HC Deb 18 July 1955 vol 544 cc33-84
Mr. Speaker

The Attorney-General.

3.31 p.m.

Mr. Sydney Silverman (Nelson and Colne)

On a point of order. Before the debate on the Attorney-General's Motion, I should like to raise with you, Mr. Speaker, a question of order, of which I gave you rather short notice this morning. I want to submit to you that the Motion in the name of the Attorney-General is out of order and not discussable in the House of Commons in that it offends against the rules under which we do not discuss matters which are sub judice. If I explain what I have in mind I hope it will be understood that it is not for the purpose of argument but only for the purpose of making my point clear.

In the first part of the Attorney-General's Motion the House is invited to resolve That Thomas J. Mitchell, returned as a Member for Mid-Ulster, having been adjudged guilty of felony, and sentenced to penal servitude for ten years, and being now imprisoned under such sentence, is incapable of being elected or returned as a Member of this House. Since the House is being invited to pass that Motion to resolve that matter, it is not necessarily—I emphasise necessarily—a matter of law.

Now, at this moment, there is in the High Court of Northern Ireland a petition pending in which a gentleman is claiming that he was returned to this House unopposed and ought to be declared a Member in spite of the fact that someone else contested the Election with him and obtained more votes than he did.

As I understand, the question that is being litigated in the Ulster High Court is whether that gentleman's claim to have been virtually returned unopposed is good or bad. But the ground of his claim is precisely that which is contained in part of this Motion, that his opponent had been adjudged guilty of felony, had been sentenced to penal servitude, and, therefore, was incapable of being elected or returned as a Member of the House of Commons. It looks as if the House this afternoon is being invited to resolve that the petitioner before the Ulster High Court is right. In other words, we are prejudging in this House—[Interruption.] I am making a submission to Mr. Speaker, and I think it is a substantial one. [HON. MEMBERS: "Go on."] Thank you.

It looks as though this House is, therefore, being invited, while this question is before the Ulster High Court, to resolve the precise question that is raised by the petitioner in the High Court, and I think that that is exactly what the House of Commons never permits itself to do. The facts on which I am making that submission are those communicated to us by the Leader of the House several weeks ago. He told us that there were two such cases, that there had been a petition in one of them, that the petition was still pending, that we could not discuss the case which was sub judice, but that we could discuss the other.

When we look at the terms of the Motion it seems quite clear that we cannot possibly discuss, and still less pass, this Motion without virtually giving an instruction to the judge trying the case in the Ulster High Court that the House of Commons is of opinion that the petitioner is right. I submit, therefore, that the Motion—I would not say it would be out of order always—is out of order now as being premature and will remain out of order until we know the result of the proceedings in the Ulster High Court.

Mr. Speaker

I am obliged to the hon. Member for Nelson and Colne (Mr. S. Silverman) for giving me notice of this point. He said it was short notice, but short, notice is very much better than no notice at all. I am quite satisfied that the hon. Member's point is misconceived. The case before us today is that of Mr. Thomas J. Mitchell and we can proceed on that case with the evidence that is before us. The case which is before the High Court is, of course, sub judice and will be decided by the High Court on the evidence relevant to that case which will be produced before it.

We have none of that evidence before us and, therefore, I must rule that that case is entirely a separate one and that we are entitled to proceed upon the case which is mentioned in the Motion. As I say, the High Court dealing with the other case will have before it all the facts that are relevant to that case. We have none of those facts before us. We do not discuss a case which is before the High Court, but we can proceed, as we are entitled to do, to deal with the case of Mr. Mitchell.

Mr. Silverman

With great respect, Sir, the difficulty in that is the real difficulty. One can understand that in the course of the debate one ought not to refer at all to the other case, but every single thing that is said in support of this Motion will be relevant, whether the other case is mentioned or not, to the actual issue on exactly the same footing in the Ulster High Court on the side of the petitioner, and everything said against the Government Motion today will be an argument on the other side. One would think it inconceivable, if the House decides this Motion one way or another while the other case is still undecided, that counsel in that case on one or the other side will not pray in aid whatever decision the House of Commons makes today on precisely and exactly similar facts.

It seems, therefore, that even if one refrains from mentioning the other case in the course of the debate, that does not carry with it any guarantee that we are not, nevertheless, offending against our own law, and are not trying to decide and not discussing in the House of Commons points of law that are, in fact, still awaiting judicial determination in the courts. The mere fact that the name of the petitioner or the person concerned in the case in the Ulster High Court is a different person from the person concerned in this Motion does not make the two matters independent. They are in every other respect the same.

Mr. Speaker

That is precisely the same point in another way. I think that the two cases are quite distinct. The High Court is bound to proceed upon the evidence relevant to the particular case before it and not upon what happens here in another case. I think the two cases are quite distinct and that we can proceed upon the Motion before us.

Mr. R. T. Paget (Northampton)

Further to that point of order. There is one thing here which worries me and makes me feel that we might get into some difficulty. I understand that the two men were jointly charged together. Now, what the Ulster petitioner is asking the court to say is that in that case it was a valid election but there was one candidature invalid, so that the result of that election was that somebody was elected. Here we are being asked to say that this was an invalid election and nobody was elected. If we come to this decision here, before the Ulster case is tried, are we not getting into certain difficulties, Sir?

Mr. Speaker

I do not see any difficulty at all. What we are pronouncing upon is the case of Mr. Mitchell. The court trying the other case has other issues before it and another person. According to what the hon. and learned Member has said, it is being asked to decide another question. It is nothing to do with us. But, equally, what we do here is no concern of the courts.

Mr. Frank Bowles (Nuneaton)

Supposing that the petitioner is unsuccessful in the High Court in Ulster, what shall we do, Mr. Speaker? Obviously, the Government will move a similar Motion, as they are doing today, when that case is over, and, in effect, we might be overruling the High Court in Northern Ireland.

Mr. Speaker

That is a hypothetical question. In the second place, the House is quite entitled to take cognisance of this Motion, no matter what anybody does outside.

Mr. Hugh Delargy (Thurrock)

Mr. Speaker, I am still in doubt as to how these cases can be, as you say, distinct. These two men were tried jointly. They were tried for the same offence in the same court by the same judge on the same day at the same moment. They both behaved in exactly the same fashion in the court. The evidence against them was identical. It was the same evidence. Therefore, if this House comes to a decision on one, surely we are telling the High Court of Northern Ireland that it should come to the same decision on the other. Surely, therefore, it would be more prudent for us not to discuss this matter today but to wait until the High Court in Northern Ireland has come to its own decision. What could we lose by delaying this discussion until the High Court has come to its decision?

Mr. Speaker

The hon. Member has given us a lot of information about the trial, none of which is before us in the way of evidence. What happened in the trial is irrelevant to this Motion. We are being asked to consider a Motion moved about a definite person for a definite reason. The debate is confined to that. I do not see that the two cases at all conflict with each other.

Mr. Hector Hughes (Aberdeen, North)

Further to that point of order, Mr. Speaker. May I respectfully suggest that it is very important to divide the inessentials in this matter from the essentials. May I say, with respect, that you appear to place great reliance upon the fact that the names of the two men are different? But surely that is an inessential fact, and the fundamentals and essentials are those which are set out in the first part of the Motion, as my hon. Friend has said.

The two men were guilty of felony. The two were sentenced to penal servitude. The two are imprisoned under that sentence, and it is suggested that one is incapable of being elected to this House and the other is not. In the event of a certain course being taken in the Belfast court, that decision may well be treated as a precedent governing this particular case. Would it not stultify this House and put it in an impossible position if we discuss this matter and determine it on that basis, and then the court in Belfast takes that course? I suggest that the reasonable, rational and proper thing would be to postpone this discussion, to regard this as sub judice until after the proceedings in the Belfast court have been heard.

Mr. Speaker

That is just the same point again. I am not influenced by the fact that the names are different. What influences me is that the two men are different men.

Mr. S. Silverman

Let me put the point in this way, Sir. There are two sides to the question whether the matter is sub judice or not. One is whether the House of Commons would be embarrassed in its debates. The other is whether the court would be embarrassed in its decision. Even if the House could discuss Mr. Mitchell's case without mentioning the other case at all, and, therefore, not being in any way embarrassed by Mr. Mitchell's case, it is not equally clear that the judge trying the other case would not be embarrassed by our discussions which are discussions about the very point which he is being called upon to decide. It is out of respect to the court and with the intention of not embarrassing or influencing or prejudicing a judicial decision that the House refrains from discussing this matter until the judicial determination.

Mr. Speaker

I do not think I need follow that point too far. I do not think that any of the judges would be embarrassed by what is said in this House about an entirely different case. The hon. Member tells us that the cases arise out of the same facts, but the only case about which we have any evidence before us is this case, and the evidence before us is evidence produced in the Return to an Address from this House.

Mr. Paget

May I add one word, because I do not know if I made my point clear? If the Ulster case is successful, that means that Mr. Mitchell was not elected at all but that somebody else, his opponent, was successful. If we carry the second part of this Motion we shall be ordering a by-election in a constituency which is already validly filled.

Mr. Speaker

As I understand from what has been told me about the case that is before the courts, though I have no evidence about that, they are asking for a form of relief which consists in a declaration that the other man was elected. There is no such case before us here at all. We are entitled to take note as a House of Commons of a vacancy in our numbers and to proceed to fill it up. We are entitled to do that. In fact, it is our duty. Therefore, there is no reason why the House should be further detained from considering what the Attorney-General has to say.

3.47 p.m.

The Attorney-General (Sir Reginald Manningham-Buller)

I beg to move, That Thomas J. Mitchell, returned as a Member for Mid-Ulster, having been adjudged guilty of felony, and sentenced to penal servitude for ten years, and being now imprisoned under such sentence, is incapable of being elected or returned as a Member of this House: That Mr. Speaker do issue his Warrant to the Clerk of the Crown for Northern Ireland, to make out a New Writ for the electing of a Member to serve in this present Parliament for Mid-Ulster, in the room of Thomas J. Mitchell, adjudged and sentenced as aforesaid. The House will see that the Motion consists of two parts, and I will deal with each part separately. The first consists of a Motion for a declaration by this House That Thomas J. Mitchell, returned as a Member for Mid-Ulster, … is incapable of being elected or returned as a Member of this House. The House has received a Return which shows that Thomas J. Mitchell was convicted at Belfast Assizes on 30th November, 1954, on three charges of treason-felony under the Treason Felony Act, 1848, and that on 15th December, 1954, he was sentenced to ten years' imprisonment on each count, to run concurrently.

Now I come to the consequences that flow from those convictions and sentences. Section 2 of the Forfeiture Act, 1870, provides—and I will quote the important words, leaving out the immaterial ones: … that if any person hereafter convicted of treason or felony, for which he shall be sentenced to death [penal servitude] or any term of imprisonment [with hard labour, or] exceeding twelve months, shall lose any office he holds. Then the Statute goes on: and such person shall become, and [until he shall have suffered a punishment to which he has been sentenced, … or shall receive a free pardon from Her Majesty), shall continue thenceforth incapable of … being elected, or sitting, or voting as a member of either House of Parliament … So by Act of Parliament, Thomas J. Mitchell having been convicted of felony and sentenced to ten years' imprisonment was incapable … of being elected, or sitting, or voting as a member of this House.

Mr. John Rankin (Glasgow, Govan)

Why was he allowed to stand?

The Attorney-General

I will deal with that point in a moment.

May I refer to the first part of the Amendment which has been tabled in the name of the hon. Member for Nelson and Colne (Mr. S. Silverman)? The Amendment asks for the appointment of a Select Committee to examine into the precedents in the law of Parliament"— I do not quite know what is meant by that expression— relevant to the return of Mr. Thomas J. Mitchell for Mid-Ulster and to report to the House whether any and what amendments are required … I suppose that the reference to amendments must be taken to mean amendments to the law of Parliament but, under the law of this country, by Act of Parliament, Mr. Mitchell was incapable of being elected. Therefore, I submit to the House that there is no point in the appointment of a Select Committee for the purposes stated in the Amendment. Not only is the law clear, but I think that I should also add that the precedents since 1870 conform to the law as laid down by the Forfeiture Act, to which I have referred.

Mr. S. Silverman

I am obliged to the Attorney-General for allowing me to intervene. Is not the House being asked next Friday to do the very thing which the Attorney-General has just told the House it is unnecessary to do? It is not only people who are in the position of Mr. Mitchell who are declared incapable of being elected or returned. There are four or five people who were elected or returned and who have been declared not to have been capable of being so, and the Government are inviting the House next Friday to amend the law to remove that disqualification. Therefore, the first part of the Amendment asks no more than that the House should do in this case what it is already going to do in a number of other cases next Friday.

The Attorney-General

I should have thought that there was a very clear distinction between the kind of disqualification which is contained in that Bill, which we shall have the opportunity of discussing on Friday, and disqualification effected by Act of Parliament of someone who has been convicted of a felony and sentenced to more than twelve months' imprisonment.

Mr. Silverman

No difference in law.

The Attorney-General

The law stands. The Forfeiture Act is still the law.

The second part of the Motion asks that you, Mr. Speaker, issue your Warrant to the Clerk of the Crown for Northern Ireland, to make out a New Writ for the electing of a Member to serve in this present Parliament for Mid-Ulster, in the room of Thomas J. Mitchell, adjudged and sentenced as aforesaid. Erskine May states, on page 186, that The House is, in fact, bound to take notice of any legal disabilities affecting its Members, and to issue writs in the rooms of Members adjudged to be incapable of sitting The words are: … to take notice … and to issue writs … Erskine May goes on to cite instances where the House has so acted, declaring the incapacity to sit and ordering the issue of the new Writ. I quote from Erskine May this passage: In such cases as these, the jurisdiction and duty of the House cannot be questioned, as the incapacity of a felon is expressly declared by statute. It is in view of these precedents and the statements in Erskine May that I move the second part of the Motion. Indeed, in my submission, it would not be right to leave this seat vacant for the duration of this Parliament.

Mr. Paget

What has been worrying me a little is the question: is the seat vacant? If, as the right hon. and learned Gentleman has stated, Mr. Mitchell was incapable of being a candidate, there was only one candidate at this election. Why is he not elected, and why is he not the Member here? I ask that for information.

The Attorney-General

I will deal with that point, which the hon. and learned Member has made more than once already this afternoon, but I prefer to follow the order in which I was intending to take this matter.

Those are the reasons why I move the Motion and ask that the Amendment should be rejected. One or two questions, in addition to those raised today, were raised when my right hon. Friend the Lord Privy Seal made his statement. I should like to refer to them. The first question was raised by the hon. Lady the Member for Liverpool, Exchange (Mrs. Braddock). She asked the question which the hon. Member for Govan (Mr. Rankin) has raised again today—how it was that if Mr. Mitchell was incapable of being elected he ever came to be nominated. The answer is that a returning officer cannot refuse to accept a nomination on the ground that the candidate is disqualified.

He is concerned with the validity of the nomination paper, and the only grounds on which he can refuse a nomination are set out in Rule 13 (2) of the Parliamentary Elections Rules, which form part of the Representation of the People Act, 1949, namely: (a) that the particulars of the candidate or the persons subscribing the paper are not as required by law; and (b) that the paper is not subscribed as so required.

Mr. Bowles rose

The Attorney-General

I should like to deal with this point first. I will certainly try to deal with all points.

I am sure that a moment's consideration will convince hon. Members that it would be quite impracticable to give the returning officer power to decide that a candidate who has been properly nominated is disqualified. Time would not permit of a proper adjudication of that problem. One might find all kinds of difficulties arising. I am sure that the House will agree that one could not leave it to the returning officer to decide on the qualification of the candidate. All that he can decide is whether the nomination paper is in order.

Mr. Bowles

I think that we on this side of the House all agree with the Attorney-General's last remarks, but what will happen if Mr. Mitchell gets nominated and elected again? Will we have to keep on doing this?

The Attorney-General

That is the second hypothetical question which the hon. Member has asked today. It depends, of course, upon what candidates are nominated but, assuming that the same candidate is nominated, two different courses might follow.

One is the possibility that we should have to move for the issue of another Writ. Another possibility—and I say this in view of the question asked by the hon. and learned Member for Northampton (Mr. Paget)—is that the defeated candidate might claim the seat by petition.

Mr. S. Silverman

He might not.

The Attorney-General

He might not, but again he might. Where a seat is claimed by petition, it is not the custom of the House to move for the issue of a new Writ where a petition is pending and, of course, the petition claiming a seat is based upon the ground that the votes cast for the person who has the majority—

Mr. Silverman

On a point of order. I do not want to prevent the discussion upon which the Attorney-General is now embarking, but I should like it to be clear that it will be equally in order for the debate as a whole. The Attorney-General is now explaining what the petition in the Ulster High Court is about. I may not agree with his account of that matter. Will we be entitled to discuss that, or is it clear that we cannot?

Mr. Speaker

I understand that the Attorney-General had only got as far as a general statement of the law and had made no reference to the case in the Ulster High Court at all.

The Attorney-General

I had only intended to make a general reference to the law and was about to do so in answer to the hon. and learned Member for Northampton.

I repeat that by a Petition the seat can be claimed on the ground that the votes cast for the candidate who has secured the majority of the votes are, in fact, votes thrown away. When the time for a petition being lodged has expired, as it has in the case of Mid-Ulster, the only course then remaining is to move for the issue of a new Writ.

I hope I have dealt shortly with some of the points which have been raised in the course of this discussion. I trust, also, that I have made it clear that the first part of this Motion is clearly established by the Return this House has received and, secondly, that in these circumstances it is in accordance with precedent that one moves for the issue of a new Writ.

4.1 p.m.

Mr. Sydney Silverman (Nelson and Colne)

I beg to move, in line 1, to leave out from "That" to the end of the Question and to add instead thereof: a Select Committee be appointed to examine into the precedents in the law of Parliament relevant to the return of Mr. Thomas J. Mitchell for Mid-Ulster and to report to the House whether any and what amendments are required: That no Warrant for a New Writ shall be issued for the said constituency during the present Parliament. The Attorney-General expressed a little curiosity about some of the terms in which the Amendment is drafted. He said, quite correctly, that the Motion he has moved is in accordance with precedent. The Amendment which I am now moving is in accordance with precedent, too. The Amendment consists of two parts. The first part is the Amendment which was moved—I admit, before the passage of the Forfeiture for Felony Act of 1870—in the precisely similar case of Mr. Michael Davitt. The second part is the Amendment which was moved to the corresponding Motion—long after the Forfeiture for Felony Act of 1870—in the case of Colonel Lynch.

The House will remember that the case of Mr. Davitt was almost an exact parallel to that of Mr. Mitchell. In the case of Colonel Lynch the situation was that he had taken part with Boers against Her Majesty's Forces in the Boer War and had been elected by a constituency in Ireland with full knowledge of that fact. The Amendment which is represented by the second part of my Amendment was on that occasion moved by a Tory Member, whose argument was that the constituency had been so ill-behaved that it had known that this man was a traitor, it had known that he had actually levied war against the Sovereign and had actually taken sides with the Queen's enemies, and that, knowing all those facts, it had, nevertheless, voted for him. In the opinion of that hon. Member the constituency would be better unrepresented in those circumstances, as a mark of the disapproval of the House of the choice of the constituency. So, at any rate, there is some precedent for the Amendment I have moved.

Before going on to deal with the more technical side, I would invite the House to look for a moment at the common sense of the situation. It is all very well to say that what will follow the passing of this Motion, if it is passed, is hypothetical. It may be hypothetical, but something will happen if we pass this Motion and it is mere prudence for us to consider what the possible alternative is and what the situation of Parliament would be on either view.

Sometimes one detects in newspaper comment and sometimes in comment in this House—it has not been entirely absent from our discussions this afternoon—a sense of fun creeping in. It is a situation which appeals to the sense of humour of some hon. Members. I suppose it is not altogether new in Irish affairs and I suppose it does no very great damage to politics if we carry a sense of humour into our discussions from time to time, but the real question is: who is to have the best and the last laugh if we proceed with the Motion and the doctrine presented by the Government?

This House never looks very dignified when it is having a row with a constituency as to whom the constitutency ought to elect to Parliament. There is no case in history in which Parliament has won such a contest. I suppose it is right to say that Parliament ought never to win such a contest. Why, then, should we invite a contest now, unless we are under grave compulsion to invite it? What advantage to the House of Commons, what advantage to the Constitution, what advantage to democracy, is being sought by this Motion?

If the Attorney-General has his way, a new Writ will be issued. If other people are as loyal to tradition in these matters as the Government wishes us to be, they may very well renominate this gentleman. We are almost inciting them to do it. We are saying to them, "You may know whom you would prefer to elect, but we say you must not elect him; you must elect somebody else." The reply from every English constituency—and, I suppose one might say without disrespect a fortiori, from every Irish constituency—would be, "Be hanged to that for a tale. We will elect whom we wish."

Suppose they do. It is possible, no doubt that the defeated candidate may claim the seat by a petition. He may even succeed. If he succeeds he may come here, take the oath, make speeches and take part in votes. On whose behalf? Nominally, on behalf of mid-Ulster, but in circumstances in which all mid-Ulster, all Ulster, all Ireland, all the United Kingdom and all the world knows he is falsely representing himself to be speaking for the constituency, the constituency having repeatedly declared, by a majority, that whatever else it wanted it did not want him. Is it really contended that our Constitution, our Parliamentary democracy, our representative system, would be advantaged by that? What good is sought, what good is won, if that is the result?

It is possible that no such claim will be made. If no such claim be made, presumably the same precedents will exercise the same compulsive powers on the minds of the Leader of the House and the Attorney-General as on this occasion because there would be no means then of distinguishing between Mr. Mitchell elected the second time and Mr. Mitchell elected the first time. Will the Attorney-General then come back with a new Motion, asking for a new Writ to be issued and a third election? Has the right hon. and learned Gentleman never heard of John Wilkes?

Mr. Hector Hughes

Or Daniel O'Connell?

Mr. Silverman

Or a great many other people.

There are other alternatives. There is the possibility that somebody else, and not Mr. Mitchell, may be elected, somebody who has not been convicted and who is not in prison, but somebody who takes exactly the same view about all these matters as Mr. Mitchell, and who, presumably, will not come here at all.

There is something to be said in this connection about the Return on which the Attorney-General relies. It is a one-sided Return; it is an ex-parte statement. We know that Mr. Mitchell did all these things because we have a paper, printed in the Stationery Office, to say so, and nothing more, so far as I understand.

So far as the proceedings are concerned, they were proceedings in which this gentleman refused to open his mouth at all. None of these matters has ever been investigated. Nobody knows on what evidence they are based. He refused to recognise the court. One understands that he would have refused to recognise Parliament. We are making all this commotion and raising all these important constitutional questions without the slightest need because, if I understand the matter correctly, if we had never done anything at all, no one would ever have heard of Mr. Mitchell again. He was elected not to come, so if the Government have their way this will go on and on and on. For what? I suggest that, before I come to the technical or legal side of the matter, as a matter of policy the Government might well reconsider this situation.

We are not now living in the middle of the nineteenth century but in the middle of the twentieth century. Questions of free elections are being looked at in many circumstances in many parts of the world. If it is right to take the view that when a man is in conflict with the Government or the régime of his country, when he refuses to recognise it, when he commits acts of sabotage against it, when he levies war in order to overturn it, when he is prosecuted and convicted for those offences, he is then incapable of being elected to a free Parliament, what are we to say in Geneva about East Germany, Eastern Europe, and all the questions in which this matter of free elections is being looked at with such care and in such difficult circumstances all over the world?

I am not seeking to say that the things are the same; not at all. I am only saying that they are quite different because we happen to be the Government or the régime or the political system offended against. These things look very different in other countries. The Motion before the House will look very different in the United States from what it appears in Ulster or in London. These are substantial questions. I think that the Government have been hasty in what they have done. I think that they have not considered all the implications in all parts of the world of taking this rigid, legalistic line which they are inviting the House to adopt this afternoon, and which I hope the House will not take.

Mr. Raymond Gower (Barry)

When the hon. Gentleman was quoting two very interesting precedents, I wanted to ask him whether he had considered the direct precedent in 1875 of Mr. John Mitchel, who was elected for Tipperary, and who was unseated on a Motion of this kind. He was then re-elected and unseated on petition. Does not the hon. Gentleman think that that is the best precedent before the House? Secondly, has he considered the force of the injunction in Erskine May that the House must take notice of it?

Mr. Silverman

As to whether the House must or must not take notice of it, that comes in the second part of what I have to say, and I will refer to it. As to the precedent to which the hon. Member referred, I am not aware of it, I have not gone into it, and I am not prepared to express an opinion about it, except to say that even if the hon. Member is right in thinking that to be unseated on a petition after a second election is the best way of dealing with the matter, it is no guarantee, even if he is right, that that course will be followed if the House passes this Motion.

I have no more sources of information than anyone else, but I understand that the decision by the defeated candidate not to petition in the Mid-Ulster case was a deliberate decision taken by him and his political friends and associates on principle, because they thought it better to do that for reasons that do not concern me. There is no reason to suppose that in a second election they would think differently.

I now come to the second part of what I have to say. I shall not take long, but I want to make the point which I have in mind. I can understand very well that the Government might say, "We recognise all these difficulties but we have not been short-sighted or hasty or imprudent at all. We are doing this because we are compelled to do it." That is the point which the hon. Member for Barry (Mr. Gower) was asking me about just now, in his reference to Erskine May—that we must take some notice of it.

We must take some notice of it when a man comes here, takes the oath, sits among us, and speaks and votes. That is not what happened in this case, and, on all the indications, will not, in fact, happen in this case. Unless it does happen, the House is by no means compelled to take any step about it at all. Of course, it is not. The right hon. and learned Gentleman invited me to say that there was a very great difference between a man who was to be declared incapable of being elected because he was a convicted felon and a man who was incompetent to be elected or take his place among us because he held, or was held to hold, an office of profit under the Crown. In principle, there is no difference at all.

In both cases, the man concerned is declared by law incapable. We have had many such cases in the last ten years. In every one of them we have referred it to a Select Committee to consider; not merely to consider whether an offence had been committed, but also to consider what action to recommend to the House if an offence had been found to have been committed. In the case, a few years ago, of Mr. Macmanaway, a Select Committee inquired into it and came to a conclusion. It was debated here, and then the Privy Council held that it had come to a wrong conclusion altogether. In a number of other cases the Select Committee—and there were various Select Committees and I was on one myself—came quite clearly to the conclusion that the gentleman concerned was incapable of being elected, but recommended that an Act of Parliament should be passed to put the matter right.

Captain L. P. S. Orr (Down, South)

In the case of Captain Peter Baker, for instance, who was convicted of a felony, the matter was not referred to a Select Committee.

Mr. Silverman

I know. I am coming precisely to that kind of case. When Captain Baker was elected, he was perfectly capable of being elected, and was rightly elected. But the House has always taken, and I hope always will take, a very strict view of the moral obligations of Members of Parliament. If we come here and set ourselves up as legislators, certainly there is a minimum standard of common honesty which we may well be expected to observe. That is quite right and the House has always insisted on its rights; but it is not bound to do so. It need not do so unless it thinks fit.

What I want to say to hon. and right hon. Members now, in the middle of the twentieth century, is that a man may be in jail for perfectly honourable reasons. There are many hon. Members of this House—I am one of them myself—who spent some time in prison in the First World War because we thought it would be wrong to take any part in it at all. Some of those Members sit on the Opposition Front Bench, some of them have held high office under the Crown—and why not? When one finds world statesmen and world scientists combining now to tell us that only the utter renunciation of war can save mankind from complete destruction, whether we still hold exactly the same opinions that we held forty years ago or not, we may still say that we are not ashamed of having held them and are not ashamed of having paid the price of holding them and standing by them, as we would again in the same circumstances.

The mere fact that a man has been convicted in a court is not necessarily a dishonourable thing. [An HON. MEMBER: "Patriotic felons."] Certainly; there have been a great many patriotic felons in the history of the world and there will go on being a great many while humanity retains any confidence in any of its ideals.

However wrong this man Mitchell may be, no one doubts that whatever he did or whatever he did not do was done not for private profit or greed or selfish motives of any kind but, if one likes so to describe it, in a mistaken spirit of superimposed martyrdom to express an idea of liberty which seemed the right idea to him, whatever it seems to us. Therefore, there is no necessary moral turpitude involved in the facts, if they be facts, contained in the White Paper and no such compulsion as arises in this House, where a man obviously does things which make him worthy on moral grounds to be a Member of the House of Commons.

I come to my final point. Rather than to go on with this recurrent farce of unrepresentative election after unrepresentative election, I say that it is far better that the House should resolve that during this present Parliament no Writ should issue. These people have decided that they do not want to be represented here. They have elected a man for that reason.

Captain Orr

Surely there is a difference. Had they wished to elect a man for that reason, they could have elected a man who was an abstentionist: in other words, someone who was not a convicted felon.

Mr. Silverman

They could have done, just as the electors in the hon. and gallant Member's constituency could, if they had chosen, have elected somebody else; but the fact with which we are dealing is that they did not. They elected this man, and they elected him not because he could not come because he was in jail but because it was part of their policy to say, "We really ought to belong to Southern Ireland. We do not want to be represented at Westminster and we will declare our political faith by electing somebody who undertakes not to go there." That is what happened. If they really have declared, in a properly conducted election, by a very large majority, that they do not want anyone to come here and represent them, why in the world should we compel them?

Why should we go through the farce of electing man after man, or, possibly, allowing the seat to be claimed by a man who had a minority of the votes coming here and pretending to represent Mid-Ulster when, quite clearly, he does not represent Mid-Ulster? I say to the House that it is very much better in practice, very much more convenient and much sounder Parliamentary democracy for the House to resolve that no Writ shall issue, in the hope that before another Parliament is elected all these questions may have been peaceably resolved.

4.26 p.m.

Mr. Eric Fletcher (Islington, East)

I beg to second the Amendment.

In view of the full way in which my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) has proposed the Amendment, I shall be able, in rising to second it, to do so very shortly. First, I should like to deal with a point made by the Attorney-General. In his quotation from Erskine May, the right hon. and learned Gentleman seemed to suggest—I hope he did not do it deliberately—that the House was under some obligation to pass the Motion which he invited the House to pass. That is not the fact at all. What Erskine May says is this: The House is, in fact, bound to take notice of any legal disabilities affecting its Members, and to issue writs in the rooms of Members adjudged to be incapable of sitting. I think the Attorney-General will agree that that means, "in the room of Members adjudged by this House to be incapable of sitting." We are bound to take notice of the situation, but not necessarily to accept the Attorney-General's Motion.

As my hon. Friend has said, there is no difference in principle between the duty of this House when a Member is ineligible either because he has held an office of profit under the Crown or because he has been convicted of a felony. It is a matter of which the House has to take cognisance and has to come to a decision; but the House is free to come to whatever decision it wishes, and it has to do so partly in the light of precedents but, as my hon. Friend has said, more particularly in the light of common sense, and of the realities of the situation. Therefore, this afternoon it is competent either for the House, having heard the facts, to accept the Attorney-General's Motion or, as I think would be far more sensible, to accept the Amendment proposed by my hon. Friend.

If we accept the Amendment, what the House then does is to refer the entire matter to a Select Committee so that we could then, at any rate, whatever action might subsequently be taken, have the whole of the relevant facts before us. One of the reasons why I urge the House not to accept the Attorney-General's Motion today is that at present we do not have all the relevant facts before us. If the matter goes to a Select Committee, we should have the relevant facts.

I do not want to rely on purely technical reasons, but there are certain technical flaws in the Attorney-General's Motion. As you, Mr. Speaker, have said, we have to be very technical in these matters and we have to rely strictly on the evidence before us. When we had the case the other day of the failure of the Postmaster-General to deliver the Return in the case of the hon. and gallant Member for Knutsford (Lieut.-Colonel Bromley-Davenport), we had to have a special Return from the Clerk of the Crown.

This matter may be technical, but why it is premature for the House to come to a decision today, and why it would be better to have the facts investigated by a Select Committee, is because, first, nobody in the House has yet seen what Return has been made. There is no proof of identity. There is no evidence that the Return of the elected person at the top of the poll relates to the same person as that mentioned in the Return filed by the Home Secretary about the Mr. Mitchell who has been convicted.

If it be assumed that that is the case, there is still another aspect of the matter on which the Select Committee would be able to take evidence. Has there been any application for a pardon? After all, this is a pardonable offence and the precedents show that it is within the prerogative of the Crown to grant a pardon in this kind of case if one is asked for. I am not suggesting that it is likely, but these are facts which should be inquired into. Furthermore, we have no evidence from Mr. Mitchell himself, who was elected head of the poll.

If the matter were referred to the Select Committee we should have an opportunity of considering the precedents. I suggest to the Attorney-General, therefore, that while the precedents are important, no one would suggest that this House is bound by them. My view is that the precedents do not require the House on this occasion to accept the Motion.

First, the facts are quite different. All the precedents come from the last century—over fifty years ago—when there was no separate Parliament in Northern Ireland, when there was no Irish Free State, when the whole condition of affairs as between this country and Ireland was quite different. Since then the constitutional position has changed. Eire is now a foreign country vis-à-vis Great Britain. There is a separate Parliament in Northern Ireland. There has been a complete change, therefore, in the temper and atmosphere of relations between this country and Ireland.

There are people in these two constituencies who, as my hon. Friend has said, definitely desire to elect someone at the head of the poll whom they know will boycott this House. They are entitled, if they choose, to do that as a matter of protest. If democracy means anything, it surely means that any electorate in any constituency by a majority can choose someone who will carry out their wishes There is no doubt whatever what are the predominant wishes of the people of Mid-Ulster. If they wish to elect someone who will not come to this House, they cannot carry out that wish better than by electing someone who is in prison for the next ten years.

I am not arguing whether that is a good thing for them to do or whether it is a bad thing. All I am arguing is that representative Government, as I understand it, means that an electorate is free to elect someone to carry out their wishes and that if we accept the Motion it seems to me that we are depriving them of their rights and defeating their chief objective.

I am not basing my argument merely on the present temper of Irish politics and relations between this country and Eire. I think it is impossible to reach a decision on this matter without referring to the related case of Fermanagh and South Tyrone. That matter is sub judice and we do not know what decision the High Court of Northern Ireland will reach. Yet we cannot be oblivious of the fact that here, in two neighbouring constituencies, a precisely similar electoral result occurred. In the case of Mid-Ulster, Mr. Mitchell had a majority over Mr. Beattie of 260; in Fermanagh and South Tyrone, Mr. Clarke, also a convicted felon, had a majority of 261 over Lieut.-Colonel Grosvenor. Lieut.-Colonel Grosvenor is petitioning to the High Court of Northern Ireland, we do not know what the result of the petition will be and we are not concerned while it is sub judice.

For some unexplained reason there has been no petition by Mr. Beattie in this case—and that answers the question put by my hon. and learned Friend the Member for Northampton (Mr. Paget). He pointed out not merely the inconsistent results that will arise if we accept the Motion, but the incongruous position that will ensue. We may well find that in Fermanagh and South Tyrone the High Court of Northern Ireland decides that the defeated candidate shall be returned to Parliament. If that happens I reserve my right to comment on that at the time and to say whether this House should accept that decision or not. Personally, I would not be prepared to accept the decision of the High Court of Northern Ireland if that is the result, but I am not commenting—

Mr. Deputy-Speaker (Sir Charles MacAndrew)

The time may come for that, but this is not the time for it.

Mr. Fletcher

I appreciate that, Mr. Deputy-Speaker. I was merely reserving my right if that time should come, and saying that in that hypothetical case we should have the most astonishing and contradictory result, because in that event we should find a defeated candidate claiming to sit here.

In this case, without any full examination by a Select Committee of what the precedents are, we shall be declaring the seat vacant and we shall be inviting a new election in which, presumably, either Mr. Mitchell can stand again or somebody else in a Belfast gaol can stand, or somebody who is not in gaol can stand who will presumably be elected if he is determined, if elected, not to come to this House but to protest against the present partition of Ireland.

Viscount Hinchingbrooke (Dorset, South)

The best way to protest is to come here and do so.

Mr. Fletcher

The noble Lord says that the best way is to come here and protest. That may be the view of the noble Lord, but it is for the electorate in Northern Ireland to consider what they think is the best way to protest.

I am not canvassing the question whether their protest or their policy is wise or sensible. I am not concerned with that. I am concerned to point out that, as a matter of elementary constitutional principle, it must be for them to decide what they consider is the best and the most effective method of protest, and if they chose to do it in that way why should we want to thwart their wish?

This is not the same case, as it was in 1870, when the cases of John Mitchel and Davitt and Rossa and the others were being decided. In those days there was no self-government in any part of Ireland, and Irish policies were quite different, but today I should have thought this House would have wished, for motives affecting its own self-respect and also from motives affecting the relationship between this country and Ireland, not to do anything unnecessarily to embitter or complicate the relations between the two countries.

Bearing in mind that there are these two completely parallel cases—the case pending in the High Court of Northern Ireland which is sub judice and, for some unexplained reason, no petition in this Mid-Ulster case—I ask myself and I ask the House on what grounds of pressure or haste or urgency can it be necessary or desirable for the House to reach a decision on this matter today?

Would it not be far better, as we have done in all the other cases of disqualification through offices of profit, to have the facts brought out by a Select Committee so that all sides and aspects of this complicated and debatable subject can be inquired into? Then at leisure, with those facts before it, the House can come to a decision. For those reasons, therefore, I hope that the House will accept the Amendment.

4.39 p.m.

Mr. Montgomery Hyde (Belfast, North)

I must confess that there are certain features about the Amendment moved by the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) which I find attractive. However, I cannot agree with most of the arguments which he adduced in favour of it, except his argument based on common sense. As against that, I find myself up against what was said by my right hon. and learned Friend the Attorney-General about the legal position, as the facts of the present case require the law to be applied. I think that, from the point of view of the constitutional precedents, that argument is unanswerable, but it does not seem to me to be an argument altogether in conformity with the principles of common sense.

I am sorry, therefore, that I cannot support, or give more than qualified support to, the Amendment, although I have some sympathy with it, particularly the second part of it, which suggests that there should be no new Writ for the Mid-Ulster constituency, for the simple reason that I believe that to be the wish of virtually the whole of the constituents of that division.

It is always a serious matter when this House is asked to set aside the expression of the will of the majority of the electors in any constituency. In the case of Mid-Ulster, I think that perhaps the House should be aware of some of the facts which have led up to this rather unusual position, which perhaps are not generally known.

Before I mention them, I should like to say a very brief word on the first part of the hon. Gentleman's Amendment. The hon. Member has referred to one or two of the precedents. I have taken the trouble to look them up, and I must say that they all seem to me to be quite cast-iron. They are all cases of Irishmen with similar political inclinations to Mr. Thomas Mitchell, and they were all convicted of treason-felony and their certificates of conviction were brought before this House.

My hon. Friend the Member for Barry (Mr. Gower), in an interjection, mentioned the case of John Mitchel, in 1875, which is superficially a case not dissimilar to the present one because there were two elections. In the case of John Mitchel, in 1875, the first election was an unopposed return, and there was no defeated candidate. Then, on the Motion of the Prime Minister of the day, Mitchel was held to be disqualified, but his supporters put him up a second time. On the occasion of the second election, he was opposed by a Conservative candidate, and again he was returned. The defeated Conservative presented a petition, but, while the petition was before the court, John Mitchel died.

That case is fundamentally different from the present case, because John Mitchel made it perfectly clear that if he was elected he would come here and take his seat in this House, whereas Mr. Thomas Mitchell made it clear in the Election address which was issued from his prison cell, that on no account, even if released, would he come to this House.

In the previous cases, as I have said, the disqualified candidate has usually been willing to take his place, but, in the present case, Mr. Mitchell not only announced his intention of boycotting this House if he was elected, but made it known to the electors that that was his intention. The electors were also advised by the unsuccessful candidate that any votes cast for Mr. Mitchell would be void and thrown away. Notwithstanding that, the electors who voted for Mr. Mitchell did so when perfectly conscious that their votes would be thrown away and that they were voting for someone who had no intention of coming to this House.

As far as the position of the defeated candidate—Mr. Beattie—in Mid-Ulster was concerned, he might have taken a similar course to that taken in the neighbouring constituency of Fermanagh and South Tyrone. He might have presented an election petition, but he and his friends in the Unionist Association for Mid-Ulster, representing the 29,000 electors who voted for him, after very careful consideration decided that they would take no such action, and would not present an Election petition.

Apparently, they were under the impression—as it turned out subsequently, a mistaken one—that if they took no action, then the position might remain precisely as it would have done had the candidate returned at the top of the poll not been a disqualified person but merely an abstentionist.

What, then, will happen if the seat is declared vacant and a by-election takes place? The Sinn Fein organisation has already announced its intention of putting up Mr. Mitchell again as its candidate. The Unionists in the division may well—in fact. I think it is extremely likely that they will—run the defeated candidate again. In the event of Mr. Mitchell being returned for a second time, it is not beyond the bounds of possibility that the Mid-Ulster Unionist Association will decide again not to present an Election petition, so that this business which we are considering today will start all over again. Thus, it looks as if the electors of Mid-Ulster are faced with the prospect of a seemingly endless series of by-elections

I do not know whether that is a good thing, nor would I wish to predict how this matter will resolve itself. But I will venture one remark with some confidence. Only in Ireland could such a thing as this take place, and perhaps it is as well, if Parliamentary democracy is to survive, that it is unlikely to happen anywhere else in these islands.

4.48 p.m.

Mr. Hugh Delargy (Thurrock)

I am afraid I could not follow all the points made by the hon. Member for Belfast, North (Mr. Hyde), because I did not see that all were relevant.

I do not know, for example, why it was that he raised the point that Mr. Mitchell had announced from his prison cell that, even in the event of his being elected, he would boycott this House. I do not see how that is relevant to this business, because other Members elected for the same constituency have followed the same policy, and the electors, if they wish to elect persons who will abstain from attending this House, are quite entitled to do so.

In 1935, for example, two people were elected for the constituency of Fermanagh and Tyrone. They were not Sinn Fein but Nationalist Members, and they refused to come here for ten years. In 1945, however, when a Labour Government was elected to this House, they came here with great enthusiasm. During the ensuing years, they saw that their enthusiasm had been somewhat misplaced, and they did not get from the Labour Government the things which they thought they were entitled to get from such an administration.

No one who follows the politics of Northern Ireland will ever be surprised that any Nationalist, any anti-Unionist, or any Sinn Feiner elected for this constituency in future will refuse to come here, because, if they got nothing from the Labour Government, they are likely to get less than nothing from a Tory Government.

I am neither a lawyer nor a historian, and the Forfeiture for Felony Act, 1870, and the various precedents to which allusion has been made are matters about which I can speak with no authority at all. However, after listening closely to the short and rather dry speech by the Attorney-General, I concluded that he was trying to persuade the House in this way. He said that if we took the decision which he asked us to take, certain hypothetical things might occur. He said that Mr. Mitchell might be nominated again and might be declared elected again and the House might again have to go through what it is going through now, or a petition might be presented to the High Court, in Belfast.

There are some things, however, which most certainly will happen, and I would draw the attention of the House and the Attorney-General to them. There is nothing whatever hypothetical about them. We ought to consider the effect upon the electorate of Mid-Ulster and not merely the effect upon Mr. Mitchell or upon us. I do not happen to agree with the policy of Mr. Mitchell. However, I will not criticise or attack him in any way. I would certainly not attack any man who was beginning to spend the best part of his manhood in prison. I would not attack any man, no matter how mistaken I believed him to be, who was prepared to make such an enormous sacrifice for ideals in which he believed.

However, the 29,737 people who voted for Mr. Mitchell were all of one mind on one thing, and that was that they did not want the Unionist candidate elected. They may have disagreed on many other things. I am firmly convinced that the great majority of the people who voted for Mr. Mitchell are not in favour of his policy. We have here the strange situation of a young man being elected by the majority of the electors who themselves were not necessarily endorsing the policy of the candidate for whom they voted.

The majority of the people in Ireland—in the south as well as in the north—are against a policy of violence. I believe that the majority of those who voted for Mr. Mitchell are against violence, but they voted for him because it was their only way to make a protest. It was a gesture of defiance, an anti-Unionist gesture. It was the only gesture left to them. It was an action of anger and frustration, and the anger and frustration will remain as long as the cause for the anger and frustration exists, and the cause is mainly the partition of Ireland into two.

What effect will the Motion, if carried, have upon the people who, although they voted for him, disagree with Mr. Mitchell? I am very much afraid that we shall be making converts to the cause of violence which Sinn Fein advocates. Since no normal democratic processes are open to these people, they may very well take the line that the only thing remaining for them to do is to follow the young men who want to adopt a policy of violence.

I should have thought that the less haste with which the House proceeded the better. I should have thought that this unseemly hurry and this refusal on the part of the Government even to set up a committee and make some inquiries to find some way out of the problem would have caused more converts to the cause of violence than any hon. Member would wish to happen.

That is why I ask the Government to reconsider the decision which the Attorney-General seems to have made about the Amendment moved by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). It cannot possibly do any harm to have an inquiry, but it most certainly can do good. For these reasons, let us not proceed with this unseemly haste. Let the House accept the Amendment, and let us consider the matter and, by so doing, strengthen the democratic resolution of the people who voted for Mr. Mitchell, most of whom still prefer a democratic process to a violent solution.

4.57 p.m.

Viscount Hinchingbrooke (Dorset, South)

I will not presume to keep the attention of the House for very long. I am not acquainted with the part of the United Kingdom that we are discussing, and I have not been able to consult all the historical precedents. I have been able just to listen to the debate as it has proceeded.

I cannot say that I follow the hon. Member for Thurrock (Mr. Delargy) in his claim that a Select Committee should be appointed. What the Government seem to have done is to follow simply and straightforwardly the due process of law according to constitutional usage. We have a General Election. A candidate for a Northern Irish seat is elected. He is discovered to be in gaol, a convicted felon. The Act of 1870 immediately operates declaring him not to be legally a Member of this House. Then, as soon as can conveniently be arranged, the House debates a Motion to declare the seat vacant. That seems to me to be a perfectly normal procedure.

Mr. Delargy

My hon. Friend the Member for Islington, East (Mr. E. Fletcher) drew attention to the pertinent fact that the Act of 1870 was passed when the state of Ireland was far from being what it is today, and the Act was not, and could not have been, intended to apply to these circumstances, because they did not then prevail and were never even dreamt of.

Viscount Hinchingbrooke

The hon. Gentleman is putting up a case for changing the law. Let us have a Private Member's Bill and see where we get with it.

Mr. Delargy

Let us have a committee of inquiry.

Viscount Hinchingbrooke

We must deal with the law as it stands.

The hon. Member for Islington, East (Mr. E. Fletcher) and the hon. Member for Nelson and Colne (Mr. S. Silverman) spoke about electing a prisoner and referred to the intention of the electors of Mid-Ulster that the person whom they elected to Parliament should not come to the House but should remain in gaol, and that was considered to be a protest. Hon. Gentlemen opposite may be right in saying that that expresses the opinion of the people of Ulster, but it is not an argument for a responsible Member of this House to offer in debate.

Surely our proper attitude should be to see that the people of Mid-Ulster elect a man who will come to the House and seek every opportunity of debating the cause of Southern Ireland and the aspirations of Southern Ireland eventually to control the whole of Northern Ireland. After all, the famous dictum of Mr. Edmund Burke was that it is not right only to do one's duty; one must do one's duty with effect and energy. It is not right for the Northern Irish people or hon. Members of this House to say that it is correct for a man to be elected yet remain in prison as a protest. The electorate should be able to elect a man to come here and secure for it politically what it wants.

Mr. S. Silverman

Will the noble Lord consider that while it may be that that would be a wiser course—certainly, it is the course which the noble Lord prefers—it is a course which the overwhelming majority of the electors of Mid-Ulster have decided they do not want to take? Is it quite irrelevant that it is quite clear that they will not take it and have decided not to take it?

Viscount Hinchingbrooke

I am about to come to the question of what the majority of the people of Mid-Ulster want.

The hon. Member devoted a great part of his speech—which, I must say, was very eloquent and very persuasive, as most of his speeches are—to saying that democracy must be seen to be working by people in East Europe, behind the Iron Curtain, and in the United States of America. I should have thought that the best way to show that democracy is working is to show that the due course of law is being adopted. If we are to convince the Russians, and the Americans for that matter, that democratic processes in this country work, and that the people of Mid-Ulster have a perfectly definite point of view about the future of Ulster in relation to the United Kingdom, we should carry on with the due course of law and let these messages flow out.

The hon. Member for Nelson and Colne said that it was wrong for Parliament to do this thing at this time, that we must alter our point of view in relation to what was appropriate to the Geneva Conference, or to the aspirations of the people in East Germany. Of course, he is entirely wrong. It is for the law to prevail and not for Parliament to change the process, or bring about a different result, except by due passage of legislation. The law being what it is, and as we are bound to do what we are bound to do, I think that the Government are right to take the attitude which they have adopted.

Finally, the hon. Member for Nelson and Colne asked what would happen if the process were repeated; what if this time there were a petition and the unsuccessful candidate were elected and the people of Mid-Ulster, therefore, did not get the recognition of what they wanted. Is that not the experience of us all? Until the last Election I was elected against the wishes of about half of my constituents. In every constituency where there is more than one candidate the Member who is elected cannot pledge himself to act in accordance with the wishes of all his constituents when he is elected.

5.3 p.m.

Mr. Emrys Hughes (South Ayrshire)

We have already spent so much time hearing about the legal technicalities involved in the Motion and the Amendment that I believe that the non-legal Members of the House will by now have come to the conclusion that a Select Committee is needed so that every hon. Member will have a full opportunity of studying not only this case but the background in which the Motion has been presented. As far as I can see, there is nothing analogous to this in any previous precedent which has come before the House. I fail to see that there is any analogy at all with East Germany, or any of the Iron Curtain countries.

The noble Lord the Member for Dorset, South (Viscount Hinchingbrooke) argued that we must deal with the law as it stands, and that because the law says that a certain process must be carried out the House should meticulously carry it out to its very end. But that is precisely what the Government have not done in the previous cases which have been brought to the House, and which have gone before the Select Committee. During the last few weeks we have had no fewer than three hon. Members referred to a Select Committee, because they broke the law of 1707. If the law had gone to its logical conclusion, and we had followed the noble Lord's argument that we must deal with the law as it stands and carry it to its logical conclusion, every one of those hon. Members automatically would have been fined £500 a day for innumerable days.

In some of those cases, by now the fine would have so soared that the hon. Members would have had to borrow money from America to pay the fine. I presume that if the law is to be carried out automatically to its conclusion, if those hon. Members were not able to pay £500 a day, which would have accumulated into a considerable fine, there would be an alternative prison sentence and I calculate that that would easily amount to the ten years' penal servitude which this Member is now undergoing. When the cases of the three hon. Members came up for consideration, the Attorney-General did not say that we must carry the law to its logical conclusion. He is proposing to alter the law and to indemnify those hon. Members.

I suggest that the Member who was returned for Mid-Ulster is also entitled to justice. As an hon. Member who is not familiar with these technicalities and with all these precedents, I should like the Member for Mid-Ulster to appear before a Select Committee, just as the other hon. Members are to appear before that Committee, so that he could be cross-examined and be able to state why he is in prison and what is the background of the affair. If hon. Members then had the verbatim report of the Select Committee, that would be far more interesting and colourful than many Select Committee reports and we would be better able to discover whether we should pass this Motion to deprive this Member of his seat.

The word "felon," as it is used in this Motion, is supposed to be a terrible word. It may be a terrible word to the Leader of the House, but many people with great national and international reputations have spent periods in British gaols for what were considered to be felonies. There is a precedent in the case of the Indian leader, Mr. Nehru. When Mr. Nehru was here recently, attending a Prime Ministers' conference, I asked him how many years lie had spent in British gaols and he told me that the number was nine. Today, everybody recognises that Mr. Nehru is a great international statesman and a great patriot. The fact that he was once considered a felon and was put into gaol by the British Government does not alter the opinion of the world now, and certainly will not alter the view of history.

Mr. Gower

The hon. Member for South Ayrshire (Mr. Emrys Hughes) and other hon. Members have raised the point of having been to gaol. Does the hon. Member not agree that having been to gaol is not a disqualification, but that it is a prerequisite that one must have completed one's sentence before standing?

Mr. Hughes

That is a very interesting point of view, but Mr. Nehru certainly did not complete his prison sentences. Of course, Mr. Nehru further expressed his view in a recent address to Cambridge University, when he said that he thought it should be a qualification for legislators to have been in gaol; and I quite agree with him.

There are two classes of legislators, those who have been in gaol, like the hon. Member for Nelson and Colne (Mr. S. Silverman) and myself, and those who ought to have been in gaol and who have, so far, escaped. If the Attorney-General pursues his inquiries through the Directory of Directors some of them may not escape even now. But there is this background. We must realise that there is a very unfortunate background to the history of our relations with Ireland. The Attorney-General and legal hon. Members here will remember the controversy that went on for a long time around the case of Sir Roger Casement. Sir Roger Casement, from the point of view of British law, committed high treason and he was hanged; but, today, a large number of people in Ireland do not regard Sir Roger as anything but a patriot.

Mr. S. Silverman

Not only in Ireland.

Mr. Hughes

Not only in Ireland. I agree that, from his point of view, Sir Roger should not have been hanged for treason but should have been treated as a prisoner of war. It is quite likely that these hon. Gentlemen who are, unfortunately, in gaol in Northern Ireland might argue that they should not be in gaol, but should be treated as prisoners of war.

I suggest that this matter is so complicated that all hon. Members ought at least to hear the point of view of the man concerned and that we should not condemn him unheard. I certainly agree with the noble Lord the Member for Dorset, South and my hon. Friend the Member for Thurrock (Mr. Delargy) when they argue that these hon. Members should come here. If I were a Northern Ireland Member agreeing that the partition of Ireland was wrong, I should not stay away, I should not go to gaol, but I should come here and make a nuisance of myself. I believe that that is the correct policy that should be adopted by these hon. Members.

Enough has been said in the House to convince hon. Members who are not lawyers, and not acquainted with the legal niceties and technicalities of the matter, that Mr. Mitchell, even though he is in Northern Ireland and opposed to the Government of Northern Ireland, is now a Member of this House and should have the opportunity to state his case before a Select Committee. It is only by setting up a Select Committee that other hon. Members will be in a position to know exactly what is the background of the matter so that they can do justice to this hon. Member.

5.13 p.m.

Mr. Raymond Gower (Barry)

The most persuasive argument submitted by the hon. Member for Nelson and Colne (Mr. S. Silverman) was when he suggested that the electors of the constituency of Mid-Ulster had in their minds one primary object, and that was to return to the House of Commons a man who was necessarily disqualified in law. In that way, he said, they would ensure that they had as a representative a man who would never take part in the proceedings of this House.

I suggest that that is assuming quite a lot. Obviously, the electors of this constituency knew quite clearly—we can assume that they carefully thought about these issues—that all the precedents, all the history of similar cases, showed that this man was likely to be unseated and that the natural consequence of return of a felon who had not completed his sentence would be that a Motion of this kind would be passed so that he would lose his seat and there would be a new election. It is just as reasonable to say that as it is to make the suggestion which the hon. Member for Nelson and Colne made in his most persuasive speech.

There is another point. I, like hon. Members opposite, would certainly prefer that the electors of Mid-Ulster should return on a clear majority a Member and that he should be the Member of their choice. The law, as is clearly indicated in the Act of Parliament, is that a felon cannot sit in this House. The precedents make it clear that we must take some action. In the past we have always approved a Motion of this kind of declare the election null and void, and the natural consequence of that is another election.

Mr. Emrys Hughes

There was a similar instance in South Wales, where a Welsh Nationalist was adopted as a candidate against the right hon. Member for Gower (Mr. Grenfell). If he had been elected as a Welsh Nationalist Member for Gower, would the hon. Member for Barry have taken the same attitude and said that the electors of Gower were not entitled to have this Welsh Nationalist as their Member?

Mr. Gower

I should say nothing of the kind. If the man happened to be serving a sentence for felony, he would be disqualified by Act of Parliament and that would mean that he would not be entitled to be a Member of this House. The fact that he was a Welsh Nationalist, a Sinn Feiner or a Scottish Nationalist would be immaterial.

Mr. S. Silverman

Would the hon. Gentleman go further and do what the Government are doing, and insist that they elect somebody else? It may or may not be the fact that the legal disqualification prevented the elected Member from sitting, but where is the legal necessity for issuing a new Writ?

Mr. Gower

I agree with the hon. Gentleman that the consequences may be most undesirable and, indeed, may land us here in considerable difficulty, because it is possible that at the new election the electors of this constituency might again, as is their right, return Mr. Thomas Mitchell. It is possible that again we might have a Motion of this kind before the House and again Mr. Mitchell might be unseated and declared not to be a Member, and it is open for Mr. Mitchell to be elected for a third time. Obviously, there are grave defects in our present procedure that can permit of such a chain of by-elections in a constituency.

However, the precedents certainly do not relate to a single instance of a case of this kind being referred to a Select Committee. The precedents are that each time the Member has been unseated by Resolution of this House or, alternatively, by a petition from a constituency. For that reason, I suggest that we are bound to support the Motion. That is not to say that we have no sympathy with the views which have been expressed. I have great sympathy with many of the views expressed by hon. Gentlemen opposite, but I am afraid that those views are not in keeping with our constitutional and legal position.

5.18 p.m.

Mr. R. T. Paget (Northampton)

The hon. Member for Barry (Mr. Gower) is a little muddled in his views on this subject. It is perfectly proper for the Government to submit the Motion. I am sure that the learned Attorney-General will agree that it is perfectly lawful for us to reject it. There is no legal problem involved at all. We can either unseat this gentleman and order another election or we can decide to take no action.

Of course, if Mr. Mitchell were to come here while he was still a felon and seek to exercise the privileges of this House, such as taking his seat or voting, then we should have to take action; but we are certainly under no legal obligation to take action until he does that. I am certain that the learned Attorney-General will not differ from me when I say that it is within our legal rights to take no action at all. Therefore, the question whether or not we take action is not important; it is a question of policy.

What policy ought we to pursue? The world today is divided between two sorts of democracies. The essential difference between them is simply that in the one sort of democracy Members of Parliament are chosen by their constituents. In the other sort, who the constituents elect is decided, not by them, but by their Government. We were not surprised when in that sort of democracy the late Mr. Joseph Stalin was returned by a majority which exceeded by 30,000 the total number of the electors in his constituency. That is the sort of thing we expect. The wholly essential basis of the other kind of democracy is that the constituents—not us, not the Government—decide whom they shall elect. It is the will of the constituency, not our will, not that of the Government—[HON. Members: "Under the law."]—certainly, under the law.

Let us see what has happened here. What is the will of Mid-Ulster? That is the important consideration. A narrow majority of the voters in Mid-Ulster decided in the Election that they did not wish to be represented in this House. They voted for a man whom they knew to be disqualified. They had been told so in the election address of the Unionist candidate. They had been told that their votes would be thrown away. In Mr. Mitchell's own Election address they had been told that, were he elected, he would not, even though he were released from gaol, come here. So there can be no doubt that the majority decided that they did not wish to be represented here.

What about the other party, the Unionists? Since the Nationalists had elected a man disqualified to be a candidate, the Unionists could have claimed the seat. There is no doubt about that. If this Motion is founded in fact, and Mr. Mitchell is a felon, his candidature was a nullity, and the Unionists could have claimed the seat. But they chose not to do so. Their spokesman in this House today, the hon. Member for Belfast, North (Mr. Hyde) has told us why they so chose; because they, too, agreed, after the result of the Election, that Mid-Ulster had better not be represented here. So we have the unanimous verdict of both sides. The will of the electors of Mid-Ulster is that they do not wish to be represented here—the will of the Nationalists through the poll and the will of the Unionists following a solemn consultation afterwards, as has been said by the hon. Member for Belfast North.

We are now being asked to say to Mid-Ulster "It is not what you choose, it is what we choose." Surely, that is precisely what we object to when that happens on the other side of the Iron Curtain? We object, not to the absence of elections—there are elections there: we object to the electors being told who to elect, or whether to elect anyone at all. The Attorney-General has heard the arguments.

I do not blame the Government because, in accordance with precedent, they bring this Motion before the House. They are entitled to do so. But having heard the arguments on this completely non-party matter, during which views have been expressed by hon. Members on both sides of the House, surely it would be wise either to accept the alternative provided by the Amendment, and to give more consideration to this matter, or simply to withdraw the Motion altogether. The views of the Unionists have been heard. They do not want to be represented here.

Captain Orr

I cannot let that assertion pass. It would be untrue to say that the Unionists, either in Mid-Ulster or anywhere else, do not desire Mid-Ulster to be represented.

Mr. Paget

That is certainly what the hon. Member for Belfast, North has said. He said that Mr. Beattie and his supporters discussed this matter, knowing perfectly well that they were entitled to claim the seat, and that they thought that it would be wrong to do so.

Captain Orr

But will the hon. and learned Member take it from me that the minority in Mid-Ulster, those who voted for the defeated candidate, certainly wished to be represented in this House?

Mr. Paget

All we can say is that their spokesman says that they do not; that they decided, after consultation, that they would not claim the seat in view of the fact that the majority of the constituents had expressed that view, and I can only respect them for deciding to abide by that democratic decision.

Captain Orr

I am sorry to interrupt the hon. and learned Gentleman again, but surely those who voted for the defeated candidate did in fact vote for someone to represent them in this House of Commons? They clearly declared their intention by within 260 votes of the others who voted.

Mr. Paget

No one is disputing that. But they were defeated, and, having been defeated, they came to the conclusion—which I respect—that it would be wrong to claim the seat. As we have been told, they thought that if they presented no petition the effect would be that Mid-Ulster would not be represented, and that is what the result will be, if we do not interfere.

Why should we interfere? We have the clearly expressed view of both sides in this constituency. One view was expressed in the Election, the other as a result of the Election; I agree that it was as a result of the verdict given by the Election, but it was expressed by the Unionists after the Election. Should we desire to change that, we should be adopting the same attitude as the other sort of democracy and imposing our will on a constituency against the views of the constituents.

Mr. Geoffrey Wilson (Truro)

Can the hon. and learned Member tell the House what would be the cost of claiming the seat and putting in a petition? Would not the cost have some influence on the defeated candidate and his supporters?

Mr. Paget

I can assure the House that in a case such as this, where there is no evidence beyond producing a form of conviction, the cost would be almost negligible, and incomparably less than the cost of fighting another Election.

The Attorney-General

The hon. and learned Gentleman is surely inaccurate in saying that the evidence is confined only to the proof of conviction.

Mr. Paget

I do not know what the evidence to be proved would he. That Mr. Mitchell was a convicted felon could, I imagine, be proved by producing the certificate. Secondly, the applicant, Mr. Beattie, could prove that he was a candidate at the Election and had received so many votes.

Mr. S. Silverman

He would also have to prove that the otherwise successful candidate was still in gaol and had not been pardoned—neither of which points would be very expensive to establish.

5.30 p.m.

Mr. Hector Hughes (Aberdeen, North)

I oppose this Motion for many reasons, but I shall mention only a few. The first is that the need for the Motion arises from an occurrence in Northern Ireland which concerns not only Mr. Mitchell but also another man. For that occurrence both men were tried, jointly, by the same court; they received similar sentences; they were both candidates for Parliament, and they both suffer the same kind of disability—but a different procedure is being adopted in the case of each.

In one case we are informed that an election petition is pending—certainly some kind of proceedings are pending—and, whether or not those proceedings come within the doctrine of sub judice, it is incredible that a decision in the other man's case should not influence the decision in Mr. Mitchell's case. In a point of order earlier on it was argued that this Motion should not be considered because the issue involved is sub judice. Whether or not that be so, a decision in the case which is now pending in Belfast—on the same facts, in the same court, in respect of the co-actor with Mr. Mitchell, in the offence—must surely affect this case, and it would therefore be extremely unwise for this House not to submit the matter to a Select Committee but to hear and determine it today.

My second reason for opposing the Motion is that it must be obvious from the discussion today that very large questions are involved here, but instead of being treated in a large way they are being treated in an antiquated and pettifogging way. We have an opportunity to consider them in a statesmanlike way by submitting them to a Select Committee of this House, which can take evidence; which will have the advice of the Clerk of the House; which will have the opportunity for calm and careful deliberation; and which will make a report which can, in due course, be considered by the House. I submit that that would be a calm, judicial and deliberative way of dealing with the issues which are before us.

My third reason for opposing the Motion is that it is unnecessary in the circumstances which have developed since 1870; it is unsuitable to the law and practice of today; it is unwise and bad statesmanship in the world as we know it; and it is undemocratic in seeking to avoid full and free discussion by this House of the issues involved. The Attorney-General was sparing in his words. He was unpersuasive—perhaps because he had a bad case, or was unfortunate in his timing, having regard to what is taking place at Geneva. Perhaps he thought of the unfavourable comments which might be made tomorrow, in the democratic nations in Europe, America and Asia, and at Geneva, about the issues which are being discussed here.

For those reasons and others, I oppose the Motion and support the Amendment, which seeks to avoid precipitate action. It seeks to proceed with due deliberation and discretion, by the appointment of a Select Committee to examine the precedents and the relevant law and report to the House. I am sure that the House will agree that this is a grave matter. It is general in its effects upon democracy; upon representative government; upon the rights of citizens to select and elect their candidates for Parliament; and upon the candidates who are so elected sitting and voting in this House.

I urge that these very grave considerations should not be treated in the offhand way in which the Government seek to treat them today, but should be submitted to a Select Committee, which will be able to consider them in a careful and deliberate way. I ask the Government not to look at this matter in a partisan way and not to be actuated by the idea that they can, by this means, get another vote into the House. I suggest to them that that is what the country and the world will think of their refusal to have this matter fully and freely considered by a Select Committee.

These are fundamental matters which should be dealt with, not precipitately in this way, but with due deliberation, considering the precedents, as the Amendment seeks to do. The rights and privileges involved are not trivial; they are of the essence of democracy and should be decided upon carefully and responsibly. The relevant statutes and the legal decisions are complicated. Earlier Attorneys-General, in earlier Governments of the eighteenth century who had to consider matters of this kind, have described them as complicated and difficult. They are no less complicated today than they were then; indeed, it may well be that careful deliberation may lead the House to the conclusion that the law requires amendment. The House should therefore have the opportunity of considering the report of a Select Committee dealing with the matter.

Today, as has been said by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), we witness in other countries retrograde movements which impair democratic Governments, which restrict human freedom, and which produce unhappiness for mankind. We do not want that kind of thing here. To prevent a man who has been duly selected and elected from taking his seat—without due inquiry or deliberation, as in this case—would be a step in the wrong direction.

One has only to look at the relevant passages in Erskine May to realise that the questions involved here are difficult Ones. There is a diversity of decided cases to be considered. They range from before the Civil Rights of Convicts Act, 1828, and the Forfeiture Act, 1870, up to the time of more recent Acts. The cases include many that are distinguished, including those of Smith O'Brien, 1849, O'Donovan Rossa, 1870, John Mitchel, 1875, Michael Davitt, 1882, and Colonel Lynch, 1903.

Mr. Emrys Hughes

Could my hon. and learned Friend explain the details of the case of O'Donovan Rossa?

Mr. Hughes

I should be very happy to explain the details of each of these cases, with which details I am very familiar because I have read a good deal in that field. The question by my hon. Friend adds to my reasons why this matter should be submitted to a Select Committee. It would be, I am arguing now, very appropriate for a Select Committee to consider not only the relevant statutes but the case of O'Donovan Rossa and all the other cases I have mentioned.

The fact, if indeed it be a fact, which determines or defeats the right of Mr. Thomas J. Mitchell to take his seat in the House is stated in the Motion. The House has no evidence that it is a fact. A Select Committee should have the documents laid before it. The House is asked to act upon the ipse dixit of the Minister instead of having the facts before it. It would be inappropriate for the Minister to come into this House laiden with documents and followed by a series of witnesses, in order to satisfy the House on the facts, but that would be appropriate in a Select Committee, and that is why it is desirable that we should have a Select Committee.

I was saying that what prevents Mr. Thomas J. Mitchell from taking his seat here is, as stated in the Motion, that he has been adjudged guilty of felony, and sentenced to penal servitude for Ten years, and being now imprisoned under such sentence, is incapable of being elected or returned as a Member of this House. That should be a matter of clear and concrete evidence, upon which hon. Members of this House should be entitled to cross-examine witnesses. We are entitled to know the details of Mr. Thomas J. Mitchell's offence, if it be offence.

Mr. Mitchell's motive in committing the alleged felony is disregarded by this House, just as it was disregarded by the court that tried him. He may be, on the one hand, as charged, a common malefactor who committed an anti-social act of gross moral turpitude; or, on the other hand, he may be a high-souled altruistic idealist and patriot who committed an act which he thought, for the good of the country which he is now debarred from serving.

Persons who would or might fall into the latter class would include various distinguished citizens of this country, some of whom have already been indicated. Some of them are present in the Chamber at the moment. Is it to be said that gentlemen of this calibre are to be deprived of their seat without being called before a Select Committee, having an opportunity of giving evidence and being cross-examined upon it, and having the advantage of the advice of the Clerk of the House and a report duly made and presented to the House?

I could adumbrate some of the questions which it would be desirable for a Select Committee to consider. They will spring to the minds of hon. Members. I urge the House to take the view that this is a matter affecting democracy, representative Government, and the rights of the House, and that it should not be decided in a cavalier or off-hand manner, as the Government seek to decide it today. It should be submitted to a Select Committee of the House to check evidence, take advice, and consider the matter in a judicial way for report to this House. That would give the House the opportunity of dealing with the matter as a deliberative assembly in a judicial way. I hope, therefore, that the Amendment will succeed and that the Motion will fail.

5.46 p.m.

The Attorney-General

We have now discussed the Motion and the Amendment for a considerable time. Speeches made in support of the Amendment have covered very much the same ground. I will reply briefly to the serious points that have been raised.

The first is the suggestion that the Government have acted with unseemly haste, made by the hon. Member for Thurrock (Mr. Delargy). The hon. Member for Islington, East (Mr. E. Fletcher)—I am sorry not to see him in his place—referred to haste, pressure and urgency. I can assure the House that there is no unseemly haste, no haste, pressure or urgency, and no unusual feature, about the tabling of this Motion. No Motion of this sort is ever tabled until after the time for presenting a petition and claiming the seat has expired. Then, before a Motion of this, character is tabled, there has to be a Return in order to provide proof, the kind of proof that the House requires, of the facts. It is only then that a Motion of this character is tabled.

It would be very wrong, and would disfranchise a number of electors, if we were to delay an election for a constituency where something of this character had arisen. In the usual way, after the Return has been received the Motion is tabled.

The facts before the House—all the relevant facts which have to be established to the satisfaction of the House—show that Mr. Mitchell was convicted of treason-felony and sentenced to a term exceeding twelve months. Those facts having been established by the Return, then, by the law as it now stands, Mr. Mitchell was incapable of being elected a Member of this House.

It seemed a misuse of the English language to say that a person incapable of being elected a Member of this House has, because he has secured a majority of the votes, been elected to this House. The fact is that he never could be elected to this House because he is incapable by Act of Parliament of being elected.

Mr. S. Silverman

The Motion says it.

The Attorney-General

The Motion says that he has been returned. The hon. Member for Nelson and Colne (Mr. S. Silverman) asked not to be interrupted in the course of his speech. I will repeat his request. Perhaps he will allow me to make my speech. I do not want to take a long time in doing so, and I want to cover the facts.

We have certain rules under our law as to which persons are disqualified from being elected to the House. It is unfortunate, perhaps, but one cannot at first sight devise a system whereby a disqualification could be determined before the electors cast their votes. I dealt with that point in moving the Motion. The fact that more votes are polled by a candidate incapable of being elected does not in any way alter the situation that that candidate, if he began by being incapable of election for any reason, remains incapable. The number of votes cast for him does not give him the capacity to sit as a Member of this House.

It is perfectly true, as the hon. and learned Member for Northampton (Mr. Paget) said, that the electors are perfectly free to vote for whichever candidate they choose. But when we get a contest of this kind, when the majority—in this case of 260—cast their votes for someone who cannot be a Member of this House under any circumstances, and when we get the further feature that there is no petition claiming that seat, then it follows—and my view is confirmed by Erskine May—that it is no more and no less than the duty of Her Majesty's Government to move, at the proper time, a Motion of this character.

The Amendment moved by the hon. Member for Nelson and Colne asks for this matter to be referred to a Select Committee. Our views may differ as to whether the law should be altered or not, but so far as I can see there is no point in referring this matter to such a Committee. The relevant facts are clearly established. The MacManaway case was a matter of great difficulty, depending on the construction on a number of statutes. No such difficulty arises here, and in my view there is really no case whatever made out for the appointment of a Select Committee to deal with this particular case.

Mr. Hector Hughes rose

The Attorney-General

The hon. and learned Gentleman made a very long speech and I listened to all of it. May I be permitted now to finish what I wish to say?

As to the second part of the Amendment, I listened to the argument advanced by the hon. Member for Nelson and Colne, namely, that no warrant for a new writ should be issued for the constituency of Mid-Ulster during the present Parliament. He seemed to me to be putting forward two inconsistent reasons in supporting that view. He said that in the Lynch case it was argued that the constituency was so ill-behaved that it should not be represented. Certainly the case we are considering does not come within that category. Then the hon. Member seemed to infer that there was a majority view by 260 votes that that constituency should not have a representative in this House.

We have heard it stated that the electors in Mid-Ulster have agreed that they should not be represented here. I do not know what weight can be put on that expression of opinion or to what degree the 29,477 who voted for the candidate who was qualified had an opportunity of expressing their views. However that may be, I do not consider that a case has been made out for saying that this constituency, which is entitled to send a Member to this House, should be disfranchised for the duration of this Parliament, as the hon. Member suggests. Therefore, I ask the House to reject the Amendment and to approve the Motion.

5.55 p.m.

Dr. Horace King (Southampton, Itchen)

I do not propose to keep the House for more than a few minutes, but, speaking as a back bencher in a debate which has largely been participated in by hon. and learned and right hon. and learned Members, I would begin by urging the House to take no notice whatever of the argument advanced by the Attorney-General towards the end of his speech in which he drew attention to the size of the majority, and referred to its smallness in this particular instance. The size of the majority has nothing to do with it at all. It is the decision of the constituency which matters—if it is by only one vote even.

I must confess that when I heard the right hon. and learned Gentleman arguing the possibility that someone with the majority of votes in a constituency might not be said to be elected merely for that reason, if he was legally incapacitated from standing, I was reminded of similar arguments used in the Wilkes case when it was stated that because Wilkes was not as the Parliamentary majority thought a fit and proper person to be elected to this House he might as well be considered not to have been elected in spite of the fact that he got a majority of the votes. So the seat was given to the defeated candidate. History showed that argument to be specious and profoundly wrong.

I do not think that the House can this afternoon avoid making not so much a legal or constitutional decision as a political decision. I want to make a point that I do not think has yet been made in this debate. The issue is not whether a constituency has chosen someone who is ineligible to sit in Parliament, but whether the constituency has chosen someone who is ineligible not to sit in Parliament. The constituency is saying, "We are choosing whom we like not to sit in Parliament," and the Government are saying, "If you choose someone not to go to Parliament it must be someone who, normally, can go and you cannot exercise your right of not sending a person to Parliament unless you send someone who, in the ordinary course of events, could have come."

As the constituency has chosen not to come to Parliament someone who is in prison and unable to come here, then the Government say, "You cannot choose him because he is legally and physically unable to come already," and the constituency is replying, "The reason why we are choosing this particular man not to come to Parliament is that the disability which prevents him from coming here and its cause make him the embodiment of the cause of all of us who want someone not to go there."

I suggest to the Government that the logicians in this instance are the constituents, who have chosen in this way to issue a challenge to the Government to which they are opposed and choose as their standard bearer someone who has given up ten years of liberty because of that very belief. Whether we think the constituents are politically right or wrong, they have been logical. It is the Government who are being Irish, in the colloquial sense of that word. The people who have taken a logical line are the constituents, and those who are illogical are the people who are attempting to dictate to the constituents what kind of a person they are to regard as eligible to be chosen not to sit in Parliament.

The hon. Gentleman the Member for Belfast, North (Mr. Hyde), who made a speech which I thought was largely in support of the Amendment, and which was an excellent speech apart from his decision not to vote for the Amendment, said that these things could only happen in Ireland, but, 200 years ago, they happened in our own country. The battle here was in the Wilkes case, and the fact that it has not been repeated in England during the last 200 years is because the national issues which tear apart the people of Ireland have not arisen here. But we won then the right of a constituency to elect whom it likes.

Nationality apart, looking back on the Wilkes case, politically, morally, personally and in every way Wilkes was not a fit and proper person to sit in the House of Commons, but through this profligate, this man who was wrong in almost everything he did, the British people won the right for the constituencies to choose whatever person they like to send to Parliament. I hope that the House will support the Amendment.

Mr. Hyde

The hon. Gentleman referred to me as having made a speech in support of the Amendment. That is not strictly so. I expressed sympathy with the second part of the Amendment, but I said that I could not agree with the first part.

6.1 p.m.

Mr. E. L. Mallalieu (Brigg)

Like my hon. Friend the Member for Southampton, Itchen (Dr. King), I shall detain the House for only a few minutes—and excellent minutes his were. I doubt whether my few minutes will be as excellent as his.

I am not worried at all about democracy in this matter. As a very keen supporter of democracy, I should be very upset indeed if I thought that what the Government were doing was against democracy. What I am worried about is the fact that the Government are making fools of themselves. Here they are doing something which is playing right into the hands of the people whom they are trying to do down. All that is to happen now, if the Government get their way, as I hope they will not, is that another election will take place, when the same man will be elected and we shall have the same farce over and over again, which is exactly what the supporters of this man want to happen.

What a pity that the Government should make fools of the whole country, because they speak for the whole country in this matter. Are they not being too heavily Anglo-Saxon, too heavy-handed in this matter, just as they have been so often, unfortunately, in dealing with Ireland before for many hundreds of years? Cannot they take a lighter view of the matter? Cannot they leave the matter alone?

I believe that we are supposed to have representative government in this country, and I am very much in favour of representative government. I am not at all sure that I believe that if a majority elects a certain man to come here who is ineligible to come here, the Government thereby have the right to take away the representation of the minority. I believe, therefore, that the minority should be left to make their petition, and if they do not want to, that the matter should be left at that. I believe in representative government. I believe that the minority in this case should be permitted by a petition to send their own man here in due course if they wish to, and if they do not, then the matter should be left as it stands.

At any rate, no argument has been put forward by the Government to convince me that the Government's policy in this matter is right, and I shall endeavour to express my dissatisfaction with the Government's policy, whatever I may feel about the Amendment.

Question put, That the words proposed to be left out stand part of the Question:—

The House divided: Ayes 197, Noes 63.

Division No. 25.] AYES [6.3 p.m.
Agnew, Cmdr. P. G. Grant, W. (Woodside) Moison, A. H. E.
Alport, C. J. M. Grant-Ferris, Wg. Cdr. R. (Nantwich) Moore, Sir Thomas
Amery, Julian (Preston, N.) Green, A. Morrison, John (Sallsbury)
Anstruther-Gray, Major W. J. Gresham Cooke, R. Nairn, D. L. S.
Armstrong, C. W. Grimston, Sir Robert (Westbury) Neave, Airey
Ashton, H. Gurden, Harold Nicholls, Harmar
Atkins, H. E. Hall, John (Wycombe) Nicholson, Godfrey (Farnham)
Baldock, Lt. -Cmdr. J. M. Harris, Frederic (Croydon, N. W.) Nicolson, N. (B'n'm'th, E. & Chr'ch)
Baldwin, A. E. Harris, Reader (Heston) Nield, Basil (Chester)
Balniel, Lord Harrison, A. B. C. (Maldon) Noble, Comdr. A. H. P.
Banks, Col. C. Harrison, Col. J. H. (Eye) Nugent, G. R. H.
Barter, John Harvey, John (Walthamstow, E.) Oaksnott, H. D.
Baxter, Sir Beverley Heald, Rt. Hon. Sir Lionel O'Neill, Hn. Phelim (Co. Antrim, N.)
Bell, Ronald (Bucks, S.) Heath, Edward Ormsby-Gore, Hon. W. D.
Bevins, J. R. (Toxteth) Hill, John (S. Norfolk) Orr, Capt. L. P. S.
Bidgood, J. C. Hinchingbrooke, Viscount Page, R. G.
Biggs-Davison, J. A. Hirst, Geoffrey Pannell, N. A. (Kirkdale)
Bishop, F. P. Hopkinson, Rt. Hon. Henry Peake, Rt. Hon. O.
Black, C. W. Hornsby-Smith, Miss M. P. Peyton, J. W. W.
Bossom, Sir A. C. Horsbrugh, Rt. Hon. Dame Florence Pickthorn, K. W. M.
Boyd-Carpenter, Rt. Hon. J. A. Howard, John (Test) Pitman, I. J.
Boyle, Sir Edward Hudson, Sir Austin (Lewisham, N.) Pitt, Miss E. M.
Braine, B. R. Hughes-Young, M. H. C. Pott, H. P.
Braithwaite, Sir Albert (Harrow, W.) Hurd, A. R. Price, David (Eastleigh)
Brooke, Rt. Hon. Henry Iremonger, T. L. Prior-Palmer, Brig. O. L.
Brooman-White, R. C. Jenkins, Robert (Dulwich) Raikes, Sir Victor
Browne, J. Nixon (Craigton) Jennings, J. C. (Burton) Rawlinson, P. A. G.
Bryan, p. Johnson, Dr. Donald (Carlisle) Rees-Davies, W. R.
Buchan-Hepburn, Rt. Hon. P. G. T. Johnson, Eric (Blackley) Remnant, Hon. P.
Campbell, Sir David Joynson-Hicks, Hon. L. W. Renton, D. L. M.
Cary, Sir Robert Kaberry, D. Ridsdale, J. E.
Channon, H. Keegan, D. Rippon, A. G. F.
Chichester-Clark, R. Kerby, Capt. H. B. Robertson, Sir David
Clarke, Brig. Terence (Portsmth, W.) Kerr, H. W. Robinson, Sir Roland (Blackpool, S.)
Cole, Norman Kirk, P. M. Rodgers, John (Sevenoaks)
Cordeaux, Lt. -Col. J. K. Lagden, G. W. Roper, Sir Harold
Corfield, Capt. F. V. Lambert, Hon. G. Ropner, Col. Sir Leonard
Craddock, Beresford (Spelthorne) Leavey, J. A. Schofield, Lt.-Col. W,
Crookshank, Capt. Rt. Hn. H. F. C. Leburn, W. G. Shepherd, William
Crosthwaite-Eyre, Col. O. E. Legge-Bourke, Maj. E. A. H. Spearman, A. C. M.
Crouch, R. F. Legh, Hon. Peter (Petersfield) Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)
Crowder, Sir John (Finchley) Lindsay, Hon. James (Devon, N.) Steward, Sir William (Woolwich, W.)
Crowder, Petre (Ruislip—Northwood) Linstead, Sir H. N. Stewart, Henderson (Fife, E.)
Cunningham, S. K. Lloyd, Maj. Sir Guy (Renfrew, E.) Stoddart-Scott, Col. M.
Dance, J. C. G. Lucas, Sir Jocelyn (Portsmouth, S.) Storey, S.
Digby, S. Wingfield Lucas, P. B. (Brentford & Chiswick) Studholme, H. G.
Dodds-Parker, A. D. Lucas-Tooth, Sir Hugh Sumner, W. D. M. (Orpington)
Dugdale, Rt. Hn. Sir T. (Richmond) Macdonald, Sir Peter Thomas, Leslie (Canterbury)
Duncan, Capt. J. A. L. McKibbin, A. J. Thompson, Kenneth (Walton)
Duthie, W. S. Mackie, J. H. (Galloway) Thompson, Lt. -Cdr. R. (Croydon, S.)
Eden, J. B. (Bournemouth, West) McLaughlin, Mrs. P. Thornton-Kemsley, C. N.
Emmet, Hon. Mrs. Evelyn Maclean, Fitzroy (Lancaster) Tiley, A. (Bradford, W.)
Errington, Sir Eric McLean, Neil (Inverness) Touche, Sir Gordon
Erroll, F. J. Macleod, Rt. Hn. Iain (Enfield, W.) Turner, H. F. L.
Farey-Jones, F. W. Macmillan, Maurice (Halifax) Turton, Rt. Hon. R. H.
Fell, A. Macpherson, Niall (Dumfries) Vane, W. M. F.
Fletcher-Cooke, C. Maddan, Martin Vickers, Miss J. H.
Foster, John Manningham-Buller, Rt. Hn. Sir R. Vosper, D. F.
Fraser, Hon. Hugh (Stone) Marples, A. E. Wakefield, Edward (Derbyshire, W.)
Fraser, Sir Ian (M'cmbe & Lonsdale) Mathew, R. Wakefield, Sir Wavell (St. M'lebone)
Godber, J. B. Maude, Angus Ward, Hon. George (Worcester)
Gough, C. F. H. Mawby, R. L. Ward, Miss I. (Tynemouth)
Gower, H. R. Maydon, Lt. -Comdr. S. L. C. Whitelaw, W. S. I. (Penrith & Border)
Graham, Sir Fergus Medlioott, Sir Frank Williams, Rt. Hn. Charles (Torquay)
Williams, R. Dudley (Exeter) Woollam, John victor TELLERS FOR THE AYES:
Wilson, Geoffrey (Truro) Yates, William (The Wrekin) Mr. Redmayne and Mr. Wills.
Wood, Hon. R.
Bacon, Miss Alice Hamilton, W. W. Paget, R. T.
Bowles, F. G. Henderson, Rt. Hn. A. (Rwly Regis) Pargiter, G. A.
Boyd, T. C. Holman, P. Parker, J.
Brockway, A, F. Howell, Denis (All Saints) Paton, J.
Brown, Rt. Hon. George (Belper) Hughes, Emrys (S. Ayrshire) Peart, T. F.
Burke, W. A. Hughes, Hector (Aberdeen, N.) Rankin, John
Carmichael, J. Hunter, A. E. Robinson, Kenneth (St. Pancras, N.)
Castle, Mrs. B. A. Irving, S. (Dartford) Ross, William
Clunie, J. Jones, J. Idwal (Wrexham) Shinwell, Rt. Hon. E.
Collins, V. J. (Shoreditch & Finsbury) Jones, T. W. (Merioneth) Silverman, Julius (Aston)
Craddock, George (Bradford, S.) King, Dr. H. M. Simmons, C. J. (Brierley Hill)
Cronin, J. D. Lipton, Lt.-Col. M. Skeffington, A. M.
Dalnes, P. Logan, D. G. Stewart, Michael (Fulham)
Delargy, H, J. Mahon, S, Stross, Dr. Barnett (Stoke-on-Trent, C.)
Dodds, N. N. Mallalieu, E. L. (Brigg) Viant, S. P.
Dugdale, Rt. Hn. John (W. Brmwch) Mallalieu, J. P. W. (Huddersfield, E.) Wells, Percy (Faversham)
Dye, S. Mann, Mrs. Jean Williams, W. R, (Openshaw)
Edwards, Robert (Bilston) Mikardo, Ian Willis, E. G. (Edinburgh, E.)
Evans, Albert (Islington, S. W.) Oliver, G. H. Zilliacus, K.
Gooch, E. G. Oram, A. E.
Grenfell, Rt. Hon. D. R. Oswald, T. TELLERS FOR THE NOES:
Hall, John T. (Gateshead, W.) Owen, W. J. Mr. Sydney Silverman and
Mr. Fletcher.

Question put and agreed to.

Resolved, That Thomas J. Mitchell, returned as a Member for Mid-Ulster, having been adjudged guilty of felony, and sentenced to penal servitude for ten years, and being now imprisoned under such sentence, is incapable of being elected or returned as a Member of this House: That Mr. Speaker do issue his Warrant to the Clerk of the Crown for Northern Ireland, to make out a New Writ for the electing of a Member to serve in this present Parliament for Mid-Ulster, in the room of Thomas J. Mitchell, adjudged and sentenced as aforesaid.