§ 3.5 p.m.
§ VISCOUNT COLVILLE OF CULROSS rose to call attention to the operation of the Tribunals of Inquiry (Evidence) Act, 1921; and to move for Papers. The noble Viscount said: My Lords, my noble and learned friend Lord Denning, in his famous Report in the autumn of this year, drew attention in paragraph 5 of his introduction to the Tribunals of Inquiry (Evidence) Act. He explained that it was a procedure that required a great panoply of the law, and he also drew attention to certain disadvantages which arise under its procedure. Your Lordships will no doubt remember the passage to which I refer. It gave me cause to think that this might be a moment when your Lordships should consider this Act and the various tribunals of inquiry that have taken place under it, and to see whether some of the points the noble and learned Lord raised in his Report might be remedied or improved; and, in general, that your Lordships should apply your minds to a matter which I believe to be of great public interest and see whether some constructive suggestions might be made, perhaps to my noble and learned friend on the Woolsack, which could be used if another inquiry should be required at any time.
§ I believe that to-day is a fairly opportune moment to think about this matter, because the recollection of the most 967 recent tribunal of this sort will still be fairly fresh in your Lordships' minds, though I hope that any passions aroused by that particular affair may now have died down, at any rate to a great degree. For the sake of the Record, it might be useful if I told your Lordships briefly of the number of inquiries that have taken place under this Act.
§ There was the original one in 1921, referring to the destruction of documents by the Ministry of Munitions. There were four police inquiries in the 1920's. Powers were given to a Royal Commission on Lunacy and Mental Disorder under this Act in 1924; powers were also given under it to inquire into drainage and mining conditions near Doncaster in the 1920's. In 1933 there was an inquiry into allegations of bribery and corruption in connection with the letting of stances and other premises in the Glasgow Corporation market. In 1936 there was the very well-known Budget Leak Inquiry. In 1939 there was the inquiry to investigate the loss of the submarine "Thetis"; in 1943 an inquiry into proceedings in the Hereford juvenile court; and in the following year into the administration of the Newcastle-upon-Tyne fire, police and civil defence departments. Then, since the war, we have had the Lynskey Tribunal of 1948; the Bank Rate Tribunal, in 1957; the Waters Case Tribunal, which inquired into the allegations of assault by the Caithness police upon a young man in Thurso in 1959, and, of course, the Vassall Case Tribunal very recently.
§ There is no doubt that on some or many of these occasions criticisms have arisen out of the workings of tribunals under the Act, and to these I will refer later. But, first of all, I would say that I think there is no doubt that there will be occasions in the future, as there have been in the past—although perhaps they will not arise very often—when there will be need for a searching inquiry by a properly constituted tribunal into some situation of an important public nature, perhaps where sinister rumours are circulating, or some gross breach of propriety in the public sector is suspected. As the noble and learned Lord, Lord Shawcross, said on one of these occasions, it is a paradox that on this sort of occasion it is only by the fullest and most formal investigation that the public can 968 be satisfied, very often, that there is nothing whatever to investigate.
§ There are several means by which this sort of investigation can be done. They have all been tried from time to time. There is the method of the Select Committee of another place. This method was used on several occasions at the beginning of this century, but has since been widely felt to be unsatisfactory, as the noble and learned Viscount, Lord Hailsham, the then Lord Chancellor, said in 1936 on that occasion of the Budget Leak Inquiry. There was at any rate a suspicion of Party influence in these matters, and the whole thing was not conducive to the dignity of Parliament.
§ This view was backed up, I think, by the late Lord Winterton, in his speech in 1948 when he cast his mind back to his early days as a Member of another place when the Marconi scandal was being inquired into by a Select Committee of that House. This was in 1912. He said that it led to the most unpleasant state of affairs he could ever remember in another place, because, following the inquiry, there was a Party majority who said that the Lord Reading of the time and Mr. Lloyd George had done no wrong, whereas the minority of the Select Committee were strongly critical of what had been done by those gentlemen. He recalled, somewhat charmingly, the cry of "Sticky fingers" which went across the Floor of the House.
§ I am sure that your Lordships, on reflection on some of the cases which have arisen recently, would suggest that this type of inquiry is on many occasions perhaps not the most suitable procedure for matters which have to be investigated, although no doubt that it has a place sometimes. But, above all, if there were any danger that the report might lead to a minority dissension—and particularly if it were a large minority—then the matter would never be satisfactorily cleared up and the public would not be satisfied that justice had been done.
§ Another alternative is some sort of ad hoc inquiry, which, of course, has no statutory powers to compel witnesses to come before it, or to examine them on oath, or anything of that nature. Perhaps Lord Denning's inquiry was an 969 example of this which we shall not often be lucky enough to have again, in so far as the noble and learned Lord, with his immense reputation, was the person to take charge of it. Nor, indeed, is another inquiry likely to have so many witnesses as Lord Denning had, who were prepared to answer him and tell him all the truth he required without the full powers of compulsion which might otherwise have been needed. He also sets out in his Report the various advantages and disadvantages of that procedure—your Lordships will doubtless remember these.
§ My Lords, these matters can sometimes also be dealt with by the criminal or the civil law. Of course, it is one thing to say whether they can be dealt with by either of those means after the inquiry (and that is very often a difficult matter), but the sort of cases to which I am referring are those where beforehand—and this is the important point—there is no recourse to the ordinary courts, because, as the noble Earl, Lord Attlee, said in 1948, when the Lynskey Tribunal was being set up, there is at that stage no evidence to justify a prosecution and no infringement of a private individual's rights which would lead to his taking civil action in courts. Nevertheless, I am sure it is right—and I shall refer again to this point later—that these inquiries should not be set up if there is a tolerable chance that it will be possible for the matter to be dealt with satisfactorily in the ordinary courts of the country.
§ But, having said that, and having looked as widely as I can into the precedents in these matters, I venture to agree with the noble Earl, Lord Attlee, in saying that there does not seem to be any feasible alternative to a tribunal of inquiry under the 1921 Act which can efficiently and speedily deal with these matters; and deal with them, too, in a way, as has proved to be the case, which results in public belief and acceptance of their findings and in a closing of the matter in dispute.
§ I ought, perhaps, to remind your Lordships that the Act itself is a very short Act but contains these provisions. First of all, in order to set up a tribunal under the Act a Resolution must be submitted to both Houses of Parliament setting out that it is expedient to appoint one of these tribunals to inquire into a 970 definite matter which is specified in the Resolution as of "urgent public importance"—and I stress those words "urgent public importance" because I want to refer to them later. The tribunal thus set up can then be given under the Act powers to compel witnesses to attend, to compel them to take the oath and give evidence, and also to compel them to produce documents, as well as to take commissions abroad, and that sort of thing. A person who appears as a witness can, if he refuses to answer or does some other thing which is thought wrong by the tribunal, be certified to the High Court, or in Scotland the Court of Session, for contempt; and after the court has inquired into the matter, heard witnesses and any defence on the part of the person so certified, it can punish him as it thinks fit. But a witness before a tribunal has all the immunities and privileges of a witness before a High Court or the Court of Session. The second section of this Act provides that a tribunal may refuse public access to its hearing only if it is expedient to do so in the public interest for reasons connected with the subject matter of the inquiry or the nature of the evidence being given. The Act provides, finally, that the tribunals themselves can allow or disallow legal representation for any witness called before it.
§ I should not altogether be surprised if this Act is capable of improvement, in view of its history. It was, beyond any doubt, rushed through Parliament because of the scandal in the Ministry of Munitions in 1921, when it was required to set up a tribunal of inquiry into it, and the opportunity was taken of establishing permanent machinery which would deal in the future with any such cases. Nevertheless, it is a fact, I believe, that the Bill was introduced for Second Reading in another place at 10 o'clock one night and was passed within 24 hours in that House. Although it received rather more attention before your Lordships, it is, nevertheless, remarkable to find that it was not until the Third Reading in this, the second House that an Amendment originally suggested by a Back Bencher was accepted by Lord Birkenhead, who was the Lord Chancellor, which removed the power of committal for contempt from the tribunal itself and gave it instead, as it is now in the Act, to the courts. It is 971 also true that it was not until the Report stage that the necessary Amendment was passed which made it necessary for both Houses of Parliament to pass the Resolution to set up a tribunal. Before that, either of them could have done so on their own. Both of these seem to me to have been extremely important Amendments, and if it had not been for the vigilance of Back Benchers of your Lordships' House they would not be in the Bill at all.
§ In your debates on that occasion, it is, I think, quite clear that two things were uppermost in your Lordships' minds. First, the Lord Chancellor at that time envisaged that these tribunals would be of a quasi-judicial nature, and all the Members of the House who spoke on the subject were extremely aware of the importance of the membership of the tribunal itself. At that time the tribunal which it was proposed to set up was to be chaired by the noble and learned Viscount, Lord Cave. Everyone had the greatest confidence in him, but various noble Lords pointed out that membership was going to be one of the most important issues in seeing whether these tribunals were fair and could appear to be satisfactory to the public; because the other thing which was also clear from the debates on that Bill is that all your Lordships who took part recognised that this could be a most serious, harsh and inquisitorial procedure if it were not very carefully watched.
§ My Lords, can the Act then be improved, either by amending legislation or by some other action? First of all, I should like to refer briefly to this question of membership itself. In 1928, in one of the cases that took place, I believe that one of the members of the proposed tribunal was objected to and had to be changed, and, since then, I think I am right in saying, a predominance of the membership of all the tribunals has been legal. Nevertheless, the fact remains that there is no necessity—indeed, I do not believe it has ever been done—for the membership to be announced before both Houses of Parliament have agreed to set up the tribunal. As I told your Lordships, it was all right in 1921, because everyone knew Lord Cave was going to be the Chairman. Since then, so far as my researches 972 go, on the Budget leak case in 1936 the noble and learned Viscount, Lord Hailsham, merely announced that there would be a Judge and two eminent lawyers; and almost without exception since then that has been the formula adopted by the members of the Government who have moved in either House the appointment of a tribunal. It happened with the Lynskey Tribunal; it happened in the bank rate case. In the Waters case my noble and learned friend Lord Kilmuir said the Secretary of State intended to appoint a Scottish Judge and two other members of the tribunal with him.
§ On the 1936 occasion it was possible for the Lord Chancellor to come to your Lordships on the day following the passing of the Resolution to appoint the tribunal and tell the House who had, in fact, been appointed as members of it. It occurs to me that although the nation has been extremely lucky in the choice of those who have presided and sat on these tribunals ever since they have been set up, it is nevertheless a matter of such importance that it would be worth considering whether the membership of the tribunal should not be included in the wording of the Resolution that is put before both Houses. I doubt whether very much difficulty would usually arise, but I tend to think that if any embarrassment was envisaged at all it would be outweighed by the fact that Parliament could be quite certain whom they had appointed to exercise these very wide and extremely severe powers, as they may well he. At any rate, that is one suggestion that I put before the House this afternoon.
§ There have been, as I said before, other criticisms of these tribunals and the procedure under them. It has always been pointed out, rightly, that they are of an inquisitorial nature. Persons who are called before the tribunals as witnesses are in a very vulnerable position, because of course they are not charged with anything; they are not criminals; there is no presumption of innocence, that they have not done anything that may be suggested; there is no charge at all. They have no protection from the ordinary rules of evidence that hold sway in the courts. They may have to deal with cross-examination without any proper idea of the point that is really being made against them or its 973 relevance, or, on some occasions, even the case itself which is being brought to bear upon them. I am sure that, important though these tribunals may be, and, of course, the subjects they are investigating, it is vital that the privacy, the reputation and the freedom of the individual witnesses who come before them should, if it is humanly possible, be protected.
I am bound to say that when I read the speech made in another place by the then honourable Member for Sowerby, Mr. Belcher, when he made a speech applying for the Stewardship of the Chiltern Hundreds and described what happened to him before the Lynskey Tribunal, a devastating speech but a very dignified one, I found something in it which it seemed to me I ought to quote to your Lordships, if your Lordships would allow me to break the rules for once by quoting something said by a Back-Bencher in another place. The honourable Member said this [OFFICIAL REPORT (Commons), Vol. 460, col. 1845]:
I would just say that throughout the weeks of the Inquiry I was very conscious of the limitations imposed upon me by the procedure adopted. I was not able to know in advance what was the nature of the allegations against me. It was necessary, on more than one occasion, for learned counsel representing me to ask for his cross-examination to be reserved because he had not been instructed. I felt throughout, that matters were being admitted, that things were being said which to me appeared hardly relevant, but which, it appeared to me at any rate, must have a damaging effect upon my name and my reputation, and not only my name and my reputation "—
And he went on to relate what happened to his wife in those circumstances as well.
Of course, in the result, if a man is found by one of these tribunals to have misbehaved himself, one of the other sentences in the honourable Member's speech points out very starkly and poignantly what happens. He said [col. 1848]:
Had I been a criminal, convicted in a criminal court, there would have been an appeal against the verdict. I have no appeal except to the hearts and minds of those listening to me and those who will read my words.
It was Mr. Quintin Hogg, then the honourable Member for Oxford, who pointed out later in the debate that he did have an appeal: he had an appeal
to either House of Parliament, who could, if they chose, reject the Report of the Tribunal. But that was, I think, the only appeal open to him. That is the sort of feeling of a person who had been through the mill in this case; or at any rate it was in 1948.
§ It is natural that at the first stage of the tribunal it may not be a bit clear who is accused or what is said against him, or what are the circumstances into which it is desired to have an investigation at all. But once it is clear, and once it is clear that the Press are blazoning about the allegations that are being made, speed is then of the essence for the person involved to be able to have his say, too. If the person who appears to be in a way accused is innocent, speed may result in his reputation being vindicated before it is utterly ruined by the mere passage of time and the reiteration of things said against him. If the man who appears to be accused cannot prove his innocence at once, at any rate he must know the case against him. He must be given every facility to see what is going to be said, to cross-examine other people, and to produce for the tribunal his own counter-witnesses and see what statements they make to the Treasury Solicitor, Scotland Yard, or whoever is acting as the tribunal's agent. And I have later on in my speech a suggestion about this business of the speed with which the person who appears to be accused could make his counter-statement.
§ My noble and learned friend on the Woolsack dealt with this difficulty of the time lag between the making of the accusations and any reply being given to them when he spoke earlier this year after the Radcliffe Report. One of his ideas was that the evidence given to the tribunal might be published only after the Report had been made. But my noble and learned friend, I think, rejected this, or he was very unwilling to accept it, because, of course, it cuts at the very root of the public access to these tribunals which has stood ever since the 1921 Act. I myself should be very sorry to see it removed, because I believe that unless it is vital, on security or some other grounds, that the public should be kept out, they 975 should have access and know what is going on. That is part of their confidence in the whole thing.
§ Whatever may be said in favour of these inquiries, the fact remains that they are inquisitorial. Their procedure is not the sort of thing that a court would allow to go on within its walls. Indeed, if court procedure were followed we should probably never get at the truth at all. Court procedure is not, I think, suitable, and the nature of the thing is bound to be different. As the noble Lord, Lord Morrison of Lambeth, said on one occasion, it is bound to be a bit rough; and that is another reason why the membership, chairmanship and so on, of the tribunal is so vitally important, in order that they should smooth off the edges of the roughness as much as they can.
§ The second criticism involved is that innocent people come into this; they are embroiled in the whole process, and their reputations may suffer severely as a result. I suspect that this is inevitable, but I note, as it turns out, that innocent people are accused and prosecuted in front of the criminal courts and in the end are acquitted. This, I should have thought, was a risk inherent in being a citizen of any fairly complicated society. Nevertheless, there are people who particularly need an early right of reply to charges, or so-called charges, made against them. I think that the main point, apart from that, is that the tribunal should make it absolutely and abundantly clear in their report, as they have always done, that the innocent people really are innocent and that anything said against them is utterly and totally unfounded. I believe that, if people have those two protections, there is probably little more that one can do within the ambit of this sort of thing to avoid an entirely harmless and innocent outsider from being dragged in to either a greater or a less extent.
§ But this leads into the third point of criticism which has often been made, and the one upon which I suspect the most can be done if it is thought fit by your Lordships and the other people involved. This point is on the question of cost. There are three separate points on this, I think. First of all, in 976 the Waters case—which your Lordships will remember was an allegation that a boy in Thurso had been beaten by the police of that county—the cost of the police case fell in the first instance on the Caithness county rates. It is true, I believe, that in the end, by one means or another, the whole of the cost of the police case was borne by the Secretary of State and, through him, by the Exchequer. But it seems to me that, if the 1921 Act is to deal with matters of "urgent public importance", no part of the costs of the inquiry under that Act should fall upon one particular sector of the public—the ratepayers of a particular county or whatever it may be—but the whole cost should be shared, as it was in that case, by the public in the whole country at large. I should have thought that was one thing which ought to be ensured in any case.
§ The second thing that seems to me to be lacking at the moment is, as your Lordships' remember, that the tribunal can, if it wishes and if it is asked, allow representatives to appear—counsel or solicitors—for witnesses called before the tribunal. In many cases of this nature, of course, those witnesses are men of substance; but so far as I know there is no provision for legal aid to be given to witnesses who could not afford the large costs involved in some cases of legal representation before the tribunal, but who nevertheless should have it. I should have thought that the tribunal ought to be able to say, first of all, that it wishes So-and-so to be represented and then, if it decides that he cannot afford to have the proper representation, that it is allowed to give him legal aid to do so.
§ There is a third point which is an alternative to this: that the costs, at any rate of people found by the tribunal to be utterly innocent of any of the allegations made against or about them, should be paid by the public out of the public purse. Indeed, I think there is a case for going further—this is another suggestion that I should like to put before your Lordships this afternoon—and saying that the costs even of those who are found to be in some way culpable should be paid out of the public purse, because after the tribunal has reported it remains quite a distinct 977 possibility that the person found culpable might still be prosecuted for what he has done, in which case he will have then to pay for his representation; or he may be subject to civil proceedings, and the same would apply. Certainly, however, so far as the innocent person is concerned it seems to me to be a high penalty to pay for the honour and privilege of serving in public life—because that is where the charge usually falls. As a result of a collection of gossip or rumour or malice you have to pay many thousands of pounds out of your own pocket to appear and to be represented before a tribunal, which finally clears your name absolutely and completely of any complicity in the matter at all. Your Lordships will think of some recent cases where that is an evident fact.
§ Then there has been criticism of the actual procedure before the tribunal. Here I am bound to say that, never having appeared in front of one of these in any capacity, I am at a certain disadvantage; but there are noble and learned Lords in the House who have a great and intimate knowledge of these matters, and I would hope that they may also be able to make some suggestions upon this point. The modern version of the procedure, which has been changed since 1936, and was largely the result of a speech by the noble and learned Viscount, Lord Simonds in 1948, is as follows: all the witnesses are, of course, witnesses of the tribunal, and it is therefore the tribunal, through an agent, as a rule the Treasury Solicitor or Scotland Yard, who take statements from them in the first instance, and when they have done that, the tribunal look at these statements and decide whether they require further investigations to be made.
§ After that, the case opens in public, and, recently at any rate, the Attorney General has made a general opening statement setting out the bones of the whole matter. The Attorney General then, acting for the tribunal and the public, calls the witnesses who have given their statements and takes them through the written statements that they have given to the Treasury Solicitor in, as it were, examination in chief. Then he cross-examines them, sometimes with great severity. After that the witness 978 is cross-examined by other witnesses' counsel. Then, if necessary, and if he has one, he is examined by his own counsel. He is re-examined by the Attorney General, and finally questions are asked by the tribunal if they want to put any. After all the witnesses have been called and examined and dealt with, there are speeches by the various representatives of the witnesses, and, I expect, by the Attorney General as well.
§ There are two criticisms of this. First, the rôle of the Attorney General himself. I have thought about this most carefully and, odious though this rôle may be, particularly where a member of his own Government may be a witness and an essential figure in the proceedings before the tribunal, I would have thought that this was part of the duties of the Attorney General. It has been accepted to be so by successive Attorney Generals who, if I may be allowed to say so, have won recognition for the courage, ability and impartiality with which they have done their duty. My noble and learned friend on the Woolsack is one of those. Who else can do this duty? After all, traditionally the Attorney General is the spokesman for the general public in this country, and it is for the satisfaction of the general public that the tribunal is being held at all.
§ The only other alternative method that has been tried—it was tried and criticised in the 1936 Budget leak inquiry—was for the tribunal themselves to do all the cross-examination. That had the result, of course, that the witnesses who had been cross-examined and then cross-examined again, with great severity in some cases, felt—so did the public—that the tribunal were hostile to them and that they were not sitting with the impartiality and justice which was required of them. Surely this is a serious disadvantage of such a process.
§ It occurred to me—this is another suggestion that I should like to make to your Lordships—that there might be a further stage in the procedure that I have just outlined. I have never seen this suggested anywhere else and it may be that it has many flaws in it, but if what is required by a person who appears to be accused of something, of the case that he has to meet, is an early chance to refute what is being said about him, then 979 may it not be that the tribunal should be empowered after the Attorney General's opening speech, to invite a return general opening speech from such of the representatives of the witnesses as it thinks fit? After all, by that time all the statements are before the tribunal and have been further investigated, and they are what in criminal circumstances might be a sort of deposition. Of course, the principal witnesses' statements are among those; but those statements were made, I suspect, without any knowledge of what was in the statements made by the other witnesses, or at any rate very largely so. Therefore, I wonder whether the principal witnesses at least ought not to be invited, either themselves or through their representatives, to examine all the information before the tribunal at that stage, and then to make a general reply after the Attorney General's opening speech and, before any of the witnesses are called and further tested.
§ This course might have disadvantages. A witness might say too much and prejudice himself, in which case he would have nobody but himself to blame. It is true there would be less chance of taking an untruthful witness by surprise and so shaking him out of his untruth, and it might be said that too many people at too early a stage would see the whole complex of information before the tribunal. But it would have the advantages that the accused person (if I may so call him) would know as much about the case at that stage as will the tribunal or the Attorney General. He would be able to show in public immediately, and not after a lapse of many weeks, after the Attorney General had outlined the general charges, that in each case he had an answer to them, instead of having to wait for the Press to bandy the charges about for many, many days before he had any opportunity whatever to reply to them. He would be able to see how the facts fitted together, and how the statements of the various witnesses dovetailed into each other, so as to build up something rather more complicated than he might imagine without having seen those statements. This was one of the very points mentioned by Mr. Belcher, that he could not see the relevance of some of the things that were being said, although 980 they appeared to be very damaging to him. It would then be possible at a very early stage for any witness to suggest to the tribunal that in their own knowledge there were other people who would be useful witnesses to be interviewed who could support his defence, if I may so call it, that the witness had outlined at that stage. I do not know whether that is a suggestion worth bearing in mind, but it seems to me that there may be something in it.
§ There are two other matters of criticism which have been raised from time to time, and I mention them only to complete the record, because I myself cannot see any criticism at all in either of them. First there is the power of the tribunal to certify witnesses for contempt. I feel that this is a vital power in the hands of the tribunal, otherwise it has no sanction whatever to require the necessary documents and evidence to come before it. I think that this is perhaps not an occasion when we need go into the conscience and rights of newspapers' reporters and the affair which occupied our minds during the earlier part of this year in this respect. I think that it is vital that the tribunal should have this power; but I think it is also vital that, thanks to your Lordships' House, this sort of tribunal is not itself the body which commits to prison, but has to send the person whom it considers to be in contempt to the ordinary courts of this country where the full process of hearing evidence, defence, and if necessary, appeals, can be used. For myself, I can see nothing wrong with this particular matter.
§ It has also been said that these tribunals prejudice subsequent criminal proceedings. I have already said that it seems to me to be perfectly right that the tribunals should not be set up if there is any reasonable chance of dealing with the matters in dispute by civil or criminal proceedings in the ordinary courts of this country. But if it is not possible to do so, then there are certain things that are liable to follow. Witnesses are, of course, given the privileges of an ordinary witness before the High Court, so they need not say anything that incriminates them. But it remains the fact that, even if a man is found to be very guilty or very wrong indeed, it is often extremely difficult afterwards to prosecute him because the statements 981 before the tribunal were not bound by the ordinary rules of evidence, so that it would be most unjust to use them as evidence for a prosecution.
§ Secondly, if the case has been one of great notoriety, it might be almost impossible to find a jury to empanel which would not be biased one way or the other because of the publicity which has been received. Nevertheless, it is true that, for instance, in the Lynskey Tribunal case that Tribunal refrained from publicly investigating three cases where it thought police action was most suitable and turned matters over to Scotland Yard, with the result that at least one person, a minor official of the Board of Trade, was prosecuted under the Prevention of Corruption Act, 1906. It is not ruled out that somebody can be prosecuted after the tribunal has reported; and, of course, proceedings can be taken against him in the civil courts if that is suitable.
§ But as the noble Lord, Lord Shawcross, pointed out in 1949, it is a corollary of the State's right widely and compulsorily to interrogate witnesses that afterwards it may have to control and curtail its rights to prosecute those who have previously been interrogated. I do not know that there is necessarily anything wrong with that. Surely, if one of the central figures in one of these cases has been found to be acting improperly, or to have done something else unbefitting to his position, when he is humiliated and disgraced, thrown out of Parliament perhaps, and loses his job in the Ministry, it is a matter of balance of judgment to say whether or not justice has not already been done, a warning given to other people, and a due penalty exacted. I should have thought that probably in the majority of cases the public would have thought that that was enough and so would public justice.
§ My Lords, I have suggested to your Lordships three possible improvements that might be made in this procedure: the announcement at the beginning of the members of the tribunal; considerable changes in what happens about costs that have to be paid; and my point about an early opening statement on behalf of some, at any rate, of the principal witnesses before the tribunal. One or two of these proposals might, for all I know, need legislation. So far as the procedural 982 point is concerned, it seems to me that it might be something which could be dealt with by a little handbook kept in the Office of my noble and learned friend the Lord Chancellor to be brought out whenever one of these tribunals is set up. I am afraid that I have kept your Lordships a very long time, and I must apologise for doing so; but, having set the background for this very interesting and extremely important subject, I hope that it may be possible for your Lordships to elaborate or introduce new constructive points to improve this procedure and to make it fairer and more suitable for the task which it has to do. My Lords, I beg to move for Papers.
§ 3.49 p.m.
§ LORD SILKIN
My Lords, I am sure the House will wish to express its gratitude to the noble Viscount for having introduced this Motion, for the immense amount of time and labour in which he has been involved in getting to understand the background to this subject, and for the thorough way in which he has presented it. In fact he has done it so thoroughly that he has left me almost speechless: a great many of the points I might have wanted to make he has already made and I do not propose to repeat them. However, I think it is interesting first of all to emphasise the background against which these inquiries are held. The noble Lord at one stage rather fell into the error of suggesting that people who came before the tribunal as witnesses were accused persons, and he referred to "charges". In the main, this particular type of inquiry is one where there are no accused persons and no charges, and where the public, the Attorney General, the Government—whoever instigates the inquiry—is not in a position to make any charges. It is an attempt to get at the truth; and very often the truth is not known at all.
The best example of that is the case of the bank rate inquiry. There was a suggestion that there had been a leakage. So far as I can remember the case, there was no suggestion that any particular individual had "leaked" the fact that the bank rate was to be increased. The tribunal was set up to find out what was the truth about the whole matter, and nobody who appeared before them appeared in the position of an accused person. I emphasise that, because it has often been suggested that this form 983 of inquiry is unfair as it puts people on trial and publicises the possibility of their having committed an offence, when in fact they may be completely innocent. But if we are to have an inquiry at all, I cannot understand how it is possible to hold it except in some such form as under this Act.
The noble Lord referred to two other possibilities, and I should like to deal with them straight away. There is the type of inquiry which was held by Lord Denning. If anybody could have made that inquiry a success, the noble and learned Lord, Lord Denning, could. But I venture to hope that we shall never again have that type of inquiry which is held in secret, where evidence is given not under oath, and where none of us really knows what took place at the inquiry, except what the noble and learned Lord, Lord Denning, told us. I have the utmost confidence in the noble Lord, and everyone who knows him will agree with me. Nevertheless, at the end of the day I feel that this has not been a very satisfactory type of inquiry, and I am sure that a great many noble Lords, and certainly a great many other people who have read the Report, will agree with me I fully endorse what the noble Lord has said about the Select Committee and I need not repeat it, but I think that that is an even more unsatisfactory form of inquiry than the one held by a particular individual. So unless one can devise some other type of inquiry, where there is a matter to be looked into and investigated we are left only with the machinery of the Tribunals of Inquiry (Evidence) Act, 1921.
The question which the noble Viscount put to the House was whether experience has shown that the procedure under that Act can be improved, whether there are any defects, and whether we can make any suggestions. He himself made a number of suggestions, and they coincide to a great extent with those to which I myself have given some consideration. He suggested that it might be an improvement if the membership of the tribunal were announced at the same time as the Resolution setting up the tribunal was placed before the House. I am not sure that that is necessarily an advantage. I would trust any Government to appoint suitable persons as members of the tribunal. In the experience 984 we have had, there has been no criticism whatever of the personnel of the tribunals. It may not always be possible to announce the names, but I think that, where possible and where desirable, there is no reason why the names should not be announced. But I would not myself make it obligatory for the names to be announced at the time of the setting up of the tribunal.
The Act itself provides that the tribunal may permit persons to be represented. I think that the question of representation should be left to the persons called upon to give evidence. If they want to be represented, I think they ought to be entitled as a matter of course to be represented, in the first instance, of course, at their own expense. I cannot conceive of a case where a person is called upon to give evidence and where he should be deprived of the right to be represented; and I imagine that in most cases the tribunal would in fact give leave. I do not know what are the precedents, but I would myself contend that a person should be entitled to be represented at these inquiries as a matter of course.
Then I would go further and say that if it transpires that in the course of the inquiry suspicion has been aroused against a particular person, if a particular person, a witness before the tribunal, is stated to be under suspicion and then that suspicion is entirely removed, he ought to be entitled to his costs. If a person is merely called to corroborate certain evidence and to give factual evidence, without any possible reflection on his character, and he chooses to have counsel to represent him, then of course he would have counsel at his own expense. He would not expect to be indemnified against that cost. But in cases where there is a suspicion, or where some kind of allegation is being made which a person is called upon to meet, and he is cleared, then I think there is a clear case for costs. I would agree with the noble Lord about legal aid. Of course it should be a question for the tribunal, whether legal aid is called for, but they should be in a position to give legal aid where, in their view, it would be desirable in the interests of the persons appearing before them.
So far as I am concerned—and I do not want to be legalistic about this—there is only one other point to which I 985 would refer, and that is the question of an appeal. It may seem at first sight a little difficult to see how a person who is affected can appeal against a decision of a tribunal. But a decision of a tribunal can be very damaging to a person's character and may affect his whole life, his career, even his family life. In those cases where a tribunal definitely comes to a conclusion which is detrimental to such a person, I think he ought to have a right of appeal on a point of law. The point of law will, of course, be, among other things, that the decision of the tribunal is against the weight of evidence. The evidence is all public, and such a person could produce to an appellate court the evidence on which the findings of the tribunal have been made. He ought to have the opportunity of saying that those findings are against the weight of evidence, or, in some other way, that there is a legal case against the judgment of the tribunal.
I think that the right tribunal of appeal should be the Court of Appeal, and that there should be a right of appeal as a matter of course, without leave, to the Court of Appeal. I think that that would to a very great extent relieve any hardship that people may feel; and, in the particular case which the noble Viscount quoted, the Belcher case, it would certainly have removed any injustice that he may have felt because he was taken by surprise, questions were put to him which were irrelevant, or in some other way the inquiry was unfair to him. I can myself see no real objection to allowing an appeal in such a case. Of course, there are degrees of blameworthiness that may be attributed by a tribunal, and there is, I admit, the possibility of frivolous appeals. But any person who has been a member of a court of appeal will realise that there are a great many frivolous appeals that come before them, especially in criminal cases, and that a court of appeal has no particular difficulty in disposing of them. What is more, I would submit that in cases of this kind there is much less likelihood of frivolous appeals coming before a court of appeal than in the case of many of the criminal matters with which courts of appeal have to deal.
986 I think that is all I need to say on the matter, my Lords. I am afraid my own contribution has not been as helpful as the noble Viscount's, but, then, he said so many things that I could have said or might have said that all I can do is to associate myself with practically everything that he has said. I hope that this will result in a very valuable debate, and that the Government will consider the suggestions which have been, or will be made, in the course of the debate.
There is only one other thing I would say, and I hope that I may say this because, even in the last day or two, there have been suggestions that this House serves no useful purpose. I do feel that a debate of this kind could be usefully held only in this House. Yesterday I had to ask the Minister of State, Home Office, how it came about that we had not endorsed a certain matter for twelve years, a matter which we ought to have endorsed in 1951—I will not trouble the House with what it is—and the answer he gave was that there was a lack of Parliamentary time. That was the reason he gave: that during the whole of the twelve years it had not been possible to approve this particular proposal. This House does have time to discuss matters of this kind, and, if I may say so with all respect to another place, it has the personnel to do it. It is particularly appropriate that matters of this kind should be discussed fully in this House, and, in my submission, they can best be discussed in this House. Therefore, I hope that this debate will be of value to the Government and to the House generally in considering what improvements, if any, can be made to this procedure.
§ 4.5 p.m.
§ LORD PARKER OF WADDINGTON
My Lords, I venture to add only a few words to this debate because of my connection in one capacity or another with three of these inquiries: first, what was known as the birched boy inquiry at Hereford; then Mr. Justice Lynskey's Tribunal; and, finally, the Bank Rate Tribunal. I think that anybody who was connected with these inquiries, whether as counsel or as a member of a tribunal, or certainly as a witness, cannot have failed to realise the evils inherent in the procedure. But, at the 987 same time, I think it is only right to point out that, with the passage of time, and with the experience gained by successive tribunals, immense strides are being made to lessen those evils. To mention but a few, the days are gone now when it was left to the tribunal, as it was in the Budget Leak Inquiry, to act as inquisitors themselves and to cross-examine the witnesses. In every inquiry since then the tribunal has had the full assistance of counsel. Again, in the Vassall case Tribunal strides were made in that a witness who was represented by counsel was allowed to be examined-in chief by his own counsel rather than by counsel for the Tribunal. Again, in the Vassall case inquiry steps were taken to alleviate the burden created by the vast expense to which innocent people might be put.
But, at the end of the day (if I may put it that way), there are evils which are inherent in the procedure which really cannot be appreciably lessened. The noble Viscount who moved this Motion referred to them. First and foremost, perhaps, there is the inquisitorial nature of the proceedings, whereby a person is called upon to answer, not a charge in the strict sense of the word, but charges which are made against him, without any notice of them. There, as it seems to me, is an opportunity for another tribunal, if there has to be one, to see whether steps cannot be taken to notify those of the witnesses who are going to be blamed by others of what those others are going to say. It may not necessarily be in the form of a witness's proof: it might be some précis prepared by the Treasury Solicitor which would enable the witness to know what was going to be said against him. Secondly, of course, there is the fact that it may well interfere with the administration of the criminal law. Nothing can be done under that head. It is a question of whether the matter of "urgent public importance" that is being inquired into is sufficiently important that it matters not that the administration of criminal law may to some extent be interfered with.
Thirdly, of course, there is the grave prejudice to the reputation of a person who may ultimately—perhaps weeks or months later—be found to be wholly 988 innocent. That, of course, is a question which derives from the publicity which these inquiries inevitably attract. For myself, I see no answer to it. It is no good, as I see it, widening the discretion which the tribunal have to sit in private. I cannot conceive any legal chairman of a tribunal agreeing to sit in camera unless it is a case, as was the last inquiry, of public security. Certainly he would not agree to sit in private because somebody's reputation might be damaged. Again, I for one am against the idea that the evidence should not be reported until the tribunal's report is published. After all, if it is a matter of general public importance, if it is, as I imagine it always would be, an inquiry into specific events which have given rise to public disquiet, then the very nature of the inquiry calls for the utmost publicity.
Now, my Lords, what of the future? Is there a case for repealing the Act of 1921? I would say certainly not. It is a weapon that must be preserved and one only hopes that its use will be comparatively rare. Is there a case for amending the Act? Again I would suggest no, unless it be in regard to costs; and here, as the Vassall case inquiry has shown, it is possible to alleviate the burden of cost without any amendment of the Act. I, for one, hope that in future inquiries the attempt to alleviate that burden will be supplemented.
Various other suggestions are made but I venture to think they do not call for amendment of the Act. There was a suggestion that the names of the tribunal should be announced presumably when the Resolution is moved. That, of course, would be a matter for amending not the Act but the Parliamentary procedure. But, in any event, perhaps as a Judge, I would violently oppose that suggestion because it presupposes that the names mentioned will be the subject of debate in the House; and, invidious as it is for a Judge to undertake this work, it would be an appalling embarrassment if his name and his qualifications were going to be the subject of debate. I venture to think it can safely be left to the good sense of the Government of the day to choose a tribunal the members of which will be acceptable to all parties. I would leave it there.
989 Then the noble and learned Lord, Lord Silkin, suggested an appeal on a point of law to the Court of Appeal, the point of law being that the finding was against the weight of evidence. I think that, more strictly, it would have to be that there was no evidence upon which a reasonable tribunal could come to that finding. It seems to me there are many answers to that. First, the setting up of the inquiry presupposes a matter of "urgent public importance", and appeals involve delay. Secondly, and perhaps more important, it surely could be left to the good sense of the House, when the matter is debated, to ascertain, if it ever was the fact, that there was no evidence upon which the tribunal could come to the decision which it did.
It seems to me that the real lesson of the future is that this is not the sort of inquiry to be set up in the heat of the moment without the most careful consideration. If the matter is one of "urgent public importance" which requires public investigation, then this is clearly the machinery called for. But I do feel that Parliament should think not once, not twice, but three times before setting up an inquiry of this nature from which so many evils may flow.
§ 4.14 p.m.
§ LORD CHORLEY
My Lords, I have little to add to what has been said in the discussion this afternoon. I put my name on the Order Paper originally because there has been a great deal of criticism of the Tribunals of Inquiry (Evidence) Act, and many people in responsible positions have strongly advocated that the Act should be repealed and that the whole of this system of investigation of these problems should be done away with. It seemed to me, on reflection, that this was an altogether mistaken attitude; and I felt that if there were Members in your Lordships' House who took that point of view I should have liked the opportunity of crossing swords with them. But I think all who have spoken this afternoon have agreed that although there are obvious inconveniences in the Act, and in the way in which it is carried out, yet we cannot do without it. That being so, there is not a great deal that one can usefully add.
Nobody has suggested any real alternative method of dealing with the sort 990 of situation in which this Act has been used and in which these tribunals have been set up, so far as I have been able to discover. It is obvious there must be some way of dealing with this sort of situation. Most of these cases can be brought before a court of law. Here and there it would be possible to frame an indictment in a criminal case; and possibly an investigation by one of the normal courts could be carried through. But the court procedure, particularly in criminal cases, is not well adapted to this; it was not devised for handling this sort of situation; and I do not feel that, just because a crime may have been committed, a criminal prosecution is a satisfactory way of getting at the truth.
The real point, of course, is that in these cases—I think in every case—most people would agree that where this method has been used the national interest has called urgently for an investigation into a situation fraught with considerable danger to the community as a whole. Until we can devise some more satisfactory method, it seems to me that it is quite essential that this Act should remain on the Statute Book. I think the only alternative suggested is the Parliamentary Committee, a method which was used more in the past but which is open to all the criticisms that are levelled against this method and which lacks quite a number of its advantages. Because these inquiries are almost invariably carried out by distinguished Judges who are (one may say this with respect to one's fellow Parliamentarians) much better equipped to investigate these problems than are those who have spent their lives in politics. It seems to me that the balance of convenience is very strongly on the side of the tribunal rather than of the Parliamentary Committee. That, I think, explains why in past years when the need has arisen we have adopted this method of investigation.
The other possible alternative was that tried recently in the case where Lord Denning was asked by the Prime Minister to make an inquiry. It seems to me that this is a method open to very serious criticism; and much more so because obviously it could not be used in a considerable number of cases where tribunals have been appointed. I think that an inquiry of this kind, carried 991 through by a single individual—in this case, fortunately, by a very distinguished Judge, well equipped to conduct the inquiry—was, even so, open to considerable objections. This is particularly so when there is the possibility of a conflict between politics and the law; but perhaps this is not so serious a matter now as it was at the time of Stockdale v. Hansard in the early history of our Parliamentary institutions. It still seems to me to be very much open to objection; but I hope the number of cases in which it will be found necessary to appoint a Judge to conduct an inquiry of this kind, in secret and without the witnesses being on oath, and open to all the other objections referred to, will be very few and far between. Indeed, I should not shed any tears if this method were never used again. Obviously, there are considerable inconveniences attached to the present method, but they do not seem to me to weight the balance against the absolute necessity of being able to conduct an inquiry, in the absence of any better way of doing it, under the procedure established by this Act.
I feel that the noble Viscount has made some interesting and valuable suggestions for improving the procedure under the present Act, and I hope that the noble and learned Lord on the Woolsack, and the Government, will pay attention to them. Certainly some of them are deserving of acceptance, and particularly what the noble Viscount said about costs. Obviously, it is an onerous burden on the people who are brought into these inquiries, and on whom suspicion may rest, and it seems to be only right that the State should accept responsibility for this. The noble and learned Lord who has just spoken pointed out that in the Vassall case this difficulty was got over to some extent. I think that it would be better if it were cut and dried and made perfectly clear in the way suggested by the noble Viscount who introduced this Motion.
After all, the number of inquiries which have been held can be counted up on the fingers of both hands, so that, though in any individual case there is a substantial amount of expense involved, when one looks at it against the national expenditure, it is a minute fraction. If tribunals are set up only once in a number of years, the cost really does not 992 weigh a great deal in the national budget. The importance of ensuring that everybody who comes under any sort of suspicion is properly helped, and has the best legal advice and assistance, is so outstanding that I am quite sure that every reasonable person will feel that this side of it ought to be properly looked after. The noble Viscount has done a good job in bringing this matter before your Lordships' House and, if I may say so, arguing it in such a clear and sympathetic manner. With those few observations, I will resume my seat.
§ 4.23 p.m.
§ VISCOUNT SIMONDS
My Lords, I feel some doubt as to whether I should intervene in this debate. It is such a long time since I enjoyed the privilege of addressing your Lordships that I almost feel I should ask for the indulgence granted to a maiden speech. In addition to that, with the honourable exception of such redoubtable veterans as the noble Earl, Lord Attlee, I feel some doubt whether anybody who is well in his ninetieth decade can make a useful contribution to any debate in this House. But it does happen (my name has been mentioned already in the debate) that I have, I suppose, a longer experience of proceedings of this kind than any Member of your Lordships' House, because it is nearly 30 years ago that I sat with the noble and learned Lord, Lord Porter, who is now dead, and Sir Roland Oliver, who happily survives, upon the tribunal which was known as the Budget Leak Tribunal. I must say that, looking back on that event after 30 years, I do so with little enthusiasm. Not that I feel any doubts about the justice of the decision, to which I, for one, came more reluctantly than I came to any decision in the quarter of a century that I sat on the Bench; but I had, and have, many qualms about the procedure.
As the noble Viscount, Lord Colville of Culross, has told your Lordships, to a large extent the procedure has been modified, and the noble Viscount was good enough to say that it was partly the result of a speech which I made in this House about fifteen years ago. It is absolutely imperative that, so far as possible, the duties of cross-examination should be taken from the shoulders of the tribunal, upon which it then rested, and adopted by the Attorney General. 993 Nobody who has not had the experience knows how difficult it is to cross-examine witnesses severely, in order to get at the truth, without appearing hostile. And that just will not do: because the tribunal must not only be impartial but appear impartial; and if a witness thinks that the examination is hostile, that is the end of the appearance of impartiality.
The other thing that emerges, and for which no satisfactory answer has yet been found, and perhaps cannot be found, is the grave defect that a witness appears before the tribunal not knowing—or, at any rate, not knowing with precision—what charge he may have to meet. It is elementary in our law that any person charged should know what is the charge he has to meet. This is so not only in our law. A rather striking example occurred in distant South Africa, where recently, your Lordships may remember, a number of accused had the indictment against them quashed because it had not sufficient particularity. That is essential.
I came across a rather remarkable saying just the other day, in another connection. Francis Bacon, who lived and died 300 years or more ago, dealing with the law and saying how necessary it was that it should be certain, said—I think these are his words:If the trumpet sound an uncertain note, how shall a man prepare for battle?Those words seem to me singularly apt. How can an accused person deal with his accusation unless he knows precisely what it is that he has to meet? So I should hope that some means may be devised by which, even if it should be in the very course of the proceedings, the charge which a man has to meet may be formulated against him with precision, and, if necessary, the proceedings adjourned in order that he may meet it and, if necessary, call evidence to do so. Whether or not that is possible it is very difficult to say, because it is so difficult to generalise in these cases. But I would adopt the suggestion of the noble Viscount, Lord Colville of Culross, whom I would now congratulate most sincerely upon his speech, that the essential feature which catches the public eye is the injustice of a man's having to meet a charge not knowing fully what it is and not being given an 994 opportunity to meet it, if necessary, by counter-evidence.
My Lords, I have little to add, except to say how heartily I concur in what my noble and learned friend the Lord Chief Justice has said; that this is a weapon which should be used as sparingly as possible. I cannot help thinking that the necessity for its use might be limited if there were not so many people who were anxious maliciously to spread stories which are invented in malice. That is perhaps too much to hope for in this imperfect world, but at least I would suggest to the Government that this procedure should be used as sparingly as possible.
§ 4.30 p.m.
§ LORD CONESFORD
My Lords, I would join other noble Lords who have spoken in congratulating my noble friend Lord Colville of Culross on this Motion that he has introduced and on his speech. I should also like to say that the speech we have just heard delivered makes us anxious, whatever may be the opinion of the noble and learned Viscount, Lord Simonds, about his age, which I find very difficult to accept, that he will address us as often as possible. I agree completely with every word that he said. I think we are all agreed that occasions will occur from time to time when this Act must be used, and it certainly provides a better procedure than the various alternatives that have been suggested. The sole purpose, therefore, of this debate is, I think, to ascertain whether we can think of improvements, either in the working of the Act or through its amendment.
The first thing I wish to emphasise is the point already made by my noble and learned friend the Lord Chief Justice; that it to say, how much we have improved the procedure by learning from the experience of previous tribunals. After all, one of the best ways of improving our procedure is through such natural development. Perhaps my noble and learned friend Lord Simonds was unduly modest about his own contribution to the improvement, because it was certainly his speech on October 28, 1948, which brought it about that never since that date has it been left to the tribunal itself to undertake the main task of cross-examination. Of course, it is a consequence of relieving 995 the tribunal of that responsibility that has put a difficult task, and sometimes a very difficult task indeed, upon the Attorney General of the day. But Attorney Generals, in obedience to the traditions of their great office, have, I think, worthily performed that task.
I do not think that any case has yet been made out in the speeches that have been delivered for the amendment of the Act. There may be points on which the tribunal itself, in the light of experience and without legislation, may think of improvements. Most valuable suggestions have been made by both noble and learned Lords who have spoken, but I should like to express my own disagreement with a few of the suggested improvements that might be made. I think my noble friend Lord Colville of Culross, who introduced the Motion, was wrong in suggesting that it would be an improvement to announce, at the time of the Resolutions in both Houses, how the tribunal was going to be composed, because, as was pointed out by the Lord Chief Justice, that would bring the eminent legal gentlemen who were asked to sit on the Tribunal into controversy in Parliament, which is clearly undesirable.
The next point on which I should respectfully disagree is the suggestion of the noble Lord, Lord Silkin, with so much of whose speech I agreed, that every witness should have the right of legal representation. I think that would, or might, make the procedure unmanageable, because it would give practically no limit to the number of those who could claim legal representation. I think we must have some such formula as is contained in Section 2 of the Act, where it says that the tribunalshall have power to authorise representation before them of any person appearing to them to be interested to be by counsel or solicitor or otherwise, or to refuse to allow such representation.However generous they may be in allowing representation, I think that, from the point of view of the working of the tribunal, it must be a matter that remains in their control.
I agree with a great deal that was said about costs, but I do not profess to have looked into this to see whether to do what has been suggested would need 996 legislation; I shall be interested to hear from my noble and learned friend on the Woolsack the answer on that matter. But I would differ again from the noble Lord, Lord Silkin, when he suggested that there should be a right of appeal. Whatever else has appeared from all the inquiries that have been held, I do not think it has ever been suggested that what was wrong was the absence of a right of appeal. Various suggestions have been made, and they have been made by both noble and learned Lords who spoke from the Cross Benches; but I do not think the absence of a right of appeal has ever caused any practical difficulty. I find it hard to believe that an appeal on the ground that there was no evidence on which the tribunal could come to their conclusion would succeed. As my noble and learned friend the Lord Chief Justice pointed out, the Court of Appeal would have to be satisfied that there was really no evidence on which this distinguished tribunal could have come to their conclusion. I think that shows the limited use that any right of appeal would have. It is a thing the need of which has never yet been felt, and it would, of course, delay matters.
For those reasons, while very much welcoming the debate and agreeing wholeheartedly with what was said by the noble and learned Lords on the Cross-Benches, I cannot see at the moment that any case has been made out for amending the Act, with the possible exception of the question of costs, which I admit I have not carefully examined.
§ 4.37 p.m.
§ THE LORD CHANCELLOR
My Lords, I think in nearly every instance in recent years where there has been a Motion for the appointment of a tribunal under this Act, and, indeed, after the Report of a tribunal has been published when there has been a debate, there has been criticism of the operation of the Act of 1921. I therefore feel that it has been both a useful and a valuable exercise to have a quiet, calm debate to-day upon this matter. As the noble Lord, Lord Silkin, said, this is a function which this House can usefully perform. I am sure your Lordships would agree with me in expressing gratitude to the noble Viscount, Lord Colville of Culross, for initiating 997 the debate. I can assure your Lordships, at the outset, that all the suggestions that have been made for possible improvements will be most carefully considered.
It has been a remarkable debate in more than one respect, including, if I may say so, the intervention of my predecessor, the noble and learned Viscount, Lord Simonds. I am sure your Lordships were glad to hear what he had to say, and I will refer to it a little later.
It is sometimes talked about as if the inquisitorial procedure existed only in inquiries under this particular Act. As your Lordships may remember, that really is not so. The procedure of Committees in another place, when Committees are engaged on ascertaining facts and finding out what has happened, in the Committee of Privileges and Select Committees which have been appointed to inquire into certain matters, is often, if not normally, inquisitorial. We are not debating to-day whether any inquiry before a Select Committee is more effective and satisfactory than an inquiry before a tribunal under this Act. But I think it is worth noting the differences in procedure in an inquisitorial inquiry before a Committee of a House of Parliament and in procedure before a tribunal of this kind.
I think there are four main differences. First, the inquiry before the Select Committee is usually in private. The evidence is heard in private. One has heard many criticisms of the decisions of a Select Committee, but I have never heard one criticism on account of the fact that the actual hearing has been in private. Whereas, of course, a hearing before a tribunal under the 1921 Act must be in public unless, in the opinion of the tribunal, it is necessary to exclude the public in the public interest for reasons connected with the subject matter of the inquiry, or the nature of the evidence to be given.
The second main difference is this. The evidence given before a Select Committee is not published until the Report of the Committee is published whereas, as we know, the proceedings of a tribunal are published daily. Thirdly, it is unusual, I think, for counsel or solicitors to be allowed to appear before a Select Committee or, indeed, 998 a Committee of Privileges, whereas it has been the practice, at least in recent years, of tribunals appointed under this Act to allow legal representation to all those who are, or who appear in the view of the tribunal to be, at risk of having some criticism directed against them. If I might, I would say that I would not go so far as the noble Lord, Lord Silkin, in giving a right to every witness to have legal representation, so long as one can feel sure, as I think one can, that the tribunals that are appointed will allow legal representation to anyone who fears that he may at the end of the day be the subject of criticism, and where there are grounds at least at first sight for such fears. I think that is the position and the practice today.
Then there is the fourth, and very important, distinction. While the powers of the tribunal are similar to the powers of the High Court in relation to the enforcing of the attendance of witnesses and examining them on oath, a witness before any such tribunal is entitled to the same immunities and privileges as if he were a witness before the High Court or Court of Session. He cannot be compelled to answer any question if the answer if likely to incriminate him. A member of the legal profession cannot be compelled to disclose matters which are covered by professional privilege. Before a Select Committee the position is different. It is set out shortly in a passage in Erskine May, Sixteenth Edition, at page 674, and the words are as follows:A witness is, however, bound to answer all questions which the Committee see fit to put to him (f), and cannot excuse himself, for example, on the ground that he may thereby subject himself to a civil action (g), or because he has taken an oath not to disclose the matter about which he is required to testify (h), or because the matter was a privileged communication to him, as where a solicitor is called upon to disclose the secrets of his client (i), or on the ground that he is advised by counsel that he cannot do so without incurring the risk of incriminating himself or exposing himself to a civil suit (k), or that it would prejudice him as defendant in litigation which is pending …".That is a very material difference between the position of a witness before a Select Committee and before a tribunal appointed under this Act. As I say, we are not considering to-day whether a Select Committee would be a better tribunal to perform this task 999 than one appointed under the Act, but I must say that if that were the issue I would find myself in complete agreement with what the noble Lord, Lord Silkin, has said to-day, and what the noble Lord Lord Morrison of Lambeth, said in our debate on the Radcliffe Report.
I want now, if I may, to turn to some of the suggestions and criticisms that have been made. Usually there is a great deal of pressure at the time the Resolution is brought before Parliament for the appointment of a tribunal, and the matter is regarded—as, indeed, it has to be—as one of urgency. I take the point of the noble Viscount, Lord Colville of Culross, about the names of the members of the tribunal being made public. I think they usually are as soon as they can be. I do not think it would be wise to incorporate their names in the Resolution, for the reasons the noble and learned Lord, Lord Parker of Waddington, gave in the course of this debate. But that having happened, then of course everyone wants the tribunal to get on with the work as speedily as possible.
There is a great deal of preliminary work which has to be done. I cannot speak with anything like the same knowledge of these tribunals as the noble and learned Lord, Lord Parker of Waddington, or the noble and learned Viscount, Lord Simonds, but I do know from the part I had to play in relation to the Bank Rate Tribunal the immense amount of preparatory work that has to be done to enable the tribunal to function at all. I well remember in the course of that Inquiry how rushed we were to know whether, as the Inquiry went on, we should have work for the Tribunal to carry on with, or whether we should not have to ask for an adjournment for a few days so as to prepare the next piece. But when continuing that inquiry, I was, as I know the Tribunal was, most concerned to ensure that the point made by the noble and learned Viscount, Lord Simonds, was fully met: that every individual whose conduct might be impugned knew, and knew with particularity, before the part of the inquiry relating to his transactions was embarked upon, the kind of case he had to meet. That was a task I sought to 1000 discharge to the best of my ability, and that is why I was so interested personally in the observations made by the noble and learned Viscount, Lord Simonds.
That course had its consequences, and I wish one could see a way of avoiding those consequences. In that particular Inquiry, I fear that, by following that course, it inflicted great damage on the reputation at the time of a number of individuals and caused them great suffering. I have no doubt of that, and yet at the end of the day, when they had given their answer, and when further time had elapsed and one had the Report of the Tribunal and it was published, they were completely exonerated. I wish one could find a way whereby, without in any way impeding the fullest inquiry, one could combine giving full notice with particularity of the case with which the witness would have to deal and, at the same time, avoid the consequences of the injury to him which may be wholly unjustified when the matter is fully investigated.
The noble Viscount, Lord Colville of Culross, suggested, if I understood him correctly, that notice might be given privately rather than in a public statement. That might in some cases be possible, and I should like to think about it. The noble Viscount also suggested that the witness concerned should be given an opportunity, immediately after what one might call the outline of the case he has to meet has been given, to deal with it. If counsel for such a witness wanted it, I cannot myself see a tribunal objecting to it, but I should have thought that most counsel appearing for a witness in that position would have wanted time to consider the case that they had to meet, and might well have preferred not to make a statement until after the case which they had to meet had been deployed by the witness in the witness box. That is a procedural suggestion which I think is worthy of consideration, but I am not at all sure that it really gets over the difficulties to which I have drawn attention.
At the present moment, the tribunal can sit in private only in the very limited circumstances I mentioned just now to your Lordships, and one of the problems which arises in considering whether any amendment of the Act is required is whether or not it might not be wiser to 1001 give the tribunal a slightly more extensive discretion to sit in camera at least part of the time. I was, naturally, most interested to hear the view expressed on that by the noble Lord, Lord Parker of Waddington. At the same time, it seems to me that possibly, if one does not go so far as to adopt the procedure of the Select Committee hearing all the evidence in private and publishing the evidence contemporaneously with the Report, there is, as I said when I spoke in May on this matter, great force in the argument that proceedings at such tribunals should, so far as possible, be held in public. If one does not go so far as to adopt the Select Committee procedure in that respect, may there not be a case, where the tribunal can see that the publication of allegations which may be wholly unfounded would do tremendous damage, for the tribunal to have power to say: "We will hear those allegations in private and we will publish the evidence for them later when we have dealt with them"?
The reason I have put forward that suggestion is this. If the matter requires to be investigated, one has to consider first of all what is the best form of body to conduct the investigation. Looking back over the years, your Lordships must be struck by the wide variety of matters which have been investigated under this Act. In some cases one has had the full machinery of this Act; in other cases one has been able to manage without it; and some criticism has been directed by the noble Lord, Lord Silkin, to the form of inquiry conducted by the noble Lord, Lord Denning, which he was asked to undertake. That was a unique inquiry and one would hope that it would never be necessary to hold an inquiry of that kind again, to go into allegations of the sort that the noble Lord, Lord Denning, had to inquire into. I should have thought it was quite impossible for that sort of investigation to be conducted in public, for two reasons, the first being the one to which the noble Lord, Lord Denning, drew attention in his Report: that he had the advantage of getting witnesses to speak frankly in private when perhaps they would have been most reluctant, and could not have been compelled, to say the same thing publicly with the knowledge that whatever they said would be reported. If you want to find out what 1002 exactly has happened there may be advantages in sometimes having an inquiry, or part of an inquiry, in private.
Again, in relation to that inquiry, I should have thought it was intolerable to put forward a proposal which would have involved the widest possible publicity being given to the wildest possible allegations. Also, may it not be the case, in the light of our experience of those inquiries, that there is something to be said for widening a little the discretion of the tribunal appointed under this Act to sit in private? I throw out that suggestion while fully appreciating the force of the argument that it is much the best for justice to be conducted in public so that the public may be sure that justice is done.
My Lords, I am glad in one respect that I think the occasion for moving a Resolution under this Act will be materially diminished if the Police Bill reaches the Statute Book. Your Lordships may not know that Clause 31 of that Bill enables the Secretary of State to cause local inquiries to be heldinto any matter connected with the policing of an area".It will be possible to use that power to investigate allegations of misconduct as well as matters relating to police efficiency, and the clause includes powers necessary to give an inquiry all the teeth it needs.
Despite that, I agree with the noble Lord, Lord Chorley, and others who have spoken, that we must have something like the Act of 1921 upon the Statute Book; and the real question raised by my noble friend Lord Colville of Culross to-day was whether there are means whereby we can improve still further the procedure which has been followed up to now. Some reference was made by him, and I think by other noble Lords as well, to the question of costs. I do not think it is necessary to introduce legislation in order to secure that the costs of those who are allowed to be represented should be met. Your Lordships will remember that both in the Waters Case Inquiry and in the Vassall Case Inquiry provision was made for the payment of costs, without legislation. I take note of your Lordships' views, which I think come to this, though some will perhaps go further than this: that 1003 where someone is entitled to legal representation because it is thought he may be the subject of criticism at the end of the day, and where he is cleared by the tribunal, there should be no doubt that he will be reimbursed the expenses to which he has been put. If that is done, I am not at all sure that there is any necessity for making provision under the Legal Aid Act.
As to the procedure, the noble Lord mentioned the rôle of the Attorney General, and that has been a subject of discussion on more than one occasion. I know that the noble Lord, Lord Shaw-cross, thought long and hard before undertaking the task for the Lynskey Tribunal, and I did so, too, before doing it at the Bank Rate Tribunal. But I believe, and, indeed, I think the present Attorney General shares the view, that when one of these tribunals is set up it is part of the duty of a Law Officer, unless he is himself involved in the matter under investigation, to conduct the inquiry on behalf of the tribunal and to lend every assistance he can to the tribunal in getting to the bottom of the matter and in eliciting the truth. Sometimes it may mean somewhat ruthless cross-examination, and certainly it will mean a lot of hard work for the Law Officer involved. At the same time, I think it is just as much his duty to undertake that as it is to appear in some of the major cases for the Crown. It would be a sad thing indeed if, when a Law Officer is appearing in a prosecution, or is making up his mind whether or not a prosecution should be instituted, there should be any slightest ground for supposing that in those matters he would allow himself to be influenced in one iota by regard to the interests of the Government. And the same applies with regard to his appearance before such a tribunal.
I think I have dealt with the point that was raised by the noble Viscount about inviting a general opening speech, and I do not think I have many points left to deal with. The noble Lord, Lord Silkin, said that nobody appears before a tribunal as an accused person; and in one sense, of course, that is right. But the facts, the documents, the evidence given, may indeed together constitute a case that requires an answer, and it is inescapable from 1004 this form of procedure that that will probably emerge only during the course of the investigation.
I should like to say just a word or two about the powers of such a tribunal. I would not for one moment suggest that the Act of 1921 should be amended so as to give such a tribunal the powers enjoyed by a Select Committee. But I do not think that one could possibly give the tribunal less powers than those enjoyed by the High Court without running a serious risk of frustrating the whole inquiry, by making it impossible for the tribunal to do the task with which it has been charged by Parliament: to find out what has happened on a particular matter. One hopes—as, indeed, I do—that the occasions for the use of the Act of 1921 will be very few indeed, and I entirely agree with the views expressed to-day that Parliament, before passing any such Resolution, should think and then think again. The difficulty sometimes is that there is a certain amount of heat at the time these matters come under consideration. Once one starts on these inquiries one does not know where they will go, where the scent may lead one, how long it will take and who may become involved. But as to the necessity for some machinery of this kind, I venture to think there can be no doubt.
My Lords, this has been a very useful debate, and I can assure your Lordships that we will give further consideration to all that has been said, because I believe it to be the desire of both sides of this House, realising full well what are the dangers of this inquisitorial procedure, to find, if we can, some way whereby those dangers can be minimised to the greatest possible extent. I would conclude by once again thanking the noble Viscount for raising this matter and by expressing my admiration for the amount of research he must have engaged upon to give us the information that he did.
§ 5.4 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, in turn I should like to thank my noble and learned friend on the Woolsack for his very careful and thoughtful speech in which he dealt with the points that have been raised this afternoon. I would also thank most sincerely other noble Lords who have 1005 applied their minds with great care to this problem and have spoken in the debate, and by no means least my noble and learned friend Lord Simonds, who has helped me again to-day as he did when he was appointed my official mentor by the Inn when I was a student reading for the Bar. As I was then, so too, to-day, I am very grateful to him.
The only point that I would mention once more is the suggestion that I put forward on the procedural side, to which the noble and learned Lord the Lord Chancellor referred. It was not my intention that the perusal of the written statements, by counsel or by the various witnesses, should take the place of the innovation which the noble and learned Lord himself introduced at the Bank Rate Tribunal—that is to say, the Attorney General's opening speech. It seems to me that the opening speech should be made because this is of importance to all witnesses; but I had thought that where some of the witnesses were more severely affected by what was contained in that speech than others, it might be that they would immediately after that have a chance, if they wished, of replying, or at any rate making a general statement to show 1006 that they also had a case. It is not so much a matter of giving them full notice, which the opening speech by the Attorney General would undoubtedly do, as of meeting the point which has been raised so often: that, that case having been made, it then remains unanswered for many weeks while their reputations are perhaps irremediably damaged without their having a chance to rebut it. It was to give them a chance at an early stage to put in an indication of their side of the case that I made that suggestion.
However, it is most comforting to think that, as in all branches of the English law, experience does provide improvements. Here, too, as your Lordships have heard, the procedure has been very greatly modified for the better as a result of experience. I hope that my noble and learned friend will find that some of the suggestions this afternoon may be useful and can be put into practice. In those circumstances, I beg leave to withdraw the Motion.
§ Motion for Papers, by leave, withdrawn.
§ House adjourned at seven minutes past five o'clock.