§ Order for Second Reading read.
§ 11.10 a.m.
§ The Attorney-General (Sir Hartley Shawcross)
I beg to move, "That the Bill be now read a Second time." I apprehend that in the course of this Session hon. Members will have to consider a great many Bills; a number of them will be long, some of them may be complicated, and one or two conceivably may give rise to some small degree of controversy on the part of one or two hon. Members opposite who have not yet fully appreciated their beneficent purpose. I am the more fortunate in being able to move the Second Reading of this little Bill which is at once very short, very simple and, I hope, entirely non-controversial.
Hon. Members will realise that the Bill is the result of the Report of the Select Committee which was appointed at the beginning of the Session to inquire into the validity of the Elections for the Coat-bridge Division of Lanark and the Spring-burn Division of Glasgow. The circumstances were these. Under an Act of Parliament which operates only in Scotland, the Rent of Furnished Houses Control (Scotland) Act, 1943, there is provision for the establishment of tribunals of lay persons to assist the Secretary of State for Scotland in the administration of that Act and, under the Statute, there is a power in the Secretary of State to pay to the persons he appoints to these tribunals such sum by way of remuneration and expenses as, with the consent of the Treasury, he may think fit. The then Secretary of State decided to take advantage of the considerable public experience and local knowledge of Mrs. Jean Mann and Mr. John Forman in this capacity and he appointed each of them to be members of tribunals constituted under the Act. Each of them appears to have been paid on the occasions on which they sat as members of these tribunals—occasions which seem to have been very infrequent—the perhaps not extravagant sum of 31s. 6d. in respect of each day, together with some quite trivial amount for actual travelling expenses.
565 The Select Committee inquiring into the matter came to the conclusion—and, if I may say so, there can be little doubt that their conclusion was correct—that the holding of these appointments brought Mrs. Mann and Mr. Forman within the scope of the Succession to the Crown Act of 1707, which, as hon. Members know, provided that the holding of certain offices of profit created after that time should be a disqualification from election or from sitting in the House and should give rise to a substantial penalty on the part of persons who, thus disqualified, did in fact attend and vote. The Select Committee, however, were satisfied that both in the case of Mrs. Mann—who was elected as the Member for the Coatbridge Division of Lanark—and in the case of Mr. Forman—who was elected as the Member for the Springburn Division of Glasgow—they had acted completely inadvertently and in good faith, and they recommended that legislation should be introduced validating the two Elections and relieving Mrs. Mann and Mr. Forman from the penalty they had otherwise incurred.
That eminently sensible recommendation we accept, and I think it is only necessary for me to say this: although there are precedents for relieving hon. Members who have incurred penalties under the Succession to the Crown Act of those penalties, there seems to be no case in which an actual Election has been validated. But there are cases in which the disqualification incurred by the acceptance of an office of profit in the course of an existing membership has been set aside by Parliamentary action of this kind. There appears to be no sort of distinction, in principle, between that kind of case and this case. It is, of course, if the greatest importance that nothing should be done to suggest that Parliament will normally intervene in order to validate an irregular Election, but the circumstances here are quite exceptional. There is the finding of the Select Committee that the disqualification was incurred completely inadvertently. There is the fact that the time has now long passed for the presentation of an Election Petition, and that although the matter was attended by some publicity at the time no elector in Coatbridge or Springburn has thought it necessary to challenge the validity of the Election, or seek for the penalties that arise. In these circum- 566 stances, the House will probably feel that there is no justification for imposing either on the electors of those two divisions, or upon Mrs. Mann or Mr. Forman, the burden of a second Election which, one might assume, would be likely to lead to exactly the same result as the first one. I ask the House to say that we ought not to deprive ourselves any longer of the counsel or assistance of this lady or this gentleman.
There is another matter, to which think it would be right for me to refer. The Select Committee, in their report, drew attention to the Report of another Select Committee made so long ago as 1941 which had inquired into the whole position in regard to the holding of offices of profit under the Crown, and which had recommended the introduction of legislation simplifying and clarifying the position. I, personally, appreciate very keenly the importance of the recommendations made by that Committee, because I myself was very nearly enmeshed in the trap which arises under this somewhat ancient Statute. I recently held an appointment as Chairman of the Catering Wages Commission, and under the Statute under which that appointment was made, there is power to pay a salary to the Chairman. As it happens, I was not paid a penny but two days before the Election my attention was drawn to the fact that the mere holding of this office might constitute the holding of an office of profit under the Crown. By the grace of the legal adviser of one of the Departments, I was able to effect a hasty, if undignified, retirement from that office just before I presented myself to the electorate in my constituency. Hon. Members will realise therefore that I speak with sincerity when I say that we shall give the most sympathetic consideration to the recommendation of the Select Committee and to the report of the previous Committee in order that we may see whether later, when Parliamentary time permits, we can introduce legislation to carry out those recommendations.
§ 11.20 a.m.
§ Mr. J. S. C. Reid (Glasgow, Hillhead)
I think I am right in saying that this is the first occasion on which the learned Attorney-General has had to make a speech of any length in this House. We had, of course, high expectations of him in view of the office which he holds, and his own reputation, and I want to say 567 that those expectations have been amply fulfilled and that we look forward to the no doubt frequent occasions on which he will have to come to the assistance of his colleagues.
We must start our consideration of this Bill with two facts in mind. First, that it is undoubted that these elections were invalid and, second, that there is no precedent for an Act of Parliament declaring a person to be a Member of this House who has not been validly elected to be a Member. It is true that there are precedents which enabled those who had inadvertently incurred disqualification during their membership, to continue to be Members without re-election, but I do not altogether agree with the Attorney-General that there is no distinction. Therefore, we must consider first, whether it is very proper to take so drastic a step. I never much like absolute rules that have no exceptions, and I do not think there should be an absolute rule here. But I think any infringement of the general rule should be most carefully examined, that the burden of proof which lies on any one who seeks exemption from the rule is a very heavy one, and that we must look narrowly at the circumstances to make sure that this is such an exceptional case that we can properly pass it.
It is of the greatest importance to maintain the general law while it exists as at present. It is true that the law is involved, and while, in general, a mistake in the law is no excuse in this country, perhaps that rule cannot be applied quite so stringently in this case, looking to the great difficulty which the Select Committee in 1941 had in finding out what was the existing law and practice and, indeed, looking to the experience of the Attorney-General himself. It is the case that Mrs. Mann and Mr. Forman were aware of the existence of this rule, but they seem to have taken it into their heads that this was a case which, on any reasonable principle, could not fall under the rule, and to have left it at that. It is extremely dangerous for anybody dealing with an old and technical rule to approach the question in that way, that because commonsense says that the rule should not apply, therefore it does not. I think it was unfortunate, to say the least, that Mrs. Mann and Mr. Forman dealt with the 568 matter in that somewhat short-handed way. After all, they had the resources of a great party behind them, and it would not have been in the least difficult for them, knowing the existence of this rule, to find out the true interpretation. They did not do so. Of course, it was purely inadvertences there is no question of bad faith or anything of that kind, and I think it was, perhaps, a venial offence.
§ Mr. Marlowe (Brighton)
I have been under the impression so far that these two persons acted in ignorance. Could we be told whether they knew of the existence of this regulation?
§ Mr. Reid
Yes, I have the evidence here and I think I can find the relevant passage. On page 13 there is a question:Were you a lecturer to the Forces at the time of your election to Parliament, Mrs. Mann?She replied:Yes. I deemed that that office would be an office of profit under the Crown, and I immediately resigned.I never dreamed for one minute that this"—that is the appointment in question here—was considered an office of profit, it is like county councillors.Then she goes on with an explanation, so that she was well aware of the existence of the rule but thought that this was not an office of profit. I am not quite sure that Mr. Forman had the matter so clearly before him, but he said, as reported on page 11 of the Committee's evidence:It never occurred to me that this was an office of profit, because there was no salary attached to the office.He then goes on to narrate what Mr. Johnston, former Secretary of State for Scotland, had to say. Accordingly, this was a mistake in law committed in complete good faith by these two people. I, personally, attach some importance to the fact that both of them had decided, and had intimated their decision before the Election, not to resume the performance of their duties. They had, however, refrained from taking the technical step of resignation. Both had, in fact, determined to resign and all that was wrong was that they had delayed their formal resignations. It seems, therefore, that this case is so exceptional that we can allow the Bill to go through, although I would like the Attorney-General's con- 569 currence in my statement of the facts that this case is so special that it can never afford a precedent for any other case that may arise, at least for not more than one in a million.
There is another matter to which would like to refer. The 1941 Select Committee made a very clear recommendation, in a very full Report, that the law should be put right. During the war that has not been possible. Equally, of course, it cannot be done this year owing to congestion of the legislative programme, and we do not know how long this will continue. We cannot ask for this matter to be put in a high priority, but perhaps we could have a statement from the Government that the preparation and passing of such a Bill is regarded as a matter of some urgency, and that at the earliest possible date it will be pressed forward, I do not think it will be a difficult Bill to draft. The Select Committee went into the matter fully, and made a clear recommendation which commended itself to all quarters of the House. I do not think it need be a long Bill, or a. controversial Bill. I feel sure that it would get through Committee upstairs in a short time and that there is a strong case for clearing up this question if possible next Session, but certainly at an early date. I hope we can have an assurance that that is the Government's intention. If that was done then this sort of case would never recur. But in the interim period before it is done I think we can say that this case is so special that we may allow it to go forward.
§ 11.30 a.m.
§ Squadron Leader Emrys Roberts (Merioneth)
This Bill in my opinion raises an important constitutional issue on which I should like to make one or two observations. With the particular effects of the Bill I think the House will agree, namely, that Mrs. Mann and Mr. Forman should be relieved of the consequences of inadvertently committing an offence against an Act of 1707. The constitutional issue involved is that of the relationship between the Executive and the Legislature, between the Crown and Parliament. I had occasion yesterday to look up the fundamental Statute, the Succession to the Crown Act, 1707, and might I say in passing, as a lawyer, that I wistfully looked back to a day when all the Acts of Parliament from 570 Henry III to Queen Anne were comprised in a single volume and no reference to statutory regulations made in any of them. The short Title of the Act indicates the intention of Parliament to assert its right to determine the succession to the Crown and to insist on its own supremacy by limiting the number of office holders and thereby limit and control those whose votes would be influenced by the patronage of the Executive. It is fundamental in the Constitution that the number of office holders in the House of Commons owing their appointment to the Executive must at all times be rigidly watched and controlled.
On that fundamental principle, two series of Acts have been built up. The first is a series of Acts which have enabled Ministerial or political office holders to be Members of the House in order that the House may maintain control over the proceedings of the Executive. A number of Statutes, of which the outstanding are the Election of Ministers Acts, 1919 and 1926, and the Ministers of the Crown Act, 1937, have enabled Ministers to sit in the House without the possible consequences of submitting themselves to re-election. These Acts do not infringe the principle that non-Ministerial offices are incompatible with membership of this House.
A second series of Acts have been the Indemnity and Relief Acts to relieve innocent offenders and it is in this particular that the present Measure departs from precedent of previous Indemnity Acts. The Under-Secretaries of State Act, 1939 and the Arthur Jenkins Indemnity Act, 1941, not only relieved persons who were already Members of the House if they accepted an office against the penalties but also allowed them to keep their seats in the House. The novel feature of this Bill is that it makes valid by retrospective action the election of persons who at the date of the election were disqualified by law from membership of, and election to, the House. It is quite true that this so-called office of profit which they held has been of very little profit, and that the two Members in each case acted with complete inadvertence and in good faith and public spirit. Nevertheless, the view taken by the Select Committee on Elections, 1945, on the recommendation of which this Bill is based, is that the appointments they held were in fact offices of profit under the Crown. Therefore, the effect of this Bill is that Parliament is in fact making 571 Members of the House of Commons persons who could not have been so elected because they were holders of office under the Crown. That is a very important constitutional development. It is entirely at variance with the fundamental theme of the 1707 Act. It for the first time negates those words in Section 24 of that Act which says that holders of office of profit shall not "be capable of being elected." It is the first time that a Bill has been directed at those particular words in the 1707 Act.
Nevertheless, we agree that as regards these particular persons, it is entirely right and proper that the Bill should be passed into law. How are we to overcome the unsatisfactory position that the justice of the individual case requires a Bill to be passed which is at variance with the constitutional principle? The whole difficulty is that of determining what constitutes an office of profit. It is almost impossible at present to ascertain what constitutes an office of profit under the Crown. For that reason I welcome the assurances and the appeals which have been made that the matter should be looked into on the lines recommended by the Select Committee on Offices of Profit, 1941, and I do appeal for a declaratory Act to be passed into law, after proper inquiry, setting out the criterion of an office of profit, so that this House may preserve the fundamental principle that office holders shall be limited and controlled, so that all men may know what constitutes an office which would debar them from entry to the House, and so that persona who have acted in good faith throughout may be spared the anxiety of proceedings of this nature.
§ 11.40 a.m.
§ Mr. Maxton (Glasgow, Bridgeton)
I would like to say a word or two on this subject, first, because I come from an area where the two constituencies are located, and, secondly, because I served on the Select Committee that made the general recommendation for the legislation to regularise this whole matter. I join with the right hon. and learned Member for Hillhead (Mr. Reid), in congratulating the Attorney-General on his new appointment, and the responsibility which he has taken over. I notice that the right hon. and learned Member for Hillhead, in a reference to the legal pro- 572 fession, suggested that the Attorney-General would frequently have to come to the aid of his less-learned colleagues, but if he will cast his memory back in history to the first Labour Government, he will perhaps recall the fact that it was brought down by the necessity of laymen coming to the aid of the Attorney-General. I think the right hon. and learned Member for Hillhead was perhaps straining a point when he read from the evidence which he said indicated that Mrs. Mann acted with knowledge. I listened very carefully while he read the passage and I think it was a bit thick. I do not know whether he knew that the hon. and learned Member behind him was going to ask this question, but it seemed to me that they were sitting too close together for it to have been quite impromptu.
§ Mr. Maxton
I think the right hon. and learned Member for Hillhead could have perhaps done a little better if he had had more time. He showed that Mrs. Mann resigned from one position, which she believed to be definitely an office of profit under the Crown, but she did not resign from another position. She knew when she went lecturing to the Forces that she was getting money from the national purse. Nearly every Member of Parliament was speaking to the Forces or speaking on the B.B.C., except for my little group. Mrs. Mann and Mr. Forman did not regard sitting on this particular committee as being part of the national work. They regarded it as an extension of a long period of voluntary, unpaid service which they had given as members of the city council. Having sat on dozens of committees of one kind and another, not very dissimilar to this, they thought, as any ordinary, non-legal person would think, that they were perfectly entitled to believe that it was a municipal duty and not a paid office under the Crown. I hope this House will not merely pass this legislation, but will make it absolutely clear that there is no slur on the character of these two new Members of this House who have rendered very fine public service up to now in their walks of life.
I think I am the last surviving member here of the Select Committee which dealt with this question of offices of profit. The Chairman of the Committee, who 573 conducted our affairs very capably, was Sir Dennis Herbert, former Deputy-Speaker of the House, now Lord Hemingford. That Select Committee was appointed to deal mainly with a very extraordinary development of an office of profit under the Crown—the appointment by the then Prime Minister of a Member of this House to be High Commissioner of Canada and to retain his membership in this House at the same time. That was the main, immediate problem we had to cope with, and we coped with it. What I want to ask the Attorney-General and the Government is to resist legislating to the limited extent that that Select Committee reported. I imagine that if this House, composed as it is now, set up a Select Committee, composed proportionately, as it would be, according to the political representation in the House, their recommendations would perhaps be more far-reaching, fundamental and offer possibilities of a final solution. I would suggest instead of legislating on the basis of the last Select Committee's Report that, not immediately, but in due course, another Select Committee, composed somewhat differently, should be set up to look at this problem again. The hon. and gallant Member for Merioneth (Squadron Leader Roberts) does not think, I am sure, that this House of Commons has the same problem with the present Monarch, as our predecessors had with Queen Anne. Our problem is not one of restraining lascivious, incompetent, despotic monarchs.
§ Mr. Maxton
No. I know she is dead. My historical knowledge just reaches that length and no further.
§ Squadron Leader Roberts
My remarks related to the Executive as a whole and not to the Monarch. Would the hon. Member apply those epithets to the Executive Government as well?
§ Mr. Maxton
I am giving an historical picture of what an earlier Parliament in this country, right up to that time, had to cope with in restraining monarchs in all their adventures at home and abroad and preventing them packing this House with their paid placemen. That is not the problem now. It is an entirely 574 different constitutional problem which arises. The serious problem in any Parliament of to-day is to see that this House is not packed with the paid men of the capitalist system of society in its futile attempts to maintain its existence for a few years longer. I do not want to get into a discussion with my hon. and gallant Friend. I am merely saying that now, the problem to be confronted is entirely different from what it was in those days, and should be tackled from an entirely different fundamental point of view. I support the Measure.
§ 11.47 a.m.
§ Mr. Sydney Silverman (Nelson and Colne)
I hesitate to prolong the Debate, especially as I was a Member of the Select Committee, but I venture to trouble the House for a few minutes, because the proceedings, as reported, might encourage a feeling at some time, that I had some doubt about the correctness of the decision at which the Committee, with one exception, arrived. That might arise out of the fact that as hon. Members will see if they look at page 6 of the Report, I was present at the meeting which took a decision, but my name does not appear in the Division list. That was an accident with the causes of which I need not trouble the House, but I wish to make it clear that the recommendation in the Report had my full approval and consent. Indeed, would have been prepared to go further, and to vote that in the circumstances disclosed in the evidence we heard that there was not in fact any breach at all, and that the election had not been invalidated. It seemed to me on the evidence we heard, that to say there had been the holding of some office of profit was wholly fantastic. The nature of the office held, the nature of the remuneration and the extent of the remuneration and what the candidates had done before the Election together amounted, in my mind, to a case of mere technicality.
Where, in circumstances of this kind, there was only a technical breach, I should have been prepared to hold that there was no breach at all. Had the majority of the Committee come to that decision, they would have been confronted with all the precedents except one. They would nevertheless have been in agreement with the latest precedent, the case of Mr. Pringle in 1924. Had they felt able to decide as I have suggested, they 575 would have had precedent to support them in their decision. I preferred, with other Members who were in a minority, not to press that, if the majority thought that there was a technical breach, on the basis that we agreed that it was a technical breach and that no consequence should follow, either in the way of personal penalty or in the way of invalidating the election. So far as our recommendations went, think it right, for the sake of the record, to make that explanation.
§ 11.50 a.m.
§ The Attorney-General
With the leave of the House, may I say a word or two in reply to the right hon. and learned Member for Hillhead (Mr. Reid) and my hon. Friend the Member for Bridgeton (Mr. Maxton). We will certainly take into more than sympathetic consideration, as soon as we are able to do so, the Report of the Select Committee of 1941, without of course considering ourselves restricted by the terms of that Report. We will examine the whole problem. As I indicated in my previous remarks, we realize that this is a problem of considerable complexity which may lead hon. Members inadvertently into great difficulty, and it is one in which the position should be clarified as soon as Parliamentary time permits. As for the position of Mrs. Mann and Mr. Forman, I hardly think it can be doubted on the evidence that both of them knew vaguely, as all of us know, that the holding of an office of profit may constitute disqualification for membership. What they did not know, as I understand the Report of the Committee, was that the mere receipt of fees amounting, as the Committee pointed out, to very inadequate compensation for actual loss of their remunerative time, constituted such an office of profit, in that sense no one doubts that both Mrs. Mann and Mr. Forman acted quite inadvertently, and in complete good faith. In those circumstances I hope the House will pass this Bill without creating any kind of precedent that will apply in future to a case differing from this case.
§ Question put, and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the Whole House, for Monday next [Mr.Mathers.]