NEW CLAUSE.—(Application of 6 Edw. 7, c. 34, s. 2 (1).) (Hansard, 2 November 1916)

§ Sir A. SPICER
I beg to move "That the Clause be read a second time."
I am sure that the House the day before yesterday heard with interest the statement which the Attorney-General made with regard to the obligation to obtain the fiat of the Law Officers of the Crown before a prosecution can be instituted. We may well believe that the duty imposed upon the Attorney-General involves no inconsiderable addition to his labours, especially at such a time as this. The labour would be still greater if the prediction of Lord Halsbury, in another place, had been fulfilled, namely, that he did not suppose that any Attorney-General would give his fiat for a prosecution without seeing the parties. The right hon. Gentleman remarked that in many similar cases the law has said the fiat should be necessary. In reply to that Sir Edward Fry, formerly Lord Justice, who drafted the original Prevention of Corruption Bill, in stating objections to the fiat, said: The provision is one which is, I believe, previously entirely unknown to our law, with the single exception of the Public Bodies Corrupt Practices Act, 1889, but there the condition may possibly be justified on the ground that in the case of public bodies the representative of the Crown, i.e., of the public, is the proper authority to intervene, whereas under the Act of 1906 private as well as public wrongs are dealt with. This, I am informed, is substantially correct. There may have been some point, when bribery was first made a crime, in having the fiat as a check, but the Prevention of Corruption Act is now ten years 1874 old, and the law is well known if it is not well observed. That Act has done an immense deal of good in commercial circles, and it is a warning note to which a great many have listened. At first the bankers were in favour of the fiat, as a preventive against blackmail—though why there should be more blackmail in this connection than in any other it is difficult to imagine—but afterwards the bankers' spokesman, the late Lord Avebury, said they were anxious that the fiat should be removed. He said: Experience has shown that the fiat is quite unnecessary. The real supporters of the Act have always been of this opinion. On this matter of blackmail, Lord James of Hereford said the fiat would be one of the greatest instruments in the hands of the blackmailer, while Lord Loreburn, when a Member of this House, said that his objection to the fiat being required was that, having held the office of Attorney-General, he knew how slight was the opportunity of the Attorney-General to inquire himself into these matters. He objected to the fiat because, he said, it was an ineffective bar against the hideous crime of blackmail. Lord Alverstone, who introduced the Prevention of Corruption Bill after Lord Russells death, was always as strong an opponent of the fiat as Lord Russell himself. Only a few days ago, Sir Walter Phillimore, speaking in the City, as an old King's Bench judge, said: They should get rid of the fiat by all means. It was, after all, a preliminary trial, which made three or four trials altogether—the trial before the Attorney-General's fiat could be obtained, then before the magistrate, then before the grand jury, and finally before the judge and jury—which all meant unnecessary delay and expense and increased chances of escaping from justice. If the Committee accepts this Clause, it will not affect cases in which the Government or public bodies are concerned, and for the rest it may be pointed out that a summons could still only be granted by a magistrate on a sworn information. There is no doubt that at present when an application is made for a summons the magistrate often does not take any responsibility in view of the fact that the Attorney-General's fiat has been granted In the case of a serious offence, the matter comes before the magistrate on a sworn information; then if he commits, before a grand jury and a petty jury; then an appeal may lie to the Court of Criminal Appeal; and lastly, proceedings may be instituted for malicious prosecution under the Vexatious Indictments Act. That is ample 1875 protection. The Attorney-General has said that he submits himself entirely to the judgment of the House. It is not necessary for me to say that there is nothing personal in this matter. It is purely a question of principle. This very point has twice been considered by Committees of this House, and on both occassions the Committees passed resolutions against the retention of the fiat. I ask the Committee to agree to my proposal, which has been most carefully considered by those who have had large experience of the crime of bribery, so that the law may be made more operative.

Sir H. DALZIEL
Can the Attorney-General tell us how many times he has used this prerogative during the time the Bill has been in force?

§ Sir F. E. SMITH
I cannot say at the moment, but I can give the information later.

§ Sir F. BANBURY
I think the new Clause is a very good one, and I hope the Attorney-General will accept it. I am not a lawyer, but I do not know that the Amendment in the name of my hon. and gallant Friend (Commander Wedgwood) is necessary, as I gather that this new Clause ' would apply to the Bill. I gather that the Amendment was put down under the impression that the new Clause would only operate under the Act of 1906, but, as I understand it, this Bill is merely an extension of the Act of 1906, and therefore any alteration of that Act applies to this Bill. It is a legal point. If the Government is going to accept the new Clause, perhaps the Attorney-General will tell us whether that is so or not.

§ Mr. BOOTH
I entirely sympathise with the speech of the right hon. Gentleman on the front Opposition Bench, but I am afraid he has a great deal too much faith in Acts of Parliament and the bits of paper we pass here.

§ Sir F. BANBURY
No, I have not.

§ Mr. BOOTH
I meant the right hon. Gentleman (Sir A. Spicer). You will never put down this corruption unless by a united spirit amongst business people. It cannot be done by passing Clauses. That would only drive it underground. The right hon. Gentleman seemed to think that the passing of the previous Bill had effected a great reform—a great change. It has only been a change of method. You 1876 cannot, unless there is a willing spirit amongst business people, profit very much by mere legislation. I do not say that because I want the Bill to be defeated. I should like it to have its chance, but I have pointed out again and again, and I challenge anyone to say that facts and experience are not behind it, we have-passed things here time after time and think we have effected a reform, but we have done nothing of the kind. I do not know how many Bills of this kind there are. This will be one more. You want a different spirit. I will give a case by way of illustration. I bring a thing up before the House where a large commission is. being given for, let us say, a timber contract. I do not get any support. Hon. Members who are loyal supporters of the Government say, " Why do you raise this thing? Let it be raised by the Conservatives. There is a Liberal Government in power." They come to me by the dozen. They do not want to annoy their own leaders, and when that is the disposition of so many Members I have no faith at all in the legislation that is passed. I do not think it makes any difference really whether this is in or not with regard to the amount of good it will do. I do not understand why, if anyone has a good case, he should fear to go before the Attorney-General. Why are they afraid to go before the Attorney-General? I have always thought that if a man had a really good, glaring case he would be glad to take it before the Department, and the more people you put him before the better, if he really thinks it is a genuine case of corruption. That was my feeling when I was exposing a thing or two here. The more members of Departments you send me to, as long as I am sure of the facts, the more vigorous will be my action. I cannot quite see why people should shirk going before the Attorney-General. I can understand his saying, "I am already overworked and underpaid," or something of that kind, but unless the Attorney-General assures the House that he has not time to attend to these matters and would prefer to be relieved of them, I really cannot see why anyone with a genuine case cannot take the trouble to go before the Department.

§ Sir F. SMITH
I hope I made it clear in the Second Beading of the Bill that this-was not a case in which the Attorney-General was anxious to figure before the House as one who wanted to maintain any privilege, but equally I am anxious that 1877 the few observations I made then should not be misconstrued as meaning that I was not perfectly willing, if it was the desire of the Committee, to continue to discharge the functions which my predecessors up to the present in this matter have discharged. The right hon. Gentleman (Sir A. Spicer) spoke of the opinion of numbers of distinguished and more or less experienced persons as to the fiat of the Attorney-General. He quoted Lord Halsbury to the effect that he could not conceive of any Attorney-General ever being inspired without seeing the parties. No one has a more profound respect for my Noble Friend and for his thoroughness than I have, but I doubt whether Lord Halsbury would ever have made this observation if he had not been elevated straight from the position of Solicitor-General to the Woolsack. If he had ever had the fortune to discharge the duties of Attorney-General I doubt whether he would have indicated this view with so much confidence. If it was worth while taking up the time of the Committee I could certainly show that while it is no doubt true that there are many persons who have not had experience of the work of the Law Officers Department, and a few who have, who have taken the view that the fiat of the Attorney-General is not on the whole worth retaining, at least an equal number of persons with just as much experience of the working of the Law Officers' Department have taken quite a different view. The matter really is in a very small compass. Neither the Government nor myself hold particularly strong views upon the matter, and if there were a general feeling on the part of the Committee that practical advantage would follow from an alteration in the law of this kind I do not think the Government would resist that view. But I am bound to point out that I cannot myself take the responsibility of giving the Committee that advice. I do not feel strongly, but I should not advise the Committee to take this course, and certainly I should not advise them to do it when we are admittedly passing legislation of the character of this measure. That of itself furnishes very considerable objection to modifying the existing law.
But on the merits of the proposal, as I understand the effect of it—the drafting is a little obscure—it would be that in places where corruption takes place, or is alleged to take place, in relation to a public contract the fiat of the Attorney-General shall still survive, but that in ordinary private 1878 contracts the fiat of the. Attorney-General shall disappear. I do not really think my right hon. Friend has-fully thought out the consequences, of this new Clause, because the view which I should press upon the Committee would be quite the contrary. If it were wise in any case to interfere with the fiat of the Attorney-General the case in which it will be safer to curtail its exercise would be the case of public contracts. In the case of public contracts you have at least this guarantee, that the head of some Department, or some responsible official in the Department, has considered the matter, and if it be an important matter the Attorney-General has already advised upon it, and either the Attorney-General or the Director of Public Prosecutions, as representing him, have sanctioned a prosecution. Therefore 'there would be something to be said in the case-of a prosecution for corruption in reference to a public contract, fordoing away with the fiat of the Attorney-General. There is nothing at all to be said in the case of a private prosecution for doing away with the fiat. I will give the Committee a little experience I had. It might interest them, especially having-regard to the expression of opinion attributed to Lord Halsbury, if I tell them exactly how a fiat comes into-force. I do not pretend to read it or to-examine into the facts with the same care that a magistrate would do if he were trying the issue. What I do is this: I read very carefully indeed the statement of the evidence upon which it is desired to found a prosecution, and in every case where a matter is presented to me for my fiat it is necessary that a short statement should be made of the facts of the case and a complete and accurate summary of the evidence relying upon which it is proposed to-establish those facts. If, after reading a matter which is put before me, I come to-the conclusion that there is there a case which demands inquiry and which may reasonably toe made the subject of investigation, I grant my fiat. I think in two cases—I speak from memory—I was convinced that even on the materials put before me at the instance of those who-desired to prosecute there was not material, upon which it would be fair to expose any person to the inconvenience and the stigma. of being brought before a Police Court. That, I suppose, would be true out of, I dare say, many hundreds of cases. In no others, so far as I know, have I inter 1879 vened. I have said I do not feel very strongly about it, but I think the Committee would wish me to point out that both the Director and the Assistant-Director of Public Prosecutions, two gentlemen of immense experience of criminal matters, are far more strongly averse than I am from any alteration in the law. Of course, Attorney-Generals come and go, "but these permanent gentlemen last for very much longer and accumulate in a matter of this kind very much larger stores of experience than any individual bolder of the office of Law Officer, and the Committee ought to be in possession of their views before it comes to a decision.
5.0.P.M.
Further, this is a class of offence in regard to which I do not think the Committee would reasonably say any additional security ought lightly to be waived aside. Let me give an illustration of how these matters generally arise in practice. If a man wants to give an irregular or corrupt inducement to a contractor, the Committee will not be surprised to discover that he very seldom reduces the matter into writing. He thinks very often it might be made a possible subject of documentary evidence against him, and the way these things happen is very remarkable. In the first place, the offer— the Bill deals with an offer—is almost invariably, for the reason I have indicated, made verbally. In the second place, as the Committee will infer from their knowledge of human nature, if not from their? experience, the person who makes this offer is very seldom ambitious of an audience, and it usually therefore happens that an offer of this kind is made by a person who comes into a shop or an office and, selecting the moment when there is no one there at all, says to the person whom he desires to corrupt, " This will be £10 for you, or £1,000 for you," and the matter generally comes forward as being a case simply of one statement against another. Observe the serious consequences which may follow in a case, for instance, where one discovers from another source, or has established, that there has been some? quarrel between these two persons. You can go to a magistrate and obtain a summons without any sworn statement at all, and the result is that in a case which really may not be a proper subject of prosecution at all, because there is no evidence on which any jury or magistrate would reasonably convict, where it is merely a case of statement against state- 1880 ment, a man may be compelled to go before a magistrate. He makes his first appearance; there is a remand; it is reported in the Press, possibly in the London Press, very probably in the local Press if it is a provincial case, and it may take many days before the matter is disposed of, and even when a matter of that kind is disposed of some degreee of unpleasantness is not unlikely to survive. I do not pretend—and I should be very sorry to be misunderstood—to be able to say that there are a very 5.0 P.M. great number of cases in which this fiat is likely to be used. I do not say that it is likely to prevent the kind of hardship I have indicated, but I do say this, that I am aware of no single case in which anyone has ever been able to show that the existence of the fiat has in any way interfered with the course of justice, and I am quite sure that there are some, perhaps not many, cases in which the fiat has served to protect an innocent man from an undeserved stigma. Under these circumstances, and having now held the office of Chief Law Officer of the Crown for fifteen months, I would respectfully offer my advice to the Committee, that it would be inadvisable to introduce an Amendment of this kind in this 'Bill, which is an emergency Bill and does not pretend to examine into the whole situation.

§ Sir A. SPICER
I beg leave to withdraw the Clause.