§ 4.15 p.m.
§ The LORD CHANCELLOR rose to move, That this House do concur in the 850 Resolution communicated by the Commons: that it is desirable that a Joint Committee of both Houses to be known as "the Special Commission on Oil Sanctions" be appointed to consider, following the Report of the Bingham Inquiry, the part played by those concerned in the development and application of the policy of oil sanctions against Rhodesia with a view to determining whether Parliament or Ministers were misled, intentionally or otherwise, and to report;
§ That a Select Committee of four Lords be appointed to join with the Committee of the Commons to consider the said matter and to report accordingly;
§ That two be the quorum;
§ That the Committee have leave to report from time to time;
§ That the Committee have leave to hear Counsel to such extent as they shall see fit;
§ That the Committee have leave to examine witnesses on oath;
§ That the Committee have power to appoint persons to carry out such work relating to the Special Commission's inquiry as the Special Commission may determine;
§ That no person not being a Member of the Special Commission shall be present during any of the proceedings of the Special Commission unless required by the Special Commission to be present for the purposes of their inquiry;
§ That all papers submitted to the Special Commission shall first be examined by their Chairman who shall determine, if necessary after consultation with other Members of the Special Commission, which of the papers should be seen by the Members of the Special Commission for the purposes of the Inquiry and which of the said papers and records should be shown to parties interested or their Counsel or agents, or to witnesses, and which of such papers and records may be retained by Members of the Special Commission or such parties, Counsel agents or witnesses, and which of such papers and records shall be included in or referred to in any report.
§ The noble and learned Lord said: My Lords, when we debated the subject of Rhodesia and the report from Mr. Tom Bingham, QC, and Mr. Gray on Rhodesia 851 oil sanctions last November, I promised that the Government would consider with great care, in the light of the debates in the two Houses and in the light of the Bingham Report itself, whether a further inquiry was called for, and, if so, what form it should take. The same undertaking was given by my noble friend Lord Goronwy-Roberts and by Ministers in another place.
§ In the debate in this House my noble and learned friend Lord Gardiner, my noble friend Lord Brockway, and the noble Lord, Lord Wigoder, spoke strongly in favour of a further inquiry. Lord Gardiner said in particular that the Bingham Report raised very serious issues, and that to some extent it was perhaps only fair for those who have been Ministers in appropriate Departments under different Administrations at the material time, and who therefore are assumed to know about things, to have an opportunity to have the allegations inquired into. The noble Lord, Lord Thomson of Monifieth, said that he willingly gave evidence to the Bingham inquiry and would be equally ready to help, to the best of his recollection, any other inquiry, if it were decided to hold one. Indeed, he thought that in some ways a further inquiry might help him personally, although it is right that I should add that he also said that the important matter was whether a further inquiry would do the country any good at home or abroad.
§ It is true, of course, that a number of noble Lords spoke against a further inquiry. The majority of noble Lords who spoke in the debate, however, did not express an opinion one way or the other on the question of a further inquiry. That was no doubt because the Motion we were debating related to the renewal of the sanctions orders. The overwhelming balance of opinion in another place in the debate on 7th and 8th November was in favour of a further inquiry. As I read the debate, some 24 Members in another place expressed a desire for a further inquiry, whereas only four were opposed. Those in favour of a further inquiry came from all three main parliamentary political Parties, including leading figures in those Parties. One eminent Conservative Back-Bencher said that the integrity of our Parliament was at stake. The Press, I 852 believe, universally called for a further inquiry, and in strident terms.
§ In these circumstances my right honourable friend the Prime Minister announced in another place on 15th December the Government's decision to recommend to both Houses of Parliament, after the Recess, the setting up, by joint Resolution of both Houses, of a Special Commission of Inquiry. This statement was not repeated in this House simply because we had then, happily, adjourned for the Christmas Recess. This occasion, therefore, represents the first real opportunity the House has had to take cognisance of the Government's decision of last December. In effect the Government, having considered the debates in the two Houses and the report, have concluded that the exceptional nature of the events covered by the Bingham Report and the importance of the questions raised in Parliament do call for a further inquiry, and that it should be a parliamentary inquiry.
§ The first Motion standing in my name invites the House to agree with the Government and with the other place that a Joint Committee of both Houses, to be known as the Special Commission on Oil Sanctions, should be appointed to consider the part played by those concerned in the development and application of the policy of oil sanctions against Rhodesia, with a view to determining whether Parliament or Ministers were misled.
§ As the inquiry is very largely of a parliamentary nature (because of the responsibility of Ministers to Parliament, and the underlying responsibility of the public service to Ministers), we propose that the inquiry should be conducted in a parliamentary context. There are proposed to be five Commissioners from another place and four from this House. The Motion before the House was amended yesterday so as to propose a Select Committee of four Lords rather than three, as in the earlier version. However, I am sure that that change will not occasion the House any inconvenience.
§ As the House will know, the other place agreed last week to a resolution roughly similar to that standing in my name. I have no doubt that this House will wish to take account of the fact that, on a free 853 vote, the other place voted by a majority of more than two to one in favour of a further inquiry into the matters mentioned in the first part of the Motion. That vote, I submit, reflects one of the strongest reasons why this House should agree to a further inquiry.
§ As I have said, the Government promised both Houses to consider what was said in the earlier debates in which the elected Chamber was strongly in favour of a further inquiry and this Chamber, in so far as the issue was mentioned in debate, was more or less evenly balanced on the issue. No doubt the House will consider that it would, indeed, by a serious step to reject the views and conclusion so emphatically expressed and arrived at in another place after prolonged consideration of the matter. Noble Lords will bear in mind, I am sure, that rejection of the proposal would be a much more serious step than, for example, this House insisting on a Lords' Amendment to a Commons' Bill. In that case, of course, there would be room for reconciliation. Rejection of this Motion tonight would result in direct confrontation between Lords and Commons.
§ Mr. Bingham and Mr. Gray made it plain in their report that they had not attempted, in telling the story, to relate it—save occasionally where these were directly relevant to the narrative—to contemporaneous political, diplomatic and economic events. Since the publication of the Bingham Report, there has been much sustained public interest in the topic, particularly in view of the accounts given by the noble Lord, Lord Thomson, and by Sir Harold Wilson of their respective parts in the affair. Sir Harold Wilson in particular—the Prime Minister at the time—has asked for an inquiry and I have already related the view of the noble Lord, Lord Thomson, that it could help him personally also.
§ Those expressions of view ought, I think, to be given great weight in your Lordships' House. The opportunity to clear the air generally is one which I submit should not be thrown away and so is the importance of avoiding a charge of a cover-up by Parliament which I fear would be stridently alleged if we rejected the proposal for a further inquiry. I submit that it would accord with the highest traditions of Parliament and of 854 this country if serious charges of mistakes or errors, or even actual deception—as has been alleged—by those holding executive responsibility on behalf of the nation, were fully and fairly examined in a parliamentary context. Finally, I submit that it is necessary for the good relations of this country with other nations. Recent experience abroad has shown that a heavy price may be paid for failure to investigate thoroughly allegations of misconduct in the carriage of public affairs.
§ The terms of reference of the inquiry will, I believe, enable the Special Commission to concentrate on the issues of political responsibility, whether to Parliament or more generally, which it was not the Bingham Inquiry's task to consider, and to avoid traversing again the ground already covered by Bingham. Equally, it will be able to avoid investigating the possible commission of criminal offences, which is being done by the Director of Public Prosecutions.
§ It will thus be for the Commission to investigate the way in which successive Governemnts pursued the oil sanctions policy and to do so as deeply as may be necessary in order to ascertain and report whether Parliament and Ministers were misled concerning that policy. If the Commission concludes that Parliament or Ministers were misled, whether intentionally or not, it will have the further task of seeking to determine the responsibility of those, whether Ministers, officials or persons outside Government, who were providing, or failing to provide, information.
§ It is, I believe, common ground that if there is to be an inquiry it should be completed quickly. The Government believe that with the proposed terms of reference this could be done. But the inquiry must also be effective. The Government believe that the powers and procedure proposed for the Commission should enable it to send for persons and papers.
§ The Government have endeavoured to ensure that the proposed inquiry should satisfy the essential requirements of being fair to the individuals concerned and not damaging to the processes of government or the interests of this country abroad. First, as to the protection of the individuals concerned, the Government propose that the Special Commission should 855 sit in private, as is normal in the case of Select Committees of another place when considering the conduct of individuals. If there is criticism, it will be made known ultimately in the report itself. As to the question whether those who may be involved will know in advance the case that is being alleged against them so that they are able to have the benefit of legal assistance, it will be for the Special Commission to determine how this should be done within its terms of reference and the powers given to it. I am sure that, particularly since the Government propose that a Lord of Appeal in Ordinary should preside, the Special Commission will have these considerations very much in mind, and will hear Counsel, if it so decides, in appropriate cases.
§ The second main condition which I mentioned as needing to be satisfied is the adequate protection of the interests of Government as a whole and of the United Kingdom's relations with foreign States. This condition relates, in particular, to Cabinet documents. The House will see that the Motion provides what I readily agree is a novel procedure for the determination of the question whether Cabinet documents should be disclosed. The Government's view is that it is essential, in the public interest, to maintain the general rule that discussions in Cabinet and in committees of the Cabinet are confidential and protected from disclosure until the expiry of the 30-year period under the Public Records Act 1958 as amended in 1967. Relaxation of this rule would damage the concept of ministerial collective responsibility and the management of Government business, and the Cabinet system as we know it would thereby be endangered. The Government are, therefore, determined to protect that basic rule of our constitutional practice.
§ However, at the same time, the Government have had to recognise in the circumstances of this matter that, unless this rule of confidentiality were waived in this case, there could be no full or fair investigation in to the questions of responsibility that are involved. Short of leaving the verdict to history, some waiver is inevitable in the circumstances of the oil sanctions story. If Parliament believes that that story should be fully and fairly investigated, the Commission must, I submit, 856 see the material contemporary documents. To rely wholly on fallible, and perhaps differing, recollections of past events would be fair neither to the investigation nor to the investigators, nor, indeed, to those being investigated.
§ The Government, therefore, propose exceptional actions in the particular circumstances of the oil sanctions inquiry, which are designed to meet that inquiry alone and are not to be taken as a precedent for the future. In particular, as the House will see from the Motion, the Government propose that the Chairman of the Special Commission should be given a specific function in relation to the production and disclosure of Cabinet papers. It will be for him to determine, if necessary after consultation with the other members of the Commission, what documents are relevant, material and essential for the purpose of the inquiry. The Motion envisages that circumstances may require disclosure beyond the immediate confines of the chairman and members of the Special Commission. Parties interested, their representatives and witnesses are mentioned. While, of course, some of the persons interested will have, and will retain, their normal right of access as Minister to Cabinet papers, it may be essential for the purposes of the inquiry that others not so privileged should also be allowed to see one or more of the relevant confidential papers.
§ Equally, if a witness desires to bring a particular document to the Commission's notice, it will be for the chairman to decide on its materiality and importance to the issues which the Commission will be considering. The exceptional, and, in the Government's view, vital power of the chairman to determine which papers are to be disclosed in this way will extend to disclosure of papers and records in the eventual report of the Commission.
§ It is for these reasons and because of the special circumstances and importance of the task which it is proposed to give the Commission, that the Government are prepared to agree in principle that the customary rules concerning Cabinet papers and records will be waived. However, it is essential that these rules should not be relaxed more widely than is required for the particular purpose, and I am sure that the decisions to be taken in due course in 857 the manner I have described will reflect that view. We believe that a Lord of Appeal, who is not likely to be ignorant about political matters and who will have the opportunity of consulting his colleagues if he is in any doubt, is the right person to act as a filter for this purpose.
§ The Government's wish is that the chairman of the Commission should be a Lord of Appeal in Ordinary and, thus, one of the most highly respected and eminent lawyers in the United Kingdom, and with a special place in your Lordships' House and, thus, in Parliament as a whole. I feel confident that the task to be imposed on the chairman is one which a very senior member of the Judiciary and a Member of this House can properly be asked to perform, if he is willing to undertake it. Indeed, a Lord of Appeal is in the view of the Government uniquely qualified to perform the task in question.
§ I should now say a little about the order of events in this House. If, as I hope, the House agrees with the main Motion standing in my name, it would be my intention to move the second Motion to dispense with Standing Order No. 62. This would be appropriate, since the main Motion requires that no person not being a member of the Special Commission is to be present during the proceedings and, therefore, the general rule that any Lord may attend and speak at a meeting of a Select Committee ought to be modified in the exceptional circumstances of this inquiry.
§ If the two Motions on today's Order Paper are passed, the Committee of Selection will, I understand, meet shortly in order to select the four noble Lords to be named as Members of the Committee, including the Lord of Appeal in Ordinary. The House will then be asked—perhaps next week—to agree to the recommendations of the Committee of Selection, and a message would be sent to another place to communicate these names and to ask them to agree to the appointment of the Lord of Appeal as chairman. Once the other place have selected their five members and, it is to be hoped, agreed with this House's proposal of a chairman, the Special Commission would then be in a position to commence its deliberations.
§ I hope that this explanation of the Government's proposals and of the reasons 858 for the Government's decision on the holding, and the manner of holding, of a further inquiry will be acceptable to the House. I beg to move the first Motion standing in my name on the Order Paper.
§ Moved, That this House do concur in the Resolution communicated by the Commons: that it is desirable that a Joint Committee of both Houses to be known as "the Special Commission on Oil Sanctions" be appointed to consider, following the Report of the Bingham Inquiry, the part played by those concerned in the development and application of the policy of oil sanctions against Rhodesia with a view to determining whether Parliament or Ministers were misled, intentionally or otherwise, and to report;
§ That a Select Committee of four Lords be appointed to join with the Committee of the Commons to consider the said matters and to report accordingly;
§ That two be the quorum;
§ That the Committee have leave to report from time to time;
§ That the Committee have leave to hear Counsel to such extent as they shall see fit;
§ That the Committee have leave to examine witnesses on oath;
§ That the Committee have power to appoint persons to carry out such work relating to the Special Commission's inquiry as the Special Commission may determine;
§ That no person not being a Member of the Special Commission shall be present during any of the proceedings of the Special Commission unless required by the Special Commission to be present for the purposes of their inquiry;
§ That all papers submitted to the Special Commission shall first be examined by their Chairman who shall determine, if necessary after consultation with other Members of the Special Commission, which of the papers should be seen by the Members of the Special Commission for the purposes of the Inquiry and which of the said papers and records should be shown to parties interested or their Counsel or agents, or to witnesses, and which of such papers and records may be retained by Members of the Special Commission or such parties, Counsel agents or witnesses, and which of such papers and records shall be included in or referred to in any report.—(The Lord Chancellor.)
§ 4.35 p.m.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, I think that this is one of the most important decisions which this House has been asked to take in the present Parliament. I believe that the noble and learned Lord the Lord Chancellor implied—but he did not expressly say—that a Commission, or rather a Joint Select Committee (because that is what it is) of the two Houses has never been established before for this or any 859 similar purpose. I am bound to say that I think we should consider very carefully the constitutional problems involved. My own conclusion—and I speak only for myself—is that this is a wholly unacceptable proposal.
I should like to say one or two other things by way of preliminary remarks. The first—and I hope that I need not say it, but I shall ex abundante cautela—is that although I shall be saying many unpalatable things about this Motion, nothing that I say is intended personally either against the noble and learned Lord who has moved it or against any other individual member of the Administration. Nor is it my desire to try to extract—even if it were possible, and I doubt that it is—any Party political mileage out of the criticisms which I propose to make of the Motion. On a free vote—and so far as we are concerned, this will be a free vote—my noble friends are perfectly free to agree with what I say and vote with me in the Lobby against this proposal, to disagree and to vote with the Government or, if they so prefer, not to vote at all. I hope that that will be the attitude of the other Parties, because this seems to me to be a parliamentary occasion on which each Member of your Lordships' House must act upon and speak upon his own honour and his own conscience—as we always do—without any Party considerations or any collective decision intervening.
Having said that, I am bound to say that I consider this Motion to embody a constitutional enormity. I think that both in the short run and in the long run it will redound to the great disadvantage of our country. I think that it will not only fail in its object, but that it is so constructed that it must fail in its object. I think that it not only breaches, but probably breaches irreparably—because I do not accept for a moment that it cannot be treated as a precedent (everything that happens in public is a precendent under our Constitution)—important constitutional principles. Apart from anything else—and I shall come to this later in my speech—it involves the misuse of a valuable member of the Judiciary, for all of whom we have a deep regard, and it is something with which this House should have nothing whatever to do, whatever may be done in another place.
860 As I have indicated, my main criticisms are directed to the form of inquiry and to the constitutional provisions involved. But, as the noble and learned Lord has—in my opinion, quite rightly—done, I think that for a moment and in the light of the Bingham Report we should direct our attentions to whether any further inquiry is either desirable or necessary. The noble and learned Lord did so, and, as I say, I think that he was right. However, my conclusion is the opposite of that which he invited the House to draw.
He quite rightly reminded us that we had a debate on Rhodesia on 9th November. The main subject then was of course the continuance of sanctions, and I confined myself in my speech to the issues involved in that matter. But during the course of the debate at least two noble Lords who had participated in the events under discussion this afternoon, the noble Lord, Lord Thomson of Monifieth, and my noble friend Lord Home of the Hirsel, made speeches which I think impressed the House and which are directly relevant to the question that we now have to decide. Read with the Bingham Report I am bound to say that they made it clear to my mind, and I hope to the mind of any unprejudiced person, that there is nothing further to inquire into at all.
If I may remind the House, and I am speaking in very general terms because this is not the main thrust of my argument, there were three phases in the sanctions question. The first was a breach of the law—by which I mean a plain contravention of British law—which was brought to an end when the matter was brought to the attention of Her Majesty's Government in, so far as I remember, February 1968, or between February 1968 and February 1969. There then followed a period in which took place what the noble Lord, Lord Thomson, referred to as, I think, the swap. I think both Mr. Michael Stewart and Lord Thomson testified to that.
I think there is nothing new to inquire into about that period. The Government, as we now know from Lord Thomson, were informed. The noble Lord, Lord Thomson, and I think Mr. Stewart, stated that they regarded it as a repugnant necessity; others will regard it as a disreputable contrivance to evade international obligations. I myself was persuaded by the noble Lord, Lord Thomson, 861 but others are entitled to the contrary opinion. It is something about which each man and each woman in the country, perhaps in the world, is entitled to form an opinion of their own in the light of the arguments involved. Nine Members of Parliament, of this House and of the other place, are in no better and no worse a position to make their value judgments about that than anybody else. It will continue to be a matter for debate, but I think there is nothing whatever to inquire into by way of extracting new facts. The case is fully set out in the Bingham Report.
Then there was, thirdly, the period of resumed illegality from 1971 onwards; but it is clear from the Bingham Report and from the speech of my noble friend Lord Home of the Hirsel, that neither Ministers nor in fact the holding companies in this country were informed of it. Again, the facts are perfectly well known, and the criticisms are in fact subject to any criminal prosecutions which may or may not be thought necessary relating to that period, and nothing further remains to be discussed by way of the facts. So in my view at any rate there is no prima facie case for a future investigation of any kind; nor any degree of assurance that if there is a future investigation and it yields a non-result, which I am confident that it would, that there would not be a further demand for a further investigation after the conclusion of those hearings.
Nevertheless, the Government have apparently decided to set up a new and unprecedented joint select committee—called, I think improperly, a commission, because it is nothing of the kind—to inquire into whether Ministers or Parliament have been misled. I can see very great disadvantage in holding such an inquiry, both from the interests of Britain and from the point of view, which Lord Thomson rightly stressed in his speech, of the future of Rhodesia, which in this particular context is not something which we ought to disregard. I can myself see a future of endless recrimination, countless leaks, a non-result following years of delay and expense, and perhaps a demand for a further inquiry at the end of it.
The noble Lord, Lord Thomson, in the speech to which I have referred, made a final plea to the House which is directly 862 relevant to what I want to say, and from which therefore I shall quote an extract. After saying, and in my opinion convincing the House and certainly convincing me, that he had nothing himself to hide, as neither did the succeeding Administration, he said:It seems to have become a standard reflex action these days to deal with problems by setting up an inquiry and then to establish a further tribunal to investigate the original inquiry; and so on ad infinitum. This is in danger of becoming a national neurosis—a turning away from reality and the problems of the present by endless recriminations about imaginary conspiracies in the past. In this case the Government have set up a thorough investigation. They have immediately published its results in full. They have sent its findings to the appropriate prosecuting authorities. As my noble and learned friend the Lord Chancellor has said, nobody can seriously accuse the Government of a cover-up in this case. Would it not be now much better for Britain to let the inquest into the past rest there and to concentrate our energies and efforts, as we ought to be doing whole-mindedly in this debate, on facing the future in Rhodesia and trying to avert the final catastrophe that may be so near?—[Official Report, 9/11/78, col. 474.]I endorse every word of that in Lord Thomson's speech.
But supposing I am wrong in every word that I have uttered to the House up to this moment, must it not be plain that the only terms on which an inquiry of this kind could ever carry conviction would be that there should be full disclosure of all the advice conveyed by civil servants to Ministers and of all the Minutes and all the discussions between Ministers themselves? In other words, all Cabinet papers and all witnesses to be available. If that is not done, is it not obvious that everybody who has the desire to accuse Governments of this country of dishonesty, whether inside or outside the country, will say, and say in a form in which it cannot be disproved, however false it be, that there has been a cover-up?
If, on the other hand, it is done—that is to say, if there is full disclosure—it could only be achieved, to my mind, by breaking two absolutely vital constitutional principles: first, the confidentiality of advice given to Ministers by civil servants, and secondly, the confidentiality of Cabinet documents and discussions. Without them the inquiry must be valueless, especially from the point of view of the foreign relations upon which the noble and learned Lord the Lord Chancellor rightly set great stress, because 863 those who are anxious to allege a cover-up will only have their worst suspicions confirmed. If these principles are once breached, however, and full disclosure is made of these matters, a precedent will have been set, despite what the noble and learned Lord has said, because everything that happens in public, every decision of every Government is a precedent; and a precedent will have been set which will be repeated, or for which a demand will be repeated, every time a controversial issue arises giving rise to controversial decisions by the Government of the day.
In the light of the present situation in the world and of the enemies this country and Western civilisation has accumulated against itself, and in the light of the present situation in this country, I can only say I am absolutely appalled at the potential and almost certain consequences and implications for the interest of this country which would follow the passing of this resolution.
The Government appear to think they have avoided the dilemma by an ingenious compromise, the selection of a Law Lord from this House as chairman to act as a sieve to sift the confidential matters before they reach the other members of the committee, and to act as a sieve quite separately to sift the confidential matters and witnesses before the information reaches the other witnesses or solicitors and counsel. The committee's sessions will be held in secret, and that in itself is bound to give rise to criticism—although obviously the Government to that extent are right—and the evidence before them will be at the discretion of the chairman.
How the Government can really believe that such a body can carry any conviction at all against a potential and malicious charge of a cover-up—unless they were already convinced that the whole thing was a mare's nest anyway, which I am quite certain it is—I simply do not understand. They appear to have achieved what I should have thought was the impossible. Instead of solving the dilemma, they have sat firmly on each of the horns of it at once and successfully impaled themselves on a third, the existence of which one would have thought, although it was not on the surface, might easily have been suspected, situated somewhere between 864 the two, for they have misused the Judiciary and compromised its independence by giving it a politically sensitive role.
I wish to discuss at this stage the position of the potential members of the committee, by which I mean the lay members and not the chairman. This, it seems to me, is both morally intolerable and politically indefensible. Since, in the nature of things and from the terms of the resolution, they will have no personal guarantee that their report is based on a total disclosure of facts or documents or, if it is not, what has been withheld from them, the Government proposal renders it certain that the report can have no personal guarantee of its veracity from the members of the committee, and it can carry in the outside world no evidential value whatever. Indeed, if anything be withheld—and one can only assume from the Lord Chancellor's speech that there will be things withheld—it will be assumed, for all I know rightly, that what has been withheld is the most politically damaging matter to this country. I could never myself agree to serve as a lay member on a body of which only the chairman could decide what I could not and what I could be allowed to see before I issued my report.
Although the committee, for the reasons I have given, can carry no conviction—because it sits in private and hears only sifted material—nevertheless the Government have succeeded in breaching the principle of confidentiality, without which I believe no kind of Government can be carried on in this country, because all the material will be available to the chairman. Hitherto, Cabinet documents have been disclosed only by the consent of the Prime Minister concerned; both the relevant Prime Ministers have, I think, raised objections.
Then there is the principle of the anonymity and confidentiality of civil servants' advice. I believe that in confidential matters that has never been breached, yet it is to be breached in this case. The chairman is to see it all and, in the event of his agreeing, so are the other members of the committee; and in the present state of the nation and the outside world I could never agree to the breach of those principles.
865 I turn to the position of the Judiciary. The Attorney General appears to have thought—indeed, he said so at col. 1791 in the House of Commons debate—that the chairman's judicial experience would make him peculiarly well suited to the task. I hope it will be believed that I yield to nobody in my respect for all the members of the Judiciary, and in particular noble and learned Lords on the Cross-Benches, but with great respect to them all—and I see some of them present here this afternoon—I can conceive of few careers less suited to the present task than that of a judge.
The selection of material will not be based on the criteria common to litigious proceedings. Of course, it will not. On the contrary, it will be an exercise in political expertise, and this is a field in which our higher Judiciary is of necessity imperfectly trained. I do not envy the position of the chairman. If the position of the other members of the committee is, as I have suggested, intolerable, the position of the chairman will be a good deal worse. Every decision he makes will subject him to criticism both inside and outside this country.
The Attorney General said in the passage to which I referred that the only criteria he would have to apply would be those of materiality and importance—importance, that is, for the purpose of the inquiry—but the noble and learned Lord was wiser than to make any such pretence, because if those were the sole criteria to be applied, then the members of the committee could judge for themselves those criteria as well as, and probably a good deal better than, the legal chairman. But they are not to be allowed to judge them for themselves. The test will be the public interest in the political sense, and whatever the chairman does he will therefore put his neck on the political chopping block.
What of the witnesses who are called to give evidence and whose conduct will be called in question? They are not, reading the resolution, necessarily to see all the material which will be before the committee—a fundamental breach, I would have said, of the rules of natural justice. Apparently ex-Ministers are to be allowed to see the papers of their own Administration, as they always are, but that is clearly not enough. Apparently they are not to be allowed—there is no 866 guarantee under the terms of the resolution that they will be allowed—to sit in on the deliberations of the committee. They will not be allowed, unless the chairman decides they can, to hear the other evidence.
What about the civil servants? Natural justice would seem to demand that they should see everything, but according to the resolution that is not necessarily to be the case. Supposing witnesses wish to refer to something which, in the public interest, the chairman has excluded from the consideration of the committee? Often matters of defence assume their importance, materiality and significance only during the course of a hearing. Supposing they wish to refer to witnesses who have given evidence before them but whose evidence they are not necessarily to be allowed to hear? Or to documents available to the previous Administration or to a subsequent Administration? What are the ex-Ministers and civil servants supposed to do about that? And what about the legal representatives, their counsel and solicitors, who apparently to some extent are to be allowed to take part in the proceedings? Are they to be allowed to see the Cabinet documents, and which of them? Are they to be allowed to listen to the other witnesses, and which of them? We are not told.
It is, with respect, a misuse of judicial time and judicial impartiality to employ a full-time judge on an errand of this kind which, so far as I can see, is bound to lead to disaster whichever way it is conducted. In the long history of Parliament—and it is a long and honourable history—we have never up to this day seen a body of this kind. We have never seen set up before a Joint Select Committee of both Houses, falsely called a Commission, presided over by a judge who is eligible only because he happens to be a Member of the House of Lords, sitting in private and operating as a court of inquiry on incomplete material which it is not allowed to sift for itself—material going into the conduct of Ministers and civil servants, who have no right to attend the whole hearing or to know the full extent of the evidence.
My submission to the House is that this is a proposal which would get the worst of all possible worlds. I do not accept the view that if it were to be 867 rejected, there would be a confrontation with the other place. It is open to the other place, if it chooses to pursue a course of conduct which I would condemn as a folly, to set up its own select committee in the ordinary way. They have a tragic and unfortunate history, and I would certainly hope that such a committee would never be set up. But that we should, under threat of disagreeing with them, be asked to compromise our own honour, integrity and fundamental constitutional principles, which have hitherto been thought to be unbreakable, seems to me an argument which cannot possibly be allowed to succeed before your Lordships.
Enough is enough, in my judgment, and Bingham was enough—perhaps too much. I beseech the House to throw out the Motion. If the Government wish to advise the House of Commons to go on with another inquiry, let them do so on their own responsibility, but let this House have nothing to do with the disreputable process which will ensue if we pass the present resolution.
§ 5.2 p.m.
§ Lord WIGODER
My Lords, it is with the greatest possible diffidence and hesitation that I find myself disagreeing with the noble and learned Lord, Lord Hailsham of Saint Marylebone. I must suggest that the greater part of his very weighty and formidable argument was directed to the issue of whether this House should set up an inquiry into the matters set out in the Motion before us. That is not the issue. Your Lordships' House is not being asked to set up an inquiry. Your Lordships' House is being asked to join in an inquiry, to co-operate in an inquiry which, quite clearly from the terms of the Resolution passed in the other place, is to take place whether or not your Lordships' House likes it. So the real issue before your Lordships' House today is whether we should play our proper part in that inquiry, or whether we should leave it to go ahead, instituted by the other place, without our co-operation.
I make only two observations about that. First, those of us who believe in a bicameral legislature believe that there ought to be the greatest possible co- 868 operation at all times between the two Houses. There is here an offer by the other House that we should join them in forming a Joint Select Committee of Inquiry into these matters. For us to decline that invitation, to say, "No, we will have nothing to do with it. You get on with it, and do it by yourselves," would seem to me to be against the spirit in which we should attempt to operate a two-Chamber system of Government. I would add one other reflection on this line. If there is to be, as there clearly is to be, a Commission of Inquiry into these matters, is it better that it should be composed entirely of Members of the other place, or would it perhaps be better to include some of the responsible Members of your Lordships' House?
I believe that, because of those arguments, much of what has been said so far by the noble and learned Lord about whether there is a need for an inquiry, is perhaps not of direct help to us in the difficult decision that we have to take this afternoon. On the question of whether there is a need for an inquiry, I wish to make only one or two observations. I addressed your Lordships' House at great length on this matter, starting at 17 minutes past one in the morning of 10th November. I would not be so rash as to presume that what I said then is necessarily fresh in the minds of all your Lordships, but, equally, I would think that it would be quite wrong to repeat now at length the arguments that I put forward then. In a very few sentences, it seems to me that there are serious issues raised, and not answered, by the Bingham Report. There are issues as to the integrity of successive Governments; as to whether they knew of the extensive breaches of the sanctions orders; and, if they did not know, as to what were the reasons why that knowledge was kept from them. There are issues as to the role of the Civil Service, and, in particular, as to the role of the Civil Service in relation to the incoming Conservative Government of 1970, which clearly require careful examination. There are issues as to the role of BP, in which the Government have a majority shareholding, as well as having directors on the board, and issues as to whether—as there are some indications in Bingham—there may have been collusion between the oil companies and Mr. Smith before UDI was declared.
869 I should not for one moment seek to prejudge any of these matters, but it is, I believe, fair comment to say that these are all issues that stand out as having been raised in the Bingham Report. They are not answered, and they are matters which in my view greatly affect the accountability of Government in this country, as well as our reputation for our system of government. When I spoke to your Lordships in November I indicated that in those circumstances it seemed to me that there was clearly a case for an inquiry, and nothing I have heard since has removed my view of the need for one; if anything, other disclosures have perhaps strengthened the need for such an inquiry. Back in November I suggested that perhaps a judicial tribunal of inquiry might be the best solution in a very difficult situation—every solution has certain disadvantages. But I accept that the time that that would take is in itself a very powerful disadvantage, and it seems to me that the Government have devised a proposal, which is now before your Lordships' House, which is ingenious and which on the face of it appears to meet many of the difficulties which were expressed then.
Of course I note what the noble and learned Lord, Lord Hailsham, said, about appointing a Lord of Appeal as chairman. The noble and learned Lord on the Woolsack will forgive my saying that I am not one who believes that on every conceivable occasion, and for every public inquiry, a Lord of Appeal as chairman is necessarily the best answer. It is clearly desirable that where possible those who occupy such high judicial positions should not be dragged into the political arena unnecessarily. I would say, in passing, that I should have thought that one ought to try not to use the services of a Lord of Appeal in order to arbitrate, for example, in a wage dispute or matters of that kind. But this is a very different kind of inquiry. It is obviously an inquiry into political matters—of course it is—but it is also an inquiry where there will be clearly defined issues in which evidence will have to be sought, assessed and weighed. One would have thought that in those circumstances a Lord of Appeal would have been particularly suitable to undertake the difficult and responsible job of presiding over such a commission.
870 The other objection that was raised by the noble and learned Lord, Lord Hailsham, related particularly to the very difficult problem of the confidential Cabinet documents, and so forth, which necessarily must, to a limited extent, be made available if the inquiry is to be successful. As I read the terms of this Motion, what is in fact suggested is simply that the chairman should look at those documents first, and if they are relevant they should be disclosed to the rest of the Commission; if they are not relevant they should not be disclosed; and if he is in doubt about their relevance he should consult the members of the Commission as to their use. I find this no more than a formalisation of the practice which any good chairman of any responsible body invariably adopts. He invariably looks at all the papers which are produced before him by his secretariat in order to see which of them are relevant for the body over which he is presiding; and he does not trouble them with those which are not relevant. I can see nothing startling or surprising in the proposal which is now made, and I can see that in a difficult situation it is perhaps the best possible solution.
My Lords, the only other observation I want to make about this matter is this. It is clear that there will have to be investigated the activities that took place during both Conservative and Labour Governments. There is obviously a danger that members of this Commission might find themselves influenced by their own political affiliations. I hope very much that, when the membership of the Commission is chosen, it is chosen from people who are not going to be swayed by their own Party political affiliations, and chosen with a recognition that the broader based the membership is the more likely it is that the findings of the Commission will prove to be acceptable to the general public.
My Lords, for those reasons I regard this Motion as inviting us to co-operate in a practicable exercise, and I hope it is an invitation that your Lordships' House will feel it proper to accept. Like the noble and learned Lord, Lord Hailsham, I consider, of course, that this is not a Party matter. My noble friends on these Benches are free to take their own view on this subject. Perhaps they are even more free than they usually are; 871 but I hope that I have been able to persuade at least some of them that this is a Motion which ought to be supported, and that this is an inquiry which it is very much in the public interest to hold.
§ 5.13 p.m.
Lord PAGET of NORTHAMPTON
My Lords, when the noble Lord, Lord Wigoder, started his speech he made the point—and I think it was probably his main point—that the inquiry would go ahead anyway, and that it was only a question as to whether we participated. In that I think he is plainly wrong. The Prime Minister has made it quite clear that he would release the Cabinet documents only to a Law Lord for his examination. Remove the Law Lord and you remove the inquiry. I think it is as simple as that.
My Lords, I think on a famous occasion, and in a speech of model length, a Member of another place got up after Mr. Disraeli had spoken and said, "I say ditto; I say ditto twice", and sat down again. I feel I might almost confine myself to saying that to the speech of the noble and learned Lord, Lord Hailsham, with which I found myself in tremendous agreement. Periodically the British people suffer from an attack of morality, and they have of late developed the deplorable tendency of, on these occasions, setting up quasi-judicial tribunals with a quasi-criminal jurisdiction and a real capacity to destroy. If I have been consistent in nothing else in my political career, I have opposed every single one of those tribunals; but this I find the worst of the lot. It is a constitutional monstrosity. It is a trident which impales all three branches of our Constitution.
Parliament is an assembly of equal Members; an assembly of Members who come with an equal mandate and an equal summons, whose basic right is access to all the proceedings of their House of Parliament. Here we are to set up a parliamentary committee from which we and Members of another place are to be excluded. I think that is without precedent. It is certainly a grave offence to the very basis of our institution, certainly so far as the Executive is concerned. The Executive is the Cabinet. The Cabinet is entitled to the protection of con- 872 fidentiality, and so are the civil servants who serve that Cabinet. I am quoting from memory, but I remember so much the splendid words of the noble Earl, Lord Strafford, given upon the occasion of his impeachment, when words which he had used in Cabinet were quoted against him. He said words to this effect:My Lords, if words spoken in Cabinet, words spoken maybe but to find a better answer, are taken against a man to destroy him, then all the lions of treason which you have chained are loosed upon you".This is the profundity of the principle which we are so casually being asked to break.
Within our Constitution are the rights of the individual—the rights of the individual to an accusatory form of trial; the right to be charged, to know the charge, to hear the evidence, to meet the evidence in public; the right to be protected from the inquisitional trial, the "punt around to see what is wrong and who you can pin it on" kind of inquiry which is proposed in this kind of tribunal. Of course the Executive have the right to set up inquiries. If Dr. Owen, the Foreign Secretary, did not know what had been happening to oil sanctions (he must have been the only person who did not, if he did not know), and if he did not trust his Department to tell him, he was entitled to ask Mr. Bingham to find out for him. Mr. Bingham did find out for him. He found out very thoroughly, and he told him. If Mr, Bingham's report disclosed criminal offences, he had the right and, indeed, probably, the duty to refer those matters to the Director of Public Prosecutions, who would consider judicially whether action should be taken. I believe the publication of the report was a naive bétise which ought not to have happened. It could only embarrass people who had been serving their country, and damage our country's interests. But that is beside the point.
Now we are to have this new Commission. Its purpose is not to improve on Bingham. It is not going to find us anything new. Its purpose is to pillory. Its purpose is to find and denounce sin. This, to my mind, is utterly unacceptable. In a sense it is a court that we are asked to set up. It is to be presided over by a judge—a learned Law Lord. It is to hear counsel, or at least two of its members 873 are, because apparently it is a court of nine with a quorum of two. It is to hear sworn evidence, or at least two of its members are. It is to see all papers, or at least one of them is, and the others are not. Its proceedings are to be in secret. How do you keep the secret? Think of the leaks that happen. And, supposing somebody does not like what has happened, does not think he has been fairly treated in this tribunal, what is he going to do?
I found myself on one occasion after a similar tribunal (in which, actually, I was the accuser) in which I disapproved—rightly or wrongly, I am not saying—of what had happened and the fact that it had been heard in private. I went straight out and published the transcript and said: "Now take what action you like". Supposing that somebody who is condemned or criticised in this Commission proceeds to do that. What are we to do about it? Are we to have him up for breach of privilege? Are there going to be libel actions on what he said? Where does the protection come in? This secrecy thing is a recipe for every kind of rumour, defiance and embarrassment. Again, there are parties and their counsel; they see no charge, they see but part of the evidence; they are ultimately reported upon—and may be destroyed.
I remember being deeply impressed—and I will paraphrase, for these were words said in another place—by the words said by the late Sir Alfred Butt when a tribunal of this sort had condemned him for having made use of information from the late Jimmy Thomas as to what was going to be in the Budget. It was a charge that he always completely denied. In paraphrase, this is what he said: "I have always deemed it an absolute right to be tried in a court of justice when my case could be tried alone, when I should have the full details of the charge against me, where only properly admissible evidence would be given for me and against me but no matters concerning other people of which I had never heard and whose existence was unknown to me would be introduced with all the prejudice that such an introduction might invoke. To my horror I learned yesterday for the first time that no such opportunity was to be afforded me. There is to be no prosecution. My case is never to be tried. I would ask people to visualise the position 874 in which I now find myself. I have been condemned and apparently I must suffer for the rest of my life from a finding against which there is no appeal, upon evidence which apparently does not justify a trial; and there is now no method open to me by which I can bring the true and full facts before a jury of my fellow men. If any good may come of this, the most miserable moment of my life, I can only think that my position may do something to prevent any other person in this country from being subjected to this wretchedness, without trial, without appeal, and without redress."
My Lords, I think that that puts this dilemma before us and puts it magnificently. Like the noble and learned Lord, Lord Hailsham, I profoundly hope that this House will reject this deplorable proposal.
§ 5.24 p.m.
§ Lord HARRIS of GREENWICH
My Lords, I should begin by saying that at the time of UDI I was special assistant to the then-Foreign Secretary, Mr. Michael Stewart. In that capacity, I accompanied him to the United Nations Security Council meetings that immediately followed Mr. Smith's decision. However, I think it right to say also that at no time was I involved in any of the issues which are involved in the report of Mr. Bingham. By the middle of 1966, I was at the Home Office as special assistant to Mr. Jenkins. Thereafter I had no dealings of any kind with issues in Rhodesia or the policy of sanctions.
Having said that, I believe, with the noble and learned Lord, Lord Hailsham, and with my noble friend Lord Paget of Northampton, that this debate which we are having today raises constitutional issues of the greatest importance and has to be approached in that light. I will say at the outset in regard to the Government's Motion on the question which we now have before us that their motives in this matter are, in my view, entirely honourable. I do not believe that they decided lightly to recommend the appointment of this Special Commission, recognising as they must have done the significance of what they were doing. Indeed, I must say this, too. I am certain that many of my former colleagues must have approached the appointment of this body with a great deal of repugnance, breaking as it does virtually all the conventions that 875 attach to the confidentiality of Cabinet and ministerial discussions.
I believe that the reasons why the Government took a different view of this matter were set out by my noble and learned friend the Lord Chancellor. They were, first, because of the pressure which had been applied by a number of Members of the other place in favour of some further inquiry following that conducted by Mr. Bingham—pressure which, as my noble and learned friend rightly said, came from both sides of the House and also from a number of newspapers. I will return to that particular matter, if I may, later. Secondly, I think the other reason why we have this Motion before us was fairly stated by my noble and learned friend. It was that if some further inquiry did not take place, it would be said that there was a cover-up by members of the Establishment.
That is the argument, basically, that we have before us. I must tell the House that I do not find either of these arguments at all persuasive. I should like to give two reasons why I consider it would be a profound mistake to set up this Special Commission. First, after the publication of the Bingham Report—and here I join with the noble and learned Lord, Lord Hailsham—I am not at all clear whether there is anything other than of course exclusively political questions, left to inquire into. Mr. Bingham investigated this matter and everybody who participated in the last debate paid tribute to him. He investigated with great care and great thoroughness into all the questions which surround it and why it was that oil reached Rhodesia after 1965.
Those who favour this Commission appear to accept a great deal, if not all, of Mr. Bingham's analysis. As my right honourable and learned friend the Attorney-General said in another place on 1st February:The function of the proposed special commission will be mainly to make political judgments".—[Official Report, Commons, col. 1712.]Political judgments! That is what we are talking about. Those are the words of the Attorney-General. That is, in fact, in his view the central question which would be before this Special Commission. But if it is to be a Commission which is to be set up to make political judgments, 876 I am bound to say that I consider it wholly inappropriate that a Lord of Appeal should be in the chair. We have to face the fact that in the past few years judges have increasingly come under political attack. I deeply regret those attacks. They have come from people on both sides of politics and sometimes from people who should know a great deal better.
It seems to me in this situation, a matter of crucial importance to the people of this country, that we should not deliberately push judges into the political arena—and, certainly, they are going to be pushed into that arena if this Motion is carried tonight.
As my noble friend Lord Paget of Northampton and the noble and learned Lord, Lord Hailsham of Saint Marylebone, pointed it out, in this Commission the Chairman is not just one of the members; he is the central figure. He will decide, possibly after consulting other members, which Cabinet papers and which Government files the other members of that Commission are going to see.
My noble friend Lord Paget corrected the noble Lord, Lord Wigoder, who I am sure if he re-examines the Commons Hansard will see this particular point. The Attorney-General made it absolutely clear in another place that the position of the noble and learned Lord who would preside was of such importance that without his being given those powers, the Government would not make the papers available to the Commission at all. That is not my statement, but that of the Attorney General. It is not a question of his being the Chairman and being given powers appropriate for the chairman of any body. They are special powers given because of the confidentiality of the information that is going to be presented to him.
This decision of the Government to arm the Chairman, with special powers came under severe criticism in another place. People objected to it. That re-emphasises the risks which are involved in asking a Law Lord to take on this particular task. Let there be no doubt that if the noble and learned Lord who would preside over this Commission were to decide against allowing the Commission to see some papers, or any reference being made to 877 those papers in the report of the Commission, he might well find himself personally at the centre of a bitter Party political dispute.
I do not believe that it is right to put a Law Lord in a situation of that sort in any circumstance whatever, all the more so because we are facing a situation where there are some who believe that there are not just errors of judgment which have been committed by the Ministers or civil servants, but that there is a monstrous conspiracy. I believe that if this resolution were to be carried, the refusal by the noble and learned Lord to make any papers available, however sensitive or damaging they might be to the conduct of the foreign policy of this country might create the highly unenviable situation where he would be accused of being personally involved in a cover-up.
As I have made clear by now, I profoundly dislike this proposal. It could lead to a new and utterly unjustified attack on the integrity of our Judiciary. I consider that there is a clear national interest in not putting one of Her Majesty's judges in such a position. There is a second reason why I believe this proposal to be a serious mistake. The creation of this Commission, armed with these powers, would do significant harm to the relationship between civil servants and Ministers. The Commission would be invited to examine submissions made by officials to Ministers and, in particular, to consider how much members of one Administration were told by officials about the confidential discussions of members of a different Administration.
These are deeply sensitive issues. The clearest rules exist in the Civil Service about such matters. But those rules and all the considerations relating to it would have to be swept aside in order to make it possible for this Commission to do its work. I must tell the House, quite bluntly, that I can think of few proposals more potentially damaging to the creation of that atmosphere of trust that is so essential in the terms of the relationship between Ministers and officials; and there has, I am afraid—we have to recognise this unpalatable fact—been a very significant deterioration in this relationship over the past 20 years.
I was very struck by talking to a most distinguished Permanent Under-Secretary 878 of State upon his retirement from the Civil Service only a relatively short time ago, when he said, looking back on a highly successful career, that were he to be beginning his life again he would not decide to join the Civil Service. When I pressed him as to why that was, one of the principal reasons he gave was this deterioration in the trust between Ministers and officials. There are a number of obvious examples of this: the late Mr. Crossman's memoirs is a good example; and I hear that another book of this kind is about to emerge. I think it is deeply reprehensible. I believe that further progress in this direction of creating distrust will be accelerated if we appoint the Commission on the basis that we are being invited to appoint it today.
All this being so, why should we proceed to appoint this Commission, my Lords? I know that it will be argued—and, indeed, it has been argued—that if we were to reject the resolution, people outside this House would say that this confirms the fact that there is some form of top people's conspiracy. To be absolutely blunt, one has heard this argument time and time again. My noble friend, Lord Thomson of Monifieth, made this clear in an allusion in the speech to which the noble and learned Lord, Lord Hailsham, referred. Over the past 20 years we have had one inquiry after the other, one tribunal after the other, all supported, I may say, by substantial numbers of Members of another place. My noble and learned friend rightly drew attention to the fact that there was a high degree of enthusiasm for this particular Commission in another place. There was a great deal of enthusiasm for some of the others as well.
Let me remind the House of some of them: first, the Bank Rate Tribunal. Do your Lordships remember that? It was not a particularly happy episode. It was a series of totally baseless allegations against honourable men, made no doubt in good faith—I make no allegation against any individual. We had conversations in trains which were being repeated to a tribunal of inquiry. Secretaries were being asked who said what on the platform at Haywards Heath railway station, and so on. At the end nothing whatever at all came out of it. However, it did not stop all the innuendoes. At the end 879 of it all those who had wanted to believe the worst of their fellow men were not persuaded by the report of the tribunal. I remember very clearly—I was working in another place at the time—what was said: "Well, what do you expect of a tribunal of inquiry when the reputation of the City of London is involved? Of course there is going to be a cover up". Exactly that type of person is going to say the same thing all over again about a report of this Commission, if it is appointed. At that stage a great deal of damage to the national interest will have been done.
After the Bank rate tribunal we then had the tribunal on Mr. Vassall. Grievious allegations were made against the then Civil Lord of the Admiralty; again there was a high degree of enthusiasm in another place for a tribunal, and indeed there was a great deal of support in newspapers for a tribunal. And what came out at the end?—absolutely nothing. The thing was baseless from start to finish, except that two journalists had by that time gone to prison because they declined to answer questions put to them by the tribunal. A third journalist, when asked by the Treasury Solicitor where he had got his information from, said that unfortunately he, like the other two journalists, might not be able to make that information available to the tribunal. That third journalist did not have the same enthusiasm about going to prison as the other two, and after a moment or two he said that he remembered exactly where he had put the name of his informant: he had put it in his notebook. The interest of the Treasury Solicitor, or his representative, was quickened and he said that that was good news at least and would prevent unpleasantness with the tribunal. "Unfortunately", said the journalist, "I had it with me when I was on the border between China and India at the time of the Chinese invasion. I had to leave my quarters rather hurriedly, and I left my notebook there." That is exactly the sort of nonsense one gets with bodies of this sort.
One could go through all the extraordinary allegations made against members of the Administration and against Mr. Harold Macmillan which led to the noble and learned Lord, Lord Denning, having to conduct an inquiry—preposterous nonsense, cocktail-party-circuit stuff— 880 but still, after the report, the allegations continued. That is because, unhappily, we have a situation in this country, and indeed in many others, where some people want to believe the worst of their fellow human beings. In this matter I do not wish to appear in a white sheet in any way: not at all. At the time, in one of the examples I have given I was firmly persuaded it was right to appoint a tribunal of that character. But I am bound to say that when I saw what had happened, and in particular saw the damage done to the civil liberties of many of the people dragged in front of these tribunals, I certainly changed my view.
§ Lord SHINWELL
My Lords, before my noble friend sits down—because I think he indicated he was coming to his conclusion—may I ask him one question? If we decide we are not going to associate ourselves with the other place in this inquiry, will there not be more innuendoes? May I ask my noble friend to think about this: will there not once again be an attack on the House of Lords because it has failed to respond to a decision made by another place? Is that not likely? Will they not say: "This is another cover-up"?
§ Lord HARRIS of GREENWICH
Oh yes, my Lords: indeed they will. My noble friend is absolutely right. A number of those people are going to say that anyway. That is what I was trying to point out. I think we should take decent account of the views of another place; and certainly when a majority Party in another place has a clear mandate to pass legislation it is clearly wrong, in my view, for this House to stand in its way. But this is a totally different question. We are being asked to set up a joint committee of both Houses—a committee armed with totally new powers which, as I have tried to indicate, will do grievous damage to the reputation of many in public life and will call into question the independence of the Judiciary. It will, in my view, be extremely harmful to the relationship between Ministers and civil servants. To be absolutely frank with my noble friend, I am prepared to put up with a great deal of unpleasantness from another place in order to avoid that.
My noble friend Lord Paget referred to one other question which I have briefly 881 touched on already: it is this. I have given brief examples of past tribunals. The situation is that, after months of inquiry and at substantial public cost, it is discovered that there is nothing whatever in the allegations. But, of course, after that has taken place, we have had a time during which the reputations of decent, honourable men have been put in jeopardy. Honourable men who have committed no offence have been rigorously examined by counsel searching—as indeed was their duty—for the slightest indication of any inconsistency in their evidence.
We are now being asked to travel down this same path all over again. Once again, the Treasury Solicitor will be involved and, if I may say so, he already has one tribunal of inquiry sitting. Then there will be counsel. The reputations of many honourable men, both former senior officials and former Ministers, will be placed in jeopardy; and, on this occasion, there is a major distinction because this inquiry is going to take place behind closed doors. I can think of no formula more certain to fuel rumour and gossip than such a procedure. Finally, there will be a report; possibly someone will be criticised—may be harshly criticised. Perhaps an incautious statement made by an official in a submission to a Minister will be censured. Perhaps a former Minister will be accused of having been less than frank because of an injudiciously-phrased answer to a supplementary question asked in another place. It may be that the reputation of a man who has done great service to this country will be seriously damaged.
On the central question before the Special Commission, we already know the answer. At least in the Bank Rate Tribunal there had to be an inquiry as to whether there had in fact been a leakage of information at all; but on this occasion it is a totally different matter. This time there is no doubt what the situation is. It is not a matter where there is a great deal of dispute. The central question before the tribunal—or, more correctly perhaps, the Commission—has already been disposed of in the report of Mr. Bingham. This entire problem would have been resolved had one thing been done, and it is this. If, at some stage in the history of the 1964–70 Labour Government or the Heath Administration or the current Administration, some Minister 882 had come before Parliament and said: "Unfortunately, gentlemen, our sanctions policy is a total ruin: we cannot stop oil getting to Rhodesia and it is as simple as that", all this hullaballoo would have been stilled. There is no doubt about that.
However, with great respect to the House, it is of course not so simple as that for Ministers. Had a British Government put the matter as clearly as that before Parliament, it is quite obvious what would have been the consequences. There would have been demands for a special meeting of the Security Council of the United Nations; there would have been demands for armed intervention in Rhodesia, and arguably, even in South Africa; there would have been demands for economic sanctions against South Africa itself. One does have to ask oneself whether in fact it would have been a sensible thing for a British Government to have moved in that particular direction. I gravely doubt whether it would have been even remotely sensible for them to have done that. Quite apart from our position at the United Nations, there would have been a situation where we should have been confronted with a direct attack on British economic interests both abroad and in this country; and if we look back at the economic situation we were facing at that time, when we were desperately fighting to safeguard the international position of sterling, I think it would have been quite preposterous to believe that any British Government would have taken such action.
So, my Lords, I have put before the House the reasons why I believe that it would be a profound mistake to appoint this Commission. I think that, if appointed, it would as I have indicated, do substantial injury to relations between Ministers and civil servants, as well as to the reputation of the higher Judiciary. It would solve almost nothing, and I believe that many of the allegations that have been made would be repeated. In short, there is great merit in this House rejecting this proposal and, certainly, if the noble and learned Lord divides the House I shall be with him in the Lobby.
§ Baroness GAITSKELL
My Lords, before my noble friend sits down, may I ask him one question after listening to his rather paranoid speech? How are we to get within a mile of open government 883 if we do not have a Commission, when the other House of Parliament requires it and requests it? What is this sensitivity that must be squashed between members of the Government and the Civil Service? They do not always get on. It has been known before.
§ Several noble Lords: Speech! Order!
§ Lord HARRIS of GREENWICH
My Lords, I am sorry that my noble friend regarded my speech as paranoid. I have known her for many years, and will therefore take her censure in as reasonable and equable a way as I can. I have indicated at some length why I came to the conclusion that I did. I did so, I hope, for the same high motives that will no doubt persuade her to take a different view.
§ 5.52 p.m.
§ Viscount DILHORNE
My Lords, I have a faint recollection that the last time I took part in a debate I had some controversy with the noble and learned Lord, Lord Hailsham. On this occasion I am glad to be able to say that I am in complete agreement with every single thing that he said. My only regret is that he did not say it with perhaps a little more vigour. Indeed, I find myself in complete agreement with almost everything that has been said, including the speeches of the noble Lord, Lord Harris, and the noble Lord, Lord Paget of Northampton, with whom I have to admit I have seldom been in agreement about anything.
We are here considering what is really a very serious constitutional question, and I put my name down to speak because I happen to have had in the past some experience of tribunals and inquiries. I was Attorney-General at the time of the Bank Rate tribunal. I was Lord Chancellor at the time of the Profumo inquiry. What is more, I was a member of a Select Committee of another place which had the unenviable task of inquiring into a leak of a Budget secret by a Cabinet Minister. I must say it was with great regret that I read this Motion on the Order Paper today. It may be, as the noble Lord, Lord Wigoder, has said, that the Bingham Report left a lot of questions unanswered, a lot of i's not dotted and t's not crossed, but is that really an argument for another 884 inquest? It may be that last November there was a considerable demand for further investigation, and it is sometimes the case, I feel, that politicians take themselves too seriously. Whatever may have been the position last November, I do not believe that the public cares a hoot about this now. It has other things to think about, and it will think far less about this matter by the time this so-called Commission reports, if it ever is set up.
I am not going to take up time by considering whether or not there is anything more to inquire into. Let us suppose for a moment that the inquiry is entirely negative and that the report does not criticise anyone. As the noble Lord, Lord Harris, asked, will that satisfy anyone? They will not know what has happened in private. At least it could be said in relation to the Bank Rate tribunal that not a stone was left unturned, not a conversation was left unreported. It was all investigated, and one hoped by the thoroughness of that investigation to stop the talk, to stop the scandal. But will this inquiry in private do anything of that kind? No, my Lords. So, if there is a complete clearance, I do not for one moment think it will be effective.
I am much more concerned about the person who is commented on adversely, or who may be, by such a report. The words that the noble Lord, Lord Paget, cited from what Sir Alfred Butt said after the Thomas inquiry had great force. I remember, too, the position of poor Mr. Belcher after the Lynskey tribunal—condemned, not charged, not tried, and with no opportunity of clearing his reputation. Before that inquiry, we had the inquiry into the Budget leak, and I hoped that, after the Marconi inquiry, the Sir Alfred Butt inquiry and the Dr. Dalton inquiry, we had seen the last of inquiries of this character by Select Committees of the House of Commons.
I have to say that it was a very unpleasant experience sitting on that committee which inquired into Dr. Dalton's conduct. That committee was not judicial in the least degree. It split on Party lines and it was the most unsatisfactory investigation that I have ever taken part in. Now, my Lords, what is proposed?—not just a Select Committee of the House of Commons; that the House of Commons can appoint at any time it 885 wishes—but that we should participate with them in a Select Committee to perform the kind of functions of the committee which was appointed to inquire into what Dr. Dalton had said.
Of all forms of inquiry, I believe that a Select Committee of the House of Commons, of this House or a Joint Committee—whatever label you give to it—is about the worst kind of investigating tribunal that anyone can devise. Think of the position of anyone v/ho is condemned, criticised, by a finding in the report of this Commission. No one will know on what evidence he has been condemned. Will he know? He will know some because he will have seen some of the evidence. Can he be sure that he will have seen all the material evidence? Can he be certain? The public will not know whether he is rightly or wrongly condemned—there will be nothing in the nature of a trial. He will be condemned to the public, without justice being seen to be done. I think that is very wrong indeed.
I do not want to take up much time on in is because so much has been said, but I wish to add a word or two about the appointment of a noble and learned friend of mine to preside over this Commission. I am sorry that he was asked to do so. I know, and the noble and learned Lord, Lord Hailsham, knows, what pressures are put on the Lord Chancellor by any Government—they must have been put on the present noble and learned Lord the Lord Chancellor—to provide judges to preside over all kinds of inquiries, to take part in settling all kinds of disputes; and we have all had to resist those demands. I am sorry that on this occasion that demand has not been resisted, because I think that the noble and learned Lord has been asked to undertake a task which no one filling his high judicial office should have been asked to perform. I leave on one side the fact that his absence, or his devotion to this work, will seriously affect the proper administration of justice. We cannot really dispense with his services in a judicial capacity. But he is not just being asked to act as chairman of an ordinary committee. He has to be the sieve of what the other members of the Commission see, and I cannot think that the other members of the Commission 886 will be very happy about that. They may feel that they ought to be shown some things which he in his discretion says that they are not to see.
What about the parties and the witnesses? They may not see all the documents affecting them and yet they may be criticised. I have not known of a tribunal where persons who may be criticised or condemned have not been able to see every single document and every single piece of evidence that may affect them. To refuse them that amounts, to my mind, to a denial of natural justice. This is a cleverly designed compromise between keeping secrecy for Cabinet documents and endeavouring to let this go forward. I think that it is the worst of both worlds.
I shall not touch on the question of civil servants about whom the noble Lord, Lord Harris of Greenwich, spoke so well in his observations, with which I am in complete agreement. However, I hope that it is not too late to ask the noble and learned Lord the Lord Chancellor to think again. At the end of the day I can see my noble and learned friend, who has been forced into the political arena, being attacked from all sides because of his report and because no one will know how he has functioned. The result is not going to bring satisfaction to anyone. The result of these other inquiries did not bring satisfaction to anyone. The noble Lord, Lord Shinwell, asks whether we ought to refuse this invitation. This invitation to join with the other place is unique, and I hope and trust we refuse it.
§ 6.2 p.m.
§ Lord GARDINER
My Lords, I apologise for not having put down my name to speak, but when the list closed I was not aware that I personally was going to be referred to in this debate. For the reasons which my noble and learned friend on the Woolsack and the noble Lord, Lord Wigoder, have given, I support the Motion. I shall leave it to my noble and learned friend on the Woolsack to reply to the arguments which have been advanced by the noble and learned Lord, Lord Hailsham of Saint Marylebone.
I am concerned to say only that I remain of the opinion which I originally expressed when last we debated this point. 887 Successive Governments have been accused, not only in this country but in many other countries, of knowing perfectly well what was happening in relation to Rhodesian oil and of decieving Parliament. I could not blame anyone who read the Bingham Report and who, in addition, heard what my noble friend Lord Thomson said, for concluding that at least the Members of the Cabinet must obviously have known what was going on. They might particularly think that of me because, although it is no part of the duties of a Lord Chancellor, at the request of the then Prime Minister I went to Rhodesia with the Commonwealth Secretary just before UDI to try—unsuccessfully, I am afraid—to persuade Mr. Smith and his colleagues not to declare UDI, and throughout I remained very closely concerned with Rhodesian matters.
The opinion which I ventured to express last time and would express again is that it is only fair to those who are in that position that there should be some inquiry by some body which will ascertain the truth. I join with everything which my noble friend Lord Harris of Greenwich and the noble and learned Viscount, Lord Dilhorne, have said about committees of inquiry under the Tribunals of Inquiry Act. I said exactly the same when I spoke before. I said then that I should not have liked at all having to appear, under the Act, before a tribunal of inquiry. I remain of that opinion. I said that I thought that there ought to be an inquiry, and I suggested an inquiry by a Commission of Privy Counsellors.
I personally should be perfectly happy to appear before the body of fellow Parliamentarians which has been proposed, particularly, of course, if it is to be chaired by a noble and learned Lord of Appeal. I have no idea who he might be, but whoever he is I should be very happy to appear before him.
I do not want to enter into a discussion as to whether or not he ought to occupy that position. I think that recently there has been some misunderstanding in the columns of the Sunday Telegraph. That paper carried an article by a Mr. Johnson about the law, in which he wrote that the noble and learned Lord, Lord Hailsham of Saint Marylebone, had said that judges 888 could not help getting involved in politics. Mr. Johnson said that that was an answer to what I had said; namely, that I did not like judges being involved in Party politics. But Party politics are one thing. The noble and learned Lord involved in this matter will in no way have been involved in Party politics.
I am also deeply indebted to my noble friend Lord Paget of Northampton for his solicitude. He said what an awful thing it would be for me to have to appear before this body. But nobody else in my position has spoken, and all I can say is that I should be perfectly happy to appear before such a body. I consider that it is only fair to those who are in my position that there should be an inquiry to find out the truth. I shall not be in the least concerned with the evidence as to what Mr. Heath or the noble and learned Lord, Lord Hailsham of Saint Marylebone, knew about these matters. But I am concerned with my own honour and with my own position. I should welcome an inquiry. I think that this is the right form that it should take, and I support the Motion.
§ 6.7 p.m.
§ The LORD CHANCELLOR
My Lords, I am very interested in the note upon which my noble and learned friend Lord Gardiner ended his speech: the right of those who have been pilloried to have the accusations examined. That is the beginning of the story. It was said, I think by my noble friend Lord Harris of Greenwich, that this would be an exercise in pillorying, but the pillorying has happened already. The Prime Minister and other Ministers have been pilloried in the Press. They have been charged with misleading, with deception, with humbug, with hypocrisy. Those charges have already been made. There has already been a chorus of accusation.
There is a feeling, which has been expressed in the Press and in the organs of public opinion, that there are outstanding matters, quite apart from the right of impugned individuals to have their reputations cleared and the matter decided one way or the other. There is a feeling that the Bingham inquiry did not include in its terms of reference any examination of the question whether Parliament was misled about the story of what occurred, 889 or whether Ministers were misled. That was no part of the terms of reference of the Bingham inquiry. Those outstanding questions remain, as the noble Lord, Lord Wigoder, put it.
As I have said, the Government, faced with an almost overwhelming demand in another place that there should be a further inquiry and in the light of the factors which I have mentioned, had the agonising task of trying to determine which would be the fairest and the most effective way of dealing with the situation, assuming the need for a further inquiry. We examined the tribunals of inquiry procedure. The great mischief of those proceedings was that they were held in public. There was no opportunity for those who were cross-examined to avoid the daily newspaper reporting that took place long before their explanations ever came to pass. One of the reasons why we thought that this inquiry, if it is to take place, should be conducted in private is to limit the risk of public pillorying, and secondly to limit any damage which might arise from the publication of Cabinet papers and Cabinet documents.
The noble and learned Lord, Lord Hailsham of Saint Marylebone, spoke about the requirements of natural justice, and of course I am concerned to see that the principles of natural justice are maintained. With regard to the production of documents, the essential sieving process will be to look through the mountain of papers that will have to be examined for relevance, for connection and for their necessary production in the inquiry to get at the facts. One of the reasons why I think it is desirable that there should be an eminent judicial figure in charge of the inquiry is the certainty that, certainly within the limits of that procedure available to him, he will see that justice is done. That is one of the reasons why a series of Lord Chancellors have asked eminent judges to conduct inquiries: first, in the hope that they will do their best in the circumstances, and secondly, because of the confidence that that fact will inspire in the public.
The noble and learned Viscount, Lord Dilhorne, referred to the way in which Lord Chancellors have resisted pressures put on them by Governments; but the resistance does not seem to have been very effective because inquiries have taken 890 place. In 1972 the noble and learned Lord, Lord Wilberforce, was asked to intervene in a highly contentious arbitration over pay increases in the fuel industries. The noble and learned Lord, Lord Scarman, was asked to report upon the great turbulence in Red Lion Square in 1974. The noble and learned Lord, Lord Devlin, was asked to inquire into events in Southern Africa. The noble and learned Lord, Lord Chief Justice Widgery, was asked to investigate the highly-argued and controversial events of so-called "bloody Sunday". The noble and learned Lord, Lord Edmund-Davies, was asked to conduct the Aberfan inquiry, where the conduct of a great nationalised industry was at stake.
We have heard of the bank rate inquiry which was presided over, I think, by the late Lord Parker, and then there was the Lynskey Tribunal itself. Then, more recently (I am not sure whether it was not after the noble and learned Lord, Lord Hailsham, became Lord Chancellor) the Vehicle and General Insurance Company Inquiry was set up with one Lord Justice and two eminent lawyers who have since gone on to the Bench. All these people were selected by Lord Chancellors. I do not like the word "pressure" very much, which was used by the noble and learned Viscount, Lord Dilhorne. One would hope that normally a request by the Lord Chancellor to a judge would be complied with, but there is certainly no compulsion about it.
So we are not acting afresh and anew in this scene, and what is less likely to be damaging to the judge because of an alleged area of political sensitivity—to use the phrase of the noble and learned Lord, Lord Hailsham—and what, at least, is reassuring in this matter, is that, so far as I know, it is not a Party political question. That is something which really helps when one considers whether one is damaging the standing and position of a Lord of Appeal in involving himself in the way that is suggested here.
It seems to me, with great respect, that the noble Lord, Lord Harris of Greenwich, brushed aside too lightly the intervention of my noble friend Lord Shinwell. In the face of the overwhelming decision in another place that this inquiry should take place, if we now set our faces against it T think it will do grave damage to 891 this House. It will be a clear confrontation. We know of the mischief that lies about against this place; we know of the mischief that lies about in regard to any Establishment institution or person in these days, and the allegation of "cover up"—of hiding things—I fear will be made not only in this country but also outside this country if we do not proceed along the road that is suggested.
Of course I realise that there are unattractive features about it. One can only apply one's ingenuity—the noble Lord, Lord Wigoder, used the word "ingenuity"; that is not an offensive word so far as I am concerned—as best one can to deal with an exceptionally
|Amherst, E.||Greenwood of Rossendale, L.||Oram, L.|
|Aylestone, L.||Gregson, L.||Peart, L. (L. Privy Seal.)|
|Balogh, L.||Hampton, L.||Phillips, B.|
|Banks, L.||Henderson, L.||Pitt of Hampstead, L.|
|Barrington, V.||Hutchinson of Lullington, L.||Redcliffe-Maud, L.|
|Boothby, L.||Jacobson, L.||Ritchie-Calder, L.|
|Boyd-Carpenter, L.||Jacques, L.||Sefton of Garston, L.|
|Brimelow, L.||Janner, L.||Shinwell, L.|
|Collison, L.||Kaldor, L.||Snow, L.|
|Cooper of Stockton Heath, L.||Leatherland, L.||Stewart of Alvechurch, B.|
|Craigavon, V.||Leonard, L.||Stone, L.|
|David, B.||Llewelyn-Davies of Hastoe, B. [Teller.]||Strabolgi, L. [Teller.]|
|Davies of Leek, L.||Thurso, V.|
|Dowding, L.||Lloyd of Hampstead, L.||Wallace of Coslany, L.|
|Elwyn-Jones, L. (L. Chancellor.)||Longford, E.||Whaddon, L.|
|Foot, L.||McCluskey, L,||Wigoder, L.|
|Gaitskell, B.||McGregor of Durris, L.||Willis, L.|
|Gardiner, L.||McNair, L.||Winterbottom, L.|
|Garner, L.||Noel-Baker, L.||Wynne-Jones, L.|
|Gifford, L.||Northfield, L.|
|Ailesbury, M.||Derwent, L.||Hale, L.|
|Alexander of Tunis, E.||Dilhorne, V.||Hanworth, V.|
|Amherst of Hackney, L.||Drumalbyn, L.||Harris of Greenwich, L.|
|Amory, V.||Dundee, E.||Hawke, L.|
|Ampthill, L.||Ellenborough, L.||Henley, L.|
|Auckland, L.||Elton, L.||Hewlett, L.|
|Avon, E.||Emmet of Amberley, B.||Hood, V.|
|Belstead, L.||Fairfax of Cameron, L.||Hornsby-Smith, B.|
|Bessborough, E.||Faithfull, B.||Hylton-Foster, B.|
|Bethell, L.||Falkland, V.||Inchyra, L.|
|Bledisloe, V.||Forester, L.||Inglewood, L.|
|Caccia, L.||Fortescue, E.||Jeffreys, L.|
|Cathcart, E.||Gainford, L.||Killearn, L.|
|Clitheroe, L.||George-Brown, L.||Kimberley, E.|
|Cockfield, L.||Gisborough, L.||Kinnaird, L.|
|Colville of Culross, V.||Glenamara, L.||Lauderdale, E.|
|Cork and Orrery, E.||Glenkinglas, L.||Lindsey and Abingdon, E.|
|Cottesloe, L.||Gordon-Walker, L. [Teller.]||Long, V.|
|Crawshaw, L.||Gore-Booth, L.||Lyell, L.|
|Croft, L.||Gowrie, E.||Macleod of Borve, B.|
|Cullen of Ashbourne, L.||Greenway, L.||Marley, L.|
|de Clifford, L.||Gridley, L.||Massereene and Ferrard, V.|
|De La Warr, E.||Hailsham of Saint Marylebone, L. [Teller.]||Merrivale, L.|
|Denham, L.||Mottistone, L.|
§ difficult situation. In my opinion, this problem will fester on unless something is done. In my view, this noble House will be doing a disservice to Parliament if it resists the Motion that I have proposed, having regard to all the restraints that have been imposed upon the potential for mischief, for the protection of Cabinet documents and for the protection of those whose reputations have so far been pilloried but who have not been given an opportunity to answer.
§ 6.17 p.m.
§ On Question, Whether the said Motion shall be agreed to?
§ Their Lordships divided: Contents, 58; Non-Contents, 102.893
|Mowbray and Stourton, L.||Rochdale, V.||Strathclyde, L.|
|Newall, L.||St. Davids, V.||Strathcona and Mount Royal, L.|
|Northchurch, B.||St. Just, L.||Strathspey, L.|
|Nunburnholme, L.||Salisbury, M.||Terrington, L.|
|O'Brien of Lothbury. L.||Sandys, L.||Trefgarne, L.|
|Onslow, E.||Savile, L.||Ullswater, V.|
|Oxfuird, V.||Sligo, M.||Vernon, L.|
|Paget of Northampton, L.||Somers, L.||Verulam, E.|
|Rankeillour, L.||Spens, L.||Vickers, B.|
|Rathcreedan, L.||Stamp, L.||Ward of North Tyneside, B.|
§ Resolved in the negative, and Motion disagreed to; a Message ordered to be sent to the Commons accordingly.