HC Deb 27 July 1916 vol 84 cc1953-60

(1) A person examined as a witness by the Commissioners shall not be excused from answering any question put to him, or from producing any document, on the ground that the answer thereto or production thereof may criminate or tend to criminate him.

(2) Every person examined as a witness who, in the opinion of the Commissioners, makes a full and true disclosure touching all the matters in respect of which he is examined, shall be entitled to receive a certificate signed by the Commissioners, stating that the witness has, on his examination, made a full and true disclosure as aforesaid.

(3) If any criminal proceeding (including a proceeding by court-martial) is at any time thereafter instituted against any such witness, in respect of any matter touching which he has been so examined, the Court having cognisance of the case shall, on his application, and on proof of the certificate, stay the proceeding.

(4) Nothing in this Section shall apply to the case of proceedings for having given false evidence before the Commissioners, or of having procured, or attempted or conspired to procure, the giving of such evidence.


I beg to move to leave out Sub-section (1). This and a subsequent Amendment I have put down because I think the Clause, as drafted, goes a good deal beyond what we understood were the intentions of the Government. The intention was to protect witnesses who give satisfactory evidence before the Commissioners front any proceedings which are taken afterwards in the way of victimisation—because they have incriminated somebody else or done something of the sort. But if the wording of Subsection (2) be studied it will be seen that an explanation is needed. It seems to me that we require serious alterations in the Bill. Sub-section (3) says:

"(3) If any criminal proceeding (including a proceeding by court—martial) is at any time thereafter instituted against any such witness, in respect of any matter touching which he has been so examined, the Court having cognisance of the case shall, on his application, and on proof of the certificate, stay the proceeding." There is no word there of any court-martial or proceeding of that kind having been instituted in consequence of the evidence that the witness may have given before the Commission. It means, as I understand it, that any witness who has once given evidence before the Commissioners which they regard as satisfactory, and has received a certificate from those Commissioners, shall never be summoned to any court-martial or any proceeding in regard to any matter upon which he has been examined before the Commissioners. That is a very large order indeed. This Commission is not intended to take the place of any proceedings that may be necessary against any person in regard to matters which the Commission have inquired into. It is no doubt right to give some protection to witnesses against improper proceedings that might be taken against them because they have implicated themselves, or some other person who, out of motives of revenge, or anything else, might bring proceedings against them. But to whitewash them completely and to say all that anyone has got to do before this Commission is to give a full disclosure of all he knows, and that then no court-martial or other proceedings should be taken against him in this matter, seems to me to be going entirely against the intention of the House in setting up this Commission. As each of the Sub-sections of this Clause hang one upon the other, I think they all ought to go out together. I will therefore move to omit the words from the beginning of Subsection (1) to the end of Sub-section (4).


Does not that mean moving the omission of the Clause?


Yes, it does.


I will only move to omit the figure (1), because that figure will not be necessary if (2), (3), and (4) are omitted.


An Amendment cannot be moved to leave out the figure (1). I had better put it as it stands on the Paper. Sub-section (1) in this case is not the whole operative part of the Clause, and therefore it is not out of order to move the omission of Sub-section (1).


This Clause, or a Clause of this kind, is a common form in this kind of Bill, and for reasons which I am sure my hon. Friend will appreciate. The first object of the Bill is to get at the truth, and, therefore, you have to make it perfectly clear that anyone may safely tell all he knows. Unless you are going to have witnesses whose tongues are not tied, you cannot get at all the facts. For that very reason, in such an inquiry it is necessary to have some provision of this kind. What we say in this Clause is that if a man comes before the Commission to give evidence, and he may be brought there, he shall not be entitled to refuse to answer questions on the ground that the answer may incriminate himself. Unless you have that, you may find that an important witness, who alone can prove the whole facts, objects to tell all he knows on the ground that his answers may incriminate himself, and then you defeat the whole object of the inquiry. Perhaps I may be allowed to add a few words in respect to the subsequent Subsections. If you say that a man must answer any question, you must go on to protect him against consequences which might otherwise follow. Without going into the details of the later Sub-sections, I think my hon. Friend will find in all these cases—I have matters in my mind such as election petitions—you have the consequential condition that when a man has answered the whole questions fully and fairly, and the Commission is satisfied he has made a full and true disclosure of all the matters referred to, he is protected against any consequences. I think it would be perilous and injurious to the object the whole House has in view if this Sub-section were not inserted.


Is it in order to have one general discussion on the Amendments, instead of setting them point by point?


I think the Committee had better take them separately.


The announcement which my right hon. and learned Friend has made is very important. I was present in the House on Second Reading when the Prime Minister, or, at any rate, some right hon. Gentleman on that Bench, stated, as I understood, that the object of this Clause was merely to prevent what is called in certain circles victimisation, so that in the case of a man who came forward and gave evidence, his superior officer in the Army or a public Department might not take advantage of his having given evidence, and dismiss him from the service, or degrade him, or do something to punish him for having given that evidence. That, I think, is absolutely right. But now my right hon. and learned Friend goes much further, as I understand, and he says that a person—it might be a great general or even a Secretary of State—who comes forward and admits he has made a very serious error, for which he ought to be called to account, because he tells the truth neither a court-martial nor any other proceeding can follow. I hope I may be wrong, but that is what I understood. There may be criminality, and the whole object of this inquiry would be lost. What we want to find out is whether there has been any criminal offence, and, if found against any person, that person ought to be punished. Therefore, I really trust my right hon. Friend will either make some Amendment in this Clause or reconsider it before Report.


I want to reinforce what the right hon. Baronet has just said. So far as I can understand the Clause, it appears to me that if a man comes before the Commission, and, on being asked to explain the reason for his doing so-and-so. on a certain date, he turns round and says " I was blind drunk," and it turns out to be true, he is saved from proceedings against him by this Clause. I do not believe that that was what the House had in its mind at all. I would submit that at this inquiry we should compare the Commission rather to a coroner's inquest. A coroner's inquest inquires into what has taken place, and may finally bring in a verdict of murder, or manslaughter, or whatever it may be against a man, who is then put on his trial. I think the Commissioners ought to have it in their power, at any rate, to recommend that persons who appear before them, and appear to be guilty of misconduct, should be put upon their trial, and if the Commissioners have not effective power so that persons shall be brought to trial, then I can only say the whole of this thing is a sham.


I agree in one way with the hon. Gentleman who has just spoken, but, on the other hand, you must consider the position of the man who is brought up as a witness. You send for a man and say it is in the public interest that he should answer certain questions, so that the House of Commons and the country may know how these various expeditions have been carried out, who was responsible at the Dardanelles, and who in Mesopotamia. If you compel a man to do something which, in ordinary circumstances, he is not compelled to do, and he incriminates himself, surely it is only fair and right that you should not take advantage of the evidence that has been extracted from by force majeure, and institute criminal proceedings against him. I admit it has its disadvantages, but I cannot see how the bon. Gentleman who stands up for the rights of the individual can support compelling a man to give evidence against his will, compelling him to incriminate himself, and then, on the evidence you have extracted from him, bring a criminal charge against him, and perhaps hang or shoot him, because that is the logical consequence. After all, that is the point we have got to consider. I admit that there are grave disadvantages in the wording of this Subsection, and surely it is not beyond the wit of the legal talent which adorns the Government Bench, to devise some words which would enable the public interest to be properly looked after, and the truth to be extracted, and yet preserve a man from being punished for something that he is compelled to give in the public interest. I could not vote for the omission of this Sub-section, because I think, if omitted, it might cause some injustice to individuals.


Especially as the Prime Minister is here now, I think it is as well that we should understand what he said yesterday. This point was raised by my hon. Friend (Mr. Holt), and the right bon. Gentleman said: With regard to Clause 4, I can assure my hon. Friend we do not desire that the operation of that "Clause should be such as to exclude from subsequent investigation, and it may be punishment, anybody who is shown to be responsible for what has happened. It is a common form of Clause which is put into every Bill of this kind, and if any hon. Members think that it Is too wide or they have some Amendment to suggest, I shall be very pleased to consider it… And then he said: It is put into every Bill. It is simply to exonerate him from the consequences of giving evidence which might incriminate him in some other proceedings. It has no other scope or purpose."—[OFFICIAL REPORT, 26th July, 1916, cols. 1728–1729, Vol. LXXXIV.] That is the position, and I understand the Government do not want, as this Clause, I take it, does want, the mere fact of a man having made a clean breast, to exonerate him from any court—martial or other proceedings afterwards. Of course, at the present moment we are only discussing the first portion of this Clause, but I may perhaps point out that, having made provision for enabling a man to be compelled to produce a document,—although it may incriminate him, the Clause goes on to say:

"(2) Every person examined as a witness who, in the opinion of the Com- missioners, makes a full and true disclosure touching all the matters in respect of which he is examined, shall be entitled to receive a certificate signed by the Commissioners, stating that the witness has, on his examination, made a full and true disclosure as aforesaid.

(3) If any criminal proceeding (including a proceeding by court-martial) is at any time thereafter instituted against any such witness, in respect of any matter touching which he has been so examined, the Court having cognisance of the case shall, on his application, and on proof of the certificate, stay the proceeding."

As it is drafted it would be perfectly clear that the man is entitled to say "Give me this certificate," and that will protect him from all further proceedings of any kind. I admit the difficulty which has been raised that if you force a man to disclose you are bound to give him some remedy or protection from what will follow, but I am perfectly certain you must find a different form of words in order to protect the position laid down by the Prime Minister that this is not going to exonerate persons who may have been proved to be guilty of neglect or wrong actions simply because they make a clean breast of it before the Commission. I hope the Solicitor-General will give this matter further consideration as regards the actual wording necessary to carry out the intention of the Prime Minister.


I confess that the words of the Clause, as drawn, are too wide, and go beyond the necessities of the case. What we have in view is that if a man has extorted from him by compulsion disclosures which involve incriminating himself, he ought to be protected against those disclosures being used as evidence against him in subsequent proceedings. That has always been the rule, but if there is independent evidence by which he could be made amenable he ought not to escape simply because he has given incriminating answers that ought not to be used against him. I think the Solicitor-General agrees with me in that. I think the best plan would, be to remould this provision on Report and bring it up in another form satisfactory to hon. Members.


May I suggest that the Clauses which are to be found in the Corrupt and Illegal Practices (Prevention) Act, 1883, and which form the model from which this Clause is taken, would really meet the case. Section 59 of that Act provides:

(1) A person who is called as a witness respecting an election before any Election Court shall not be excused from answering any question relating to any offence at or connected with such election, on the ground that the answer thereto may criminate or tend to criminate himself or on the ground of privilege;

Provided that:

  1. (a) a witness who answers truly all questions which he is required by the Election Court to answer shall be entitled to receive a certificate of indemnity under the hand of a member of the Court, stating that such witness has so answered; and
  2. (b) an answer by a person to a question put by or before any Election Court shall not, except in the case of any criminal proceeding for perjury in respect of such evidence, be in any proceeding, civil or criminal, admissible in evidence against him."
That is exactly what the Prime Minister has suggested, and if Section 59 of that Act we're put in place of Clause 4, the exact suggestion of the Prime Minister would be met, and we should be following a procedure which has been adopted in similar circumstances and has proved successful, and which has met all cases both in securing the evidence necessary and proper protection for the witnesses.


That Section seems to be very appropriate to the case. I do not pledge myself to those particular words, but I will bear them in mind. I think that some protection ought to be given to these witnesses.


The Corrupt Practices Act does not cover documents. I know this question of documents is not at issue, because they would be available in Scotland and probably in England in any criminal trial or court—martial.


After what has been said I desire to withdraw my Amendment, but I should like to understand whether the Solicitor-General intends to accept an Amendment to leave out this Clause or does he propose to leave it in the Bill in its present imperfect condition 1


That point can be dealt with when the Clause is put.

Amendment, by leave, withdrawn.

The following Amendment stood on the Paper in the name of Mr. LYNCH:

At the end of Sub-section (3) to insert the words,

"That if any witness, whether in the service of the State or in private employment, be subjected in consequence of his evidence to any kind of threat, intimidation, or vexatious questioning, or any kind of prejudicial treatment whatever at the hands of any of his superior officers or employers such officers or employers shall be deemed guilty of an offence for which the penalty of imprisonment may be enforced at the discretion of the Commission."


This Amendment as it stands does not read.


I hope the Solicitor-General will give consideration to the Amendment which I put down on the Paper in regard to this point.


Is there any way in which I can introduce my Amendment, which is not quite on the same footing as those that have been disposed of?


If the lion. Member examines his Amendment he will find that it does not read, and it is too indefinite altogether.

Motion made, and Question proposed, "That the Clause stand part of the Bill."


In view of the suggestion made by the hon. and learned Member for Warwick (Mr. Pollock) to introduce a Section from the Corrupt and Illegal Practices Act, I wish to ask if there is any object in leaving this Clause in the Bill?


That question can be dealt with on Report.