HC Deb 07 December 1949 vol 470 cc1889-900
The Attorney-General (Sir Hartley Shawcross)

With your permission, Mr. Speaker, I wish to make a personal statement.

I desire to remove a serious public misconception which has apparently arisen following a Question put to me last Monday. On that occasion in a supplementary question the hon. and gallant Member for Penrith and Cocker-mouth (Colonel Dower) asked me whether in considering expenditure by commercial and public bodies in connection with electoral propaganda I would also consider "the gift by the Co-operatives of £30,000 for party political propaganda and also such gifts given by trade unions, and indeed money spent by the Central Office of Information on controversial problems." I answered, "I was going to say that as far as the first two cases of expenditure are concerned I have not any particular information about those, but from what has been said, I see no reason to distinguish these payments from other payments, whether public or secret to the political funds of any particular party." That was a correct statement, as I believe, of the existing law.

In a leading article in the "Evening Standard" on 6th December, to some extent repeated in the "Daily Express" today, it was stated that this was "an astounding admission" and it was suggested directly or by implication that my action in the matter of the enforcement of the law relating to election expenditure had been conducted and would continue to be conducted in a partial manner and influenced by political bias. This statement besides constituting, although I hope inadvertently, a grave libel upon the office of Attorney-General, gives publicity to a complete misconception of the law, on a matter of immediate public concern.

So far as the electoral law is concerned, private citizens are entitled to make such donations to political funds as they think proper. This right is enjoyed by them both individually and collectively, thus, subject to the rules of their own constitution and of the general law, corporate organisations such as industrial concerns, the co-operative societies or trade unions, whether of employers or employed, are entitled to make contributions to party funds whether secretly or publicly, as in the two cases put to me.

The electoral law is, however, concerned with the manner in which those funds may subsequently be spent on propaganda calculated to influence the result of an election. That is a matter to be considered in the light of the effect such propaganda, whatever form it takes, whether films, posters or whatever it may be, is calculated to have when the election occurs.

As to that, before this matter was raised in Parliament, I gave instructions to the Director of Public Prosecutions that should occasion arise he should institute such proceedings as he thought proper without asking for the consent of the Attorney-General. That instruction exists in writing, and I have no doubt, therefore, that the law will continue to be enforced with the same ruthless impartiality as I have sought to enforce it myself.

Mr. Mikardo

Will my right hon. and learned Friend say whether he has no protection beyond the statement he has just made against what he has described as a gross libel against his office?

Major Sir David Maxwell Fyfe

On a point of Order. As I understood the position, the right hon. and learned Gentleman was giving a personal explanation, as he said in his own words, and on that, of course, I should not desire to ask him anything. As I understand it, he is entitled to make his personal explanation to the House. But in the course of it he did endeavour to give the House guidance on certain matters of law. I should be greatly obliged for your guidance Sir, on whether we can ask him questions on that part of his statement which was not personal but which was in the nature of guidance to the House.

Mr. Speaker

I did not regard the statement as being what we call a personal statement on which a Member cannot be cross-examined. It really was a wide statement with certain implications.

The Attorney-General

So far as my personal position is concerned, I am serenely indifferent to scurrility which generally indicates fear. The newspapers are quite entitled to "have a go" at me politically and on occasion I shall "have a go" at them in return. But attacks on the office of Attorney-General are an entirely different matter. I have certainly sought to maintain, and indeed I believe I have strengthened—and some of my colleagues might bear me out in this—the independence and impartiality of the office of Attorney-General. I intend to protect the office of Attorney-General against any action, whether on the part of my colleagues, hon. Members opposite, newspapers or whoever it may be, which might threaten the independence and detachment of the office.

Mr. Frank Byers

Might I ask the right hon. and learned Gentleman whether he is aware that the two statements which he has made tend to make the situation even more confused than it was before? Is it a fact that the law as he has now interpreted it means that expenditure by companies which advocate that certain industries should not be nationalised may be made the responsibility of a political party which has no control over the expenditure so made? It seems to be an amazing situation that, if a party should, advocate a policy in which it believes, and then by accident, other people put up posters, that party should become responsible for expenditure over which it has no control.

The Attorney-General

I agree with the hon. Member that the statements in the newspapers have not added to the clarity of the law upon this position. I am afraid that the question put by the hon. Member was inevitably a rather long one, which it was a little difficult to follow. The principle of our electoral law—I think it arises as a result of interventions in elections long ago by organisations which were either in favour of Free Trade or Tariff Reform—was that third parties who are not actually supporting a particular candidature must, so far as expenditure of money is concerned, keep out of the ring during an election.

Sir D. Maxwell Fyfe

I should like to ask the right hon. and learned Gentleman this question because I think it is a point upon which everyone wants to be clear. Are there not two conditions which must be fulfilled before expenditure is such that proceedings may be taken—first, that the election must be started, that one must have come to the stage when some- one has commenced an election campaign and is appealing for votes; and, secondly, that the expenditure must be directed towards the return of a candidate whether it be by supporting that candidate or by attacking the candidates against him? Are not these the principles which stand firm on the law as it is today and make the expenditure subject to attack in law?

The Attorney-General

That also—I do not complain of it—inevitably was a somewhat long question. So far as the second part of it is concerned, as I understand it, the propaganda concerned need not have reference to any particular candidate. Quite clearly, no particular candidate need be indicated in it. If the propaganda is such as to support the policy to which that candidate adheres, it would be open to a court to say, within the wording of Section 42 of the Representation of the People Act, that it was calculated to promote the return of that candidate or to disparage the other candidate who was opposing the policy supported by that propaganda.

So far as the question as to the date at which expenditure may come within the scope of the Representation of the People Act is concerned, there is, of course, the very highest authority for the view that the date of an election for this purpose, which is not fixed and is a question of fact, is not necessarily after the dissolution of Parliament. I put a hypothetical case. It might, for instance, commence from a defeat of the Government which was thought likely to result in a General Election. There is also high authority for the view that where a particular candidate, by reason of his own political sagacity—I think that I am quoting the words of the opinion—and not because of any outward indications, thinks that an election is imminent, commences to nurse his constituency and to canvass and so on, then so far as he is concerned that is the date of the commencement of the election in regard to expenditure in that constituency. But I must add—and I think that there will be agreement about 'this—that these are questions of fact and degrees to be decided by the court on the facts of each particular case.

Mr. Oliver Stanley

I should like to ask a question which I think is worrying a considerable number of people. In the circumstances which the right hon. and learned Gentleman has related under which these expenses would be chargeable against a candidate, what would be the effect if the candidate at the beginning of the election, not wishing to incur this possibility, served a notice upon the individual, the party or the body, requesting them not to indulge in propaganda in that constituency, and despite that notice they still went on? [Interruption.] I am asking this for the advantage of hon. Members opposite in view of the promised support of the Communist Party. In those circumstances, would the candidate still be liable?

The Attorney-General

I should say in those circumstances that there would be no liability on the candidate. If the third party was incurring expenditure not authorised by the candidate or his agent on either side and bad been requested to desist from such expenditure, the penalty which might ultimately be imposed upon him in a prosecution for a corrupt offence would be all the heavier.

Sir D. Maxwell Fyfe

I should like to get this point clear. Assuming that the election has not started—and the right hon. and learned Gentleman has made clear the matters of fact that might be taken into account in deciding whether it had started or not—then up to that time is it not the law that there is no objection or legal ground for objecting to people undertaking political expenditure in order to defend those political measures in which they believe?

The Attorney-General

That, of course, is a question of fact as I put it when I originally answered this question on Monday. It falls to be considered in the light of the effect which the expenditure and the propaganda resulting from it have during the election. Perhaps it is dangerous to take hypothetical cases, but if I might take a fairly obvious one of where a political party, perhaps a long time before anybody contemplated an election, either bought up or secured the retainer on hoardings in various constituencies in order to use them during a General Election and then did use them in a General Election, I should have thought that that expenditure would obviously rank as an election expense.

Similarly, if before an election but in intelligent anticipation that it was likely to come very soon, those hoardings were placarded with posters calculated to influence the result of the election and were left up during it, I should have thought it would be open to a court to say that this was within the Section. Similarly, if some commercial concern printed slogans on packages which it sold and distributed to retailers and those were still in circulation at the time of the election, then, although the expenditure might have been incurred a long time before, the result of it might be considered calculated to affect the election. Then, again, the expenditure, I should have thought, would be of a kind that it would be open to the courts to hold to be within the scope of the Statute.

Mr. John Hynd

In view of the important statement made by my right hon. and learned Friend about anything calculated or regarded as likely to assist or influence voters in favour of a particular candidate, will he tell us what is the position of a newspaper which during a General Election accepts this as one of its primary tasks?

The Attorney-General

Newspapers are specifically exempted from this provision in regard to the restriction of expenditure. Parliament thought it right in the interests of freedom of the Press to permit newspapers to conduct such campaigns as they thought right.

Mr. Derek Walker-Smith

Will the learned Attorney-General agree—and I put it to him with respect—that his exposition of the law in answer to the questions of my right hon. and learned Friend is not in accordance with the distinction drawn in "Rogers on Elections," where, after reviewing cases, the learned editor says that after an election has started, a distinction has still to be drawn between expenditure for the promotion of the election of a candidate and expenditure for the propagation of the general views of that candidate's party? Would he say whether his phrase, used in his original statement, "calculated to influence the result of an election," is drawn from a Statute or whether it is a paraphrase of the statutory references to the conduct of the elections?

The Attorney-General

It is a paraphrase of the existing law. I think the words are "likely to promote," but I am speaking off the book; I think that is the wording of Section 42.

So far as concerns the hon. Member's question in regard to the statement in "Rogers on Elections," I do not want to criticise the learned editor of that book, but that statement was based on a number of events arising at a time when the law was totally different. In the old days, and I hope I am not delivering a lecture on this, the expenditure which was limited was the expenditure in the management and conduct of an election, and third parties, like the Tariff Reform League, the Free Trade Union or any other political party, were entitled to come in and spend as much money as they chose on general political expenditure. The whole object of the more recent legislation has been to prohibit expenditure by third parties, and that has been done by changing the words "management and conduct of elections" to the much wider words which are now used in the Representation of the People Act.

Sir D. Maxwell Fyfe

I am sorry, but the matter is of great importance, and I must ask the indulgence of the House. I should like to ask the right hon. and learned Gentleman if what he has just said is correct, because my recollection is that the wording of the Section is: with a view to promoting or procuring the election of a candidate. If the matter on which the propaganda is started is something on which the person who is starting the propaganda does not know the views of the candidates, and does not know whether the candidate will support that propaganda or not—just as the party opposite changed their views on a certain matter—how then can the expenditure be directed to promoting or procuring the election of a candidate"? It is a real practical difficulty.

The Attorney-General

I do not think so. Those who engage in political propaganda of that kind under the existing law, as I understand it, have a duty to inform themselves of the position. If commercial or industrial concerns wish to defend what they regard as their interests, as, of course, they are quite entitled to do, it should not be impossible for them to present their case in a reasoned way which does not promote the election of one of the contestants in an election or disparage another. That should not be impossible, but, on the contrary, if they find it is impossible to put forward their case in a way which does not result in the promoting of one candidature or the disparaging of another, there is no reason—and indeed hon. Members opposite would desire that it should be so—why they should not promote or support candidatures to represent their own particular views, so long as the expenditure is properly disclosed in the election expenses.

Mrs. Leah Manning

Quite apart from the commercial and industrial concerns and political parties, to which my right hon. and learned Friend made reference, I am still nervous about a phrase which he used when he said "from the moment a candidate begins to nurse his constituency." Is it not a fact that a good Member of Parliament nurses his or her constituency from the time of being elected?

The Attorney-General

My hon. Friend will find in the authorities that a distinction is drawn between the case of a sitting Member, who is nursing a constituency and is looking after it throughout his Parliamentary life, and a new candidate who is not the Member. There is a clear distinction between the two cases. Even in the case of a sitting Member there comes a point, which may be before the dissolution of Parliament, when perhaps a canvass is started or special steps are taken with a view to securing votes at an election, and that is a question of fact, and it is for the court to decide whether, in fact, in that constituency and in those circumstances, the election should be regarded as having begun.

Mr. Emrys Roberts

Can the Attorney-General say whether the phrase which he has just used in regard to expenditure by a third party, covers contributions, whether by a company or a trade union, to the funds of a political party? If so, are contributions from all outside sources covered, and is it not a fact that the object of such contributions is to advance the propaganda of that political party; and, if that be so, is it not the case, according to the statement of the right hon. and learned Gentleman, that contributions by companies or trade unions at the present time will be unauthorised expenditure?

Several Hon. Members


The Attorney-General

May I just answer that question while it is in my mind? I thought I had dealt with that point. There is nothing whatever to prevent anybody, any hon. Members, any trade unions, any industrial companies, making subscriptions to political funds of any party which they choose. That is perfectly legal; it is legal now, and would be legal even in the middle of an election. That money goes into the bank. So long as it remains in the bank, it does not have the slightest effect on the conduct of the election. When it is taken out of the bank by the political party concerned and devoted to expenditure on propaganda calculated to promote one candidature or disparage another, then it comes within the scope of the statute, but nothing I have said and nothing that the statute says in any way restricts contributions by individuals or corporate bodies to political funds.

Mr. Peter Thorneycroft

May I ask the right and learned Gentleman whether in order to clarify the position, he would make it perfectly plain that an industry which is at this moment threatened with nationalisation is perfectly entitled to defend itself from its own resources? Is that correct? If it is not correct, may I ask the right hon. and learned Gentleman why prosecutions have not been started? The second question I want to ask him is this. When an election has started is it quite plain that, provided that the industry restricts its propaganda to defending itself against nationalisation, it is perfectly entitled to give its support to that particular cause?

The Attorney-General

Neither proposition has in the least been made plain. I thought the answer which I gave on Monday and which I have repeated today was quite clear in regard to such a proposition. [HON. MEMBERS: "No."] If there is any doubt about it, I would advise those who are contemplating expenditure on propaganda which may have the result, and which is intended to have the result, of influencing an election, to obtain an opinion in writing from some competent lawyer about it, and not to rely on views which may be expressed in the excitement of political speeches. Right hon. and hon. Members opposite, if they have any hope of forming the Administration after the next Election will have the duty of enforcing the law in regard to this matter,' and it is desirable that they should not prejudice their position by rash statements about it now.

Mr. Thorneycroft

I am asking what it is.

The Attorney-General

The hon. Gentleman may be quite sure that in advising the House or in advising any Member of the House who seeks my advice on the point, I shall be quite definite and completely impartial and unbiased in the matter. I have pointed out that what is sauce for the goose is sauce for the gander on this matter, and the Director of Public Prosecutions, who now has the sole responsibility for enforcing the law, will enforce it. I did say on Monday when I dealt with the matter, that the legality of that expenditure falls to be considered in the light of the effect that expenditure is having during the election. That, I think, answers the hon. Gentleman.

Sir Ian Fraser

In the light of these discussions, is it not clear that there is a real risk that we may go into a General Election within the next few months, that a party of Left or Right may be returned, and that thereafter it may be found on a test case that so many candidates' elections are invalid that the Parliament and the Election itself and its whole purpose may be defeated. [Laughter.] I ask this question quite seriously. Is not the Attorney-General answering at that Box, having prepared a brief on a narrow point with such glibness and such lack of responsibility, and is it not a desirable—[HON. MEMBERS: "Withdraw."] I have not the slightest intention of withdrawing unless Mr. Speaker orders me to do so. I am not aware that that remark was unparliamentary. Is it not desirable that this matter should be discussed when both sides will have had the opportunity of studying this matter and notice has been provided, or that new legislation should be passed to make the position clear?

The Attorney-General

I do not propose to deal with the hon. Member's observations except to say that I observe that no proposition of law which I have made has been disputed from the Front Bench opposite.

Mr. Collins

Is my right hon. and learned Friend aware that an organisation calling itself "Aims of Industry" is "alleged in the last 12 months to have spent £150,000 on propaganda of the kind which he detailed in a supplementary answer, and that that works out at about £250 per constituency; and can he say whether the attention of the Director of Public Prosecutions has been directed to that matter?

Mr. Austin


Mr. Speaker

It is now a quarter past four and I do not know whether anybody has very much more to add to what has been said. In view of the important Business to be dealt with today, I appeal to hon. Members not to be too long.

Mr. Austin

Can my right hon. and learned Friend say what is the position in relation to the law of a commercial or industrial undertaking, which normally owns or leases a bill-posting site, making that site available to a particular political party?

The Attorney-General

I do not think it would be wise for me in my present position—and I am bound to say that, in view of the questions, I sometimes wish I were in private practice and advising for a fee—to answer a hypothetical question of the kind just put to me.

Colonel Dower

As the Attorney-General read out the Question I asked him and which he answered in full on Monday, I should like to say that I have not for one moment questioned his ruling in his capacity of Attorney-General. At the same time, I would point out that I asked three questions, and I should like him to note that he did not answer the third one, which was whether he would take into consideration money spent on propaganda by the Central Office of Information.

The Attorney-General

If the hon. and gallant Gentleman will draw my attention to any case in which he thinks propaganda of that kind might be calculated to influence an election, I will give it my consideration, and, if I take that view, the hon. and gallant Member can rely upon me to come down on the Ministry concerned. It would not be the first time that I had to make representations, not to that Ministry, but to others.

Mr. Henry Strauss

I do not wish to dispute, but to elucidate, the right hon. and learned Gentleman's view on the law. I understood him to say that, if a company in self-defence issued propaganda against nationalisation, its expenditure might have to be debited to a candidature that was thereby favoured. What is the right hon. and learned Gentleman's view in the event of there being more than one party opposed to the nationalisation in question? The second question I wish to put to him is this. In the event of there being expenditure on propaganda in favour of nationalisation, where there was both a Socialist and a Communist candidate in the field, how would that expenditure be divided? Of course, in cases where the Socialist is the only candidate advocating nationalisation, the expenditure would, I suppose, be wholly included in his expenditure.

The Attorney-General

I do not propose to answer questions which are hypothetical except by saying this. I am not sure I follow the second part of the hon. and learned Member's question. So far as the first part is concerned, it might be—and I cannot lay down the law on these matters which are questions of fact—that that kind of expenditure where there are two candidates opposing and one supporting, would come under the head of expenditure intended to disparage a candidate.

Mr. C. S. Taylor

If I am prepared to subsidise a campaign in support of the right hon. Member for Ebbw Vale (Mr. A. Bevan) is there an opportunity of getting him unseated?

Mr. Speaker

It seems to me that that is a hypothetical question.

Mr. Wilson Harris

In view of the fact that elections in university constituencies are likely to begin a few weeks after the assembly of the next Parliament and the constituents in such a case are to be found in every town and village in the country, would such propaganda in expenditure in a remote village be charged against the expenditure of a university candidate?