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PROCEDURAL, LEGAL
AND PRACTICAL PROBLEMS
49. The preliminary stages
of this inquiry were beset with difficulties from the outset,
some of which are described below.
PROCEDURAL
PROBLEMS
50. Having prepared for
a court action, The Guardian were initially reluctant to
accept that an investigation by me, on behalf of the Select Committee
on Standards and Privileges, could be seen as an adequate substitute.
In a letter to the Prime Minister and others on 4 October 1996,
the newspaper claimed that my powers to call for witnesses and
evidence were subject to a decision of the Government majority
on the Committee; that it would be the Committee which would determine
not only the outcome of the inquiry, but also whether my Report
would be published or kept secret; and that only an inquiry under
the Tribunals of Inquiry (Evidence) Act, 1921 could ensure that
the investigation was "beyond the reach of political interference".
They also believed that my resources would be wholly inadequate
for a proper inquiry.
51. These doubts were to
some extent allayed when the Committee agreed to the
following arrangements:
(a) although
my inquiries would be independent, the Committee would, if necessary,
exercise its powers to enable me to call for persons and papers,
and to facilitate the taking of evidence on oath
(b) the Committee
reported to the House[20]
that it was "in no doubt that any attempt by any person to
mislead the Commissioner during his inquiries would constitute
a contempt of the House"
(c) the Committee
approved, in full, my proposals for additional legal and administrative
support
(d) the Committee
reported to the House that there was a presumption that my Report
would be published and that, should it subsequently judge it necessary
to take evidence, such evidence would be taken in public and on
oath. In taking such evidence, the Committee would seek sworn
confirmation from witnesses that evidence previously given to
me was full and correct.
52. The Guardian continued
to argue that my inquiry should be held in public. In a letter
to the editor dated 31 October 1996 I set out my understanding
of the position in the following terms:
"On the question
of powers, the intention of Parliament is, I think, clear. In
paragraph 26 of their First Report of 1994-95, the Select Committee
on Standards in Public Life outlined a process which envisaged
that my Reports and findings would normally be published but which
also provided that where no prima facie case had been established,
no details of the complaint would be disclosed. The purpose of
this proviso is to guard against giving a public airing to detailed
allegations which I subsequently judge to be unfounded ... This,
coupled with an absence of powers [to the contrary] in the Standing
Order governing my appointment, carried with it the clear implication
that my enquiry would be held in private ... I confirm, therefore,
that my enquiry will be in private".
53. This view was endorsed
by the Select Committee on Standards and Privileges.
54. A further procedural
problem arose over the question of Parliamentary privilege and,
in particular, the restrictions it placed on the use to which
evidence submitted to the inquiry could be put. The Guardian
were unwilling to provide their investigative material to me without
an assurance that they retained the right to publish it. Their
position was that they sought no protection from Parliamentary
privilege and would make no allegations which they could not justify
in a court of law. But, by the same token, they wished to be
able to make use of their evidence as and when they chose, without
running the risk of being in contempt of the House.
55. I could, of course,
give no such blanket assurance since it is the House which decides
what constitutes a contempt. However, having taken extensive
advice, I felt able to draw a distinction between two types of
evidence.
56. On the one hand, there
were memoranda prepared specifically for the inquiry which, I
understood, could not be disclosed without the authority of the
Committee. On the other, there was material submitted as evidence
to me but which had originally been produced for another purpose
and which could therefore be regarded in some sense as "having
a life of its own". This kind of evidence was not, according
to my advice, subject to the same absolute restriction on its
disclosure, although in making use of it witnesses should not
indicate that it had been supplied to me for the purposes of the
inquiry.
57. The Guardian took
ample advantage of this distinction in the ensuing weeks in ways
which were undoubtedly intended to influence the outcome of the
inquiry. This illustrates the particular problems of having a
newspaper as the principal complainant - problems which, however,
are unavoidable where serious allegations deserving examination
arise from investigative journalism.
LEGAL PROBLEMS
58. The legal difficulties
were no less daunting. With the abandonment of the libel trial,
many of the documents disclosed on discovery had to be returned
to their owners; and there were implied undertakings to the court
that they would be used for no other purpose than the court action.
The legal position was unclear. I sought the agreement of the
plaintiffs in the action to their documents being supplied to
the inquiry, where possible, by The Guardian. This agreement
was given but in one case subsequently withdrawn. It was not
in any case certain that such consent would free The Guardian
from its undertaking to the court. At one point I learned that
potential witnesses were being advised that to provide this material
to the inquiry might involve a contempt of Court and, to deny
it, a contempt of Parliament.
59. These difficulties were
only painstakingly, and then not completely, overcome. It meant
that, instead of assembling the essential documents from one source,
I had to rely on a variety of sources and, in particular, the
former plaintiffs, Mr Hamilton and Mr Greer.
PRACTICAL
PROBLEMS
60. To make matters worse,
as a result of the adverse publicity generated by the libel action,
Mr Greer's company, IGA, went into liquidation and their staff
and records were dispersed. This greatly hampered the process
of identifying and gaining possession of documentary evidence
relevant to my investigations. In view of its importance to the
inquiry, this process is summarised in the following paragraphs.
61. In addition to the bundles
of documents assembled by The Guardian's legal team for
the libel trial, I received four volumes of trial documents from
Mr Hamilton[21],
and many additional papers from Government departments which I
selected as relevant to the inquiry from a much larger collection
of files made available to me by the Cabinet Office.
62. However, at a comparatively
early stage of the investigation it became clear that it would
also be necessary to examine the books of IGA, in order to see
whether or not they cast light on the allegations that Members
had received commission payments for the introduction of new business,
and how those payments had been treated in the accounting records;
to see what fees (if any) had been paid to Members; and to see
if there was any documentary evidence to support the allegation
that there was a secret fund[22]
from which payments could have been made to Members.
63. In late 1996, Mr Greer
informed me that he was in the process of winding up his company
and that "as of 1st November I have no staff and very limited
facilities". There then began the lengthy and time-consuming
process of attempting to find and obtain relevant IGA documents
going back to 1985, and possibly earlier.
64. With the assistance
of a member of the Government Accountancy Service, and an Order
from the Select Committee on Standards and Privileges for the
production of papers,[23]
I was able to trace documents through Mr Greer, via the liquidator
and the company's former accountants, to archives from which some
files were eventually retrieved.
65. I also obtained a large
number of accounting documents from Peter Carter-Ruck and Partners,
Mr Greer's solicitors before the collapse of the libel action.
In fact documents were still being received from this source
in early March 1997.
66. There may well be other
IGA documents, relevant to this investigation, which I have not
seen. This is regrettable, but I am satisfied that, on the basis
of the voluminous material I have been able to gather, I have
a clear enough picture of the facts from which I can draw reliable
conclusions.
67. Many other documents
have been supplied to me during the course of my investigation
by complainants, and by or on behalf of the Members against whom
complaints have been made.[24]
68. For all these reasons,
the overall task of assembling the documentation relating to the
complaints has proved to be by far the most lengthy and frustrating
part of the inquiry.
20 First
Special Report, Session 1996-97, HC 34. Back
21 These
turned out to be the documents assembled by the plaintiffs, but
did not include later documents disclosed during the discovery
process in 1996. Back
22 See
para 193. Back
23 Dated
27 January 1997. Back
24 See
para 8. Back
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