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New Clause—(Recovery Of Documents In Possession Of Crown)

Volume 440: debated on Friday 25 July 1947

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Subject to and in accordance with Acts of Sederunt applying to the Court of Session and the sheriff court, commission and diligence for the recovery of documents in the possession of the Crown may be granted in any action whether or not the Crown is a party thereto, in like manner in all respects as if the documents were in the possession of a subject:

Provided that—
  • (i) this subsection shall be without prejudice to any rule of law which authorises or requires the withholding of any document on the ground that its disclosure would be injurious to the public interest; and
  • (ii) the existence of a document shall not be disclosed if, in the opinion of a Minister of the Crown, it would be injurious to the public interest to disclose the existence thereof.—[The Lord Advocate.]
  • Brought up, and read the First time.

    I beg to move, "That the Clause be read a Second time."

    This Clause deals with the equivalent in Scotland of the provision made in England.

    Will the right hon and learned Gentleman explain it a little further?

    This matter was dealt with on Second Reading when the right hon. and learned Member for Hill-head (Mr. J. S. C. Reid) made some observations on it. In England this is called "discovery." It is the right of a party to litigation to recover documents which are in the hands of the opposite party, or of a third party. In Scotland we have a delightful word, "haver." I do not know what the English equivalent is. In Scotland we have always been able to recover documents from the Crown, but certain modifications were made in this Bill which made it desirable to deal with this matter by a separate Clause. Broadly speaking, I think the effect on recovery of documents will be the same in both countries.

    Do I understand that this will leave the position in Scotland as it is at present?

    Broadly that will be so, with one exception. If the hon. and gallant Member will look at the second proviso he will see the exception. I explained on Second Reading, or at the last meeting of the Committee, that I would have to alter the discovery pro- visions. That was merely necessary because of the second proviso. The point has been considerably discussed already, and although up to now it has always been possible to recover documents from the Crown something had to be put into the Bill to cover that proviso, and from a drafting point of view it was thought desirable to deal with the matter in this way.

    I wish to pursue the point of paragraph (ii) a little further, because in my recollection of the previous discussion on the question of discovery a very strong case was made out that the onus of deciding whether or not a document in those circumstances should be subject to privilege and, therefore, not discoverable against the Crown, ought not to be forced on the Minister concerned. It is putting on him an onus and burden of decision in which he is a party actively concerned on the one hand, and which he ought not to be asked to decide either for or against his own interests. Various alternative suggestions were put up to the effect that it might lie in the decision of a judge, or a judicial committee, or some people who were independent and judicially minded who would certainly be as discreet as anyone could be to ensure that no information arising out of documents should be disclosed contrary to the public interest. It was also felt that they would be eligible to assess the importance of the documents from the national point pf view. I wish to ask the right hon. and learned Gentleman whether these considerations, which were very carefully laid before the House and were, I thought, sympathetically received by him, have been taken into account in the drafting of this Clause, and also why they have not been acceded to.

    I was slightly tickled by the opening of the speech of the Scottish Law Officer. It seemed a curious doctrine—not that we are surprised at curious doctrines from the other side of the Committee—that this new Clause should come in because an hon. Member said something about the matter on Second Reading. When we come to the Committee stage, it gives Scottish Members a chance of threshing out such matters. We have arrived at that point, but even with an English lawyer helping me I am still not quite clear what we are doing. However, a new Clause of this kind, coming in the first place, I gather from the Conservative benches, in all probability can be accepted without any inconvenience. But I think it should be remembered that we have some rights on the Committee stage. There may be some hon. and learned Gentleman on the other side of the Committee who may follow on these lines and explain to my mind, not terribly well instructed on Scottish law, what this Clause does.

    The hon. Member for Torquay (Mr. C. Williams) is never a very easy speaker to follow because although he succeeds in using a phenomenal number of words, he never seems to say anything. The speech which I do want to follow is that of the hon. Member for Chichester (Mr. Joynson-Hicks). He suggested that the question of what documents it was not in the public interest to disclose should be a judicial decision, and not a political decision. I think that argument is ill-founded. It was dealt with in detail by Lord Simon in the judgment in the "Thetis" case. The trouble is that what is the public interest is essentially a political question, and judges are not equipped to decide political questions. Indeed, I feel the law generally gets itself into very great trouble when it casts on to judges the decision of matters which are not legal matters at all. Any of us who have had experience of running-down cases where the decision of how a motor car should be driven has been thrown on to judges, have learned that that form of litigation has been reduced to almost absolute uncertainty. An earlier generation was wiser in regard to collisions at sea, when it provided judges with assessors who understood the sea. I believe we would make a great mistake if we tried to put on to judges these essentially political questions.

    There is one further aspect of discovery upon which I would like to say a word. Documents are refused and privilege is claimed for them for two reasons. The first is that disclosure of a particular document would be contrary to the public interest. I have no more to say on that. But a much greater number of documents are refused because they fall into classes, and it is said that, quite irrespective of the question whether a particular document would or would not affect the public interest, it belongs to a class of document the disclosure of which would be contrary to public interest. These classes are wide. They include, for instance, all departmental minutes, all reports made by one civil servant to another, reports from one Department to another Department; there is a whole series of classes into which I need not go. Privilege is claimed for documents because they belong to one or other of those classes, and that rule is most rigidly applied. It is applied whether it be in the Crown's interest or not. Often, indeed, the Crown is prevented, in litigation, from producing documents which are conclusive in its own favour, documents which do not affect the public interest in the least, one way or the other, simply because they belong to a particular class of documents.

    I remember two cases at least in which the Crown was prevented from producing a document which was quite conclusive in its own favour, and the production of which would not have affected the public interest one way or another. In addition to those two, perhaps I might mention another case, in which a farmer, Mr. Odlum, a very famous cattle breeder, brought an action for libel against the chairman of the local war agricultural executive committee. It was in substance against the secretary of the committee, for whom the chairman took responsibility. It had been stated that when that farm had been purchased by the right hon. Gentleman the Member for Southport (Mr. R. S. Hudson) the then Minister of Agriculture, it had been in a bad condition, and that the right hon. Gentleman had greatly improved the farm. Mr. Odlum considered that statement to be a libel upon him. It was a privileged document, and, therefore, the issue turned on whether it was malicious, that is to says, whether the gentleman who produced the document honestly believed that the farm was in a bad condition when it was taken over.

    It was a known fact that that very gentleman, before any question of litigation had arisen, had reported as to the category, whether "A", "B" or "C", into which that farm should be put. That document could not be produced because it fell into a class of departmental reports. Of course, the effect of the Crown's refusal to produce that document was that everyone immediately assumed that the farm had been reported upon as an "A" farm. The document was assumed to be dead against the Crown, and its non-production was assumed to have been sharp practice. I am saying nothing about what that document would have shown, but it might very well have cast a much different reflection upon that case. That is the sort of instance in which this rule as to a class of documents works very badly.

    12.45 p.m.

    The trouble with this rule is that it came into being to deal, not with the cases in which the Crown was concerned, but with cases in which the Crown or a Minister was being called simply as a witness, and which documents the Crown or the Minister, as a witness, should be compelled to produce. When the Crown became a party to the litigation directly in the past, then the rules which had been applied to the Crown as a witness were used to cover the Crown as a party. They are really inappropriate rules for that purpose, and I hope that now that the Crown is to be a party, these rules will be reconsidered and worked out again, and that privilege will only be claimed for documents because the specific document affects the public interest, and not merely because it belongs to a class of document.

    I am not a lawyer, and, therefore, I naturally feel some diffidence, like my hon. Friend the Member for Torquay (Mr. C. Williams), in intervening in a Debate which is obviously particularly reserved for the legal Members of this Committee. I object to this Clause, just as I object to the whole procedure which has been displayed by the Lord Advocate in regard to this Bill. Two days ago I made a protest against Scotland being fobbed off by being included in English Bills instead of having a proper Bill of its own, which would make clear to Scotland the kind of legislation this House was proposing. We are today faced with exactly the same position. The Lord Advocate finds, at the last minute, what everyone in Scotland knows, that Scottish law is entirely different from English law, and he now comes along and makes various proposals to try to bring this Bill into consonance with Scottish law. That is demonstrably bad, it is an insult to Scotland, and it is an insult to this Committee.

    The hon. and gallant Member for Ayr Burghs (Sir T. Moore) may be glad to know that this Bill is now bringing English law into consonance with Scottish law. We have had a great many of these things in Scotland for centuries.

    Why not, for a change, introduce a Scottish Bill and let the Attorney-General introduce a few Clauses in order to bring English law into consonance with Scottish law? Why not let England join in occasionally and demonstrate her inferiority to Scotland instead of Scotland apparently always having to demonstrate her inferiority?

    I am not quite sure whether the hon. and gallant Member's last remark was in Order.

    I rose to object to this Clause, and indeed to object to the neat Clause, which has not yet been reached, and to the whole procedure adopted by the Lord Advocate.

    The hon. and gallant Member is going too far. We have not reached the other Clause to which lie has just referred.

    I was quite aware of that, but in case I was called from the Committee before the next Clause was called I wished now to register my protest.

    That is out A Order. I cannot take any such notice until the Clause referred to is called.

    While accepting your Ruling, Mr. Beaumont, I would ask whether the Lord Advocate can explain why he is submitting to this intolerable indignity of having to introduce Clauses into an English Bill so as to bring Scotland into consonance with English law? That question has not been answered, and Scotland will need an answer.

    I do not want to intervene in the discussion between my hon. and gallant Friend the Member for Ayr Burghs (Sir T. Moore) and the Lord Advocate. I feel that the Lord Advocate has probably, almost obviously, lost his brief this morning, and has just come in casually, and it is a little hard to tackle him seriously on this matter. My purpose in rising is to thank the hon. and learned Member for Northampton (Mr. Paget). If I might have his attention just for one minute, I would say that the hon. and learned Member for Northampton was kind enough to refer to me at the beginning of his speech. I seldom make a speech for as long as he does and certainly I hope that I do not speak as slowly as he does. I will not comment on anything else, either on the new Clause or on the hon. and learned Gentleman, except to congratulate him most sincerely, and, I hope, with effect, on the fact that he has made a speech which should thoroughly qualify him to become a Scottish Law Officer.

    Question put, and agreed to.

    Clause read a Second time, and added to the Bill.