HC Deb 21 March 1950 vol 472 cc1721-31
The Parliamentary Secretary to the Treasury (Mr. William Whiteley)

I beg to move, That Mr. Speaker do issue his warrant to the Clerk of the Crown to make out a New Writ for the election of a Member to serve in this Parliament for the Borough Constituency of Sheffield, Neepsend, in the room of Lieut.-Colonel Henry Morris who, since his election to the said Borough Constituency, has accepted the office of Steward or Bailiff of His Majesty's Manor of Northstead in the County of York.

Captain John Crowder

I object.

Mr. Speaker

This is a debatable Motion and it is not objected to in the ordinary way. If hon. Members wish to debate it, they can, but the Ruling is the same as that which I gave in the case raised by the hon. Member for Gravesend (Sir R. Acland) when he was a member of the Commonwealth Party. I ruled then that it could be debated at the end of Questions, and if hon. Members wish to debate the matter, it can be done then, but not now.

Mr. Oliver Stanley

The point we want to raise on this writ is rather technical.

At the end of Questions

Question again proposed.

Mr. Turton

This Motion raises an interesting paint of constitutional procedure, and I should like to ask for your guidance, Mr. Speaker, and perhaps an explanation from the right hon. and learned Attorney-General upon the position. Page 177 of Erskine May states: Where a vacancy has occurred prior to, or immediately after, the first meeting of a new Parliament, the writ will not be issued until the time for presenting election petitions has expired. Quite clearly, the intention of that Rule which Parliament adopted, was to prevent any unseemly haste after a General Election in holding or in arranging by-elections. It appeared to me that we are not yet past the time for the holding of an election petition in respect of the last General Election. We are governed in this matter by the Act which Parliament passed last year—the Representation of the People Act, 1949, Section 109 of which lays down: (1) Subject to the provisions of this section, a parliamentary election petition shall be presented within twenty-one days after the return has been made to the Clerk of the Crown, or to the Clerk of the Crown for Northern Ireland, as the case may be, of the member to whose election the petition relates. According to my computation, if that be the whole of Section 109 the matter we are discussing would be in proper order, but this Section goes on further and, in subsection (2) states: If the petition questions the election or return upon an allegation of corrupt practices and specifically alleges a payment of money or other reward … In that case, the time is 28 days after the date of that payment. Bearing in mind that the time for the bill to be sent by the candidate is 14 days after the result, that is 10th March in this case, quite clearly, under subsection (2) the time has by no means yet expired, and, in fact, it would carry on until the beginning of next month. I know that the Attorney-General will explain the point and might say that my construction of subsection (2) is wrong, but what I am going to rely on is the provision in subsection (3), which states: A petition questioning the election or return upon an allegation of an illegal practice may, so far as respects that illegal practice be presented— (a) not later than the expiration of 14 days after the day specified in Subsection (4) of this Section; Subsection (4) states that that date shall be that on which the returning officer receives the return and declarations as to the election expenses by the said Member.

It is quite true that I have no knowledge as to what date Colonel Morris put in his election expenses claim, but I know that it cannot have been before the 10th March. If he had put it in before then, he would have found that later creditors could still put in their claims. Therefore, 10th March was the earliest date. Fourteen days from 10th March does bring it to next Friday, and, therefore, on that ground it would appear that this Motion is untimely. It should have been moved at the earliest at the end of this week or at the beginning of next week.

I think the House will recollect that Section 66 of the Representation of the People Act made it clear, first of all, as I have already quoted, that there are 14 days in which the claims are sent in, and all election expenses are repaid within 28 days after the result, which would make that date 24th March, which is, again, a date not yet reached. I suggest to the House that this Motion is bad from the point of view of procedure, and I ask the Government to postpone it to a more seemly date.

The Attorney-General (Sir Hartley Shawcross)

The hon. Member for Thirsk and Mahon (Mr. Turton) has raised a matter of considerable interest and one about the raising of which I do not for a moment complain. But I think the House may feel assured that we have in this matter not only followed precedents set for us by hon. Members opposite when they were on this side of the House, but have actually done more and pursued what I think is the best constitutional procedure in the matter. The matter is, of course, as the hon. Member indicated, one for the House to decide, as governing its own proceedings, and it is not the subject, so far as I know—nor, I think, could it be—of any authority laid down by the courts.

But the best view of the law, as I understand it, as to the issue of Writs in respect of vacancies which occur immediately after the election of a new Parliament is, as indeed the hon. Member has put it, that they should not be presented until the normal time for the presentation of an election petition has gone by. The basic reason for that principle is that certain petitions may have the result not simply of voiding the election, but of awarding the seat to another candidate who stood at the election presumably, but not necessarily, the candidate who came next at the poll. Where petitions have actually been presented at a time when a Motion was made for the issue of a new writ, the practice has been that where the petitioner has not claimed the award of the seat to another candidate, but has merely alleged that the election was void, that fact, although there was a petition pending which had not yet been tried, would not interfere with the issue of a writ for a new election.

We suggest to the House that the same principle must apply, not only in relation to petitions which have actually been presented, but also in relation to potential or hypothetical petitions. The hon. Member has referred to Section 109 of the Representation of the People Act, in which Act all the law relating to this matter is now collected. That Act lays down the various time limits within which election petitions may be presented. There, again, the basic rule in regard to the presentation of petitions is that petitions are to be presented within 21 days from the return of the writ for the original election. But there are cases where time runs from a different period as, for instance, the case to which the hon. Member referred, where time may run from the date on which the return of election expenses was presented.

Indeed—and this is the point to which the House will probably attach importance—it is never possible at any period in the lifetime of a Parliament to reach absolute finality in regard to this matter because it may be—and this is where I think the hon. Member misinterpreted the effect of subsection (2) of Section 109—that some petitions—for instance those alleging bribery or the payment of money after the election in pursuance of an arrangement made before the election—may be brought not within any limited time at all, but within a period after the actual payment has been made whenever that may be.

Accordingly, if a candidate who succeeded in winning a Parliamentary election has secured votes by promising to pay electors for voting for him, he cannot escape the risk of an election petition at any time within the lifetime of that Parliament if he carries out his promise and pays the money, and the consequence is that there is no finality in regard to petitions of that kind.

But such petitions, like the petitions under subsection (3) of Section 109 of the 1949 Act, while they may easily void the election to which they relate, would not result in awarding the seat to another candidate unless under the provisions of Section 144 of the 1949 Act, it could be shown, not only that the elected candidate had disqualified himself by some corrupt or illegal practice, but that the number of electors whose votes should be rejected on the ground that they had been bribed, or that there had been some other corrupt or illegal practice in regard to them, was so large as to destroy the majority by which the candidate who had been petitioned against had been elected, and, in consequence, the risk in this particular context of a petition affecting the position only arises—if it arises at all—as a practical matter in those cases where the majority at the original election was a comparatively small one and there was a practical possibility that it might be or was proved—as it would have to be proved—that that majority or an equivalent number of electors had been secured by bribery or some other illegal practice.

I am sorry to appear—as I am afraid I must inevitably appear—to be delivering something in the nature of a lecture on this branch of the law, but in the past the matter seems to have been dealt with in a practical way. The fact is that this risk of a presentation of an election petition has always existed. At any rate, from the beginning of the 19th century there was always, first of all, under Sessional Orders and, since 1868, under statute, the possibility at any time of putting in an election petition based on bribery. But the practice has been not to wait for that period—which, indeed, may be a quite unlimited period—to expire, and not, indeed, to have any regard at all to what I might call the alternative to the basic period of 21 days. Indeed, the practice in the past has gone further than that, and regard has not even been paid to the basic period of 21 days.

For instance, in 1922 the Conservative Government which was then elected had the misfortune of losing at the General Election its Financial Secretary to the Treasury, but another member of the Conservative Party was considerate enough, within a very few days indeed, to apply for the Chiltern Hundreds, and a new writ was applied for 11 days after the return to the Clerk of the Crown of the writ in the original General Election. The 21 days rule existed at that time, just as it exists under the present Act. That 21 days basic rule, as I have called it, has existed over a considerable period, but no regard was paid to the basic rule at all, and the writ was issued within II days.

Then again, in 1924—it happened to be under a Conservative Government once more, but I make no point of that except for the reason that I think it has always been the practice. I daresay that is why this matter, as far as I can find, has never been raised in recent times it being regarded as being a matter within the discretion of the party applying for the writ exactly when they should apply for it. At any rate, no objection was taken in 1924 by the Labour Party, which was then in Opposition.

Mr. Stanley

It was an untrained Opposition.

The Attorney-General

It may be so. At all events, the Tory Party, when they sat on the Government Benches, did not consider it improper, as I am sure they would have done if it had been improper, to apply for a writ within 11 days. I am quite certain the right hon. Gentleman and his Friends would never for a moment have sought to take advantage of an untrained Opposition to the prejudice of one of the constitutional principles of this country.

The same thing occurred in 1924, when a vacancy arose through death. I think there is no distinction in principle as to the cause of the vacancy. A new writ was moved for within nine days, at the end of 1924, when the Conservative Party had been returned to power. There are many earlier precedents, but I think the House may feel assured that in this case we have applied a more scrupulous regard to the constitutional propriety of this matter than has hitherto always been done, and we have done rightly in waiting for the expiration of 21 days. That period having gone by, unless a constituency is to remain disfranchised for an indefinite period, Parliament must take responsibility for giving leave in the issue of a new writ.

Mr. Churchill

In view of the very complicated, lucid and lengthy statement of the Attorney-General, would it be more fitting and better all round to wait until 24th March to move the writ, and thus ward off the principal dangers that are likely to occur?

The Attorney-General

I am sorry if my statement was perhaps more lengthy than lucid. I think the right hon. Gentleman has not appreciated that, under Subsection (2) of Section 109 of this Act, the period of 28 days does not date from the return to the writ but from the time when money is paid in pursuance of some corrupt practice. It may well be that if corrupt practices take place the payments made for them are delayed until it is thought that all interest in the matter has passed by.

Mr. Manningham-Buller

I should like to ask one or two questions. The Attorney-General has referred to the precedents of 1922 and 1924. No doubt those precedents were fully considered by the author of the new edition of Erskine May. There it is quite clearly stated, as my hon. Friend the Member for Thirsk and Malton (Mr. Turton) said: Where a vacancy has occurred prior to, or immediately after, the first meeting of a new Parliament, the Writ will not be issued until the time for presenting election petitions has expired. I gather from what the right hon. Gentleman has said that he is admitting that, under the new Act, time for presentation of an election petition has not expired and, in particular, time for presenting an election petition under subsection (3) of Section 109 has not expired, and that would take it up to a later date. I ask the right hon. Gentleman to give more consideration to subsection (3), which is quite different from subsection (2). In view of the content of subsection (3), and the observations in Erskine May, which were made after the precedents to which the right hon. Gentleman referred, may I ask whether he realises we are here being asked to create an undoubtedly new precedent, contrary to views expressed hitherto?

The Attorney-General

I believe I may only speak again with the leave of the House, but if I have that leave—[HON. MEMBERS: "Agreed."]—I must say that I am sure the hon. and learned Gentleman the Member for Northants, South (Mr. Manningham-Buller) would not wish to press his point about the observations in Erskine May having been made after these precedents. The general view of Erskine May has been contained, for a very long time, in the early editions. If the hon. and learned Member will look at page 178 he will see that it deals with a situation where there has been an actual petition. Here, of course, we are dealing only with a hypothetical petition. It is stated in Erskine May that where, in the case of an actual petition, the seat is claimed—that is the difference between the election being voided and the seat being claimed—then: It has been ruled that the Writ should he withheld until after the trial of that claim or until the 'Petition has been withdrawn. In the case where, as here, according to information I have been given, there was a substantial majority, the possibility of that kind of petition being presented has really passed after the lapse of 21 days. Under subsection (3), Section 109, there are also two precedents in regard to that. I only took the precedent in relation to the period of 21 days, but there are two additional precedents in regard to that, because the law was the same at that time as it is today. In this respect the 1949 Act was a consolidation Act. There were precedents, in 1895 of 24 days and in 1910 of 24 days.

I can assure the hon. Member for Thirsk and Malton (Mr. Turton), and indeed the House, that our researches, and those of Parliamentary counsel, which have been careful in this matter, have not shown any precedents where the House has had regard to such a rule as that which the hon. and learned Member for Northants, South, now contends. There is no such rule.

There is no doubt that Parliament would be entitled to issue the writ immediately after the return to the Clerk of the Crown of the original writ, and it has done so on a number of occasions. Unless we are to contemplate a position in which Parliament can never issue a writ and finality can never arise, the only period to take appears to be the basic period of 21 days. That is the period we have taken in this case. We suggest to the House that this is not only the right period on the best view of constitutional law in regard to this matter, but that it is also a very cautious view.

Major Sir David Maxwell Fyfe

There is just one point which I should like to put for the consideration of the House and of the right hon. and learned Gentleman. I quite agree with the point the Attorney-General has made on subsection (2). That is a clear case, which he gives, of someone having made an agreement, and then the payment being made on a future date. Obviously, the case has far too much vagueness to take it into account. But I am not so happy about the point under subsection (3). This is a point we ought to get clear for procedure for the future. There, you have a quite definite and short period of 28 days—it may be shorter. As it is only a matter of seven days I should have thought that in deciding the practice of the House it would be more in accordance with caution and with the general feeling of what is right and proper that we should allow the full period of the 28 days to elapse. I put that point for consideration. It is a point which, as the right hon. and learned Gentleman has shown by his researches, may face either party. I should have thought that a suitable compromise fitting the dignity and propriety of the House would be the period of 28 days.

The Attorney-General

I do not know whether I may again intervene with the leave of the House. [HON. MEMBERS: "Agreed."] The House will appreciate that that period has no reality at all, except in a case where there has been a narrow majority and there is the possibility of proving under Section 144 that as many electors as made up that majority were disqualified by reason of having been bribed or whatever it may be. I cannot exclude the possibility that an election petition might be presented under subsection (3) of Section 109 in the case of the constituency which we are now considering, but I should think the House would consider that it is beyond practical politics that anyone would be able to prove under Section 144 that 19,000 people in this constituency—I am told that that was the majority, or some such figure—had been bribed and that their votes ought, therefore, to be rejected. It is only in such a case where there is a practical possibility of something of that sort arising that this period of 28 days has any real significance or importance.

If this had been a narrowly contested election, where the majority ran into only two or three figures, I would certainly have advised the House that it would be wise to wait and see if any petition which might claim the seat was presented. But it is really impossible—I put it as highly as that—for any petition to be presented now which would claim the seat. There might well be a petition presented which would void the election. That would not matter, of course, because we are having a new election. The election had already been voided by the application for the Chiltern Hundreds. The only thing that matters is a petition which claims the seat for another candidate, and that is now a practical impossibility.

Mr. Churchill

Would not the Prime Minister consider bringing the House together on this technical point? [HON. MEMBERS: "No."] I am asking the Prime Minister, and he can answer for himself. Will he not bring the House together on this point of allowing the 28 days to expire?

The Prime Minister (Mr. Attlee)

There does not seem to be any practical reason for allowing that period to expire. All the precedents in this matter are the other way.

Mr. Churchill

Not all of them.

The Prime Minister

I am not aware that any Opposition has been over-vexatious in these matters before. I was in this House on the previous occasions to which reference has been made, and I can well remember the incidents of 1922 and 1924. On those occasions I think it was done with the full acceptance of the House. I cannot see any reason for making, an exception in this case.

Mr. Churchill

What is the unusual and extraordinary hurry? Why 21 days and not 28 days? Surely it would be more natural to bring the whole House together—[HON. MEMBERS: "No."] All right, you are not the masters now. Surely it would be more natural to bring the whole House together on the more reasonable and extended period.

The Prime Minister

I might ask the right hon. Gentleman what is the unusual reason for delay. If I may say so, the right hon. Gentleman is the person who is creating a precedent in this matter. We are acting strictly in accordance with previous precedents.

Mr. Churchill

Oh, no. The onus and the initiative lay with the right hon. Gentleman and his hon. Friends who have created this vacancy.

Mr. Speaker

I think we had better get on.

Question put, and agreed to.

Resolved: That Mr. Speaker do issue his warrant to the Clerk of the Crown to make out a New Writ for the election of a Member to serve in this Parliament for the Borough Constituency of Sheffield, Neepsend, in the room of Lieut.-Colonel Henry Morris who, since his election to the said Borough Constituency, has accepted the Office of Steward or Bailiff of His Majesty's Manor of Northstead in the County of York.

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