§ Mr. Latham
On a point of order. [HON. MEMBERS: "Oh."] I have no wish to weary the House or to try your patience, Mr. Speaker, nor do I wish to devalue my contribution by rising too many times on similar points. But I suggest that some hon. Members opposite might treat the matter with seriousness, because my right hon. Friend the Member for Cardiff, South-East (Mr. Callaghan) has pointed out that any hon. Member might find himself in the difficulty to which I shall refer, and hon. Members might take note of that.
The point I wish to raise is one which I must submit is too urgent to await the debate tomorrow night [Interruption.] Those Members who are courteous enough to listen will recognise that I am right in my submission that it is a point which must be settled this afternoon.
An important constitutional issue has emerged as a result of my trip to Belfast yesterday. You will recall, Mr. Speaker, that in reply to my original submission 537 about the position of hon. Members who may be imprisoned, and in reply to other submissions since, you have drawn a distinction between the law and the responsibilities of the Northern Ireland Government and the rules of this House. It has, I think, also been established that the Parliamentary Oaths Act, 1866, as well as describing the circumstances in which the oath must be taken, suggests that a Member is acting against the law if he sits or votes without being sworn in, except in the case of a contested election for a Speaker, as you told the House recently.
But since then it has been established that by custom a Member who is not sworn in may not table Parliamentary Questions, and there may be other functions which an imprisoned M.P. who was sworn in could otherwise exercise that we shall subsequently find custom precludes an unsworn Member from doing.
On Monday the Home Secretary indicated that the taking of the oath was a matter for the officers of the House. A deputation representing the hon. Lady the Member for Mid-Ulster (Miss Devlin) went to the Northern Ireland Ministry of Home Affairs on Monday to request that she should be paroled to attend at this House to take the oath. The Ministry rested on a memorandum which it said it had received from the British Home Office dated 15th July, indicating that if the hon. Lady came to the House it would not even then be possible for her, as a prisoner serving sentence, to take the oath. It seemed to me that, in view of what had been said in this Chamber recently, it was quite irregular for the Home Office to appear to be ruling on a matter which the Home Secretary had said clearly was not one for him but a matter for officers of the House.
I have since checked the matter with the Home Office, which told me that it was acting as messenger and that it had been advised by officers of the House that there was no precedent for a Member in prison coming to the House to be sworn in, and that the law and custom of the House were against the prospect of such a Member being able to be sworn in were he or she to arrive at the Table to do so. It seems extraordinary that one should be able first to say that there is 538 no precedent for a matter and then to say that by law and custom something cannot happen, because if there is no precedent there surely is no law and custom which can be applied to a unique situation.
The urgency of the matter is that representations are being made to Mr. Porter today—he has, in fact, been telephoned—asking whether he will authorise that the hon. Lady, if she is not to be paroled, should be brought to the House, if necessary in custody, to take the oath. Mr. Porter's reply this morning has been that he will consider the matter and give an answer later this afternoon. I have just had a message from the B.B.C. in Belfast that Major Chichester-Clark, Captain Long and Mr. Porter have been meeting, and it seems that the conclusion to which they come may well be dependent on the outcome of what you now say, Mr. Speaker, in reply to this point of order.
I submit that the matter is urgent today in that unless the hon. Member were enabled tomorrow to come to the House to be sworn in it would be too late. It is not true to say that the swearing in is now irrelevant since we are likely to go into recess on Friday. There is the possibility of a recall of Parliament, which we know about. There is the matter of asking Questions meanwhile, the possible effect on other functions of the hon. Lady as Member of Parliament, and certain other matters which you have said it is not the custom to refer to on the Floor of the House.
I am asking, Mr. Speaker, whether you will be prepared to rule unequivocally that if the hon. Member for Mid-Ulster can get here there will be no impediment to her being sworn in. If you feel unable to give an immediate Ruling, may I at least request that you give consideration to the question and rule later today, since the value of the Ruling with regard to the hon. Lady and the decision of the Northern Ireland Government will be gone unless it can be given by you today.
§ Mr. Speaker
The hon. Member for Paddington, North (Mr. Latham) has raised, with his customary courtesy, an aspect of the very serious and unique position that concerns a Member of the House.
539 I understand that at some time tomorrow we shall debate the whole question of the position of a Member of Parliament who finds himself or herself imprisoned on a criminal charge and most of what the hon. Gentleman has raised may be raised in that debate.
What has happened between the hon. Gentleman and the Home Secretary is no concern of Mr. Speaker. He must raise those matters with the Home Secretary and members of the Government.
All I can rule on, as I have done consistently, is the matter of order. I have set out the principle that governs the rules of the House, as far as the orders of the House are concerned, that Parliament cannot set itself above the law unless it chooses to do so by decision, and certainly not by decision of Mr. Speaker.
I must set out exactly what the position is on the issue of swearing. It is provided by the Parliamentary Oaths Act, 1866, that the oath shall be:solemnly and publicly made and subscribed … by every Member of the House of Commons at the Table in the Middle of the said House, and whilst a full House of Commons is there duly sitting, with their Speaker in his Chair…That provision cannot be set aside except by amending legislation.
A formal request by the House that one of its Members be temporarily released from imprisonment in order to take the oath would be entirely without precedent. That is a matter of fact.
As for whether I can rule on a hypothesis; Mr. Speaker has never ruled on hypotheses and the hypothesis that the hon. Member has put to me is a matter which the House would have to consider if the circumstances arose that those in charge of Miss Devlin asked whether she might come on parole to the House to take the oath. I cannot rule on that; I cannot rule on a hypothesis.
§ Mr. C. Pannell
On a point of order. I ask you Mr. Speaker, to consider one or two other points arising from the submission of my hon. Friend the Member for Paddington, North (Mr. Latham). I say without patronage, and he will understand this, that he has taken up this cause when he is comparatively new in the House. He will probably not know, although we all know, that no hon. Member in addressing the House can ever 540 pray in aid that he has been advised by the Clerks, because the Clerks are your servants, Mr. Speaker, as all officers of the House are your servants. I suggest that if any rather dogmatic ruling has been given and has influenced Ministers, unless it came through you, Mr. Speaker, that advice was improperly given.
With great respect, Mr. Speaker, you have not dealt with the narrow point. Assuming that the hon. Lady presented herself, it is not for you to ask her how she got here. Once she is here and she is standing at the Bar, it is not consonant with your power to ask how she got there. It does not matter whether there is a precedent. There would be no notes in Erskine May unless a few Speakers had made a few precedents, and it would be a dull Speaker who never got a note in Erskine May. If she presents herself at the Bar, it is not such a hypothesis.
All I am asking you to do, Mr. Speaker, is to agree to the submission that I am now making, without committing yourself, that if any Member were now to appear at the Bar to be sworn you would not ask, "How did you get here? Are you released from gaol? Are you on parole? How did you get through the Cenral Lobby?" You have no powers and you do not count outside the House, although inside you are all-powerful. If the hon. Lady presents herself at the Bar, you have no alternative but to call her to the Table to be sworn.
I will give you a precedent. [Laughter.] This is a serious business. I am prepared to keep the House on it for a long time and it would be better if hon. Members listened. On his election, Mr. Speaker Peel, one of the great Speakers of all time, said that he refused to allow the House by a stratagem of hon. Members opposite to keep Bradlaugh from taking the oath. On that occasion, the Leader of the House, who was named Hicks-Beach, rose on a point of order. Mr. Speaker Peel said, "The right hon. Gentleman himself has not been sworn yet", and he called Bradlaugh to the Table.
With great respect, and you know that I have great personal respect for you, Mr. Speaker, let me urge you to forget the Clerks. They do not have to set the precedents but only to give advice. I am asking you to agree that if the hon. 541 Lady appears you will have no recourse but to have her sworn. That is my view.
As soon as my hon. Friend told me that he intended to raise this matter and wanted some support, I looked up all the authorities I could find, and my opinion is as good as that of anybody else. I hope, therefore, that you will agree that what I have said is true. If you agree, you are not asked to do any more. The Home Office is quite prepared to invoke this country's taxation to maintain law and order in Northern Ireland and to send troops in jeopardy of their lives in Northern Ireland, and it has the power if necessary to follow the civilised practice of bringing a Member to the House.
I make one final point. It is without precedent. I hope that it will never occur again. We are in a curious position which might occur at any time, with a Member travelling abroad, for instance, that between the time of election and taking the oath a Member is taken into custody. The penalty of this is the disenfranchisement of a whole constituency of 60,000 or 70,000 people.
I am not saying and I do not say anything to condone anything the hon. Lady has done. The courts have dealt with her action. I do not detract from the offence and I express no opinion. I merely say that to disenfranchise a whole constituency for a period of six months, or whatever it is, is a serious matter. When she takes the oath, whenever it is, she will presumably collect the whole of her back salary for duties which she has been completely prevented from doing.
Those are the considerations. In the words of your illustrious predcessor, Mr. Speaker, when he said that he intended to stop the House from making a fool of itself, I hope that you will stop the House from making a fool of itself, that you will give way on my submission and leave it to the good sense of the Home Office, if there is any, to get in touch with the Parliament of Northern Ireland to right this wrong.
§ Mr. Speaker
The House is deeply moved by the submission of the right hon. Member for Leeds, West (Mr. C. Pannell), who has considerable experience of parliamentary matters. All of us remember the Bradlaugh case.
May I pick out only the serious issues which the hon. Member has raised? All 542 the Rulings of the House are made by Mr. Speaker. He accepts the responsibility. He is advised by the Clerks, but the Rulings are his. If the Rulings of this "dull" Speaker appear in Erskine May in the years ahead, what will be in Erskine May will be the Rulings that he has made on this issue.
Secondly, most of the arguments advanced by the right hon. Gentleman are matters not for Mr. Speaker but for the House of Commons. Mr. Speaker is as aware as the right hon. Gentleman of the disabilities under which the hon. Lady suffers because she is in prison on a criminal charge. Mr. Speaker can do nothing about that. It is for the House to decide whether the House can do anything about it.
What Mr. Speaker has said in his Ruling this afernoon is that he understands that the issues raised by the hon. Member for Paddington, North and by the right hon. Gentleman, himself a member of the Committee of Privileges, are to be discussed by the House some time tomorrow when the House must express its views.
Finally, Mr. Speaker is not prepared to rule on hypotheses. He can rule only on whether the hon. Lady can take the oath if, as the right hon. Member dramatically said, she stood at the Bar wishing to take the oath.
§ Mr. Michael Foot
Further to that point of order. Whereas several of these matters can be discussed in the debate tomorrow, may I submit to you, Mr. Speaker, two matters which should bear on the decision and which, I submit, require the matter to be dealt with even more urgently.
The first is that there is a precedent closer to the case before the House than any which has been mentioned. It is the case of Lord Cochrane in the year 1815. He was charged in the courts with an offence of fraud and was imprisoned on that count. But he was brought to the House and the Sneaker on that occasion insisted that Lord Cochrane should have the right, although he was not sworn in at the time, to present his case to the House. I would invite your attention to that precedent.
Secondly, in your Ruling, Mr. Speaker, you have said that no Speaker could rule 543 on a hypothesis. But it appears that somebody—not you, Mr. Speaker, and not, I assume, the officials of this House—has conveyed information to the Northern Ireland Parliament or some of their Ministers saying that even if the hon. Member for Mid-Ulster were released on parole she would not be able to take the oath in this House. That somebody, we do not know who, is ruling on a hypothesis, without your guidance, without the guidance of the officials of the House, and, I trust, without any intervention by the Home Office. We want to know who has given this ruling. If you could tell the House that there is no basis whatever for anyone to suggest that if the hon. Lady appeared in the House she might not be able to take the oath, and were so to rule, that would greatly clarify the situation and we might be able to resolve it before Parliament rises.
My hon. Friend the Member for Paddington, North has in my opinion done a service to every Member of Parliament who believes in liberty, by raising this matter. If, Mr. Speaker, you are not prepared to rule in the sense I have suggested so that the information can be conveyed to Northern Ireland on the authority of this House of Commons, I ask that you should rule on this matter later in the day so that the question of the rights of the hon. Member for Mid-Ulster should not be settled by somebody, we do not know who, in Northern Ireland who has no responsibility to this House, who has no authority to speak on Rulings in this House, and who has no authority to speak in this country.
§ Mr. Speaker
The hon. Member for Ebbw Vale (Mr. Michael Foot) and I seem to be at cross-purposes. I have ruled on this distressing problem from time to time. The rules that govern the House and the Rulings I have given are the only Rulings that matter. Whatever anybody has said to anybody else is a matter the hon. Gentleman must take up, not with Mr. Speaker, but with those whom he thinks have given advice. I can rule only as I have done. I have set out crystally clear, several times, the position about the taking of the oath, which must be in the House. I have said that I am not prepared to rule on hypo 544 thetical cases. If a case were to happen, then I would rule on it.
§ Mr. Michael Foot
May I trespass on your patience, Mr. Speaker, a moment further. Is it correct that it should be known to everybody that there is no basis whatever, on the foundation of any statement made by anybody in the House, for believing that if the hon. Lady were to present herself on parole she might not be able to take the oath?
§ Mr. Speaker
The hon. Gentleman is asking me to do what I have not done. I will not rule on a hypothesis.
§ Mr. Heffer
Further to that point of order. May I ask, Mr. Speaker, a very clear question? If the hon. Lady presents herself at the Bar of the House, will Mr. Speaker give a very clear Ruling that she can then take the oath in this House?
§ Mr. Speaker
The word "if" always introduces a hypothesis. I am not prepared to rule hypothetically.
§ Mr. George Thomas
On a point of order. Would you tell the House whether you consider that you have any authority vested in you at any time to refuse any hon. Member the oath at the Table of this House?
§ Mr. George Thomas
I will submit to you, Mr. Speaker, that I am not asking you to rule on a hypothesis. I am asking you to tell the House clearly and frankly whether you consider that you have any authority vested in you by this House to refuse an hon. Member the right to take the oath?
§ Mr. Speaker
The law is that the oath must be taken by a Member at the Table in the presence of the House and in the presence of Mr. Speaker.
§ Mr. Speaker
Noise will not solve any problems either in Northern Ireland or in the House of Commons.
§ Mr. McNamara
Surely the remedy is that the right hon. Gentleman the Home Secretary, as the Minister responsible—
§ Mr. McNamara
—who I believe was notified by my hon. Friend the Member for Paddington, North that this matter would be raised, should arrange for the hon. Lady the Member for Mid-Ulster to be able to present herself at the Bar of the House. On that occasion it would be for you, Mr. Speaker, to decide whether or not that Lady is in fact able to take the oath.
§ Mr. Benn
The last occasion on which a person purporting to be a Member sought to take the oath and was refused was myself, in 1961, when after having been elected in Bristol, South I returned to the House and sought to take the oath. The Speaker then told me, and made it clear in his Ruling in the House, that he was governed by a Resolution of the House that prevented my entering the Chamber. The Speaker made it absolutely clear on that occasion that he had no power save the power given to him by the House. There is no Resolution of this Parliament that gives you power to refuse to any hon. Member who appears at the Bar of the House the taking of the oath.
§ Mr. Speaker
The right hon. Gentleman is instructing me and saying what I have said before. I will repeat it. I am afraid that it is at present purely hypothetical. It is a matter which the House would have to consider if the hon. Member presented herself. [Interruption.] Order. Only one hon. Member should be on his feet at a time. I am dealing 546 with one point of order. This is exactly in accordance with the Ruling I have given.
§ Mr. Benn
The point which I am putting to you, Mr. Speaker, is simply this. Unless there is a Resolution of the House telling you not to receive a Member who wishes to take the oath, you have no power now—this is not hypothetical—to refuse an elected Member with a Writ of Return who comes to the Bar and seeks to take the oath. This is not a hypothetical question; it does not relate to the hon. Member in question. This is the law of Parliament. By what authority could such a Ruling be held to be hypothetical?
§ Mr. Speaker
It is clearly hypothetical. We are dealing with the unique problem of an hon. Member who is in gaol on a criminal charge. I am asked what I would do if she were released from gaol to come to Parliament to take the oath. I can rule on that only when it happens.
§ The Lord President of the Council and Leader of the House of Commons (Mr. William Whitelaw)
Further to the points of order which have been raised, Mr. Speaker. I recognise at once that this is a very important matter for the House of Commons and that my duty as Leader of the House of Commons is to every minority, even to minorities of one. Therefore, the position of the hon. Lady the Member for Mid-Ulster is exceptionally a concern of mine and of the House of Commons.
As to the general position of Members who find themselves detained in prison, I hope that we shall have an opportunity to debate the Motion on Privileges tomorrow night when, I understand, the circumstances of the hon. Member for Mid-Ulster can be debated.
Another issue has been raised which seems to be very much a matter for the House authorities and for you, Mr. Speaker. If before we have debated the matter and before the Committee of Privileges has had the opportunity of discussing it, the hon. Lady the Member for Mid-Ulster were to present herself at the Bar of the House to take the oath, the Government, as I understand it, have no authority to say whether she should take the oath. It would be a very sad day for Parliament if the Executive had 547 any such right. I know of no such right.
Whether the hon. Lady can present herself at the Bar of the House must, I imagine, be a matter for the Northern Ireland Government. I am prepared to discuss that with my right hon. Friend to discover what the position is. I hope that you will confirm, Mr. Speaker, because it is important to the House of Commons, that were the hon. Lady to present herself here the decision about whether she takes the oath is not something in which the Government have any standing. I do not know the precedents, but—and we wish to help you in this matter, Mr. Speaker—if the hon. Lady presented herself I hope that the House of Commons would carefully consider its position, because this is a very important matter affecting the Privileges and position of the House.
§ Mr. Speaker
Order. I hope that the House will realise that we are discussing a very grave issue. Whether we have dealt with the matter adequately or not—and we have important business ahead of us—it is in order for the hon. Gentleman who raised the matter to continue with his point of order.
§ Mr. Latham
All that I wish to do is to say how much I appreciate the statement of the Leader of the House. I understand how difficult it is for you, Mr. Speaker, to rule on hypothetical matters, but I draw your attention to the fact that somebody, in the name of this House, has ruled hypothetically, purporting, it would seem without your authority or that of this House, to pronounce on something in advance. Since the Northern Ireland Government have sheltered behind this hypothetical ruling, someone may be guilty of a very serious contempt of the House by making such a ruling without our knowledge.
§ Mr. Speaker
The rulings on this important matter are, as the Government of Northern Ireland know, the rulings which I have made from the Chair in the House. I am sure that the House notes the frank and forthcoming statement of the Leader of the House.