§ 4.52 p.m.
§ The Lord Chancellor
My Lords, with the leave of the House, I desire to repeat a Statement which has now been made by my right honourable and learned friend the Attorney-General concerning the indemnity which he gave on behalf of the Government to the sequestrators of the assets of the National Union of Mineworkers. The Statement is as follows:
"As the House will know, on 28th September of this year Mr. Justice Nicholls gave judgment on an application which had been made in an action brought by two working miners, Mr. Taylor and Mr. Foulstone, against the National Union of Mineworkers. In his judgment, Mr. Justice Nicholls restrained the NUM from, among other things, describing the strike in the Yorkshire area as official since it had not been called in accordance with the rules of the union. Despite that order and in full knowledge of it the National Executive Committee of the NUM and its senior officials made statements which affirmed the strike as official. This was a deliberate contempt of court by the union and on 10th October Mr. Justice Nicholls fined the union £200,000 and ordered the fine to be paid within 14 days. He made it clear that if it were not paid the union risked having its assets sequestrated. In imposing the fine, the Judge said:
'A great and powerful trade union, with a large membership affected by the court orders in question, has decided to regard itself as above the law, and to make this plain repeatedly, emphatically and publicly on a nationwide basis'.
"The fine was not paid within the 14 days and Mr. Justice Nicholls therefore appointed sequestrators, as he had warned the union to expect, on 26th October.
"The sequestrators accordingly set about taking possession of the assets of the union. However, by about 11th November they had been able to seize assets only to the value of some £8,500. The vast majority of the remaining assets of the union—amounting to many millions of pounds—had apparently been transferred by the union to banks in various countries abroad in a deliberate attempt to put them out of the reach of the court. The sequestrators, as was their duty, took steps in the countries in question to obtain possession of the funds which had thus been spirited away and in 157 particular instituted proceedings in the High Court in Dublin where they had traced a substantial deposit of the funds. For the purposes of these proceedings it seemed likely that the sequestrators might be required to incur considerable financial liability themselves, including having to give a financial undertaking to the court. In those circumstances, I understand that they inquired from the High Court in this country whether this potential liability could be covered by funds at the disposal of the court and were told that there were no funds available to the court for that purpose. There was no communication at any time between Mr. Justice Nicholls and my department.
"When I learned of this situation, it seemed to me to be quite contrary to the public interest to allow the risk of the sequestration being frustrated in this way to continue. On the one hand, it was not right to expect the sequestrators to incur this increasing substantial financial liability themselves even if, at the end of the day, they could look to reimbursement out of the union's funds. On the other hand, it was totally unacceptable that the order of the court, made following the non-payment of a fine imposed for deliberate contempt of court, should be defeated by the union's tactics of transferring its assets abroad and keeping them abroad. I therefore sought and obtained authority to give the sequestrators, on behalf of the Government, an undertaking to indemnify them against the costs and expenses which were reasonably and properly incurred by them in carrying out their duties in pursuance of their appointment by the court. In the knowledge that that undertaking is available, they are now pursuing actions in various jurisdictions abroad to recover the assets which were surreptitiously removed from this country. The contempt of court committed by the NUM will therefore be punished and the law will be properly upheld".
§ My Lords, that concludes my right honourable and learned friend's Statement.
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for repeating the Attorney-General's Statement. However, does the action taken by the Attorney-General on behalf of the Government, as described in the Statement, not give rise to serious constitutional and legal questions, with a number of which I must trouble the noble and learned Lord?
Was the financial backing given to the sequestrators volunteered by the Attorney-General or the Government, or was it requested by them? According to today's Daily Telegraph report the Attorney-General's intervention took them completely by surprise. According to a statement by the sequestrators on the tape today, Treasury help "was unsolicited". Therefore, it is not to that source that we must look for this unprecedented initiative.
Now I come to a crucial question. Is there any precedent for the Government's intervention, acting through the Attorney-General in this way, in contempt proceedings? On what authority—statutory or otherwise—did the Government or the Attorney- 158 General purport to act? Will similar financial help be given by the Government in other future contempt proceedings that may arise? This surely adds a new dimension, if not a new terror, to contempt proceedings which are already subject to a great deal of criticism for their very nature and embrace.
Is the Attorney-General now, on behalf of the Government, going to state the limit and extent of this new role of Government as financial backer in contempt proceedings? Finally, how was it that the fact of the Government and the Attorney-General's intervention only emerged by reason of a note by the Financial Secretary to the Supplementary Estimates?
§ Lord Wigoder
My Lords, in expressing some anxiety about the course upon which the Government have embarked I make it perfectly clear that no one on the Alliance Benches is seeking to offer the slightest encouragement or support for the criminal antics of Mr. Scargill.
Our anxiety arises because these are essentially private proceedings. They are proceedings brought by two individual miners against their union. They are not Government proceedings. The Government could have been party to them if they had wanted to; hut, for perfectly understandable reasons, they decided not to. The Government, if they had wanted, could have brought proceedings for criminal conspiracy. They might have initiated proceedings against the trustees of the union for misuse of funds. In fact, they have taken no action of that sort but left the matter entirely to private individuals. The result is that the Government are now seeking to indemnify private litigation out of public funds for allegedly public purposes.
Does this not come very near to the historic offence of "maintenance'"? I know of course that the offences of "maintenance" and "champerty"—I have often wanted to use the word "champerty" in a public speech and I have at last succeeded in doing so—were abolished in 1967, but the noble and learned Lord will, I am sure, agree that the rule of law which they embody still remains. Indeed, Halsbury, fourth edition, volume 9, paragraph 400, gives the definition of "maintenance". The noble and learned Lord will, I am sure, agree with this because the editor of those volumes was in fact one Lord Hailsham of Saint Marylebone. Maintenance is described in this way. It is the,giving of assistance or encouragement to one of the parties to litigation by a person who has neither an interest in the litigation nor any other motive recognised by the law as justifying his interference".Will the noble and learned Lord not agree that both in the Consett case in 1955 and in the Adams case in 1971 there are dicta that make it perfectly clear that those criteria are to be applied extremely strictly? In those circumstances, putting the matter as I do at its very lowest, will he not agree that there is at any rate some cause for doubt as to whether the action taken by the Government on this occasion is within the parameters laid down in the definition of maintenance which has for so long been accepted?
I accept of course that there is a problem. These are not the sequestrators' costs. We must be careful perhaps to be precise. These are the plaintiffs' costs in the last analysis. The noble and learned Lord will no 159 doubt agree that there is a problem where the plaintiffs have brought proceedings successfully for contempt of court and a bill is likely to be presented to them which is beyond their means. Will he not agree that the proper answer in that situation is either that legal aid should be available to those plaintiffs or, alternatively, that a suitors' fund of the sort which the organisation Justice has for long recommended should be available as a public fund from which costs of that type should he met? Would that not be infinitely preferable to the Government involving themselves and embarrassing themselves by intervening in a matter which is essentially one of private litigation?
§ The Lord Chancellor
My Lords, perhaps I may deal in inverse order with the points raised. With the greatest possible respect to the noble Lord, Lord Wigoder, he is onto a thoroughly bad point. What is at stake is the payment of a fine. The sequestrators are appointed by the court in order to enforce the payment of the fine; and they are therefore officers of the court. The law of maintenance has no more to do with this matter than the rule in Shelley's case.
As regards the points made by the noble and learned Lord, Lord Elwyn-Jones, I disagree with him that there is any serious constitutional question involved. The court has the obligation to see that its fines are enforced. When sequestrators are appointed it is important that the order of the court enforcing the fine should not be frustrated by want of funds. That is a purely public question as to how the penal order of the court should be enforced by the officers of the court. I think really that there is nothing more to it than that.
The noble and learned Lord asked me a number of specific questions, and I deal with them in the order in which they were asked, if I have it right. The first was, was financial backing volunteered or requested?; and then there was a reference to the Daily Telegraph of today, which I am afraid I have not read. As I understand it, what happened was this. I shall write to the noble and learned Lord if I turn out to be seriously wrong, but I think that I am right. There was, as the original Statement says, a procceeding in Dublin before the equivalent of the High Court there by the sequestrators, as a result of which the Dublin court gave an interlocutory injunction, to use popular language, freezing the assets of the NUM which had been sent across there.
As the noble and learned Lord will know, and as I think I am right in saying as regards English law, if as a plaintiff (and of course the plaintiffs in the Dublin proceedings were the sequestrators) you get an interlocutory injunction, you have to give an undertaking as to damages to the court, so that a right will be done in the end. If you are a foreign plaintiff—and for this purpose the sequestrators would have been foreign plantiffs vis-á-vis the Dublin court—you have to give some security for that sort of thing, and a bond was demanded.
The sequestrators then asked the English court where the funds to back the bond were coming from. It was at that stage, not because they asked the Attorney-General but because they made an inquiry of the English court and were told that there were no funds, that the Attorney-General offered an indemnity 160 and gave it. It seems to me that he acted perfectly properly and intelligently, It was not in a sense volunteered. It was volunteered because it had been necessary to put up a bond in order to give security for costs, or the equivalent, to support an undertaking as to damages in the Dublin court. If I am seriously wrong about that, I shall tell the noble and learned Lord, but I think that what I have said is, broadly speaking, right. In fact, the Dublin court has I believe continued the injunction on that basis.
Is there any precedent for Government acting through the Attorney-General in that way in contempt proceedings? That for which there is no precedent is that in order to defeat the order of the court, any person in contempt has been wicked enough or foolish enough to remove his assets abroad. As there was no precedent for the occasion, there has been no precedent for the riposte. I think that it is a thoroughly good riposte and a thoroughly good precedent. Of course, I cannot say that it will be repeated. I hope that there will never be occasion for it again.
Is there any limit on the extent of the new role of the Government? I do not accept that this is a new role of the Government. What is difficult is this—and I do not think that it was more than a purely technical question. When the court has imposed a fine for contempt, the court has no funds—I was a little surprised to know it. Therefore the Government gave, as they are entitled to do, like any other individual, an indemnity to ensure that the sequestrators, who could hardly be expected to meet the matter out of their own pockets, should not be out of pocket. I hope of course and believe, that when the funds are ultimately acquired the costs will be obtained out of the funds so acquired, and there will be no liability on the Government if that is so.
How was it simply brought forward in the Supplementary Estimates? I think that the fact of the matter is—and here again I shall correct myself to the noble and learned Lord if I am wrong—if there is a contingent liability of a continuing character, one has to seek statutory authority to do it, but when it is a one-off exercise, then I believe that one has to put it in Supplementary Estimates, and that was the way in which it has to be done. I really think that this is much ado about nothing, but it may be that I am unduly optimistic.
§ 5.8 p.m.
§ Lord Wilson of Langside
My Lords, will the noble and learned Lord not agree that the Statement and the issues which have been raised today upon it lend support to the view of the many in the country that the issue arising out of the miners' strike is one which ought long ago thoroughly to have been debated in Parliament? Since the fundamental issues involved are political issues, is Parliament not the place in which they ought to be discussed? Is the noble and learned Lord aware that there is a widespread feeling in the country about this matter that the Government have failed the nation, and in particular that Parliament ought to have been consulted at different stages as this deplorable chapter in our industrial history developed?
§ The Lord Chancellor
My Lords, I am afraid that the Attorney-General's Statement had nothing whatever 161 to do with the merits of the miners' strike. It had to do with the giving of an indemnity to sequestrators, and I think that I must limit myself to that.
§ Lord Diamond
My Lords, on the limited aspect of giving notification to Parliament, is it not the case—according to my recollection it certainly used to be the practice—that it is normal for the Treasury to seek an opportunity to advise Parliament of a contingent liability which it is undertaking and which would otherwise not be known to Parliament until the Estimates came before it at some later date?
§ The Lord Chancellor
My Lords, I am not at all sure what the answer to that is because I have never worked as a Treasury Minister. I know the noble Lord, Lord Diamond, knows a bit about these things. But my understanding of it was that the earliest (and, indeed, for this purpose the latest moment) at which it could be done was by putting it in the Supplementary Estimates in the way that it was. That was my understanding of the matter; but this is not a matter upon which I would claim to be as big an expert as the noble Lord.