Crown Agents

Part of the debate – in the House of Commons at 12:00 am on 5th December 1977.

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Photo of Mr Michael Havers Mr Michael Havers , Wimbledon 12:00 am, 5th December 1977

I intervene at this moment simply on the question of the nature of the tribunal. As I see it, the problem—it is a real problem that is faced by the Government—is that there are only two alternatives: either a tribunal under the 1921 Act or a secret inquiry of the Aarvold type. That is if we answer the preliminary question "Yes"—the question posed by Lord Justice Salmon in the 1966 report whether this inquiry should be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence. Assuming that the answer to the question is "Yes", bearing in mind the huge sums of money involved and the severe criticisms apparent in the Fay Report, and that some sort of inquiry is necessary, can it be the sort of inquiry which the Government have suggested?

If one looks again at the Salmon Report, which I should have thought was extremely helpful to everybody on this, one sees that Lord Justice Salmon said at paragraph 38 on page 20: If, however, there is in reality an evil to be exposed and any of the allegations or rumours causing the nation-wide crisis of confidence are true, it is extremely difficult, if not practically impossible, for the report —that would be the Profumo-type report, like the Aarvold one— to establish the truth. When a person against whom allegations are made is not even allowed to hear the evidence brought against him, let alone to check it by cross-examination, when he has ' never had the chance to rebut' the case against him, how can any judicially-minded Tribunal be satisfied, save in the most exceptional circumstances, that the allegations have been made out? The report went on: We do not believe that it can ever be right for any inquiry of this kind to be held entirely in secret save on the grounds of security. The report concluded—this is what creates the difficulty in my mind— We recommend that no Government in the future should ever in any circumstances whatsoever set up a Tribunal of the type adopted in the Profumo case to investigate any matter causing nation-wide public concern. For the reasons we have stated, we are satisfied that such a method of inquiry is inferior to, and certainly no acceptable substitute for, an inquiry under the Act of 1921. I should like to tell the House of a personal experience that I had as counsel in one of the Profumo-type inquiries. It is completely unsatisfactory. One goes with one's client and one is given a brief summary of what the case against one's client is. One is not told by whom the allegations are made, and one has no right to cross-examine. One of the difficulties is that, however fair and impartial the chairman of the inquiry may be, he does not have the information that counsel has upon which to cross-examine. I can cross-examine if I am properly instructed and I know all the facts because my client is the victim, or perhaps the victim, in a way that no chairman such as Lord Denning or Sir Carl Aarvold will ever be able to do because he will not be instructed in the way in which counsel is instructed. That is why I intervened on Thursday on the rather narrow issue, but one that worried me as a lawyer, about the risk of injustice to individuals in this sort of inquiry.

If one reads through the Salmon Report, particularly paragraph 115 on page 38, one sees that Lord Salmon is saying that it is absolutely essential that this sort of inquiry should be public. One knows that the expense and the delay are enormous. We know that the 1921 Act tribunal is a blunderbuss.