HL Deb 19 December 1979 vol 403 cc1688-701

3.45 p.m.

The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone)

My Lords, with the leave of the House, it might be convenient if I now repeat a Statement which has been made in another place, or is being made at this moment. The Statement reads as follows:

" In 1978 the then Secretary of State for Foreign and Commonwealth Affairs referred the Bingham Report to the Director of Public Prosecutions to consider whether further inquiries should be undertaken with a view to possible criminal proceedings for breaches of the Southern Rhodesia Sanctions Order. Shortly thereafter leading and junior counsel were instructed by the Director to advise him whether, in the circumstances disclosed by the report, criminal offences appeared to have been committed and, if so, by whom. It will be appreciated that the Bingham inquiry was neither a police investigation nor a trial, and it was not therefore, conducted within the constraints of the rules of evidence or procedure applicable in a court of law.

" In February 1968 and again in February 1969 meetings took place between Her Majesty's Government and senior officers of Shell and BP. The outcome of those meetings (described extensively in the Bingham Report) appeared to have been interpreted by the oil companies, rightly or wrongly, as giving them tacit, if not express, approval to operate what has become known as the "exchange" scheme whereby oil and petroleum reached Southern Rhodesia.

" It was by no means clear whether and, if so, for precisely what length of time the so-called "exchange" scheme was operated thereafter.

" Against this background, the Director of Public Prosecutions appreciated that much more factual information and research into the legal problems were required in order to particularise offences, to identify the principal persons acting on behalf of the oil companies and to collect the admissible evidence. Accordingly a team of senior police officers was instructed to make further detailed inquiries, while counsel continued to review the material already available.

" Steps were taken in April 1979 under Schedule I to the 1938 Sanctions Order to require the oil companies to produce all the relevant documents in their possession or under their control.

" It seems that there are over 20,000 files of which at least 14,000 are likely to be relevant. Bearing in mind the substantial amount of time and public money likely to be involved in analysing this mass of paper and investigating the evidentiary material available overseas, counsel were asked to give the Director of Public Prosecutions further advice.

" By the beginning of November 1979 in an Opinion running to almost 50 pages counsel advised the Director of Public Prosecutions of the great difficulties in the way of a successful prosecution.

"The Director of Public Prosecutions had to consider the following matters. "(1) The material disclosed by the Bingham investigation was wholly insufficient for the purposes of a criminal trial. Direct evidence by witnesses or from proved documents would be needed.

"(2) There was abundant material in the report which showed that, in the period following the meetings in 1968 and 1969, oil and petroleum products had been supplied direct by railway wagon to Southern Rhodesia. The question which arose in an acute form, however, was whether it could be proved by the strict rules of evidence applied in the Criminal Courts of this country:

  1. (a) which companies had in fact made these supplies; and
  2. (b) who, if any, among the officers, agents or employees of the companies during the relevant period were knowing parties to such supply.
It was also necessary to seek to determine whether these supplies had been made in contravention of the alleged understanding' with Her Majesty's Government.

" (3) Furthermore, it was material to have regard to the fact (emphasised in the Bingham Report) that many of the companies and their officials were sub- ject to the laws of States deeply hostile to the sanctions policy and were liable to penalties for any refusal or failure to supply oil on demand. There is no power to compel the attendance of witnesses from abroad.

"(4) The available material disclosed (and, indeed, the Bingham investigation found) that many of the principal officials concerned in the contraventions of the Sanctions Orders were not amenable to our jurisdiction. Some who appear to have been at the very centre of the operations had since died and others had retired. It was likely to prove difficult in the extreme to establish the complicity and knowledge of their successors.

"(5) Whilst the prosecution might confine criminal charges to the years 1971–77, the defence would investigate the entire history of events from 1966 onwards. Those events would cast their shadow over the whole case and this important factor would have a serious bearing on its outcome. Counsel were of the opinion that a jury might well be reluctant to convict if there appeared to be substance in the defence that those charged had acted in the belief that their conduct had the express or ostensible consent of the authorities.

"(6) Finally, it was apparent that as complex and prolonged an investigation as this would probably not reach the stage of a jury's trial in less than four years from now, particularly as the defence would be entitled to require full committal for trial proceedings and strict proof of the essential ingredients of the offences. Also the trial itself might occupy a jury for as long as 12 months with all the risks that attend such an extended hearing.

"(7) The Director has therefore reached the conclusion that further investigations and public expenditure would not be justified and the matter should proceed no further".

Then my right honourable and learned friend replies at the end, "T agree".

My Lords, I am afraid that I have to add certain words of my own, which I hope the House will indulge. I am particularly relieved to see sitting on the Front Opposition Bench the noble and learned Lord, Lord Elwyn-Jones, who not only occupied my present position but also occupied my right honourable and learned friend's position in the House of Commons in the past. When I was told that this Statement was going to be repeated in your Lordships' House, it was called a "Statement about the Bingham Report ", and no anxieties filled my mind. However, when I read the Statement very shortly before I sat on the Woolsack this afternoon it occurred to me that it was nothing of the kind. It was, in fact, a Statement by the Attorney-General on the exercise of his quasi-judicial—I think the phrase is—responsibility as to whether to prosecute or not.

As the noble and learned Lord, Lord Elwyn-Jones, who knows it far better than I, will confirm, this probably circumscribes the extent to which I, in this House, am free to reply on behalf of the Government. I hope that when he makes his comments he will help me about this because I feel real difficulty about it. I invite him to do so consequently in the experience of two offices. I made certain preliminary researches into Professor Edward's book on the Law Officers of the Crown and have certain material here for the information of the House. At any rate, that is the Statement, and that is the note of warning which I now sound, with a plea for assistance from the noble and learned Lord.

3.54 p.m.

Lord ELWYN-JONES

My Lords, I am sure that the House will be grateful to the noble and learned Lord for repeating the Statement of his right honourable friend the Attorney-General in another place, but I am not at all grateful to the Lord Chancellor for seeking to pass the buck to me, as he has apparently sought to do. It presents both this House and another place with difficulties. The decision of the Attorney-General is clearly a quasi-judicial decision, but that, however, does not mean that, certainly in another place, he may not be questioned about it. I am bound to say that in my time I did what I could to discourage any such probing of the decision of the Attorney-General in regard to criminal proceedings in respect of which he was expected to take—and I have no doubt the present Attorney-General is taking—a quasi-judicial attitude. I think, however embarrassing it may be for me to ask the questions or for the noble and learned Lord the Lord Chancellor to answer them, that we are entitled to probe a little into this Statement.

The fact is that a large number of prosecutions were brought in respect of breaches of sanctions. Indeed, the record of this country in that respect has been as good as any. It is this particular area of oil sanctions breaches that has presented the special difficulty in which we have been placed. What has troubled me a little about the Statement is that it seems that the factors which have determined the decision not to go any further even with the continuance of investigation of inquiry seem to lie more in the domain of expense, time and convenience than in an examination of the merits and prospects of a possible success in prosecution at the end of the day.

Of course we cannot see the 50-pages opinion of learned counsel. I happen to know who those counsel were, and they are men of standing and distinction. I should have been a little happier if there had been an indication at some point that they themselves, in advising the Director, had considered the crucial question whether there was a prospect of a successful prosecution at the end of the day, however long it might take to arrive at a decision from the court or however great the expense. Noble Lords will be aware that in great fraud cases, for instance, a great deal of time is taken. The public interest in seeing that our own national honour is maintained is very great.

If the noble and learned Lord can help us a little more in the examination of this matter by giving an assurance that it is not merely the question of convenience and expense that has determined this decision, I think both the House and the country will be grateful to him, if he is in a position to answer the question. I appreciate his difficulty. One of the startling statements in the course of the Statement is that it is thought that it would take four years to continue the investigation. Well, really, why? Four years? Is it the position that there would be inadequate backing by way of support to those carrying out the inquiry?

Lord BYERS

It is the length of a Parliament, my Lords.

Lord ELWYN-JONES

The length of a Parliament. Well, I do not think that that governs criminal proceedings, fortunately or unfortunately as the case may be. But it is something that I think the public will want a little reassurance about. Is the four-year period due to the log jam in the courts, for which I myself did my best to seek remedies? In other words, are we here grappling with practical problems or is the case frankly that in all the circumstances there is no real prospect of getting a conviction here, and in those circumstances, bearing in mind additionally the element of expense and the time involved, is it right, therefore, that the case should be taken no further?

May I ask a question which is not confined now to the field of criminal prosecutions? If this decision is maintained, does it mean the end of any further examination of the Bingham story? Is it now to be left to historians and no one else, and is nothing further to be done? Noble Lords will remember that this House differed from the views of another place as to whether there should be another inquiry, and did so by a large majority.

The House is also aware that continuing public concern is expressed and that the media are still pressing for further steps to be taken by way of inquiry of some kind, so that perhaps the noble and learned Lord, the Lord Chancellor, might be less embarrassed in answering that part of my inquiry than in regard to the first part. However, I can only advise him, if I may do so without impertinence, that as for the first part, too, he must do his best.

Lord WIGODER

My Lords, I expected this afternoon when I heard that there was to be a Statement on the Bingham Report to be able to criticise the Government on behalf of my noble friends for announcing, as I had assumed they would, that they had abandoned all further investigation into what we regard as the quite disgraceful matters disclosed in that report and subsequently. But I accept that this Statement does not deal specifically with that matter but deals only with a quasi-judicial decision taken by the Attorney-General. In those circumstances I do not wish to pursue the other matter at all, but I would ask the noble and learned Lord three questions about the Statement. First, it states in paragraph 1: …leading and junior counsel were instructed by the Director to advise him whether, in the circumstances disclosed by the report, criminal offences appeared to have been committed and, if so, by whom". May we know what was the advice that was given? Was the advice given—because it does not appear in the Statement—that criminal offences did or did not appear to have been disclosed?

Secondly, am I right in assuming from paragraph 4 of the Statement that much of the relevant evidence in this case—namely, the files—has simply not been examined at all? If that is right, is the position, as appears to be the case from this Statement, that the Attorney-General has come to a conclusion as to whether or not to prosecute without in fact investigating some of the most material evidence?

Thirdly, may I ask—really endorsing what was said by the noble and learned Lord, Lord Elwyn-Jones—whether this Statement comes to very much more than this; that the decision has now been taken not to prosecute because the matter is stale, because the trial may take a long time, because it would be expensive, because there are some witnesses from abroad and because the outcome of the case may be in doubt? If that is the position, those considerations would apply to at least half of the long fraud cases brought at the Central Criminal Court, and I ask the noble and learned Lord to consider with care whether this is really a satisfactory basis in this particular case for abandoning the matter.

The LORD CHANCELLOR

My Lords, I am grateful to the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Wigoder, for their comments. I should begin by accepting the final advice of Lord Elwyn-Jones —namely, to do my best—and I think the best thing I can do is to tell the House what the results of my own researches into the matter have been. They are naturally preliminary. When I saw the body of the Statement I naturally saw that this House, though not the House of Commons, was put in a slightly difficult position, constitutionally and I do not think the noble and learned Lord intended in any way to cast doubt on that preliminary conclusion which I formed.

Of course the first thing I did when I received these papers was to consult Professor Edwards' book on the Law Officers of the Crown as being the most ready source of available learning. He gives two crucial quotations, one from Sir Hartley Shawcross, as he then was, and the other from my father, as he then was, as to the functions of the Attorney-General in this matter. The Hartley Shawcross quotation, to be found in Commons debates Vol. 483, cols. 683–4, is: The responsibility for the eventual decision rests with the Attorney-General and he is not to be put, and is not put, under pressure by his colleagues in that matter ". That is to say, in deciding whether or not to authorise a prosecution, It is the Attorney-General applying his judicial mind who has to be the sole judge of those considerations ". My father seems to have gone even further, because he said in Commons debates Vol. 177 cols. 686–7: I never took advice or counsel or brooked interference from any Minister or anybody else in the question whether it should be withdrawn ". That is, a prosecution and of course that was in the context of the Campbell case, as the noble and learned Lord will realise. That was a matter which, rightly or wrongly, I regarded as my duty and a duty which I ought to exercise judicially and uninfluenced by any outside person ". In commenting on this and a great deal of other matter, the learned professor writing on the Law Officers of the Crown, Professor Edwards, cites two principles. The first, on page 224 of the edition of his book in the Library, which I think is a later edition, is: Any practice savouring of political pressure, either by the Executive or Parliament, when reaching a decision ". That is, whether or not to prosecute— in any particular case is unconstitutional and to be avoided at all costs ". He goes on to say that there is a second principle, which might also be applicable in this particular Statement: After the termination of the particular proceedings "— Of course these have not started, but I take it that that might include the present case (the author emphasises this by using italics in the book)— the Attorney-General may be subject to questioning by Members of the House". He says" the House", which in the context I think means the House of Commons. This I think circumscribes, although of course my right honourable and learned friend can as part of the privilege of the House of Commons, have questions directed to him in his office as Attorney-General, as to the reasons which underlay his judgment. I think I should be extremely circumspect, not out of any desire to withhold information from the House—partly through inability to do so but partly for a good constitutional reason, for I speak on behalf of the executive Government, which is the only role I can play speaking from where I am and in this House. With that in mind, I shall now revert to the various questions put to me by Lord Elwyn-Jones and Lord Wigoder.

I do not read—and I am simply taking the document as I find it—the document as relying solely on questions of delay, expense and complication. On the contrary, I read it as being a professional judgment as to whether or not to prosecute entered into by the Director of Public Prosecutions taking into account all the factors which the Director normally takes into account in deciding whether or not to prosecute. One is the chance of conviction, another is the availability of admissible evidence, and of course one takes into account other factors too, as the noble and learned Lord knows better than I because I have never been in that responsible position.

I take it as a mixed professional decision by the Director in which the Attorney concurs, and therefore not merely time, not merely complication, not merely delay, not merely expense, but the whole merits of the whole case he as a responsible Director should have undertaken. However, that is simply reading the document personally and not for any other reason. I cannot answer the question as to why four years; that was the advice of counsel and I think the noble and learned Lord will realise that I must take the advice as I found it in the document. In this connection the noble Lord, Lord Wigoder, asked a question about what was the earlier advice of the leading and junior counsel. I am afraid that I cannot answer that; but the second part of the second principle given by the professor was this —about how the Attorney would be expected to answer questions of that kind. It says here—and I am now quoting from the hook: The extent to which a law officer may feel prepared to give specific reasons for, and to disclose the evidence and other factors which led to his making, his decision in the individual case will obviously vary according to the particular circumstances. What I can do for the noble Lord, Lord Wigoder, is to draw the Attorney-General's attention to the question which the noble Lord has asked, and I will ask him to write direct to the noble Lord in accordance with the principles stated in the book, if that is the correct principle.

Has all the relevant evidence been examined? I thought myself from the Statement that it probably had, but I have no knowledge at all outside the Statement. I had inferred from a 50-page opinion that there had been a fairly extensive investigation into particular documents, but I cannot give any personal assurance apart from that.

Is this the end of the story? That is outside the field of this Statement. If either noble Lord, or any other noble Lord, desires to put down a Question about that, possibly after the Government have had time to reflect upon the Attorney-General's decision, no doubt it will be answered in the ordinary way. But as I said the other day to the noble Lord, Lord Hatch of Lusby, I do not think that the question of whether or not to prosecute ought to be linked with the question of whether or not there is a further inquiry, because they seem to me to be separate questions. That is my best.

Lord HATCH of LUSBY

My Lords, is the noble and learned Lord aware that three times I have asked this question about the follow-up to the Bingham Report and on each occasion, from both Administrations, the answer has been that the papers are with the Director of Public Prosecutions. So may I ask the noble and learned Lord, in pressing the second question asked by my noble and learned friend Lord Elwyn-Jones, is there not inevitably a link, which has already been given to me three times, between the Statement that has just been made to the House and the question of some form of parliamentary inquiry as a follow-up? Is it not the case that the Bingham Report revealed the admitted cognisance of British Ministers of breaches of the law which were again admittedly secreted from Parlaiment? Does this not call into question the whole integrity of the British parlaimentary and governmental system, and does the Government's apparent reluctance to pursue an inquiry frustrate the will as expressed in another place earlier this year? If the noble and learned Lord cannot answer this afternoon, will he convey to his noble, learned, right honourable and honourable friends the necessity of clearing the slur upon our parliamentary system by some further inquiry following this Statement?

The LORD CHANCELLOR

My Lords, I was of course aware that the noble Lord had asked the question at least once before because he asked it of me the other day. I was not aware of the number of times he had asked it, but I was aware that he had asked it on previous occasions as well. That is the answer to the first point. I do not think that it follows from that that there is a link between the question of whether or not to prosecute and the question of whether a further inquiry is desirable. On the contrary, I have already expressed the view that they are separate questions and ought not to be linked.

I note that the noble Lord reiterates the Statement which I believe came originally from a Conservative source—that the whole integrity of the British parliamentary institution depends upon an answer to the non-linked question. I venture to think that as we have been in business for 700 years it is unlikely that the entire integrity of the British parliamentary system rests upon the matter with which the noble Lord is so preoccupied. I do not know whether 1 can really add to that at present.

The events which took place took place mainly under the Government of which the noble Lord was such a noticeable supporter, and so far as 1 remember, at the time I knew nothing whatever about them. Why the noble Lord should insinuate that the present Administration wants to cover up what mainly took place under the Administration of their opponents I do not know. I know only that we shall be considering the question, and if a Question is put down in the ordinary way, it will be answered with courtesy in the ordinary way.

Lord MORRIS

My Lords, may I ask the noble and learned Lord the Lord Chancellor whether he sees any inconsistency between the recent Zimbabwe Bill, passed only the other day, which contains amnesty clauses for acts perpetrated during the illegal régime, and the proposal to prosecute under the Bingham Report?

The LORD CHANCELLOR

No, my Lords, I do not think that I do. On Second Reading of the Zimbabwe Bill I explained very clearly that the power of granting an amnesty in respect of sanctions breaking offences was already granted to the Government by the Act of 1979 and not by the Bill which we passed through this House the other day. That Bill related to offences against the law of the United Kingdom, and I made an announcement, which I think will be followed by a Statement, about an amnesty for offences under Rhodesian law. The question of sanctions breaking offences was dealt with by a specific subsection which I quoted in detail, but which I do not have with me at the moment, and will be found in the Hansard report of my Second Reading speech. The question of prosecuting for those offences is the subject of separate provision in the other Act.

Lord HARRIS of GREENWICH

My Lords, may I ask the noble and learned Lord, in terms of any future consideration which may be given by the Government to any further inquiry into this matter, whether he is aware that many of us who have spoken against an inquiry by a Joint Select Committee of both Houses would be just as firmly and unequivocally opposed to such a procedure in the future, following this Statement, as we were when the issue was raised earlier this year?

The LORD CHANCELLOR

My Lords, I note what the noble Lord says, and bearing in mind that it comes from a former Minister of a former Administration, I think that great weight ought to be attached to it. For myself I can say only that I do not think that the two questions should be linked. Now that the noble Lord has said what he has to say his views will be taken into account. This is evidently a contentious question.