HC Deb 07 May 1957 vol 569 cc932-44

Motion made, and Question proposed, That this House do now adjourn.— [Mr. R. Thompson]

10.18 p.m.

Mr. I. J. Pitman (Bath)

In July, 1944, the late Mr. Bernard Shaw wrote to me to report how he had been getting on with, and what he was doing in respect of, his will, particularly in the matter of the design of a new English alphabet. This matter was very dear to his heart.

It was a very modest proposition, which consisted of a statistical inquiry and the publication of a book of one of his plays, with one page printed in the new alphabet and a comparable page in the old alphabet. In that letter, having explained it all, he asked me to do everything I could to see that his wishes were carried out. That put me in a moral position of obligation—in fact, I would say a sacred duty—to do all I can to help Bernard Shaw in that respect.

As the House will know, the Court of Chancery found against those sections of the will for which he asked my support. Judgment was given on 20th February and I immediately consulted a solicitor to find out what action I might take to carry out this sacred obligation which I had. Our conclusion was that I ought to try to make an appointment with Mr. Milner Holland, who had been conducting on behalf of the Attorney-General and the Public Trustee the arguments in support of Shaw's will.

As I had been working in both close and friendly association with him during the five days of the case, I thought that that was excellent. He reported to me that he had made an appointment for 5th March and that appointment had been made subject to a reservation, made by Mr. Milner Holland, of the Attorney-General giving his consent. That was very proper indeed, and I should say that throughout Mr. Milner Holland has conducted himself with a very proper regard for his duties to the instructing authority, which was the Attorney-General.

From 25th February, when the appointment was made, to 5th March, the date appointed, no reply was obtainable as to whether the Attorney-General would consent to Mr. Milner Holland seeing me. The application was made quite properly by my solicitor through the Treasury Solicitor, which is the only appropriate channel. We did not get any answer. I wish to ask why we got no answer, and I hope the Attorney-General will say tonight why it was so long before we got, not indeed, an answer, but the absence of an answer, and why, having regard to the fact that a Queen's Counsel is a busy man and there are courtesies to Members of Parliament, no answer was, in fact, given.

Thus, on 4th March this year, my solicitor was forced to report that no consent had been obtained. He also reported that there was a rather "sticky" atmosphere at the Treasury Solicitor's office and he doubted the possibility of receiving any answer in time for the meeting, which was due the following day. After discussing it with him we— I think very properly—agreed that I ought to see the Attorney-General that day to ask him to give an immediate reply so that the appointment could be carried out. There was a three-line Whip for that night and there was an opportunity, therefore, to ask him. I had no cause to expect a refusal. In fact, I was expecting an answer, and a favourable answer. I made a very serious approach to him on what I regarded as a serious matter.

Here followed a mistake. It not having been an official approach, I had no right to publish anything. But I did. I have apologised to my right hon. and learned Friend personally and in writing. I have apologised thus privately to the Attorney-General and I want to do so now in front of the whole House and to apologise also to the House. The trouble which has since happened from my action emphasises only too well how wise is our rule in this House. Urgent and apparently simply as it was, I ought to have written my question, or clearly indicated that the approach in person was, indeed, as official as a letter. These considerations are in no sense a reservation. My apology to him and to the House is unqualified.

However, the question remains, why did he wish me not to see counsel? I would add a second question. Why, a year ago, did he similarly refuse to allow me to see counsel when I then asked to see counsel? He might say that he did not refuse. He will be wrong. I never met counsel until the eve of the case and then it was at his counsel's request, not mine.

All my requests to the Treasury Solicitor that I should be allowed to see counsel were clearly ruled out because of the Attorney-General's letter to me. In his letter to me of 19th April, 1956, he wrote: I think it is desirable that there should be no departure from the ordinary rules in this case. It would be unusual for someone who is not a party to the action to have direct access to counsel. He may think and he may say tonight that he gave me permission to see counsel, but only in the presence of the Treasury Solicitor. That is not so, and I would have welcomed the condition. I repeat, I saw counsel only after the court case was begun and I saw him then not at my request, but only at his.

I would advance seven reasons why his view that to be agreeable would be "unusual" will not hold water, and I should like to ask him seven questions which I hope he will answer tonight corresponding with them.

First, he is the only party putting the case for Shaw's side. No one else in the whole world except he can be a party to the case on the issue of educational charity and that of benefit to the public. Is not his refusal, then, tantamount to denying to anyone, however potentially well informed and however potentially helpful to the courts, access to the counsel, who alone can help the courts?

Secondly, his view contrasts oddly with that of his predecessor, my right hon. and learned Friend the Member for Chertsey (Sir L. Heald). When I asked him he readily gave his consent. I want to ask the Attorney-General, was his predecessor wrong? Ought it not rather to be taken for granted that counsel would welcome any competent help offered? Ought not counsel to be trusted to exercise his own judgment to continue discussions and to seek co-operation whenever to do so would be helpful to him and the case

Thirdly, when the case was launched Treasury counsel certainly appeared to have thought that it was not only usual, but most helpful. First, he ultimately, though through the fault of the Attorney-General over-late, asked me to help, and, secondly, he appears to have valued that help and my potential helpfulness. At any rate, he advised me that it would help him and the court were I to return especially from Switzerland to be available to help him during the case.

And, incidentally, on that holiday I took part in a ski race with Swiss Members of Parliament and had the good fortunate to uphold the name of this House in what was a most enjoyable interparliamentary competition. I flew to London and back from Switzerland, breaking my holiday, because I was asked to do so. Was counsel wrong, knowing these facts, to have asked me to return specially? And, if not wrong, why is access and help during the case any different from access and help in the earlier stages while the case is in preparation?

Fourthly, while I was sitting next to the Treasury Solicitor, immediately in front of counsel, in the court for five days at counsel's request, listening to the case, it became apparent that I could have been even more helpful if, at that earlier time, when I wanted it, Treasury counsel and I could have discussed what evidence was available and might be helpful. I did not meet counsel until after it had become impossible to submit any further evidence. Why did the Attorney-General make this difficulty about my finding out from counsel what help I might be able best to offer?

Why did he wish to stop me short at a telephone conversation with counsel— conversations instituted really by his predecessor—and conversations with the Treasury Solicitor, and an affidavit which was clearly less complete and valuable than it might have been, and should have been? Is not direct access to counsel— and this is what I want to ask the Attorney-General—the only way of giving the best help to the court? Does not the Bar wish for direct access? Does it not deplore all impediments placed between them and those able to help?

Fifthly, I am advised that it is quite "usual" for counsel to discuss evidence with experts who are not parties to the case, and that the trustees who employ such counsel do usually allow uninhibited access. What is the Attorney-General's evidence that it is not usual? Can he, indeed, prove that it is unusual? Surely he must know of very many instances to the contrary. Is he saying that the permission given by his predecessor was "unusual"? Is it not rather that it disposes completely of his contention?

Sixthly, the symbolisation of language and the considerations of the design of an alphabet are highly technical. The Professor in English Language at Edinburgh University—and who can be better authority on the English language than a Scottish professor—Professor Angus McIntosh, considers this case as "technical as one, say, about protons or non-filterable viruses"—to use his words, but with the added complication that whereas virtually nobody is an authority on non-filterable viruses, everybody thinks he is expert about linguistics through vision, and thinks he needs no expert help. Therefore, why does my right hon. and learned Friend wish to deny to counsel, and so to the court, the fullest and freest access to expert knowledge which, as the professor says, is so very rare?

Seventhly, and finally, Shaw wrote asking me to do all I could. Nobody doubts that Shaw wanted his will to succeed. The Attorney-General was responsible for making it succeed, if it was legally possible. Why does not this carry any weight with the Attorney-General?

These are seven questions that really all come down to one: what would have been the harm? Why gratuitously obstruct help being offered to the court?

It is not only that my right hon. and learned Friend obstructed in April, 1956, and that he failed in March, 1957, to permit it. He would not dissent, I am sure, from the view that he has not, since March, or at any time, changed his mind. I have not, despite all efforts, succeeded in meeting his counsel since my approach on 4th March. Will he not now withdraw his obstruction and allow me to confer with his distinguished counsel who will, I hope and suppose, be advising him about an appeal?

The Attorney-General has been very busy with the very long Adams case and with other considerations. Perhaps he is less busy now and more able to see the wisdom of facilitating and not obstructing those offering help. If so, I will be delighted, if I may, to have access to counsel, if a still willing counsel; to see him with anyone that the Attorney-General cares to name; with or without my solicitor or anybody else. All along the only issue has been that I wish to help and to be given the opportunity of doing so to the best of my ability.

He may say that to allow me to do so now would be "irregular" as well as unusual. He said so publicly on 5th March. Further, he may say that, because in the Court of Appeal the argument will be only on law and because no fresh evidence may be introduced at this stage there is no help that I might now give counsel. None of those arguments will hold water—for two reasons. One is that in the court of first instance the argument was only on law, with no fresh evidence to be introduced—they do that in Chancery, apparently, yet I was even then apparently helpful—and, indeed, the fact that I was brought so late into contact with counsel was the cause of my being less helpful than I might have been. I can, presumably, be no less helpful with technical knowledge in the Court of Appeal than I was considered to be in the lower court.

Further, a learned Queen's Counsel whom I have consulted in default of permission to confer with Treasury counsel has, in his learned opinion to me, said that expert knowledge such as I may have would be an essential complement to the legal argument in the Court of Appeal.

Why in 1956, why in March, 1957, and still continuing until now, is there this obduracy? Why does my right hon. and learned Friend court the suggestion that justice has been impeded and fettered? Why will he not see that in his high office it is most desirable that justice should also be seen to have been done? Is he not aware of the dangers that he is creating for himself by excluding thus the one person, other than the trustee, whom Shaw had called upon? This is a case of world wide interest, and there are many in other nations who are anxious that British justice should be done and should be seen to have been done.

Moreover, does not my right hon. and learned Friend see the further dangers into which, by his past record, he is leading his high office? Twice he came to the House to oppose alphabet reform, once when he was Solicitor-General— perfectly proper in itself: he is entitled to his private views, but he has labelled himself publicly as one of those holding privately strong views against what is the essence of the litigation about Shaw's will, a project which, moreover, arouses violent partisanship.

My right hon and learned Friend ought, in any case, to be leaning over backwards in such a case of world interest and unusual character to show that he will take all the help which is offered. He would be doubly wise to do so seeing that in his private views he is so deeply implicated in opposition to what is at stake.

Nothing will give me greater pleasure than to learn that my right hon. and learned Friend will tonight finally allay all anxieties on both the above scores, and that he will facilitate access to counsel for me and for anyone else who appears to have the possibility of helping counsel. If so, he will worthily have upheld his most honourable office.

10.37 p.m.

The Attorney-General (Sir Reginald Manningham-Buller)

This is a rather extraordinary subject to raise in a debate on the Adjournment. It does not arise out of anything which has happened in this House, but only through the very keen interest that my hon. Friend the Member for Bath (Mr. Pitman) has taken in the litigation in relation to Mr. Shaw's will.

My hon. Friend has sought to represent that I have endeavoured to obstruct his seeing counsel who were appearing on my behalf before the case came on. He spoke to me about it as long ago as in April, 1956, and to get the record straight I would just very quickly read to the House what I said in reply to him: Thank you for your letter. I am grateful to you for having spoken to me about this. I think I should make it clear that in view of the large amount of money involved the case is being brought before the Court for the Court's decision as to the validity of certain of the bequests. Counsel appearing for me will put before the Court such evidence and authorities as may be relied on in support of the bequests, and I understand that you have sworn on affidavit in the matter. I am sorry to disappoint you, but I think that it is desirable that there should be no departure from the ordinary rules in this case. It would be unusual for someone who is not a party to the action to have direct access to counsel. If there is anything you wish to add to what you have already said, if, for instance, you think that the affidavit you have sworn should be varied or amplified, by all means inform Mr. Burke, of the Treasury Solicitor's Department. He will take all necessary steps. I had no reply to the letter. I had no complaint from my hon. Friend in regard to it. It was open to him to see counsel if counsel thought he could really give any help in the presence of the Treasury Solicitor. All I insisted upon was that a representative of the Treasury Solicitor should be present when he saw counsel appearing for me, if it was thought he could be of some assistance. All I insisted upon was the usual practice being followed. I cannot think that there is any substance at all in the complaint that my hon. Friend has made about its not being possible for him to give all the assistance he desired to give before the trial of the case before Mr. Justice Harman.

I understand that my hon. Friend saw counsel appearing for me on a number of occasions in the usual way—that is, at conferences attended by representatives of the Treasury Solicitor's Department. He swore an affidavit, which was used in evidence at the trial, and I was certainly under the impression that counsel saw him whenever there was any occasion for him to do so. I am really not quite sure what is his complaint now, made in May, 1957, with regard to this. He was not a party to the case, but one who gave evidence by affidavit, and he was seen by counsel appearing for me as frequently as was required.

Judgment was given on 20th February, 1957, Mr. Justice Harman holding that what I may call the Alphabet Trusts were invalid. The next I heard about the part that my hon. Friend was seeking to play in this matter was on an occasion when he spoke to me in a Division Lobby as we were going through the Lobby and without giving me any indication that it was anything more than a casual conversation. He has apologised for making that conversation the subject of a Press release, and I must put it on record that I cannot accept as accurate his version of that conversation.

I knew nothing at that time about the efforts that my hon. Friend had made to have a conference, with his own solicitor, with counsel who had been acting for me. Before this conversation took place in the Division Lobby, and without telling me, my hon. Friend had apparently sought to arrange a consultation with leading counsel who appeared for me before Mr. Justice Harman with a view to considering with that leading counsel whether I should appeal from Mr. Justice Harman's judgment. It is really a very astonishing proceeding.

Mr. Pitman

No.

The Attorney-General

It was indeed. I have information from Mr. Milner Holland about this.

My hon. Friend takes, I know, a great interest in this case, but that the witness who gave evidence in the case should, behind the back of a party to the case, seek to arrange a conference with that party's counsel was, to say the least, remarkable.

Mr. Pitman

I am reluctant to intervene—

The Attorney-General

I did not know anything of the sort had happened until after my conversation with my hon. Friend in the Division Lobby. I had no idea of it. Leading counsel, quite naturally and very properly, when my hon. Friend's approach was made to him, said that he could not have such a consultation without my consent.

My hon. Friend has complained that there was no reply obtainable from me between 25th February and 5th March. I had no knowledge of any such request until after his conversation with me in the Division Lobby, which was after the arrangement apparently had been made, or was sought to be made, for this particular consultation. It is quite wrong to suggest that I at that time stopped any consultation taking place. I did not know anything about these arrangements. I had no knowledge of them at all or of these efforts to make them.

I am quite certain of this. If my hon. Friend were a party to a case, he would think it quite remarkable if one of the witnesses in that case had, without a word to him, tried to secure a consultation with his counsel to discuss with that counsel whether he should bring an appeal.

I cannot really say that my hon. Friend has performed a public service in raising this matter tonight, but perhaps some advantage may be reaped from this debate if I explain to him what I have endeavoured to explain before, but without any success—what really is my duty in relation to this case in my official capacity.

The relevant facts for the purpose of this debate can be quickly summarised. George Bernard Shaw left his estate to the Public Trustee on trust to carry out certain work of research on what I shall call a Shavian alphabet, with the proviso that if that trust failed the money was to go at once to three residual legatees, all of whom—I must emphasise this, for it is important to the exercise of my functions—are charitable institutions.

My concern in the case arises from the fact that I am at law the only representative of the Crown in its capacity as protector of charities. It is not my concern to support any particular charity. It is certainly not my concern, nor my duty, to support the provisions of any particular will. I fear that, despite my many efforts to explain the point to my hon. Friend, he has failed to grasp this, because he seeks to assert that it is my duty to support Mr. Bernard Shaw's will. My concern in this case was, therefore, to support the trust for the Shavian alphabet if, and only if, I was satisfied that it was a valid charitable trust. If I had been satisfied of its validity, but not that it was a charity, not only would I not have been concerned to support the will, I should not even have been a party to the proceedings which were before the court.

It is equally not my concern to support the will because of any view I may have formed of the intentions of Mr. Bernard Shaw in drawing his will in the particular language he selected. That is not my function in my official capacity in this matter. The question of my personal views to which my hon. Friend referred has no bearing whatsoever on my discharge of my official duties. The question whether I voted for or against Bills designed to introduce simplified spelling has nothing whatever to do with it.

I will now return to the part played by my hon. Friend in the case. He gave evidence in an affidavit in support of the argument that the trust was a charitable trust, and I am grateful to him for the information and help that he gave with regard to that. But now, judgment having been given, he reiterates his demand to see the counsel who represented me. An appeal, however, in the circumstances of this case lies, as I have told my hon. Friend more than once, on points of law only.

No useful purpose can be served by my hon. Friend at this stage seeing counsel appointed by me. There is no question of his giving any evidence in the Court of Appeal, and I see no reason whatsoever for acceding to my hon. Friend's request. He is, of course, at liberty to consult, as I understand he has done, any other counsel he wishes, but the only ground for my consulting other counsel would be lack of confidence in the experienced counsel who have appeared for me, and I certainly do not lack that confidence. The implied suggestion that they are incompetent to deal with the question is wholly unwarranted.

I want to make it quite clear that my hon. Friend is quite wrong in regarding it as my function to put the case for Shaw's side. That is not my duty. The only reason I appear is as protector of charities and, as I have indicated, I should appeal—I may appeal—if I consider that there is ground for doing so in that capacity alone.

There has been some reference to funds for an appeal. If I come to the conclusion that an appeal ought to be brought in this case—and I can assure my hon. Friend that not even the worst of his efforts will discourage me from bringing an appeal if I decide that that is the right course of action—it will be brought without recourse to any funds that might be subscribed.

The Question having been proposed after Ten o'clock and the debate having continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order

Adjourned at eleven minutes to Eleven o'clock.