§ 4.4 p.m.
§ The LORD CHANCELLOR (VISCOUNT JOWITT) rose to move to resolve, That it is expedient that a Tribunal be established for inquiring into a definite matter or urgent public importance, that is to say—Whether there is any justification for allegations that payments, rewards or other considerations have been sought, offered, promised, made or received by or to Ministers of the Crown or other public servants in connection with licences or permissions required under any enactment, regulation or order in connection with the withdrawal of any prosecution and, if so, in what circumstances the transactions took place and what persons were involved therein.
§ The noble and learned Viscount said: My Lords, I rise to move the Resolution that stands in my name on the Order Paper. Your Lordships will be aware that a similar Resolution was moved yesterday in another place, and the Prime Minister explained the circumstances which led the Government to submit the Resolution for the approval of both Houses of Parliament. In those circumstances, I think I need not detain your Lordships at any considerable length.
§ Last August information was received by the Government that allegations were being made that certain Ministers and officials had been offered, or had received, bribes with regard to the withdrawal of a prosecution for a contravention of the Paper Control Order and in respect of the allocation of paper to a firm of football pool promoters. I was asked to inquire into the allegations and, as a result of those inquiries, I suggested that this was one of those cases in which we should make use of the exceptional procedure—it is quite exceptional, and it has to be used with great circumspection—of the machinery of the Tribunals of Inquiry Act, 1921. The allegations which have, either then or since, been brought 86 to the notice of His Majesty's Government relate to four specific matters:
- (1) A proposal relating to an application for a licence to import a quantity of amusement machinery;
- (2) A proposal relating to an application for a building licence;
- (3) A proposal relating to permission to issue capital on the formation of a public company operating football pools; and
- (4) The withdrawal of a prosecution for contravention of the Paper Control Order by a firm of football pool promoters, and representations made by that firm for an increased allocation of paper.
§ Your Lordships will observe that the terms of the Resolution are not limited to those four allegations. The reason for this is that we did not want the Tribunal to feel itself unduly restricted in their task, as they might have been if the terms were restricted to the four allegations which I have mentioned. It is obviously desirable that all the circumstances connected with these allegations and the activities of the gentleman I have mentioned should be considered by the same Tribunal. It will be for the Tribunal, of course, to interpret their terms of reference as they think fit, but the House will, I feel sure, agree that with the terms of reference contained in the Resolution the Tribunal will be free to investigate every aspect of the allegations which they feel ought to be investigated by them.
§ The House will expect me to say a word on the question of criminal proceedings. All the allegations which have come to the notice of the Government have been sent to the police authorities who, as a matter of fact, were already inquiring into some aspects of the matter from information which they had received from other sources. The police inquiries are being pursued under the direction of the Director of Public Prosecutions. Whether or not criminal proceedings will be instituted against anyone, I do not know. This is a matter solely within the responsibility of the Attorney-General. If criminal proceedings are to be instituted, 87 the Tribunal will no doubt consider what course should be adopted with regard to the Inquiry, having regard to the interests of justice, and in order to secure that neither the prosecution nor the defence of anyone charged with a criminal offence should be prejudiced. If, on the other hand, no prosecution can be instituted, then the Inquiry will proceed at the earliest possible moment. It is right that I should say that the fact that an Inquiry has been held will not of itself prevent the institution of criminal proceedings in the future if sufficiently clear evidence is obtained to justify those proceedings. The Act of 1921, from which the Tribunal derive their powers, expressly preserves the right of any witness to the same immunities and privileges as he would have had in proceedings of the High Court; and therefore no witness need give any evidence which will incriminate him. The Tribunal will be presided over by one of His Majesty's Judges, who will have associated with him two eminent lawyers, and the House may rest assured that the Tribunal will be so constituted as to ensure that everything possible is done to prevent any prejudice to any person who may become the subject of criminal proceedings.
§ As some of your Lordships will recollect, a Tribunal similarly constituted was appointed in 1936 to deal with disclosures relating to the Budget for that year, and in their Report the Tribunal made certain observations as to the procedure which had been adopted in that case. As my noble friends Lord Porter and Lord Simonds were members of that Tribunal, it may be that they will expect me to deal with the observations then made. The procedure to be adopted by the Tribunal is, of course, to be determined by the Tribunal themselves, but the Tribunal's attention will be called to the observations made by the Tribunal of 1936, and I have no doubt that with the experience of that Tribunal before them, the present Tribunal will do all they can to overcome any difficulty which may arise. One of the difficulties felt by the Tribunal of 1936 was that, as there was no prosecutor, the cross-examination had to be undertaken by members of the Tribunal, with the resultant possibility of creating the impression that they were hostile to some of 88 the witnesses called before them. This matter has been fully considered by those who will be responsible for presenting the case to the present Tribunal and, subject to any directions which they may receive from the Tribunal, I can assure the House, after consultation with the Attorney-General, that every step will be taken to elucidate the truth and test the evidence by cross-examination.
§ As I have stated, the Tribunal will consist of one of His Majesty's Judges and two eminent lawyers. The Tribunal, under the Act of 1921, have all the powers of the High Court to enforce the attendance of witnesses and the production of documents. The Treasury Solicitor has been instructed to place his services at the disposal of the Tribunal in accordance with the practice adopted in previous Inquiries. He will carry out the instructions of the Tribunal and take all steps as they may require him to take for the purpose of ensuring that all relevant evidence is before the Tribunal. The Tribunal will sit in public, unless the Tribunal decide that it is necessary to exclude the public for reasons connected with the subject matter of the Inquiry or the nature of the evidence given. I think I have covered all the points with which the House would expect me to deal at this stage. The Report of the Tribunal will in due course be laid before Parliament, and no doubt if Parliament desires to discuss the Report an opportunity of so doing will be forthcoming. I beg to move.
§ Moved to Resolve, That it is expedient that a Tribunal be established for inquiring into a definite matter of urgent public importance, that is to say—Whether there is any justification for allegations that payments, rewards or other considerations have been sought, offered, promised, made or received by or to Ministers of the Crown or other public servants in connection with licences or permissions required under any enactment, regulation or order or in connection with the withdrawal of any prosecution and, if so, in what circumstances the transactions took place and what persons were involved therein.—(The Lord Chancellor.)
§ 4.15 p.m.
§ VISCOUNT SWINTONMy Lords, the noble Marquess, Lord Salisbury, has asked me to express his regret to the 89 House that, owing to what I am sure we all hope is a very temporary indisposition, he is unable to be here to-day. What has to be said from this side of the House can be said very briefly. We welcome and support this Motion. I think we all agree that it is alike in the national interest and the interest of those concerned that the allegations should be thoroughly and promptly investigated. After hearing the noble and learned Viscount the Lord Chancellor, I think we should all be satisfied that this special method of having a Tribunal is the right one, and clearly, in the circumstances which he has detailed to us, it is right that the terms of reference should be widely drawn. I think it is also right that the Tribunal themselves should decide what is relevant and what requires investigation. This will be a Tribunal of high competence and authority. We can rest assured that they will investigate these matters thoroughly and expeditiously. We therefore await their Report, and in the meantime I think the less said the better.
THE MARQUESS OF READINGMy Lords, the Act of 1921 has during the twenty-seven years of its existence been fortunately very sparingly used. I think that this is only the third occasion in the course of its life on which it has become necessary to put it into operation. That is all to the good, because in this country we do not like special Tribunals unless there is a real and overwhelming case for their establishment. Nevertheless, the Act has provided for the setting up of a Tribunal in cases in which a special body is necessary. In our view, the present circumstances come within the definition of such a case of urgent public importance, and it is right that this body should be set up to deal with it. As regards the terms of reference, there was obviously a difficulty in steering a middle course between circumscribing unduly the activities of the Tribunal by too strictly defining the issues which they would be asked to consider, and on the other hand giving them excessive latitude and putting in their hands something in the nature of a roving commission, which latter alternative would be entirely alien to our procedure and objectionable to your Lordships. I think that the terms of reference as they have now been drafted do in effect find that middle way. In accepting this Motion, we shall follow closely the proceedings of the Tribunal. 90 I agree with the noble Viscount who has just spoken that we do best to leave the matter to take its course.
§ 4.19 p.m.
§ LORD SIMONDSMy Lords, I had intended to make some observations upon the procedure which is to be followed upon this Tribunal. I was moved to do so by this fact: that I alone, I think, with the noble Lord, Lord Porter, have had practical experience of the working of such a Tribunal. That experience left an impression upon me which the passage of years has by no means effaced. This Tribunal is a judicial Tribunal, and from it we expect not only impartiality but the appearance of absolute impartiality—an appearance and a fact which we have long associated with His Majesty's Judges. The duty of the Tribunal will be to ascertain the truth and the whole truth, and nothing is more certain than this: that centuries of experience of the administration of justice in our courts shows that the truth is to be ascertained only by cross-examination at the hands of a questioner who pursues the truth vigorously and mercilessly to the bitter end—it may be the very bitter end when the witness, who entered the witness box so smooth, so assured, so confident, leaves it frayed, tattered and discredited.
That brings me at once to the point of my intervention, which the noble Viscount on the Woolsack has, at least to some extent, met. On the occasion of the last Inquiry, the Attorney-General of the day—a man I am proud to call a friend and whose judgment upon any question of conduct I should accept before that of any other man—thought it his duty, and a sufficient discharge of his duty, if he presented the outline of the facts to the Tribunal; called such witnesses and produced such documents as he thought relevant; let the witnesses tell their own story, and did not seek to probe it by any cross-examination. Nor did any other of the counsel who appeared for various parties, for a very good reason, think it in their interest or their duty in many cases to cross-examine, with the result that the Tribunal were themselves judges and inquisitors—a system wholly alien to our idea of British justice. It was then left to the Tribunal to cross-examine.
Your Lordships will at once see two glaring defects in such a system, the first not so important but not negligible: that 91 the Tribunal could cross-examine only with the material which had been already put before them in due sequence. That is very different from the procedure with counsel, who can rely, if they are well instructed, upon the surprise effect of information not yet revealed to the witness. But far more important was the difficulty, as anybody who has had experience will recognise, of cross-examining and appearing to be impartial. Truth lies often at the bottom of a well, and in the case of a reluctant witness the questioner must be severe to the point of harshness. In the case of an evasive witness, from time to time, as my Lord Chancellor will know, guile must be met with guile, and the evasive witness led to the admission of a truth which he would fain conceal. Can a Judge do that and appear impartial? Can he be harshly severe or compact of guile and, at the same time, appear an even-handed figure of justice? My Lords, I will not say it is impossible. I think if such a system could be worked it was worked by my noble and learned friend, Lord Porter, who presided at the last Inquiry. But of this I am very sure, that it is a system which should be cast upon no Tribunal, and I most earnestly hope that in this case it will not be cast upon the Tribunal. I welcome the assurance of the Attorney-General that it will not be so, but I cannot help recognising the possibility of the reluctance of a Law Officer of the Crown, if he undertakes this duty, of challenging the veracity, it may be impugning the honour, of a Minister with whom he is in daily political association and in apparent harmony, and with whom he hopes to be in the same association and harmony again if the charges which have been suggested are rebutted.
I hope most earnestly that the Lord Chancellor will take the view that this is a matter in which the Law Officers of the Crown should not be left with the conduct of the proceedings; that on the other hand it should be left to counsel who will, with the vigour and relentlessness that such a situation may demand, pursue the truth and ascertain the facts and lay them fairly before the Tribunal. I do not need to assure Your Lordships that in saying what I am saying I am making no sort of attack upon the Law Officers of the Crown. It is simply that they are placed in a position where there may be such a conflict 92 between their duty and their loyalty to their colleagues that they cannot carry but the former properly. Therefore, with all deference, remembering so well what cook place on the last occasion, I venture to press upon the Lord Chancellor the observations I have made.
§ THE LORD CHANCELLORMay I be allowed to answer very briefly? Of course, it is not for me to give any instructions to the Attorney-General or to influence his judgment; it is a matter entirely for him. I will see that the observations which have been made by the noble and learned Lord who has just spoken are brought to his attention. Knowing the Attorney-General as I do, I feel quite certain that if he does undertake the duty he will see that it is carried through relentlessly, without any qualification. At the moment all I can say is that I will see that the observations that have been made are brought to his attention.
§ On Question, Motion agreed to.