§ 3.27 p.m.
THE EARL of AIRLIE
rose to ask Her Majesty's Government, now that the findings of the "Waters Tribunal" have been published, whether they are still satisfied that this kind of tribunal is the only and the best kind of inquiry to set up for eliciting information upon such matters as these; and to move for Papers. The noble Earl said: My Lords, now 454 that the findings of the Waters Tribunal have been published I feel that it may be in the best interests of this House, at any rate, to discuss this matter more fully, and that the whole problem should be brought up again. Personally I am not at all happy about this matter, and I feel that somehow some other alternative should be found for dealing with these unfortunate and, as I am afraid I must call them, ridiculous situations.
The Waters case has already received—unnecessarily, I think—a great deal of publicity, which is very bad for the boy in question. I might add that, had done the same kind of thing, my father. had he been alive, would have kicked me from here to Sheerness. I appreciate the political difficulties which exist, but I cannot help feeling that if it is at all possible we must see that this does not happen again and must try to find some other alternative. I am only a layman Member of your Lordships' House: I am not educated in the law, and therefore I speak with some considerable trepidation, in view of the fact that there are many legal luminaries around me. But even laymen in your Lordships' House are expected to hold views, and the view that I am expressing is only a personal one.
I doubt very much whether the findings of this Tribunal would have stood the strain of a court of law; in fact I surmise, perhaps incorrectly—and I stand to be corrected—that in a court of law the findings might have been quite different. I appreciate and admit the difficulties, What perturbs me, and I hope will perturb some of your Lordships, too, is that when this matter was raised before in your Lordships' House we were informed by the noble and learned Viscount on the Woolsack, or so I understood him, that when certain circumstances arose there was no alternative to this kind of tribunal. At that time I intervened only because I wanted to ensure, if it was possible, that the two policemen, as well as the boy, got "a fair crack of the whip;" and I believe they did. But I shall wait with interest to hear what the noble and learned Viscount will tell us to-day as to the view of Her Majesty's Government, and whether they still hold the view that there is no alternative. If that is the case, if no fitter method can be devised for dealing with this kind of affairs than that which exists at present 455 I shall not feel a great deal of confidence in the fertility of ideas of our legal luminaries.
To my mind it will be hardly conducive to the dignity of either House if we are to be subjected to this kind of tomfoolery—and I use the word advisedly—at the wit and wish of anyone who chooses to make political publicity capital on an occasion such as this. I use these terms advisedly, having given them most careful consideration. However, who would wish to do this here or in another place or outside?
It is not for us, of course, to query the findings of this Tribunal, but I must admit that I personally deplore that this expensive procedure may have to be set up, and may have to be set up again, because someone chooses to "yell loud enough." I think that I represent the feeling of the majority of reasonable people, or reasonable opinion, in saying that it is probable that the reputation of the parents was not too savoury. Certainly the Tribunal found that the boy was cheeky and obscene or, anyhow, used obscene language and deserved a great deal more than he got. As I said before, if I had done that, my father, who was killed a great many years ago, would have kicked me from here to Sheerness and would not have waited for the police to do so; and that is the proper procedure. However, nowadays it is customary for everyone to yell before he is hurt and for everyone to yell in consonance.
I am afraid (and I say this advisedly) that I cannot entirely exonerate the police. It is true that the two constables concerned were very young, and that, had I been in their place, I should probably have done exactly as they did; but I suggest that times have changed and the police cannot afford to make a mistake. I trust that they will benefit from this lesson because, young or not, they have got to be told and shown that they cannot take the law, whatever it is, into their own hands.
I have only three claims to fame: they are very small ones, but they rather bring out what I am saying. The first I mentioned yesterday: the occasion when I was "cut" in my own club because it was felt that I was in Scotland interfering with the amenities of the country. The second was when I was rash enough, while in command of a Highland Territorial battalion (and I shall 456 always be most grateful for the honour), because I suspected that they were wearing something under their kilts, to undress them. It is in my dossier at the War Office that I am the only person who ever undressed a Highland battalion on parade. What would happen to-day if I tried to do the same thing? I frankly admit that I had to repeat the order twice; but they did it. They would not to-day. Although there was great affection between the battalion and me, I held it to my advantage that they obeyed the order, and I have always looked back on it as the happiest moment of my life. I found out all I wanted to know.
My last claim to fame is that, at seventeen, when I was at Eton I was beaten for something I had not done. But I know that I did not yell and did not complain, and that I am very much better for it.
Those three small claims to fame are rather relevant to what happens to-day. Everybody yells before he is hurt. In the old days we were brought up to stand and "take our medicine", and I suppose that is why we remained in those trenches in 1914 as we did: we should not have done so otherwise. We did not ask who had put us there, or why we were to be subjected to such treatment. But times have changed and the police have to realise it; and I hope that they will reap a lesson from this matter. I have great admiration for the police, both locally and in London, and I appreciate that they need all our support. I have many acquaintances and friends among the police and I have the greatest admiration for them; I have a great deal to do with them. But police action must at all costs be above criticism, because times have changed.
However, that is not really what I wanted to speak about. What I am querying to-day, and what I am asking your Lordships to consider further, is the method of dealing with a case of this kind. In my view, I repeat, some alternative to this kind of Star Chamber must be found. This is by the way. Who has to pay? I am told that it is the ratepayers. Well, why should they? I do not know. Somebody has got to pay for it, but why should the ratepayer have this cost shifted on to his shoulders? I do not come from the county in question, so I shall not have to pay. But I do not think it is right; and I am asking 457 that Her Majesty's Government will give an assurance that the question of finding an alternative to this kind of inquiry will be further considered or, at any rate, that they will give an assurance that they will fully review this matter again. My Lords, I beg to move for Papers.
§ 3.36 p.m.
§ LORD GREENHILL
My Lords, although a layman myself, without any pretensions to any legal knowledge at all, I feel, as the noble Earl, Lord Airlie, feels, that this particular case has rather disturbed public opinion in Scotland. But I want to deal with this matter from a slightly different point of view, because it seems to me that in conversation with friends, English friends particularly, there is a feeling that perhaps our judicial system in Scotland has some weakness or some fault. For myself, I do not think that that is the case. My own view is that the Lord Advocate, in deciding that there was no case to go before a court, was quite right in his decision. My opinion is that the Secretary of State for Scotland, in upholding the view of the Lord Advocate, did perfectly right in saying there was no case for a public inquiry. But I also think that the Prime Minister was right in agreeing that a Tribunal should examine this case, because by the time the matter had come to his notice public opinion had been so aroused that it was necessary that something should be done about it.
It is not for us, my Lords, to consider the merits of the particular case. It would seem to me, again as a layman, that if a man had a son who had been injured or attacked by the police he would have a perfectly good case to take before a court, which would examine the details and arrive at some kind of decision. Instead of that, the father in this instance reported the matter (or so one understands) to the Member of Parliament in the particular area; and the Member of Parliament, by a persistence which, if I may say so, I should almost refer to as pathological, whipped up an atmosphere in which something had to be done. The decision was that a Tribunal would be set up. So far as my reading of part of the evidence and of the White Paper is concerned, it would seem to me that the Tribunal acted quite properly and went into great detail in examining the evidence 458 and in arriving at its decision. Whatever be the views of the noble Earl, Lord Airlie, upon whether or not a Tribunal is the proper means by which to examine cases of this kind, nevertheless the fact remains that this Tribunal has brought out quite clearly the importance of protecting the public, even at the inconvenience and cost involved in this case, and, secondly, and no less important, of seeing that our public servants are protected—by that I mean that the police themselves are protected in the carrying out of their duties.
No one pretends that occasionally a policeman may not overstep the limits of his own duties—the policeman, like the rest of us, is human—but that is a matter which his superiors could deal with by some kind of disciplinary action. What I do resent, however, is the atmosphere which has been created, if one may say so, by a Member of another place, seeking perhaps some kind of notoriety and encouraged by a sensation-seeking Press who made great capital out of this particular case. And for what? In order to examine whether the fact that a boy who had been, wrongly, if you like, slightly struck by a policeman had disturbed in some way the feeling of security which we, the general public, insist on enjoying.
What the alternative is—and alternatives were asked for by the noble Earl, Lord Airlie—I cannot say. Noble Lords will be aware that in another place the Motion was that a Select Committee be set up; but in conversation with friends I gather that there are serious objections to the setting up of a Select Committee for matters of this kind, and that this Tribunal under the 1921 Act was set up in its place. It may not have been the best kind of Tribunal to set up, and this may not have been the appropriate occasion on which to take advantage of that particular Act, but I cannot myself (indeed, I would not presume to) suggest an alternative. All that occurs to me is that if, in the future, an occasion should arise which warrants a public inquiry, then it would appear that some kind of ad hoc Committee enjoying the confidence of the general public might be set up to inquire into the facts—if, that is, the ordinary recourses to the courts of law are not available. That, I think, is about as good an attitude as a layman can adopt.
§ 3.42 p.m.
§ LORD SOMERVELL OF HARROW
My Lords, having expressed opinions in this House on judicial matters which have come before your Lordships, I am told that it is a debatable point whether I am entitled to ask for that indulgence which your Lordships always, I know, extend to those who address you for the first time. Whether, therefore, my observations are technically maiden or not, I would ask for your Lordships' indulgence.
I should like to say a few words on perhaps the more general aspects of this topic rather than on the question which has been raised by the two noble Lords who have spoken. A Tribunal of this kind is, I think, the best instrument we have so far devised for finding out the truth. The basis of a decision to appoint a Tribunal of this kind—a decision which may, of course, be criticised, like other decisions—must always be whether what has arisen, the state of public opinion, and so on, justifies the Government of the day in appointing this machine for investigating and finding out the truth. I think such misgivings as those that have arisen in the Waters case, and have perhaps in other cases, arise when the area which the Tribunal is set up to investigate overlaps, as it were, with the criminal law.
It is perhaps worth reminding ourselves that there are many cases in which a Tribunal of this kind—not a Tribunal under this Act, but a Tribunal of this kind is—desirable, although criminal offences may turn out to have been committed when its Report is read. For example, a wreck inquiry under the Board of Trade may well disclose offences, possibly serious offences—overloading or disregard of safety regulations: an inquiry into an explosion in a mine may disclose offences against the safety regulations; inquiries into railway accidents, accidents on the road, and so on, may also disclose offences. Those matters, as I say, are not under this Act, but they involve the same type of inquiry. This Act comes in when public opinion is disturbed and there is, as it were, no other recognised machinery for setting up an investigating committee.
Those examples show that it would be wrong to seek to lay down the principle that when criminal offences may emerge 460 one should not have an inquiry to find out the truth. When they do emerge, no doubt a difficult position is created for the prosecuting authorities. If I may say so, those difficulties were, I think, clearly and forcibly defined by my noble and learned friend Lord Shawcross, when he was Attorney-General, after the Stanley Tribunal case. In that case, as in this, the question whether there was evidence justifying a prosecution had been considered before the Tribunal was set up, and the Director of Public Prosecutions or the Attorney-General himself, or both, had decided that there was no sufficient evidence. But the Tribunal—which, as I say, is designed to get at the truth: the prosecuting authorities have not the means which are at the disposal of a Tribunal of this kind, of course—carried the matter a great deal further. However, I do not want to revive unhappy and far-off things.
In the passage to which I have referred Lord Shawcross started by saying (and I think everybody would agree with this) that there might be a case in which it would be proper that a prosecution should follow on the finding of a Commission or a Tribunal of this kind, but he went on to say—and these words, if I may say so, are very important and very wise and right [OFFICIAL REPORT, Commons, Vol. 460, col. l837]:… in general it is necessary to exercise great discretion in the use of statements obtained in the exercise of compulsory powers of interrogation as evidence against the persons who, under that interrogation, actually gave those statements.As noble Lords will remember, he decided in the end (I think with general, perhaps universal, approval) not to take any further action.
There are, of course, difficulties when these two things come in conflict: the importance of investigating the truth by all the proper machinery available to a Tribunal of this kind, and the question of the administration of the criminal law under which a man cannot be called upon to answer questions before a decision is taken, or even after. Although, of course, everybody would agree that it would be unthinkable and wrong to appoint a Tribunal of this kind simply with a view to getting evidence to justify a prosecution, on the other hand I myself think it would be equally wrong to seek to lay down some principle that the truth should 461 not be investigated by means such as these because criminal offences may be involved. I do not believe there is any rule, my Lords, except this: that those who demand such an inquiry, and possibly encourage public opinion to demand such an inquiry, should, before they set out on their task, anxiously search their hearts as to whether that journey is really necessary.
§ 3.49 p.m.
§ LORD MILNER OF LEEDS
My Lords, I am sure that it would be your Lordships' wish that I should say how happy we are to hear the maiden speech of the noble and learned Lord, Lord Somervell of Harrow. Lord Somervell of Harrow is known to many of us as a very modest man. He has sat in this House for a good many years, but this is the first time we have had the advantage of hearing from him in other titan a Judicial capacity. As many of us here know, he had a very distinguished career in another place; and we all hope that we shall have the benefit of his wise advice on many future occasions in this House.
My Lords, we are all obliged to the noble Earl, Lord Airlie, for raising the question which he poses on the Order Paper. I would venture to draw your Lordships' attention again to its terms. The noble Lord asks:Her Majesty's Government, now that the findings of the 'Waters Tribunal' have been published, whether they are still satisfied that this kind of tribunal is the only and the best kind of inquiry to set up for eliciting information upon such matters as these;What are "such matters as these"? In my submission to your Lordships, in origin this was a simple case of assault, the kind of case that is heard by the hundred, probably, in the petty sessional courts of this country every court day in the week. I think that a preliminary question does arise, on which perhaps we may have the benefit of the advice of the noble and learned Viscount on the Woolsack, as to whether there was any real justification for setting up this Tribunal within the terms of the Tribunals of Inquiry (Evidence) Act, 1921. That Act requires a resolution that it is expedient that the Tribunal be established for inquiry into a definite matter described in the resolution as of urgent—I ask your Lordships to note the word "urgent"—public importance. I do not think, 462 with respect, that it can be urged that this particular case, when the resolution was passed some fifteen months after the incident had occurred, was a matter of "urgent" public importance, and that the Government were thereby justified in setting up this form of tribunal.
However, that may be, I must apologise for my ignorance of the Scottish law. but as a practising solicitor in petty sessional matters years ago, if my advice—or indeed that of any other solicitor—Ahad been asked in a matter such as this, there would have been two alternatives offered. Either the individual who was involved might bring a case for damages in the county court, or, if the damage justified it, in the High Court and could issue a writ of summons on his or her own volition. Alternatively, a summons could have been issued for assault in the petty sessional court by the individual alleged to have been assaulted. Why those steps, or one of them, were not taken in Scotland in this particular case I am at a loss to understand. I gather that there are differences, which no doubt may be explained. I am told, with what truth I do not know, that only the police may prosecute and that it is not for an individual to do so. That seems rather strange, if it be true. It may be that there was the matter of corroboration, which it is said was not available on the evidence of this case; but the corroboration was enough at any rate to enable the Tribunal to find that the youth in question had, in fact, been assaulted. To the ordinary individual reading the evidence or the report of the Tribunal, that seemed almost to be self-evident.
But what I want particularly to call to your Lordships' attention is the difference between the proceedings in a court of law and the proceedings before a Tribunal such as we are discussing to-day. As your Lordships of course know, in a court of justice there are rules of evidence which must be strictly adhered to; the evidence must be directly related to the cause of action; hearsay evidence is not admitted; there may not be evidence or cross-examination on previous convictions for minor offences; in a court of law legal representation is allowed as of right, and in certain cases there is a preliminary hearing; one may go before a jury and an appeal is allowed sometimes, indeed, to your Lordships' House. Hardly any 463 of these safeguards is available to the subject in the case of an inquiry under the Tribunals of Inquiry Act.
In the Tribunal in the Waters case—and I make no criticism of the members of the Tribunal: far from it—there were, apparently, no rules of evidence; hearsay was admitted; a great deal of mud was thrown; the names of third parties were introduced, and suggestions were made, apparently with no evidence produced to support them, and in some cases with no opportunity of refutation. Legal representation is not allowed before a Tribunal except, as was properly allowed in this case, by leave of the Tribunal itself. And, of course, there is no appeal. Those are very serious differences indeed, and I submit to your Lordships that on all those points the Tribunal form of inquiry is, to say the least of it, most unsatisfactory. As has been said by the noble Earl, Lord Airlie, when there are proceedings before a Tribunal the whole matter is exaggerated and becomes a cause cèlébre, a subject of rumour and publicity, newspaper reports and so forth; so that, whatever the result, great harm, and possibly ruin, and certainly harm to reputations, can ensue without any just cause.
I do not desire to go into the merits of this particular case, but there are one or two matters which to me are really inexplicable. The incidents in question occurred on December 7, 1957. It was only after the utmost Parliamentary pressure that in February, 1959, the Tribunal was set up. I think that those responsible have a great deal to explain in this connection, for it would appear—and in this I must confess I disagree entirely with my noble friend Lord Greenhill— that had it not been for the pertinacity of the proper individual, the Member for the constituency concerned, who seems to have fought a single-handed battle against a good deal of obstruction (I hesitate to use the word "evasion"), and to have demanded some form of trial or inquiry, nothing would have been done. The particular form which the inquiry eventually took was not, I think, at his request.
§ LORD GREENHILL
My Lords, would my noble friend excuse me if I say that this form of procedure adopted was discussed among the different counsel appearing in the case; it was agreed 464 upon among them and accepted by the Tribunal?
§ LORD MILNER OF LEEDS
My Lords, with all respect to my noble friend, I do not see how that is very relevant to what I was saying. What I was saying was that I thought that the Member for the constituency, who was not a party to or represented at the hearing, but whose duty it was to protect one of his constituents and see that justice was done to him, had adopted a perfectly proper course in demanding some form of trial or inquiry—not necessarily a tribunal. In any event nothing should be said that reflects on honourable Members of another place, and I think, with many others, that the Member of whom I speak rendered a public service in the action he took.
However that may be, there is a good deal to explain in this matter of delay, which, not unnaturally, created doubts and suspicions in the public mind. Then there is the question of the cost of an inquiry of this kind, as compared with the pettifogging cost of a magistrates' court action or of action in the county court, or even the High Court. I gather that this particular case cost something like £8,000. Surely that is taking a sledgehammer to crack a nut.
I would only add that, as I have already said, I am making no criticism in any way of the members of the Tribunal. They found that an assault had, in fact, taken place, and I have no doubt carried out with the utmost care and judgment their not very pleasant duty. It is to the form of the inquiry in a minor case of this sort to which we on this side of the House take exception. It is, I think, for the Government to justify the form which the inquiry did take, and to offer to your Lordships' House some alternative. This does seem to be a matter of some public importance, and I hope that the noble and learned Viscount on the Woolsack will be able to suggest some alternative which will be satisfactory to your Lordships and to the country.
§ 4.0 p.m.
§ THE EARL OF SWINTON
My Lords, with the possible exception of my noble friend Lord Halifax, I think I am the only survivor in the House of the Government which introduced this controversial measure in 1921. Whatever be the exact construction of the Act, I have clear memories of what was intended 465 when the Bill was introduced. I think my noble friend Lord Airlie, not for the first time, has performed both a personal and a public service in bringing this matter forward again to-day: indeed, on personal grounds nothing could have been more entertaining, more rewarding or more instructive than his early memories. The memories of the Chancellor of Oxford University of what I believe were called "debagging" episodes in every College—except, of course, All Souls—fade into insignificance as compared with the activities of the noble and gallant Earl when he commanded a battalion. I think we should all agree with him that now that this case is over, while undoubtedly it was utterly and wholly wrong for the policeman to hit the boy, the policeman was equally certainly doing what the boy's father ought to have done ten years before. However, that episode is closed now, except for the unfortunate ratepayers—and I agree with the noble Lord, Lord Milner of Leeds—in this not very rich county, who have to pay a bill of something like £8,000.
But I think the issues raised far transcend any question of this particular case. Is this form of inquiry right; and when should it be used? My noble friend Lord Somervell of Harrow, in a charming maiden speech which was as succinct and concise as were all his judgments, which were hardly ever, if ever, overruled, has cited as a parallel the cases of inquiries in regard to ships, aircraft and on the railways. With those I am very familiar, because as President of the Board of Trade I have had to order shipping inquiries, and as Air Minister inquiries into air accidents. Those are most necessary inquiries; and they are, if I remember rightly, all provided for by Statute. But those inquiries have to take place, and rightly so, because questions of enormous public importance arise involving the whole safety of the public. An accident in the air, or a great accident at sea, like that to the "Titanic," or a railway accident, occurs and of course there has to be a careful technical inquiry, not only because lives have been endangered, but to find out what was the cause of the accident. There may be some technical defect, which can be remedied; or some error of human judgment, and it is inevitable that that should come up. But there is there obviously 466 overriding public interest which has caused Parliament to say that those inquiries must take place; and Parliament has, I think, laid down in the Acts what the form of inquiry should be.
But even there—and I think my noble friend will bear me out in this—we come up against great personal difficulties. Inevitably the conduct of individuals has to be inquired into. I remember raising a question in the House, when we were in Opposition, about individual pilots in air inquiries which took place; and there has been a good deal of public interest taken recently in a case that has been raised two or three times in another place., by the former Attorney-General, Sir Lionel Heald, about an inquiry of this kind. Even there, where unquestionably an inquiry must take place, it is most important that the interest of the individual, the individual officer who may be affected, should be safeguarded as far as possible. But those cases are separate. Here is a case which raises no question at all of the public safety, or any matter of that kind; here, in fact, was a local scandal which was magnified into something of national importance when it was not of the faintest national importance.
I would say, without any question, that it is quite right to have this form of Tribunal. II do not know how it could be bettered. I think the case in which my noble friend Lord Shawcross was engaged was a very difficult one, in which, if I may respectfully say so, his conduct before that Tribunal, as that of the Tribunal itself, could not have been bettered. But this procedure is, as the noble Lord, Lord Milner of Leeds, has said, for matters of great public importance. That was in our minds when we passed the Act: that when some issue arose in which it was obviously in the public interest, there should be an inquiry, but only where the ordinary procedure before the courts, either civil or criminal, could not be used. That limits it greatly. I would agree with my noble friend Lord Somervell of Harrow, and others, that where there must be that kind of inquiry, it is doubtful whether there can be a better form of Tribunal than one under the Tribunals of Inquiry (Evidence) Act. But I am certain that Parliament should resist instituting such an inquiry except in most unusual cases where the civil and the criminal procedure will not apply.
467 Let me take this particular case. I do not know why it dawdled on for a year or eighteen months. I should have thought that it was a perfectly simple case. The chief constable—who seems to have acted admirably throughout—may have had to put it up to the Lord Advocate, and the Lord Advocate would no doubt have said: "There is no case for a prosecution" or, "There is a case for a prosecution." The chief constable would have said: "Here is a case for a disciplinary inquiry into the police, and whatever action is necessary will be taken". I should have thought there was nothing to stop the boy, or his parents on his behalf, from bringing an action for assault in a civil court, and having the case tried by a jury, with all the rules of evidence applying and the ordinary proper procedure of the law being followed. That, if I may say so, is what should have been done without any question.
I want to say once again that I am sorry the inquiry did take place, even with the pressure which was exerted. It was pressure which came from all round. But I hope that it will be a lesson to all of us in both Houses, because we are all responsible. The pressure often comes from one or other House of Parliament, and we are all concerned in this matter. It is the duty of us all to see that these inquiries are confined to great issues, that the procedure is not abused; and I sincerely hope that the one lesson which will come out of this inquiry is that never again will this sort of Star Chamber procedure be used for such a pettifogging case as the Waters case.
§ 4.12 p.m.
§ LORD SHAWCROSS
My Lords, I had by no means intended to intrude my voice upon your Lordships so early in my membership of your Lordships' House. But as it happens that I was some years ago concerned with a perhaps unjustifiably notorious case involving the use of this procedure, and as I myself believe that the continued possibility of using this machinery in the most rare cases is a matter essential to good public administration, perhaps your Lordships will indulge me if I permit myself to voice a word of caution about its too frequent employment.
As the noble Lord, Lord Milner of Leeds, has pointed out, the significant 468 departure which this system of procedure involves from the ordinary processes of our law is, of course, that, broadly, it is inquisitorial rather than accusitorial. Sometimes that is a necessary procedure in order to ascertain the truth; occasionally it happens that only the guilty man knows what the truth is, and if one has to find the truth one has to ask him. In many very respectable systems of procedure on the Continent the inquisitorial process is, of course, followed. We ourselves employ it to some extent on the civil side of our law, but in criminal matters and matters of a quasi-criminal nature we cling very much to our traditional accusitorial system, and anything else goes much against the grain.
For my own part I would certainly agree that this procedure is of a kind to be employed only with the utmost discretion and only in cases arising where grave issues of public importance appear to be involved. The injustice to the individual involved in the public canvass of unfounded allegations; the exaggerated importance of matters which turn out, in the end, to be of small moment, and of course the cost, are all, I think, considerations which should lead to the greatest discretion in employing this method of investigation. But at the end of the day there will always be occasional circumstances in which Parliament may consider that the only way of satisfying the public that the truth about some particular matter has been ascertained is to employ this formal and cumbrous process. What those cases may be it is extremely difficult—indeed, I should say impossible—to define in advance. One must, I feel, accept the paradox that occasionally only the fullest and most formal investigation will demonstrate to the public that there was nothing at all to investigate.
Sometimes, with the best will in the world on the part of the Ministers and Members of Parliament who are responsible, in the end, for deciding whether a Tribunal of this kind should be set up, it may at first sight appear that there is some matter of grave public importance which ought to be investigated, and very often—and one rejoices that it may often be so—it will turn out, when that investigation has taken place, that nothing of serious public concern was involved.
I venture to think that what aroused public concern in the present case was not 469 the perhaps unimportant question on these particular facts of whether a particular policeman had boxed the ears of a particular boy. What aroused public anxiety about the matter was the atmosphere that was gradually built up, rightly or wrongly—as we now know, wrongly—that, somewhere or other, higher authority was apparently protecting a policeman who had infringed the liberties of the subject. This inquiry was not concerned with whether it was right for a policeman to box the boy's ears; this inquiry was really to allay a public feeling that perhaps somebody was protecting a policeman who had done wrong. That, as I feel myself, was the justification for the inquiry.
My Lords, it is easy to be wise after the event. All that one can say in these cases is that Ministers and Members of Parliament—for it is Members of Parliament who have the responsibility for deciding that Tribunals of this kind should be established to investigate particular cases—should exercise the utmost frankness between each other in discussing the circumstances which it is suggested might justify the establishment of a Tribunal. They should then exercise the greatest discrimination in using this machinery, and should use it only if, it appearing that other legal methods are not available, they are satisfied in their conscience that some matter, not of Party advantage but of public interest, necessitates the fullest public investigation.
§ 4.18 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, if the intrinsic merit of the subject did not deserve ventilation—and I believe it certainly does—I should be most grateful to the noble Earl, Lord Airlie, for having initiated this debate, because it has given me the immense pleasure of hearing speeches from two old friends. With regard to the speech of my noble and learned friend, Lord Somervell of Harrow, he threw doubts on its maidenhood, but he could not throw any doubt upon its ability or charm. We hope it will not be the last time we shall hear him, but that we shall hear him many times hereafter. With regard to my noble and learned friend, Lord Shawcross, your Lordships will be glad to perceive, and to hear, that he has long outgrown the disadvantage of once being my pupil in 470 the law. We are delighted that he should have broken his silence on a subject of which he is a master and to the evident appreciation of your Lordships. Again, we hope to hear him many times in the future.
On the general subject, I think it would be most useful to the House if I were to sum up the arguments for the existence of a procedure of this kind, and then to consider the major criticisms which have been advanced against it and the answers which have been tendered. It is not my intention—and I think almost all noble Lords agree with this—to go into the details of a particular case, even the last of these cases. I would say only two words which have arisen from the debate. The noble Earl, Lord Airlie, raised the question of the police costs. I am glad to say that with regard to 50 per cent. of these costs they are borne by the police grant. In addition to that, the equalisation grant so operates that there will be left only one-sixth of the amount of the costs to be borne by the local authority. The local authority have asked my right honourable friend the Secretary of State to consider the payment of the one-sixth, and he is considering that matter at the moment. The other point that is important is that the decision of my right honourable and learned friend the Lord Advocate not to prosecute was upheld by the Tribunal, and I am glad for many reasons that that was established.
The only other point to which I would draw attention, in view of certain criticisms to-day, is that I think the noble Lord, Lord Silkin, on the last occasion when we discussed this matter, said [OFFICIAL REPORT, Vol. 214, col. 347]:My Lords, I am sure the whole House will agree that the Government have done the right thing in setting up this inquiry.So we were not dealing with a matter in which we were acting against the view of the House.
Let me state quite shortly the arguments for some such procedure as the present. The sanction of the public inquiry is necessary on occasion for the purpose of maintaining a high standard of public administration and, indeed, of public life. The modern system has developed in consequence of the inadequacies of the machinery of inquiry by Select Committee on the one hand and the limitations 471 of the ordinary processes of law on the other. The Select Committee was severely criticised after the Marconi Inquiry in 1912 and 1913, and has few adherents to-day. There is a real danger of Party feelings either showing themselves in fact or appearing to show themselves, or being believed by the public to have influenced the minds of members, and the difficulties which beset the procedure which we are discussing to-day apply a fortiori to a Select Committee. I see the noble Viscount, Lord Stansgate, in his place. It is now over twenty years since he and I had what was a very happy experience, in retrospect, of being members of an important Select Committee of another place. But I think that if he casts his mind back he will agree that the beginning of that procedure, how to get started and how to deal with the matter fairly, gave us considerable trouble and difficulty at the time.
Tate LORD CHANCELLOR
We did. I am not reflecting on that. I am only recalling to the noble Viscount's mind the difficulty of starting our inquisitorial procedure. Experience shows that circumstances needing public investigation sometimes arise, as my noble friends Lord Somervell of Harrow and Lord Shawcross have pointed out, where the ordinary processes of the law cannot be invoked. The ordinary processes of law are geared to a charge or claim brought by one person against another. They do not fit when it is necessary to discover what has actually happened before the responsibility of or between individuals can arise, and, as has been discussed earlier in this debate, there are other fields, such as wreck inquiries, inquiries into accidents, courts of inquiry in the Services and the Committee of Privileges of the House of Commons, where the inquisitorial procedure is a necessary concomitant of their work. In all those cases the question of discovering what has actually happened is of prime importance.
My noble friend Lord Swinton has said that the cases dealt with by the other forms of statutory inquiry are all important matters. I agree with that. But it was in order to deal with important matters—I stress that point—that were 472 not covered by statutory procedures that this procedure was initiated thirty-eight years ago, and I think that we all agree—every one who has spoken and I certainly agree—that this procedure should be confined to matters of at least equal importance to any of the other instances mentioned. After the true facts have been found and stated it may be necessary to stigmatise conduct which, although not a criminal offence or a civil wrong, falls short of the requisite standards of our public life. It may be necessary to kill harmful rumours which are found to be unjustified. It may be necessary—and this I am sure was very much in the minds of the Government who introduced this measure—to restore public confidence in public conduct and administration. These ends may well be of such importance to the life of the nation as to justify means which inflict hardship on individuals.
It is further argued—I do not think it is so important—that comparisons between the tribunal procedure and the procedure of our criminal courts are inapt, because the question whether a criminal offence has been committed is not the criterion by which standards of integrity in public life or of persons in public service should be settled. The noble Lord, Lord Greenhill. made the interesting suggestion as to ad hoc tribunals. The difficulty is that at the moment if one appoints an ad hoc tribunal it has no powers to compel the attendance of witnesses, and we have had the experience of setting up an ad hoc tribunal and then the witnesses refusing to come. So it would be necessary to pass a special Act on each occasion which would really have the same effect as the present Act. I think that that is the answer to the most interesting point which the noble Lord raised.
May I pass to the criticisms? The first criticism in point of time that is advanced is that the preliminary proceedings in Parliament may create an initial prejudice and indeed that the procedure may be set in motion by irresponsible allegations protected by Parliamentary privilege. We must bear in mind that two of the primary duties of Members of the House of Commons are to give voice to the grievances of their constituents and to criticise shortcomings in the government and administration of this 473 country. If these are emasculated, Parliamentary responsibility becomes a hollow sham. There is, therefore, no remedy for this first criticism except a high sense of responsibility among Parliamentarians and the constant reminder that the privilege of free speech involves the checking by Parliament itself of its abuse.
Now I come to the criticism that the inquisitorial nature of the procedure is inherently unfair. I have often said that it is a tribute to the power and influence of the English Common Law and its quality of preferring justice even to truth that the inquisitorial system is so disliked in England. No one in this country is happy unless he has anything that is alleged against him precisely formulated and a clear indication given to him of the evidence upon which it is based. Moreover, he does not care for a tribunal which adopts the active role of investigator and adjudicator combined, as opposed to the limited and judicial role of our judges, which is to adjudicate on allegations made by others rather than to carry out investigations of their own.
But how, then, are we to cope with our problem of unascertained, indeed unknown, facts, the ascertainment and the knowledge of which is essential to the interests of the country? I waited with interest to see whether the noble Earl, Lord Airlie would give us his solution to this problem. I do not blame him for not giving it. He is one of those who helps to put a Government in office and he puts the problem to the Government. But I say that here is a problem that must be tackled. Unless you have some procedure for dealing with any unascertained and unknown facts, the whole framework of Government will suffer.
Now may I make my suggestions? I respectfully suggest that it will help if the Tribunal when it has to consider complicated matters, bears in mind two points and has two objectives: first, to get clear what actually happened; secondly, as soon as it appears possible that responsibility may rest on a particular person, to secure that this person should have an opportunity of dealing with any point—I repeat, any point—which may be thought to tell against him. I think we can say that as the procedure has been tried and improved—it has been tried some dozen times in the past 474 thirty-eight years—the importance of this second objective has been more clearly recognised, and greater efforts have been made to ensure that there can be no misapprehension in the mind of the person involved as to the points of importance in the case. I admit, and I affirm, that this must depend on the skill, experience and, above all, on the patience of the members of the Tribunal. Further, it has often been said, and it has been repeated in the debate to-day by my noble friend Lord Swinton and by others, that Parliament should not press for, nor should the Government grant, an inquiry of this kind when a remedy for the complainant is open in the ordinary courts.
I want to digress for one moment on the question of Scottish law. I do not pretend to be an expert on Scottish law, but Lord Milner of Leeds raised the point and I give the position as I understand it. In Scotland, prosecutions can be brought only with the consent of the Lord Advocate, subject to two exceptions: in the first place, the complainant may ask the Lord Advocate for permission to bring a private prosecution; and secondly, if the Lord Advocate refuses, he can apply to the Court of Session for letters in order that proceedings may issue. That is the theoretical position. In fact, only once in this century, and that I think nearly fifty years ago, has application for letters been made to the Court of Session. So far as I know, it is nearly two hundred years since that application has been made to the Lord Advocate and granted. So these are really procedures which are quite out of the ordinary. What was available in this case was, of course, the remedy of a civil action in the sheriff court, and the Legal Aid and Advice Act in Scotland applies to the sheriff court; there is therefore in a proper case no question about the plaintiff's costs. That was the position, and I thought it right that I should make it as clear as I understand it. I see Lord Greenhill nods, so I think that I have the matter right.
But I do not think it is the end of the matter. In certain cases where the remedy is available there may still, as my noble and learned friend Lord Shawcross pointed out, be an important public question still extant. I think that everyone would agree that Parliament and the Government should be exceedingly chary of using this procedure when another 475 remedy is open, for the inquiry may hopelessly prejudice subsequent proceedings. Yet again, one has to set against this difficulty the public asset of confidence in the police, or the Civil Service, or the functioning of government, which it may be vital to re-establish. That is the only sort of exception, and I think that if noble Lords consider it they will be inclined to agree. I think that Lord Milner of Leeds underestimated the importance in this context of the issue of confidence in the police and the authorities who might be responsible for a prosecution. I agree with my noble and learned friend Lord Shawcross that it is important to make quite clear that nothing was being covered up in the interests of the police. Your Lordships will remember that that was one of the matters which I put to your Lordships when I commended the resolution to you.
I have two minor criticisms about procedure: one is that the urgency of the functioning of the Tribunal after the initial feeling exhibited in Parliament militates against full and critical preparation. I should say—I hope that my noble and learned friends who have also held the office of Attorney-General will agree—that this real difficulty is usually met by extremely hard work on the part of those who are charged with preparing the case. The second is that the procedure does not allow for discrimination between major and minor cases. If one looks at the list of cases—I am not going into them to-day—your Lordships will find that that has been overcome in the past. If I may say so without disrespect to certain Tribunals, that is reflected in the composition and size of the Tribunal.
There are three more important points which must be considered, and I think the criticisms may be fairly stated as follows. The first is that wholly innocent people may be dragged into the investigation in response to a rumour ultimately found to be baseless. Until the Report is published suspicions are aroused against these innocent people which are not quickly dispelled. It has therefore been suggested that the daily proceedings of the Tribunal should not be reported until the Report is published. As a closely connected point, the critics have suggested that anyone called as a witness should be entitled to legal representation and should have the costs of such repre 476 sentation paid by the State if he is found innocent.
There is no doubt that the point made in the first of these criticisms can cause real hardship. The reality of this hardship has never been stressed more strongly than in the columns of the Press. On the other hand, the Press are at the same time the protagonists of the public functioning of justice. They would say, with Lord Atkin, that justice is not a cloistered virtue; or, using the language of the Franks Committee, that openness is as important a quality as fairness or impartiality. And they might pray in aid the classic answer that the absence of day-to-day reports might prevent a witness from coming forward who would have done so had he or she seen the reports. This is a very difficult balance of advantage, and I hope that this debate may enable us to receive the views of the Press upon it.
I have not forgotten the suggestions put forward in a leading article in The Times of January 28, 1958, where it was said:Meanwhile if some better provisions could be made for opening statements by Counsel for the quasi-accused, the danger of mud temporarily sticking might be reduced. Finally, it seems only common justice that the costs of those involved in proceedings and found innocent of any impropriety should be borne by the public.These are important points. The translation of the first into a practical and flexible procedure has been, and is being, carefully considered. The second would seem to imply placing on the Tribunal the duty of deciding not only which witnesses were entitled to representation but whether their costs should be paid. Clearly, this is not an insuperable objection, but again it requires full examination of the important consequences.
My Lords, I have tried to cover the points which have been raised in this debate, and the main difficulties which have been canvassed in the discussions of the subject during the last few months. I have also tried, while stating the reasons for the necessity of the existence of this procedure, to show on what lines I think improvements in the procedure can be obtained. I am sorry to have to say to the noble Earl, Lord Airlie—and I would ask him to believe that I have examined the matter as carefully as I can—that I cannot find an alternative; nor can I find reasons for letting this procedure go. If 477 the noble Earl takes that, as he says he does, as a reflection on the clarity of my legal mind, I shall have only to "dree my weird" in that regard. But I should like him to know that I have tried to do so, and I have suggested the improvements which I have put before your Lordships to-day; and these are very much in people's minds at the present time. But one must frankly admit that there is a conflict between the need of the State that the truth should be discovered as to weighty matters which reflect on the functioning of its important agencies and the position of the individual who finds himself involved.
A final point: as I have said, and as I believe every one of your Lordships agrees, the procedure should be invoked only for weighty and important matters, for it is only then that the sacrifice on the part of the individual can be fairly demanded. That leaves our unending problem. When the ordinary life of the ordinary citizen is invaded we must use all our skill and, as importantly, all our sympathy to ensure that this is done in the least hurtful manner. I hope that I shall not be thought to be presumptuous if I ask for the co-operation of Parliament and the Press in this important task. I believe that if we get that we can make improvements and keep an essential procedure while really and helpfully diminishing its difficulties.
§ 4.47 p.m.
THE EARL OF AIRLIE
My Lords, I believe that I have the right to reply, if no other noble Lord wishes to speak.
§ LORD CHORLEY
My Lords, has the noble Lord the right to reply? I was told yesterday that I had not the right to reply,
THE EARL OF AIRLIE
My Lords, the noble Lord, Lord Chorley, did not move for Papers. I have moved for Papers and I believe that I am correct. I want to say only one thing, quite briefly. I accept what has been said by the noble and learned Viscount on the Woolsack and other noble Lords. The object of the exercise was to clarify the issue, and to try to get the best brains that we have on to this obviously very knotty problem. I believe that that object has been achieved, in that I hope that any Government in future, of whatever complexion, will think twice before utilising this form of Tri- 478 bunal if that can be avoided. I have been a Member of your Lordships' House for nearly forty years now. I have been a Whip, and I have seen many things pass through this House; and it makes me very happy to think that a Question of mine has brought forth such good opinions on a subject which. I believe, vitally affected this House and its reputation. I beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.
§ House adjourned during pleasure.
§ House resumed.