HC Deb 04 March 1936 vol 309 cc1394-400

I desire to bring to your notice, Mr. Speaker, and to the notice of the House a question of Privilege of which I have given you notice. I shall submit that the constitutional and legal position of six out of the seven Under-Secretaries of State who hold seats in this House and sit on the Front Bench, whose names will be known upon reflection to hon. Members, is one of constitutional and legal invalidity. My case will be based on the contention which, I believe, I can substantiate, that there exists a seventh Under-Secretary of State in the person of the Secretary for Overseas Trade, who though he is expressly exempted from the provisions of the Statute to which I shall refer, nevertheless, counts to bring the number of Under-Secretaries in the present Government to the excessive number of seven. Though I regret to be the means of bringing before the House so complicated and troublesome a matter, I make no apology for doing so, because all the history of this House shows that the principle involved is one of vital importance, and the House on previous occasions when it has been raised has ever been ready to insist promptly and rigorously upon the enforcement of the Statutes, to which I shall refer. Hon. Members are aware that there is a body of legislation, beginning with an Act of Queen Anne, which places a restriction upon the number of placemen, as they were then described, who might sit and vote in any Parliament in the House of Commons.

I shall not presume to tell the House how important it is that there shall be some limit on the amount of patronage disposable by the Executive among Members of the House of Commons, nor will it be necessary for me in detail to attempt to disentangle the very complicated legislation which governs this subject; but I think hon. Members would be interested if I began by reminding them that the outstanding precedent upon which I shall rely, although there are more recent precedents, is a case which arose in 1864 when Mr. Disraeli, then the Leader of the Opposition, detected that the Prime Minister of that day had by the appointment of five Under-Secretaries, as the number then was, committed a breach of the law as it then stood, and he succeeded in compelling the Government to right the wrong by a succession of drastic remedies. First, the Prime Minister was compelled to call for the resignation of one of the Under-Secretaries; secondly, a Statute of Indemnity had to be passed; thirdly, a Select Committee had to be appointed to decide whether the excessive Under-Secretary should vacate his seat; and, finally, the House of Commons passed the House of Commons (Vacation of Seats) Act, 1864. which, as amended by subsequent and, cognate Acts of Parliament, is the one which still governs the law on this subject.

That Act permitted four Under-Secretaries. The House will perhaps remember that the Air Force Constitution Act increased the number to five, and the Act of 1925, which split the Colonial Office into two Departments, increased the number permitted to six, which remains the fateful and permitted number of Under-Secretaries under the law and constitution of this land. Not more than six Under-Secretaries, apart from Financial Secretaries and Parliamentary Secretaries, who do not come within the same category, may sit and vote in this House at the same time, and the constitutional and statute law is that if a seventh accepts the office of Under-Secretary of State he is, if not a Member of this House, ineligible for election to it, and if already a Member, his election becomes void. But I think the position which the Prime Minister will have to consider will be a slightly different one, governed by the following provision. If at a General Election more than six are returned their election is not invalidated, but no one of them can sit or vote in the House until the number is brought down to the limit. The penalty for a breach of either of these two provisions is £500 for each day on which the offence has been committed.

I am now ready to address myself to the core of the problem, that is to say, whether the Secretary, Overseas Trade Department, is an Under-Secretary of State within the meaning of the Statutes to which I have drawn attention. In 1918 an Act was passed which, in the exuberance and haste of that year, was rather strangely worded. It read: Notwithstanding anything in any Act it shall be lawful for the Board of Trade and the Secretary of State for Foreign Affairs jointly to appoint a Secretary called the Secretary of the Department of Overseas Trade (Development and Intelligence), who shall discharge the functions both of a Parliamentary Secretary to the Board and a Parliamentary Under-Secretary to the Secretary of State. I think I shall be able to satisfy you, Sir, that though he may be a Secretary, though he may be a Parliamentary Secretary, he is also an Under-Secretary of State. He discharges the functions of an Under-Secretary of State for Foreign Affairs; he has foreign officials serving under him; on those loftier topics which savour of diplomacy, he uses Foreign Office notepaper; he is able to send for Foreign Office officials, and, what is more important, he is in direct official subordination to the Secretary of State for Foreign Affairs. Undoubtedly, therefore, in my contention, he is invested with a status and an authority in the Foreign Office, and if that is not the status of an Under-Secretary of State for Foreign Affairs, I am not able to see what other status it can be. I do not rely on any of those more circumstantial factors such as the Foreign Office List in which he is described openly as an Under-Secretary of State for Foreign Affairs, and other Parliamentary publications in which he is similarly described.

I have here a quotation from a speech which was made by the Attorney-General, who, presumably, will advise the Prime Minister on this point, on 15th July, 1935, when the Lord President of the Council had upon his hands a similar difficulty to that which I am now describing. This is what the Attorney-General said: There is no statutory provision which prohibits the appointment of as many Under-Secretaries of State to any one principal Secretary of State as may be thought proper, but there have, in fact, been no cases of more than one being appointed who may speak and sit and vote in Parliament—with two exceptions. The first exception—I am not sure that it is an exception—was in 1918, when the Secretary to the Department for Overseas Trade was empowered to be appointed jointly by the Secretary of State for Foreign Affairs and the Board of Trade, and it was provided that, if any appointment was made by the President of the Board of Trade and the Secretary of State for Foreign Affairs, the person appointed should perform the functions of Parliamentary Under-Secretary of State in the Foreign Office."—[OFFICIAL REPORT, 15th July, 1935; col. 829, Vol. 304.] The right hon. and learned Gentleman then went on to quote another exception of the same class and referred to the Under-Secretary of State for the Colonies; and he described those—it is true, with an expression of doubt—as the two exceptions coming within the class of Under-Secretaries of State, thereby implying that there was at least a substantial doubt in his mind as to whether they were or were not Under-Secretaries of State.

It will be for you, Sir, in your full authority, to decide, not whether my contention is right or wrong, but whether there is such doubt upon this vital question that, in the exercise of your guardianship of the rights and Privileges of this House, it is necessary for the matter to be referred to an appropriate Committee to report upon it.

I want to address one special word through you, Mr. Speaker, to the Attorney-General. Last year the right hon. and learned Gentleman introduced an Act which made the second Act or Bill which was focused upon the Noble Lord the Member for Dorset, South (Viscount Cranborne)—if indeed he be still the Member for Dorset, South—who at any rate must be agog with excitement at the prospect of being included in a third Bill. I want to read from the speech of the Attorney-General on the Second Reading of that Bill a passage which, I think he will agree, was inspired by similar considerations but does not deal with quite the same point as the Under-Secretary of State Statutes were dealing with. The Attorney-General said this: Some Parliamentarian or some constitutional lawyer may say that the Government have been unduly nervous about this matter, and, if so, I am the nervous person. I hope the House will think that it was the more proper course to lay the matter frankly before it in order that all possible doubts might be removed and that we might be quite sure that the Government will proceed regularly if eventually it is decided to appoint the new Under-Secretary."—[OFFICIAL REPORT, 15th July, 1935; col. 832, Vol. 304.] Those were the prudent words of the right hon. and learned Gentleman. I am now asking him to show himself as receptive to doubts which come to him at the instigation of someone else as if they sprang from his own thought and ingenuity. If he will rise to that plane of impartial consideration of this matter I am convinced that he will be willing to say with me that there are gentlemen on that bench now who have no more right to sit, no more right to vote and no more right to speak in our deliberations than any stranger in the Lobby; and if he is prepared to carry out his full responsibilities in this matter—they are very great responsibilities—I am sure he will not resist my suggestion that the matter should be referred to an appropriate Committee to elucidate. If that is not to be the case, the sooner we bring before us the whole body of this Statute law and expunge it from the Statute Book as useless, the more honest will be the proceedings of this Parliament. I wish to ask you, Mr. Speaker, for permission to move the Motion which I have placed in your hands.


The hon. Member was kind enough to send me his notes upon this question, so that he has given me every assistance in enabling me to come to a decision on the question which he has raised. I have also listened with great care to what he has said to-day. The history of the various Acts dealing with the status of Under-Secretaries of State is an interesting one, but I doubt whether it has very much bearing upon the decision which I am called upon to make on the Motion which the hon. Member has submitted to me.

Before coming to that point I would like to say this: This is a new House of Commons. I think it would, therefore, be as well if I explained to them exactly what I have to decide. It is not for me to decide in a case of this kind as to whether a question of privilege has arisen. The only decision which I have to make is as to whether or not the hon. Member who raises the question has or has not made out a prima facie case for a breach of privilege. After giving the matter all the consideration that I can, both before the hon. Member submitted his Motion and since, and after having listened to every word that he has said, I have come to the conclusion that the hon. Member has not made out a prima facie case.

I do not come to that decision from the legal aspect of the case. That indeed is no function of mine. But I do it simply from the House of Commons point of view. Were I to rule that the hon. Member has made out a prima facie case I should be ruling that Parliament when it passed the 1929 Act was wrong and made a mistake. That I do not propose to do. The House will realise that when Parliament passed the Under-Secretaries of State Act, 1929, indemnifying the seven Under-Secretaries, it took the view that the Secretary to the Department of Overseas Trade did not fall within that disqualification. I have no reason to suppose, nor has anything which the hon. Member has said led me to think otherwise, that Parliament passed this Act inadvertently. I consider also that Parliament deliberately left out the Secretary to the Department of Overseas Trade because in their view he was not an Under-Secretary of State in the true meaning of the term.

I see no reason to rule that Parliament was wrong on that occasion, and in consequence I must come to the conclusion that the hon. Member has not made out a prima facie case that a question of privilege has arisen.


I shall not pursue the matter, Mr. Speaker, as I understand the correct procedure is for your Ruling to be left as it is; but I desire to say that I shall not be content to leave the matter where it stands now, and that on a further suitable occasion I shall endeavour to show that the House of Commons in indemnifying a certain number of Ministers failed to indemnify another Minister who was never even brought into consideration and whose name was certainly not brought before the House. That is not saying that the House of Commons' judgment is being questioned by raising it now. The judgment that is being questioned is the judgment of those who drafted that Act and failed to bring to the notice of the House the existence of a further Minister who really came within the category of an Under-Secretary of State.


The hon. Member must remember that for an Act of Parliament the responsibility does not rest with the draftsman but upon Parliament itself.