SECRETARY OF STATE FOR SCOTLAND (INDEMNITY) (Hansard, 20 March 1963)

§ Mr. William Hannan (Glasgow, Mary-hill)

I beg to move, That leave be given to bring in a Bill to indemnify the Secretary of State for Scotland from any penal consequences he may have incurred by his failure to observe the provisions of the Universities (Scotland) Act 1889. We have just had another example, if I may say so, of the kind of behaviour to which I now want to refer. The Bill which I now seek permission to introduce becomes necessary because it would appear that the Secretary of State for Scotland, by indifference, indolence and incompetence, has failed to secure the laying before Parliament of detailed annual reports under Section 30 of the Universities (Scotland) Act, 1889.

Implicit in my proposed Bill is the reassertion of the rights and privileges of Parliament against the might of the Executive and one particular member of it who has persistently evaded and ignored our legitimate claims for information, a problem which is very prominent in our debates in Parliament and the Press at the present time.

For some years now I and some of my hon. Friends have been asking Questions and initiating Adjournment debates to elicit information and facts about the Scottish universities, and all this activity, of course, was designed to substantiate the case for at least one new university in Scotland to meet the growing crisis over higher education. One source which we thought would be of advantage for this purpose was the laying of the reports provided for in the Act. Section 30 of that Act—I shall only quote part of it—says: The University Court of each University shall make an annual report … and such other information as the Commissioners … may from time to time determine, and … on the state of the finances … and the said reports shall be made to the Secretary for Scotland, and shall be laid by him before the General Council of the University and before Parliament … There are no permissive powers there. They are mandatory all the way through, but, in fact, the reports have not been so laid for forty years, and certainly not in the form in which they were originally intended.

Questions which have been directed to these particular aspects have been 395 shuttled between the Scottish Office and the Treasury. The esteemed and respected Clerks of the House were, on occasion, as we were, puzzled as to which Minister had responsibility. Succeeding Secretaries of State for Scotland ignored our representations, but ultimately, on 5th December, 1962, I asked the Secretary of State for Scotland whether he had inquired into why the four universities had ceased at various times to fulfil their obligations, whether the former practice of making their annual returns could now be resumed, and whether, as a member of the Scottish Universities Committee of the Privy Council, he would bring that matter before that Committee.

Again, the Secretary of State did not take the hint. He walked blindly into trouble, and, instead of putting himself right, runs the risk of indictment at common law.

I received a letter from the Lord President of the Council. This is a most interesting letter, which reveals an extraordinary state of affairs. He starts by saying: The story is an odd one". And then makes the damning admission which makes this Bill necessary: On examining the matter I think that there is no doubt that the consultation of the Scottish Universities Committee in 1920 and 1921 was not only not a statutory duty, but was ultra vires … The Committee has no say as to statistics of attendance on the various classes or details of teaching staff. It can only determine what other information shall be given in the Report. The Lord President of the Council goes on to say, with almost an audible sigh of relief: This, however, is not really a matter for me, for the Privy Council Office as such has, for the reason I have indicated, no jurisdiction either to dispense or to enforce the law and I really only come into it because I have to confess to a blunder by my predecessors of 1920 and 1921, and I suppose, to apologise for their having acted ultra vires." Then he asks, plaintively: In the meantime, what is to be done? What, indeed? I thought that the best answer was to introduce this Bill.

It may be argued that there are no legal precedents on the question whether a Minister who must lay reports must also take the responsibility that they contain the items specified in the Act.

396 I submit, however, that the obligation to present does imply a responsibility to scrutinise what he is presenting and, if he considers it to be deficient or inefficient, to adopt suitable precautions. That responsibility is a political one to be discharged in and to Parliament.

As far as I know, there is only one precedent for such a state of affairs when a principal Minister was indemnified by the Government of the day. In 1944, the then Home Secretary, now Lord Morrison of Lambeth, admitted in the House that certain Fire Service Regulations, which his Department was required to lay before the House by Act of Parliament, had not, in fact, been so laid, but he said that no act of indemnity would be required since the matter was one only for Parliament. As reported in HANSARD, 26th July, 1944, he said that as far as he knew, there were no sanctions for failing to lay the Regulations. He added: I do not think any question of indemnifying legislation will be necessary."—[OFFICIAL REPORT, 26th July, 1944; Vol. 402, c. 763.] But the House—we know who the Prime Minister was in those days—took quite a different view and insisted that such a Bill should be introduced. That, too, is quite clear from a perusal of the same Volume of HANSARD, at columns 899 and 1207. The then Home Secretary said: There lies on every Minister a heavy responsibility to secure meticulous observance of a mandatory duty imposed on him by Act of Parliament … Every Department … will examine its arrangements with a view to ensuring that, the Minister shall not be exposed to such risk by any fault in the official machinery. The then Home Secretary even went on to say, referring to himself: … appropriate punishment ought to fall on the responsible Minister. …"—[OFFICIAL REPORT, 26th July, 1944; Vol. 402, c. 1218–9.] That Act of indemnification absolved the then Home Secretary for his neglect to lay those Regulations, and it received the Royal Assent on 3rd August, 1944.

We have now to consider the punishment to which the Secretary of State for Scotland is liable in the absence of indemnification. The Act of 1889 does not itself lay down any penalty. But he is indictable at common law and can be tried for misdemeanour. Some of my hon. Friends think that the term should 397 be "criminal negligence". But reference to Halsbury's 3rd Edition, Vol. 36, paragraph 675, shows that it reads: Indictment on Information. Every breach of a statutory command is, in the absence of specific provision, indictable at common law as a misdemeanour. It may be argued that such a personal disaster would be most unlikely but we have had quite a few personal disasters attending Ministers in the Conservative Administration during the last twelve years. Acts of indemnity are passed not to protect against the probability, but to cover a Minister against any possibility, however remote, of penal sanctions.

The Secretary of State's defence may be that he is an extremely busy man. He is Minister for Housing, Health, Education, Agriculture and Town Planning, and, of course, he also has to keep an interest in the study of Highland cattle, their habits and habitats. But so is the Lord President of the Council an extremely busy man. Yet it did not take him years to reply. He replied within three weeks. He, too, is a busy man, as we all know, because in addition to being Lord President, he is Minister of Sport, Minister for Science and Minister for North-East England and, I understand, he is also a devotee of campanology.

Some of my hon. Friends disagree with me in my asking permission to introduce the Bill. They think that the law should take its course, not only for this offence but for those in respect of his failure to deal with unemployment and housing. To me, however, the part of Portia is much more attractive than that of Shylock. The grand jury, the Scottish electorate, will try him on those charges in due course at the next General Election, and I have no doubt about their verdict.

My hon. Friends will have noted that if the Secretary of State were proceeded against and found guilty, his two years' sentence would overrun the statutory limit of this Parliament. Even with six months' remission for good conduct, which is doubtful, it is still questionable whether he would be released in time. In any case, I ask him to believe—not that I have had any experience of it—that Barlinnie Prison is not an ideal place from which the Chairman of the Scottish Unionist Party could conduct an election campaign.

398 Appropriately enough, we have the Scottish Criminal Justice Bill coming into the Committee stage. Since we are already without a Lord Advocate in the House, and without a Solicitor-General, it would be just too much to deprive ourselves of the Secretary of State for Scotland. On balance, it would be much better that he should pilot that Bill through the House, so that he would be one of the first inhabitants to reap some of the benefits.

The real victims of this unholy mess are probably the growing numbers of young people in Scotland who, having certificates of fitness for entry into universities, may have been deprived of their opportunity because of the Secretary of State's complete failure to inquire more closely into the increasing difficulties attending higher education. It will need a new Government with alert, energetic Ministers, to put this right.