HON. MEMBER FOR MID-ULSTER (Hansard, 20 July 1970)

§ Mr. Latham
(by Private Notice) asked the Secretary of State for the Home Department if he will make a statement on his discussions with the Minister for Home Affairs for Northern Ireland, with reference to the case of the hon. Member for Mid-Ulster.

§ The Secretary of State for the Home Department (Mr. Reginald Maudling)
rose—

§ Mr. Latham
It may assist the House if I point out that this is the subject of Oral Question No. 116 on the Order Paper.

§ Mr. Maudling
The Northern Ireland Government are as aware as hon. Members here of the interests of the constituency of Mid-Ulster (Miss Devlin). I understand that the hon. Member's legal advisers are meeting officials of the Ministry of Home Affairs in Belfast today 35 to discuss how the interests may best be protected.

§ Mr. Latham
Did not the Home Secretary feel obliged to discuss particularly with the Northern Ireland Minister whether facilities might be granted to enable the hon. Member for Mid-Ulster to be sworn in? I understand that the hon. Lady is unable to exercise functions which an imprisoned M.P. would normally be able to exercise were she not the subject of imprisonment and denied the opportunity of being sworn in.

§ Mr. Maudling
I understand that the question of swearing in is a matter for the officials of the House.

§ Mr. Callaghan
Did the Home Secretary elicit any information from Mr. Porter whether the hon. Member for Mid-Ulster is receiving communications from her constituents, whether she has any right to reply, and whether any facilities have been provided for her to see constituents at any particular hours? Without regard to what may pass between the hon. Member's legal advisers and the Minister for Home Affairs, has not this House also some interest in what happens to those who are elected to it?

§ Mr. Maudling
Naturally. This is why I am concerned. I am hoping that in the discussions proposals will be put forward to deal with the problem.

§ Mr. Driberg
Is it the case, meanwhile, that the hon. Member for Mid-Ulster is receiving some correspondence, but that it is censored by the prison governor? If so, may I ask whether the right hon. Gentleman made representations for her freedom of correspondence when he discussed the matter with the Minister for Home Affairs?

§ Mr. Maudling
I do not understand that it is being censored. As I said, discussions are taking place—it seemed the sensible way to go about it—to see how best the problem could be resolved in the interests of the hon. Member's constituents.

§ Mr. McMaster
Will my right hon. Friend confirm that any right hon. or hon. Member of this House will be treated in the same way as any citizen found guilty of inciting their fellow citizens to riot or using petrol bombs?

§ Mr. Maudling
I think that this is a question of protecting the interests of the constituents.

§ Mr. C. Pannell
I understood the Home Secretary, in answer to an earlier question about the hon. Member for Mid-Ulster taking the oath and putting herself in a correct position as a full Member of this House, to say that it was a matter for the officials of the House. In saying that, I presume that the right hon. Gentleman is putting a certain obligation on you, Mr. Speaker, with the assumption that you might have been remiss. May I ask you, Mr. Speaker, carefully to study that answer and make a statement tomorrow?

§ Mr. Speaker
Order. I can answer it now. The taking of the oath is a matter for the House. Mr. Speaker cannot interfere with the course of law to enable an hon. Member to come and take the oath in the House.

§ Mr. Pannell
What you have just stated, Mr. Speaker, was my impression. But I am taking up what the Home Secretary said. I should be glad if, in his own interests, he would make the position clear, because it seemed to lay an obligation on you, Mr. Speaker. My frank view is that it is really a matter for the Government of the day. Will the right hon. Gentleman repeat his point?

§ Mr. Turton
On a point of order. Will you, Mr. Speaker, help the House by explaining how a Question which is given by public notice on the Order Paper can be taken as a Private Notice Question by an hon. Member other than the hon. Member whose name is on the Order Paper?

§ Mr. Speaker
It is quite simple. Hon. Members, on the whole, protest that Private Notice Questions are not allowed. The Father of the House is now protesting because a Private Notice Question has been allowed. For a long time the House had prevented Mr. Speaker taking a Private Notice Question if there were any similar Question on the Order Paper. It then decided and instructed Mr. Speaker that, even though a similar Question were on the Order Paper, written or oral, if there was no likelihood of it being reached he could, if he thought 37 it right, take a Private Notice Question. It is as simple as that.

§ Mr. English
Further to the point of order raised by my right hon. Friend the Member for Leeds, West (Mr. C. Pannell). If the Home Secretary is correct about the administration of the oath being a matter for the officials of the House, as the oath has not always been administered in this House, is there any reason why the hon. Member for Mid-Ulster should not be put in a position to pat down Written Questions by the oath being administered to her in her present situation?

§ Mr. Speaker
The oath must be taken in the House in the presence of Mr. Speaker.
I cannot remember whether I called the hon. Member for Barking (Mr. Driberg) for a supplementary question. Did I?

§ Mr. Driberg
You did, Mr. Speaker. But I wanted to raise a point of order.

§ Mr. Speaker
Mr. Driberg to raise a point of order.

§ Mr. Driberg
I am grateful for both opportunities. Will you, Mr. Speaker, clarify a little further the position of hon. Members who have not yet taken the oath? I take it that they are not debarred from raising matters with Ministers by putting down Questions for Written Answer or by writing letters, as many of us did in the period that elapsed between polling day and the taking of the oath. Therefore, is not the hon. Member for Mid-Ulster entitled to communicate by letter with Ministers and to put down Questions for Written Answer, and, if she did, would they be accepted?

§ Mr. Speaker
I can deal only with the last part of the point of order. The conditions under which the hon. Member for Mid-Ulster (Miss Devlin) exists are matters for the law. Mr. Speaker has no power to intervene or to interfere with the law. This is the rule of Britain.
The rules about the tabling of Questions are that a Member who has not taken the oath is not entitled to table Questions to Ministers. This is the practice which has been observed for many Parliaments before this one. For the convenience of the House, there are cer- 38 tain activities which an unsworn Member can enter into, such as voting in the contested election of the Speaker, but the tabling of Questions is not one of them. Until the House directs me that its present practice must be laid aside, I am bound to follow the precedents as upheld by my predecessors.

§ Sir Elwyn Jones
On a point of order, Mr. Speaker. Is it not a fact that the hon. Member for Mid-Ulster (Miss Devlin) is undoubtedly a Member of the House of Commons and, as such, can she not, for instance, if she were free to do so, though unsworn, participate in Committees of this honourable House? I wonder whether you would reconsider your answer about the acceptability of Parliamentary Questions from an unsworn Member? With respect, is there authority sufficient and abundant for that Ruling?

§ Mr. Speaker
I understand that there is authority for the Ruling that an unsworn Member cannot table Questions on the Order Paper.

§ Mr. John Mendelson
rose—

§ Mr. Speaker
Order. In the freest Parliament in the world we can deal with one point of order and one hon. Member at once. I should have to look into the question whether an unsworn Member can take part in a Committee.

§ Mr. John Mendelson
A few moments ago I thought that the Home Secretary was going to reply to the question put by my right hon. Friend the Member for Leeds, West (Mr. C. Pannell). The crux of my point of order is that the Home Secretary said that the taking of the oath was a matter for the officials of the House. You, Mr. Speaker, have said several times that you cannot do anything about the hon. Member for Mid-Ulster being allowed to take the oath until instructed by the House. That obviously leads one to the conclusion that the right hon. Gentleman is trying to create a majority in the House to instruct you to do this. He therefore cannot get out of it by saying that it is for the officials of the House to take the decision. I wonder whether you would clear up the position for the benefit of the House.

§ Mr. Speaker
All the Speaker can rule is that if an hon. Member is present and 39 swears the oath it must be in the House in the presence of Mr. Speaker. Mr. Speaker has no power to interfere with the due process of law.

§ Mr. S. C. Silkin
Further to the point of order raised by my right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones). I wonder, Mr. Speaker, whether you would be good enough to give further consideration to, and give a Ruling to the House upon, the question which has been raised of the right of the hon. Member for Mid-Ulster to table Questions for Written Answer?
The relevant part of the 17th edition of Erskine May is at pages 288 and 289, which refer to the Parliamentary Oaths Act, 1866, which, as you will be aware, penalises a Member of the House from voting or sitting during a debate before being sworn, but for nothing else. Erskine May says: But although until he has taken the oath a Member may not sit and vote, he may vacate his seat by the acceptance of the Chiltern Hundreds and is entitled to all the other privileges of a Member (but not to his salary). being regarded, both by the House and by the laws, as qualified to serve, until some other disqualification has been shown to exist. The learned Editor of Erskine May then quotes certain instances of Members who have not been sworn being appointed to Committees, as I think you mentioned in reply to an earlier point of order. If that is right, it would appear that one of the privileges of a Member must be to table Questions for Written Answer. Either Erskine May is wrong on this point, or the hon. Member must be entitled to table Questions.
I have also examined pages 348 and 349 of Erskine May, which deal with Questions and your control of them. That part of Erskine May provides that you have a responsibility in regard to Questions, but a responsibility limited to their compliance with the rules of the House; in other words, they must not offend against the rules of the House itself. Though my researches have been as detailed as possible, I have not been able to find any other reference to putting down a Question for Written Answer in those circumstances, or to any practice or precedent in those circumstances. As there appears to be an express limitation in the Parliamentary Oaths Act which 40 does not include the point in question, I wonder whether, in view of the great importance of this matter to the hon. Lady's constituents, you would give further thought to it and give a Ruling to the House upon it?

§ Mr. Speaker
I am grateful to the hon. and learned Member. I know that he has devoted a great deal of thought, as has Mr. Speaker and as have Mr. Speaker's advisers, to this unique circumstance in the political history of Britain. I shall look into the point raised by the hon. and learned Member, but at the moment I do not see any reason to vary the rules that I have made.

§ Mr. English
Further to that point of order, Mr. Speaker. With the utmost respect to your Ruling about the present traditions of the House, is it not the case that in the past Members have been sworn otherwise than in the House in the presence of Mr. Speaker?
Second, may I raise what seems to be the important point, whether it is possible for this House to order the presence of a Member to be sworn here or, alternatively, to order its Clerk to proceed to her present position in order to swear her in?

§ Mr. Speaker
What has happened in the past is no concern of Mr. Speaker. Even if what happened in the past was outside the present law, the law governing Members of Parliament is that they take their oaths in this place in the presence of Mr. Speaker. Although Parliament is all-powerful, it is not powerful enough to set aside the law unless it deliberately by its own act sets aside the law. There is a law governing the taking of oaths by Members of Parliament. If by any chance during history it has been broken, that is something about which I know nothing. It would be out-with the power of the Speaker and the Clerk to do what the hon. Member suggests.

§ Mr. Lomas
Further to that point of order, Mr. Speaker. I wonder whether you would tell the House where the responsibility lies? Is it with you? Is it with the Home Secretary? Or is it with the officials of the House? The House is confused and we would very much like to know, through you, to whom we can put questions on this issue.

§ Mr. Speaker
I am sorry that the House should be confused. The House is governed by certain orders and rules. It is the duty of Mr. Speaker to abide by those rules, and for the House to abide by them, until the House itself changes them. The House is all-powerful. It was once said that Parliament can do anything except make a man a woman. It was then even argued that if Parliament chose to do so it could do that. Mr. Speaker, however, has no power to vary the rules of the House. The House is the master of its own rules. I am sorry that there should be any confusion.

§ Mr. Richard
Is it not clear that there is a distinction between procuring the presence of an hon. Member in this House in order to take the oath and the actual taking of the oath in your presence in this Chamber? As far as the second proposition is concerned, is it not clear that, as the Home Secretary said, that part of it is governed by yourself and the rules of the House? With the greatest respect, it is not that part of the equation that is bothering the House this afternoon; what is much more important is procuring the presence of an hon. Member here. Again, is it not absolutely clear that the confusion that the House has been placed in this afternoon arises because the Home Secretary was wrong and because, so far, he has not had the grace or the courage to admit it? Could not we resolve this difficulty very simply by the Home Secretary giving an assurance to the House that he and the Government will take such steps as are available to them to procure the attendance of the hon. Member for Mid-Ulster in the House so that she can then take the oath in accordance with rules?

§ Mr. Speaker
That is not a matter for Mr. Speaker. One thing is certain; from the hon. Member's own submission, Mr. Speaker is not a procurer.

§ Mr. McNamara
With your leave, Mr. Speaker, may I refer back to the original Question asked and ask the Home Secretary, through you, whether in his discussions with the Prime Minister of Northern Ireland and representatives of the Northern Ireland Government any decision was reached about the future holding of marches in the town of Londonderry, especially on 12th August, and whether the Home Secretary advised the Prime 42 Minister of Northern Ireland that it might be advisable in this case to cancel such marches?

§ Mr. Maudling
That obviously does not arise out of the Question.

§ Mr. Callaghan
Is it not clear from the series of questions asked today and on earlier occasions that the position of a Member who has been elected but is unable to carry out his or her functions has not been resolved and, as I understand it, the Committee of Privileges—I trust this is so—will look into the general proposition? I have made slips of the tongue in the past and I have always been forgiven. I have no intention of doing so now. But is it not a fact that the Home Secretary did not accurately represent the position as regards the taking of the oath? If an hon. Member is to be prevented from carrying out certain functions that are in the interests of her constituents—such as the ventilation of something done by a Minister which should be known about publicly—the question of procuring her here will become much more of a positive demand if she is not allowed to put questions on behalf of her constituents? Therefore, may I request you, respectfully, to consider how far, short of taking the oath—if she is not in a position to do that, and you are not in a position to enable her to do so—we should try to adjust our rules so that her constituents do not suffer by any arbitrary restrictions that we may put upon the exercise of her functions if by the rules of the House we are preventing her from tabling Questions to which her constituents may require answers?

§ Mr. Speaker
That, like so many other questions, is a question for the House and not for Mr. Speaker.

§ Mr. Callaghan
Any hon. Member may find himself in this position. If it is a matter for the House, Mr. Speaker, can you advise me how you suggest it should be raised at an early date in order that the constituents of any hon. Member why may be in this position can be looked after?

§ Mr. Speaker
First, the matter has been raised by Private Notice Question today. Secondly, one hon. Member who took it upon himself to be keenly interested in this matter has been advised by the Table as to how to prepare a Motion. There is 43 a Motion on the Order Paper. I understand from the Leader of the House that that Motion is going to the Committee of Privileges, as he announced last Thursday.

§ Mr. Callaghan
Presumably it is for the Committee of Privileges to decide whether it wishes to discuss the general issue. If it decides that it does not wish to make any recommendations on it, will the Leader of the House agree that we should have a discussion on it here?

§ The Lord President of the Council and Leader of the House of Commons (Mr. William Whitelaw)
It may be convenient if I reply. I said in Business Questions last week that I would refer the Motion in the name of the hon. Member for Paddington, North (Mr. Latham) to the Committee on Privileges. I shall put down a Motion to that effect on the Order Paper this week. When there is an opportunity of debating that Motion, which refers to the wider question of Members as a whole who may find themselves in prison—wider than the question of the hon. Member for Mid-Ulster the whole question can be considered. I shall be only too pleased, before tabling it, to have discussions through the usual channels in order to decide how best the interests of the House may be served.

§ Mr. Harold Wilson
The right hon. Gentleman says that he has put a Motion on the Order Paper this week? Is he finding time for it to be debated this week, or does he mean that it is merely being put down this week? If we are not to have a debate on it until October, so far as the hon. Member for Mid-Ulster is concerned it will be a little too late.

§ Mr. Whitelaw
I should like to have discussions through the usual channels about this. I shall put the Motion on the Order Paper this week and, if the usual channels agree, I shall seek an opportunity to debate it this week.

§ Mr. Grimond
Is it in order for further questions to be put to the Home Secretary?

§ Mr. Speaker
Nobody has ever been inhibited from putting questions to a Minister who has made a statement or answered a question, unless we have gone on for too long.

§ Mr. Grimond
I am greatly obliged to you, Mr. Speaker, for that favourable reply. Arising out of the last point of order or question, alternatively, put by the right hon. Member for Cardiff, South-East (Mr. Callaghan), can the Home Secretary make it clear whether, in his exchanges with the Northern Ireland Government, he put the point of view of the hon. Member's constituents in this House, quite apart from her personal position, and whether this matter will be discussed in the conversations that are to take place? I understand that the conversations are to be between the hon. Member's legal advisers and the Government, but surely the House, on behalf of the hon. Member's constituents, has a right to have its point of view taken into account in these conversations.

§ Mr. Maudling
That was the main point in my discussions—the interests of the hon. Member's constituents—and I have no reason to think that that matter cannot be dealt with as a result of the discussions today.

§ Mr. Dunn
The Home Secretary made a statement which, on the basis of the question and of your guidance, Mr. Speaker, was not correct. Will he now take the opportunity to say that he will make a statement early this week correcting anything that he may inadvertently have mis-stated?

§ Mrs. Shirley Williams
Did the Home Secretary discuss with the Minister for Home Affairs of the Northern Ireland Government the question of an escorted visit to this House, which would enable the hon. Member to take the oath?

§ Mr. Maudling
I do not think that that is a question for me; but I should think it likely that it would have been raised by the hon. Member's advisers with the Northern Ireland Government.