HL Deb 18 February 1959 vol 214 cc344-62

2.48 p.m.

THE LORD CHANCELLOR (VISCOUNT KILMUIR) rose to move, That it is expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921, for inquiring into a definite matter of urgent public importance, that is to say, the allegation that John Waters was assaulted on December 7, 1957, at Thurso and the action taken by the Caithness Police in connection therewith. The noble and learned Viscount said: My Lords, I rise to move the Motion standing in my name on the Order Paper. Your Lordships will know from the reports of proceedings in another place and in the Press that the decision of Her Majesty's Government to set up a Tribunal of Inquiry under the Tribunals of Inquiry (Evidence) Act, 1921, has its origin in an incident which took place at Thurso on December 7, 1957. This incident was reported to the prosecuting authorities in Scotland at the time. Those authorities decided on the evidence available not to prosecute.

The matter was raised by Sir David Robertson, the honourable Member for Caithness and Sutherland, during the summer of 1958 when certain additional statements were submitted by him to my right honourable and learned friend the Lord Advocate. After reviewing the papers and making further inquiries the Lord Advocate adhered to the conclusion that criminal proceedings would not be justified. As your Lordships know, the matter continued to be pressed and as recently as 3rd February my right honourable and learned friend the Lord Advocate stated that on the evidence before him he was still of the view that criminal proceedings would not be justified.

On Monday of this week, as your Lordships may know, my right honourable friend the Prime Minister made a statement in another place, and if your Lordships would allow me to quote that statement I should like to do so. My right honourable friend said [OFFICIAL REPORT. Commons, Vol. 600 (No. 58) col. 31.]: It is an established principle of Government in this country, and a tradition long supported by all political parties, that the decision as to whether any citizen should be prosecuted, or whether any prosecution should be discontinued, should be a matter, where a public as opposed to a private prosecution is concerned, for the prosecuting authorities to decide on the merits of the case without political or other pressure. It would be a most dangerous deviation from this sound principle if a prosecution were to be instituted or abandoned as a result of political pressure or popular clamour. The Lord Advocate in Scotland is in this respect like the Attorney-General in England. Some of you may remember the famous words of my predecessor, Lord Simon, that the Attorney-General should absolutely decline to receive orders from the Prime Minister or Cabinet or anybody else that he should prosecute. My Lords, as an ex-Attorney-General of the Crown may I venture to say that I subscribe absolutely and completely to that statement of opinion.

Having laid down that fundamental constitutional principle my right honourable friend made it clear that there is another aspect of this case which Her Majesty's Government cannot and ought not to ignore. It is plain beyond question that there is considerable public disquiet, both inside and outside Parliament, over this unfortunate affair and that public confidence has been correspondingly disturbed. I do not think that there can be any doubt in your Lordships' minds over that. Moreover, there is another aspect of the matter which has been emerging in a remarkable way. Until my right honourable friend made his statement that a Tribunal would be set up, public interest seemed to have focused almost entirely upon the boy concerned. Now it is realised that, as a result of Parliamentary interest, the great newspaper campaign and so forth, the two policemen concerned are, in a sense, publicly charged before the bar of public opinion. It is natural in these circumstances, as my right honourable friend pointed out, that we should begin to ask "Are we being fair to the two policemen?"

It is in these circumstances that the Government have decided that a Tribunal should be set up under the Act of 1921. Its function will be to inquire—and I quote: into the allegation that John Waters was assaulted on the 7th December, 1957, at Thurso and the action taken by the Caithness Police in connection therewith. I reiterate the terms of the Motion because it is right that I should draw your Lordships' attention to the fact that the Tribunal are not being asked to judge, as it were, whether the Lord Advocate was right or wrong in the decision he took.

The Tribunal will, however, be able to make the fullest inquiries within their terms of reference. They will have the fullest opportunity for all the available evidence as to what happened on December 7, 1957, to be brought out and examined by the Tribunal, and for full inquiry as to whether the events were properly investigated by the police. They will have the same power with regard to the attendance of witnesses and the production of documents as the Court of Session. Counsel and solicitors will be put at their disposal, to present the case to them and to make any necessary inquiries.

The counsel to present the case will not be the Lord Advocate, nor anyone else who has been in any way concerned with the question of a possible prosecution. He will be selected in consultation with the Chairman of the Tribunal. I might remind the House that Section 2 of the Act of 1921 provides that the Tribunal—and again I quote: shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given. It will be for my right honourable friend the Secretary of State for Scotland, to appoint the Tribunal. I understand it to be his intention to appoint a Scottish Judge as Chairman, and for the Tribunal to consist of three members.

My Lords, I should like to add a few words. In this House we are always alert to defend the liberties of the subject—always critical of the machinery by which those liberties are defended. There are, I know, many critics of the machinery involved in inquiry under the Act of 1921. It is, however (I underline this point), the only machinery of the kind currently available for ascertaining the truth. I think we all regard it as a misfortune, in one sense, when that machinery has to be invoked. But in this instance I submit that the circumstances fully supported the Government's view that such an inquiry is the only course to adopt in fairness to the individuals concerned and to allay public disquiet. May I observe, in parenthesis, that the Tribunal in this case will be examining into a definite allegation. There will not be anything in the nature of a roving commission into matters of rumour or surmise. It will be for the Tribual to decide upon the procedure best suited to the circumstances, and we may be sure that they will do everything possible to safeguard the interests of the public, on the one hand, and of the boy and the two policemen, on the other. My Lords, I beg to move.

Moved, That it is expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921, for inquiring into a definite matter of urgent public importance, that is to say, the allegation that John Waters was assaulted on the 7th December, 1957, at Thurso and the action taken by the Caithness Police in connection therewith.—(The Lord Chancellor.)

2.55 p.m.


My Lords, I am sure the whole House will agree that the Government have done the right thing in setting up this inquiry. As the noble and learned Viscount has said, there has been a good deal of apprehension about this matter. None of us is in a position to form any judgment, and we should certainly not presume to do so. But we are informed that this boy was assaulted by the police and that there are seven-teem witnesses available. To some of us it was a matter of some surprise that a prosecution did not take place, and we are mot at all certain that it would not have been in the interests of the police officers themselves if such a prosecution had taken place: they would have been informed directly and in detail of the charge that was made against thorn, and they would have been in a position to defend themselves. However, that was not done. I make no complaint about that because, as the noble and learned Viscount has said, certainly no prosecution should take place under pressure from Parliament; and we must assume that the Lord Advocate exercised a proper judgment, within the scope of the information at his disposal (I presume that that is going to be one of the matters of inquiry), fairly and honestly, and no one would wish to say otherwise or to question it in any way.

As the noble and learned Viscount says, there are two matters which are to be considered by the Tribunal. The first is: was John Waters assaulted on December 7, 1957? That is a very clear issue, and I am sure that the Tribunal will be able to form a judgment on that having seen the witnesses who will be available. The other matter for consideration is the "action taken by the Caithness police in connection therewith." I hope that it may be possible to inquire into that matter in the widest way. If one takes it literally, the action taken by the police was that they merely referred the matter to the Lord Advocate for decision. But I think part of the public apprehension is that possibly all the facts were not brought to the attention of the Lord Advocate. Not all the evidence was brought to his notice, and we do not know how much evidence was. If this part of the terms of reference can be construed in the widest possible way, I think it will give complete satisfaction.

I know that in another place some concern was felt, as the result of the swing of the pendulum in favour of the police, about whether the police are getting a fair deal; and whether this is the best way of doing justice to them. In the circumstances, I can see no alternative. As I have said, it might have been better if the Lord Advocate had felt so disposed, on the facts before him, to agree that there should be a prosecution—though I make no complaint about that; I am not in a position to do so. But, since no prosecution has been made, I think it is fair to them that this inquiry should be held. Of course, it is not surprising that the public should have some concern in the matter—the police are in a powerful position vis-à-vis the subject, and any suggestion of pressure on the part of the police or unfair treatment is one which the public will readily and most anxiously want to investigate.

There is one other matter only that I want to touch on—namely, the question of representation by the police. We are told that they will be free to have solicitor and counsel to represent them. If they had been accused of an offence they would have had to provide legal assistance at their own expense; but they have not been so accused to-day. This is an inquiry, and it seems to me right that they should not be burdened with the expense of that representation. I believe that, somehow or other, that expense ought to be met, but not on the basis of legal aid, which provides a poor person with legal aid only if he has no means of his own: these officers Should be provided with that representation free, regardless of their means; and normally one would not expect police constables to be in possession of vast resources.

If this inquiry runs as long as it may well run, with seventeen witnesses on behalf of the boy, and, I suppose, a number of witnesses on the other side, it may well be a lengthy and expensive inquiry. I hope, therefore, that the noble and learned Viscount will be able to make representations on the point that the police should be represented with solicitor and counsel, of their own choice but not at their own expense.

3.2 p.m.


My Lords, I am not going to apologise for intervening in this matter, because I believe it is a subject which requires to be ventilated. I wish to make it perfectly clear from the start that I neither come from Thurso (although it is true that I come from Scotland) nor do I know the boy, his parents, the chief constable or any others concerned; and that I know nothing whatsoever of the facts. Coming down in the train last night I must admit that I was considerably disturbed, and I gather that there has been some disquiet in another place, as to the procedure in regard to the setting up of an inquiry. I believe we all agree that an inquiry is probably right and proper. I hold no brief against that; but some of us—I believe quite a lot of people, as was shown by what has been said in another place—feel that it is the procedure which should be queried.

I myself, like all noble Lords, I am sure, am very jealous of the reputation of your Lordships' House, and I feel that this is a duty which we can well perform, as good as any, if only to draw attention to the inadequacy—I am going to use a stronger term: the unfairness—of this method of procedure. I would ask first: are we satisfied that the setting up of this kind of Tribunal is the best method of dealing with affairs of this sort? Personally I am not. In the train I asked myself the question: could not the boy or his parents have gone to law? The noble Lord, Lord Silkin, has mentioned that assistance should be provided free; that if one is not a pauper one cannot get legal aid and therefore something should be done to make it possible for these people to have legal aid, and that they should not have to pay for that aid from their own pocket. I understand that; but I suggest that this is an entirely different case from previous ones upon which Tribunals have sat—the bank rate "leak" and others.

This is a definite attack or accusation against two people, namely the two police constables, who, after all, are only humble policemen. If I may, I will read from the OFFICIAL REPORT of another place of June 11, 1936, or what occurred once before where a Member of that place was being brought before a tribunal. I will not mention the name of the honourable Member, even though this happened some time ago. He said [OFFICIAL REPORT, Commons, Vol. 313, col. 415]: I would ask right hon. and hon. Members to visualise the position in which I now find myself. I have been condemned, and apparently I must suffer for the rest of my life from a finding against which there is no appeal, upon evidence which apparently does not justify a trial, and there is now no method open to me by which I can bring the true and full facts, before a jury of my fellow-men. And he goes on to say: If any good may come from this, the most miserable moment of my life, I can only hope that my position may do something to prevent any other person in this country being subject to the humiliation and wretchedness which I have suffered, without trial, without appeal and without redress. Noble Lords may find it easier to refer to Col. 206 of the OFFICIAL REPORT of another place of yesterday (February 17).

I submit that what has happened with these two policemen is exactly what happened to that Member of another place, and I believe we are here to see, above all, that these two constables get justice—which Her Majesty's Government have said they wish them to have. I very much doubt if they can. I know that the right honourable gentleman the Prime Minister in another place gave some assurance on this matter, but I must again refer to what he said [OFFICIAL REPORT (Commons), Vol. 600 (No. 59), col. 225]: I know that the House will forgive me if I try to approach them"— the difficulties— from the layman's point of view. That is the reason why in your Lordships' House I am endeavouring to get a legal representative to say whether or not this can be done. The Prime Minister went on: On the first points raised by the right hon. Member … it is for the Tribunal to fix its own procedure. We may take it that it will, of course, allow those who are concerned to be represented by counsel. I have no doubt that as regards the law of evidence—although the Act is not actually forced to apply the strict laws of evidence—the Tribunal will try to apply them in the proper way. Is that much help to these constables? I am sure that the Tribunal will try to do that. But what could happen? It is that for which we have to be responsible. The second question I would ask is one which has already been answered up to a certain point: is there no other alternative? The noble and learned Viscount on the Woolsack says there is not, and he is supported by the noble Lord, Lord Silkin. But I suggest that if this is the case the procedure is far from satisfactory. The last question I would ask is this: is this form of tribunal to become a precedent?—because if it is, then it seems that anyone desiring political publicity can use it for such, and will do so again. I will say no more on that matter.


My Lords, I believe there is one thing which ought to be said and which stems from what has just been said by the noble Earl, Lord Airlie. A lot has been made of the great publicity and public disquiet caused by this matter. I do not know whether any of your Lordships will have noticed a statement which appeared in yesterday's Scotsman by the Provost of Thurso, a man whom I know well and who is in every way worthy of your Lordships' confidence and respect. He said that a great deal too much publicity had been thrown on this matter.

3.8 p.m.


My Lords, I should like to have my own mind clear on this point, as probably would other noble Lords. We have been told very categorically by the noble and learned Viscount on the Woolsack—and what he said was repeated by the noble Lord, Lord Silkin—that there is no other available procedure. I feel very strongly, with the noble Earl, Lord Airlie, that this kind of procedure ought not to be used in a case which in effect is an ordinary criminal case. In my view it differs quite substantially from the one which has been referred to, because that was not an ordinary criminal case. It was a matter which had to be inquired into but it was not the kind of case which comes before ordinary tribunals or courts in criminal prosecutions.

Ever since early in the Middle Ages, over hundreds of years, we have built up in this country—one is a little diffident when it is a question of Scotland because we know that the law there is not quite the same as ours—a great system of criminal jurisprudence, one which, while I should not like to say it is better than that of any other country, is certainly a very fine system, which protects the interests of accused parties in many ways—ways which are certainly not provided in this rather special type of procedure which really is not aimed at cases of this kind.

Although no doubt the noble and learned Viscount is right in saying that there is no alternative in this case, he did not explain why—at least I was not quite sure whether he explained why; and that is what I should like to have clearly explained. Is the reason that the Lord Advocate has entered a nolle prosequi? If he has, I appreciate that there is nothing more to be said about it, because I agree with what the late Lord Simon said, when Attorney General, about looking into a case declared nolle prosequi which, in this country, is a legal procedure and is not a matter of having evidence referred to the Law Officer and getting his opinion as to whether it is a good sort of case. Nolle prosequi is a legal procedure under which the Attorney General says, in effect, that no prosecution is to be brought, or that one that has been brought is not to go further. If that has happened, I appreciate that there is nothing else to be said. But if that has not happened, then could not the matter be looked at again and, having been looked at again, be dealt with according to the ordinary criminal procedure of the country, which enables a jury of the man's fellow citizens to pass upon the question of whether he is guilty or not and enables the Court of Appeal to be brought in if something has gone wrong at the trial? Those procedures have been worked out over the centuries for the safeguarding of the citizen and we ought not to depart from them except in a very rare instance indeed.

3.13 p.m.


My Lords, may I intervene for one moment, not at all as a lawyer, but because I think so many of us must share the anxieties—and there are no politics in this matter—which have just been expressed by the noble Lords, Lord Chorley and Lord Airlie. I suppose that I was in the Government which instituted or brought in the Act which enabled this procedure to be undertaken, and I do not believe it was ever in the mind of any of us that it would be used in this kind of case. Indeed, I think the whole idea was that there might be something which in the public interest required an inquiry, and where we assumed (I am not sure that the noble and learned Viscount on the Woolsack has not repeated that to-day) that there was no other process open by which a necessary inquiry could be conducted by the most competent tribunal. In the cases (I do not want to specify them) that we all have in mind where this very exceptional procedure has been set up, I think I am right in saying that they were all cases where neither a criminal nor a civil action would have been appropriate, or, probably, could even have been instituted. That seems to me to be a very important consideration.

I am not going to oppose this Motion, but I should like a firmer assurance than we have had so far, because I am very anxious about this being created a precedent. None of us would dream of saying anything about the merits of this case, and we all agree that there can be no possible question of either the Government or Parliament ever interfering with the Law Officers of the Crown in England or Scotland in deciding whether they should institute or refrain from instituting criminal proceedings. That is entirely for them. But is there really no other alternative in this case or a case of this kind? There may be special reasons here as things have arisen, as the matter has worked out, that make us accept this procedure as a pis aller. This is perhaps the best and fairest thing to do, but it seems to me a strange occasion for doing it.

I should like to be told this, first of all, regarding the criminal prosecution. I do not know whether, when the Lord Advocate has decided on the facts before him that there is not the evidence upon which he would feel justified in authorising or initiating a prosecution, that in itself bars the individual affected from himself, or through his parents or friends, bringing a criminal prosecution against the people he says have committed the crime. I do not know. But I would ask this. Surely, whatever may have been said (by the Lord Advocate, there is nothing to stop this boy bringing an action for wrongful assault, which I assume is a tort in Scottish law as it certainly would be in English law, and claiming damages, in which case a judge and a jury would have the whole of the facts before them.

The same seventeen witnesses who we are told are to come forward at this inquiry would presumably come and give evidence for the plaintiff, and the people who will at this inquiry give evidence for the defence would do that; and then, in accordance with the regular procedure of English and Scottish law, this action, which is really an individual case, would be tried in the usual way, and, incidentally, would be subject, of course, to appeal. Supposing it was alleged that the verdict, which ever way it went, was contrary to the weight of evidence, or that the judge had misdirected the jury, then there would be the right of appeal to the Court of Appeal—and indeed, in a civil case, I suppose without leave, to this House as the Supreme Tribunal.

The ordinary process of law is equally fair—that is one of the beauties of English and Scottish law—to both sides. There is no presumption either way when the case starts. Of course, in a criminal case it is true that there is a presumption. There is a presumption that a man is innocent until he is proved guilty; and I think it is a very important presumption, and one that we ought to be very careful to preserve in any special case of this kind. Although this is a necessary procedure to have on very special occasions, where the public interest demands, it has a vice about it. As we have seen inquiries conducted, it has been borne in upon us that, however ably the inquiries are conducted—and the greatest care, of course, is always taken to get the ablest tribunal, and to see that the evidence is presented as fairly as possible before them—there is this difficulty. There is the feeling that anybody who is brought before that tribunal is, in a sense, in the dock. I suppose that in a sense that is inevitable. I remember in the Bank case it being said, "Ah well, but they were not found guilty." That was a most extraordinary statement to make, because there was no crime of which those concerned were accused.

It does seem to me, therefore, that the tribunal procedure ought to be used most sparingly. Maybe to-day we have got—and I am not going to oppose this Motion—into a situation from which perhaps there is no other way out, in which you may say that the public conscience or public opinion or public clamour cannot be satisfied except by doing this. Perhaps that is the best way; at any rate, I have no doubt we shall get the fairest decision possible. But I do hope that it will be laid down by the Government, and accepted by all of us, that this is a very exceptional case—because just think what may happen if this were treated as a precedent. Suppose that, instead of bringing a civil action or a private prosecution, somebody likes to go and get a great stir-up made: and, after all, the more scandalous, if you like, a case is, the easier it is to get a stir-up in the public Press to-day. Ordinary happy family life is not at all interesting: scandalous divorces, although we have reduced their reporting, are the interesting things to-day. It would really be a most unfortunate result if this were in any way to be a precedent, and if, when you had a public clamour of any kind raised, whether in Parliament or in the Press, about whether this or that was properly done, this strange, exceptional form of procedure should be used, instead of what has for hundreds of years been the safeguard of every subject, be he high or low, in this country—the ordinary courts of this land.

3.22 p.m.


My Lords, I am very grateful to all the noble Lords who have spoken, including—and I say so with the greatest sincerity—those who have voiced their own disquiet. I think it is right that I should take this opportunity of dealing with the points that have been raised. I will deal first, if I may, with the matters that were mentioned by the noble Lord, Lord Silkin; and may I say, in parenthesis, that I appreciate very much the attitude which he has taken, speaking for the Opposition on this point. He said—and other noble Lords took the same view—that they had a lingering regret, although they did not intend to criticise, that my right honourable and learned friend the Lord Advocate had not, in the end, decided to prosecute.

My Lords, I have been a Law Officer of the Crown for nearly four years, and in my professional life I have had considerable experience of prosecutions. There is one thing which I would most rapidly and gladly resign rather than do; and that is, when I have come to the conclusion that there is not sufficient evidence to place someone in peril and on his trial, thereafter to prosecute him and place him in peril just because it was represented to me that public interest or public disquiet required me so to do. No Law Officer of the Crown, of any Party, in all our long history would ever be a party to that course of action, and I am sure that your Lordships' House would be the last Assembly in the world to suggest that that could possibly be right: and I do not think that that has been seriously suggested to-day.

The noble Lord, Lord Silkin, asked about the interpretation of the second part of the terms of reference, and he will note, if he will do me the honour of looking again at my introductory speech, that I did indicate most clearly—and I wish to repeat it—that that will give an opportunity, in addition to investigating what happened on the date in question, to inquire into whether these events were properly investigated at the time. I believe that that is a point which everyone wants to know. With regard to the other point that he mentioned—the representation of the police officers—I will with the greatest happiness convey that to my right honourable friend the Secretary of State for Scotland. I am not, if I may put it shortly, "briefed on the matter", but I should like to say to the noble Lord that I have the greatest sympathy with what was in his mind, and I shall co-operate in that way.

Now, my Lords, I want to come to the question raised by the noble Earl, Lord Airlie, the noble Earl, Lord Swinton, and the noble Lord, Lord Chorley; that is whether alternative procedures have been seriously considered. May I be technical for a moment with the noble Lord, Lord Chorley—I do not mean technical in my answer, but use technicalities with which he is very familiar. He mentioned the English procedure of nolle prosequi. May I remind him that one of the difficulties about nolle prosequi is that it applies only to proceedings on indictment. It does not apply to the initiation of a prosecution before the magistrates; and it has a limitation in that way. I do not pretend to be as expert—or, indeed, at all expert—with Scottish law, but I do not think they apply the procedure of nolle prosequi. On the other hand, they have a procedure which is effective to secure that no further proceedings will be taken against a certain person. As the noble Lord will remember, one of the uses to which nolle prosequi was put in the history of English law was in cases where it was desired to call an accomplice as a witness for the Crown and to make sure that the accomplice was not in hope of special treatment. That is not a problem unique to English jurisprudence, and there is a procedure which can deal with that.

However, I do not think that that really concludes the matter. I think that the important point is the first one that I put to your Lordships: that, when someone has decided, "In my view, there is not sufficient evidence to justify a prosecution", then, unless there is fresh evidence, if he is still of the opinion which was held by my right honourable and learned friend the Lord Advocate on February 3, he cannot go back on that decision on the ground of public desire or public clamour.

The next point raised was the question of a private prosecution. There again, as I understand the difference in the legal systems of the two countries, in England a private prosecution is open to any citizen completely untrammelled—except in a very limited number of cases, such as incest and the like. In Scotland, in order for a prosecution to be commenced by someone other than the Lord Advocate or his officers, it is still necessary, as I understand it, to get the permission of the Lord Advocate: so the same problem comes back to the Lord Advocate for him to decide whether it is a proper case to come to court. I think both my noble friend Lord Airlie and my noble friend Lord Swinton raised the question of a civil action for assault. The trouble is, of course, that we cannot compel anyone to take a civil action. It is now fifteen months since this incident took place, and no civil action has been brought on behalf of the boy.

My noble friend Lord Swinton was in another place for nearly as long a period as I was—I believe that we were both about twenty years in that Assembly—and he will realise that it is a matter which must be considered., if a Motion is put before another place supported by 170 Members out of a membership of 600. I think that every noble Lord who has been in either House of Parliament would agree with that. If this procedure; is not taken, then the question arises: what should we do?

It is a very difficult problem, and no one knows it better than I do, because, like my noble friend, Lord Templewood, I was responsible for the police of England for a period of three years. We know that the position of the police depends very largely on the great confidence which they have always been able to command from the ordinary citizen of this country. Because of that, and because of the feeling deep down in most of us that the police are trying to be the friends of the ordinary person, and are not up against him, the police command confidence, which enormously helps them in their work, and they are therefore allowed to have considerably greater powers in the way of arrest and investigation than the ordinary citizen, although they are fundamentally in the same position. When we have allegations made against the police, when we have a Motion with 170 names in another place, when we have a Press campaign, and when the potential plaintiff will not bring an action in the court, we are faced with the situation in which we must take some steps to meet what my right honourable friend the Prime Minister called "an arraignment at the bar of public opinion."

We considered very carefully whether the machinery should be an ad hoc inquiry without statutory force, which, of course, my right honourable friend the Secretary of State for Scotland can invoke, or an inquiry under this Act. The difficulty about an ad hoc inquiry is that no witness can be compelled to give evidence More it. We have had experience of ad hoc inquiries where witnesses have not given evidence, and that would be a foolish frustration to be met with at the end of the day. Therefore, I considered the matter very carefully with my colleagues and we came to the conclusion that the only inquiry which would produce the evidence would be one under this Act. I think that I have dealt with all the possibilities—public prosecution, private prosecution, civil action, ad hoc inquiry and this inquiry. I hope that I have not missed any obvious point. Certainly I should like to assure your Lordships that all these were carefully considered.

There are two points that remain, which I think of great importance. The first was raised by both the noble Earls who have addressed the House—that is, the question of whether this is a precedent. Again I have considered this point carefully, not only from the point of view of this case, but also looking back over the history of Parliament and the responsibility which Parliament has shown. I think it is the true view that over the last 250 years, since the Party system became established in this country, in spite of the boiling points of Party feeling that have arisen at various times all Members of Parliament, in both Houses, have shown a great responsibility on this matter. They have been reluctant to interfere with those who have the heavy burden of deciding whether or not prosecution will take place. It is a heavy burden: I have had it and I know.

It means not only that we must have a good history in the matter but also that we must have—and now I speak collectively for all of us as Parliamentarians—a very high sense of responsibility. We all know that it is easy to get carried away by political or personal differences, but I believe that this is one of the subjects where Parliament must always bear in mind that we have great privileges. I speak entirely irrespective of Party: I am not speaking as a Party man at all. We can blast a reputation by an incautious phrase, and it is up to us to show that our sense of responsibility equals the privileges that are given to us. If that is realised, then I do not think that my noble friend Lord Airlie need worry too much. There is always the danger of the failure of the human factor, I know, but, looking broadly at our history and state of mind, I think that, as the Mother of Parliaments, we shall try to keep this, as my noble friend Lord Swinton said, for really important matters.

I apologise for detaining your Lordships, but I think that this is a most important matter. The other point which worried my noble friend Lord Swinton was the doing of justice in this form of procedure. I know exactly what he had in mind about the feeling that the person who comes into the inquiry is therefore in the dock. It is a difficult point. If your Lordships will allow me one excursus, I used to find it particularly difficult when I was in the Army and a member of a court inquiring into a serious matter. I am sure that many noble Lords have been in that position in the Services, where there was an inquiry into a situation and it was only as things opened up that certain responsibilities were attributed and certain blame could be attached to certain of the officers and non-commissioned officers involved.

I think that, first and foremost, it is a matter for those conducting the inquiry to see that anyone whose name is mentioned in any connection gets a complete and fair chance of dealing with all the matters that are mentioned, whether he be blameworthy or partly blameworthy or not. My noble friend Lord Swinton was a lawyer himself, and I am sure that in days which are not remote in his mind, if slightly remote in years, he read Sir Henry Maine's Ancient Law, with its discussion of natural justice. I hope he will not think again that I am taking my feet off the ground. I am going to the essential matter: that those conducting the inquiry should conduct it according to the principle of natural justice—that is, do their utmost to see that a man appreciates what is said of him or against him and gets a chance to answer. All one can do when using this procedure is to try to ensure that the persons who have to deal with it will have that power, That is why I was glad to announce that the Chairman of this Tribunal will be a Senator of the College of Justice of Scotland—that is, a Lord of Session—who will have the experience and the inspiration to see that that happens.

I know that that still leaves the point of: "No smoke without fire—Well, he was somehow involved in an inquiry." That is a difficult point. All one can do again is to choose the Tribunal so that they will make clear, when an unfounded allegation is made, that it is unfounded, and do their utmost to see that it does not react against the future life of the person involved, and to hope that that responsibility will be shared by everyone who has the power of giving publicity to the matter. I have tried to deal with all the points and I have put before the House, as I always try to do, with frankness the problem as it appeared to us. Having considered all these points I believe that there was no alternative, and therefore I ask the House to accept this Motion.


My Lords, I realise that I have no right to speak again, but I should like to be absolutely clear on one point. Did I understand the noble and learned Viscount on the Woolsack to say that he would represent to the Secretary of State for Scotland that these policemen should be allowed to call evidence on their behalf and that it would be heard? I understand that at present they have no redress whatsoever if the finding goes against them.


My Lords, the noble Earl is under a complete misapprehension if he thinks it will not be possible for the policemen to call evidence. They will be perfectly entitled to put to the Tribunal any evidence in their favour. The whole object of this matter is that all the evidence should be brought forward. I hope the noble Earl appreciates that of course that is so.


Not at the policemen's expense, of course.


That is the point on which I have already said that I will represent sympathetically to my right honourable friend the Secretary of State for Scotland the view expressed by the noble Lord, Lord Silkin. I shall now tell him that the noble Earl, Lord Airlie agrees with that view; and, indeed, I think I may tell him (if I interpret your Lordships' feelings correctly) that what the noble Lord, Lord Silkin, said and what the noble Earl, Lord Airlie, has now supported, meets with the approval of your Lordships' House. As I said, I am not in a position as Lord Chancellor to give an answer at once, but I shall put it to my right honourable friend in that way as being the opinion of the House, and I promise that it will be sympathetically conveyed. I hope that I have now satisfied the noble Earl on those two points.

On Question, Motion agreed to.