HC Deb 31 January 1913 vol 47 cc1739-47
Sir RUFUS ISAACS

I beg to move, "That an humble Address be presented to His Majesty representing that the Select Committee of this House appointed to consider whether Sir Stuart Samuel has vacated his Seat as a Member of this House in consequence of the firm of Samuel Montagu and Company, in which firm he is a partner, having entered into transactions with the Secretary of State for India in Council have reported that they have heard the evidence and considered the documents laid before them, but it appeared that several important and difficult questions of law are involved, and have further reported the relevant facts relating to the said transactions; and praying that His Majesty will refer to the Judicial Committee of the Privy Council for hearing and consideration the question of law whether by reason of the facts so reported the said transactions, or any and which of such transactions, disable Sir Stuart Samuel from sitting and voting in this House, in order that the said Judicial Committee may, after hearing argument on both sides (if necessary), advise His Majesty thereon; and further praying that His Majesty upon receiving the advice of the said Judicial Committee will be pleased to communicate such advice to this House in order that this House may take such action as seems to it proper in the circumstances."

The Motion which stands in my name on the Paper deals with a matter which I think cannot be open to much discussion. What it proposes is to put into active shape the unanimous recommendation of the Select Committee of this House which was appointed to consider the case of the hon. Baronet the Member for the White-chapel Division of the Tower Hamlets. What we propose now is that this House shall present an Address to His Majesty stating what is the point, substantially that the Committee was not able to arrive at a unanimous decision, that there were difficult and complicated points of law involved, which I think will be apparent to every Member of the House, and that upon an agreed statement of the facts of that Committee His Majesty would be pleased to request the Judicial Committee to advise him upon it. That has been done in pursuance of the Statute, now well known, under which the King is entitled to take the advice of the Judicial Committee of the Privy Council. This will give us the quickest way of getting an authoritative decision from judges who are the highest in the land. Instead of going through the process of proceeding from one Court to another, we will be able straightway to get the advice of the highest judges in the country, which will be given to His Majesty and then reported to us. As a result of the Address that is presented, the House will then consider what steps it would take upon the advice which the Judicial Committee will have presented to His Majesty. I do not propose to take up any time on the subject, because, when we have the unanimous decision of the Committee, after a number of sittings, that this is the proper course to take, I should hardly think that this House is in any doubt about the matter.

Sir WILLIAM ANSON

I do not rise with any intention of opposing the Motion which the Attorney-General has laid before us, but I cannot help thinking that the Motion should not be accepted quite as a matter of course, nor is it a way out of the difficulty we should consider without endeavouring to lay down some principle on which these matters should be dealt with in future. The procedure is not only novel, but it is somewhat circuitous. We are to ask His Majesty to refer to the Judicial Committee of the Privy Council a matter on which we do not feel ourselves competent to form an adequate opinion, and we are then to ask His Majesty to communicate to us the opinion expressed to him by the Privy Council in order that we may then take such action as we think proper. I wish to point out that the procedure is not only circuitous, but that it is novel, and deals with a matter on which this House has always been particularly sensitive—I mean matters with regard to its own composition and the abilities or disabilities which may attach to membership of the House. Experience, I think, in these matters has shown us that there are some parts of this subject with which this House is fully competent to deal, but that there are other questions, particularly questions of the application of law to fact, with which this House has from time to time endeavoured to deal, but with no great measure of success. I would remind the House that in the matter of disputed returns we contested with the Crown the right of this House to determine those disputed returns. In the case of vacant seats the writ was issued from and returnable to Chancery. The Crown of former days, with some show of reason, alleged that the question raised on the validity of the returns should be determined either in the Chancery Court or one of the King's Courts. We fought that issue successfully, and for about 250 years we endeavoured, at first very badly, and latterly indifferently, to decide for ourselves this question of disputed returns.

Eventually we gave the matter up and handed it over to the Courts, and under the Parliamentary Elections Act of 1868 we asked the Courts of Law what we are now asking His Majesty, through the agency of the Privy Council, to do, namely, to state to us what has been the legal effect of certain transactions on the rights of a candidate to appear as a Member of this House. But the question of disqualification is a matter in which our rights have never been disputed, and we have always claimed for ourselves the right to determine what constitutes disability of membership of this House, and when and where do those disabilities exist. I do not think our record in that matter has been altogether satisfactory. For a long time our dealings with this question of disability were very vague until it was taken up and determined by Statute law. It was, I think, in the first years of last century, that it was finally determined and by Statute, in consequence of the uncertainty of a report of a Select Committee, that the clergy of the Church of England could not sit in this House. There was also a question of a Member who had gone out of his mind, in which the House could come to no satisfactory conclusion. Not only was the House vague and uncertain in its determination of disability, but on occasion, extremely harsh and arbitrary in the imposition of disqualification. From the Act of Union until 1833 the eldest son of a Scottish peer was not allowed on our Resolution to sit in this House, although the eldest son of an English peer might. There were similar cases in the eighteenth century, and the house will recollect in the Wilkes case, how a Minister asserted, and this House resolved, that a sentence of expulsion disqualified a man from re-election. We had eventually, owing to the stress of public opinion, to revoke the Resolution which had been passed in the Wilkes case. It is very important in this matter that we should not go wrong. If one looks at the argument addressed by Lord Mansfield to the House of Lords in the Wilkes case, and at the judgment of Mr. Justice Stephen in the Bradlaugh case, it will be seen that in both cases the Courts did not feel that they could interfere with Resolutions which we passed as regards the internal constitution of this body and with what they regard as our own domestic affairs, which we have the right to settle for ourselves, and which no Court can properly look into or interfere with. That is why I think that in this matter of disqualification we ought to take care that we do not go wrong in matters of law. I think experience shows that in matters of fact a Select Committee is a very suitable body; but, in matters of law, experience equally shows that a Select Committee is apt either to lead the House astray or to take a great deal of time to decide a matter which might be decided more promptly in a Court of Law. This particular disqualification, or indeed any disqualification which existed at the time when the candidate offered himself for election, might be determined by a Court of Law if a petition were laid in due course and in due time.

Let us recall cases in which this House has determined matters of fact. Take the case of Sir Sydney Waterlow. That was a case in which there was doubtless a contract with the Government. The only question for the Select Committee to decide was whether Sir Sydney Waterlow was a partner at the time of his return. The Select Committee found on that question of fact without the smallest difficulty. Take the case of Lord Selborne. Lord Selborne claimed that he was entitled to remain in this House until a writ had been issued calling him to the other House. A Select Committee was appointed, and found as a matter of fact that Lord Selborne had succeeded to a peerage. The House then decided that they needed no further evidence; the finding on the fact was sufficient. Take a case where a Select Committee dealt with a question of law or a mixed question of law and fact. Take the Rothschild case. Anyone who reads that case will see that an extremely powerful and capable Committee was really befooled by the subtle argument of the late Lord Bram-well. Take the Bradlaugh case. There was a difficult point. A Select Committee by a casting vote of the Chairman determined that Mr. Bradlaugh might not affirm, and the House would not allow him to take the oath. It was referred to another Select Committee to see whether he could take the oath. The Select Committee said that Mr. Bradlaugh could not take the oath, but that on the whole he might be allowed to affirm, and the House, after some days' discussion, allowed Mr. Bradlaugh to affirm. He was sued successfully in the Courts for penalties. The House wasted a good deal of time over the matter; a strong Government was shaken to its foundations; and on the whole I think the House of Commons did not come very creditably out of the Bradlaugh case.

I think that these cases show that in matters of fact a Select Committee is a useful body, but that in questions of law it would be better to get a decision from a tribunal whose capacity and fairness would be unquestioned. We must admit that there is a serious risk of mistake in the Select Committee endeavouring to decide this question of qualification. A mistake which, in fact, did occur would not be remedial in a Court of Law. But it is very difficult where questions of law are likely to be involved for any mem- ber of the Committee, however fair-minded he may be, to approach the matter with the dry light of a practically clear, unbiassed intellect. I confess myself, questions of law being equally balanced, I am not quite sure that I would trust my own judicial capacity in a question of political interest. I am not quite sure I should not be unconsciously biassed one way or the other in the decision I gave. Anyhow, here we have a case, in which as the hon. and learned Gentleman pointed out and as my hon. Friend beside me reminds me, the matter was only argued on one side. That is what I think happened in the Rothschild case. Where only one set of legal arguments were presented, and where those concerned are necessarily affected by political feeling one way or the other, then, I venture to think that a Select Committee is not the best tribunal. That being so, I welcome the decision of the Attorney-General, and I welcome the action of the Government in the matter.

The only regret that I must express is that they have taken so long to come to this decision. The matter was debated at some length, I think at the end of November, and my Noble Friends, the Member for Hitchin, and the Member for Chorley, urged very strongly that a Select Committee was not a very good tribunal for this purpose, especially if constituted not in reference to the legal capacity of its members in particular cases, but with a view to the representation of say, England, Scotland. Ireland, and the Labour party. This procedure was suggested, and I only regret that Whitechapel should so long have to remain without the advantage of the services of its Member in this House. I do not condole with the hon. Member for Whitechapel who has been relieved from mournful peregrinations through the Lobbies, and has been enjoying himself in a better climate. But I do feel that the constituency may have some cause of complaint, and that the time of fully-occupied Members of this House has been spent in listening to arguments which have induced the Government to appeal to this House to find some other tribunal. I cannot help thinking that the Government would have been better advised to do at once what we are proposing to do now, and refer this matter to a tribunal whose opinion I have no doubt will be satisfactory to all parties concerned.

Sir JOHN JARDINE

I would like to say that I heartily approve of the course of the Government in this matter. Apparently the difficulty consists in the construction of Statutes that is the construction of one Statute as depending upon the words of another. The reason why I rise in this matter is that the interests of India are considerably involved, as this is a case where the contract is said to have been made by the Secretary of State for India in Council. A case of that sort may occur again as regards India, and similar cases may occur as regards the Colonies, and possibly other Departments. It is, therefore, well that it should be settled by a tribunal where none of those possible political prejudices or bias such as the hon. Gentleman opposite mentioned might prevail. I think it is very advisable that one of the highest tribunals of the Empire should decide a matter of this kind, and it is very proper that that tribunal should be the Privy Council, seeing that the people of India are well acquainted with that tribunal, which is the Court of Appeal for the Indian Empire. I do not think a better plan could have been made or a better tribunal chosen for the decision of this matter.

Mr. BOOTH

I do not wish to challenge this Resolution or to traverse the statement of the right hon. Gentleman the Attorney-General, but I have a few questions to ask on which I should like some information. I hope my right hon. Friends the Law Officers will not think that. I am in any way personal when I ask whether this course will lead to any considerable expense?

Sir RUFUS ISAACS

I will answer that at once. What it will lead to is this: Necessarily acting upon the Report of the Select Committee, I shall appoint counsel to represent the other side, as hitherto there has been only one view presented by counsel to the Select Committee. When the matter comes before the Judicial Committee of the Privy Council it will be argued by counsel on both sides, but not by the Law Officers.

Mr. BOOTH

That is what I wanted to elicit. I am sure the present Law Officers will not take it unkindly if I say that I think we would be entitled to object if they had recommended a policy which meant that they themselves were to represent the litigants in the case and receive considerable fees for attendance before the Privy Council. I am very glad they are not, and I am perfectly satisfied. My second point is suggested by the hon. and learned Member for Bassetlaw (Mr. Hume-Williams), who wanted to know whether the Select Committee has ended its labours or whether it will be reappointed for the new Session. I believe at the end of the Session all the Select Committee necessarily go out of office, but it rests with them if their labours are not finished to recommend their reappointment. We shall not get the Report of the Judicial Committee of the Privy Council before this Session terminates, and I therefore would like to know whether the Select Committee have already decided to recommend their reappointment or whether it is considered that they need not meet again, and that the decision of the Judicial Committee should be considered by this House instead of by the Select Committee.

Sir F. BANBURY

I beg to move to leave out the words "that several important and difficult questions of law are involved," and to insert instead thereof the words "impossible to arrive at a unanimous decision." I have taken those words from the Report of the Select Committee, which says:— But upon the question referred to the Committee a unanimous decision appears impossible. Everybody will recognise that in referring this question to the Privy Council we should be careful to make the reference coincide with the Report of the Select Committee. I have no doubt these words were omitted inadvertently.

Colonel LOCKWOOD

I beg leave to-second the Amendment.

Sir RUFUS ISAACS

I do not think those words are necessary, but I agree that it is just as well to have them in. I cannot accept the Amendment quite in the form the hon. Baronet has moved it, but if he will move after the word "involved" to insert the words "and that it was impossible to arrive at a unanimous decision," I will accept them.

Sir F. BANBURY

I will accept those words, and I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Sir F. BANBURY

I beg to move, after the word "involved" ["questions of law are involved"],'to insert the words" and that it was impossible to arrive at a unanimous decision."

Amendment agreed to.

Question, as amended, put, and agreed to.

Resolved, "That an humble Address be presented to His Majesty representing that the Select Committee of this House appointed to consider whether Sir Stuart Samuel has vacated his Seat as a Member of this House in consequence of the firm of Samuel Montagu and Company, in which firm he is a partner, having entered into transactions with the Secretary of State for India in Council have reported that they have heard the evidence and considered the documents laid before them, but it appeared that several important and difficult questions of Law are involved, and that it was impossible to arrive at a unanimous decision, and have further reported the relevant facts relating to the said transactions; and praying that His Majesty will refer to the Judicial Committee of the Privy Council for hearing and consideration the question of Law whether by reason of the facts so reported the said transactions, or any and which of such transactions, disable Sir Stuart Samuel from sitting and voting in this House, in order that the said Judicial Committee may, after hearing argument on both sides (if necessary), advise His Majesty thereon; and further praying that His Majesty upon receiving the advice of the said Judicial Committee will be pleased to communicate such advice to this House in order that this House may take such action as seems to it proper in the circumstances."

The Orders for the remaining Government business were read, and postponed.

Whereupon Mr. SPEAKER, pursuant to the Order of the House of 14th October, proposed the Question, "That this House do now adjourn."