshire, a case which would not be covered by the use of the word "counsel."

Sir E. CARSON

I only rise to ask a question of my right hon. Friend, and that is as to whether counsel who are Members of this House will be able to appear before these Commissions, because, in my opinion, it is an improper thing for counsel who are Members of this House to appear before a Committee who are representative of this House, and where reports may come under discussion. I would like, if the right hon. Gentleman could give us an assurance, that counsel who are Members of this House will not be admitted.

Sir H. DALZIEL

I hope my right hon. Friend the Secretary of State for India will make it clear that that is so, and that the rule of the Select Committees of this House will govern this particular case, so that no counsel who is a Member of this House can appear before this House of Commons Committee, because it is really a House of Commons Committee. I submit that perhaps an expression of this view by the right hon. Gentleman will probably be sufficient. On a former occasion I referred to the "Titanic" Inquiry, before which a Member of this House appeared. The judges had permission to allocate certain sums, and I have no doubt that he thoroughly deserved all that was given to him, and that he did good service. But that is what we want to guard against. If every person interested were to be represented by counsel, the inquiry might go on for years. I am very glad my right hon. Friend has brought forward this Amendment, because I think it is an improvement on the original Sub-section in the Bill. The original Sub-section gave power to the Commissioners to allow anyone, if they thought proper, to be represented by a solicitor or counsel. The present proposal narrows that down, and says that people can only be represented at the inquiry "by counsel, or solicitor, or otherwise, if they consider that any injustice would ensue if that person were not so represented." I should like the Solicitor-General to give me his attention for a moment. As I understand now, it is the intention that counsel or solicitors shall only appear before the tribunal if the Commissioners consider, as the Subsection says, "injustice would be done." I think that we should provide for a case like that of General Townshend, who cannot be present; and if a statement were made by the Secretary for India in the course of this Debate as to the limitations upon allowing persons to be represented, it would almost meet the case. Certainly this is a great improvement on the original Sub-section.

Mr. HUME-WILLIAMS

I beg to move, as an Amendment to the proposed Amendment, to leave out the words "or otherwise, if they consider that any injustice would ensue if that person were not so represented."

In other words, I seek to practically reinstate the Sub-section as it was, and I should like the House to understand that I do not, in this instance, seek to speak on behalf of a very much misunderstood class. I am seeking, if I can, to do what appears to me, rightly or wrongly, to be in the interests of those who are accused, and whose, reputations are in jeopardy. I agree that there should not be a free power to everybody whose conduct is in question to be represented by counsel before the inquiry, for that would cause prolongation of the proceedings and possibly chaos. There was in the Sub-section a discretion in the Commissioners to determine whether or not they would grant leave to any persons who desired that they should be so represented. But now the Government has denned the reason, and the sole reason, for which leave can be given by the tribunal, and it is with that I quarrel; because what is to happen now is this, that although a man's whole reputation is at stake, and his whole career may be injured, the Commissioners are to have no power to give him leave to be represented by counsel unless they think "any injustice would ensue if that person were not so represented." What does that mean? The Commissioners may say, "We are here to do justice, and, whether this gentleman is represented or not, justice he will get." Who is to determine whether or not justice or injustice will be done, and whether a person's reputation may not be jeopardised through that person being unrepresented? When is the application to be made? If the application is to precede the calling of the witness, who is to tell, in the case where the accused person is absent, whether or not injustice will be caused by denying him representation? I urge, in the interests of brevity as much as anything else, that the Commissioners should have the right to give leave in cases where they think fit. Surely you can trust them.

6.0 P.M.

There is a reason, and a strong reason, why, in some instances, leave should be given. Upon this tribunal there is nobody of any judicial experience whatever. Take the ordinary rules of evidence. Those rules are mainly founded on common sense, and are framed in the interests of the accused. There is the rule, for instance, which provides that you cannot rely on hearsay evidence. Surely that is a reasonable rule to be enforced in these times. It is really becoming a perpetual practice now to suggest that if you have a trained advocate appearing before a tribunal you will, for that reason, prolong the proceedings. It is just the contrary. The expert advocate, to be successful, must be brief; if he is not brief he cannot be successful. If you have a trained advocate you have someone who, on behalf of the accused person, can test the evidence which is given before the tribunal, and ensure that it shall be given according to the ordinary common-sense rules which obtain all over the world in our Courts. I do appeal to the right hon. Gentleman not to put in these-words, as they would be an undue fettering of the discretion of the Commissioners. Let the Commissioners give or refuse leave as they think fit when they have heard, heard, if needs be, an outline of the case. To say that they should come to the conclusion that they themselves cannot do justice unless a legal advocate is employed is an undue restriction of their power. There would, I suggest, be ample protection for the brevity and clearness of the proceedings if you left in them a discretion, which they can be trusted to use, with a due view to the shortness of the proceedings.

Sir G. GREENWOOD

I beg to second the Amendment to the proposed Amendment.

It is so many years since I practised that I hope that the stigma of being a lawyer hardly attaches to me. I believe the rule has always been that a Commission has power to settle its own procedure, and that it is left to them to say whether or not parties shall be represented. The Vivisection Commission, for instance, would not allow any counsel to appear before them. I cannot see in this particular instance why discretion should not be left to the Commission to-day.

Question, "That Sub-section (3) stand part of the Bill," put, and negatived.

Question proposed, "That the words proposed to be left out stand part of the proposed Amendment."

Mr. CHAMBERLAIN

What the hon. and learned Gentleman proposes would restore the words we have just struck out and make the Statute exactly what is was.

Mr. MALCOLM

In the words struck out you left the initiative to the person affected to seek representation, whilst in this proposal the initiative is left to the Commissioners.

Mr. HUME-WILLIAMS

May I also point out that the new Sub-section extends the privilege of appearance to people who are not counsel or lawyers at all, whilst the original Sub-section confined it to counsel?

Mr. SPEAKER

There is a very fine distinction.

Mr. CHAMBERLAIN

I put down these words to meet what I deemed to be the general sense of the House. The House is very seldom unanimous, but anybody who sat through the discussion saw that from the beginning it was in favour of the possible admission of counsel in particular and rare cases and against anything like a general appearance of counsel before the Commission. I think these words will secure that result and on the lines desired by the House, and I must ask the House, therefore, to adhere to them. If the House had intended to do otherwise there is no reason for striking out the words which already appeared in the Bill. My right hon. Friend the Member for Trinity College (Sir E. Carson) raised a question which I think is rather difficult to deal with. I am not sure that I ought to argue it at this point. Perhaps I may just say on the question whether Members of this House should appear before a Commission of this kind, largely composed of Members of the House and reporting to the House, I do not think there is anything that I can say that can have any authority, but I must say I share the view expressed by the right hon. and learned Gentleman (Sir E. Carson) that Members of the House should not appear before Commissions of this kind, and if counsel are required they should be chosen elsewhere. This is not a matter which we could specifically provide for in the Bill, and it is not one on which I could possibly speak with authority.

Sir J. D. REES

I am very satisfied with the Clause as proposed. My hon. and learned Friend (Mr. Hume-Williams) said that there was nobody on the Commission accustomed to the laws of evidence. I notice that there are the hon. Members for Edinburgh West (Mr. Clyde) and for Pembroke (Mr. Roch), who are both barristers of law, as is also, I think, the Member for Galway (Captain Gwynn), and I can hardly imagine that Lord Cromer and Lord George Hamilton are not familiar with the rules of evidence. My hon. and learned Friend also said that the presence of counsel would not prolong the proceedings because counsel, to be successful, had to be brief. I think what he meant was that counsel, to be successful, must be briefed.

Mr. HAZLETON

I would like to point out that a case of this kind is not like the "Titanic" inquiry. Counsel who appear before these Commissions will, I presume, be paid for by the people who engage them, and not out of public funds.

Amendment to the proposed Amendment, by leave, withdrawn.

Proposed words there inserted in the Bill.

Mr. CHAMBERLAIN

I beg to move, at the end of Sub-section (4), to insert the words "but the Commissioners may delegate to two or more of their number their powers of holding sittings for the purpose of making inquiries and taking evidence abroad, and any powers in relation thereto."

Colonel YATE

Would the right hon. Gentleman consent to make the number three instead of two?

Mr. CHAMBERLAIN

I have no objection, if the House wishes.

Colonel YATE

I beg to move, as an Amendment to the proposed Amendment, to leave out the word "two," and to insert instead thereof the word "three."

Sir J. D. REES

I beg to second the Amendment to the proposed Amendment, though I do not think it matters so long as two or three are gathered together.

Sir G. TOULMIN

I think it might possibly be convenient that the Commissioners should have power to send two members on certain occasions. If they want to send more they are able to do so under the provisions of the proposed Amendment. I do not see the necessity for making it necessary that they should send three.

Mr. MALCOLM

Does the right hon. Gentleman cling to the word "abroad"? It might be convenient to delegate another occasion.

Mr. SPEAKER

We are on the question as to whether "two" should stand part of the proposed Amendment.

Sir H. DALZIEL

The words "two or more" are surely sufficient, and it is better to leave the Amendment as it stands. I am glad that the Amendment has been proposed.

Mr. HUME-WILLIAMS

I think two or more is really preferable to three, since if you put in that number you are tied down to it.

Mr. CHAMBERLAIN

I think the sense of the House is obviously in favour of retaining the Amendment as proposed.

Colonel YATE

The reason I proposed the Amendment is that we have now got eight members on the Commission, and I thought it was advisable that there should be a minimum of three as delegate of sittings.

Amendment to the proposed Amendment negatived.

Mr. HAZLETON

I take it that at the sittings abroad they will have all the powers of the Commission. In Committee I moved an Amendment which the right hon. Gentleman accepted with regard to recording evidence. I want to be sure if two or more members go to Mesopotamia or any other place that that Clause will apply, and that when the Reports of these Commissions are presented we shall have not only the evidence given before the full Commission but also that given before the delegated authority. I would like from the right hon. Gentleman an assurance about the powers of these Commissioners to whom the work may be delegated.

The SOLICITOR-GENERAL (Sir G. Cave)

The powers given to the Commission to delegate their power to take evidence and any power in relation thereto will give to delegates from their membership full power to summon evidence and all the other powers of the kind. As regards the second point, there is not the least doubt that the provision would apply to the delegates.

Mr. MALCOLM

Does the right hon. Gentleman think that it is essential to put in the word "abroad."

Mr. CHAMBERLAIN

Oh, yes.

Mr. MALCOLM

The reason I ask is this, that it might expedite matters a little bit if the Commission could divide up into two or three bodies and allocate to two more of its members certain work in connection with the inquiry, while the others got on with other matters. If it were not for the word "abroad" it would be possible for the Commission to so divide up and to do two things at the same time.

Mr. CHAMBERLAIN

I conceive that the House desires that the Commission should act as a whole. At the same time, there is the desire that the Commission should have power to delegate full powers to a portion of its members to conduct inquiries for it, and that it should not be necessary for the whole Commission to go to Mesopotamia or India for inquiries there. The effect of the hon. Member's proposal would be that the Commission would break up into a series of bodies. I should be very sorry to see that. I think it ought to take evidence as a Commission and not as a series of Sub-Commissions.

Amendment agreed to.