§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Redmayne.]
§ 10.0 p.m.
§ Mr. J. E. S. Simon (Middlesbrough, West)
I wish to draw attention to the question of Executive intervention in the case that is particularly happily named "Whitehall against Whitehall." The question of Executive intervention in any court of law, particularly in a suit between private individuals, must be a serious one.
In this case, the two parties, a husband and wife, were pursuing a matrimonial difference and submitting it to the arbitriment of the court. Both parties desired to adduce certain evidence, to rely on certain written evidence in the form of communications between "S.S.A.F.A.", as it is called—the Soldiers. Sailors, and Airmen's Families Association—and the wife. Both parties desired to rely on that evidence. My right hon. Friend the Secretary of State for War instructed the Lord Advocate, whom we are pleased to see on the Government Front Bench tonight, to intervene in that suit and to argue that the Crown had the right to intervene in order to borrow the letters so that they could be seen by my right hon. Friend to enable him to certify whether their production would be contrary to the public interest.
This is a completely novel procedure, that the Crown should intervene to claim the right to see material in the hands of the parties in order to exclude it from the consideration of the court. It is sufficiently novel, sufficiently momentous, that I am quite sure my right hon. Friend would agree that it is a matter demanding the attention of Parliament. Indeed, this whole question of Crown privilege means that the only forum in which the rights of the individual can be vindicated is this House. The claim of the Crown in this country is a conclusive one on Crown privilege and, therefore, the only way in which the action of the Executive can be questioned is in this House.
I appreciate that it should be my right hon. Friend himself who comes forward to vindicate and justify the action of his 1597 Department. That, in fact, is quite right, since it is his personal decision which is in question. I appreciate also that on the Front Bench there should be my right hon. and learned Friend the Lord Advocate who took the action in the Scottish courts and my right hon. and learned Friend the Attorney-General, who is here, I take it, out of academic interest in this subject.
We debated the question of Crown privilege in October, when we had a notable speech from my right hon. and learned Friend the Attorney-General and an explanation from him of the attitude of the Government.
The Economist commenting at that date said that the debatebrought into the healthy light of day the repressions and complications in Whitehall which prevent a more liberal approach to the production of official documents in court cases.It went on to say:It is clear that departmental convenience is still an important factor in deciding whether any particular document may he used as evidence.This latest action of the Executive shows that, although that debate revealed an almost unanimous feeling, at any rate on this side of the House—indeed, it is fair to say that it was by no means confined to this side of the House—that the Crown was usurping functions which were by no means justified and which were serious infringements of the rights of individuals before the courts of law, nevertheless, the Executive have not learned their lesson and there has been this new aggrandisement which we saw before the Scottish courts.
Fortunately, the claim of the Executive received very short shrift indeed. The claim of the Crown to exclude the evidence in question was referred by the judge before whom it came to the full court of the First Division of the Court of Session on the ground of the importance of the principle which was in question. The matter came before the First Division of the Court of Session presided over by a learned judge, Lord Clyde, who is well known and who was highly respected in this House when he was the predecessor of my right hon. and learned Friend. His Lordship was supported by three eminent judges of the Court of Session, Lord Carmont, Lord Russell and Lord Sorn. They were unanimous in their decision and they rejected out of 1598 hand the claim of the Crown in this case. The Lord President, Lord Clyde, said:It would be a quite intolerable extension of this privilege were he able"—That is, the Minister—where no question of national safety was involved to intervene in litigation between private individuals and impound documents which did not come from a servant or agent of the Crown and were quite legitimately in possession of parties to the litigation who desired in that litigation to found on their own documents.He went on to say:For the proposition so widely stated, there was admittedly no precedent.His Lordship the Lord Presidentcould find no justification for it. Its effect would go far along the road of subordinating the courts of justice to the policy of the Executive.The first question that I respectfully ask my right hon. Friend is whether he accepts that judgment given by the highest court of one of the kingdoms of Great Britain, a court composed of learned judges of the greatest eminence. Does my right hon. Friend accept that this would be an intolerable extension of the privilege and that to vindicate itwould go far along the road of subordinating the courts of justice to the policy of the executive."?We know already the doctrine of privilege in this sort of dispute. The courts and the law look forward favourably upon efforts at reconciling spouses who are in dispute, and rightly so, and they will grant privilege and refuse disclosure of evidence which comes into existence in the course of these efforts at reconciliation. That is the normal type of privilege which exists between private citizens. But, if the parties themselves wish to submit that sort of evidence to the arbitriment of the courts they are justified in doing so. It is their affair. It is a matter of individual right. In that way the law in its wisdom reconciles the claim of individuals to justice with the policy of the State, which is that spouses if possible should be reconciled and that every encouragement should be given to reconciliation.
So far as I can see, there is no difference in that respect between civilians and soldiers. The interest is precisely the same between the efforts of a probation officer, for example, to reconcile civilians and the efforts of S.S.A.F.A. to reconcile a serving soldier 1599 and his wife. I would ask my right hon. and learned Friend to say, if he thinks there is a difference, where it lies in principle. If there is no difference, it is clear that this claim of the Crown to intervene to deprive the court against wishes of both parties of matter on which it can form a proper judgment of the rights of the case between the parties is completely unjustified.
I notice that The Times, in a leading article immediately after this decision of the Court of Session, said:Many who are uneasy about the frequency with which Government Departments claim the privilege of withholding documents from from the scrunity of the courts will be gratified by the episode of the matrimonial proceedings in Edinburgh.Does my right hon. and learned Friend accept that as a correct judgment? It says:The claim of the Crown was received with astonishment and dismissed with unanimous disdain.That feeling is reciprocated in widespread circles in this country, and not only in this country.
§ The Attorney-General (Sir Reginald Manningham-Buller) indicated dissent.
§ Mr. Simon
It is said that the claim by my right hon. and learned Friend had clearly nothing to do with the two grounds on which the Lord Chancellor defended Crown privilege in Parliament last June: national security and the efficient functioning of the public service. I dislike to cause my right hon. and learned Friend any pain. He knows that I have the very highest respect for him, but reference was made to the "lame plea of the Lord Advocate." I ask my right hon. and learned Friend whether he accepts that as a fair judgment on the claim of the Crown put forward here.
The matter goes further. Unfortunately, the law of England is less liberal than the law of Scotland in this respect, and it may be that a claim which was rightly rejected with contumely by the courts in Scotland might be accepted by the courts of this country.
Will my right hon. Friend not only accept the judgment of the Court of Session so far as Scotland is concerned—as he is bound to do—but seek to obtain a different ruling from the English courts? Is he prepared to argue 1600 that there should be one rule of public policy north of the Border and a different rule of public policy south of it? Or does he not accept the ruling of the Court of Session, supported, as I have ventured to point out, by judges of the highest eminence, and expressed in language which has received widespread support. Will he not accept that so far as our practice in this country is concerned?
All these matters are a question of balance of interest. Does he not recognise that it is here important to weigh the interests of litigants seeking justice against the interests of the Armed Forces as a whole? Does he not recognise that, although it is possible, in theory, to adumbrate some injury to the public service if evidence of this sort were adduced, the injury to the administration of justice in withholding evidence, far outweighs any conceivable injury to the public interest? Will he now say that he regrets the action which he took, and that he will not seek to pursue this line of policy?
§ 10.17 p.m.
§ The Secretary of State for War (Mr. John Hare)
My hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) has put his case with skill—it would be surprising if he had not—with charm, and with his usual ability. I think that he may, perhaps, have expected that one of the Law Officers would answer him, but I am glad that he feels that I was right in answering him myself, as I am the Minister responsible for the intervention in the case of Whitehall v. Whitehall, which is the subject of this debate.
He will not get as learned an answer as he would have received from my right hon. and learned Friends sitting on either side of me, but as this case deals with human beings—Whitehall and Whitehall are not Government Departments, but a man and a woman—I think that the layman's view should be heard. My hon. and learned Friend who is, as I know personally, the most human of people, will not, perhaps, resent it too much if I say that members of his profession are, maybe unfairly, considered to concentrate very often on the purist legal, rather than on the human, aspect of a particular problem. I think that my hon. and learned Friend has, in fact, neglected the 1601 human aspect which is mainly my concern.
Experience has shown that the welfare and efficiency of troops, especially those who are serving overseas or engaged in operations, is much affected by their domestic affairs. I personally believe that if we are to have a sound, efficient and contented Army we have an inescapable duty all the time to watch over the human problems of Service men and their families.
The Soldiers, Sailors and Airmen's Families Association has over 15,000 representatives, spread all over the United Kingdom and overseas. The Association acts in a variety of ways. For instance, in certain circumstances, part of a soldier's allowance may be paid through S.S.A.F.A. to ensure that the money is used on behalf of the children. Again, under Army regulations, commanding officers are instructed to refer to S.S.A.F.A. cases where a soldier asks for the withdrawal of marriage allowance from his wife when divorce proceedings are not pending.
Commanding officers frequently approach S.S.A.F.A with a view to help or advice being given or inquiries being made in cases where a soldier, sailor or airman has consulted them about domestic troubles. The approach to S.S.A.F.A. is, however, sometimes made by the wife herself, or even by the serving man. Other cases where S.S.A.F.A. is requested to assist cover a very wide range, including the care and custody of children, dealings with landlords, and housekeeping problems.
An important type of case is that in which a soldier and his wife have become estranged. The soldier goes to his C.O. and tells of his worries. The C.O. then asks S.S.A.F.A. to try to effect a reconciliation and very often it succeeds in removing the cause of the soldier's anxiety, whose peace of mind and efficiency are thus restored. These successes would not be achieved unless the soldiers and their wives believed that their confidence would be respected.
I cannot rate too highly the valuable services rendered by S.S.A.F.A. in this way. If they did not undertake it on behalf of the Army, it would not have been done at all because it is not possible 1602 in these days of financial stringency to provide officers or officials to do the job. Nor, if these officers or officials were available, do I think they would do it as effectively as the local S.S.A.F.A. workers have shown that they can do it.
Sometimes S.S.A.F.A. fails to achieve a permanent reconciliation, and matrimonial proceedings are brought in the courts. When that happens, the litigant is naturally concerned to secure the success of the legal proceedings and he, or perhaps she, requires documents to support the case, whether or not the documents which they seek to use in the proceedings came into existence, perhaps years before, in the course of a confidential relationship and, but for that relationship, might never have come into existence.
It is my duty to take a broad view and look at the question from the point of view of public interest. If S.S.A.F.A. representatives have to produce documents or give evidence on matters communicated in confidence, two results may follow. First, soldiers and their families will be unwilling to use this welfare service or to give information in confidence. Secondly, the S.S.A.F.A. representatives themselves will be reluctant to continue to do this work, which they now undertake to do on the understanding that they will not be called upon to disclose information communicated to them in confidence. This invaluable work might then stop.
This, as I have already indicated, would, in my opinion, adversely affect the efficiency and morale of the forces.
§ Mr. Simon
I am sure that my right hon. Friend will deal with this point, but I should just like to mention it. I have had a family connection with S.S.A.F.A. for many years, but can he say how he thinks that S.S.A.F.A. representatives differ from ordinary reconciliation officers, such as probation officers, in any of the respects with which he has dealt?
§ Mr. Hare
I am trying to cover most of the points which my hon. and learned Friend has raised, and I will continue to do so. As I have just said, it would be 1603 a most serious matter if the splendid work done by S.S.A.F.A. should stop or be much reduced, and I feel bound to avoid that if I can conceivably do so.
It is for these reasons that the Lord Advocate intervened on my behalf in this case of Whitehall v. Whitehall, a case which was pending in the Court of Session. A claim for privilege was not made, but that court was asked to release certain documents known to be in the possession of the court, so that I might consider whether a claim for privilege should be made.
I have studied the opinions of the Lord Ordinary and of the First Division, from which it is clear that the Scottish courts would deprecate a claim for Crown privilege being made in relation to those documents which were letters written by S.S.A.F.A. to one of the parties. In deference to the views expressed by the Scottish judges, I have consulted my colleagues and I have come to the conclusion that the circumstances of this particular case would not justify me in appealing against the decision of those courts concerning the documents already "in process"; nor would I propose to intervene with reference to the production of two letters written by one of the parties to S.S.A.F.A. included in a specification which has been served upon S.S.A.F.A. Further, I feel that I cannot, consistently with this decision, claim privilege for documents in future cases of a like nature.
My hon. and learned Friend asked me whether I accepted the opinions of the Lord Ordinary and of the First Division. I have already made myself clear on that point. Naturally, I would not propose to treat the English courts in a different manner. I would like to point out, also, that there was nothing untoward in the S.S.A.F.A. documents in the case of Broome v. Broome being in the possession of the War Office. The reason was nothing more nor less than that given by my right hon. and learned Friend the Attorney-General in the debate on 26th October last, when he informed my hon. and learned Friend that they were sent to the War Office so that the Secretary of State, my predecessor, could decide whether a claim for privilege could be made. I think it is only reasonable and 1604 natural that any Minister would wish to see the documents before coming to a decision.
As hon. Members must be aware, the decision I have reached in relation to documents written by S.S.A.F.A. to parties to the litigation, and by those parties to S.S.A.F.A., may make considerable inroads in the confidential character of the reconciliation work carried out by that body. It is, in my opinion, bound to result in the weakening of this welfare service. I have no doubt at all that something really valuable will, in fact, now be lost, though I hope that it may be possible to retain some degree of confidentiality for communications made to S.S.A.F.A. representatives by means of the ordinary law relating to privileged communications made in contemplation of proceedings.
§ Mr. Hare
I am glad that my hon. and learned Friend agrees with me. It is a most important safeguard. I recognise, however, that this rule does not apply to Scotland.
I must point out to the House that the decision which I have reached does not extend to the confidential reports made by welfare workers for the use of the War Office, or for commanding officers, or to the correspondence between the War Office or commanding officers and S.S.A.F.A. or its representatives. This is an important part of what I have to say.
The specification, that is to say, the Scottish equivalent of a claim for a discovery of documents, which was served upon S.S.A.F.A. in the case of Whitehall v. Whitehall, included the actual case sheets and other records prepared by S.S.A.F.A. But it was after the Lord Advocate had intervened on my behalf that it came to his notice that the specification had been amended, actually at the instance of the two people concerned in the case we are now discussing. It was they who decided to exclude them.
I wish to make it absolutely clear to the House that I must continue to claim Crown privilege in respect of such documents. I emphasise that. It is of the greatest importance that this should be made absolutely clear to all who are interested in these matters. I must continue to claim Crown privilege in respect 1605 of these documents which it may be necessary for me or my colleagues, in the general public interest, to protect disclosure.
§ Question put and agreed to.
§ Adjourned accordingly at twenty-nine minutes past Ten o'clock.