INDEMNITY OF WITNESSES.

HL Deb 14 June 1842 vol 63 cc1516-29

Lord Brougham

rose to move the second reading of the Witnesses' Indemnity Bill, which had been sent up from the Commons. He should state the reasons why, notwithstanding what had happened in the other House, he still considered it right that their Lordships should adopt this measure. About four weeks ago a bill had been sent down from this House to enable committees of both Houses to institute inquiries effectually into practices of a corrupt nature at elections for Members of Parliament. That these inquiries ought to be confined to committees of the other House of Parliament he utterly denied. All inquiries relating to titles to seats in the other House—all inquiries connected with the privileges of the other House must be confined to that House; their Lordships had nothing whatever to do with them. No person in this House ever dreamed of interfering with the power of the other House with respect to any investigation either regarding the punishment of offences against the privileges of that House, or with a view to affect the right of any Member of that House to the seat to which he had been elected by his constituents. But an inquiry might be contemplated, and it was clear such an inquiry had been contemplated by the other House itself, of a prospective nature with a view to legislation, to amend, if it were thought expedient, a most important part of the criminal law of this country; and he hoped he had not lived to see the day when this House, being a co-ordinate branch of the Legislature, and the highest judicial tribunal in the realm, might not introduce any legislative measure it thought fit in order to amend any branch of the criminal law, which should not trench directly or indirectly on the privileges of the other House in respect to the election of Members of the other House. Bribery was an offence of a very comprehensive operation, with reference to the election of Members of Parliament; but it was not a matter exclusively connected with the functions of the other House; bribery connected with the election of Members of the other House was a matter within the cognizance of their Lordships in their legislative capacity, as well as other offences. It was, therefore, with some astonishment he had heard an objection made to their Lordships instituting such an inquiry specifically and exclusively with relation to a subsequent measure of a legislative kind. He had heard it said, that it was not for this House to undertake the amendment of the law in respect of bribery; that that was the peculiar province of the other House. He supposed, that if they attempted to amend the law in respect to larceny, or assault and battery, or conspiracy, or murder itself, they should be told "No; if you will legislate on such matters, do so; but see that you do not take up any matter connected with the election of Members of Parliament; see that you except all riots connected with elections; all larceny connected with elections; all assaults and conspiracies and murders connected with elections, for with them you have no business, except to assent to bills sent up from us." This was so utterly ridiculous that he ought to apologise to their Lordships for mentioning it. He held it to be clearly within the competency of their Lordships, and their duty to enter into such investigations previous to their undertaking to amend the law of this country connected with bribery at elections. Accordingly, last summer, roused by the universal cry throughout the country with regard to what had taken place at the last election, to the enormities which had prevailed there— enormities of a nature not only to prevent the free choice of their representatives by the people, rendering elections no better than a mockery, but to cause a breach of all moral, civil, and religious duties, and sow vices broad-cast over the whole face of the land. Crying aloud, he would not say for punishment, because, by the present law, no prosecution could be effectual, but for some legislative measure to prevent the repetition of such enormities—he had held it to be his duty to address himself to the subject, and as soon as certain inquiries which were proceeding in the other House with a totally different view had been brought to a close, he proposed to enable their Lordships in their own committees to take into consideration this great and important subject. For that object he presented a bill to facilitate inquiry here and elsewhere, if the other House chose to undertake the like investigations. That bill, with hardly any exceptions, met with the general assent of their Lordships, and about a mouth ago was despatched to the other House. It gave, not indemnity to witnesses, for to that there was the greatest objection; but it gave power to committees to indemnify witnesses if they should disclose honestly and fairly, and to the satisfaction of the committee, what should be required of them touching bribery and corruption. Now, there was an additional power which he proposed to give, as essential, which he believed at the time was unusual; he considered it of the first impression, never before propounded, and never acted upon; but he was disposed to grant it as tending to make inquiry effectual,— namely, a power to the committee, not only to indemnify witnesses themselves, but to protect persons of respectability respecting whom they should give evidence. The reason was obvious; many persons would not come forward unless they knew that they were themselves to be indemnified; but there was another and a larger class of persons, whose evidence was most material, who would not come forward even if they were indemnified, as well as their accomplices, unless you indemnified others also. Another clause, which was declaratory as well as enacting, gave power to committees to withhold the names of parties. It had been suggested, that committees had that power, and no doubt it had been exercised by the bullion committee and other committees, who had withheld the names of individuals who had given very important evidence. The whole of this measure was with a view to one case—that of the last general election. It had not a prospective nor a retrospective effect. The provisions were framed on the supposition that it was expedient rather to forego the chance of bringing a number of persons to punishment., in order to obtain accurate information which might have an important bearing upon a legislative measure to be proposed, and he, for one, should say, that bad as the late scenes were, and great as the bribery and corruption had been during the last election, it was better to endeavour for the future to stem the frightful torrent of corruption which had inundated the morality of the country during the last six or eight months, than to take the chance of bringing offenders to punishment—to let bygones be bygones for that once, and to look to future legislation for future prevention and punishment. With that view, the measure had been framed, and it was sent down to the other House. He had every reason to believe, that there prevailed the same right feeling on this subject— the same desire to prevent the increase of this crime, as existed in their Lordships' House in the other House of Parliament, which was, if possible, more nearly and deeply interested in its prevention" He wished to speak with all proper respect of the other House; as representatives of the people, no portion of the community held it in higher respect than he did. He went further; he would respect it not only in the proportion in which it showed that it respected itself, but he gave it a larger measure of respect; he respected it in proportion of what it ought to do to possess respect. To command the sympathy of others, it was said, you must show that you were yourselves affected; and you will meet with more respect in proportion as you set the example of respecting yourself. Therefore he believed, and hoped he should continue to believe, that there was an honest and hearty desire prevailing there to investigate these grave charges, and therefore it was that he saw with no little astonishment that the other House did not avail itself of the opportunity which their Lordships had afforded of at once entering upon the investigation. An effectual measure had been sent down to the Commons, which offered the means, if they chose, of instituting inquiry, of getting at the truth, and of dragging forth the vice in all its naked deformity. Here was a lever put into their hands by which to work; and the first thing they did was to throw it aside, and say, "We won't have it; it may be effectual, it may be useful; but we won't have it, because it came from you." If they wanted to alter the bill, they might have done that. If they resolved that the House of Commons should have the inquiry, they might have secured it to themselves; but no, the bill was laid aside, and another substituted in its place, the only effect of which was to delay, for so many months, a remedy for the evil complained of. A large part of the bill passed by the other House was precisely the same, without the alteration of a single letter, as that which had been sent down by their Lordships; so that there was not the slightest reason why the other House should not have done what they had done by passing their Lordships' bill with alterations. It required all the charity of which he was master, it required all the candour which he could conjure up, or which he could borrow from any of their Lordships, to enable him to come to the conclusion that the same earnest desire prevailed elsewhere as he believed existed in their Lordship's House, to undertake seriously and effectually the investigation of this important subject. Privilege was alleged as the ground; no doubt with a great number of persons privilege had been the real and honest ground for the course which had been pursued; but he had no manner of doubt that there were other parties who had been very well pleased to put forward privilege as the justificatory reason, and whose real ground of proceeding had been wholly unconnected with the privilege of Parliament, but of a nature very nearly affecting themselves, and which had influenced them in desiring to delay that investigation which he deemed most necessary. He alluded not merely to those who were Members of the other House of the Legislature, but to those who sent representatives to Parliament. But if their Lordships suspected that such reasons as those to which he had referred, had influenced any parties, he recommended their Lordships, in order to frustrate the designs of those persons, to pass this bill, how objectionable soever it might be in some respects, and thus to leave no loophole of escape, no possibility of avoiding inquiry. That bill would arm the other House with as much power for inquiry as they had chosen to take, and it was no fault of their Lordships if that power was not effectual. If any persons connected with either House of Parliament entertained a design to prevent their Lordships from instituting an investigation, he could not congratulate those persons on their success, for he felt that they had gained a victory—a triumph—over the best interests of the country; but he must certainly admit that those parties had been completely successful, and that they had prevented, stifled, and cut off all chance of an inquiry being prosecuted by their Lordships' House. Had such an inquiry taken place, he would have been prepared to show that, during the last general election, practices had prevailed which were destructive of the freedom of election, and subversive of the morals of the people. He was prepared to show that, from the highest to the lowest ranks of the community, those practices had too successfully prevailed, that the influence of property had been very generally abused, that intimidation had been resorted to, as well as bribery and the lighter influence of property. He would have been prepared to show that high official influence had been used during that general election; that, as he informed their Lordships last summer when he broached this subject, the highest names in the country had been used on that occasion, and that the most gross abuses that could be committed had thus been perpetrated. He would have been prepared to show that means had been extensively adopted for the intimidation of electors, and the prevention of the free exercise of the elective franchise, especially with reference to a class of tradesmen to whom he would not now more specifically refer; and this circumstance, he considered, rendered it of the utmost importance that an inquiry on the subject should have been honestly" and fearlessly instituted and completed. He had mentioned these matters in the course of the last summer, when he brought the subject under their Lordships' notice, but now the chance of instituting an inquiry had, as far at least as their Lordships were concerned, been taken away, because the bill now sent up to their Lordships confined inquiry to a few places, and to a few committees, entirely excluding a more general and, in his opinion, most urgently necessary investigation. Such was the nature of this bill which he recommended their Lordships to adopt. He certainly did not flatter himself with the hope, nor could he recommend their Lordships to entertain the expectation, that this bill would effect so much good, or nearly so much good, as the more ample and he thought better measure which their Lordships had passed with rare unanimity, or that it would enable those House of Commons committees, to which its benefits were confined, to undertake their investigations with that sure prospect of success which he conceived they might have secured by adopting the measure he had proposed, or that it would lead to the same results which he had no doubt would have been attained by his bill. But he really entertained a very sanguine expectation that the inquiries conducted under the bill now before their Lordships would prove, to a certain extent, beneficial to the country, with a view to the prevention of the practices to which he had referred, and to the adoption of some efficient legislative measures on the subject. He had great confidence in some of those Gentlemen who were known to him, and who, he saw by the votes of the House of Commons, had been appointed on one committee, armed with due powers to conduct an inquiry of this nature. He observed on that committee the names of some Gentlemen for whom he entertained great respect, who were men of high ability and honesty, and whose determination he believed it would be not to trifle with the subject, but to exercise the powers conferred on them by Parliament. When this bill was passed— as he hoped it would be without further delay—that committee would be armed with powers which he had no doubt they would exercise for the public advantage. "At all events, do not let us throw any obstacles in the way. The bill is before us—shorn, in a measure, of some of those provisions which rendered it valuable; but still it may to a great degree prove effectual. Pass that bill without delay. But a short period of the Session is now available for conducting the inquiry. Let us not throw any impediment in the way of investigation. We have offered our aid and assistance, and the offer has been rejected; they have pursued their own course; do not let us obstruct them in that course, but let us help and speed them, and continue to aid by all means in our power the investigation of this subject, in order to repress for the future the commission of such enormities. As soon as the other House of Parliament shall think fit to arm your committees with the same power with which you are disposed to arm theirs, I shall renew the offer of my humble help in aiding your Lordships in these inquiries; but until that power is given, until an efficacious mode of proceeding shall be open to us, I hold it to be utterly useless, and worse than a mockery, to take any further proceedings on this subject." He thought their Lordships had a right to ask the House of Commons, who had sent up this bill, to communicate the evidence which had been taken before some of the committees appointed by that House on the subject of bribery. When he mooted this question on a former occasion, he was told that the other House deemed it inconsistent with their privileges to send up to their Lordships the minutes of such evidence; but that, when a legislative measure should be forwarded to their Lordships for their sanction, the House of Commons would not object to communicate those minutes. He was now told, however, that objections were still entertained by the other House to furnishing thir Lordships with reports of the committees to which he alluded. The reports of those committees were, he believed, sold for 6d. each, and any person who chose to expend that moderate sum might possess them. But, while the other House did not hold it to be inconsistent with their interest to take the 6d., they considered it inconsistent with principle to allow the House of Lords regular access to the reports. He could not comprehend these nice distinctions of privilege. "Let them keep these reports to themselves," said the noble and learned Lord, "but let us abstain from following the example. In proportion as they are niggardly in their grant of aid to us in these matters, let us be lavish of our assistance to them; and as the first and best aid we can give them— remembering that he who gives quickly gives twice—let us without delay pass this bill, and wish most heartily that success may attend that inquiry which will be conducted under the measure. I beg to move that the bill be now read a second time."

The Earl of Wicklow

said, he had supported the bill introduced by his noble and learned Friend, which was passed by their Lordships and sent to the other House. That bill was an indemnity bill for all witnesses, &c, who might be called on the trial of election petitions consequent on the late election. But what was the nature of the present bill? It was simply for the purpose of giving indemnity to witnesses upon one particular committee, which was not a bribery committee at all, but a committee to inquire into certain compromises. [Lord Brougham: And bribery.] He was aware that the committee must also investigate cases of bribery; but this bill excluded the various election committees to which the other bill entirely related. He must therefore say, that so far from being a substitute for the other bill, it was a bill of a directly different nature; and he felt great pleasure in saying so, because he ventured to hope that the House of Commons had not treated the bill of their Lordships in the manner which his noble and learned Friend seemed to suppose they had done. He should deeply regret that, because he agreed with every statement of his noble and learned Friend as to the duty and interest of the House to inquire as fully into such subjects as the House of Commons. It was quite true that House might feel a delicacy in delegating any portion of its power on that subject to their Lordships; but when an inquiry was to be instituted into corruption and bribery generally, unless their Lordships were competent to inquire into the matter it would be an evil of the greatest magnitude; and he believed that unless the House of Commons should entrust some other tribunal to inquire into these evils, which had of late years considerably increased, they would still go on increasing. He was of opinion with many Members of the other House of Parliament, that it was a most incompetent tribunal for the trial of election petitions, and he hoped that ere long the House of Commons would see, that if a stop was to be put to this increasing immorality it would be necessary to confer that jurisdiction on some other tribunal. The present bill solely relating to a particular point abandoned by their Lordships could not, in any manner, be considered as a substitute for the bill sent down; and he therefore ventured to hope that that bill had not been treated in manner suggested. The question now before their Lordships was with regard to the second reading of the bill, and the suspension of the Standing Orders in order to carry it through alt its stages. He could not see the necessity for such a course of proceeding. Such a measure was sometimes adopted by their Lordships in cases of great exigncy, but it was contrary to the usual practice, and in its nature implied a violation of the usual forms of the House. He did not think his noble and learned Friend had made out a sufficient case for the suspension of the Standing Orders.

Lord Brougham

said, his noble Friend was mistaken as to the diversity between the two bills. The great difference was, that this bill was confined to that one committee; but the former bill had nothing to do with election committees. He expressly avoided making any reference to election committees, because he understood the House of Commons objected to any bill respecting election committees originating with their Lordships. When he first saw the present bill, before it attained the shape in which it had now been sent up, it was word for word the same as the one sent down, with the omission of the clause as to secresy, and shutting out their Lordships and their committees, and confining it to that committee. The whole of the first clause was inserted mutatis mutandis, and the whole of the second clause was put in word for word, and with a singular accuracy, because it inserted a part by mistake that did not apply to the bill in its present shape.

Bill read a second time.

Lord Brougham

then moved the suspension of the Standing Orders, His reason for doing so was this. The subject had already been fully discussed, and although the committee of the other House had been appointed for some time, it had pot been able to proceed for the want of this bill.

Lord Campbell

should not object to the suspension of the Standing Orders, but he hoped it would not be considered that by this mode of proceeding any Member of their Lordships' House intended to cast a sarcasm upon the House of Commons. He must use the freedom of regretting that his noble and learned Friend (Lord Brougham), who for so many years was such an ornament of the House of Commons, and for whom the House of Commons now entertained the most kindly recollections, should, on various occasions (as it seemed to him), have gone out of his way to utter sarcasms and fulminations against that branch of the Legislature. He did not find that his noble and learned Friend had brought forward any reason for the attack he had made; nor was there any reason for supposing during the present Session of Parliament that the House of Commons had not heartily, seriously, and vigorously, set about to suppress this very great offence of bribery. According to the votes of the other House, a very great portion of its time seemed to have been occupied in investigating cases of bribery, and from the bill the Commons had now sent up to their Lordships, it appeared that a committee had been appointed for the first time to inquire whether corrupt compromises had been entered into in respect to the several boroughs of Harwich, Nottingham, Penryn, Falmouth, Bridport, and Reading. Could a more stringent measure be resorted to for the purpose of discovering the truth and of suppressing the offence? His noble and learned Friend had complained of a bill which he had brought into their Lordships' House, and which had been sent down to the Commons not having been returned. It might still be taken into consideration, be passed, and returned to their Lordships, and receive the Royal assent. But if the House of Commons should not approve of his noble and learned Friend's bill, surely they had the right to judge for themselves, and determine what was the most expedient course they should take. Although that bill passed their Lordships' House without any vote being taken upon it, yet for one he did not think it was calculated to produce any very important effect; and if it should not be allowed to come up for the Royal assent, he doubted whether the public—always speaking with the most, sincere deference to his noble and learned Friend—would suffer very much from that measure being lost. The clause, the omission of which his noble and learned Friend complained of, was one which his noble and learned Friend himself admitted to be entirely new, and which, if it had passed, would certainly have gone down to posterity as the "Brougham clause." It enacted that the committee of either House might grant pardon, not only to a witness, but to any person whose name might be mentioned during the investigation touching all crimes and offences that might be committed during the election. This was allowed to be new, and he very much doubted whether the House of Commons, upon consideration, would adopt such a clause; and he rather thought some noble Lords did not oppose the clause, thinking that it was not very likely it would meet with the approbation of the Legislature. What might be the effect of this? Suppose a committee appointed by each House to investigate the same case; and the committee of the House of Commons should order the Attorney-general to prosecute a party for bribery, to whom, let it be supposed, the House of Lords had granted a pardon. The two branches of the Legislature would be thus brought into collision; and a clause of that nature might have led to such inconvenient consequences, as might have justified the House of Commons to reject it without being so severely lectured as it had been by his noble and learned Friend. He should be sorry to find that his noble and learned Friend, who was so long an ornament of the House of Commons, and from whose talents, eloquence, and patriotism, he entertained the highest possible respect, should at all detract from the merits belonging still to that assembly. He hoped that his noble and learned Friend did not think that the House of Commons had lost all virtue because his noble and learned Friend was no longer a Member of it. He knew not whether his noble and learned Friend would be sorry again to sit as the leader of the Opposition, or as the organ of Government in that House. Perhaps he would, and perhaps he would not; but of this he was sure—having himself but very lately belonged to that House— every Member of it retained a lively sense of the great merits, abilities, and eloquence of his noble and learned Friend, and it would give him great pleasure to find that those kindly recollections were mutual, and that his noble and learned Friend thought and talked as kindly of the House of Commons as the House of Commons thought and talked of him.

Lord Brougham

said, that nothing was more gratifying to him than to hear the respect which his noble and learned Friend had been pleased to express towards him on the present occasion, and he begged leave to return, with equal sincerity, the assurance of his entertaining the same degree of respect for his noble and learned Friend 5 and, consistently with that respect, he would add, that a more able, or more effectual, and a more triumphant defence could not have been made for those proceedings of which he had undertaken to be the advocate. He had often known his noble and learned Friend more successful, more triumphant as an advocate in other causes, but then it was when his case was better than it was upon the present occasion; and all he could say was, that his noble and learned Friend had done the utmost that could be done for the cause he had maintained. But the mis-statement and the false reasoning of his noble and learned Friend, his noble and learned Friend himself, never surpassed, upon any former occasion, even at the bar or in their Lordships' House; he meant when making mis-statements, and using false reasoning, in the character of a retained advocate, and when it was his duty to attend to the interests of his client alone, and to be governed by no other principle while maintaining those interests. His noble and learned Friend had said, that the clause which his noble and learned Friend had been pleased to baptize with his name, was at once monstrous and perfectly intolerable, and therefore their Lordships had made a fortunate escape by that clause being struck out. But what might have happened? His noble and learned Friend said, that a committee of the House of Lords might grant a pardon to a party whom the House of Commons had directed to be prosecuted. Now, in the first place, that clause did not give an indemnity; it was left to the discretion of the committee: and did it not occur to their Lordships that that committee would have been strangely advised, and would have had a most extraordinary notion of its own duties, if it had exercised the power of indemnifying a witness in opposition to a vote of the House of Commons. But moreover, was this effect peculiar to that clause? Why, the same thing might happen under the very bill now before their Lordships; for suppose the House of Commons should indemnify a party, was there anything to prevent the House of Lords addressing the Crown, praying that the Attorney-general might be directed to prosecute the individual? Most undoubtedly not. But how stood the case with respect to other bills? Bills had been sent up from the House of Commons, a few years ago, liable to precisely the same objection. When his noble and learned Friend was Attorney-general, bills giving a committee of their Lordships' House the same power of coming into collision with the House of Commons, as the clause which he had framed would have given, were sent up to their Lordships'. That argument, therefore, was entirely at an end. There could not be the least quarter given to it, for it arose from a complete mis-statement of the object of the clause, and a complete want of recollection of the nature of former bills. Let him add, that after a bill had passed that House, it was not the bill of the individual, but the bill of the House which had adopted it. He also begged leave to disclaim most amply the least intention to cast any vague or spiteful imputations, or any disrespectful aspersions upon the other House of Parliament. He denied, and utterly disclaimed any such intention. He had, however, thought it his duty to call the attention of their Lordships to the delay which had taken place in the other House of Parliament in respect to the measure of legislation which their Lordships had sanctioned.

Standing Orders suspended. Bill went through committee, and was read a third time and passed.

The House adjourned.