§ Motion made, and Question proposed, That this House do now adjourn.—[Colonel J. H. Harrison.]
§ 1.11 a.m.
§ Mr. James H. Hoy (Leith)
First, Mr. Speaker, may I express my regret to the officials and others whom we have to detain at this time. I have no regret, however, in raising this subject, because I think it is a case which will interest not only Scottish Members but the Scottish people as a whole.
I have tried my best to have the question settled amicably and without bringing it to the Floor of the House, but this I have failed to do. At the outset, I must express my strong protest that the Secretary of State for Scotland himself is not present, because the appointment is his, although I am certain that it was made on the recommendation of the Lord Advocate. In that connection, I want to say that the disgust expressed over this case once more raises the question of the Lord Advocate's patronage, but I myself this evening propose to confine my remarks to this appointment.
The Counsel to the Secretary of State under the Private Legislation Procedure (Scotland) Act carries not only a senior post but also a junior post, and the present holder of the junior post is Mr. Ronald McLarty, who was appointed in 1939. It was advertised, applications were made and, under the late Lord Cooper, who was the Lord Advocate of the day—a very distinguished man with a good eye for the right persons to fill appointments in Scotland—Mr. McLarty was appointed.
For the past 17 years, therefore, he has given distinguished and good service to Scotland under this procedure. It came as a great shock to him when he received a letter on 8th December, 1955, from the Scottish Home Department, signed by Sir Charles Cunningham, the Head of the Home Department, as follows:Dear McLarty, I am writing to let you know that we have been considering what is to happen when Professor Fisher retires in March, 1958, and that, after the most careful examination of all the factors involved, including your recent illness, the Secretary of State has regretfully come to the conclusion that it will not be possible to offer you the 1475 appointment. I know that this will be a great disappointment to you, and I need hardly say that I wish it could have been otherwise.I will not quote the whole of the letter, but it goes on to pay tribute to the work of Mr. McLarty as Junior Counsel for the past seventeen years.
I thought it was the most mean and miserable thing to do to use the illness of this man, an illness which he had suffered two years previously, to tell him in 1955 that because of the illness in 1953 he could not have an appointment in 1958.
It is a most shocking thing when one remembers that the Prime Minister suffered a very serious illness and had to go to America for a cure, but it did not prevent him from becoming Prime Minister. Indeed, the Secretary of State for Scotland suffered some illness when he was the Chief Tory Whip and he had to resign from office, but it did not prevent him from becoming Secretary of State. However, apparently this Junior Counsel had an illness in 1953, and it prevents him from being promoted in 1958.
This shabby excuse is exposed in all its stupidity by a letter written a few months earlier by the Lord Advocate to Mr. McLarty, a letter not only signed by his own hand but written by his own hand, in which he offered to Mr. McLarty a position as a Sheriff-Substitute. Surely it is not going to be suggested that the post of Sheriff-Substitute, which carries a pension, is less important than the position which it is proposed to fill. Indeed, if Mr. McLarty's illness was a bar to his succeeding to the appointment which he was entitled to expect, why did the Lord Advocate offer him an appointment as a Sheriff-Substitute four months prior to the letter written by Sir Charles Cunningham?
There is no doubt that strong feeling has arisen out of the case. Indeed, the feeling is that the letter sent by the Lord Advocate four months earlier to Mr. McLarty was an endeavour to get him out of the way to make the road open and clear for Mr. Fraser's appointment. That is undoubtedly the impression that has got about.
The feeling was so strong, and the protests that I received were so many, 1476 that I sought an interview with the Secretary of State in December last. I think the Lord Advocate would agree that I left him and the Solicitor-General for Scotland in no doubt about the strong feelings which were expressed.
I received from the Secretary of State a letter dated 9th January in which he outlined what all the posts and the salaries were, something which I very well knew, but one sentence was:It is desirable that the Senior Counsel should be someone of standing and experience and that, if possible, he should not himself be engaged in private practice.That is a very silly thing to say. How can one be a counsel of standing without practising? Indeed, if what was wanted was a counsel who did not practise, the right man has been picked for the job, because Mr. Fraser has appeared in court very seldom indeed. He is practically unknown in the courts, and, indeed, if it were not for his job as chairman of the pensions tribunal, he would not be known at all.
Furthermore, if it is a question of physical capacity, there is no denying that this man—I regret having to say this, but the Scottish Office raised the question of the illness of Mr. McLarty some three years ago being a barrier to his promotion—suffers from deafness which amounts practically to stone deafness. Yet this is the man who is supposed to act as a legal adviser to Members of Parliament when cases are being considered. What is the justification for appointing a man like Mr. Fraser and giving him access to Government papers?
It is a unique case. One cannot help feeling that it was a dodge, if I put it no higher than that, to place in a certain appointment a friend of the Lord Advocate. That is the feeling which prevails in Scotland.
When I raised the matter in Questions in the House, the Joint Under-Secretary said that the Scottish Office had had no real representations on the matter. It is true to say that until that time very few people knew about it, but my hon. and learned Friend the Member for Paisley (Mr. D. Johnston) certainly wishes to express some feeling about it. I myself have received many expressions of opinion from people of all political opinions. To confirm what I have said, I want to quote a letter I received from 1477 a gentleman who is not only one of the oldest members of the Bar but who is held in very high respect in law circles in Scotland. He says:Dear Mr. Hoy,I am fully aware of the circumstances in which on the recommendation of the Lord Advocate, and at his instigation, arrangements have been made to deprive Mr. McLarty without reason or excuse of the prospect which he had of succeeding Mr. Fisher and in the meantime to humiliate Mr. McLarty by a clearly implied reflection on his capacity and by installing in the office occupied by Fisher and him an Advocate Mr. Colin Fraser with no official position except the curious one of unpaid successor `designate' to Fisher. As the facts are, I understand, known to you I need not repeat them. I do feel, however, that a very blunt denial is called for of the blatantly false statement in the House by Mr. Henderson Stewart, to the effect that there was no evidence of 'disgust' or disapproval among Members of the Scottish Bar. Until you raised the matter in the House of Commons the fact that such a transaction was in view was known only to a limited number of Members of Faculty but of those who had heard it I know of none who did not strongly condemn it. The facts have now become more widely known and in Parliament House I have myself heard a great deal of comment, without exception critical and resentful. I am, as you know, a Conservative, and at least twelve Queen's Counsel, including six Conservatives, and quite a number of junior counsel have expressed such opinions to me personally. Other Members of Faculty inform me that what I have said accurately represents the general attitude of Members.I have been in practice for a longer period than any other Member now on the 'floor' of Parliament House, having been admitted in 1910 and taken silk in 1928. In that period on quite a number of occasions the exercise of the 'patronage' of the Lord Advocate of the day has excited strong criticism—sometimes more than fully justified. But no previous appointment in my time has been so generally condemned. The essence of the transaction is the displacement of a Member of Faculty who has had 17 years' training qualifying him to succeed Mr. Fisher in order to provide an official post, two years hence, for another Member who, by reason of deafness, is disqualified from most of the official positions open to Members.of Faculty.As regards Mr. McLarty's general qualifications for the post of Senior Counsel under the Private Legislation Procedure (Scotland) Act no question arises. In that connection you are aware that the first step taken by the Lord Advocate in the sequence of events reported to you was to suggest to McLarty that he should accept an appointment as Sheriff-Substitute, an office carrying a pension, in place of the post now held by him which is not pensionable.Even if the position is rectified, the part played by the Lord Advocate has brought his office into contempt. I say that with regret, 1478 as I have always been on the best of terms with him.That letter came from Mr. A. P. Duffes, Q.C.
I say, in conclusion, that I think that I have more than adequately proved the case, not only that this is a mistaken appointment but that, if it is persisted in, then all Members of Parliament who serve on these panels must consider whether they can continue to do so in view of this appointment. It weakens the whole structure. Let the Government, therefore, do the decent thing—withdraw the designated appointment and appoint Mr. McLarty, give him the promotion to which he is entitled after 17 years' loyal service in which he has rendered first-class service to those who have had occasion to serve on the panel.
I have had the honour of presiding over them when one of the members was the hon. and gallant Member for Roxburgh, Selkirk and Peebles (Commander Donaldson), and when we had to rely entirely upon the guidance of Mr. McLarty. He gave us that service not only upon that occasion but upon many previous ones. I ask the Minister to do the decent thing and remove this blot which the Lord Advocate has cast upon the profession, by restoring Mr. McLarty to the rightful position which he is entitled to enjoy.
§ 1.25 a.m.
§ Mr. Douglas Johnston (Paisley)
I have known Mr. Fraser and Mr. McLarty for a number of years; accordingly, it is with the very greatest reluctance that I seek to intervene in this debate. Indeed, I regret that this debate is necessary. But it is necessary because the representations which were made by my hon. Friend the Member for Leith (Mr. Hoy), and later by me, to the Secretary of State were wholly fruitless, and the only method by which we might seek to achieve justice was by raising the matter in this place.
I also regret the absence of the Secretary of State, because this is not a Departmental matter which can be dealt with by the Joint Under-Secretary. It is a matter of the exercise of the patronage of the Secretary of State—a matter which touches his personal honour. It is his personal honour which is being attacked tonight. In those circumstances, it is regrettable that he should be absent. 1479 There is another reason why he should be here. While the appointment is made by the Secretary of State, it is made, in effect, to a committee drawn from hon. Members of this House and the other place. In effect, the appointee acts as clerk to that committee. It is, therefore, a House of Commons matter.
I now move to the reasons why I intervene. My first reason arises from the statement made by the Joint Under-Secretary, upon a former occasion, that this appointment had aroused no indignation in Parliament House. At the time when he made that statement I believe he knew that I had expressed my disapproval, as had others. If he has not been satisfied of that indignation by the letter written by Mr. Duffes and read by my hon. Friend, I would say that I have spoken about this appointment to a number of members of Faculty and all of them have condemned it and are indignant about it.
Their indignation does not spring from any antipathy to Mr. Colin Fraser. His character is impeccable and he is personally most popular—and I say that he is deservedly so. The indignation springs from two factors. First, a person who has no professional qualifications has been preferred and promoted over a person who has every professional qualification, including 17 years in the junior appointment and—what has not been mentioned by my hon. Friend—is the lecturer in administrative law in the University of Edinburgh and, as such, has a very great deal of experience in the type of work which the standing counsel is required to do.
Secondly, as a result of Mr. McLarty's being allowed to continue in this appointment for 17 years, without complaint and without criticism, he has naturally been led to expect that he would succeed. As a result of that, he has not taken a normal course of applying for his patent as a Queen's Counsel at the normal time, and, consequently, has lost substantial seniority at the Bar.
Since the time of Dundass, and for many years afterwards, appointments from the Parliament House depended entirely on the colour of the person's political ties. I think that that has ceased, and from my personal knowledge of the Lord Advocate I do not think he would allow 1480 political considerations to influence appointments. There are no politics in this. But the fact that politics are out of it is not sufficient. What the Secretary of State and the Lord Advocate must do in making this appointment is to make it abundantly clear to everyone that merit is the criterion for the appointment and that merit only should count.
I regret very much that from my knowledge of both the persons, and the work that requires to be done, I am satisfied that merit has not been the criterion in this appointment.
§ The Joint Under Secretary of State for Scotland (Mr. J. Henderson Stewart)
Despite the somewhat harsh and, I think, quite unwarranted, words used by the hon. Member for Leith (Mr. Hoy), I still cannot begin this short reply without saying how glad I am to see him in his place again and apparently restored to his full health. We all hope that he will retain that good health. I wish I could be equally felicitous about the speech he made a few minutes ago. The best I can say of it is that it was a very unfortunate utterance from every point of view.
The charges made by him against my right hon. and learned Friend the Lord Advocate, are, as I shall show, utterly without foundation. In the interests of the public service it is a pity that the hon. Member allowed himself to make those charges, and I can only hope that when I have explained the position he will feel disposed to withdraw them.
The hon. Member read a letter said to be from Mr. Duffus, indicating that there is complaint. That may be so, but I say this to the hon. Member: we in the Scottish Office have had no representations whatever from anybody at all except the hon. Member for Leith and the hon. and learned Member for Paisley (Mr. D. Johnston). That is an interesting point.
The facts about this matter are simple and the steps taken were not only correct, but strictly in accord with longestablished practice. The facts are very well known to hon. Members. Except for a short time, between 1937 and 1939, the Secretary of State has always had two Counsel—a Senior and a Junior—on this particular work. It is difficult, important work which these Counsel have to perform and, therefore it is desirable 1481 and, indeed most necessary that the senior counsel especially should be an advocate of public standing and experience, and, in view of the responsible position he holds, should if possible, not be engaged in private work.
The present senior counsel, as we have heard, Professor Fisher, has occupied this post since 1937. He holds a chair in the university. The junior counsel is Mr. McLarty, who has held the position since 1939. He also holds an appointment as lecturer in the university. Both posts are subject to age limit retirement at seventy, and Professor Fisher will retire when he reaches that age in two years' time, in March, 1958. Since the work entailed in that post requires special knowledge, which can only be gained by actual experience, it was decided about the middle of last year that it was necessary to make arrangements in good time for the appointment of a successor to Professor Fisher.
I should not have to say this, but I had better do so. Naturally, the claims of the present junior counsel were the first to be considered. No criticism could be or was made about the services of Mr. McLarty, which have been eminently satisfactory. But I am asked by the Secretary of State to say precisely that after the most careful examination of all the factors, including, of course, his recent illness, although that was the least important, my right hon. Friend decided that it was not possible to offer to Mr. McLarty the post of senior counsel. In view of Mr. McLarty's record this decision was reached by my right hon. Friend with much reluctance, and only because he was convinced, as he is still convinced, that it was in the public interest that that step should be taken.
The question then arose about a successor. The Lord Advocate was consulted. The hon. Member for Leith has suggested that my right hen. and learned Friend took the opportunity to push the claim of his friend, Mr. Fraser. I can only say that that is one of the several mistakes of assumption and narration which the hon. Member made in his speech. In fact, Mr. Fraser's was not the only name which my right hon. and learned Friend submitted for consideration. But the ultimate choice, for which he takes full responsibility, was that of the Secretary of State.
1482 In view of the remarks of the hon. Member for Leith and those of the hon. and learned Member for Paisley, I had better say, plainly and frankly, that in his choice, as in his decision about Mr. McLarty, the Secretary of State acted on the unanimous advice of all those whom in accordance with strict practice in these matters, he consulted; and he had consultations with all the persons normally consulted in such a matter. Mr. McLarty was invited by letter in December—
§ Mr. D. Johnston
I have some knowledge of how these appointments are made from the reason that I was a Law Officer for four years. So far as I know, the normal practice is that only two persons are consulted. The Secretary of State consults only one person, or it may be two, the Lord Advocate and the Solictor-General. Was either of those persons consulted?
§ Mr. Stewart
I am sure that, with his experience, the hon. and learned Member will not ask me to debate with him in public who should, or ought to be, or was, or who may be consulted in the future. I refuse to do that, because I think it would be wrong. But I repeat that all those who, in the past, and in accordance with practice have been consulted, were consulted, and all of them were unanimous in both matters.
As we all know, Mr. Fraser has now been designated as the successor. When he was offered the position he agreed that for two years, until Professor Fisher retired, he would understudy the professor in his work in order to gain the necessary experience. It is true that at the time Mr. Fraser had no experience. But the same criticism could have been made of any possible successor to Professor Fisher other than Mr. McLarty, who was not regarded as suitable for the position.
It was said, or it has been said, that Mr. Fraser's work as Chairman of the Pensions Appeal Tribunal was coming to an end and that this was an easy way of getting him a job.
§ Mr. Stewart
I had better look at the facts. I am answering a criticism that I have heard, and the answer is that his 1483 work is not coming to an end. The Appeal Tribunal's work is not coming to an end. In 1955, the number of cases received by the tribunal was higher than it was in the previous year.
The hon. Member criticised Mr. Fraser's appointment on the ground that he was deaf and needed a hearing aid. I believe that the hon. and learned Member for Paisley also made that criticism. It is true that Mr. Fraser needs a hearing aid, but that disability has not interfered with the proper discharge of his duties as Chairman of the Pensions Appeal Tribunal. Everyone says that he has done that job exceedingly well and that there is no reason to believe that he will 1484 not be able to do this other one equally well.
The truth is that all the criticisms, charges and complaints of hon. Members are quite baseless. The Secretary of State has acted in strict accordance with practice and he believes that he has acted honourably and in the proper discharge of his duties.
The Question having been proposed after Ten o'clock on Thursday evening and the debate having continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order.
§ Adjourned at nineteen minutes to Two o'clock.