§ Order for Second Reading read.
§ 3.39 p.m.
§ The Secretary of State for the Home Department and Minister for Welsh Affairs (Major Gwilym Lloyd-George)
I beg to move, That the Bill be now read a Second time.
Already in this Session the House has had four cases which indicate how essential it is that we should clarify and modernise the body of law relating to disqualification for membership. Many hon. Members will recall that indemnity Bills have become necessary, with almost monotonous regularity, because, as my right lion. Friend the Member for Woodford (Sir W. Churchill) put it, on 27th February, 1941,the whole of this question of offices and places of profit is in a state of great legal complexity and obscurity…the law may strike here or there by accident or caprice without any reference to any principle of logic, or reason or constitutional doctrine."— [OFFICIAL REPORT. 27th February, 1941; Vol. 369, c. 724.]Later that same year a Select Committee was appointed:To inquire into the law and practice governing the disqualifications for membership of the House of Commons by reason of the holding, or the acceptance of, Offices or Places of Profit under the Crown, and to make recommendations.It is upon the recommendations in Part I of the Report of this Committee, over which the then Deputy-Speaker, Sir Dennis Herbert, presided, that the present Bill is based. I am sure that the House will wish me to take this opportunity of paying a warm tribute to the devotion, care and diligence with which the members of the Committee tackled their job. Two of them are still Members of the House—the right hon. Member for Derby, South (Mr. P. Noel-Baker) and my hon. Friend the Member for Carlton (Mr. Pickthorn). I know that we shall be very glad to have their expert assistance on the Bill.
In 1949, Her Majesty's present Opposition found that three of their number had become disqualified and the right hon. and learned Member for St. Helens (Sir H. Shawcross), who was then Attorney- 1858 General, undertook to give serious consideration to the general question of the whole of this branch of the law. He did so to such effect that by October, 1951, a draft Bill had been prepared. In 1952, the Opposition agreed to make available to us the fruits of their labours and I want to express my gratitude to them for this courtesy. It also want to pay a particular tribute to Sir Frank Soskice, who sat for Neepsend in the last Parliament, and upon whose shoulders, first as Solicitor-General and then as Attorney-General, fell the main burden of the work.
The Bill closely follows the recommendations of the Herbert Committee. It recognises the three main principles outlined in paragraph 19 of the Committee's Report which have governed this branch of the law since the beginning of the eighteenth century. Those are: first, the duties of some officers are incompatible with membership of the House; secondly, the control by the executive Government of members of the House—by means of financial influence arising from the gift of offices—must be limited; and thirdly, the control of the Executive by Parliament calls for the presence in this House, as Members, of a certain number of Ministers.
As regards the first principle, we are reminded in paragraphs 11 and 13 of ale Herbert Report that the original ground for disqualification of holders of particular offices—for example, the judges—was that their duties entailed continuous and prolonged absence from the House. This ground, no doubt, is still valid today, but if it stood alone it would be hardly worth while legislating to ensure that a person who cannot effectively act as a Member of the House may not be elected. The original ground was, however, rapidly superseded by another, namely, that the duties of the office in question make It undesirable that it should be held by persons who are subject, as are Members of the House, to the ties of party politics.
Clause 1 carries this principle into effect by imposing a specific disqualification on judges and other judicial officers specified in the First Schedule, on members of the Civil Service, Armed Forces and police and on a group of miscellaneous officers set out in the Second Schedule to the Bill, which, incidentally, includes ambassadors and high commissioners, particularly singled out by the Herbert Committee as incompatible officers.
1859 The second principle to which the Committee referred—that is, the need to limit control of Members of the House by the executive Government—is dealt with by Clause 1 (1) (g), which disqualifies the holders of all paid offices under the Crown not previously mentioned in the Clause. The House will, I am sure, appreciate that the first two principles recognised by the Herbert Committee are not mutually exclusive. A great many offices which are incompatible with membership of the House are, in effect, paid offices under the Crown.
Accordingly, we had the option, in preparing the Bill, either of listing such offices separately in a Schedule, or of leaving them to be covered by the general provisions which I have just described. For reasons of simplicity, the second alternative has been adopted, and the list contained in the Second Schedule, to which I have already referred, is generally confined to offices which would not disqualify as paid offices under the Crown.
The Third Schedule contains rules for defining in much greater detail what offices are to be treated as held "under the Crown" and what offices are to be treated as "paid." The House will see that the Schedule confines the disqualification relating to offices held "under the Crown" to offices the holders of which are appointed by the Sovereign, or by United Kingdom Ministers or Departmental officials. Accordingly, two Members, in respect of whom legislation had to be enacted not so long ago, would not have been disqualified by virtue of the offices which they accepted had the Bill then been in force. So much for the first two principles of the Herbert Committee.
The third, concerning the necessary presence in this House of Ministers, is the subject of Clause 2 and the Fourth Schedule. Under the existing law, some Ministers are entitled to sit and vote in this House because their offices are "old" offices within the meaning of the Succession to the Crown Act, 1707. By virtue of the Re-election of Ministers Acts, 1919 and 1926, they may accept office without thereafter seeking reelection. The right of a number of other Ministers to sit and vote in the House of Commons derives from Section 9 of 1860 the Ministers of the Crown Act, 1937. The remaining Ministers are covered by specific provisions in the various enactments which created their offices.
What we have done is to make a clean sweep of all the existing provisions and to start afresh with a comprehensive list of all the offices now in existence, leaving it to future Parliaments to amend the Fourth Schedule as and when, in the course of time, changes become necessary.
I turn to the other main provisions of the Bill. Clause 4, in association with the Fifth Schedule, provides for the various partial disqualifications and general extensions which were proposed by the Herbert Committee. Clause 5 implements their recommendations that acceptance of the Stewardships of the Chiltern Hundreds and of certain other Crown manors should remain the means by which right hon. and hon. Members may resign their seats.
Under the existing law, the persons disqualified as contractors are those who contract with a Government agency to provide or furnish either money to be remitted abroad, or wares and merchandise to be used or employed in the service of the public. There seems little logic about these provisions. They originated from a grave scandal in the eighteenth century concerning the supply of money and war materials for the purposes of the American War of Independence. If the loan of money to the Government is to be the real reason for disqualifying the lender, I should have thought it immaterial whether the money is to be remitted abroad or not. In the same way, it seems odd that an hon. Member should be able to put up buildings for the Government, but should be disqualified if he contracts to supply them with merchandise.
This particular subject was outside the scope of the terms of reference of the Herbert Committee's inquiry. On that ground alone, there was something to be said for leaving it outside the Bill also, but that could only be done at the cost of leaving outstanding an important field in which the common informer could continue to reap his penalties. The remaining alternatives were either to reenact the law on the subject substantially as it stands, with only minor amendments and, of course, without the existing provisions for penalties; or to re-examine 1861 the whole subject, and to put forward a Clause dealing with Government contractors in perhaps a more logical and consistent manner than does the present law.
On balance, we considered that the former alternative was preferable. So far as I am aware, there has been no general demand for extension of the scope of the existing disqualification, which was last considered by Parliament as recently, I think, as 1931. Any drastic extension of the scope of the existing disqualification might have widespread repercussions, and could hardly be undertaken, I suggest, without a previous investigation on the lines of the Herbert Committee's inquiry. Clause 6, accordingly, reproduces the substance of the present law, subject only to detailed amendments to clear up present obscurities.
The purpose of Clause 7 is to implement the Herbert Committee's proposal that superannuation benefits should not disqualify, and that a pensioner should only be disqualified if the continuation of his pension depended on…the unfettered discretion or will of the Crown or the executive Government.Subsection (1) of Clause 8 is a declaratory provision, the purpose of which is to codify the accepted interpretation of the existing law concerning the effects of disqualification. The remainder of Clause 8 is designed to give effect to the recommendation at the end of paragraph 58 of the Herbert Committee's Report. Subsection (2) accordingly gives the House power to make an excusal order in any case of inadvertent disqualification, subject to its being satisfied that the grounds of disqualification have been removed. These provisions of Clause 8 should obviate the necessity of indemnifying legislation after this Bill has become law.
In spite of its undesirable features, there was one thing to be said for the common informer procedure in this context, namely, that it enabled any member of the public to challenge the title of a person claiming to be a Member of this House, and to do so by public proceedings in the courts. If the jurisdiction to decide whether a sitting Member was disqualified had been left exclusively to the House of Commons itself, it would have been possible for a Member, who was known to be disqualified, to continue to sit as a 1862 result of a conspiracy of silence on the part of his fellow Members. I do not think that that is likely to happen today, but that is hardly a sufficient reason for making it possible.
Accordingly, Clause 9 gives to any member of the public the right to apply to the Judicial Committee of the Privy Council for a declaration that the Member is disqualified. As the Bill now stands, this procedure could operate notwithstanding that the House of Commons had already considered the facts of the case and had made an order under Clause 8 (2). The consequence, therefore, might well be a conflict between this House and the Judicial Committee. I therefore propose to put down an Amendment designed to exclude jurisdiction under Clause 9 in any case where an excusal order has already been made by the House. It will, of course, remain open to the House itself to resolve—as it has done in the past—that any case of doubt should be referred to the Judicial Committee, under Section 4 of the Judicial Committee Act, 1833.
Clause 10 gives effect to the Herbert Committee's recommendation that no hon. Member should be appointed to a disqualifying office without his consent.
§ Mr. Ede (South Shields)
Is there any possibility?
Major Lloyd-George: There might be, for example, in the case of a sheriff—though I doubt it. It is just an additional safeguard.
Clause 11 deals with compensation for loss of earnings or remunerative time, by withdrawing from all Members of the House who hold statutory offices which carry allowances but no right to remuneration, the right to receive any such compensation. They will not receive more than the Treasury scale of subsistence allowances. Parliament has already adopted this principle in individual cases as, for example, in the Medical Act, 1950.
The purpose of Clause 12 and of the Sixth Schedule is to make provision for the two Houses of the Parliament of Northern Ireland. At present, the law for the time being in force applies also, by virtue of Section 18 (2) of the Government of Ireland Act, 1920, to the two Houses at Stormont. This results, in practice, in the disqualification of a wider range of persons than seems strictly necessary. For 1863 example, a person appointed to a paid office by a United Kingdom Minister or Department must be excluded from this House, but might quite well sit in the Northern Ireland Parliament. Likewise, not all offices which are incompatible with sitting and voting at Westminster are similarly incompatible at Stormont.
The Bill accordingly seeks to amend the existing law relating to the Northern Ireland Parliament so as to limit the scope of disqualification to those cases in which incompatibility or undue financial influence could arise at Stormont. Subsection (2) of Clause 12 gives the Northern Ireland Parliament a new legislative power enabling it to disqualify at Stormont the holders of any new offices created by the Northern Ireland legislation. Subsection (3) is designed to remove any existing doubt, and to make it clear that both Houses of the Northern Ireland Parliament have the power to declare seats vacant.
Clauses 13 and 14 are of a technical character. Clause 15 and the Seventh Schedule, which I commend to the attention of hon. Members, give effect to the Herbert Committee's recommendation about the repeal of all enactments, the effect of which is re-enacted by the present Bill. I am sure that the House will acknowledge that the Seventh Schedule list of more than 100 repeals is a most impressive one and that its size is some measure of the extent to which this Bill succeeds in clearing up and consolidating the existing law.
Clause 16, while bringing into immediate operation the repeals of the various common informer penalty provisions of the existing law, provides that, in general, the Bill shall not come into force at Westminster until the next dissolution of the United Kingdom Parliament. The same principle governs the application of the Bill to the Parliament of Northern Ireland.
These provisions accord with precedent, because it is customary for changes in the law which affect the composition of the House to come into operation at a General Election. But in view of the introduction of this Bill at such an early stage in the present Parliament, and the obvious shortcomings of the existing law, I propose to move an Amendment in Committee designed to bring the whole 1864 Bill into operation on the date of the Royal Assent. Care will, however, be taken to ensure that until the end of the current Parliament, no Member who is properly sitting on that date will become disqualified by reason of circumstances which do not disqualify him under the existing law.
Finally, may I remind the House that the scope of the Bill is limited to disqualifications arising from the holding of Government appointments, contracts or pensions, and does not extend to other disqualifications such as those of the clergy, aliens, minors and so forth. We have, in fact, concentrated on those sources of disqualification which, in practice, have consistently caused the most trouble.
I think hon. Members will appreciate that this Bill is the fruit of much labour. To the making of the Bill both sides have contributed, and in commending this Bill to the House I hope very much that it will have an unopposed Second Reading.
§ 4.3 p.m.
§ Mr. G. R. Mitchison (Kettering)
I feel sure that the whole House is grateful to the right hon. and gallant Gentleman the Home Secretary not only for his very clear exposition of what is necessarily a rather tangled Bill, but also for the tribute he so properly paid to the work that had been done in this matter by my right hon. and learned Friend the Member for St. Helens (Sir H. Shawcross) and by my right hon. and learned Friend Sir Frank Soskice, who formerly held the offices of Solicitor-General, and, subsequently, of Attorney-General, in a Labour Government. I can assure the Home Secretary at once that we appreciate that this Bill represents common work for a common purpose, and that in broad principle we find no matter to object to in it which will cause us to oppose its Second Reading.
I feel sure, however, that the Home Secretary would agree that this Bill necessarily raises a large number of questions, some of them detailed, and, therefore, more appropriate for Committee proceedings, and others perhaps, though capable of being dealt with in Committee, of rather more general interest. I hope that a Bill of this character and importance will be taken in Committee on the Floor of the House, for it concerns the House as a House.
1865 I am not going into the details of the Bill today. I propose to take simply two or three points which occur to me as of general importance. The first relates to the strict subject matter of the Dennis Herbert Committee, if I may so describe it. That Committee reported in 1941, and after the war legislation was passed which created a good deal of new Government machinery connected with such matters as National Insurance, the control of rents, and a host of others, that will, I am sure, occur to any of us who were in the House at the time or who studied the matter. It was coming, as it were, at the time of the Herbert Committee's Report. The Committee did, indeed, touch on the sort of question that arises, but it did not deal with it.
The result of the existing legislation is, as the right hon. and gallant Gentleman indicated—and one can easily supplement it—that indemnity Bills have had to be passed for hon. Members of the House who were fulfilling a quite minor public duty, very often of a local character. He gave one instance. I am not going to duplicate it too much, but rent tribunals happen to be one case, a pensions appeal tribunal another, assessors under the National Service Acts another, and so on, and quite recently we have had the case of an hon. Member opposite who, out of charity and public feeling, performed good service to the local village institute and British Legion and had for that purpose to become a paid servant of the Crown at the not excessive remuneration of one guinea a year.
Surely nobody can take any view of the mischief aimed at by all this legislation which would preclude people taking that kind of office; indeed, that has been recognised in the exempting Clause to which the right hon. and gallant Gentleman referred, the Clause providing for indemnification or exemption by this House. There are, however, I think, some objections to that, and I should like to see something in this Bill which provided perhaps particularly or perhaps in more general terms for all these cases.
I take a parallel. I mentioned that some of them were tribunals. One of the cases that the Herbert Committee considered was that of justices of the peace holding, of course, an unpaid office but still sitting as judges or justices. In my opinion, the Herbert Committee quite 1866 rightly decided that there was no real incompatibility and that the only question in that sort of case was one for the individual Member's conscience as to whether his performance of his duties in that judicial capacity interfered with his obligations and his duties in this House. There can be no doubt of the answer as far as it concerns justices of the peace, and some of my right hon. and hon. Friends have given most valuable advice and assistance to this House by virtue of their experience in that office.
Just the same thing applies to these other fruits of modern legislation where people are really performing an important but, still, a comparatively minor public duty where, if there is any conflict between their duty to the House and their duty in that respect, it is surely one which can safely and properly be left to their own consciences. It may be said that the provisions of Clause 8 of the Bill, which provides for an order of this House directing disqualifications to be disregarded in certain circumstances, fully meets that kind of case.
There are, I think, objections to that. I was glad to hear that the right hon. and gallant Gentleman proposes to move an Amendment to prevent a conflict between the Judiciary and Parliament in the case of proceedings before the Judicial Committee of the Privy Council; but, of course, the Clause still leaves open the possibility of an Election petition, which is expressly excluded from it. What ought to be dealt with, and could properly be dealt with, by that Clause—and I have no objection to it—is not the kind of matter to which I am referring.
I do not apologise for taking up the time of the House with these very small offices, if I may so describe them, because, after all, they have been responsible for the majority of recent cases and also because they raise the general question of not unduly keeping out of a form of public service Members of this House. That is the first general point I wanted to make.
I shall not now go into detailed questions about other offices of profit under the Crown. I merely mention two things. The Bill provides for rules for saying what an office of profit under the Crown is, but I am not satisfied with one aspect of them. It has actually arisen in connection with these small cases to which I 1867 have been referring and, for obvious reasons, which will occur to anyone who has followed recent references to the Select Committee, I do not take any specific instance.
The kind of thing I have in mind is this. An hon. Member receives an invitation to take up a small post of the character I have been describing. He may be told, on the invitation itself, that he, will not get any fees out of doing so. Under the existing law, he is obliged to look up the legislation and see whether any Minister has power to make a payment to him in certain circumstances. I say "in certain circumstances" because it would be sufficient to disqualify him, I understand, if the Minister has power either simply to make the payment or to make it with the consent of the Treasury, or even to make it in certain contingencies which may arise. That remarkable state of affairs is still preserved by the rules in the Third Schedule.
I was glad to see recently that the Attorney-General, whom I see sitting opposite, and who, I dare say, will reply at the end of the debate, took steps to circularise Government Departments and to put it more or less on them to keep their eyes open and not let hon. Members or candidates for Parliament into this sort of position. But the variety of these things is so large, the ultimate responsibility is so much on hon. Members themselves and on this House, that I do not regard it as satisfactory to leave it there. Therefore, I should like to consider at a later stage the question whether people ought to be disqualified in cases where no payment is, in fact, made; and even if there is a possibility of a payment, it is at any rate a remote one. That, however, is a Committee point.
I cannot pass from that without one further comment. I am very glad to see that a number of local government servants who used to be disqualified are no longer to be disqualified. There is one particular case that was so ridiculous that I welcome its disappearance with particular pleasure. The old law used to be that a full-time teacher appointed by a county council could not be a candidate—certainly not a Member—for Parliament, but if he was appointed by a county borough council he could be. In plain English, that is nonsense and I am glad 1868 that it has gone. It worried a good many people concerned with the teaching profession.
I turn now to contracts. The common informer was mentioned as a reason for dealing with contracts at all. The common informer could be dealt with separately and whatever teeth the Solicitor-General had left in the common informer's head could be removed from him, because the hon. and learned Gentleman brought in a Bill about this matter and it became law.
§ Mr. Mitchison
I beg pardon.
It can be done that way. But, in fact, what has been done has simply been to re-enact the present legislation. What I think has happened is that the Government and, no doubt, others concerned in preparing this Bill have looked at the existing legislation and have said, "Well it at least serves one purpose and we cannot really face up to any broader examination of the question of contracts." As the right hon. and gallant Gentleman put it just now, it would require another committee like the Herbert Committee.
It is very ancient stuff. "The sale of wares and merchandise" is an oldfashioned phrase, but it conveys something. "Money to be remitted abroad" goes back to the eighteenth century scandals about remitting money for the Army; that is what it was for. I trust that the House will bear with me if I recall hon. Members' attention to what happened in 1782.
There was a debate about remitting money abroad and a Member of this House at that time—Mr. Alderman Harley—felt himself in a very awkward situation indeed. According to the records, he did not have that option which the Home Secretary has mentioned. His contract was not to be vacated at leisure. He was to supply the Army in Canada, Nova Scotia, Carolina, New York, and the West Indies with money. He had agents in all those places who were constantly drawing bills upon him and who would continue to do so until he should give them directions to the contrary.
He then mentioned notice again and he trusted that no one would suppose 1869 that his conduct since he got the contract had been influenced by it. He never asked for it; he was not in the habit of asking favours of Ministers. He got his contract in consequence of an address which the late Lord Suffolk intended to have moved to the King, that His Majesty would be pleased to confer upon him some mark of his favour. At the request of the Duke of Grafton—we are moving in the best circles—who promised to fulfil the object of the address, Lord Suffolk did not move it. He was afterwards offered a pension, which he would not accept, saying, at the same time, that he would rather have something in the way of his profession. On this, he got the gold contract, which he fulfilled for twelve years with the fairest character; and the unfortunate Mr. Alderman Harley felt himself hurt indeed that he should be treated as if he were a criminal, in being forced to give up either a valuable branch of his business, or renounce the honour, which he held so high, of sitting in Parliament. Mr. Fox answered Mr. Harley. What Mr. Fox said is not related, but we can make our own guesses upon that.
That was the kind of thing with which the Act of 1782 was introduced to deal, and in the earlier legislation there were some ambiguities and some references to contracts as a whole which led the Government of the day to introduce, in 1931, a declaratory Act confining it to these particular words.
The occasion of that was the assignment of the contract, or rather the interest, of the lessor in the Hatfield Post Office. A Member of this House, now a highly distinguished Member of another place, had, by assignment, become the lessor of this Post Office to the Postmaster-General, and there was real doubt whether he might possibly be disqualified by virtue of that. I take the illustration because it shows the extreme difficulty of being too sweeping over contracts. As the Herbert Committee pointed out, because at one point they got very near to this matter, people do, in fact, make all kinds of contracts with the Government without realising that they are contracts with the Crown.
I appreciate the difficulty of that, but there is one aspect of the contract question which has much troubled some of my right hon. and hon. Friends. I think I ought to take the bull by the horns, or, 1870 perhaps, the brief by its white tape, because what I am referring to are Crown briefs. These are not, of course, matters which constitute offices. They are, I suppose, contracts of a peculiar nature in some ways, but still contracts, or at any rate of that character, and it seems to me that they raise some questions of principle which we ought not to shirk. If contracts had been left out entirely, that might have been a different matter.
I turn, first of all, to the Herbert Committee. I said just now that they had approached this matter. So indeed, they did, and in paragraph 20 of its Report the Committee recognisedthat persons in certain contractual relations (like those of standing counsel to Government Departments, barristers employed on Government briefs, technical and scientific advisers and regular speakers for the British Broadcasting Corporation) may be in a position somewhat analogous to that of office holders.I am not going to burke the following sentence; I am coming back to it in due course. I want to speak upon this matter with a full sense not only of the responsibility of each of us, but of the very great importance of these relations between the making of laws and the administration of them, which are really fundamental to our constitution and to our way of life.
Some of my right hon. and hon. Friends seem allergic to lawyers. It is an old prejudice, and there are some unfortunate passages in Plato which are directed, I always think, more to that uncertain support of the legal profession, the habitual litigant, than to the lawyer himself; but there it is. I recognise that some of the reasons for it may be a certain lack of appreciation of the necessary position of any advocate. Some, on the other hand, derive from a real feeling that in places, and in this place in particular, the law and lawyers have perhaps had too easy a deal in the past. There it is, and I say no more about it, except that I hope that we shall not approach this question too much from that point of view.
The far more serious objection to Crown briefs, it seems to me, is that they constitute a form of secret or semi-secret patronage. It is perfectly true that one could possibly obtain a published list of them, and I am quite certain that the Attorney-General of the day would not be slow to give reasonable information to hon. Members about them.
§ Mr. George Wigg (Dudley)
I am sure that, in making that statement, my hon. and learned Friend has not overlooked the numerous Questions which I put to the Attorney-General, all of which revealed nothing.
§ The Attorney-General (Sir Reginald Manningham-Buller)
I entirely agree; the Questions did not reveal anything.
§ Mr. Mitchison
I hope we may leave these procedural questions, upon which, perhaps, I ought not to have embarked, until a later discussion. It only shows that this question arouses strong feelings whenever it turns up. The appropriate metaphor would seem to be, "Wigs on the green at once." There we are; it is another case.
I have referred to secret or semi-secret patronage. These are hard words, and I only use them because I can think of no succinct phrase that puts the real point more clearly. The question is: are we justified in allowing the control of the Executive over hon. Members of this House to be applied in this way? Let us get the position clear, to begin with. There are, of course, Crown briefs of considerable and weighty importance, some of them for cases in London and some for cases in the provinces. There are, too, a host of other cases of minor importance, and all these briefs are delivered to counsel by the Director of Public Prosecutions in some cases, the Treasury Solicitor or other appropriate civil servant, and the Attorney-General is only responsible, as I understand, in an informal way.
There is not the slightest doubt that the Attorney-General of the day regards it as his duty to see that proper people are appointed to hold these briefs, and, further, that that duty is an exceedingly important one. I am sure we should all recognise that. Therefore, there is no legislation about it at all. It depends on convention and practice, and, if we take the case first mentioned in the Herbert Report—that of standing counsel to Government Departments—the fact that the position of such a standing counsel is incompatible with membership of this House does not depend upon any statute.
1872 There is no statutory prohibition that I know of. It depends on a convention which has generally been followed.
§ The Attorney-General
It may assist the hon. and learned Gentleman and the House if we clear that matter out of the way now. When standing counsel are appointed nowadays, and it has been the case for several years past, it is a term of their appointment that they should resign should they stand for Parliament.
§ Mr. Mitchison
I am much obliged to the right hon. and learned Gentleman. That carries out the practice, which is, I feel certain, a long-established convention.
§ Mr. Ronald Bell (Buckinghamshire, South)
The hon. and learned Member will appreciate thatStanding Counsel to any Department of Her Majesty's Government in the United Kingdomare disqualified under the Second Schedule to the Bill.
§ Mr. Mitchison
For the first time. My reference to statutory prohibitions is perfectly correct, but may not be when this Bill becomes law.
Now I turn to Crown briefs, and I do so because there is real and responsible feeling about this and because it raises the question I have just outlined. I want to put now the case for maintaining the present practice. The case against it really is secret or semi-secret patronage. I do assure the right hon. and learned Gentleman—if he needs my assurance—that there is absolutely nothing personal in this in the least. I am sure he knows that. I have no idea whether the practice has varied, to what extent it has varied—indeed, I do not know what it is at present, and that, of course, is the secret or semi-secret side of the matter.
I may add that I have no personal interest in this whatever. For some time I tried to ride two horses, as many other people have done, and the problem has been solved by one of the horses dying. It is hard to ride two at any time and when one is dead it is impossible. So I have no personal interest in this whatever. If the right hon. and learned 1873 Gentleman offered me a Crown brief tomorrow I should be compelled to refuse it, so that is that.
I turn to the other side of the matter—
§ Mr. Eric Fletcher (Islington, East)
May I interrupt my hon. and learned Friend? This is a matter of great importance on a question of fact. Could my hon. and learned Friend say whether the practice is for the selection of Crown briefs to be in the hands of the Attorney-General, or in the independent hands of the Treasury Solicitor?
§ Mr. Mitchison
I just disclaimed any particular knowledge of these matters and I think that that question would be better answered by the right hon. and learned Gentleman. I hope that he will answer it. I believe that the substance of the matter, at any rate, is that he, or the Law Officers of the day, do exercise an actual and personal choice in important cases, but that they are not actively concerned in, although, of course, they are politically responsible for, minor Crown prosecutions, and so on.
§ The Attorney-Generalindicated assent.
§ Mr. Hector Hughes (Aberdeen, North)
As the Attorney-General was good enough to intervene with regard to standing counsel, I submit to him that it would assist the course of the debate very much if he would make a similar intervention now on the question of Crown briefs so that we may know what his view is and what course the debate will take.
§ The Attorney-General
I do not think that it really would be for the convenience of the debate if I did so now. I would much rather hear what is said on this subject and then deal with it, as I think I can, fully and, I hope, to the satisfaction of the House.
§ Mr. Hughes
In particular, will the Attorney-General affirm or deny that he has a right of patronage in regard to Crown briefs? Will the Attorney-General answer that question to assist the debate?
§ Mr. Deputy-Speaker (Sir Charles MacAndrew)
Order. This is a Second Reading debate. The Committee stage is coming later.
§ Mr. Mitchison
This is really a general question and I think that a nodded assent 1874 from the right hon. and learned Gentleman indicated that I had not got the practice too far wrong. We will put it that way.
I now turn to the other side of the matter. Under the law about contracts as it stands at present, as the Home Secretary has pointed out, it is open for the Crown to have a contract with—let us say—an architect, a consultant engineer, or someone in any such professional capacity and there is no question of his being disqualified. I have heard no suggestion that he should be disqualified from membership of this House. Therefore, what, in fact, we would do if we started to interfere with the matter of Crown briefs would be to introduce a rule which would apply to one profession, and to a profession which is, I believe, of peculiar importance in and to this House. I respect, and always have respected, the profession to which I belong, and those who serve in it. I think that in relations between the making and the administration of laws we depend quite particularly on a code of conduct and professional integrity which has always been, and always will be, the pride of the Bar of this country.
If we are not to have lawyers in the House, or if we are unduly to restrict the number of lawyers here, then, from the point of view of this House, we shall be limited and cramped in the choice of Law Officers from time to time; for we ask of them that they should have experience both of this House and of the law in practice. Also, if, in fact, we are to make Crown briefs any form of disqualification, let there be no doubt about it: in the case of most lawyers we are going to interfere seriously with their profession and the way in which they carry it out.
It is not a small matter—it may be in some individual cases, but, in general, it is a large matter. From the point of view of the law itself, although it is not for me to lecture any Law Officer of the Crown, it seems to me—and I believe that the right hon. and learned Gentleman will agree—that it is his responsibility, apart from party considerations, to find the best advocate for the Crown in any given case, or kind of case. Let there be no mistake about it, we expect him to discharge that duty with the complete impartiality which he has to show in other respects in the high and rather peculiar office that he 1875 holds. I feel certain that if hon. Members had reason to think that he was not doing so, the point which I am making today as a question of importance would become one of urgency and there would be loud and violent complaints, which I should feel, were fully justified.
That does not quite answer the point. The point is not that there is, in fact, wrongful patronage, but that there is the possibility of wrongful patronage. That, I think, is the real difficulty. I come to this conclusion in the matter. We have to weigh up something which is rather illogical and which is capable of mischief on the one hand—by that I refer to the present practice—against the disclocation we would cause both in this House and, to some extent at least, in the administration of the law, if we made any change.
I feel doubtful whether we ought to embark on a change of that magnitude without a great deal of further inquiry. I am not prepared to say, however, that my right hon. and hon. Friends, who feel strongly on this matter, are wrong in principle or may not indeed be altogether right. I should want to know more. I can only say this in all frankness to the House, that personally I do not believe, and have no reason to believe, that this secret or semi-secret patronage—and the Attorney-General must excuse the words—has ever been wrongfully exercised either by him or by his predecessors. I am sure he will accept it from me that if I thought so I should say it now without fear or favour.
That is as far as I can go, but it seems to me to raise a question of very great importance, coupled as it is with the slightly unsatisfactory state of affairs about Crown contracts. I recognise the arguments against dealing with it now, but I hope that when he winds up the debate today we shall have from the Attorney-General a fuller statment than he appears to have been able to make so far to my hon. Friend the Member for Dudley (Mr. Wigg) about what is the practice of his office in the matter and, generally, what he has to say to the suggestion, not that there has been any wrongful use of patronage but that the possibility of such a wrongful use is, in principle, somewhat objectionable.
§ 4.42 p.m.
§ Major W. J. Anstruther-Gray (Berwick and East Lothian)
I find myself agreeing very much with what the hon. and learned Member for Kettering (Mr. Mitchison) said at the beginning of his speech—that this is a matter for the House as a whole and is important to us all. Having served as a member of the Select Committee which examined the last four cases of disqualification of a Member, I have had brought home to me very closely how absurd is the present stuation.
In opening the debate, my right hon. and gallant Friend the Home Secretary quoted my right hon. Friend the Member for Woodford (Sir W. Churchill), and I should like further to quote the words which he used and which are to be found in the Herbert Report:the confusion of accident and anomaly of legal fiction and Parliamentary circumnavigation.…Those were his words and what they produce, in my humble opinon, is nonsense, or something very near it, for the ordinary man.
If we look at the cases in the last ten years it appears to have been established, first, that an office of profit remains an office of profit notwithstanding that, in fact, it is, and always has been, an office of loss. Secondly, it has been established that an office may be an office under the Crown although, in fact, the Crown never engage or remunerate the holder thereof. Thirdly—and this seems to me the most incomprehensible—it has been established that the fact that an invitation to serve in an office states in black and white that no fee is payable does not prevent the acceptance of that office from being construed as accepting a fee.
These things are very difficult for a layman to understand and, to make confusion worse confounded, we now find that our infallible Erskine May is regarded by the Attorney-General as being incorrect, if hon. Members care to refer to page 2 of the Report from the Select Committee on Elections of 12th July of this year. I am not a lawyer, but I have been known from time to time to creep out of the House to the Library and to fish out a volume of Erskine May. I thought that there at least I should find words of wisdom. Now our faith even in Erskine May is shaken.
I want to ask my right hon. and gallant Friend how things stand under the 1877 Bill. I listened to his speech with interest, but I am not quite clear about the situation of an hon. Member who is invited to accept an office and who wants to be certain that he will not find himself on the wrong side of the law. It is suggested, in page 33 of the Herbert Report, that in such a case it should be possible for an hon. Member to consult Mr. Speaker on the subject and that Mr. Speaker should then be able to refer the matter to a Select Committee. As I understand, Clause 8 goes some way towards providing for this but it does not make it clear to me whether an hon. Member is entitled to consult Mr. Speaker now and whether Mr. Speaker, having been consulted and having appointed a Select Committee, can, after that, give a Ruling which is conclusive.
Even if that be so for an hon. Member, what is the position of a candidate or a prospective candidate who may already hold an office and who wants to know whether he is eligible for Membership. It seems to me that Mr. Speaker might find himself in some difficulty in dealing with the case of a man who is not yet a Member but only a hypothetical Member and, being a prospective candidate, is, in fact, only a hypothetical candidate, but who wishes to stand for election to the House. These cases are not unimportant and they can crop up any day. It is very inconvenient for everybody to have what we have been having in the past—three or four cases of Members finding themselves disqualified.
Perhaps I may turn from those small but quite important, detailed points to the general principle of the Bill. What are we trying to achieve by the Bill? The Herbert Report makes out the position very clearly—and the Home Secretary referred to it. The Report lays down three principles: first, the incompatibility of certain offices with Membership of the House; secondly, the need to limit the control or influence of the Government over the House by appointing to some office an undue proportion of the Members; and thirdly, the essential condition that a certain number of Ministers should be Members of the House of Commons.
May I take those points one by one? I do not think the last need delay us for very long. There may have been 1878 occasions in the war when too many Ministers might have been appointed while sitting in another place, but I do not think there is very much risk of that happening now. The second point, of limiting the control of the Government over the House by making appointments, seems to me much more interesting. Of course, the original seventeenth century purpose, as the House is well aware, was to secure that the House of Commons should be independent of the King. The great fear was that the Crown would pack the House with place-men who would have sold their independence for preferment.
Later, that fear became not that the Crown would do any such thing but that the Government of the day would do it. I wonder how much there is in that danger now. The hon. and learned Member for Kettering, in his interesting remarks about Crown briefs, directed himself at this point. I wonder whether I may go a little further, although from a rather different point of view. I should say that the power of any Government today to attract a Member from one party to another is very small indeed in the two main parties. We all have in mind, however, cases where Liberals—and I see that they are not represented now—have been brought to one side or other of the House by offers of office.
The power of silencing criticism or undermining independence within a party by the Government remains very strong. The Government have tremendous power of patronage, besides the matter of office or expectation of office. There are titles. It may be that these are not so attractive today as they were, because by no means does everybody on either side of the House want to find himself "upstairs." Maybe, again, there are not so many governorships as there used to be and there are not so very many hon. Members of this House who find themselves appointed to governorships. But there are still what will be colloquially called "Jobs for the boys."
§ Mr. Deputy-Speaker (Sir Rhys Hopkin Morris)
I think that the hon. and gallant Gentleman is quite in order. He was not talking about a particular Home Secretary.
§ Major Anstruther-Gray
I was talking about the question of the "jobs for the boys," on resignation in various offices. I do not know why the hon. Gentleman the Member for Dudley (Mr. Wigg) takes exception to "Jobs for the boys." I read in my newspaper a day or two ago that a "boy" who sat on the opposite benches, Mr. Leonard, who was Labour Member for St. Rollox for many years, had been very properly appointed by the present Government as a member of the National Assistance Board. That is a very interesting job for one of the boys and very suitable for ex-Members, and so long as these appointments are not made purely on party lines I see no reason why the hon. Gentleman should take exception to them.
To come back to the question of patronage, there is the attraction, again affecting both sides of the House, of appointment to interesting work. I would give as an instance the appointment to the Malta Round Table Conference. That is extremely interesting. I would give as another instance the appointment given to either party to go to Strasbourg. That is very interesting. It is quite possible to argue that the wish to receive some such preferment may prevent an hon. Member on either side from being, at any rate, particularly offensive to the Government in power. I do not think that one can go very much further than that.
I think that the real sanctions which control the votes of hon. Members here are based on something much deeper. What I think controls the way in which we vote is party loyalty, and that is emphasised when the balance of parties is particularly close. The thought that if one voted against one's own party the result would be to let hon. and right hon. Members opposite into power is an awful thought and enough to deter any normal Member from considering such a course. I think it has been the experience in this House that hon. members have very seldom voted against their own party when there was any danger of that vote being decisive.
We can all recall recent cases of a single hon. Member or two voting against their party, but they knew that their vote 1880 would not affect the result and bring down the Government. Equally, one can recall that not long ago on the question of Suez some of my right hon. and hon. Friends, rightly or wrongly, voted against the Government, but in that case, although there were a number of them, they were aware that the Government were having the support of the Opposition and that their votes, although it was a token and a gesture, would not have the effect of bringing down the Government.
It is true that two of my hon. Friends who voted against the Budget were well aware that they were just two Members and would not beat the Government. Perhaps I should qualify that. Of course, there have been cases when that has not been so. I myself, about fifteen years ago, had to vote against the Government on a three-line Whip, and the effect of that vote was, in fact, to change the Prime Minister and to change the Government. It was in the Norway debate, as hon. Members will remember, of 1940, but, of course, that did not entail a General Election, so it was really no more significant than a vote against the Government in France where they can change Government day after day and never have to face a General Election afterwards.
The point I am making is that the real sanction which stops hon. Members on either side is already acknowledged, although our supporters in the constituencies may forgive and often applaud an occasional gesture of independence.
§ Mr. Sydney Silverman (Nelson and Colne)
Before the hon. and gallant Gentleman leaves that most interesting point, would he care to tell the House how he knew, on the famous occasion in 1940, that the vote passed would not result in a General Election, and whether he would have voted as he did if he had thought that it would?
§ Major Anstruther-Gray
I was voting according to my conscience. It would have taken a great deal to stop me voting in the way I did on that occasion.
To come back to sanctions in our own constituencies, I would point out that if we voted too blatantly against the party which we were sent to represent, we should find ourselves without seats. The experience of hon. Members on either side of the House who have become independent and have gone back to their constituencies is by no means encouraging.
1881 I think that the last hon. Member on the opposite side—the hon. Member for Gravesend, Sir Richard Acland—who did that, did not collect many votes when it came to the Election. I have said enough to make the point that, in my opinion, the old theory that an office of privilege was a great danger to a Member's independence is now out-dated, and is now rather nonsense.
This brings me to my third point, and that is the incompatibility of certain offices with membership of this House. Already, the position of a judge has been mentioned. To me it seems that the correct reason for that is that justice must not only be done but must appear to be done. If a judge were sitting in this House, useful as he would be here, when he got to the courts, after taking a very prominent part in Parliamentary affairs, and sentenced anybody of the other party, there might be a feeling of injustice, however wrong that might be.
Then there is the question of ambassadors. They are not suitable for the reason that they are absentees and cannot attend to their work here. Then there are the officers in the Armed Forces. Today, I think that it goes without saying that it is a good thing that officers in the Armed Forces may not be seconded as Members of this House. You, Mr. Deputy Speaker, and I can recall that in 1927 there were seconded officers in this House. That was at a time when I was beginning as a soldier, and I thought that I would like to have a shot at coming here, but it did occur to me that I would be given an opportunity only in a rather difficult constituency, and that I should be likely to be defeated at my first attempt. In 1927, it would have been quite possible to be seconded before election and, having lost the Election, to go back to one's regiment.
§ Major Anstruther-Gray
I do not think I am incorrect. I think that up to 1927 or 1928 it was possible for an officer to be seconded from his regiment and to sit in this House. I have in mind one officer in my own regiment who did so. He was Arthur Hope, who was a Government 1882 Whip. He was seconded from the Coldstream Guards when he was a candidate.
The next person who is mentioned as not being eligible is a lord lieutenant. That is an innovation. He now may not be a Member for his county. This makes one call to mind people like Lord Thurso, who sat for many years as a Liberal Member of the House and who was Secretary of State for Scotland in 1931. As far as his duties in the House were concerned, the fact that Sir Archibald Sinclair, as he then was, was Lord Lieutenant for Caithness made no difference at all but I appreciate that it is undesirable to have a representative of the Sovereign playing too prominent and controversial a part in a county. We must not over-play that note, because quite a number of lords lieutenants are among some of the best public servants and take a leading part in local government, but it may be felt, perhaps with justification, that it would give a man an unfair advantage as a candidate in an Election if he were, at the same time, lord lieutenant for the county.
§ Major Anstruther-Gray
My hon. Friend will notice that deputy-lieutenants are excluded and may become Members of Parliament for the county of which they are deputy-lieutenants. This follows upon the recommendation of the Herbert Committee and has rightly been incorporated in the Bill.
It is stated in pages 19 and 20 of the Bill that among Government appointments that are considered incompatible with Membership of the House are those of director of the Bank of England, governor of the B.B.C., member of the British European Airways Corporation, member of the British Transport Commission, member of the National Coal Board and many other important posts.
§ Mr. Montgomery Hyde (Belfast, North)
My hon. and gallant Friend refers to pages 19 and 20 of the Bill, but those refer to Northern Ireland.
§ Major Anstruther-Gray
Most of these appointments are listed in page 20. I am sorry if I referred to the wrong page but the principal offices appear in page 20. Some appointments are also listed in page 19. For example, the governor, 1883 deputy-governor or director of the Bank of England are mentioned on page 19, and so also is the governor of the British Broadcasting Corporation.
§ Major Anstruther-Gray
Then does one assume that a man can be a governor of the B.B.C. while a Member of the House of Commons? Perhaps the Minister will put me straight so that I do not waste the time of the House. My impression was that a Member of Parliament was precluded from being director of the Bank of England or a governor of the B.B.C.
§ Mr. J. H. Hoy (Leith)
The hon. and gallant Member will see that according to the Second Schedule, a governor of the B.B.C. is excluded from Membership of the House.
§ Major Anstruther-Gray
What about the director of the Bank of England and the others that I have mentioned? It seems to me strange, if Members of Parliament are eligible to take those jobs, that no Government has seen fit to appoint any of us to them. I have a high regard for the other 600 hon. Members and I should have thought that one or other of us would have caught somebody's eye. I hope that the Government spokesman will make this point clear when he winds up the debate.
Seriously, is it really a good plan specifically to exclude hon. Members from being considered for all these jobs? "Jobs for the boys" sounds a very disagreeable phrase, but if it would serve the public interest to have Members of Parliament serving in these capacities are we right to assent so readily to a Bill making it illegal for them to do so?
The biggest criticism that I have against public boards is that they are far too remote from public opinion. They are absolutely secure and nobody can bring a criticism home to them. If two hon. Members were appointed on a part-time basis, without payment, to such a board as the National Coal Board and such a Government body as the British Transport Commission, it might be very much in the public interest. I do not think that anything but good would come of having on these boards somebody who 1884 would be responsible to 50,000 constituents and who could receive a great many complaints at first hand and bring them home to his fellow members on the board. Such part-time, unpaid members would learn from the House of Commons. They could take part in debate, hear what we thought of them and pass that on to their fellow members. I believe that that would be a great deal more persuasive than anything that members of these boards hear from public relations officers.
§ Major Anstruther-Gray
It is very tempting to think of hon. Members who could be appointed to these boards. I wonder where my hon. Friend the Member for Kidderminster (Mr. Nabarro) has gone. He would make a good member of the North of Scotland Hydro-Electric Board.
How would the appointment of hon. Members as part-time members of these boards affect their position with the Government? The fact that members of these boards receive perhaps £5,000 a year whilst an Under-Secretary receives only £2,000 would make for no financial difficulty, because a part-time member of a board who was a Member of the House could serve on the board without pay, under the same arrangement as is made in the case of the General Medical Council. That is the practice of two hon. Members who are members of the General Medical Council. If matters of expenses only have to be considered, they are covered under the Bill.
The more important question is that of relations with Ministers in the House. How embarrassing would it be for the Minister of Transport to find himself contradicted in the House by a member of the British Transport Commission, or for the Minister of Fuel and Power to be contradicted by an hon. Member who was a member of the National Coal Board?
§ Major Anstruther-Gray
My answer is that "dog don't eat dog."
1885 In the same way, when Ministers and hon. Members come in contact on Select Committees, the Public Accounts Committee, arid so on, it is the experience of the House that confidences are not betrayed and that, although in the course of debate each hon. Member puts his case, embarrassments of a personal nature very seldom occur. It would not be an impossible position for a Minister to have sitting behind him in the House, were he the Minister of Transport, somebody who knew all about the British Transport Commission. Before the days of nationalisation the Minister of Transport always had sitting behind him or opposite him in this House directors of the railways who knew a great deal about the subject, in addition to persons who had worked on the railways. Equally, the Secretary for Mines of those days, as well as having many experts on the underground working of coal on the opposite side of the House, also had behind him people who knew all about the management of the coal mines from the point of view of directors.
I do not know whether the House appreciates how much we have lost in the present state of affairs by not having anybody who can talk for a wide section of our economy from the point of view of the managerial director. In the case of coal, my hon. and gallant Friend the Member for South Fylde (Colonel Lancaster) can still make a knowledgeable speech though, I suppose, tending to become a little out of date. When it comes to railways, up to a short time ago Sir Ralph Glyn was sitting in this House, and at present there is my right hon. Friend the Secretary of State for Foreign Affairs, who was a railway director. So we still have fairly first-hand information. But these people will die out, they will be replaced, and then this House will face all the problems of an ever-widening field of national economy control without having the most important point of view of the management side of that control voiced in the Chamber.
It may be more than we can contemplate now to accept my suggestion. This was, not to have paid "jobs for the boys" but to follow the practice of the General Medical Council where one hon. Member from each side of the House is an unpaid member of that council. I 1886 have also suggested that one hon. Member from each side of the House should be sent to at least some of these national boards, only for a period of perhaps five or three years, unpaid certainly, part-time certainly, in order to give those national boards an idea of what the public in general, and of what we in the House of Commons in particular, are thinking about their performance; and, furthermore, to give us in this House the opportunity of retaining our reputation for being able to produce a speaker with first-class, first-hand information on any subject. For lack of that information, the quality of our debates will fall, and if the quality of our debates falls, the status of this House falls with it, and that is a thing which none of us wants to see.
§ 5.14 p.m.
§ Mr. Hector Hughes (Aberdeen, North)
The speech to which we have just listened was a sustained argument for part-time Members of Parliament with divided attention and divided loyalties, who would not be able to give their entire attention to the needs of their constituents. I disagree with the general trend of that argument, and I disagree with the minor arguments on which it was based.
§ Major Anstruther-Gray
May I interrupt the hon. and learned Gentleman? Has he no legal practice himself?
§ Mr. Hughes
That intervention has nothing to do with either the speech or with my criticism of it. I disagree with the argument of the hon. and gallant Member for Berwick and East Lothian (Major Anstruther-Gray). However, before I say more on that point, I should like to congratulate my hon. and learned Friend the Member for Kettering (Mr. Mitchison) on the careful, diligent and exhaustive examination to which he submitted this Bill. I tried to draw the right hon. and learned Gentleman the Attorney-General into indicating in advance what line he intended to take. I do not agree entirely with everything said by my hon. and learned Friend, and I have high hopes that when I hear the speech of the Attorney-General it will be one that will make a clean sweep of this old problem in a way which will elicit support not only from myself but from others on this side of the House.
1887 This Bill is an attempt to solve longstanding problems, to resolve various legal difficulties and to abolish historic anomalies. Unfortunately, the Bill differs in some respects from the Report upon which it is based. It only tackles its task partially. I hope that it will be improved in Committee and that its present defects will be removed in order to make it a perfect Bill which will sweep away these long-standing anomalies.
The Bill seeks to do its task by looking at these old problems, by explaining legal difficulties and by defining some centuries old perplexities. In doing this, it is fortified by and founded on the valuable and learned Report, which traces these problems, difficulties and anomalies throughout history. It expresses them in modern terms; it shows that some of them originated in utility but are unsuited for the needs of today. The thanks of Parliament and the nation are due to the learned members of the Select Committee of Parliament who delved into these anomalies, into this old history and law, and who laboured assiduously to produce this careful and instructive Report.
As I have said, there are differences between the Report and the Bill. The Report is a model of its kind. It traces the history of the doctrines relating to offices of profit under the Crown almost pari passu with the development of modern Parliamentary law and usage. I regard it, however, as a little inconsistent in some ways. There are defects in it. It limits itself unduly. The Report says on page 14 that the Select Committee excluded from its consideration certain contractual relations with the Crown. As an illustration of the contradiction and inconsistency to which I have referred, I quote what the Report states on page 13, namely, that the Committee—have thought it convenient and right and in accordance with the wishes of the House, judging from the debates on the subject, that they should put a fairly wide interpretation on their terms of reference. This enables them to include in their considerations all such offices and places as appear to have been included in past legislation on the subject, even though the element of 'profit' is negligible or practically non-existent; and also to include certain cases of persons holding positions which, while possibly not strictly speaking offices or places of profit from or under the Crown, are so analogous to some of such offices that it would 1888 be illogical as well as inconvenient to exclude them from the consideration of Your Committee.Then later the Report seems to make certain exclusions which, in my submission, are inconsistent with what I have just read. At page 14, the Report says:On the other hand Your Committee have not thought it right or convenient to include in their consideration the position of persons from time to time in contractual relations with the Crown, where such contractual relations do not result from a definite appointment directly or indirectly by the Crown to what is generally regarded as an 'office'.Then the Report continues to deal with questions arising about Crown counsel, and it says this:Your Committee recognise that persons in certain contractual relations (like those of standing counsel to government departments, barristers employed on government briefs, technical and scientific advisers, and regular speakers for the British Broadcasting Corporation) may be in a position somewhat analogous to that of office holders. The position of such persons, however, appears to Your Committee to be a distinct and separate problem affecting questions of conflict between an individual Member's personal interests and his duty as a Member, rather than affecting the relations between the Crown, or executive government, and the House of Commons, and calculated to lead to considerations other than those which are properly within the purview of Your Committee.Certain questions obviously arise upon those two passages. One, who are these excluded persons? Two, why should they be excluded? Three, what kind of evidence was given about them? Four, by whom was that evidence given? Five, how does their exclusion affect the public administration, affect the purity of Parliament, affect the patronage of the Crown, affect favouritism by Ministers, and affect their colleagues and back benchers on both sides of the House?
Where does the interest of the House and of the nation stand in all this? These are grave and far-reaching questions which, in my submission, the Select Committee might fairly have considered and reported upon, and whose answers might have been embodied in the Bill, so that Parliament could have considered them in all their bearings on the public interest. I think that Parliament is entitled to have before it the evidence upon which this Report was based—
§ Mr. Hughes
—so that we can consider it in all its bearings.
That is my criticism of the Bill at this stage. I hope the criticism which I have levelled at it will be dealt with in Committee, so that the Bill, when it becomes an Act of Parliament, will make a clean sweep of these ambiguities, anomalies and perplexities, which arose from utility in history but which have lost their utility, which today are out of date, and which should be dealt with in a comprehensive way by a comprehensive Measure.
§ 5.23 p.m.
§ Mr. Montgomery Hyde (Belfast, North)
I must confess at the outset that I cannot find myself in agreement with much of what the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes) has just said, much as I admire the erudition he has shown in his speech. Surely, the question he has just posed about such categories of those who are in contractural relations with the Crown, as standing counsel, those who have Government briefs and so on, is answered in the very last sentence of paragraph 20 of the Report of the Select Commitee, in these words:The position of such persons, however, appears to Your Committee to be a distinct and separate problem affecting questions of conflict between an individual Member's personal interests and his duty as a Member, rather than affecting the relations between the Crown, or executive government, and the House of Commons, and calculated to lead to consideration, other than those which are properly within the purview of Your Committee.Surely, that is the answer to his question, and I hope that it is resolved in his mind.
There is, I think, one feature of the Bill on which everyone is agreed. It is a very necessary piece of draft legislation, because the law affecting this matter is archaic, and we have had evidence that it is confused and unsatisfactory. The hon. and learned Member for Kettering (Mr. Mitchison), who spoke first for the Opposition, gave one example of this, arising from the very sweeping terms in which Government contractors were dealt with by the old Act of 1782, so that in 1931 the lessor of Hatfield Post Office, now a noble Lord in another place, was considered as likely to be disqualified because of the fact that he had suddenly acquired the lease of that Post Office. I think that the anomaly went 1890 further than that, because it appeared at that time that everyone who had entered into a contract with the Government to make use of the telephone service had rendered himself liable to disqualification if he was a Member of this House. So in 1931 a declaratory Act had to be very hurriedly rushed through the House through all its stages in a single afternoon.
I consider that the Bill is a necessary piece of tidying up of the statute law. I think, too, that it reflects great credit on those who have been responsible for its drafting. It seems to me, as, I think, to anyone who reads the Bill, particularly the Seventh Schedule, that a tremendous amount of research has gone into the Bill. One has only to look at that Schedule to see the number of enactments, some of them dating back to the seventeenth century, which will be repealed wholly or in part. The result overall seems to be good, although, no doubt, the Measure is capable of amendment and improvements, and will be improved in Committee.
The question of offices of profit under the Crown is worthy, I think, of a moment's consideration from the historical point of view. In the earlier period, that is, from the early times of Parliament up to the Restoration in the middle of the seventeenth century, I think it is quite clear that the governing principle was that of the Privilege of this House; that this House felt a natural jealousy of its Members accepting offices which resulted in their necessary absence from their duties at and in this House.
A number of very interesting cases were referred to Select Committees as early as the beginning of the seventeenth century, and in one of those—I think the Herbert Report refers to it—offices in Ireland were held as disqualifying, whereas the office of ambassador was not. There were many offices in Ireland which fell under this disqualifying ban. Two in particular come to mind. One was described as that of "Ratcatcher to the Lord Lieutenant," and the other that of the "Necessary woman to the Privy Council," though, no doubt, she was disqualified as well by reason of her sex. The exception of ambassadors from the disqualification seems rather a curious one. I suppose that it was because embassies in those days were regarded as 1891 being only of a temporary nature. I suppose, too, that if ambassadors were excluded from membership of the House, it might be argued that it would provide a convenient way for the Sovereign to get rid of awkward Members by appointing them to embassies abroad.
The second historical period of offices of profit might be described as the corruption period—from the Restoration, in about 1660, to the middle of the following century—when the tendency of the Government of the day was to appoint to places of profit Members whose support they wished to obtain. The phrase which has been attributed to Sir Robert Walpole, who is generally regarded as the first titular Prime Minister of this country,All men have their price,is really a misquotation. What he is understood to have said was,Those men have their price,pointing to a collection of placemen who were standing at the Bar of the House. Fortunately, times have changed, and we have also changed in our attitude to placement of that description.
The last period, from the middle of the eighteenth century to the present time, has seen the development of the principle of Ministerial responsibility, following the Act of 1707, which laid down what is really the cardinal principle that those appointed to new offices should be excluded but those who hold existing offices should be allowed to continue to occupy them, provided that they submit themselves for re-election.
I consider it quite right that the various categories of disqualified persons should be clearly set out in the Bill. Reference has been made to a number of such categories, and I wish to refer to one or two myself. Clause 1 (1, e) says that:a member of the legislature of any country or territory outside the Commonwealthis held to be disqualified and incapable of membership of this House. This raises quite an interesting point, especially with relation to citizens of the Irish Republic. The Ireland Act of 1949 declared that:…notwithstanding that the Republic of Ireland is not part of Her Majesty's dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom.…1892 I hope that my right hon. and learned Friend the Attorney-General can clear up a point which has been troubling me, namely, whether a citizen either of Eire or of Northern Ireland who is a member of the legislature of Southern Ireland can validly be a Member of this House. I have known citizens of Northern Ireland who have been members of the Senate of Southern Ireland, and I should like to know whether, if such persons present themselves for election and are returned, they will be allowed to take their seats here.
Another category of person worth mentioning is the one referred to in paragraph (f), namely, a person whoholds any office or place specified in the Second Schedule to this Act.The Second Schedule consists of a rather long list of miscellaneous offices disqualifying for membership, at the end of which there appears the following:Speaker of the Senate or House of Commons of Northern Ireland.No doubt that is a desirable office to include, notwithstanding the fact that the first Speaker of the House of Commons of Northern Ireland who many hon. and right hon. Members will remember, was a very respected Member of this House, namely, the late Member for Antrim, North and the father of my hon. Friend the present Member for Antrim, North (Mr. P. O'Neill). No objection was raised to his combining the office of Speaker of the House of Commons of Northern Ireland with that of membership of this House. On the other hand, the office of Speaker is a non-party one and, on the face of it, it appears a little invidious that, whilst he would be nonparty in his office in Northern Ireland, such a person would necessarily be drawn into party matters in respect of his membership of this House. Notwithstanding the precedent of the first Speaker of the House of Commons in Northern Ireland, therefore, I think it is right that that office should be specifically included amongst those disqualifying for membership.
Clause 5 deals with the Chiltern Hundreds. It would be helpful to the House—it would certainly be helpful to me—if we could be told where these Hundreds are. I know where Desborough, Burnham and Stoke are, but I should 1893 like to know where East Hendred, North-stead and Hempholme are. My right hon. and learned Friend the Attorney-General could help by telling us where the seats of these offices are located.
I understand that Clause 12, applying the provisions of the Bill to Northern Ireland, is entirely satisfactory to the Government of Northern Ireland. It has been carefully considered by that Government, and I think I can safely say that hon. Members who represent Northern Ireland constituencies on this side of the House make no objection or criticism to any part of that Clause and the accompanying Sixth Schedule.
Paragraph 27 of the Herbert Report contains an interesting reference to the form of procedure by which Ministers, upon accepting office, had to submit themselves for re-election. That procedure was laid down in Section 25 of the Act of 1707. It was modified by the Re-election of Ministers Act, 1919, which made the re-election of a Minister unnecessary if he was appointed to office within nine months after a General Election. Some years later, in 1926, the necessity for reelection was finally abolished by the Reelection of Ministers Act, 1926.
I confess that I am very attracted by the argument which is summarised in the latter part of paragraph 27 of the Report of the Herbert Committee. It is expressed in such very forcible language that I cannot do better than read it to the House:It has been suggested that a Prime Minister, expecting or hoping that a pending General Election would result in a majority for his party, would, under the old system, appoint most if not all of his principal Ministers before the Election, in order to avoid the necessity for those Ministers to vacate their seats and offer themselves for re-election after the General Election was over. Now that this necessity for re-election has been done away with, there is no such reason for his appointing members of his intended Government until after the General Election is over; thus the electorate may have to cast its votes in ignorance of what will be the composition of the Government if the Prime Minister obtains a majority. It is said that it is thus possible that the majority of electors, being in favour of (let it be said for example) a peaceful policy, may after the Election find a Government appointed which is in favour of a warlike policy or vice versa.These are the important words:It is contended that there are considerable advantages in a Prime Minister having to make known before the General Election the approximate composition of his intended Government.1894It has been suggested, therefore, that some provision might be made in one way or another, under which there should be at least an inducement if not a necessity for a Prime Minister, at the time of a General Election, to announce the names of those whom he proposes to appoint to the principal offices in his Government if he obtains a majority, and that this might he effected by a provision that a certain number of Ministers appointed directly after a General Election should have to vacate their seats and offer themselves for re-election.I do not suggest at this stage that I would put down an Amendment to implement the suggestions made in that paragraph, but I admit that I am attracted by them. Such an arrangement could have certain advantages.
§ Mr. E. Fletcher
Would not the hon. Gentleman agree that if the rule with which he has expressed sympathy were in force and most of the present Ministers had to stand by that rule, they would lose their seats?
§ Mr. Hyde
I cannot agree with what the hon. Gentleman has just said concerning the present Government. In any event, these suggestions were made by witnesses before the Herbert Committee, and it was not suggested that they should apply to all Ministers but only to a selected number.
I have only one other matter to touch on briefly. My right hon. and gallant Friend the Home Secretary made it clear in his opening speech that the Bill was not designed to cover or to affect other categories of disqualification, such as aliens, lunatics and infants, besides officeholders under the Crown. He specifically mentioned clergy. It will, of course, be open to me or to any other hon. Member to put down an Amendment in the Committee to exempt from the terms of disqualification clergy of the Church of Ireland. Many hon. Members will recall that the late Rev. J. G. MacManaway was disqualified on this ground. Some of his supporters at that time in the constituency of Belfast, West, which returned him at the head of the poll in 1950, felt somewhat aggrieved.
Although Mr. MacManaway was a personal friend of mine and I greatly regretted on personal ground his disqualification and subsequent death, I am quite satisfied that it is a mistake for a clergyman of the Church of Ireland to present himself to the electors for election. Certainly the bishops, the leaders and the 1895 principal representatives of the laity of the Church of Ireland are united in their opinion that it is not desirable that any of their clergy should be candidates for election to this House or should be Members of it.
I can only say that I consider this an important piece of legislative consolidation. In a sense it must be regarded, and will be regarded, as a milestone in our constitutional history. As consolidating legislation it is long overdue. It will clarify many points which have hitherto been obscure, and it should make quite clear for many years to come who may and who may not sit in this House as an office-holder under the Crown.
§ 5.47 p.m.
§ Mr. George Wigg (Dudley)
It is remarkable that the hon. Member for Belfast, North (Mr. Hyde) should think the Bill an important milestone. I do not seem to remember hearing his voice in protest when, on 22nd July, the Government tried to slip the Bill through on the nod. I am also somewhat surprised that we did not hear a word or two on that subject from the Home Secretary. But, for the edification of the hon. Gentleman who has just spoken, I must risk boring the House by telling him the history of this Bill.
§ Mr. Hyderose—
§ Major Lloyd-George
I understood the hon. Member for Dudley (Mr. Wigg) to say that the Government tried to push the Bill through on the nod. That is not really what happened. If the hon. Gentleman and some of his hon. Friends had not talked for so long we should have got it through in the ordinary way.
§ Mr. Wigg
Certainly. I am glad the right hon. and gallant Gentleman admits the truth. The fact is that the Government put down the Validation of Elections Bill for its Second Reading for 22nd July. The Bill was not available in the Vote Office until 36 hours before the matter was due for a Second Reading, so the Government had to put this Bill down as a sop to keep the critics quiet. I made representations to the Leader of the House that the Second Reading should be postponed but, as usual, got very little 1896 change except, of course, his usual courtesy.
Having served an apprenticeship for ten years in this House, I know that if one cannot get a thing by direct action there are ways to achieve the desired end. I plead guilty that I made a somewhat more lengthy intervention on the first Bill than I originally intended and, with the assistance of my right hon. Friend the Member for South Shields (Mr. Ede), I secured for the House the opportunity it now has of considering this Bill at leisure. The hon. Gentleman had his peroration carefully worked out to say that he regarded this as an important Bill. Of course, that is nonsense—he was not even present in the House on 22nd July.
§ Mr. Hyde
I was present, and I listened to the hon. Member for Dudley (Mr. Wigg). I cannot agree with him that this is not an important constitutional Measure. I think it is. I entirely agree with my right hon. and gallant Friend the Home Secretary that it was not intended to put the Bill through on the nod.
§ Mr. Wigg
Of course, I regard this as a most important Bill, and that is why I charged the Leader of the House with a constitutional outrage in trying to slip it through without anyone having the chance to master its contents or our having an opportunity for proper debate.
This is not the only matter on which the hon. Member for Belfast, North has shown most profound ignorance. I am astonished, because he has a reputation as a professional historian. He said that the difficulties which we are seeking to tackle in this Bill had come about because the House of Commons had been always jealous of its privileges, and that in bygone days it did not like the idea of people holding a couple of jobs: being deprived of their services, the House declared, "You must give up one job or the other." I have never heard greater nonsense than that. The difficulty in which the House now finds itself arises because the approach to this question has not been based upon principle at all but upon political expediency. There is no more glaring example than the point touched upon by the hon. Member for Belfast, North at the end of his speech, with an ignorance which I thought was really profound even for a Member of a Northern Ireland constituency. He 1897 talked about the rights of members of the Church of Ireland to sit in this House and thought, on balance, that, although he knew the late Mr. MacManaway, it was right that he should be excluded.
What is the history of this problem? I am not a lawyer and certainly not a professional historian. I am just a passionate searcher after truth; I very rarely find it, but I search for it. In 1801, the Government of the day under Prime Minister Addington was most anxious, in his own words, not todiminish the purity and impair the independence of the House of Commons.That is what the Prime Minister said, but what he wanted to do was to upset the election of the well-known Radical, the Rev. Horne Tooke, who had been elected for Old Sarum. Thus the Rev. Horne Tooke was unseated and it was declared improper for a member of the Church of England to be elected to the House of Commons.
At that time the Church of Ireland and the Church of England were united, so the disqualification which applied to the Rev. Horne Tooke also applied to the Church of Ireland, and the doubts which arose about Mr. MacManaway arose because in 1870 the disestablishment of the Church of Ireland put into doubt the position of people like the Irish clergy.
Having dissented from the historical knowledge of the hon. Member for Belfast, North, I now dissent from his logic. I cannot understand why he considers it proper for a bishop to sit in another place and not proper for a clergyman of the same Church to sit here. We heard this afternoon a very proper and wise speech, on which I congratulate him, by the hon. and gallant Member for Berwick and East Lothian (Major Anstruther-Gray). He wants, and so do I, the widest possible experience to be available in this House. He wants people in contact with the man-in-the-street, who know where the shoe rubs, people who can keep us in contact with reality, from whatever class or circumstance they come.
Therefore, I give notice that I have every intention in the Committee stage of moving an Amendment to make it possible for clergymen of the Church of England to sit here, on the ground that 1898 if it is proper for the Archbishop of Canterbury to sit in the House of Lords, humble members of the clergy of the Church of England should be able to sit in this House.
§ Mr. Wigg
My right hon. Friend has become infected with the faulty logic of hon. Members opposite. That does not in any way follow. I am prepared to believe that it is quite wrong for the bishops to sit in the House of Lords; but if non-conformist ministers can add to our debates, then we should see that clergy of the Church of England should be able to come here.
§ Mr. Wigg
I am sorry, but we must argue that in Committee. Perhaps at this stage I might add my voice in support of the plea made by my hon. Friends who urge that the Committee stage should be in Committee of the whole House. This is a most important constitutional Measure which should be taken on the Floor of the House.
I have already referred in a complimentary way to the speech of the hon. and gallant Member for Berwick and East Lothian. I never suspected him of the delicate sense of humour which he expressed when he told us that the Attorney-General would make plain before the debate ended what this Bill sets out to do. That was a piece of delicate irony which I envy him. I have to rely upon more direct methods.
Now I turn to the Attorney-General because, when the Bill was first before the House, I wanted information. I used the Order Paper in what I think is the proper way. I put down Questions in order to get Answers. Of course, this afternoon, by a slip of the tongue, I said that I did not get anything out of my Question, but I should have thought that 1899 even the right hon. and learned Gentleman the Attorney-General would have understood what I was getting at. It is true, of course, if I may make the quip, that the late Lord Fisher once said that the epitaph of the British Empire when it came to be written would be "Buggin's turn next," and listening to the Attorney-General makes me think that the price tag on Lord Fisher's gibe was 6s. 8d.
I put down Questions to the right hon. and learned Gentleman with the honest intention of getting the facts. I propose to weary the House with the details. If the hon. Member for Belfast, North can read long extracts from the Report, then at least I might go over my Questions. The first Question I put was to ask:…the Attorney-General the number of hon. Members who have received legal fees in respect of briefs allocated by him or his predecessor since 1945;I was most anxious to avoid any party approach. I did not ask him the Question in relation only to a Conservative Administration—so I put the Question to cover five years of a Labour Administration. I was most careful not to put any hon. Member in any difficulty. I asked for numbers and for amounts. The second part of my Question was to ask for:the total amount paid to hon. Members since 1945, to date, in respect of legal fees paid in respect of briefs allocated by him and his predecessors.The Attorney-General replied—and of course I understand; I have been here for ten years now and I must never say that an hon. Member lies or that he is a liar. I never quite know how near I can get to it, but I intend to keep well in order, Mr. Deputy-Speaker, for I intend to leave the House to judge the extent to which the Attorney-General was being disingenuous—not, of course, to deceive me, but to deceive public opinion. He said:This information is not readily available, and I do not think the work involved in obtaining it would be justified.That is a fair answer, if it was the truth. I also asked him, in a further Question:…to state the Members who at present have judicial offices for which they receive payment; the annual amount of such payment; the dates on which the Members concerned were appointed; and the total sums they have received up to date."—[OFFICIAL REPORT, 20th July, 1955: Vol. 544, c. 56–7.]1900 The Attorney-General was kind enough to give information covering my hon. and learned Friend the Member for Crewe (Mr. Scholefield Allen), the hon. and learned Member for Cardigan (Mr. Bowen), my hon. and learned Friend the Member for West Ham, South (Mr. Elwyn Jones), the hon. and learned Member for Cambridgeshire (Mr. Gerald Howard), the hon. and learned Member for City of Chester (Mr. Nield) and my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels). Having got the reply that the information was not readily available, and the Second Reading not taking place on 22nd July, I put down a further Question. I asked the Attorney-General:…if he will state the number of briefs allocated to him by his predecessors from 1945 up to the date of his taking office and the amount of fees received by him in respect of such briefs;because at least he knew that, and that information must be readily available because he would have had it for Income Tax purposes, I presume. I also asked:…if he will give the same information in respect of hon. and right hon. Members who at present hold Ministerial appointments;In other words, if the information was not readily available over the whole range of Members for the past 10 years, at least I thought—if that was the real reason—that he would know it for himself and for those of his colleagues who are Members of the Government. I also asked:…if he will state the names of hon. Members who have received legal fees in respect of briefs allocated by him and his predecessors during such periods as the information is readily available; and if he will state the fees paid in respect of such briefs.The answer I got was this:No. My predecessors and I have nominated Members of Parliament to conduct cases on behalf of the Crown and fees have been paid to those Members by the Government Departments instructing them. I do not think it desirable to publish the names of those nominated…Now the first answer I got was that the information was not readily available. Then I "smoked the rat out"—I beg your pardon, Mr. Deputy-Speaker, I am merely using a figure of speech. What I then got from the right hon. and learned Gentleman was that the information was available but that it was not desirable to publish it.
Then the right hon. Gentleman becomes even more humorous—he is almost an 1901 unconscious professional humorist. His answer continues:I may say that in deciding whom to nominate I have regard only to the nature of the case and the skill and experience of counsel. Fees are neither fixed nor paid by me and no record of them is kept by my Department."—[OFFICIAL REPORT, 25th July, 1955; Vol. 544, c. 84.]There are hon. Gentlemen who have been longer in this House than I have, and many who have been here as long as I have. This is not a party question, so I want them to have a look at the names of those gentlemen who hold appointments as recorders, and I want them to apply their ordinary acumen and commonsense to the matter and ask themselves whether they could apply to all those gentlemen who have been appointed as recorders, or to those hon. Gentlemen whom they may know have received Government briefs, the test that the Attorney-General says that he applies—that he makes the appointments only on the test of competence. Let me tell the right hon. and learned Gentleman frankly that I can only apply my own test. When I do, I say quite frankly that I would not have as unpaid lance-corporals some of those who I know have received legal patronage—and I am not sure whether an unpaid lance-corporal holds an office of profit or not. When the Attorney-General tells me that competence is the only test in deciding who is to get a brief, then all I can do is laugh.
The truth is that for the last two or three hundred years the right hon. and learned Gentleman's profession has been doing very well indeed, and I am not challenging that. Like the hon. and gallant Member for Berwick and East Lothian, I do not want to stop them. So far as I am concerned they can all be recorders, and they can all have ten briefs a day. The point I wish to make is that the names and the amounts should be known. Let us be able to judge. Let the public judge. After all, what are we really seeking? It does not matter very much if one of my hon. Friends owns a stationer's shop in the Pentonville Road and a warder walks in and buys half-a-dozen pencils. Is anyone seriously upset about that?
We wish that democracy shall survive in this country, and perhaps we should remember that democracy is now under a challenge. What happens here is an 1902 example to the rest of the world. We need to be sure that Members of Parliament express their sincere and earnest views without looking behind to see whether someone is going to tap them on the shoulder and say, "Go and prosecute Bill Snooks." The worry about the present position is that we do not know the truth. And we should. That should be the test. We do not know what is going on. Of course I accept the fact that the Attorney-General is continuing the policy of his Department. He is carrying on what has been done in the past.
Nevertheless it is the fact that the right hon. and learned Gentleman was evasive, for he deliberately evaded the questions put to him which, I submit, were proper questions. I certainly think that we should have answers to those questions before the House passes from this matter.
The proposition being advanced by the Attorney-General—whether he is aware of it or not, I do not know—is this: he is claiming for himself and for his profession, a right which is denied to other Ministers, because every other Minister—
§ Mr. Deputy-Speaker (Sir Rhys Hopkin Morris)
I do not think that the claims of the learned Attorney-General come within the scope of this Bill.
§ Mr. Wigg
With respect. Mr. Deputy-Speaker, the Attorney-General has refused to answer questions which, in my submission, it is important to the House should be answered before hon. Members make up their minds whether to give this Bill a Second Reading. It is part of my case, and I intend during the Committee stage to try to amend the Bill to challenge the Attorney-General's proposition, that members of the legal profession are exempted from the standard of judgment which applies to every other profession and Department of State.
In the last few months, every other Minister has gone through his Department with a small toothcomb to try to find out whether, inadvertently or not, any hon. Gentleman was irregularly elected at the last Election. But not the Attorney-General. At first he said that the information was not readily available. Then he said, in effect, "Mind your own business; you must trust me." But why? What special qualifications has the right hon.
1903 and learned Gentleman, or any holder of his Office, which requires that we should trust him, when we do not trust any of his right hon. or hon. Friends? Merely to voice the Attorney-General's proposition is to reveal its absurdity.
Of course, it is quite clear that this Bill springs from difficulties similar to those which led to the setting up of the Herbert Report. It is born of expediency. One has only to examine the Preamble, where, in paragraph 2, there is contained a quotation from the Herbert Report'steps should be taken to draft and introduce in the House of Commons as soon as possible…'That was in 1941. It has taken fourteen years to get this anywhere near the Statute Book. That is "as soon as possible."
The facts are that, following the last Election, there was the usual crop of doubts on this matter—there have been over 150 Acts in the last 200 years. Because several came together this time, the only way in which the Government could handle the problem was to bring forward this Bill. But circumstances have changed since the Herbert Committee sat and reported. If we look at paragraph 20 of the Report—it has been quoted before today—we find a reference to the position of regular speakers for the British Broadcasting Corporation.
When the Commercial Television Bill was before the House, I tried to put down an Amendment during the Committee stage to make it a corrupt practice, not for people to talk on the B.B.C.—let them talk as much as they like—but to make it a corrupt practice for them to receive money. It seemed to me that in this respect America provides a useful example. In America people talk about public affairs and, by so doing, they obtain considerable advantage. But, instead of being paid for it, as happens in this country, they have to pay for the privilege. It would be too revolutionary to suggest that those who appear in the "Any Questions" programmes or in television discussions should pay for the privilege; although on the occasions when I have listened or watched I have thought that I would gladly support such a condition. But that, perhaps, is too much to ask. However, I see no reason why hon. Gentlemen who are Members of this 1904 House should receive money, because everybody knows that so far as the B.B.C. is concerned, kissing goes by favour. Anyone—
§ Mr. Deputy-Speaker
I find it very difficult to connect the remarks of the hon. Gentleman with offices of profit under the Crown.
§ Mr. Wigg
I am very sorry, Mr. Deputy-Speaker. May I, with respect, urge you to read from the Report of the Select Committee on Offices or Places of Profit under the Crown, upon which this Bill is based? In paragraph 20 of that Report—and for your easy reference, Mr. Deputy-Speaker, it is at page 14—you will find that the Committee considered the question of speakers employed by the British Broadcasting Corporation. And again may I submit to you, with great respect, that I am within the bounds of order, because it is my intention during the Committee stage to try to amend this Bill in such a way as to remove what is a blot on the workings of our democratic institutions.
Again, let me explain my purpose. It is in the interest of free speech, and I really mean free speech, because I am quite sure that there have been cases when in making speeches, and even, perhaps, in not making speeches, hon. Gentlemen have been guided by the question whether or not they will be employed by the B.B.C. We have to recognise that here is a tremendous source of patronage, and that it is placing a tremendous strain upon individuals.
We must remember that we are not always legislating for the strong. Sometimes we have to make provision for those who may be timid and who are weak, and not, of course, always for our generation, but for generations to come. This process has certainly grown since 1940, and the British Broadcasting Corporation, as also its commercial rival, is in a position to make a very real difference to an hon. Member's standard of life.
§ Mr. Deputy-Speaker
That may very well be true, but if the hon. Member looks at the paragraph to which he has referred me, he will see that it says:The position of such persons…appears…to be a distinct and separate problem,and, therefore, what the hon. Member is saying does not appear to me to come under the terms of the Bill.
§ Mr. Wigg
As an independent person, I here make up my mind whether to vote for the Second Reading or not. At the moment, I have persuaded myself that, despite its shortcomings, the Bill is a step in the right direction, and, subject to getting a full explanation from the Attorney-General on the points which I have raised, it is my intention not to oppose its Second Reading. Of course, in saying that, I am assuming that this not very good Bill can be amended. If you rule, Mr. Deputy-Speaker, that I cannot even discuss it, then, of course, with respect, I must accept your Ruling, but I shall have to consider my position with some care.
As I have said, this Bill is a step in the right direction. I very much hope that the Government are going to accept the plea made by my hon. Friend to take the Committee stage on the Floor of the House. If that be so, and subject to the reservations which arise out of your Ruling, Mr. Deputy-Speaker, I shall not vote against the Bill, but shall seek to amend it on the Committee stage.
§ 6.14 p.m.
§ Mr. Ronald Bell (Buckinghamshire, South)
The speech of the hon. Member for Dudley (Mr. Wigg) has, I think, given a slightly undue importance to the question of legal fees in relation to this whole field of disqualification for being a Member of Parliament. The hon. Gentleman showed a great preoccupation with it and a very laudable desire that democracy should survive in this country. He appeared to link that up with the question whether hon. Members who are lawyers should or should not receive briefs from the Crown. I would remind him that democracy has survived and thriven very well for hundreds of years in this country, during which time a considerable part of the membership of this House has come from the legal profession; and that those hon. Members 1906 have from time to time received instructions on behalf of the Crown.
The fact is that the Crown is one of those habitual litigants upon whom, in ever-growing measure, the legal profession is bound to depend. I speak without any particular interest to declare in the matter because my own practice does not extend very much to that branch of the law. If there is any suspicion of patronage, I do not mind telling the hon. Member for Dudley that I received Attorney-General's nominations before I came to this House, and while his party was in office, but have never received one since my own party has been in office. I anticipate that the right hon. Member for South Shields (Mr. Ede) is going to say, "They know you too well," and I feel that I ought to say it for him. That might also be due, might it not, to the extreme impartiality shown and the desire that justice should not only be done but should manifestly be seen to be done?
The answer to the hon. Member for Dudley is surely this. In this Bill, reenacting as it does to some extent the practice of past centuries, disqualification attaches to offices or places of profit and to contracts. And in relation to contracts, as has been pointed out, the Bill really re-enacts an old definition. The contract concerned is the sale of goods, and something which I find quite impossible to understand, the export of money overseas. The hon. and learned Member for Kettering (Mr. Mitchison) explained that two hundred years ago that meant something. I venture to think that it does not mean anything very much now.
Apart from that, however, the contracts concerned are for the sale of goods. There is no question whatever of the sale of services being struck at in any stage of our history as a disqualification for membership of the House. Disqualification has been attached either to an office or place or a contract for the supply of goods. I think that is a logical definition, because when we come to the sale of personal services we ought to pick out particular offices and functions and schedule them, as has been done in this Bill, or give a general definition which makes it clear that what we are striking at is the loss of independence by the individual Member of the House.
1907 I venture to say, as one who has practised at the Bar for a good many years, that I do not think that there is any suspicion at all among my professional colleagues that there is an element of patronage in the distribution of the Attorney-General's briefs. I can honestly say that that is so. There is no sense of grievance or of injustice among those who are not Members of this House nor any feeling that any hon. Member is influenced in any way in his political conduct by this consideration. I believe that hon. Gentlemen opposite who practise in the legal profession would bear witness to that as clearly as I wish to do myself.
§ Mr. Wigg
I am afraid that there is a volume of opinion in the hon. Gentleman's profession which does not wholly agree with him. After 22nd July, I received a letter from a prominent member of the Bar who wished more power to my elbow, and said that if I succeeded in cleaning up the patronage side of the Attorney-General's briefs, he would do his best to get a monument erected to me in the Temple.
§ Mr. Bell
The hon. Member for Dudley had just adduced a very powerful reason why his proposal should not be accepted. Although we have spent a lot of time on it, perhaps not unprofitably, I think that this is really a very small part of the field covered by the Bill.
I suppose I ought really to declare a slight constituency interest in the Bill, because I am a Member for the Chiltern Hundreds. The hon. Member for Belfast, North (Mr. Hyde) asked where some of those Hundreds were. I think that the boundaries of the Hundreds of Stoke and Burnham are almost coterminous with those of the South Buckinghamshire constituency. The Hundred of Desborough corresponds roughly with the constituency of my hon. Friend the Member for Wycombe (Mr. John Hall). I am afraid I cannot help the hon. Gentleman about the others.
I regard this Bill as long overdue. It will be a great convenience to the Members of this House, but I think that my right hon. and gallant Friend was a little optimistic when he said that we shall not in the future be faced with the necessity for special legislation. It seems to me 1908 that when the Bill becomes law, it will still only affect those cases which occur after it has come into force.
I am glad to hear that, by an Amendment to be introduced later, the Bill will come into force when it receives the Royal Assent. Even so, the case of any hon. Member who at any time in the past has inadvertently accepted any office of profit under the Crown or any contract which can be so defined will have to be dealt with by a special Act. That is a great pity. The transitional stage is not a matter of months or a year; it may be one of ten or fifteen years. One can imagine a case occurring in ten years' time relating to a disqualification which occurred before the Bill received the Royal Assent, and it would still have to be dealt with by a special Act. I hope that that point can be cleared up in Committee, because it is a substantial defect in the Bill.
In Clause 8 (2) we expressly retain Section 124 of the Representation of the People Act, 1949. I hope it will be in order in Committee to amend that provision, because it puts the House in a very invidious and unfortunate position. We were concerned with that Act the other day in relation to the Irish elections, and Mr. Speaker ruled that under that Section the House had put itself under a legal duty to pass a certain Resolution. I could not help feeling at the time—this seems an appropriate moment to say so —that it is deplorable that the House should be under a legal duty of that kind in relation to its own procedure. We might even find ourselves the object of a mandatory order from the Chancery Division to do something which by statute law we are under a legal duty to do. It would be wrong and entirely contrary to the dignity of the House that we should have put ourselves in a position where we might receive an injunction from the High Court ordering us to do something in pursuance of an Act of Parliament.
I hope that, although we may expressly retain the operation of the Section, we shall nevertheless amend it so that the duty is cast not upon the House but directly upon the Clerk of the Crown, in order to obviate any such absurdity as our voting for or against something which apparently we are under a legal duty to do. That is a small point, but I think it is in order, and I take this opportunity of mentioning it.
1909 I am rather concerned about the position of the Reserve Forces under Clause 3. They are exempted in a general way from disqualification. We all desire that. We want officers and men of the R.N.V.R., the Territorials and the Royal Air Force Reserves to be able to sit in the House. However, as I understand it, as soon as they are called up they instantly cease to be Members. That is the effect of Clause 3 as it stands. It would be very unfortunate indeed if, as soon as any part of the reserves was called up for actual service, any member of the reserves who was a Member of this House should instantly cease to be a Member.
Generally speaking, a Member of Parliament cannot be forced to accept any disqualifying office, but Clause 10 (2) makes it clear that the rule does not affect any obligation to serve in the Armed Forces of the Crown. Therefore, this would be the one exception to the rule that a Member of Parliament cannot against his will be forced to be in an office which disqualifies him from membership of the House. Yet any hon. Member who is in any of the reserves automatically ceases to be a Member if one of the reserves is embodied for actual service. I cannot believe that the House wants that to be the position.
I agree in general terms with the views about contracts which have been expressed by other hon. Members. The Herbert Committee did not consider contracts; it dealt with offices and places of profit. As a result, the law about contracts has just been more or less reenacted. However, it is out-of-date and not very satisfactory. After all, the development of joint stock companies has driven a coach and horses through that part of the law.
What we are striking at now is really only the man who happens to operate as an individual or perhaps in a family company where he may be described as governing director. But he could exercise all kinds of influence short of that which might be described as controlling. We all know what ingenuity can be exercised in these matters. We ought to try to enact something a little more modern and realistic. That is very important, because the trading scope of Government Departments has been immensely expanded, and there is here a vast field for inadvertent 1910 disqualification and consequent trouble for the House.
I am glad to see that, if I correctly understand the rules laid down for the definition of "office of profit," we have abandoned the principle with which we had to contend in the Niall Macpherson Indemnity Act, 1954, that the Crown is one and indivisible.
§ The Attorney-General
Perhaps I can help my hon. Friend. If that case had arisen when this Measure had become law, we should not have required an indemnity Act or anything of that sort.
§ Mr. Bell
I think that my right hon. and learned Friend and I are disagreeing rather more about the form in which I expressed myself than the substance of the matter. Politically, we attach great importance to the fact that the Crown is one and indivisible throughout the Commonwealth, but, for the legal purposes of disqualification in respect of the House, I understand that that will no longer be true and that it will be possible for a person to accept an office of some kind from the Crown in a British Dominion and still be a Member of the House.
I have wondered, as some hon. Members opposite have wondered, whether we could not go a little further in defining "office of profit," perhaps saying that any profit of less than £25 in a year should not be so regarded. That would be an advantage in one way. We do not want to be bothered with passing Resolutions concerning trivial matters which ought never to have come before us. However, the considerations are rather evenly balanced, and because of one consideration I am inclined to support what is in the Bill.
The procedure by Resolution provides flexibility. If we put a money limit in the Bill, there might be a feeling as the years went by that if somebody inadvertently accepted an office of profit above the small money limit, the House ought not to pass a Resolution to indemnify him. I think we should be wise to keep the Bill as it is in that respect.
I congratulate my right hon. and gallant Friend upon bringing the Bill forward. I am glad that this long overdue reform of the law is now to be effected.
§ 6.29 p.m.
§ Mr. John Parker (Dagenham)
I congratulate the Government upon this limited contribution towards solving a very difficult constitutional problem. When the Representation of the People Bill was before the House in 1948, a number of us tabled Amendments trying to do some of the things which the Bill is trying to do. We felt that when we were "democratising the electorate," so that for the first time there would be the principle of one man—one vote, we should go into the question of how far it was possible for that electorate to sit in this House. My view, which is shared by many hon. Members on this side of the House, is that, so far as possible, any member of the electorate, man or woman, should be able to stand for Parliament and be a Member of Parliament. It should be accepted that there should be a very good reason why such a person should not be able to stand for Parliament or to sit in the House if he is elected.
There are obviously certain offices like those of judges and senior civil servants in respect of which a man cannot combine the holding of such office with being a Member of this House, but at the same time most of us feel that the fewer the rules prohibiting a man from standing or from being a Member the better, and that as much opportunity as possible should be given to every section of the population and to any member of the electorate to stand for election and for the people in the country to be able to nominate him if they so wish.
I wish, therefore, to consider the Bill from that viewpoint. The Bill makes a contribution towards removing a number of anomalies and makes it easier for a certain number of people to stand who were not before able to stand. One needs to go a great deal further. In the debate much exception has been taken to the number of lawyers who sit in the House. As a non-lawyer I share that objection. There are far too many lawyers and far too many journalists sitting in the House of Commons. I do not want to stop them coming here by having them banned, as some have suggested, but if it were easier for other people to come here, there would be fewer lawyers and possibly fewer journalists in the House.
There are things to be tackled in addition to what is being attempted in the 1912 Bill. Quite obviously, Members of Parliament need to be paid a great deal more if more people from all sections of the population are to come to the House. It is not realised that the British House of Commons is the most underpaid legislative assembly in the English-speaking world and the lowest paid in Western Europe. I do not suggest that we should have the privileges and salaries given to Members of Congress at Washington, but it is striking that every other part of the Commonwealth, Canada, New Zealand and Australia, gives far more facilities and bigger salaries to Members, and that enables a far greater variety of people to sit in those assemblies.
In addition, we need to consider the restrictions, apart from those which are to be removed by the Bill, preventing people standing for Parliament. The Civil Service position has been tidied as a result of the Masterman Report, and I do not feel that any substantial section of the Civil Service wishes to alter the existing practice which has developed after discussions with the present Government and the last Government. A fairly satisfactory solution to that problem seems to have been reached. But there are other fields in which the position needs to be clarified.
The nationalised industries are an example. There is a fairly wide freedom for employees to stand for Parliament. The most freedom is given by the Transport Commission, but that is because when the railways were privately owned the railway trade unions agreed with the companies that very wide freedom should be given to employees and that tendency has been followed widely in the nationalised industry. Some local authorities are fairly wise in the matter. For example, if one is a school teacher employed by the London County Council and is elected to the House of Commons one is allowed to resign one's job for the time being. Should one lose one's seat, the London County Council will find one a job again. If one had been a headmaster, one could not expect to go back to being a headmaster, but at least the London County Council will find one employment if one loses one's seat. That kind of principle ought to be adopted generally, not only in the public services and by local authorities, but also in private industry. If we 1913 are to have people in this House coming from all sections of the population, it is desirable that a code should be drawn up covering private industry.
I suggest that any firm employing more than 500 people should have certain obligations to allow employees to stand for Parliament, if they wish so to do, and to take them back into employment if they lose their seats. It could not be expected that a man should go back to the responsibility he had before, but with a firm of the size—and turnover of staff—that I have mentioned, it should be possible to take the person back again.
We have such a code for National Service. Coming to the House of Commons is a form of national service, and some such code should be drawn up. I agree that that would not meet all the difficulties. I know of an example of an M.P. for a constituency near my own who for over 12 years was the secretary of a small company. He came to the House and had to give up his post. When he lost his seat, the company did not take him back because another person had the job, and he was therefore left completely out on a limb. The only work he could do was clerical, because his specialised knowledge arose from his experience of that company and from running it for so many years.
All such difficulties could not be met, but some such code covering private firms employing more than 500 employees and all public industry should be drawn up as one of the ways of seeing that we do widen the field from which we draw the Members of the House. I am quite certain that by so doing we should improve the standard of Members and benefit the country by having M.P.s with wider experience.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
Is my hon. Friend the Member for Dagenham recommending that this code should have statutory sanction and that there should be legislative powers compelling companies to give people leave to stand for Parliament?
§ Mr. Parker
Yes, on the same lines as we have already provided for National Service. There might have to be some modifications, but some such legislation is desirable if we are to do the job properly.
I should like now to deal with some of the points in the Bill. Most of the pro- 1914 posals about the kind of job which it is suggested should not be held by Members of Parliament, such as judges and so on, are reasonable. I want to ask a question about Clause 7 which is concerned with Crown pensions. When the Bill was published I put down a Question to the Home Secretary and I got a fuller answer than my hon. Friend the Member for Dudley (Mr. Wigg) got to the Questions which he put down.
On 21st July I asked the Home Secretary to…give an estimate of the number of persons receiving pensions from the Crown who are thereby disqualified under the present law for membership of the House of Commons; and of the approximate number under the House of Commons Disqualification Bill.The answer was:Owing to the obscurity of the existing law I cannot estimate the number of Crown pensioners at present disqualified if the House of Commons Disqualification Bill were in force the number of persons who would be disqualified through receipt of pensions from the Crown would he about one hundred and sixty."—[OFFICIAL REPORT 21st July 1955; Vol. 544, c. 59.]Exactly how did these Crown pensioners get their pensions, and is there any special reason why they should be disqualified? Unless there is a very good reason to the contrary, they should be allowed to stand. I should like to know the precise reason for the insertion of that Clause.
I hope that during the Committee stage we shall very carefully study the Schedules dealing with the list of jobs which would disqualify a Member, and that if necessary we shall be told the reason for including a particular job. I should like to ask about one job included in the Second Schedule. It concerns aMember of a County Agricultural Executive Committee, Sub-Committee, or District Committee constituted under the Agriculture Act, 1947, or of an Agricultural Executive Committee or Sub-Committee constituted under the Agriculture (Scotland) Act, 1948.I can see why a member of an agricultural executive committee of a particular county should not be a Member for a constituency in that county, but I do not see why he should be debarred in another county. His job is rather analogous to that of a lord lieutenant or a recorder. I think that such an appointment might be transferred into the category of limited disqualifications. That is the sort of point we should look at during 1915 the Committee stage when considering the Schedules.
The subject of the clergy has been raised by the hon. Member for Belfast, North (Mr. Hyde) and by the hon. Member for Dudley. I do not know why the Government have not tackled that problem in this present Bill. The only reason seems to be that the MacManaway case which brought this matter to our attention cropped up very recently, while the Herbert Committee had sat in 1941, when no one thought that such a matter might become a live issue. Had the Committee been sitting subsequently to the MacManaway case it would no doubt have made a recommendation. Nevertheless, I do not see why, when tackling other anomalies, we should not tidy up the position in respect of the clergy.
It really is absurd. The clergy of the Church of England or of the Established Church of Scotland are disqualified because those are Established churches, but nonconformists—except Roman Catholics—are allowed to stand. Furthermore, owing to an oversight by Gladstone, the removal of the disqualification of the clergy of the Church of Ireland was forgotten when it was disestablished.
§ Mr. Pickthorn
I do not like to interrupt the hon. Member, but he gave the impression that the Herbert Committee had not considered this matter. As, I think, the only surviving member—except for one whose illness we all regret—I think it right to tell the House that this matter was considered at some length, and a page is devoted to it in the Report.
§ Mr. Parker
I am sorry. I should have said that had there recently been a "live" case the Committee might have come to rather different conclusions.
§ Mr. E. Fletcher
Might I remind the hon. Member for Dagenham that, subsequent to the MacManaway case, a Select Committee of the House was set up to consider whether there should be a change in the law as a result of that case. That Select Committee, of which I was a Member, reported that in its opinion no change should be made in the existing law.
§ Mr. Parker
That does not alter the fact that the present position is anomalous. There are a large number of clergymen who are allowed to stand as 1916 candidates and to sit here if elected, while the mass of clergymen of the Established Churches are not so allowed. The nonconformist clergy, except for the Roman Catholic clergy—and in the latter case it is a relic of the days when we had laws against the Roman Catholic religion—are also allowed to stand. At present an Anglican clergyman with a benefice in Scotland is a nonconformist and, therefore, can stand for Parliament and, since the disestablishment of the Church in Wales, so can the clergymen of that Church.
There are a number of anomalies with which I should like the Attorney-General to deal. What is the position of an Anglican clergyman, living in Southern Ireland and holding a benefice in Southern Ireland, if he is selected as a candidate in the North? What is the position of an Anglican clergyman who holds a benefice in Wales and is selected as a candidate for an English constituency?
We should remove all these restrictions. I do not accept the view that, just because the Archbishop of Canterbury and other prominent clergymen told the Herbert Committee that they did not wish the clergy to stand for election to Parliament, we should allow that to prevent us legislating on that subject. I should have thought that the right thing to do was to remove all disqualifications against clergy and then, if a particular Church likes to make its own rules about Parliamentary candidature in relation to its members, it would be its own affair. The same applies to many jobs and professions. The House of Commons should not put obstacles in the way of people standing; let such organisations make rules for their members if they so wish.
In the Bill we give the Master of Trinity College, Cambridge, the Principal of King's College, London, and the heads of a number of other colleges the right to stand for Parliament. One obviously cannot be Master of Trinity College and a Member of Parliament and do both jobs properly at the same time. If the Master of Trinity were elected to this House, he would soon have the other dons wanting to know how he could combine the two jobs and asking him to give up one or the other.
§ Mr. Parker
It is for the House of Commons to make the position as free as possible for people to stand for election, but for such organisations, if they so wish, to make their own rules as to whether or not their members seek election. That is their affair—not ours.
It is suggested that Malta may come into the United Kingdom on the same terms as Northern Ireland. What will be the position of the clergy of Malta? In that island, the Roman Catholic Church is the Established church. Will that community want to change the rule? Will they regard it as an unfair discrimination if we keep the restriction on clergy of the Church of Rome? The best way is to make a clean sweep of all the old rules and anomalies, and to allow the clergy the right to stand if they wish.
Those are some of the points which, I hope, will be gone into during the Committee stage. I hope that the point with regard to clergymen will not be overlooked because, when we are tidying up the law, it would be a great pity to tidy up some matters and leave untouched others which should be settled now.
§ 6.47 p.m.
§ Mr. James H. Hoy (Leigh)
Like the hon. and gallant Member for Berwick and East Lothian (Major Anstruther-Gray), I served on the Select Committee which dealt with the cases of the four hon. Members who had held offices of profit under the Crown. I am certain that as long as I have been a Member it has been the wish of this House that it should be clearly laid down just what offices disqualify a person from membership of the House. It is very misleading in some cases. For instance, some offices cost certain hon. Members considerable sums of money out of their own pocket, yet they were found guilty of holding offices of profit under the Crown. It made it nearly impossible to understand just who had offices of profit and who had not.
I remember my right hon. Friend the Member for Lewisham, South (Mr. H. Morrison) appointing an hon. Member opposite and myself to serve on a committee. We thought it a great honour.
1918 We got a letter of welcome from the organisation itself—and with it a request for a membership fee of 2 guineas a year. We felt that to be a somewhat backhanded compliment, but at least it was not an office of profit. But even that was not a guide. An hon. Gentleman opposite certainly proved to the Committee that it had cost him £200 or £300 out of his own pocket to undertake a job on behalf of the Crown. Nevertheless, it was held to be an office of profit.
Mention has been made by an hon. Member opposite of the case of the hon. Member for Dumfries (Mr. N. Macpherson) who had held an office of profit because of a particular appointment. I do not know whether the view taken was quite accurate, because later we had the case of another hon. Member who was deemed to have held an office of profit because he had been appointed by the Government of New Zealand to represent the Bank of New Zealand in London. As far as I can understand it, I do not think that that particular anomaly is abolished by this Bill, and I hope that the Attorney-General will later make a statement to clarify the issue. There are certainly two other cases, one of a Member who serves on a tribunal under the National Health Service Act. He is still held to have an office of profit, even though the appointment makes it clear that he shall receive no payment at all.
§ Mr. R. Bell
The hon. Gentleman will find that to hold an office of profit under the Crown one must be appointed to it by one of the Ministers mentioned in the Fourth Schedule. At least, that is how I understand it.
§ Mr. Hoy
I think it is still a little obscure, and the Attorney-General ought to make perfectly clear whether these two cases which are very recent are cleared by this Bill. So far as I can see in the other case concerning a Member of Parliament who serves on one of these tribunals, he is disqualified even though no payment is made. In fact, he finds himself out of pocket for doing this job.
I agree with the hon. and gallant Member for Berwick and East Lothian that it is not right to disqualify Members of Parliament from certain jobs because of this old law. By the Second Schedule certain people who give their services to 1919 trading estates under the Distribution of Industry Act are disqualified. One of my hon. Friends is a director of one of these trading estates, but according to this Bill this is an office of profit, although he loses money by doing this job.
It is difficult for people to understand these matters, while at the same time certain legal appointments are made in Scotland which the people of Scotland regard as offices of greater profit than other appointments which are filled purely in order to render service. The Lord Advocate has a certain patronage. He appoints the Advocates Depute in Scotland. They are appointed because of their political persuasion, and, in saying that, I am not talking only of this Government. At present we have the previous Solicitor-General for Scotland as an Advocate Depute, and he was a prospective Conservative candidate. That type of person is appointed an Advocate Depute and receives his favour from the Crown.
Therefore, it is difficult for the outsider to understand why these legal appointments, which certainly prove to be very remunerative, are not offices of profit, when other people who give their services free and, indeed, at cost to themselves, are regarded as holding offices of profit. It is true that when these people get appointments they undertake certain work. Nevertheless, there was considerable weight in what was said by my hon. Friend the Member for Dudley (Mr. Wigg), and when this Bill is in Committee we should give considerable thought to these appointments which have existed for a number of years.
I wish to raise one or two other small points. I see that membership of the National Broadcasting Council will now be a disqualification from membership of this House because it is an office of profit. I do not know whether that applies at present, but I believe there are one or two hon. Members who have served on that Council in an advisory capacity. I do not know whether the Bill extends to them it does not seem very clear.
My hon. Friend the Member for Islington, East (Mr. E. Fletcher) is a Public Works Loan Commissioner. He has just resigned, but under this Bill he would be disqualified. These extensions of the law constitute an encroachment on the liberty of Members of Parliament, and when this 1920 Bill is in Committee we shall have to go through it very carefully to ensure that we do not debar from public service people who are competent to undertake tasks for the Government without remuneration.
§ 6.55 p.m.
§ Mr. Eric Fletcher (Islington, East)
In view of what my hon. Friend the Member for Dagenham (Mr. Parker) said just now about clergy disqualifications, when I intervened to remind him that there had been a report of this House on the subject following the MacManaway decision, I should like, if only for the record, to recall to the House that the subject of the disability of ministers of religion to sit and vote in the House was considered by a Select Committee of which I had the honour to be a member. The Committee reported to this House in 1952, and the Report is printed in the House of Commons Reports for the Session 1952–53.
I think the matter is germane to this discussion, and it is perhaps desirable that I should mention it because, as far as I can recollect, the Report of that Select Committee has never before been considered in this House. In view of what my hon. Friend said, I will refer to two or three sentences in the Report of that Committee. The Committee received a great deal of evidence, including evidence, as I recall, from the Archbishop of Canterbury, the Coadjutor Archbishop of Westminster, and leaders of most of the other religious bodies in this country. We considered the very anomalous cases under which ministers of some denominations are, and others are not, at present disqualified.
The Committee came to the conclusion that, on the basis of the evidence which they had heard, they should recommend that no change in the law should at present be made. They recognised that there were certain anomalies, and they said that in their opinion the question of clerical disability should not be considered or decided in isolation but only as part of the general question of what disability should or should not be imposed upon those wishing to stand for Parliament.
They drew attention to the fact that witnesses from the Church of England, the Church of Ireland and the Church in 1921 Wales did not desire the removal of clerical disability. They said that to deal with the question of clerical disability separately might arouse undesirable religious controversy, that the problem did not appear to be either pressing or urgent, and that there was no public demand for a change. I mention those sections in the Report in order that hon. Members may have them in mind, as I gather certain hon. Members may contemplate putting down Amendments in Committee to deal with the subject.
I have the same general approach to this Bill as other hon. Members. I feel that it is highly desirable that when the Bill has had a Second Reading, which I have no doubt will be unopposed, the Bill should be committed to a Committee of the whole House, because there are many points of detail that are purely Committee points which are of great interest to many Members and which it would not be right to deal with in Standing Committee, nor indeed would it be right for me to do more than mention them in passing.
I must, however, mention two or three such details before making one or two observations on the general principles of the Bill. As my hon. Friend the Member for Leith (Mr. Hoy) has pointed out, in the Second Schedule there appear to be insufficient reasons for introducing certain disqualifications of membership which do not at present exist. As my hon. Friend pointed out, members of the Public Works Loan Board, for example, will in future be disqualified. There may or may not be good reasons for that, but it is a startling change in the law.
§ Mr. Fletcher
As the Attorney-General knows, the reasons for my resignation have no connection whatever with the provisions of the Bill. In any event, its provisions would not operate during the course of this Parliament.
§ The Attorney-General
I was not suggesting that there was any close connection. I was merely pointing out that other Members had resigned beforehand.
§ Mr. Fletcher
The right hon. and learned Gentleman is, perhaps by implication, confirming what I have 1922 hitherto assumed, that membership of the Board has not previously been a disqualification. I was a member of that Board for the past nine years, and it never occurred to me, nor has it been suggested either by the right hon. and learned Gentleman or by any of his predecessors, that my membership of the Board was a disqualification. If I have been right in that assumption, it seems to me to follow that what the right how and learned Gentleman is now proposing is a change in the law. All I am pointing out is that this is one of many changes in the law, which happens to come within my special knowledge, and these are changes which do not flow from the recommendations of the Herbert Committee, and therefore call for special justification, which we have not yet had, from the Government.
There are other Committee points on which I do not want to waste the time of the House, but it strikes me as anomalous, for example, that one of the offices involving no disqualification is that of the Astronomer Royal for Scotland. What about the Astronomer Royal for England? Is he disqualified? Why is there this distinction between the Astronomer Royal for Scotland and the Astronomer Royal for England?
§ Mr. Fletcher
Another detail is that in the Fourth Schedule practically every Ministerial office that one can think of is mentioned, with one significant exception—that of the Lord Chancellor. Is the Lord Chancellor qualified or disqualified? Surely, he ought to be disqualified. The Attorney-General must know perfectly well that although it has happened for a long time that the Lord Chancellor has been a peer, there is no necessity for him to be a peer. As those who are authorities on legal history will know, within our own lifetime a person who was appointed Lord Chancellor sat in and presided over the House of Lords without having been a peer. Therefore, as a matter of constitutional completeness, I hope that when the Bill is considered in Committee the Lord Chancellor will also be expressly disqualified from sitting in this House.
Another point which troubles me a little concerns the Queen's Printer. I am not sure whether the Queen's Printer is 1923 a Member of this House, but there is one hon. Member who, with great credit to him, has, or used to have, a close connection with the company of the Queen's Printer. The Queen's Printer is expressly exempted from disqualification. There may be good reason for that, but it is not in consonance with what the Herbert Committee recommended.
§ The Attorney-Generalindicated dissent.
§ Mr. Fletcher
The Attorney-General shakes his head, but the Herbert Committee had a good deal to say about the, in those days, King's Printer. If the right hon. and learned Gentleman looks at paragraph 41 of the Report, he will read in the last sentence:It will be observed that this exemption will not extend to any person who may at some future time be appointed to such an office.
§ Mr. Fletcher
This is the preceding sentence:Your Committee therefore recommend that the King's Printer holding office under the letters patent of Edward VII should be exempted from disqualification.Then follows the sentence which I have already quoted.
I want to pass from those Committee points, because they can be dealt with later. Certain matters of principle are involved in the Bill. We all welcome the opportunity that is being taken to tidy up the really grotesque anomalies that have crept into the two conflicting aspects of the law and which have led to so many indemnity Acts having been passed. There is, however, another and more substantial matter of principle about which I must say a word.
As the Herbert Committee recognised —it is dealt with on page 13 of their Report—there are today, as there have been during the last two or three centuries of our Parliamentary history, two conflicting principles in this matter which we have to reconcile. In the first place, the House of Commons is concerned to see that, if not all, a majority of Her Majesty's senior Ministers and others sit in this House and are Members of this House, so that this House can control them. This is in order that we, the elected representatives of the people, can 1924 have the Ministers of the Crown sitting on that bench opposite, subject to interrogation day after day, subject to being questioned about Ministerial statements, about the administration of the Realm and about their policy.
As I understand it, one of the cornerstones of Parliamentary Government is that all Ministers of the Crown, apart from those who sit in another place, sit in this House. As a result of their being Members of this place, unlike the system which exists in the United States, where there is divorce between the Legislature and the Executive, here we have the benefit of the elected representatives of the people being able to criticise from day to day the actions of Her Majesty's Ministers.
§ Mr. Fletcher
With that principle we have to reconcile a conflicting principle. That is to say, be must ensure that there are not so many Ministers of the Crown or other office holders that there is an undue influence by the Executive over Parliament. That is something which requires increasing vigilance, because most hon. Members would, I think, agree that during the last generation or two there has been an increasing tendency for the Executive to exert more control over Parliament than it used to have, or is justified by the constitutional principles that have grown up in our history.
It was for that reason that the Herbert Committee was very concerned to ensure that the number of Ministers sitting in this House should be limited. They propose that the number should be strictly limited to 60. Whatever the right number is, I notice that this Bill proposes that it should be 70. The number is gradually growing all the time, and I noticed that the Home Secretary, in introducing the Bill, did not venture a word of explanation why he has departed from the specific guarded recommendations of the Herbert Committee, but has introduced in Clause 2 of the Bill permission for the number of holders of Ministerial office to rise to 70, as compared with the figure of 60 recommended by the Herbert Committee. This seems to me to be an appropriate matter to discuss on Second Reading, and I should have thought that the 1925 Government would have wished to have justified that figure.
I appreciate that, at the time the Herbert Committee reported, which was relatively shortly after the war, there was a tendency for the number of Ministerial offices to increase, but that tendency has subsequently been corrected. One must also recognise a further dilemma. We appreciate that there must be a certain number of Ministers in another place in order to carry out the functions of another place, but, while we recognise that, this House is nowadays increasingly jealous of making sure that most of the senior Ministers are in this House. Obviously, under our present system, they cannot be in two places at once.
§ Mr. Fletcher
No, if the hon. Gentleman will forgive me. There could well be a change in our arrangements whereby Ministers in another place have the right of audience in this place. I am not recommending it, but it is not nearly so far-fetched as the hon. Member may think. It is a quite conceivable hypothesis that Ministers of the Crown should have the right of audience in both Houses. I do not recommend it, but it is possible.
§ Mr. Fletcher
As a matter of fact, I did not realise that, and I am ashamed to confess my ignorance of what goes on in the constitutional arrangements in Northern Ireland. Even though it may work successfully there, I would not recommend the introduction of a change of that kind into our constitutional arrangements here.
This attempt to limit the influence of the Executive over Members of Parliament, which I think is fundamental, is one of the three cardinal principles laid down by the Herbert Committee. It is because of that, and because this tendency of the Executive to have more power, vis-à-vis the House of Commons, is an increasing tendency, that I hope we shall hear from the learned Attorney-General some observations with regard to the remarks made by my hon. Friend the Member for Dudley and others.
1926 May I try to explain the danger as I see it? I would not wish myself—and I am not speaking for all my hon. Friends —to suggest that members of the Bar who are also Members of this House and who receive Crown briefs should thereby be disqualified from membership. That is a question which has been raised, however, and, therefore, it is one which must be faced and dealt with. I want to explain how I visualise this question.
This danger of increasing influence by the Executive over Members of the House of Commons arises in this way. In a sense, every hon. Member on the Govern-side side of the House is eligible for promotion to some Ministerial office, and, in that sense, is presumably liable to influence by the Executive, which may or may not affect his independence. Fortunately, hon. Members on this side of the House are not under any risk, at the moment, of being offered Ministerial office, and, therefore, we can claim to view the question with an objectivity which obviously is denied the Government supporters.
§ Mr. Fletcher
Before coming to the lawyers, which I shall do in a moment, in connection with Ministerial offices I would point out that the Herbert Committee had a good deal to say about the position of Parliamentary Private Secretaries. In a sense, Parliamentary Private Secretaries are particularly susceptible, much more than ordinary Government supporters, to Executive influence, and, therefore, when we add to 70 officeholders an unlimited number of possible Parliamentary Private Secretaries—and, quite properly, they are not mentioned in the Bill—we get quite a caucus of people whose independence from the Executive is Inevitably—
§ Mr. Fletcher
Either undermined or affected.
I would ask the right hon. and learned Gentleman why nothing has been said about this, because the Herbert Committee considered this point. I imagine that they considered at one time whether the position of Parliamentary Private Secretaries was an appropriate subject to be dealt with by legislation and by inclusion in one of the Clauses of this Bill, because 1927 they decided against it. What they said was this:Your Committee are therefore of opinion that some steps should be taken, otherwise than by legislation, to reduce or at least limit the number of parliamentary private secretaries.This Report was issued 14 years ago—in 1941. Are the Government doing anything about that, because the Second Reading of this Bill is an appropriate time for a Government spokesman to make a statement? Could we please be told how many Parliamentary Private Secretaries have been appointed at the present moment, and what, if any, steps are being taken by the Government to reduce or at least to limit the number of such Parliamentary Private Secretaries?
In that context, I pass to the somewhat related question of Members of this House who, by reason of their being members of the Bar, are eligible for Crown briefs. The suggestion has been made by my hon. Friend the Member for Dudley and, I think, by others that the mere possibility of Members being offered or accepting Crown briefs may affect their independence, and is therefore incompatible with their membership of this House. I do not take that view, but I do share the view that, the question having been raised, it is essential in the public interest that it should be probed.
I do not want it to be thought that the mere prospect of hon. Members of both sides of this House being offered Crown briefs should affect their independence. After all, it might be said that, whereas ordinary Government supporters are eligible for Ministerial office, it is also true that those Government supporters who are members of the Bar are eligible for judicial office of one kind or another. It may be said that members of the Bar, on both sides of the House, are eligible for appointment as recorders. I do not think anybody has ever suggested that that possibility or that prospect has affected their independence as Members of this House. The question having been raised, I do hope that the Attorney-General will not any longer attempt to evade his responsibility for disclosing the full facts of the matter.
I was a little surprised—here again I must confess my ignorance—to learn that the distribution of Crown briefs was 1928 regarded as being under the patronage of the Attorney-General or the Law Officers of the Crown. After all, the traditional rule of etiquette in the legal profession within my knowledge has always been that the solicitor conducting the case does not consult any member of the Bar in regard to his choice of counsel. It is contrary to etiquette to do so. I have yet to learn that the Treasury Solicitor, the Procurator-General, or the Director of Public Prosecutions is any exception to that rule. I should have thought on the analogy of the conduct of any other litigation there may be a lot to be said for allowing the solicitors and chief legal advisers of Government Departments to exercise discretion about the choice of counsel to conduct the work.
If, contrary to what I think is the right principle, the nomination of counsel to conduct Crown briefs resides in the Attorney-General or the Law Officers of the Crown, then it seems to me, because of the Attorney-General's responsibility in the matter and his responsibility to this House, he has a duty to make the same sort of disclosure as the head of any other Government Department has to. I should have thought that the Attorney-General should give the fullest information on this subject today. That would go a good way to allay some of the misgivings felt by my hon. Friends.
There is a good precedent for it. I recollect quite distinctly in the days of the Labour Government, somewhere about 1946, when my right hon. and learned Friend the Member for St. Helens (Sir H. Shawcross) was Attorney-General, he was questioned—I forget from which side of the House—as to what amounts had been paid in fees to Sir David Maxwell Fyfe, as he then was, and various other members of the Bar for attending the Nuremberg trials. The amounts were published in HANsARD—there was no secrecy about it, and there should not be any secrecy about this matter. I repeat my view that, although in Committee we shall want to inquire into it, it does not seem to me necessary to depart from the rule which has existed on this subject for a great many years in this House.
With these observations, I conclude by saying that, in company with all my hon. Friends, I welcome this Bill and support its Second Reading.
§ 7.24 p.m.
§ Mr. Ede (South Shields)
I do not intend to detain the House for very long, but I feel a great sense of disappointment with regard to this Bill. I felt a sense of disappointment when my hon. and learned Friend the Member for Kettering (Mr. Mitchison) announced so early in the debate that he did not intend to divide the House against it. I was still further disappointed when my hon. Friend the Member for Dudley (Mr. Wigg), after making a very good start to his speech, indicated that he had come to the conclusion that he could not vote against it either.
It seems to me that this Bill completely fails to do the thing which most of us expected it to do; that is, to make it quite clear which of these little offices in respect of which hon. Members on both sides of the House have been caught out in recent years carry a disqualification. In the Third Schedule we are left with the words which are not dissimilar to those which have led to the confusion. Paragraph 1 of the Third Schedule says:A person holding an office or place (not being an office to which the next following paragraph applies) holds it under the Crown if and only if he is appointed thereto by Her Majesty, by any Minister of the Crown, or by any officer or servant of Her Majesty employed for the purposes of a government department.Simple as those words sound, we all know that the modern system of Government is so complicated that who isany officer or servant of Her Majestyin the connection mentioned is still a matter of some doubt. I cannot help thinking that it ought to be possible for the various Government Departments, like the Ministry of National Insurance and the Ministry of Labour, which have various tribunals all over the country, to have a list approved by the Law Officers of the Crown and submitted to the House as a Schedule to the Bill, saying quite definitely that the persons on those tribunals are holding offices which disqualify them.
As has been pointed out several times in the course of the debate, none of these offices is really an office of "profit" as that word is generally understood. They involve nearly everybody who accepts them in giving up a considerable amount of time, frequently in incurring considerable expense—which cannot be avoided— 1930 and quite frequently making far more enemies than friends, if they carry out their duties in a thoroughly judicial spirit. There is always the feeling, "If old So-and-so had not turned up, the tribunal would not have found against me."
I cannot help thinking that it should be possible to have a list drawn up of these offices. If fresh legislation setting up fresh tribunals of that kind is passed, a statement could be made in the Measure adding them to the list, and if new Government Departments are formed, or the titles of Ministers are altered, an appropriate amendment should be made to the list of offices given in the Fourth Schedule.
When the Education Act, 1944, altered the title of the Minister from that of "President of the Board of Education" to "Minister of Education" the appropriate Amendment of the 1937 Act was made. I had hoped that this Bill would be one which would prevent innocent people from falling into the booby traps that have presented such perils to hon. Members on both sides of the House, whom we all know had no desire to break the law.
§ Mr. Ede
The Government can do a great many things in Committee, and the Committee of the whole House, I should have thought, could deal with this point. We had the example of the hon. Member for the Hallam Division of Sheffield (Sir R. Jennings) who, out of a good heart, had given of his highly valuable professional services to a village branch of the British Legion and gone gaily on-1 think he fought five Elections successfully —in breach of the law all the time. Then he suddenly discovered the position because another accountant, who happens to hold the same office of profit, made inquiry, just before the last General Election, as to whether he was disqualified from sitting. I really think that we ought to be able to protect worthy citizens from incurring the difficulties and disabilities which so many hon. Members on both sides of the House have had to encounter.
I am not quite sure whether some small constitutional change is not made by the first part of the Fourth Schedule. The 1931 Schedule hangs upon Clause 2 (2, b), which says that there shall be not more than…twenty-seven persons being the holders of offices specified in Part I of the said Schedule.If we count up the names in the Part I of the Fourth Schedule—I know part of the reason for it—there are only 23 names. Therefore, not more than 27 of the 23 are, it would appear, to sit in the House.
This arises partly from the fact that "Secretary of State" is one office although it is held simultaneously by several people, each of them being capable, under the law, of acting for any other Secretary of State should the occasion arise.
§ Mr. Ede
My hon. Friend has anticipated me; I was just coming to "Minister of State." I know of no such doctrine applying to the office of Minister of State. Ministers of State are from time to time appointed for various Departments, but I would not imagine that, say, a Minister of State for Colonial Affairs would be eligible to act, without some special appointment, as Minister of State for Foreign Affairs or for any other Government Department. The doctrine of "Secretary of State" is a very old-established one, and I should like to know from the Attorney-General whether any such doctrine is now being applied to the title "Minister of State," because, generally speaking, Ministers of State are specifically assigned to various Government Departments. We ought to know whether what we have in the Bill is some indication that Ministers of State have a wider range than is at the moment generally considered to apply to their activities.
I am also rather dissatisfied with the provision about contracts. I am not now dealing with the question of lawyers. I compare Clause 6 and the practice at the moment with the very severe statutory obligations placed on members of local authorities with regard to contracts, as defined by Section 76 of the Local Government Act, 1933:If a member of a local authority has any pecuniary interest, direct or indirect, in any contract or proposed contract or other matter, 1932 and is present at a meeting of the local authority at which the contract or other matter is the subject of consideration, he shall at the meeting, as soon as practicable after the commencement thereof, disclose the fact, and shall not take part in the consideration or discussion of, or vote on any question with respect to, the contract or other matter.I recollect that in my constituency before the Second World War there was a long-standing arrangement—it went back to a time long before I had any connection with the place—by which members of the local authority, which had a system of tramways, were granted passes on the tramways. This issue was raised at a meeting of the town council, and a number of members voted for its continuance. That was reported to the Law Officers of the Crown before the Second World War. They looked at the division list and chose two members to prosecute. They did it in a way which did not seem to me to be very judicial. They chose the first name alphabetically among the aldermen and among the councillors. One can understand that, but it might have been very difficult for my right hon. Friend the Leader of the Opposition if he had been a member of the town council voting in that division. There was no question of merit. The two men were prosecuted, and convicted, and a small penalty was imposed by the local magistrates.
I cannot think that the arrangement proposed in the Bill, although it may reenact the existing law, is in conformity with modern feeling on the subject. I support the line which was adopted by the hon. Member for Buckinghamshire, South (Mr. R. Bell), who drew attention to the position in relation to joint stock companies and family businesses. I sincerely hope that the Government will have another look at Clause 6 to ascertain whether we can bring the law relating to Members of Parliament more into conformity with what is, I think, the feeling in the country and certainly the practice in local government.
I turn at last to the question of legal Members of Parliament. If my hon. and learned Friend the Member for Kettering will allow me to say so, I did not quite follow the argument that, if we do not give these lawyers briefs, we shall not get good Law Officers of the Crown. In many parts of the British Dominions the Attorney-General, although he attends meetings of the Legislature, is not a 1933 member of the Legislature. He gives his legal advice to the legislative assembly. Frankly, I should not like that to apply here. I believe that the strength of this House as a legislative, deliberative and administrative assembly very largely derives from the fact that Ministers of the Crown come here on an equality with the rest of us and are liable to questioning and to having their conduct criticised —and applauded on occasion—in debate, which ensures that we are more easily able to control Governments than are assemblies from which Ministers of the Crown are excluded.
Once again I think that we require to have regard to modern public opinion. People in public life have to forgo many things lest their actions should be misunderstood, although they are capable of explanation. I should have thought that the acceptance of Crown briefs by Members of this House, no matter on which side they sit, was one of those things which, in modern circumstances, required reconsideration. I share the view of those of my hon. Friends who have thought that that practice should be brought to an end.
This Bill is an effort to deal comprehensively with a problem which has confronted us for a considerable time. My hon. Friend the Member for Islington, East (Mr. E. Fletcher) mentioned the question of Parliamentary Private Secretaries. I understood that except in one or two Departments where the work is exceptionally heavy the practice that had arisen, as a result of recommendations of Sir Dennis Herbert's Committee, was that only one Parliamentary Private Secretary per Department was now allowed. It was thought that the old practice, which certainly occurred to a very large extent in 1941, of both the Minister and his Parliamentary Secretary each having a Parliamentary Private Secretary should not apply, and that except for one or two Departments where the work was particularly heavy, like the Treasury and the Board of Trade, not more than one Parliamentary Private Secretary should be now appointed.
I do not see how one can deal with that matter in the Bill, because, so far as I know, a Parliamentary Private Secretary, while he is of great convenience to the Minister and is of great convenience to 1934 hon. Members who are not Ministers should they wish to get in touch with his Minister, is a creature not known to the Constitution, and I think that it would be a very bad day if he were ever given a statutory position. Therefore, I think that a statement as to what is the existing practice would be reassuring to the House, although I hope that the matter will not be brought into this Measure at any stage.
For the reasons which I have given, I think that the Bill needs some enlargement and some clarification, and that it lags behind public opinion generally in this country. There have been two or three Committee suggestions which I should find it very difficult to support. I agree with my hon. Friend that the recommendation of the Committee which looked into the MacManaway case is a sound one with regard to the clergy.
My hon. Friend the Member for Dagenham (Mr. Parker) referred to the Master of Trinity College. I had the honour of sitting in the House with the Master of Clare College, and I should have thought that it would have been more difficult to spare the Master of Clare College than the Master of Trinity College. I had better not say anything about Trinity College. I will leave that matter alone. Quite clearly, however, there may be a man who is Master of Trinity College whom it would be desirable to have in the House. After all, he would not come now as the representative of the University. He would have to get an ordinary constituency to return him. If a constituency desired to do so, I cannot see why, merely because he was Master of Trinity College, he should be debarred. It may even be a pleasure for him to participate in the proceedings of this House, after having taken part in the proceedings of the administrative body of Trinity College.
I regret that my hon. and learned Friend the Member for Kettering so early decided that this was a Bill to which we on this side of the House should give our support. I trust that during the Committee stage he will see that the various matters which we have discussed today are adequately discussed then, and I trust that the Committee stage will be on the Floor of the House.
§ 7.45 p.m.
§ Mr. F. H. Hayman (Falmouth and Camborne)
I should like to support what has been said by my right hon. Friend the Member for South Shields (Mr. Ede) and by my hon. Friend the Member for Islington, East (Mr. E. Fletcher). They felt that there should be more information disclosed about members of the Bar in this House who get briefs from the Government. At the same time, I should like as a layman to pay my tribute to the legal Members of the House for the great services they render to us, particularly when we are considering Bills in Standing Committee. A layman would be hopelessly lost without our legal friends, and I am sure that they keep very careful watch on the Executive. That has been my experience for nearly six years, and I am glad to have this opportunity of saying so.
I first spoke in the House on this question of the disqualification of Members when the MacManaway case was before us in 1950. I drew attention then to the fact that a county council officer was debarred from being a Member of the House. I am glad now to find that in the Seventh Schedule Section 83 (13) of the Local Government (England and Wales) Act, 1888, is to be repealed.
Subsection (13) reads:Provided always, that no paid clerk or other paid official in the permanent employment of a county council who is required to devote his, whole time to such employment shall be eligible to serve in Parliament.I happened when I was elected to be a paid officer of a county council, but I was innocent enough to think that as I would not be drawing a salary from the county council I was no longer a paid officer. Some doubt was expressed as to whether it would be possible for me to continue as a Member of Parliament if I remained on the roll of the staff of the county council, without drawing any pay, merely to keep my superannuation benefit alive. I thought that that would be all right. The county council was prepared to accept it as all right, but I felt that, as there was some doubt, it would be better that I should resign. Therefore, when I came here I did not have to ask the House for a Bill to exempt me from some terrible penalty.
I am glad that now it will be possible for officers of county councils to stand for Parliament, because I feel that they 1936 have a contribution to make to the House, just as have many other right hon. and hon. Members who have served on county councils and who, out of their experience, can help us very much. But there is still one further anomaly which ought to be tackled. It is that after a local government officer has been in the House for twelve months he forfeits all his superannuation rights. That does not apply to a teacher or a civil servant. I hope that the time will come when it will not apply to local government officers.
§ 7.50 p.m.
§ Commander C. E. M. Donaldson (Roxburgh, Selkirk and Peebles)
After having listened with interest, as always, to the speech of the right hon. Member for South Leeds—
§ Commander Donaldson
I beg the pardon of both right hon. Gentlemen.
After listening to the right hon. Gentleman's speech and to the speech of the hon. Member for Islington, East (Mr. E. Fletcher), I should like to comment on two points in their references to Parliamentary Private Secretaries. It has been said that in the Navy a midshipman is the lowest form of animal life. I am not going to say that all my fellow Members who may be Parliamentary Private Secretaries accept that description as applying to their work in the House. I hope that my right hon. and learned Friend the Attorney-General will give some indication of the position of Parliamentary Private Secretaries at the conclusion of the debate.
§ The Attorney-Generalindicated dissent.
§ Commander Donaldson
My right hon. and learned Friend shakes his head, but I hope that he will somehow convey to Parliamentary Private Secretaries exactly what their present position is, and what it may be in the future.
It is my belief that those of us who are asked—and it is a personal honour—to serve Ministers, do so more from a sense of personal regard for the Minister than from any thought of reward or expectation of being called to another office. We serve the Minister because we are interested in the man and in the Department with which he deals. I hope that most of us do our job with honesty, sincerity and acceptance to our respective 1937 Ministers, but the Minister or the Parliamentary Private Secretary can terminate the happy arrangement by letter from the Minister, or at the request of the hon. Member. It would be to the interest of the public at large to be enabled to understand the functions of a Parliamentary Private Secretary, because some of us are embarrassed by the powers which the public think are vested in us but which we do not possess.
I should like to stress some of the remarks which the right hon. Member for South Shields made on the general aspects of the Bill. There has been not only confusion among hon. Members on both sides of the House who are not trained and learned in the law about disqualification and the Acts that have been passed to make indemnity sure for those who fall into difficulty by misadventure, but there is confusion among the public outside. Many of us have been asked questions about the position. I do not think that the last four or five occasions on which we have discussed these matters have conduced to the well-being and good name of Parliament as a whole. It is time that a clear explanation was given in understandable terms, particularly to the layman in the House, so that he can explain to laymen outside what has been going on and what will be the position when the Bill becomes law.
§ 7.54 p.m.
§ Mr. John Taylor (West Lothian)
I feel inclined to try to persuade the hon. and gallant Member for Roxburgh, Selkirk and Peebles (Commander Donaldson) not to press that there should be some public definition of the duties, responsibilities and horrors of the office of Parliamentary Private Secretary. It would be much against the interests of Parliamentary Private Secretaries to have disclosed publicly how extensive are their responsibilities and how little they are regarded. It would be just as wise to have a definition of the office of Whips, and heaven forbid that that definition should be made public.
It has been interesting in this debate, on a rather introspective and domestic Bill, to notice the timidity, almost, with which members of the legal profession have expressed perhaps some guilt of conscience about what goes on in the awarding of briefs. I think that they are alarming themselves unnecessarily, though 1938 it is very good that they are conscious that there may be something a little questionable about the practice. Personally, I do not think that there is. It works all right. There is no evidence that there has been any misuse either of patronage or of gains obtained in that way. So long as the practice patently works all right, why not leave well alone? The Bill makes no mention of it.
The Bill is based on the Report of the Herbert Committee. We are concerned with the qualifications and disqualifications of Members of the House. The Herbert Report makes a very clear distinction, as the Bill by inference does also, between an office of profit under the Crown and a position of profit under the Crown. The Report holds that it is permissible for a holder of a position of profit or of possible profit to become and remain a Member but that it is not permissible for a holder of an office of profit or even of possible profit to become a Member.
This is a very fortunate distinction for us all, because, with the payment of Members since 1911, we are all holders of positions of profit under the Crown although, of course, at the present-day rates they are positions of penury for hon. Members who feel it their duty to devote most of their time to their Parliamentary work. In principle, membership of the House could be held to be much more of a position of profit than many of the cases that have been mentioned in the debate. The same distinction applies and clears those hon. Members on both sides of the House who frequently carry out broadcasting or television engagements for the B.B.C. By the same token, it clears those hon. Members of the legal profession who accept Government briefs.
I was glad to hear my hon. Friend the Member for Falmouth and Camborne (Mr. Hayman) pay his tribute to members of the legal profession who assist us so well as colleagues and fellow Members of the House. After all, there is a considerable hurdle for those members of the profession to overcome before they succeed in being elected to the House. Most political party committees in the constituencies have an inherent, almost congenital, suspicion of members of the legal profession. Therefore, those hon. Members who have overcome that serious hurdle must be good.
1939 We know also that the business of awarding Government briefs to barristers who are Members of Parliament has an opposite side. It operates in reverse. I have known hon. Members who are members of the legal profession to whom membership of the House has been a very costly business. They have lost briefs by their attendance at the House and their attention and devotion to Parliamentary duty, by their feeling that they want to be here, helping their colleagues in Committee and in the work of drafting Amendments when they could very well have been employed at considerable personal reward if they had devoted more of their time to their profession.
That ought to be said because we often make jokes about lawyers who are Members of this House. It is true that sometimes they become a little tedious in debate, arguing for long hours on what seem to lay Members outside the law to be trivialities consideration of which is dragged out beyond all reason. On the whole, however, let us not be too critical of our colleagues in that profession, and let them not be too touchy and have too hair-trigger a reaction against others. Also, I would advise them not to probe too deeply into possible changes in a Bill which no one except my right hon. Friend the Member for South Shields (Mr. Ede) has suggested should be made.
If we take further the question of who holds positions of profit under the Crown, we find that every citizen in this country becomes ineligible for membership, because in a Welfare State we are all holders of positions of profit under the Crown. We all enjoy food subsidies which are paid for by the State in general taxation. Every time we seek medical advice and treatment, every time we have to draw sickness benefit, every farmer, every doctor, all employees of the British Railways, B.E.A.C., B.O.A.C., the Central Electricity Authority, the Gas Boards—all are included. Indeed, the disqualification would extend even to the pre-natal stage, because the human embryo of the British citizen is strengthened by State-provided cod liver oil and orange juice. So the Bill is not concerned, and should not be concerned, with positions of profit. It deals purely with offices of profit, and it sets itself the formidable task of defining and listing such offices.
1940 Those of us who have served recently on Select Committees dealing with cases which have had to be examined had hoped that the Bill would free us from the recurring necessity to examine borderline cases based on trivialities of the kind we have experienced lately, in which hon. Members suddenly discover to their horror that they are not eligible to be Members in law and in fact and so have to be declared to be ineligible. After that we have to go through the clumsy, and not very logical, process of passing special legislation which says that the Member in question is not a Member, has no right to be a Member, but we declare that he is a Member and we indemnify him from the penalties laid down by the law.
We had hoped that the Bill would succeed in freeing us from that, as I have no doubt did the Attorney-General and the Lord Advocate. Well, it does not, and I join with my right hon. Friend the Member for South Shields and other hon. Members in expressing the hope that it may be possible to go further in removing the necessity for these recurring examinations. I appreciate, however, that it is difficult to lay down legally and in black and white a list of appointments of this borderline character.
Let us, as a House, make it clear that the Bill does not remove from Parliamentary candidates their own responsibility to examine their appointments and to discover their eligibility or otherwise for membership. Let us make it clear that responsibility lies with no one but the candidate. It does not lie with the returning officer. If the individual candidate is in any doubt about any appointment he holds, he would be well advised to resign the appointment about which he is in doubt before taking the Oath. Let us make it clear that the position is that any resident British citizen can stand for Parliament, except the following categories—a convicted felon, an undischarged bankrupt, a certified lunatic or a Member of another place. Anyone outside those categories can stand for Parliament, but not all of them can sit in Parliament. The need for making that clear is obvious, and this Bill goes some way towards it.
The small number of similar Acts in the last 200 years proves either our reluctance to deal with this kind of legislation or that the previous Acts have 1941 worked reasonably well. In spite of what was said by my right hon. Friend the Member for South Shields, this Bill represents a serious attempt, after long examination by a Committee set up by the Labour Government, and after careful consideration by the present Administration, not only to define what is an office of profit so far as that can humanly be done, but also to ensure that there is clarity about what extra qualifications it is now logical to put into a legal enactment; and also to modernise and consolidate most sensibly and suitably the practices and rules governing those who should be and who should not be hon. Members of this House.
The Bill does that as well as we could expect it to do, but there should be some improvement in that one part which defines borderline cases of the kind which cause us the most trouble. Only on rare occasions have we been concerned with any kind of case other than those stupid and illogical borderline cases. The Bill does not quite succeed in that attempt, but it goes a long way towards it, and because it does so and is a valiant and an all-party attempt, I agree that we should give it a Second Reading and be careful of our examination of it in Committee.
§ 8.8 p.m.
§ Mr. E. G. Willis (Edinburgh, East)
Like most hon. Members who have spoken today, I welcome the Bill as far as it goes. As several of my hon. Friends have pointed out, however, there are serious omissions which can be discussed during the Committee stage.
I was interested in the remarks passed by my hon. Friend the Member for West Lothian (Mr. J. Taylor) about the disabilities under which lawyers sometimes suffer. It is precisely because of those difficulties that on the Scottish side of the House we have few lawyers here. It does not pay them to come down to London because they have virtually to give up their practices in Edinburgh. So the situation from the Scottish point of view is that we usually have two Law Officers and maybe one other lawyer. It is also interesting that the two Law Officers of the Crown who represent Scotland usually come here as a result of by-elections because they have to be put into the House of Commons. This means that we frequently have Government officers with little experience of the procedure and 1942 working of Parliament. I hope that the Lord Advocate and the Solicitor-General will appreciate that I am not making this point in any party way, because it applies to both parties.
What concerns me, arising out of what my hon. Friend the Member for Leith (Mr. Hoy) said, is the position of legal officers in Scotland. He mentioned the Crown Office and the fact that it is one of the few offices where there is an almost complete change with every change of Government and where there is a complete political change with the change of political power in the House of Commons.
It must give one serious cause to ask whether this is really in the best interests of Scotland, but what is worthy of rather more consideration is the fact that the political and the judicial elements have become very closely inter-twined in Scotland. We have the position where the posts of Solicitor-General and Lord Advocate appear to be automatic steps to promotion to the Bench.
I say this without any personal feeling, because I have known several who have travelled this road and have a great respect for their judicial and political qualities. Nevertheless, I am compelled to say it because it gives rise to serious concern in Scotland. My hon. Friend the Member for Stirling and Falkirk Burghs (Mr. Malcolm MacPherson) has tried to raise this matter at Question Time with a view to seeing what can be done about it. I know that certain hon. Members question the advisability of the Solicitor-General and the Lord Advocate being in the House because of this close association of politics with the judiciary.
The first Schedule lists the judicial offices which are to be disqualified, and we all understand why that is so. The situation which we have in Scotland, where very often the act of going to the Bench is preceded by a period of very intense political activity, is most disquieting. I should hardly have thought that was a good introduction to the Bench. This situation arises in Scotland because of the smallness in number of the Bar and the circumstances in Scotland as a whole. That I should not have thought was a good thing. It creates a bad impression in the minds of a great many people who look upon these Parliamentary legal offices as a short and sure cut to the Bench.
1943 That seems to me to be a bad thing from the point of view of Parliament, because it means that Parliament is merely a stepping stone to advancement at the Bar. I am sure that, once again, the Lord Advocate will appreciate that this feeling exists to a great extent in Edinburgh. It cannot be good for Parliament that thousands should look upon these positions as a stepping stone to somewhere else. It is bad from the point of view of Parliament, and also, I should have thought, from the judicial point of view. For the first few years after a Lord Advocate or a Solicitor-General is appointed to the Bench he is remembered, not because of his judicial qualities, but for his political associations. It is not good for a judge to be thought of in political terms.
If the Lord Advocate were to talk to people in Edinburgh and elsewhere on the point, he would find that a great many discuss judges on the bench in terms of their political affiliation. It all arises out of the situation which I have tried to put to the House and which everyone in the House knows exists.
§ Mr. Emrys Hughes (South Ayrshire)
Would it not solve the problem if the Scottish legal advisers to the Crown in Parliament were made, as they are in county councils, permanent officials and if they did not sit as Members of this House at all?
§ Mr. Willis
I was coming to that point. The difficulty which we in Scotland are up against is that at times we have to have legal advice, but I think that it ought to be seriously considered in the peculiar circumstances of Scotland whether or not that advice should not be available from the Box instead of from the Front Bench. I am raising this matter because it is dealt with in paragraph 2 of the Fourth Schedule. I believe that would be a good thing, both from a political and from a Parliamentary point of view, and also from a judicial point of view.
I have a very great admiration for the judicial system in Scotland. In many ways, I think that it is far in advance of the English system, at least in quite a large number of matters. A great many of my friends are in the legal profession, 1944 and many of them are seriously concerned about this matter.
I ask the Government seriously to consider the position of the legal officers in Scotland. Quite a number of them do not want to come here. I have known Lord Advocates on both sides of the House who have not had the slightest desire to come to this House. I should have thought that, from their own personal point of view, it would be much more satisfactory if they could be divorced from the hurly-burly of political life, because, at times, it can be pretty bitter in Scotland.
§ Mr. Willis
I mean that it is not good from the point of view of our judiciary and from the point of view of those appearing in our courts. If a person goes before a certain judge and has in mind the political affiliations of that judge, no matter what they are, he is pretty certain to come out of court feeling that he has not been dealt with in accordance with justice, but in accordance with the political prejudices of the judge. I am not saying that that happens; it probably does not, but it is an impression that is created in the mind of the person appearing before the judge.
That is a bad thing, and, therefore, in all sincerity, I ask the Government seriously to consider the position of the legal officers in Scotland. It would be a good thing if something could be done about the matter. I have never been a member of a Government, and I do not know what goes on behind the scenes, but I have a pretty shrewd idea all the same of the work that the Lord Advocate and the Solicitor-General have to do. I think it is worth considering whether that work could not be taken out of the political field. If that could be done, it would be to the benefit of Scottish lawyers and to the benefit of Scottish political and judicial life.
§ 8.19 p.m.
§ Mr. Geoffrey de Freitas (Lincoln)
Lawyers have been discussed at great length in this debate, and at one stage there was no one in the House who had a good word to say for them. Then we had the interventions of my hon. Friend 1945 the Member for Falmouth and Cam-borne (Mr. Hayman) and of my hon. Friend the Member for West Lothian (Mr. J. Taylor), in which they were kind enough to say that ordinary back bench lawyers, not Ministers, performed a useful function, especially in Standing Committees.
I think it is correct to say that lawyers are seldom popular in this House, but those who have gone far in pointing out the defects of lawyers in the House should bear in mind that there are probably fewer of them in this Parliament than in any other Parliament in Western Europe.
§ Mr. de Freitas
What I want to see in the House is not more lawyers but that we should so conduct our business as to have better lawyers—in fact, the best lawyers, the best barristers—coming here while still exercising their profession and as Members of Parliament. My hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes) and my hon. Friend the Member for Dudley (Mr. Wigg) were particularly severe in establishing a prima facie case against Members of Parliament receiving Crown briefs. My hon. and learned Friend the Member for Kettering (Mr. Mitchison) said that the giving of Crown briefs to Members of the House was a form of secret patronage, and he wanted that to be recognised in order that we might discuss the point.
So far in the debate, no one has put it as strongly as Mr. Maxton put it when he was asking a question during evidence before the Herbert Committee of 1941. I quote this, because it seems the most extreme point of view from which we should start discussing the matter. It is Question 389, and Mr. Maxton said:If a Member of a Government in a ticklish Parliamentary situation can go to a barrister and say: 'What are you thinking about this matter that we are voting on tomorrow night?' 'I am rather against the Government view.' 'Oh, well, I think, old chap, you should not be too strong about that. By the way, there is a brief going for £500'.Mr. Maxton added:That, I would say, was very, very vicious.The Chairman agreed with him, but said it was entirely outside the terms of reference. It may well have been so.
1946 We are not asked to take any decision tonight or to make up our minds on the point. I ask my hon. Friends and others to reflect on the pros and cons of that question. This puts the extreme case. Lawyers are often picked upon and hard words said about them, but it should be remembered that "if there were no bad people there would be no good lawyers" —and that can be read in any way hon. Members like. What we want is better lawyers not more lawyers, in spite of what was said by my hon. Friend the Member for Edinburgh, East (Mr. Willis). There may be some difficulties about Scotland; I do not know enough about them to comment.
My right hon. Friend the Member for South Shields emphasised the desirability of having the Law Officers in the House. In that event, we must attract to the House the leading barristers of the day, or gradually the standard of our Law Officers will fall, which would be had for the House and for the country. I therefore say, as my hon. and learned Friend the Member for Kettering said, that in giving serious consideration to the matter we must weigh that fact against the measure of public harm which is possible in the acceptance of Crown briefs. We have to weigh those two things one against the other.
May I say, in passing, that I have never heard any criticism of the present Law Officers in respect of any political discrimination in the patronage which is exercised in giving briefs?
My hon. Friend the Member for West Lothian referred to the fact that as a House we have seldom considered the problem of the disqualification of Members and have had very few Bills about it. The strange fact is that although we have often changed the law of qualifications for voters, we have very seldom changed the law of qualifications for Members of the House, which are, in fact, much as they were before the Reform Bill.
I do not think I can deal with a subject like this without mentioning a former hon. and learned Member who is no longer with us, Mr. Bing, who would certainly have intervened in the debate had he been here. He pointed out, the last time I heard him speak on this subject, that what was curious was our attitude towards this problem and our reluctance 1947 to deal with the disqualification of Members. He said that in 1746 Parliament disqualified both as electors and as candidates anyone in Scotland who twice in the same year had been present at Divine Service in an Episcopal churchwhereof the pastor shall not pray in express words for His Majesty by name.This disqualified a person both as a voter and as a candidate. He said that although in 1948, 200 years later, we abolished this disqualification for the voter as far as he knew—and certainly as far as I know—it was still the law for the candidate. Therefore it behoves all Scottish Members to be extremely careful in their choice of Church.
We can make certain comments on the Clauses tonight, although many of them are bound to arise again and to be amplified in Committee. The first point which strikes me about Clause 1 is the use of the phrase "a part-time civil servant." We shall have to find out more about that. What is a part-time civil servant?
In fact, three points arise on this Clause and the second is this: was consideration given to the question of a man who is a member of a legislature from any country or territory inside the Commonwealth? The Home Secretary referred to the fact that originally the judges were disqualified, not on the ground on which we should disqualify them today, but because, being judges, they would be involved in continuous and prolonged absence from the House. Surely it is for consideration, if anyone is disqualified because he is in a Parliament outside the Commonwealth, whether we ought not to disqualify a man who is a member of a legislature inside the Commonwealth. Can he do the two jobs?
The most important point in Clause 1 deals with the borderline cases and the fact that there is not a definition of "office or place." We have been unable to improve upon those very difficult words from the Act of Anne. My right hon. Friend the Member for South Shields expressed disappointment that we had not been able to do better and that we had to rely on the Third Schedule, although of course that helps to some extent. I will go further and ask for consideration of my right hon. Friend's suggestion that definite lists should be issued by Departments referring to particular offices.
1948 Two hon. Members referred to Clause 3, which deals with the Reserve and Auxiliary Forces and disqualification of members of those forces. I do not understand the limitation to "three months or less." What is the significance of that period? A reservist can be called up for a year or more. Is he to be disqualified? Is there some particular significance in the period of three months?
When considering Clause 5, two hon. Members asked about the Manor of Northstead and wanted to know where it was. The Manor of Northstead is in Scarborough, I have always thought that if I were spared electorally to reach a ripe old age, I would retire there from this House, because it includes part of the public gardens of Scarborough and I have always wanted to have some connection with that as the Steward of Northstead.
Clause 6 is important, and my hon. and learned Friend the Member for Kettering dealt with it at some length. It deals with contracts and, as the Bill is drafted, is probably right to limit it to certain historical types of contracts. We must, however, discuss other types of contracts —contracts for services such as are given by civil engineers and others. We know that it is not a question of logic, because in this matter our law is completely illogical. The Bill does not pretend to do more than, with modifications, set out the present law. However, the conditions of contracts should be discussed. There is no attempt to remove the obscurities and anomalies and, for that reason, my hon. Friend the Member for Dudley, my hon. Friend the Member for Dagenham (Mr. Parker) and my hon. Friend the Member for Islington, East (Mr. E. Fletcher) and the hon. Member for Belfast, North (Mr. Hyde) will all seek to make amendments dealing with the disqualification of clergy. The Bill does not attempt to dispose of those anomalies.
We have the well-known difficulty which caused so much trouble two Parliaments ago in respect of a clergyman of the Church of Ireland. The history of this Clause, which merely re-enacts parts of the House of Commons (Disqualification) Acts, 1782, is that at that time an attempt was made to prevent Members of Parliament setting up as contractors and making money out of the American revolutionary war. Clause 6 (4) refers to the amount of £100, but we should have some 1949 limit of the period—say a year—over which that money could be received, or small amounts may aggregate over three or four years to just over £100 and we shall suddenly have a Member disqualified. We shall have to deal with that further on the Committee stage.
Clause 8 is a new idea, that of an excusal procedure. It is very good on balance, but, as my hon. Friend the Member for Dudley reminded us, it should be borne in mind that many people believe that the House of Commons (Disqualifications) Act, 1801—to disqualify clergy—was brought in by the Prime Minister, Addington, for the particular purpose of getting rid of Horne Tooke. Although there is precedent for Committees of Privilege not taking non-party lines, we must not forget the enormous power given in this Clause to a majority of the House of Commons, either if an Opposition Member or a majority Member should be involved.
Section 2 refers to:…allegeddisqualification under this Act. Am I right in thinking that that allows the House to excuse a Member, pending a definite decision by the Judicial Committee where there is considerable doubt? In introducing the Bill this afternoon, the Home Secretary referred to "inadvertent disqualification" and I am sure that what is intended is that the excusal procedure should operate when there is an inadvertent disqualification. But that should be made clear.
Clause 12 refers to Northern Ireland—and I am sorry that the hon. Member for Belfast, North has gone. Is the position there that if the paid office is one to which the Northern Ireland Government appoint, then although the holder is disqualified from sitting at Stormont, he can sit here? is the same true of contractors referred to in Clause 6? We have enough to do in this House and although I do not complain now, is it really necessary, if the Northern Ireland Parliament has the powers, that we should be concerned with points like Clause 12 (3)?
The Home Secretary told us that the Government would introduce Amendments to the effect that the Bill should become law at the time of the Royal Assent. My hon. and learned Friend the Member for Kettering meant to make the 1950 point, which I now make, that we accept that and entirely agree with the reasons which the Home Secretary gave, it being understood that the Act will not disqualify existing Members.
The hon. Member for Leith (Mr. Hoy)—and this is mentioned in the Second Schedule—asked why the directors of trading estates and so on appointed by the Board of Trade should be disqualified from membership. We have to consider that, and also such facts as the disqualification of a member of a county agricultural executive committee. We must consider the general principle that we should not make it too difficult for people to come to this House—we should not make public service of that kind too unattractive. If it is thought undesirable that any Member of Parliament should have these jobs which might come into conflict with his duties to his constituency, there could be some territorial disqualification, as in Part I of the Fifth Schedule, where we find high sheriffs, recorders, chairmen and deputy-chairmen of quarter sessions courts disqualified for particular constituencies. I note, also, that to be Commissioner of the Public Works Loan Board—a job recently held by my hon. Friend the Member for Islington, East —has been declared a disqualification.
The hon. and gallant Member for Berwick and East Lothian (Major Anstruther-Gray) agreed it was undesirable for lords-lieutenant to be Members for a constituency within the county of which they were lords-lieutenant. I agree with that, and in the Fifth Schedule it is dealt with, but why are the lords-lieutenant in Northern Ireland not in the same position? If, as the hon. and gallant Member thought, it is undesirable in Great Britain, why is it not equally undesirable in Northern Ireland?
I cannot help but notice the list of offices which involve no qualification. The Master of Trinity College, Cambridge, has been mentioned—and I welcome the fact that the Historiographer Royal for Scotland can join us at any time. I am only sorry that the Hydrographer, whom I once have had the pleasure of meeting, is barred by Clause 1 because he is a serving naval officer. [An HON. MEMBER: "And the Astronomer Royal for Scotland."] The case of the Astronomer Royal is easy to understand. I know the 1951 answer to that, but it is not for me to meet points raised by hon. Members. However, I am a little worried about the Lord Warden of the Cinque Ports. The right hon. Gentleman the Member for Woodford (Sir W. Churchill) is not at present disqualified because it is an "old" office. What worries me is that he is entitled to flotsam and jetsam, and because of that we have to declare in the Bill that the office is not subject to disqualification, although some of the flotsam and jetsam may be capable of having a money value as defined in the Third Schedule.
There are many absurdities in our law today. This Bill does a great deal to make it better—especially the Seventh Schedule, which I welcome because it repeals so many of the common informer procedure in former Acts. I had something to do with the Common Informers Act of 1951, and this Schedule nearly completes the good work by abolishing common informers in relation to people sitting in this House while disqualified. I say that the Schedule nearly completes the good work. For I greatly regret that the Act of 1801 still leaves something of the common informer procedure.
In opening the debate, the Home Secretary said that as far as he knew there was no general demand for extension of disqualification. That point was also made by my hon. Friend the Member for Dagenham and others. That is an important point for us to remember. In a way, it is unfortunate that this Measure is entitled House of Commons Disqualification Bill. We are not trying so much to disqualify people from becoming Members of Parliament as trying to extend the qualification. There are enough economic and other disadvantages at the moment, and we do not want to reduce the House to a place to which only the rich or the retired can come.
All this discussion in the last 10 years, certainly since I have been here, has arisen because some of our colleagues have been disqualified on technical grounds. I accept this Bill and its general purpose, first to clarify the present law and secondly to remove the small technical difficulties and disqualifications. I think the spirit in which we should end this debate and in which we should go forward to the Committee 1952 stage, which clearly must be in the House itself, is that we aim to make this House an even better and truly representative House than it is. That is our aim. This is really a House of Commons Qualification Bill.
§ 8.41 p.m.
§ The Attorney-General (Sir Reginald Manningham-Buller)
Apart from the contribution made by the hon. Member for Dudley (Mr. Wigg), to which I will refer later, this has been a very good humoured, interesting and serious debate. Many points have been raised in relation to this Measure. Some of them, as I think all hon. Members will agree, are really Committee points. We are grateful to hon. Members for making them, and I can assure hon. Members on both sides of the House that these Committee points will be most carefully considered between now and the Committee stage.
This is not a party Measure in any sense at all. It is a Measure to which my predecessors devoted a great deal of labour, and I know how much hard work they must have put into it because it is not by any means easy to draft and prepare a Bill of this character. It is much more easy to criticise it when it is seen on paper. I do not think there is any limit to the number of possible suggestions that could be put forward, and there are a good many arguments against most of them.
I hope that this Bill will reach the Statute Book without undue delay because it is my firm belief that even if it does not remove all the anomalies it will at least remove a great many, and it will render the position of Members of this House much clearer and much more easily discernible in relation to any offices or contracts that they may hold.
I think it is true to say that this Bill has been generally welcomed on both sides of the House. I was rather astonished by the two main critics. One does not usually find them working in such close collaboration. I refer to the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes) and the right hon. Member for South Shields (Mr. Ede). I think that I can allay one of the fears of the right hon. Gentleman. If I heard him correctly, he made an impassioned appeal that the Master of Trinity should not be disqualified but should be allowed to be a candidate for election to this 1953 House. If only he will look at the Bill once again he will find that the Master of Trinity comes in the Schedule which is headed "Offices involving no disqualification."
§ Mr. de Freitas
The Master of Trinity is a Peer anyway, so the question will not arise for a few years.
§ The Attorney-General
The hon. Member for Dagenham may have had some particular reason for expressing that hope, but I do not think we need pursue that.
§ Mr. Parker
I did not say that the law should be altered. I said that it was unlikely that the college would let that gentleman hold the job of Master if he were also a Member of this House.
§ The Attorney-General
There is no reason for us to reinforce the wishes of the college by statutory action.
There have been some comments on the delay that has taken place in introducing the Bill. I should like to remind the House that the Herbert Committee reported in 1941. It was not until 1949 that, after a number of cases of disqualification had arisen, the right hon. and learned Member for St. Helens (Sir H. Shawcross) said that he would give serious consideration to the preparation of a Bill, and it has been a long process trying to cover all the various features of this complicated subject. I do not believe that anyone studying this Measure can come to any conclusion other than that it clarifies the position a great deal. I would not assert for one moment that it completely solves the problem. I do not think it is possible to secure a completely clear-cut solution.
May I just give one instance, which concerns the control of companies? Not much has been said about that in the course of the debate today. Under the existing law, the Member who has a contract with the Crown to send money abroad or to provide wares or merchan- 1954 dise is disqualified. The Bill extends that provision to cover the one-man company so that where a Member really has control of a private company which enters into contracts of that sort, that Member will be disqualified. Difficult questions may arise for determination as to whether a particular Member has control of a particular company. I give that only as an illustration.
The right hon. Member for South Shields suggested—the suggestion was endorsed by the hon. Member for Lincoln (Mr. de Freitas)—that Departments should prepare a list of offices which involved disqualification. I do not think one can make a complete list of what would constitute offices or places of profit. After all, there must be a statutory basis in the background. We cannot have Departments simply saying that they think the holding of a certain office is incompatible with Membership of the House.
What we have tried to do in the Bill is to clarify the position as much as possible. Clause 1 sets out the various kinds of offices which are clearly incompatible with membership. The First Schedule gives the list of judicial offices disqualifying for membership. The Second Schedule deals with miscellaneous offices disqualifying for membership—and my hon. and gallant Friend the Member for Berwick and East Lothian (Major Anstruther-Gray) had some difficulty in finding it. He got tangled up with Northern Ireland.
§ The Attorney-General
I was not asserting that my hon. and gallant Friend did not ultimately achieve the correct conclusion, although he followed a rather devious route via the Isle of Man to get to it.
Over and above any list that one makes, there will be other offices or places of profit. What we have sought to do is to determine more clearly in the Third Schedule what renders an office an office of profit. That is an important Schedule, and on page 14 of the Bill it deals with "Paid offices or places." It is certainly a Schedule which will deserve, and ought to receive, close examination in Committee. I believe that if we get that part of the Bill right, it will do a great deal to remove the uncertainty that has hitherto 1955 existed as to whether an office is one of profit.
I do not agree with the hon. Member for Lincoln that the main difficulty is to determine whether a particular post is an office or not. Judging by the past cases, the real difficulty arises because people who have drawn no money think that an office cannot be an office of profit although, in fact, it can be an office of profit if it is capable of being remunerated. It is not a question of whether it is an office, but whether it is an office of profit.
§ The Attorney-General
It is that part of the Third Schedule which is so vital in that respect. It represents a great improvement on the present position but I do not for one moment say that it is not capable of further improvement. I hope that when we reach the Committee stage, we shall all do our best to try to make it as clear and as precise as possible.
The hon. and learned Member for Kettering (Mr. Mitchison) quite correctly pointed out at the beginning of his speech that the difficulty here arose, not in relation to obvious cases of offices of profit, but in relation to those minor offices, very often local in character, which Members of this House undertook, not out of a desire to gain any reward or income for themselves, but out of a sense of public service. I entirely agree.
Work for rent tribunals, for panels of assessors, for the local British Legion, such as my hon. Friend the Member for Hallam (Sir R. Jennings) engaged in for a fee of one guinea—these are the difficult cases. They are offices of profit under the existing law, and I think we are in no doubt about that, but, with this list in the Bill and with the improvement made by the Third Schedule, I think we shall do a great deal to avoid that kind of situation arising again.
I now turn to the next part of the Bill, because it can be broadly divided into two parts, one dealing with offices of profit and the other with contracts. The part dealing with contracts raises a very big question. It seems to me that the decision which we have to make is whether or not to re-enact the present law with the extension to the one-man company in relation to contracts, or whether we should embark on new fields and 1956 declare that there are new grounds for regarding persons as disqualified for election to this House. That is the big issue and the big decision which we have to make.
As my right hon. and gallant Friend, in moving the Second Reading of the Bill, quite rightly said, before we make any extension of the existing grounds for disqualification in relation to contracts, we really ought to have a further investigation by another Committee. That would be bound to mean considerable delay. The Herbert Committee reported in 1941, and it is now 1955. A Committee would take a considerable time to go into that question, and how long it would take to legislate I do not know, but surely there is also this governing consideration.
We ought not—should we?—to increase the grounds for disqualification for election to membership of this House unless we have real grounds for believing that freedom to enter into that sort of arrangement has led to abuse. I do not believe that anyone has suggested in the course of this debate that, for instance, the freedom of a Member of Parliament to enter into a contract to put up a building for a Government Department and matters of that sort, which are not caught by the existing law, has led to any abuse or to anything which this House thinks ought to be stopped.
When we reach the Committee stage, I suggest that, while we may perhaps ventilate all kinds of other extensions that might be made to the contractual side of this Bill, we should not let that stop us from realising the importance of dealing with the subject which is the principal content of this Bill and getting it on to the Statute Book, even if later we decide to go further.
§ Mr. Mitchison
May I ask the right hon. and learned Gentleman to consider one matter? There has been inserted in the contract Clause of this Bill a provision to except small sales. Is no similar provision possible in the case of small offices? I put the question to the right hon. and learned Gentleman now, but do not ask for an immediate answer.
§ The Attorney-General
I knew that the hon. and learned Member had raised that question in the course of his speech arid I had meant to deal with it. I am grateful to him for raising it now. We certainly 1957 considered it, but my first reaction, frankly, is that it would be very difficult to define the line between offices of profit which were permissible and offices which were not. I think we might get into great difficulty in determining on which side of the line cases fell. That is part of the difficulty now. We have to link that with our proposals for excusal. I am expressing my immediate reaction. I am not at all sure that we should deal with the matter by a line dividing offices of profit into two different categories, major and minor. With this excusal procedure probably less difficulty would be created than by making a new borderline area.
I now come to the question, which has been ventilated at some length—I make no complaint at all about that—with regard to Crown briefs. I say, first, that of course we all know lawyers are fair game for criticism. We do not object to that, but I was surprised by the personal attack which the hon. Member for Dudley (Mr. Wigg) thought fit to make upon me. I must say that I would much rather he attacked than complimented me, but he accused me of giving Answers which were not honest to the Questions which he put to me, and I hope that the House will permit me to make a reply to that.
The hon. Member asked me three Questions on the same day. One related to:the number of hon. Members who … have judicial offices for which they receive payment; the annual amount of such payment; the dates on which the Members concerned were appointed; and the total sums they have received up-to-date.I gave the hon. Member all that information, although of course it is all published in the Law List, except the answer to the last query—the total sums they had received. I have no responsibility for the appointment of recorders. As the Answer which the hon. Member received shows, they have been appointed over the years by both Governments, and I am absolutely certain that no political considerations are taken into account in making those appointments. It is purely a question of fitness for the job.
The hon. Member seemed to think that recorderships had some curious connection with Crown briefs; of course they have not. He asked two Questions about briefs. He asked if I would state 1958the number of hon. Members who have received legal fees in respect of briefs allocated …by me or my predecessor since 1945 and if I would statethe total amount paid to hon. Members since 1945, to date, in respect of legal fees…"—[OFFICIAL REPORT, 20th July, 1955; Vol. 543, c. 56–58.]and so on.
I do not pay any fees. I do not even know what fees counsel get in cases in which I nominate them. Fees are paid by the Departments. I quite agree that if anything happened such as Mr. Maxton suggested it would be grossly improper, but I do not believe it ever could happen or would happen. When I told the hon. Member for Dudley that information as to the fees paid to these counsel was not readily available, that of course was the truth, because it would have meant inquiries from all Government Departments going back to 1945. Nor were the names of those nominated by my predecessors readily available.
Then the hon. Member thought fit to ask me if I would state the number of briefs allocated to me by my predecessors since 1945 and the amount of the fees I had received in respect of those briefs. The hon. Member is not yet an Inspector of Taxes. I do not think he has any right whatsoever to demand information from me by a Question in that form as to my personal income, nor to accuse me of deliberately evading when I say I will not answer questions of that sort. I do not think it really is desirable—I say this quite frankly—for any Attorney-General to publish a list of Members of Parliament who receive nominations. That might lead to most invidious comparisons.
I should like to say a little generally about the question of nominations, because so much has been said about it today. It is an onerous task for any Attorney-General. The principle, and the only principle, which can be applied is to select the right person for the right case. One wants to make the fairest possible distribution of the work. I am speaking now not just of briefs going to Members of Parliament; I am speaking of briefs going to barristers generally. One tries to secure that some go to the young men to give them a chance, and 1959 that there is a fair distribution all over the circuits.
I do not believe that there has been any serious criticism, no matter who the Attorney-General might have been, of the way in which the system has worked at the Bar, and it has been in existence for a great many years. I am quite firm about this. My governing consideration —and it always will be as long as I am Attorney-General—is to try to make the fairest distribution to the practising members of the Bar, having regard to my assessment—the best assessment that I can make—of their capacities and the nature of the case.
The question, therefore, resolves itself into this, so far as the Bill is concerned: ought Members of Parliament to be excluded from that distribution? I do not think that they should. Really, to suggest that a barrister Member of Parliament would be influenced in his conduct in the House by the receipt of a Treasury nomination is nonsensical. People seem to have astonishing ideas about the number of such briefs which are available. They are far fewer than people think. I have not the total number in mind at the moment, but I can say that the total number of briefs for which I make nominations to the Bar as a whole is much smaller than people think. Members of Parliament get their share, and their fair share. I do not think that any Attorney-General, in nominating barristers, whether Members of Parliament or not, has ever had any regard to the political views of the member of the Bar being nominated.
I myself would think that, for many reasons, it would be unfortunate if a new rule were introduced as to the disqualification of Members of Parliament from the receipt of such briefs. It certainly might handicap the public service if one were not allowed to nominate in suitable cases ex-Law Officers who were still Members of the House. That certainly would handicap the conduct of the public service and the proper conduct of some very important cases.
I am glad to have an opportunity of dealing with that point. I should like to assure the House that I certainly do not intend to be evasive. I do not think I have been. I think I gave the hon. Member for Dudley all the information to which he was properly entitled.
§ Mr. Wigg
Might I put this question to the right hon. and learned Gentleman? As he does not carry the number in his head, if I put down a Question asking him the number of briefs allocated in any year for which the figures are available, will he answer that Question? Might I put a second point to him? Would he be kind enough to address his mind to this proposition, that he is claiming for himself and his profession privileges which are denied other Ministers of the Crown? What is it that enables him to do that?
§ The Attorney-General
In reply to the first question, I will certainly consider any Question which the hon. Gentleman puts down. Asking for the total number of nominations made in a particular year is a very different thing from asking for the numbers made to Members of Parliament since 1945.
As to his second question, I doubt whether I can clear the hon. Gentleman's mind about it. The position with regard to nominations by the Attorney-General is quite different from the position in relation to appointments made by a Minister. It really is an astonishing proposition to me that one should stop the nomination of a few Members of Parliament for cases, which may be of great importance or may be of very little importance, while at the same time permitting the allocation of a substantial building contract without for one moment regarding it as a proper matter for disqualification.
I should like now to pick up some of the points—I do not think that I can deal with them all because there were so many—which have been raised by speakers in the course of the debate. My hon. and gallant Friend the Member for Berwick and East Lothian asked whether there would be or could be a Ruling by the Speaker on the question of whether or not an office was one of profit. The Bill does not provide for that, and I think that it would be an unfortunate and difficult task to put upon Mr. Speaker. It is not his function at the present moment, and it is much better, if we can, to try to keep the Bill clear, so that those who read it may have as much doubt as possible removed.
§ Major Anstruther-Gray
Surely the Herbert Committee recommended that Mr. Speaker should be in a position to 1961 cause a Select Committee to examine any case brought to him, and then give a Ruling.
§ The Attorney-General
What happens now, as my hon. and gallant Friend knows, is that a Select Committee does consider any case which is brought to its attention.
§ The Attorney-General
It is true, only after the event. I hope that the Bill will reduce the number of occasions on which it is after the event, but it is certainly a matter for inquiry and consideration as to whether we can have some machinery for coming to a conclusion before the event. I am not quite sure how it would work or whether it would work very well.
The hon. Member for Belfast, North (Mr. Hyde) asked me whether a member of the Eire Legislature could be a Member of this House, and the answer is, "No". If he will look at Clause 1 (1, e) he will see that such a person is debarred from being a Member.
My hon. Friend the Member for Buckinghamshire, South (Mr. R. Bell) raised a number of points. One, which I did not quite follow, was in relation to disqualification now, which, he said, would have to be cleared up in ten years' time. I do not see how that could occur, but perhaps we shall have a further opportunity of discussing that matter. He also raised the question of Reserve Forces. There is a serious question there which will have to be given further consideration.
The hon. Gentleman the Member for Dagenham raised a number of questions. I think that most of them—I hope that he will not mind my saying so—were questions of a Committee nature, and, of course, we will give consideration to them. The hon. Member for Leith (Mr. Hoy) asked us to lay down clearly what offices were disqualified. We certainly want to do that so far as we can, and we shall be grateful for any assistance that can be given in that direction.
The hon. Member for Islington, East (Mr. E. Fletcher) raised the question of the Queen's Printer. I think that he assumed, in the course of his speech, that 1962 there had been new Letters Patent. If there are no new Letters Patent, the course taken in the Bill does not depart in any sense from the recommendations of the Herbert Committee. He also asked why there were 70 Ministers named in the Fourth Schedule.
§ Mr. Mitchison
Before the Attorney-General leaves the question of the King's or Queen's Printer, I wonder if he would look again at the Report of the Herbert Committee, because I believe that he will find that the Committee recommended freedom in one particular case, and not subsequently. This makes a general provision applicable to the present and future King's or Queen's Printer.
§ The Attorney-General
That, of course, is a matter which certainly will have to be looked into.
I was saying that the hon. Member for Islington, East asked why provision is now made for 70 Ministers to sit in the House of Commons when the figure recommended by the Herbert Committee was 60. The hon. Gentleman spent some time in animadverting on that. There is no single figure to which the total number of Ministers is restricted by our law but if one looks up the various pieces of legislation one can obtain a total figure. If one looks, for instance, at the maximum number of Ministers who can be Ministers under the Ministers of the Crown Act, 1937, and if one adds to that the maximum number of Ministers of State or Ministers without Portfolio who may sit at the same time by virtue of the Re-election of Ministers Act, 1919, and if one adds the Ministers authorised to sit in the House of Commons by virtue of other enactments, and one then makes the further addition of those who are entitled to sit by virtue of what are called old offices, one reaches a total of 72. We have taken for the purpose of the Bill a round figure of 70.
I was grateful to the hon. Member for West Lothian (Mr. J. Taylor) for what he said in defence of lawyers. As lawyers, we are glad to find any laymen who will defend us when we are attacked.
We have had a very interesting and useful debate. I hope that the House will now give the Bill an unopposed Second Reading, and that hon. and right 1963 hon. Members will then join, in Committee, in trying to make it the most effective Measure of its kind.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Committed to a Committee of the whole House.—[Colonel J. H. Harrison.]
§ Committee upon Monday next.