HC Deb 12 May 1874 vol 219 cc175-83

, in rising to move— That, in the interest of the public service" it is expedient that Members of this House who after their election may have accepted the office of Her Majesty's Attorney General or Solicitor General, should be for the future exempted from the operation of the Law under which all Members who may accept offices of profit under the Crown are compelled to vacate their seats, said, that at the beginning of the present Parliament it must have struck every gentleman who took an interest in public affairs that considerable waste of time was incurred by the re-election of Members who had accepted office under the Crown, pursuant to the statute of Anne. This was felt all the more, because of the time at which the Dissolution took place; and the result was that what the Prime Minister called a financial tour de force had to be executed by the House. His first intention was to move for a Committee to inquire into the whole subject, and, if necessary, to move that the law requiring the re-election of Members who accepted office under the Crown should be repealed; but, on looking into the history of the matter, he found that, at the beginning of the last Parliament, Lord Bury, then a Member of this House, was similarly struck with the waste of time involved in sending back for re-election Members who had just been elected with the perfect knowledge that it was their intention to accept office under the Crown and brought the matter before the House. He should have thought that the Bill of the noble Lord would have been allowed to proceed without opposition to the second reading; but he was met with an outcry that he was attacking a cardinal principle of the Constitution and laying an unholy hand on the ark of our Constitutional liberties. The late hon. Member for Brighton (Mr. White) said it was not for a private Member to tinker and tamper with the fundamental principles of the Constitution. The right hon. Member for Oxfordshire (Mr. Henley) said he did not like in this way to cut the connection between the House of Commons and the people; the hon. and learned Member for the City of Oxford (Sir William Harcourt) expressed what he termed a vehement dissent, and said that the choice by the Sovereign of her Ministers should be ratified by the people as represented by their constituencies; and the debate was closed by the late Prime Minister, who said that, although there was some inconvenience attending the operation of the existing law, yet it was premature to re-open the question. The result of all this was that the severe course was taken of refusing leave to bring in a Bill, and the matter there ended. After reading the opinions of these high authorities, he felt as if he had been warned off the ground and tried to find some means of mitigating the inconvenience of the existing law. The first Act which bore upon the subject was the 6 Anne, c. 7, the 26th section of which said that if any Member accepted an office of profit from the Crown during the time he continued a Member, his election should be void, and a new Writ should issue as if such person were naturally dead, but he should be capable of being re-elected. Since that time many modifications of that principle had been introduced. The Reform Act of 1867–8 provided that if any of Her Majesty's principal Secretaries of State should be transferred from one office to another, he need not vacate his seat. It also enacted exceptions in favour of the Secretary of the Treasury and the Secretary of the Board of Trade, as not formally holding office under the Crown, although he could not see any difference with respect to them so far as constitutional principle was concerned. Other exceptions were made by 22 & 23 Vict. in favour of the holders of diplomatic pensions or Civil Service superannuation allowances. The law was full of eccentricities and anomalies, which had been created under an urgent sense of the inconvenience of carrying out the Act to the letter. There was, for example, the remarkable fact that persons becoming Ambassadors or foreign Ministers did not have to vacate their seats, although it must be obvious that they could not well attend to their duties in the House of Commons while residing in China or Japan. Thus Mr. Layard, although appointed Ambassador to Madrid in October, 1869, the Speaker could not issue his Writ during the Recess, and the borough of Southwark was kept in the turmoil of a contested election for four months after Mr. Layard had reached Madrid. Then there were the well-known modes by which Members were enabled to resign their seats—the acceptance of the Chiltern Hundreds, the Stewardship of the Manor of Poynings, of East Hendred and Northstead, or the Escheatorship of Munster; but surely it was a most curious anomaly that a Member might accept the office of Ambassador at Paris, with a salary of £10,000 a-year. and not vacate his seat, while a Member accepting the Escheatorship of Munster, a post of no emolument whatever, at once vacated his seat. Then there was the case of the right hon. Gentleman the late Prime Minister. They had all been much interested towards the close of the last Parliament in looking forward to the discussion which it was thought would arise, had that Parliament lasted another Session, as to the legality of the proceedings of the right hon. Gentleman in not vacating his seat after the acceptance of a second office of profit under the Crown. Unfortunately, the opportunity for discussing that question in the House never occurred, the Gordian knot having been cut by the Sword of Dissolution, and the matter remained undetermined, adding another to the numerous uncertainties and difficulties with which the whole of this subject was surrounded. With respect to the Motion, there were reasons for selecting the two Law Officers of the Crown for liberation from the necessity of re-election on their acceptance of office. There was nothing so rare or valuable, either in public or private life, as a good legal opinion, and it was most important for a Minister always to have at hand the Law Officers of the Crown to consult on any difficult question. Good lawyers were not always popular with their constituencies. They were mostly regarded as travelling politicians, who wanted a seat for a short time in order to facilitate their reaching the higher walks of their profession by a short cut, and not toil along with their less ambitious brethren in Westminster Hall. But when they once secured a seat it was necessary for them on the acceptance of office to go again before their constituents. They could not improvise a good legal adviser any more than they could improvise a good theologian. He wished some one would write a novel, descriptive of the difficulties of gentlemen of the long robe in search of a seat. The Solicitor General, if he mistook not, could unfold a tale on this subject, and so also might the Attorney General and the Solicitor General in the late Government. The hon. and learned Member for Taunton (Sir Henry James) was known to be hostile to the female interests in his borough. It seemed probable that before long the ladies would be enfranchised, and then he might learn—"Furens quid fœmina posset." The hon. and learned Member for Oxford (Sir William Harcourt) might seem to be strong in the confidence of his constituents; but since the General Election he had received a Conservative Colleague, and he did not know whether he saw his way for the future. There was, perhaps, only one lawyer on the Liberal benches whose seat might be regarded as perfectly safe—the hon. and learned Member for Peterborough (Mr. Whalley). It was obvious that if that hon. and learned Member looked to the past there was nothing he could do which would shake the affection and confidence of his constituents, and next time a Liberal Government was in office, notwithstanding the slight misunderstanding between him and the late Prime Minister, the House might confidently expect to see him the Liberal Solicitor General. It was clear that a Premier in selecting his Attorney and Solicitor General was obliged to look not only to the best man, but to consider who had got the safest seats. He maintained, on the other hand, that it was merit and not accident that should be rewarded, and the House ought to discourage legislation that had an opposite effect. It was not, however, from a lawyer's point of view that he had selected the Attorney and Solicitor General for illustration. His argument was that the public interests suffered from the present system. To show how desirable it was that the Government should have the best legal advice he would take such a case as that of the Alabama. If the legal advisers of the Crown were men of inferior knowledge and capacity they might advise a ship to be detained in port when there was not sufficient ground for her detention, and the result would be that the Government, or, in other words, the taxpayer, would be mulcted in damages to the shipowner. In the contrary case of a ship being allowed to go out which ought to have been detained in port, the result would be that the Government might be mulcted in £3,000,000 damages to the country upon which the ship made war after escaping from an English port. These instances might be multiplied indefinitely. The Government thought that their responsibility was covered if they stated that they were acting in accordance with the opinions of the Law Officers of the Crown. It was therefore important that they should have the best advice that money could procure, and that there should be no artificial obstacle raised by law to the Government getting the best opinion that could be obtained. It was the custom to appoint for certain posts gentlemen who had no special knowledge whatever. There was no difficulty in obtaining, for example, for appointments in the Royal Household, young gentlemen of engaging appearance and courtly manner, who would discharge their duties with satisfaction to Her Majesty and credit to themselves. To send such gentlemen back to their constituents was a very different thing from sending the Law Officers of the Crown back for re-election. What was more, the re-election of the Law Officers had a tendency to occur very often. Many of the dignitaries of the law were very old, and when the time came for them to be transferred from Westminster Hall to Westminster Abbey, or some other repository of the distinguished dead, their places were usually taken by Gentlemen who had a seat in the House of Commons. This might occur again and again until the Government of the day got to the bottom of its bag and exhausted the whole stock of legal ability on one side of the House. The tendency of such a system was doubly mischievous, because it not only promoted lawyers who were themselves unworthy of the Bench, but took away from the credit and authority of the Bench itself. It should be remembered that small boroughs—that much abused, but, as he thought, somewhat useful institution—had been abolished, with only a few exceptions. He had himself had the pleasure, when formerly in the House, of representing one, which he presumed only awaited the coup de grâce of the next Reform Bill. Yet small boroughs oiled the springs of legislation and enabled the machinery to move smoothly, and the result of their abolition was to make the country more sensible of the anomalies that remained. The difficulty in the way of carrying his Motion into effect was only a formal one. He granted that, unlike the Under Secretaries of State, the Law Officers of the Crown held their office directly from the Crown; but if he had proved that a practical difficulty and evil existed in the present law he submitted that he had proved his case. He trusted he had shown that the present state of things was indefensible in theory, inconvenient in practice, and mischievous in its effects on the public service. If so, he trusted that the Government would take the subject into its candid and serious consideration, and give the House an assurance that the Government would itself deal with the subject at no distant time. The hon. Member concluded by moving his Resolution.


seconded the Motion, but not without some reservation, as he could have wished that it had gone further than it did. Reference had been made by his hon. Friend to the discussion which took place on this subject some five years ago, as creating a difficulty in doing so; but the question was raised somewhat suddenly, and was stopped in limine, there having been no opportunity for fully dealing with it at the time. That discussion, however, had anticipated to a considerable extent the objections which might be taken to the present Motion. The late Solicitor General (Sir William Harcourt) on that occasion contended that the provisions of the Act of Queen Anne were part of the Act of Settlement, and the result of a compromise between the two Houses of Parliament at that time. But this was not so in point of fact. The present law originated in 1692, when Parliament was full of placemen, and a Bill was brought forward in the House of Commons excluding all placemen from seats in Parliament. The Whig party of that period had fresh in their memory the corruption of the previous reigns, and the Tory party were jealous of the reigning Sovereign. Both, therefore, participated in a desire to limit the power of the Crown in Parliament. It was under these circumstances that the Bill was passed through the House of Commons; but it was virtually rejected by the House of Lords by something like a side-wind—the insertion of the words "unless subsequently chosen"—and vetoed by the King; but the House of Commons thus baffled took the opportunity afforded by the Act of Settlement of inserting the same provision, with the Amendment of the House of Lords, which was the existing law. The reasons which rendered this advisable then, existed no longer, and it was time to do away with a law that inflicted little else but inconvenience on all parties concerned. Members of the Government, when appointed, had to appeal to their constituents, and it might happen that they had to answer questions and make speeches, embarrassing not only to themselves, but to the Government. Besides, under the present arrangement, the House might be deprived of the services of a most valuable Member simply from the caprice of the electors. The subject did not involve any political considerations. The question was one of convenience or inconvenience, and in the particular instance under consideration, it did not apply to the Government alone. It applied equally to the House itself, for the House was constantly asking the opinions of the Law Officers of the Crown on various important points, and of requiring their assistance and attendance; and the services of the best men ought to be secured with the least possible inconvenience. He trusted, therefore, that the Government would see their way to the repeal, either wholly or in part, of the statute of Queen Anne. He had much pleasure in seconding the Motion.

Motion made, and Question proposed, That, in the interest of the public service, it is expedient that Members of this House who after their election may have accepted the office of Her Majesty's Attorney General or Solicitor General, should he for the future exempted from the operation of the Law under which all Members who may accept offices of profit under the Crown are compelled to vacate their seats."—(Mr. Yorke.)


It is not unnatural that my hon. Friend, under the circumstances of the recent Election, should have his attention called to the peculiarities attending it; but I cannot help feeling that he has drawn too wide conclusions from very narrow premises, because the special circumstances by no means warrant so great a change as that which my hon. Friend proposed in his speech, though not in his Resolution. Both of my hon. Friends, indeed, have alluded more to the inconveniences to individuals than to the interests of constituencies that return them. My hon. Friend who moved this Resolution said that it was not a very easy thing for lawyers to get into Parliament, and he says that they frequently may be called travelling politicians. But" I must say that one of the first things which a travelling politician ought to do would be to travel to his constituents and see whether or not they approved the step he had taken. When my hon. Friend refers to the case of the Under Secretaries of State, he seems to forget that the responsibilities in the two cases are entirely different. The Under Secretaries of State have practically no personal responsibility. They are responsible-only to their Chiefs, who in their turn are responsible to Parliament. But a far larger responsibility rests with the Law Officers. They have to recommend State prosecutions, to advise when Writs of Error should be issued, and they have the opportunity of indulging in acts of grievous oppression if they choose to avail themselves of those opportunities. It therefore seems to me that the Law Officers of the Crown are the very last persons who should be exempted from the necessity of re-election on their acceptance of office. The argument of the hon. Member who moved the Resolution goes to this length—that good lawyers should be put into the House without any election at all if constituencies were so weak as not to return them. I have no wish, however, to go beyond the terms of the Motion, which in its terms is very imperfect and illogical. I am by no means prepared to say that the time has arrived when we should get rid of the statute of Anne, and when all Members should be allowed to take office under the Crown in this country without seeking re-election. It might be that a Member had told his constituency that he was going to enter Parliament as an independent Member, and, indeed, during the course of the last General Election I saw addresses issued by Members of this House in which they declared that it was their intention to hold themselves aloof from either party and to take their stand upon independent grounds. Supposing that such Members were to yield to the blandishments of the Government of the day, and were to accept office, notwithstanding their previous declarations, it would only be right that they should return to their constituencies and obtain their sanction to the course they had pursued. It does not seem to me that we are urging a very serious matter at present, because the hon. Member is avowedly only feeling his way by his Motion. The question before the House has nothing to do with the Act of Settlement, and although there are doubtless many anomalies in our Constitution, still it is not by creating fresh anomalies that we can do away with them. I think, therefore, that we should trust to the constituencies to return good lawyers to this House, and that we should not relieve the Law Officers of the Crown from the necessity under which they, in common with the rest of the Ministers, are placed of seeking re-election at the hands of their constituents.


considered that, in conferring office, they should, as a general rule, keep in view the fitness of an individual for the office, and not allow collateral considerations to enter into their choice, and in that way they would be likely to obtain good lawyers.

Motion put, and negatived.