CLAUSE 2.—(Right of Certain Ministers to Sit in the House of Commons.) (Hansard, 18 February 1919)

Lieutenant-Colonel GUINNESS
I beg to move, after the word "council" ["If the Privy Council"], to insert the words 805 "within nine months from the declaration of the poll at the General Election."
In view of the decision which the House come to just now it cannot be necessary to say many words in support of this parallel Amendment. It is obviously just as necessary to impose the duty of consulting the electors in the case of those taking Government office without portfolio as in all other cases mentioned in this Bill. We do not want these appointments to become a refuge for the destitute. We do not want the Government in that, way to be enabled to find employment for a discredited politician, who, for one reason or another, cannot with any prospect of success face a by-election. I therefore hope that the Government will accept this Amendment, which really carries out the principle of the previous Clause.

§ Sir G. HEWART
My hon. and gallant Friend is not of course aware of the Amendment I propose to move in consequence of the limitations put in the first Clause of this Bill, but when he hears the terms of the Amendment which I intend to propose at the conclusion of this Clause he will, I hope, withdraw his Amendment. I propose to move, after the word "and" ["House of Parliament, and"], to insert the words "where the appointment was made before the passing of this Act"; it will then read, "And where the appointment was made before the passing of this Act he shall not, if at the time of his appointment he was a Member of this House, be deemed to have vacated his seat." If the hon. and gallant Member withdraws his Amendment, and if the Amendment I have just indicated is accepted the effect will be that if a person who is a Member of the House accepts one of the offices referred to in Clause 2 he will be in no better position than that of a Member who accepts an office dealt with in Clause 1.

§ Sir D. MACLEAN
Before the Amendment is withdrawn, I think the Committee is entitled to some explanation of this Clause. Several questions were asked yesterday as to the meaning of the Clause and who were the Ministers to whom it referred; also what necessity there was for adding additional Ministers without portfolio to the Executive. These are large questions of policy on which the Committee is entitled to have an explanation before we go any further, and I will reserve any remarks I may have to make 806 until the Attorney-General has been kind enough to tell us what he has to say on those points.

§ The CHAIRMAN
The right hon. and learned Gentleman was right in giving notice of his Amendment to the Clause as a whole, but I think we had better not mix it up with the particular Amendment now before the Committee. Let us deal with the machinery of the Clause first and get it out of the way. Then we can deal with the Clause as a whole.

§ Sir D. MACLEAN
I know by past experience how sound your ruling is, but I suggest, by your leave, that it would be convenient to the Committee, before we decide on the machinery, to know what the Clause is for.

Lieutenant-Colonel GUINNESS
Before accepting the suggestion that I should withdraw my Amendment, may I say I think we might have a little more definite information as to what the Government Amendment means. It sounded to me, when the right hon. and learned Gentleman read it out, that it dealt with rather a different point and that it made the Clause retrospective. It does not appear to deal with the nine months' interval contemplated by my Amendment. Still, if the right hon. and learned Gentleman satisfies me that it does rope in every Privy Councillor appointed to an office of profit under the Crown, without portfolio, after the lapse of an interval of nine months from the declaration of the poll at the General Election, I am prepared to withdraw my Amendment But I am rather afraid the Government Amendment is slightly different.

Major WOOD
Will the right hon. and learned Gentleman, when he replies, direct his remarks particularly to the point raised by my hon. and gallant Friend? I do not profess to be skilled in the law, and am always rather mistrustful when I am invited by lawyers to accept an Amendment across, the floor of the House. If the right hon. and learned Gentleman can reassure my hon. and gallant Friend on this point, and it is one on which the House generally is anxious, that these words will have the effect of securing that all Members who may be appointed to any office without portfolio shall fall under the same law as that which we have decided upon in Clause 1, I think we shall then be able to accept the Government proposal.

§ Major HILLS
If we accept the Amendment which the Attorney-General has indicated, why do we want Clause 2 at all? As I understand the right hon. Gentleman, all Ministers, including those without portfolio, are to come under Clause 1, and the only Ministers who are excepted are those who are appointed within nine months of the General Election. The present Ministers without portfolio are to come within that exception, but all future Ministers are to come within the general rule of Clause 1. If that is so, surely the simplest plan would be to omit Clause 2 altogether, and leave Ministers who are paid a salary, but have no office, to fall under the general rule laid down under Clause 1?

§ Sir D. MACLEAN
It is quite obvious that the Committee is in a real difficulty, because no explanation was given on the Second Reading, although several requests were made for one, as to the meaning of this Clause. But by the ruling of the Chair, the Attorney-General is rather shut out from giving us information which I think the Committee would like to have, and I do most respectfully suggest that if it is the wish of the Committee, you should kindly relax your vigilance on this point while we are told what the Clause is really intended to do. I think it would expedite the passing of the Bill and enable us the sooner to get on with other very important business.

§ The CHAIRMAN
The Attorney-General has very properly indicated the Amendment which he proposes to move later on as an alternative to the one now before the Committee. I must confess that explanation is needed both as to the effect of it and as to the purposes of the Clause, and I think we had better have it now.

§ Sir F. BANBURY
What is the position under the new Clause? It is there stated that only three Members shall be thus elected. Does the new proposal extend the privilege to more than three?

§ Sir G. HEWART
With your permission, and without any breach of order either in the letter or in the spirit, I think I can explain the meaning of this Clause with special reference to the Amendment which has been proposed. If hon. Members will kindly look at the Bill they will see that the first Clause deals with quite a different set of offices from those mentioned in the second Clause. The 808 first deals with cases of Ministers who hold offices which a man may hold and nevertheless be a Member of this House. It deals with offices, the holding of which does not disqualify men from membership of the House, but requires that they shall vacate their seats and seek re-election on appointment to the offices. The second Clause is the antithesis of the first. It deals with offices which do disqualify, and which in the absence of a Statute would make it impossible for the holder to sit in this House at all—

§ Mr. BOTTOMLEY
Will you give us an example?

§ Sir G. HEWART
I shall come to that later on. The second Clause provides that a member of the Privy Council who has been or is appointed to be a Minister of the Crown at a salary without any other office being assigned to him, shall not by reason thereof be disqualified from sitting in this House. Who are these Ministers? They are Ministers who, in popular phraseology, are described as Ministers without portfolio, and the effect of the Clause is to make it possible for Members not exceeding three in number to be Ministers without portfolio. Indeed, I think I could drop the Amendment which I myself have suggested and at the same time suggest to my hon. and gallant Friend to withdraw his Amendment. Clause 1 has now been amended and the effect of Clause 2 will simply be to remove the disqualification from the Minister without portfolio, and will place him on the same plane with a Minister who holds office and is sitting in this House.

§ Sir D. MACLEAN
I should like to be quite clear upon this point. Does this Clause enable such a person as, say, a permanent Secretary of State, who is now disqualified from sitting in this House by Statute, to become a Member of this House and a member of the Executive? If that is so, it certainly is one of the most sweeping innovations of the ancient practice of this House we have had for many a long day? Is that intended?

§ Mr. BONAR LAW
No; every new office is in the same position.

§ Sir D. MACLEAN
Let me give a concrete case. Are we enabling by this Clause the permanent Secretary of State for Foreign Affairs to hold office under the Crown?

§ Sir D. MACLEAN
Then let me ask, Is any specific person now holding office without portfolio intended to come under this Clause?

§ Mr. BONAR LAW
The right hon. Gentleman the Member for the Gorbals Division of Glasgow (Mr. Barnes).

§ Sir D. MACLEAN
The Committee is entitled to know what position or difficulty he is in that requires some Statute to put him right again. May I ask, is this Clause intended to give such a power as this: that any Member may be given an office without portfolio in the Government and thereby come under the operation of this Clause? I want to know if that is the intention, and, if it is, what particular policy or principle or reason is moving the Government to propose this Clause?

§ Mr. BONAR LAW
Of course, part of the points raised by my right hon. Friend are technical, and perhaps rather difficult for the Committee to understand, although I thought they had been made pretty plain by my right hon. Friend the Attorney-General. As regards any new principle, there is nothing of the kind intended nor anything of the kind intended under the Bill. The position is this: As I explained yesterday, this Statute was originally passed to protect the House of Commons against the Crown. One of the methods by which the Crown carried out its influence, very often against the majority of the House of Commons—

§ Colonel WEDGWOOD
The Crown was the Government.

§ Mr. BONAR LAW
The way in which it carried out its power of influencing the House of Commons was to give a great many paid offices to Members of the House of Commons. Under this Act the law would be that certain offices could be filled by Members of the House of Commons, but in that case they must seek re-election. It was also laid down as part of the same fight against the prerogative of the Crown that no new offices of any kind, unless there were a special Statute to that effect, could be held by any Members of the House of Commons. That is the position. It followed, when the principle was adopted during the War of paying a salary to a Member of the War Cabinet who wais not a member of the House of Commons, that it was a new office, and, technically, 810 the man holding it had no right to sit in the House of Commons. All that this Bill does is to give the Government of the day, with the consent of the House of Commons, the power to appoint up to three Members of the Cabinet without portfolio, who will be in the same position as every other Minister and liable to seek re-election as any other Minister. We are not asking anything new at all. At this moment, so far as I know, there is no immediate intention of appointing any other Ministers of that kind, but I have had experience now of two Governments in exceptional circumstances, and the House, I am sure, recognises on the whole that now, as during the War, the pressure of work is far greater than in normal times, and the pressure on Ministers is far greater than in normal times, and it might be found necessary to add another member of the Cabinet without portfolio in order to enable us to get the work done. All that the Bill does is to make the position the same for such a Minister as for any other Minister who is a member of the Government—that is to say, for a period of nine months after the election he would not have to seek re-election from his constituents. I would point out, further, that these Ministers cannot be paid a salary without the House of Commons giving their permission by vote.

§ Lord HUGH CECIL
I am entirely in agreement with my right hon. Friend about the merits, but I should have thought the wording of the Clause was a little subject to criticism. I should be interested to know whether there is any legal definition of "a Minister of the Crown," because everything appears to turn upon that. For example, my right hon. Friend told us that a Minister without portfolio, having been given a salary, is deemed to be the holder of an office within the meaning of the Act of Anne. If he is the holder of an office, why is not any member of the Judicial Committee of the Privy Council equally the holder of an office? It is to be assumed that a person is paid a salary and that he is a servant of the Crown, whether his function is judicial or executive? I do not know that there is any great objection to doing this, but I submit that the Clause might enable judicial members of the Privy Council to sit in the House. They would be indistinguishable in the contemplation of the law from a Minister without office. I will accept the correction 811 of the Attorney-General upon that point, but I would ask whether it would not make the Bill more workable if some definition of a Minister of the Crown were added before the Bill finally passes into law?

§ Major HILLS
I accept the assurance of the right hon. Gentleman that the intention of this Clauseis that where one of these non-portfolio Ministers is appointed nine months after a General Election he has to stand for re-election. The point upon which I wish to be informed is whether that is the effect of the Clause as it stands. I speak with all submission in the presence of the Attorney-General, but I suggest that Clause 2 does two things. The first part says that a non-portfolio Minister can sit in this House—that is a quite distinct and definite thing—while the last sentence in the Clause says: He shall not, if at the time of his appointment he was a Member of that House, be deemed to have vacated his seat. Surely those words mean that at no time need he stand for re-election if he comes within the special category of Clause 2. I would direct the attention of my right hon. and learned Friend to the words of Clause 1, where the words, "vacate his seat" are used to describe a Minister who has to stand for re-election. Therefore, if a man who vacates his seat under Clause 1 is a Minister who has to stand for re-election, the Minister who does not vacate his seat under Clause 2 has not got to stand for re-election. I believe we are all agreed about the merits—and I speak with all deference in the presence of the much greater legal authority of the Attorney-General—but surely the last sentence does a different thing from the first words of Clause 2, and does relieve a Minister without portfolio from standing for re-election at whatever time he was appointed, even nine months after a General Election.

§ Sir G. HEWART
I can assure my hon. Friend (Major Hills) that he is under a misapprehension as to the effect of the latter half of Clause 2; but it is immaterial, because I have already indicated that I am ready to abandon that part altogether, so as to make the Clause stop at the words Commons House of Parliament. I therefore need not at this stage go into what was the particular meaning those words might have added to the Clause. With regard to the question asked by my 812 Noble Friend (Lord H. Cecil), I am not aware that there is, as a term of art, a definition of "a Minister of the Crown." It may be that there is, but I am not aware at the moment that there is. But there is a considerable difference between a Minister of the Crown as described in Clause 2 and such a person as he mentioned, namely, a member of the Judicial Committee of the Privy Council. I should have thought that a member of the Judicial Committee of the Privy Council was a person exercising high judicial office. It may be that it would be possible to define in a more accurate way precisely what the term means. What I would suggest is that the scope of the Clause has already been explained by the Leader of the House and there is no doubt as to what its meaning is. If the Clause is now accepted, we will endeavour between now and the Report stage, and will put upon the Paper if we have time, a more precise formula which would indicate what is meant.

§ Mr. SEDDON
Is the Attorney-General right in saying that this proposal for a Minister without portfolio is to apply to only one Member of this House—the right hon. Gentleman the Member for the Gorbals Division (Mr. Barnes)?

§ Sir G. HEWART
Do not let there be any mistake. There is one Minister without portfolio already appointed. This Clause, with its proviso, will permit the appointment of two others.

§ Mr. SEDDON
The Leader of the House stated that the Government had no intention for the moment of appointing the other two. I want to know why there should be three. If it is the intention to cover only one, the word "three" is not required, unless the Government have the intention of placing two other right hon. Gentlemen in the same position as the right hon. Gentleman for the Gorbals Division.

§ Mr. MACMASTER
I understand that the latter part of Clause 2, namely, the words, and he shall not, if at the time of his appointment he was a Member of that House, be deemed to have vacated his seat, are to be omitted. If so, the previous portion of the Clause has a rational meaning, and, if these words had been permitted to stand, I have no doubt whatever that they would have had the effect my hon. and gallant Friend (Major Hills) pointed out.

Lieutenant-Colonel GUINNESS
In withdrawing my Amendment, which I can only do on the assurance of the right hon. Gentleman that he will reconsider the matter before the Report stage, I want to make our position quite clear; because, if I withdraw my Amendment, and the right hon. Gentleman withdraws the manuscript Amendment he has handed in, I shall not attain the object for which I moved. The right hon. Gentleman proposes that the Sub-section shall be cut short in the third line at "Parliament." That will not secure our object at all, because what we want to do is to secure that these Ministers without portfolios have to submit themselves for re-election.

§ Sir G. HEWART
I think I can make it plain. The second Clause is not dealing with re-election, but with disqualification. The effect will be, if the words are omitted, that a Member may become a Minister without portfolio without being disqualified. The rule which will apply to re-election will be the rule in Clause 1, and it would apply no less to him than to another.

§ Major E. WOOD
May I put one small point for the right hon. Gentleman's consideration? He made it clear that the position of a Minister without portfolio would fall technically under the description of "office of profit," referred to in Clause 1.

§ Sir G. HEWART
That question has been raised before and has been answered as I answer it now. It is an office carrying a salary and an office of profit.

§ Mr. SEDDON
Will the right hon Gentleman satisfy my curiosity as to why the figure three has been inserted?

§ Mr. BONAR LAW
I did my best to satisfy the curiosity of my hon. Friend if he was in the House. I said that at this moment there is no intention of appointing any other Minister to that kind of office, but I added that the work of Ministers, so far as my experience goes, is carried on under greater pressure than at any time during the War. We therefore ask for the power to appoint such Ministers and that is all. I hope the hon. Member is satisfied.

§ Mr. CLYNES
I beg to move, to leave out the word "three" ["not more than three Ministers"] and to insert instead thereof the word "one."
The effect of this would be to limit the number of Ministers without portfolio to one. I have listened to the statements of the right hon. Gentleman, but this may be an opportunity for a fuller statement as to why there is any particular reason for naming this number three more than any other number. What special charm is there in this particular figure? What is it that causes them to put down this figure instead of another? I think it is true that Ministers are worked very hard indeed in these days. So far as I am able to form an opinion, that is a very well-grounded statement, but I conclude, also from some observations, that some Ministers are worked very much harder than others, and I think it highly undesirable to extend this practice of creating Ministers without definite Departmental duties for which they can be responsible to this House in the ordinary way. In view of the undesirability of that practice, I move this Amendment, if for no other reason than to give the Leader of the House an opportunity more fully to state what particular cause there is for proposing this figure.

§ Mr. BONAR LAW
I hope my right hon. Friend will not think it necessary to press this Amendment, because I really do not think he should ask the Government to agree to it. I have said quite clearly that at this moment there is no intention of appointing another Minister of that kind, and the reason we put "three" rather than any other number is that we had the feeling that the House was entitled to say there must be a limit to the number of Cabinet Ministers of that kind who are created. We recognise just as much as the House that it is not a desirable kind of arrangement if the work can be done in any other way, but it really is not unreasonable to give the Government as much discretion as is involved in this number. Perhaps the Committee will understand our unwillingness to give way on this point when I point out that I myself should be filling the position of Cabinet Minister without portfolio but for the reason that if I had that office I should not be able to come to the House till the Bill had been passed. It really is the fact that the work now—I can hardly explain why it should be so, but it is so—of Ministers is, if anything, more 815 pressing than it was at any time during the War. The result of that may be that we shall find it impossible to get the co-ordinating work of the Cabinet, which is done by individual Ministers, properly done unless there are additional Ministers who have nothing else to do except attend to that kind of work. Surely it is not asking the Committee too much to give such amount of confidence in the Government as to allow us to have a right to appoint that number of Ministers of this kind, especially as they cannot be paid a salary except by a vote of the House of Commons. I hope therefore the Amendment will not be pressed.

§ Sir D. MACLEAN
The right hon. Gentleman's plea with regard to national needs, of course, has very great weight with us, but I wish to place it on record that I regard the power contained in this Clause of creating new Ministers without portfolio, without a very definite position, as one which requires the exercise of the very greatest care, and one which I regard with very considerable apprehension.