Westminster Commentary
`WHAT I would really like,' said the Minister of Housing and Local Government in the Divi- sion Lobby, 'is a department where one could think.' A scep- tic might wonder exactly what Mr. Brooke would do with such a department if he had one, but the feeling, I can assure him, is one not entirely unknown in the upper reaches of the House of Commons. In our case, however, the hunger for thought is merely a reflection of the fact that the proceedings on which we attend are all too frequently of a kind about which no thought is possible, being in the nature of what Russell and Whitehead called an 'empty class,' like a square circle. If anybody doubts this, let him read Monday's debate 'on' the Opposition motion of censure anent the Government's failure to announce an increase in the old age pension. This grisly farce is dealt with in some detail in the Spectator this week, and since it now seems that the Government has decided to swindle Mr, Roy Jenkins out of most of the sensible provi- sions in his Obscenity Bill (a fact which will surprise nobody but Sir Alan Herbert), this seems as good an opportunity as any to draw together some threads which became visible after the report of the Parker Tribunal on the Bank rate and have subsequently been inked in a good deal more clearly by the report of the Sorn Tribunal on the Waters case.
First, however, one or two matters connected therewith in the foreground. Mr. Chuter Ede asked on February 10 whether John Waters had appeared before the person making the investiga-. tion on behalf of the Lord Advocate (it will be recalled that Mr. Milligan had stated that he had had such an investigation made in order to assure himself of the validity of Crown Counsel's decision that no prosecution was warranted). Now the ques- tion has never been answered; it was not, of course, within the Tribunal's terms of reference to consider the Parliamentary side of the Thurso case, and so they did not go into such matters. But it is pertinent to raise it again now; for if the answer is `no' the general rush to exculpate Mr. Milligan from any blame for the Government's initial blank refusal to supply the House of Com- mons with the information for which it had asked . may be seen to be premature. And many may be a little puzzled by the curious provision of, Scots law which insists on corroborative evidence for such matters as identification. Still more puzzling is the fact that everybody seems to have assumed that a prosecution which is unlikely to succeed should in no circumstances have been launched--an assumption which I, for one, do not share.
On the other hand there is Mr. Maclay to be considered. Mr. Macpherson, answering for Mr. Maclay, categorically stated three times that no Inquiry would be appropriate under 4he Tribunals of Inquiry Act. Exactly a week later, the House of Commons approved a motion to set up this inappropriate body, after a cool statement by the Prime Minister to the effect that it was The most convenient method.' If Mr. Maclay did not resign then, he is obviously not going to resign now, and anybody who has followed with half an eye and a quarter of an ear the decline in recent years of standards of personal Ministerial responsibility will not be surprised. But after all, Mr. Maclay did his damnedest to prevent an inquiry being held (at least, if three point-blank refusals to hold one do not constitute his damnedest, I do not wish to meet his damnedest in a dark alley, particularly in Thurso), and the.Tribunal's report shows so clearly than an inquiry was justified that I think some explanation is required.
But this does not exhaust the list of things which seem to be unsatisfactory in the present state of affairs. Before the Parker Tribunal (and indeed the Lynskey Tribunal), and now before the Sorn Tribunal, the position of the lawyer leading the case on the Tribunal's behalf has been a difficult and anomalous one. In any, normal court case, a witness is first subjected to examination- in-chief by his own lawyer (or lawyer for his 'side'), and then to cross-examination by a hostile lawyer. His own lawyer has the advantage of knowing what he is going to say, and is concerned with presenting it, by his questions, in the most favourable light, after which it is up to the opposi- tion to knock it down. Within the rules of evi- dence, it is hardly possible to think of a better way of presenting to a jury the fullest possible syn- thesis of what they need to know in order to arrive at a verdict.
But before a judicial tribunal a very different state of affairs obtains. In the first place, although the lawyer leading the evidence has statements from the witnesses, he has not had the advantage of going over those statements with them before- hand. This obviously handicaps him; not, of course, as it would a trial lawyer, in 'presenting the evidence as favourably as possible (which is no part of his job), but in presenting it as fully as may be. But far worse is the fact that the cross-examination is in the same hands as the examination-in-chief—and indeed that no dis- tinction is made between them. It is not easy to think of a way round this difficulty, since wit- nesses before such Tribunals are rarely wit- nesses for or against any `side'; they are simply called because they may be able to help elicit what happened in certain events, Without refer- ence to particular individuals' guilt or innocence, which themselves may not be in question anyway.
Most pressing of all the problems raised by these Tribunals, however, is that of the whole position of the Law Officers. Do they exercise a judicial or an executive function? In the Par- liamentary discussions of the Waters case an attempt was made to question the Lord Advo- cate's, decision not to institute a prosecution. The attempt was firmly discouraged, and the Prime Minister gave the following, homily on the sanc- tity of the Law Officers: 'It is an established principle of Government in this country that the decision as to whether any citizen should be prosecuted or whether any prosecution should be discontinued should be a matter . . . for the prosecuting authorities to decide on the merits of the case without political or other pressure.' And later, 'It would be a most dangerous devia- tion from this sound principle if prosecutions were to be instituted or abandoned as a result of political pressure or popular clamour. . . . In reaching his decisions the Lord Advocate's duty in Scotland, like the Attorney-General's in Eng- WOODFORD, ESSEX, APRIL 2u
Not until the very end of a 22-minute speech to a crowded public meeting in his constituency here tonight did Sir Winston Churchill at last say the words his audience had patiently awaited.
'I shall be ready once again to offer myself as your candidate . . the sentence began; and there, for the moment, it rested, while the 700 people in the hall shouted their tumultuous approval.—The Times, April 21. land, is to act in a quasi-judicial capacity. . . And the Prime Minister then quoted from Lord Simon (the father of Crown privilege in its present form) that the Law Officer should absolutely decline to receive orders from the Prime Minister or Cabinet that he should prosecute.
But it is worth remembering that the Attorney- General is not a member of the judiciary and does not act in a judicial capacity when he decides to prosecute. He is a Government lawyer and his task is to represent the public as a whole and to protect the public interest. What is the public interest? This is determined by Parliament (in lieu of the ideal—having it determined by the public) as any other matter of administration. If there is no prima facie evidence of an offence, there can be no prosecution and on this the Law Officer's opinion is virtually final. But if there is such evidence, then a policy decision has to be made, and the Law Officer's view of what is in the public interest is no less and no more valid than that of any other Minister. The decision to prosecute or to discontinue a prosecution is an exercise of executive power. Should it not there- fore be susceptible to the same 'scrutiny as the executive decisions of other Ministers?
The truth is that noises like 'quasi-judicial' were first made in relation to the Attorney-General's powers as recently as the .Campbell debate in 1924. In that debate Sir Douglas Hogg laid an egg marked 'Sanctity of the Law Officers,' and ever since it has been growing, rather horridly, larger. It will be remembered that Sir Patrick Hastings was charged (as the Attorney-General) with having discontinued a prosecution under pressure from the Cabinet. Now, as might be expected, Hastings had put in some research in his defence; and he was able to cite some clear instances where his predecessors in office had been satisfied that there was sufficient evidence for a prosecution but had none the less consulted others as to the political wisdom of such a course. Thus Sir Gordon Hewart in 1919 had a clear case of sedition before him but being of the opinion that 'the real question was one of policy' he referred the matter to the Cabinet. Was this quasi-judicial procedure? Hastings himself formulated the Law Officers' position in these terms : 'they may go to the executive government to know what the public interest is where the public interest may conflict with the strict exer- cise of their duty.'
The only approach to a challenge to that state- ment in the debate was the following statement by Sir Douglas Hogg: 'While I was Attorney- General, at any rate, when once a prosecution was instituted, I never took advice or counsel or brooked interference from any Minister or any- body else on the question whether it should be withdrawn. That was a matter which, rightly or wrongly, 1 regarded as my duty, and a duty which I ought to exercise judicially and uninfluenced by any outside persons.' How a lawyer represent- ing one party in legal proceedings could have exercised his duty judicially was a question which the speaker apparently thought unworthy of clarification. The noticeable feature of this state- ment is that it is couched in personal terms which seem to suggest that, so far from there being any 'clear and established principles' about interfer- ing with the Law Officers, Sir Douglas Hogg had to make up his own mind about his constitutional position. And he confined his remarks to the withdrawal of prosecutions already started. It is difficult to see any logical difference between a decision to start proceedings and a decision to discontinue them. The latter will usually be politically less desirable, as the Campbell case proved, but both are equally of an executive nature, and therefore either both or neither of them should be subject to ministerial interference.
In 1951 the Labour Government was faced with a situation which might well have provided an opportunity for the erection of more dogmas around the Attorney-General's office. Workers in the gas industry went on strike in breach of the then existing law. It did not require a Cabinet Minister to determine whether there was evidence of an offence; but the then Minister of Labour answered questions in the Commons and an- nounced the decision to institute proceedings. Plainly the decision was neither judicial nor quasi- judicial. It was politically desirable to show the country that unlawful strikes must stop and that the Government was uninfluenced by the political affiliations of the strikers, But was not this M ini- sterial interference with judicial decisions?
The odd thing is that in the debate on the Waters Tribunal the sanctity of the Law Officers was tamely accepted. The Prime Minister said : 'It would be a very bad thing if the House or Cabinet of the day tried to influence the semi- judicial functions of the Law Officers in the institution or the dropping of prosecutions.' This is Sir Douglas Hogg's egg again, and now grown so large that all the Law Officers can shelter safely behind it. A lawyer with political affilia- tions may find his loyalties severely tested, whether he be a Conservative investigating a City hare raised by Labour members,, or a Labour Attorney prosecuting trade unionists. His posi- tion as a State lawyer is admittedly anomalous.
Is it not also becoming indefensible? TAPER
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