SECOND READING. (Hansard, 7 July 1905)

§ THE LORD CHANCELLOR (The Earl of HALSBURY)
My Lords, I propose to avail myself of the suspension of Standing Order No. XXXIX., which has already been agreed to, in order to pass the Bill through all its stages this day.

§ THE MARQUESS OF RIPON
My Lords, I wish to ask a Question in regard to the Bill which would properly have arisen in Committee, but which I will put now, as the Lord Chancellor proposes to negative the Committee stage. In another place, it was asked last night whether, if the Commission which would receive power under this Bill desired to send a sub-Commission out to South Africa to conduct any part of its inquiry there, that sub-Commission would have the same powers as the Commission possessed here, under the Bill with regard to the enforcement of the attendance of witnesses and other matters of that kind. I understand that the Answer given was that such a sub-Commission would not, under this 1461 Act, have any such powers, but that they would obtain those powers from the local Legislatures. I can readily understand that that may be the case in regard to the Transvaal and Orange River Colonies, because from the Constitution of those two colonies it would not be difficult to obtain any powers which the Government might wish. But I want to ask whether the Government think that it would be equally convenient and easy to get those powers from Cape Colony and Natal. I greatly doubt whether the Legislatures of those colonies are likely to be in session at the time; and, if they are not, how are the Government going to get these powers? Any person whom the sub-Commission might wish to examine and who might object to be examined at Pretoria and Bloemfontein would have only to go over the frontier into Cape Colony or Natal to escape from the compulsory powers of the sub-Commission. The Questions which I wish to ask are therefore—first, will any such sub-Commission really be able to obtain such powers at all; and, secondly, if it obtains them in the Transvaal and the Orange River Colony, do the Government believe that they could get similar powers conferred on it in Cape Colony and Natal?

§ THE LORD CHANCELLOR
My Lords, I have not had an opportunity of seeing what the noble Lard refers to as having occurred in another place; but I confess that I should be surprised if the observations which the noble Marquess attributed to some person on behalf of the Government in regard to this point were what he has stated them to be. Looking at it myself, I would say that, if this Bill were passed into law, the Commission would have the same power of sending a Commission abroad to British colonies, if they thought proper, as a Judge in the ordinary course of things would have. I see nothing in the language of the section as it stands to control that power. The section runs— The Commissioners shall have all such powers, rights, and privileges as are vested in the High Court or in any Judge thereof, on the occasion of any action in respect of the following matters: The enforcing the attendance of witnesses and examining them on oath, affirmation, or otherwise, and the issue of a Commission or a request to examine witnesses abroad, etc. 1462 I hesitate very much, without having heard what is said on the other side, to deliver an opinion at the moment, but to my mind that language comprehends the powers to which the noble Marquess obviously referred. I see Lord Davey present, however, and I would be very glad to have his opinion on the point.

§ LORD DAVEY
My Lords, the powers given to the Commission by Section 1 are given by reference to those vested in the High Court, which, of course, means the High Court of Judicature in this country. It is quite true that a Judge of the High Court of Judicature in this country can send a Commission abroad either to one of our own possessions or to a foreign country to examine witnesses; but, unless there is some law in the foreign country or in the colony to which the Commission is sent which enables that Commission to compel either the attendance of witnesses or to enforce the production of documents, the Commission issued by a Judge of the High Court in this country for the purpose of a trial would not have power in Cape Town either to enforce the attendance of witnesses or to enforce the production of documents. I have always understood that a Commission is a very valuable thing for the purpose of obtaining evidence: but it can only obtain evidence from those persons who come forward and give it. I am not aware that a Commission issued by a Judge of the High Court in this country could compel the attendance of witnesses in Cape Town, and that, I think, was the point to which my noble friend's Question was directed.

§ THE LORD CHANCELLOR
My Lords, I do not wish to express an adverse opinion offhand. I think that in the case of a Commission to a foreign country it may well be that they cannot get the compulsory attendance of witnesses without some part of the jurisprudence of that country being invoked, but dealing with British colonies and British subjects, I confess that my view would be rather that these powers involved the power to compel the attendance of witnesses. I hesitate, however, to express an adverse opinion.

§ EARL SPENCER
My Lords, I am not going to venture upon a legal discussion, but I would ask the noble and learned Earl on the Woolsack whether he still wishes the Bill to go through all its stages at once. If there is this doubt, cannot the matter be put right in Parliament? And if it can be put right it is hardly desirable that the Bill should be put through all its stages on this occasion.

§ THE LORD CHANCELLOR
I quite admit the force of the noble Earl's suggestion, and withdraw my Motion.