§ 2.35 p.m.
§ Order of the Day for the Third Reading read.
§ The LORD CHANCELLOR (VISCOUNT JOWITT)My Lords, in moving as I do that this Bill be now read a third time, I desire to take this opportunity of saying just a few words to commend this Motion to your Lordships. I should like to express my sense of the indebtedness which I feel to all noble Lords who have judicial experience and who sit in this House for the help they have given me in regard to this Bill. I should like to thank, in particular, my noble and learned friend Viscount Simon, who has called together an informal committee of those of your Lordships who sit on appeals in order that this Bill might be investigated not only clause by clause but line by line; and I have caused to be available for them the Treasury Solicitor and the draftsmen, to whom I have already on a previous occasion paid my acknowledgments.
I have also bum in touch with the heads of the various Divisions—the Lord Chief justice, the Master of the Rolls and the President of the Divorce Division—and with a very large number of other Judges who have great experience in this matter, and I think I may fairly say that this Bill receives the unanimous approval of the entire Bench of Judges. There are those who, because the Judges in Lord Ellen-borough's time took rather a recalcitrant view' with regard to certain criminal re-forms—in which, I may say, the Bishops supported them—seem to think that lawyers have always been opposed to any kind of reform. I hope that this Bill is a complete answer to any such contention. This Bill is a Bill for which the legal profession has been pressing for the 924 last twenty years, and I count it as a great good fortune that it has fallen to my lot to bring it forward.
Lest it be thought that various clauses which have not been the subject of debate in the Committee stage of this Bill have been passed over without special notice, I wish to refer in particular to a question to which I mentioned on Second Reading—namely, the question of discovery. I should like your Lordships all to know that this question, as to the right method of dealing with discovery, has been the subject of most anxious consideration, and that the result specified in the Bill is the result at which we have unanimously arrived. I mention it again because I think this matter is of the first importance. During the preparation of this Bill, and in consultation with your Lordships, we have discussed this matter. I find a unanimity of view—namely, that the final decision as to whether a document should or should not be produced must be left, in the words of Lord Parker in a famous case, the Zamora, to "those who are responsible for the national security, who must be the sole judges of what the national security requires." I have heard it stated that the right thing to do in the interests of a subject who is a party to litigation with the Crown is to leave it to the Judge trying the case to say whether the document should or should not be produced. The matter has been dealt with as fully as it can be by my noble and learned friend Viscount Simon in his judgment in the Thetis case, where he quotes the opinion of Chief Baron Pollock, of Lord Dunedin and of Lord Kinnear.
The reasons why the decision must be left to the executive are plain enough. In the first case, the Judge cannot possibly inform himself of all the relevant factors which may or may not contribute to the view that the production of a particular document would be injurious to the public interest. The interactions, for example, of policy and machinery governing the administration of the Service Departments are so complex that it would be virtually impossible to deal with a single document in isolation. I dare say—as my noble friend Viscount Simon pointed out—there is the reason that if the Crown is a party to the litigation the Court could scarcely take a decision on the question of whether a particular document ought to be produced without contravening the 925 elementary principle of justice that a Judge should have no dealings with one litigant on the matter in hand save in the presence of and in 'the equal knowledge of the other.
I also stated on Second Reading that, in my judgment, the functions conferred on Ministers of the Crown in these matters are of a most serious nature. I pointed out that the administration of justice is of the greatest importance, that every relevant document ought to be produced, and it is only if the Minister really applies himself to the particular question as to whether the public interest overweighs the ordinary principle of disclosure that he is justified in giving a certificate refusing discovery. I think it would be right that I should inform the House that I have it in mind to communicate with my colleagues on this point, after the Bill is passed into law, in order—possibly by a directive of the Prime Minister himself—that the importance of this matter might be brought to the attention of all Ministers concerned. I will conclude by adding this. This Bill represents the joint effort of many of your Lordships of all Parties, and of no Party. I sincerely hope that, now that we are sending this Bill to another place, all Parties in that other place will work together to ensure that this Bill safely reaches the Statute Book at the earliest opportunity. I beg to move.
§ Moved, That the Bill be now read 3a.— (The Lord Chancellor.)
§ 2.43 p.m.
§ Viscount SIMONMy Lords, now that we are saying farewell to this measure which has been piloted through the House with such tact and ability by my noble friend, the Lord Chancellor, I think it right that we should look back on our labours and declare that they are very good. My noble friends and I are very appreciative of what the noble and learned Viscount, the Lord Chancellor, has been good enough to say about the help he has received, and he knows very well that it has been most willingly given. The Bill is a complete piece of construction dealing with a subject which in some respects is not at all easy.
Now that we are sending it to another place I think we are entitled to remind ourselves, and anybody else who is con- 926 cerned in examining or criticizing it, that it has not been accepted without close examination, and that we in this House have in this field, as we have in so many other fields, members who can really claim to be qualified to form an opinion and to offer a judgment on some of the special difficulties involved. That has certainly been done in this case, and I wish it were thought proper that I should recite the names of all of my colleagues in the law who have joined me in rendering such help as we could. I think the Bill has been greatly improved in the course of its passage through this House. It was very well drafted, but when one examines these clauses one at a time one finds here and there something which could undoubtedly be changed for the better. That process has never, I think, been more carefully and thoroughly pursued than in the present instance.
I must say one word in support of what the noble and learned Viscount the Lord Chancellor has just said about the clause dealing with discovery. As he reminded your Lordships, the provision in substance is that if what is required is the discovery— the disclosure — of Crown documents (which for practical purposes means certain departmental documents), it must be for the ministerial head of that Department to decide, after due deliberation and after weighing the matter as it ought to be weighed and as the law has laid down that it should be weighed. I am not at all disposed to favour any special indulgence to Ministers of the Crown. They are citizens like the rest of us, and they take the rough with the smooth. The law and the Judges are above them in all possible matters, just as they are above any others. We shall all agree about that. But when it comes to asking for the production of a document which is in the hands of a Government Department, very special considerations necessarily arise. After all, the public interest is something bigger than any private interest, and indeed it is to the interest of every private citizen that the public interest should be properly served. There is no contrast between the two things, but the question is, where does the public interest lie? If it is in the public interest, properly defined, that a particular document should not be produced, then it is not a question of what is ordinarily called discovery between the parties; it involves 927 the far higher principle of the safety and proper administration of the State.
I remember that at an earlier stage the noble and learned Viscount the Lord Chancellor gave an example. It is one with which, in the days when I was Attorney-General, I actually had to deal in a case which was being very keenly contested. As your Lordships know, every year the commander of every unit in the different Forces of the Crown makes his annual report to the War Office, the Admiralty or the Air Ministry as the case may be on the junior officers under his command. He reports as to their ability, as to their diligence, as to their suitability for their work and as to any serious defects which he has noticed in them. If you are going to have an effective Force at all, you must have that system. The question arose in the case I have in mind of whether that report could be produced in a litigation in which one of these junior officers was concerned. I may perhaps say that it would have suited the Crown very well (I represented the Crown) to have produced it in that case, but I thought it was perfectly right for the Secretary of State to refuse to produce it, and on the simple ground that if once you permit these confidential reports made annually by commanding officers to be disclosed, you can never expect in the future that you will get commanding officers to report absolutely candidly, even though their reports may contain some unpleasant or unfavourable reflections. Therefore it is in the essential interest of the State—in the public interest—that such reports should not be disclosed. Upon the claim being made in all due form by the Minister who had studied the case and examined the document, the document was not produced; and I think that was quite right.
My noble friend referred just now to the Thetis case. It is old history now, but what was desired there by the plaintiffs was to have produced to them then and there the blue prints which would have shown exactly how the submarine Thetis was constructed. I do not say that that would not have been of some little assistance to them; it would not have been of much assistance, I think, but it would have been of some. I do not think I am disclosing any secret nowadays when I say that if those blue prints had been 928 produced it would have appeared that submarines of the type of the Thetis were not only armed so that they could fire forwards under the water but that there were also further tubes which could fire from behind. That was a secret and we were at war with the Germans. I have not the slightest doubt that the First Lord of the Admiralty was justified when after considering this particular circumstance, he came to the conclusion that he should say, "I am sorry, but I must claim privilege for these particular blue prints." It did not in fact do the plaintiffs any harm in the end, because their case was perfectly well made out without them, but it is a very good example of what I mean when I say that you really cannot (not even in a democratic community which treats everybody as equal to everybody else, or ought to do so) simply say, "The document is relevant; therefore let the Department produce it."
But while that is so—and my noble friend was good enough to refer to the judgment of the House of Lords about this matter, in which I took a part—it is most essential to insist upon the way in which the Minister is to claim this privilege. I endeavoured to set it out in the course of the opinion to which my noble friend has referred. Let me point out three or four things. The Minister is not entitled to say, "I claim privilege for this document because if it were disclosed things would not look very well in my Department." He is not allowed to do that. He is not allowed to say, "If I disclose this document it would get the Government into trouble." That has nothing to do with it. He is not entitled to refuse to disclose it because the document is marked "Confidential"; no end of documents are marked in that way. He has got to claim privilege because, after being properly advised, he has come to the conclusion himself, as a matter of his individual judgment, that the particular document is one, or is one of a class, which it would be against the public interest to produce.
Once he comes to that conclusion, I agree entirely with the noble and learned Viscount the Lord Chancellor that that must be a matter which is decided by the Minister and that it cannot, as some people have suggested, be decided by the Judge. In the first place, I cannot conceive how a Judge could have the material to decide it. He would need to go, in effect, and sit in the Minister's chair, in his Depart- 929 ment. He would need to call for other documents to understand the relation of this one to others. He would need to learn the methods of the Department, and that would be perfectly impracticable. Believe me, as a matter of practical possibility, it simply could not be done. The second reason, which appeals to me very strongly, is in regard to cases where the Crown is a litigant. Just imagine the injustice which might be involved if the Judge were to say to the representative of the Department: "Will you let me look at your privileged document for a moment? "He may then begin to ask questions about it of the representative of the Department. He may ask: "What is that reference?" and say: "Show me that other document." All the time he will be conferring with the one side when, in the nature of things, he cannot show anything to the other. If he shows it to both sides it would be the same thing as disclosing it before the matter is decided. Therefore, in my judgment, it is perfectly impracticable to allow anything of the sort.
What we have to rely on—and I would willingly devise any other method if one occurred to me—is the uprightness of the Ministers who are properly advised by skilled, fearless, loyal, independent members of the Civil Service. In common practice, I think, the Treasury Solicitor is asked to join in the consultation in cases of difficulty. For my part, I speak only of the Treasury Solicitors I have known, and I would put the greatest confidence in their complete independence of judgment. They would most certainly prevent a Minister who, from personal reasons, Party reasons or improper reasons, wanted to prevent a document from being produced. I ventured to occupy your Lordships' time a little with those remarks because I feel so strongly that while there is a great deal that may be decided by the Judge I do not believe it is a practical course, and I find that many of those who have been among the best judges realize that to the full.
That is all I want to say in commending this Bill, except one other brief observation. I see on the Minutes that there is, among the list of Bills which are described as "Waiting for Second Reading," a little production of my own; a misshapen, or, at any rate, a very imperfect Bill, which I now assign to the 930 waste paper basket. I have therefore given notice to those at the Table that I withdraw the Bill, and I am here, with due solemnity but with much satisfaction, wringing the neck of this callow fledgling which I am glad to think has never for a moment delayed or obstructed the hatching and the bringing to perfection of this magnificent prize fowl which will rightly bear the name of the noble and learned Viscount, the Lord Chancellor. I beg to support the Motion that this Bill be now read a third time.
§ 2.57 p.m.
§ Viscount MAUGHAMMy Lords, I wish to add only one or two words in supporting this Motion, and I do so because in the course of a long career at the Bar and on the Bench I have often come across matters which were, directly or indirectly, connected with the subject of this Bill. When it was first produced I was, I am afraid, ignorant of the callow fledgling about which we have just heard. I was interested in this Bill, and I may say that, with the assistance of my noble friend who is, I think, going to say something on the Motion, I went through this Bill more than once, with great care, and examined every word to be found in it. If I was able—and I am afraid other people were more able in that respect—to add something to the present form of the Bill, I would count myself as being exceedingly fortunate. The Bill, well as it was drafted, has, I doubt not, been greatly improved in this House, particularly in reference to the addition of the first clause of the Bill which now helps greatly to show the matters which the Bill is designed to put right.
I will add only that the whole matter is so complex and goes back over such a distant period of English law, beginning with 25 Ed. 1;c. 18, right down to the present period, that it would be amazing if it were an example of absolute perfection. It is possible that there are one or two gaps in the Bill which will, at some date, be filled, but for myself I am perfectly satisfied that as it stands it is a most useful measure. It removes our law from criticism which has been brought against it during the last five and twenty years, and it may be commended with the greatest confidence to the consideration of another place. I thank the noble and learned Viscount, 931 the Lord Chancellor, for the way in which he has received all suggestions of improvement in this Bill. Whether he was able to accept them all or not, I am quite satisfied that he considered them with the greatest desire to do what was right, and to leave this Bill in the most perfect state which conditions permit.
§ 3.0 p.m.
THE MARQUESS OF READINGMy Lords, I ventured to say on the Second Reading of this Bill that it seemed preeminently a measure which should have its First Reading in your Lordships' House, and I think the policy which led to its introduction in this House has been amply justified by its subsequent history up to date. As one of the lower forms of legal life, who intruded himself at a respectful distance, into the company of the eminent on this subject, I think we may congratulate ourselves on having substantially improved the Bill in the course of its still comparatively short life. I wondered a little, as I heard the noble and learned Viscount making his statement to-day in connexion with Clause 28, whether perhaps he made it in response to a certain disquiet which I think has animated the legal profession in regard to that particular clause of the Bill. I think those doubts and anxieties will be very substantially allayed by what he and the noble and learned Viscount, Lord Simon, have just said. That there was disquiet in people's minds has evidenced itself in many ways, but perhaps in one small way by the number of various Amendments which I have had sent to me, with the suggestion that I should submit them. I have refused to take any action upon them, because I was satisfied that the procedure set out in the Bill is the right one. It is essentially a question of policy, and a question of policy must be a matter for a member of the Executive and not for a member of the Judiciary.
For the rest, what I intended to say to your Lordships, and in particular to the noble and learned Viscount on the Woolsack, has been largely made unnecessary by the fact that he himself volunteered to see that what I was going to suggest would be done: that is, to circulate some form of memorandum, synchronizing with the coming into law of this Bill, which would bring to the minds of his colleagues their heavy personal responsibility in these 932 matters. It is a personal responsibility, and when the Bill says "a Minister" it means not someone in the Department but the Minister himself. I think it will bring considerable satisfaction and relief to the minds of many people, if the noble and learned Viscount on the Woolsack finds himself able to address his colleagues in those terms. The Bill will go forward with the general good wishes of all members of this House, who hope that, once it is passed into law, it will go far to afford to the subject ampler justice than he has been able to obtain in the past.
§ 3.5 p.m.
§ Lord SIMONDSMy Lords, I would occupy only one or two minutes of your Lordships' time. Perhaps I might invite your Lordships' indulgence because twenty-five or more years ago I was in at the beginning of this hunt. Now I see, with great satisfaction, this Bill pursuing its way to another place. I do not rise to indulge in congratulation, or even self-congratulation, in this matter but merely to assure the noble and learned Viscount on the Woolsack of one thing: that is, that I believe nobody who has had judicial experience will challenge one word that he has said on the clause in regard to which he has betrayed, I think, a little anxiety as to what will happen in another place. Nobody who has had any judicial experience would quarrel with the view that it is not for the Judge but for the Minister ultimately to decide whether or not it is in the public interest that documents should be disclosed.
His Majesty's judges undertake great responsibility, though matters of life and liberty will, of course, ultimately lie in the hands of the jury, subject to the Judges' directions and under their grave responsibility. Matters of honour and fortune are also the responsibility of His Majesty's judges. But I believe it would be putting upon them a wholly undue burden to suggest that it is for them to decide whether or not it is in the public interest that some document or other should or should not be disclosed. That is a matter on which they cannot be competent to decide, because they have not the knowledge. It is unfair to them to ask that they should undertake that burden, and it is not fair to the public that that burden should be discharged by someone who, ex hypothesi, has not 933 the knowledge adequately to discharge it. Therefore, I would assure the noble and learned Viscount, the Lord Chancellor—I speak for myself and, I believe, for every one what has had any judicial experience—that he is wholly right in adopting the policy which he has adopted in regard to this clause of the Bill. With regard to the rest of the Bill, it has the blessing of all those who are interested in this branch of the law.
§ On Question, Bill read 3a; Amendments (privilege) made; Bill passed and sent to the Commons.