HC Deb 25 June 1981 vol 7 cc418-53 5.50 pm
Mr. David Winnick (Walsall, North)

I beg to move amendment No. 2, in page 1, line 5, leave out 'whether before or'.

The purpose of the amendment is to make the Bill such that it would contain no retrospective element. It would mean that anyone who was already imprisoned or detained, as the case may be, would not be affected should the Bill become an Act of Parliament.

The feeling always exists, certainly in the House, that retrospective legislation is not desirable. I cannot argue that it is unconstitutional as such, but it is interesting to note that retrospective penal legislation is forbidden by the European Convention on Human Rights.

I hope that I am not being too party political when I say that there are always objections from Conservative Members, certainly when they are in Opposition, to any form of retrospection. They say that it is undesirable and that the law should not be changed in such a way that it would apply to those who were involved before the passing of the Act.

It may be argued that since we are dealing with those who have been sentenced to imprisonment or detention we should not be over-concerned about this type of case. However, that is a weak argument, because the principle remains the same. I shall come back to that aspect in a moment.

We know, of course, that the purpose of the Bill is simply to prevent a hunger striker in Northern Ireland from standing in the Fermanagh and South Tyrone by-election.

Mr. Michael Mates (Peters field)

The purpose of the Bill is to prevent any properly convicted criminal serving a sentence who cannot carry out the duties of a Member of Parliament from being elected to this place, whether in Fermanagh and South Tyrone or elsewhere.

Mr. Winnick

The hon. Member for Petersfield (Mr. Mates) knows full well that had it not been for what happened in the Fermanagh and South Tyrone by-election and the fact that another contest is to take place, there would be no Bill. The hon. Gentleman does not disagree, so basically I was right in saying what I did.

It is perhaps relevant to look at the position of the people who received special category status in Northern Ireland prisons up to 1976. Up to that time—I believe that it was March 1976—special category status existed, and it was then decided by the Government of the day that it should be phased out. I shall not go into the question whether it was desirable to phase it out. That, nevertheless, was the decision that was taken some five years ago.

When my right hon. Friend the Member for Leeds, South (Mr. Rees)—the then Secretary of State for Northern Ireland—introduced the order to phase out special category status he said that no offence committed before the order would mean that the person concerned would lose his special status. The hon. Member for Epping Forest (Sir J. Biggs-Davison)—who, I believe, was one of the spokesmen for the Conservative Opposition on Northern Ireland matters—did not object. He made no comment on the fact that when special category status was being phased out in 1976 it was not done on a retrospective basis. Other right hon. and hon. Gentlemen may have objected to it, but not the Conservative spokesman for the Opposition at that time.

Mr. J. Enoch Powell (Down, South)

This is a matter on which I corresponded recently with the right hon. Member for Leeds, South (Mr. Rees), who positively informed me that no undertaking whatsoever was given that special category would not be withdrawn from those who were in possession of it at the time, when, for the future, it was phased out. Similar firm assurances have been given on the record by Her Majesty's Government that not only have they given no such undertaking but that they are not aware of any such undertaking in any form, having been given. That should be on the record.

Mr. Winnick

The right hon. Member for Down, South (Mr. Powell) cannot disagree with the fact that when the order was being introduced by the then Secretary of State for Northern Ireland it was done on the basis that the order would not be applied retrospectively. Perhaps he would care to check the Hansard record.

Mr. Powell

I am much obliged to the hon. Member. I thought that there was a confusion in what he said. I apologise if it was a misunderstanding—but it is a misunderstanding that others might share—to the effect that an understanding was given or existed that special category would not be withdrawn from those who possessed it at the time. Of course, the hon. Gentleman is quite correct in saying that its termination referred to those convicted for offences committed after the cut-off date. I am grateful to the hon. Gentleman for enabling me to get that matter clear on the record. It was on that point that he was good enough to allow me to intervene.

Mr. Winnick

This is one of the few occasions on which the right hon. Gentleman and I agree on a matter of substance. I shall refer to the right hon. Gentleman in a moment. At present about 350 prisoners in Northern Ireland continue to enjoy special category status. The right hon. Gentleman has asked questions on this matter. The Minister of State, Northern Ireland Office said on 12 February this year—I believe that it was in reply to the right hon. Gentleman: A retrospective alteration of those terms — the terms to which I have just referred— gives rise to far wider considerations".—[Official Report, 12 February 1981; Vol. 998, c. 977.] He quoted and prayed in aid the Prime Minister who, apparently, had said the same. Thus, what I am proposing is not very different—if at all—from what was done when it was decided to do away with special category status.

The principle is important. The House should always thoroughly check whether it is right, when bringing forward a Bill in such a hurry and panic—as now—that it should apply retrospectively. I urge the Committee not to accept the argument that because we are dealing with a particular type of person the principle is not important.

The principle remains important, and it is right that the Committee should give serious consideration to my amendment.

The Minister of State, Home Office (Mr. Patrick Mayhew)

The amendment would frustrate one of the principal purposes of the Bill. Disqualification for membership of or nomination for election to the House of Commons would apply only in respect of prisoners of the relevant category who were convicted and sentenced after the taking effect of the Bill. It would thus allow all those who are presently serving sentences in any prison in the United Kingdom or elsewhere—if, later this evening, the House passes the amendment that will enlarge the ambit of the Bill—to be nominated and elected unless such a person, after the Bill is passed, receives a fresh conviction resulting in a prison sentence of more than a year.

The amendment is unacceptable. Let us take as an example—it is not too far-fetched—the case of someone serving a sentence of 14 or 20 years. That eligibility would extend for many, many years. It is that class of person whom the House, by a substantial majority last Monday, showed that it did not wish to be made use of in that way.

6 pm

I listened with care to the hon. Member for Walsall, North (Mr. Winnick). I agree with his strictures on the general principle against retrospective legislation. I dispute that it is retrospective legislation. We are not dealing with a vested interest or right; we are dealing with a category of persons who could become Members of Parliament if nominated and elected but who are not being deprived of a right already vested by virtue of legislation whose impact and effect is retrospective.

The Bill imposes a deprivation not on prisoners but on those outside, who will no longer be able to pervert the electoral process by nominating a prisoner as a candidate simply for their own propaganda ends. For those reasons, I advise the Committee not to accept the amendment.

Mr. Kevin McNamara (Kingston upon Hull, Central)

It is not my intention to detain the Committee for long. The Government are missing the point of the amendment. Indeed, they are missing the point about the opposition to the Bill as a whole. The legislation will go against the principle of retrospection that we usually apply to our legislation. It also seeks to alter existing arrangements in a way that will give the terrorists the political victory that the Government are seeking to avoid. We discussed on Second Reading—I do not intend to go into further detail tonight—the extent to which the tidying-up process—as the Government regard the Bill—gives an enormous propaganda victory to the forces of violence.

The Bill is against tradition. My hon. Friend the Member for Walsall, North (Mr. Winnick) spoke about the special category prisoners still in Northern Ireland. A date was set, and an indication was given that someone convicted of an offence after a certain date would go to the H-blocks—they are probably the best prison in Western Europe—but that if someone was convicted before the said date he would be entitled to special category status. That was a clear sign that there would be no alteration of the position that existed at that time. The Bill takes away a right that someone had under the law. Whether that right should or should not have been given, whether abused or used correctly, or whether used by "Godfathers" outside for propaganda purposes, it was still something attached to his position and status. We are now taking away that right retrospectively.

I do not for one moment suggest that someone in the high command of a terrorist organisation, on either side of the dividing line with the Six Counties, will say "Oh dear, I shall not do that dreadful act because I may fail to be nominated as a Member of a Parliament". That will not be the heaviest matter on the scales when someone decides on a course of action. It may be as well if it were, but that is not very likely.

It is bad enough to give the terrorists a propaganda victory by saying that they can no longer stand for Parliament, especially when we have urged them to use the democratic process to achieve their aims, but to apply the legislation retrospectively is a foolish and ultimately dangerous course of action.

Amendment negatived.

Mr. McNamara

I beg to move amendment No. 4, in page 1, line 6, leave out 'and whether in the United Kingdom or elsewhere' and insert 'in the United Kingdom'. This is a probing amendment. I am not sure what the Government mean by the term "or elsewhere", which appears in the clause. It states A person found guilty of one or more offences (whether before or after the passing of this Act and whether in the United Kingdom or elsewhere), and sentenced or ordered to be imprisoned or detained indefinitely or for more than one year, shall be disqualified for membership of the House of Commons while detained anywhere in the United Kingdom". The term "or elsewhere" should be explained to the House. Where is "or elsewhere"? Under what circumstances will those who have been sentenced or ordered to be imprisoned or detained indefinitely or for more than one year be detained in the United Kingdom?

I do not understand the meaning of that term. The only possibility of its arising would be in the case of an extradition arrangement, or where someone has been convicted of an offence outside the United Kingdom but is brought to Britain to serve his sentence. Is that likely to be the case? I do not know, I do not understand the phrase "or elsewhere".

Mr. Mayhew

I understand the way in which the hon. Gentleman has moved the amendment, and the reasons for it. I can explain the point of difficulty quite simply. The amendment excludes from disqualification for membership of, and for nomination for election to the House of Commons, prisoners who were not convicted in the United Kingdom. It thus excludes persons sentenced in the Channel Islands or the Isle of Man who are sent to Britain to serve their sentences, as is often the case. It also excludes prisoners transferred to Britain at the request of one of our dependent territories, after being sentenced for a serious offence that carries a substantial term of imprisonment. That is not a large class of people. It probably numbers fewer than 50 in our prisons at any one time. That is where "or elsewhere" is.

There is another consideration. The hon. Gentleman knows that the Government intend to move an amendment later this evening to extend the provisions of the Bill to prisoners detained in prisons in the Republic of Ireland. If the amendment now under discussion were carried, its effect on the later amendment would be that the latter would extend disqualification only to those prisoners detained in the Republic of Ireland who had been convicted in the United Kingdom. It would not apply to prisoners in the Republic of Ireland who had been convicted there. Clearly, that would substantially undermine the purpose of extending the Bill to cover prisoners in the Republic of Ireland.

Mr. George Cunningham (Islington, South and Finsbury)

I understand the last point that was made by the Minister of State, but my hon. Friend's amendment was moved to improve the Bill as it now stands and not to take account of another amendment, which will be moved later in our proceedings. The Minister of State referred to the class that is intended to be covered. He said that it was extremely small. It consists basically of people who have been convicted in the Channel Islands and the Isle of Man and those who have returned to serve their sentences in this country under the Fugitive Offenders Act.

It seems a curious way to draft the instrument, if it is intended to cover two specific and narrow classes, to use words like "elsewhere" meaning elsewhere in the entire world. It obviously was not intended to cover anywhere else in the world; it was to cover the two specific classes referred to.

If the Committee will allow him, can the Minister of State help us a little more? Why, when the Government first drafted the Bill intending to include people convicted in the Channel Islands or the Isle of Man, did they exclude people convicted in the Channel Islands and the Isle of Man and imprisoned there? We shall come to that point more generally later on, but it would be useful to have a reply to that narrow point now. If, as they say they did, the Government intended to cover people convicted in the Channel Islands or the Isle of Man and held in prison in the United Kingdom, why did not they intend to cover people convicted in the Channel Islands or the Isle of Man and held there?

Mr. Mayhew

The reason for the way in which the Bill was initially drafted was that it is the normal practice for anyone serving any substantial sentence and convicted in the Channel Islands or the Isle of Man to be sent to this country. Therefore, it was not felt necessary specifically to embrace those islands in the ambit of that part of the clause. There is nothing more to it than that. It is desirable for the avoidance of doubt that matters should be expressed fully.

I shall expand on that a little, as the matter has attracted more interest. In Guernsey and the Isle of Man, persons sentenced to more than one year's imprisonment are transferred to this country to serve their sentence. In Jersey, those sentenced to more than three years' imprisonment are transferred here. In addition, people who have committed grave crimes in one of our dependent territories and who need to be kept in secure conditions may be transferred here to serve their sentence not under the Fugitive Offenders Act but under the Colonial Prisoners Removal Act 1884.

We are dealing only with people who are serving a sentence in a United Kingdom prison or, as it may subsequently be in the Republic, a prison in the Republic of Ireland. The wider scope of the Bill in terms of the place of sentence will in practice bring in only those who have been sentenced in the islands to which I have just referred.

Mr. Cunningham

The first reason given by the Minister is pretty daft. Most of the people sentenced in the Channel Islands and the Isle of Man to more than a year's imprisonment may come to the United Kingdom, but it is pretty silly to construct a Bill in such a way that if they happen to go to a prison in which people can be kept for more than 12 months and the practice to do so is altered, we have to go through the statute book amending it. However, that is an academic point, because it will be embraced in the later amendment that the Government are moving. I believe that it was a silly idea in the first place.

Dr. Brian Mawhinney (Peterborough)

The explanation of my hon. and learned Friend the Minister came somewhat as a surprise, because some of us felt that "elsewhere" was intended to cover the Republic of Ireland rather than the group of fewer than 50 people referred to. It was on the basis of that understanding, amongst other reasons, that some of us pressed for the Government amendment on detention. One accepts everything that the Minister said, but, so that there is no doubt in anyone's mind, can he confirm that "elsewhere", as well as covering those minor cases, will cover the Republic of Ireland?

Mr. McNamara

Confusion was confounded to a degree in what the Minister had to say. If "elsewhere" was "elsewhere", it would be also the Republic of Ireland. Therefore, one would not need to have the amendment standing in the name of the Secretary of State and some of his hon. Friends. However, if "elsewhere" was not "elsewhere", we have the British Isles or the Republic of Ireland. It seems to me that "elsewhere" is an all-embracing phrase, which goes beyond the British Islands—some of us might wish to refer to them nostalgically as the Celtic Islands—to other spheres and other areas.

6.15 pm

The Minister has not dealt with a matter that will come up for debate later on. If "elsewhere" covers the Republic of Ireland, how shall we confirm and certificate the fact that people have or have not been sentenced? What will be the form and order? How shall we establish whether we would regard such a sentencing as being part of a proper system of going about matters? At the moment, "elsewhere" can mean Heaven or Hell—I am not sure which. In view of the later amendment, I am certain that the phrase is not worth having, or that we should delete "United Kingdom" at this stage and put in the phrase that appears in the later amendment. British Isles or the Republic of Ireland". I shall not press my amendment to a vote, because I believe that the Bill is such nonsense anyway that one addition does not matter.

Amendment negatived.

Mr. Edward Lyons (Bradford, West)

I beg to move amendment No. 5, in page 1, line 8, leave out 'one year' and insert 'five years'.

The Second Deputy Chairman (Mr. Ernest Armstrong)

With this it may be convenient to take amendment No. 6, in page 1, line 8, leave out 'one year' and insert 'ten years'.

Mr. Lyons

This is a probing amendment, designed to elicit the reasons why the Government are so fixed upon a period of over one year rather than some other period.

If a person has been sent to a prison for a serious crime, it may seem self-evident that he should not be allowed to stand for Parliament. It may also be argued that because convicted prisoners are disqualified from voting while in prison they should also be disqualified from standing for Parliament while in prison. The contrary argument is that in a democracy it is not right to limit the voters' power to choose whom they want as their Member of Parliament.

This week, by a large majority, the House voted for the first proposition, but it was clear that there was unease on both sides of the House about the blanket nature of the prohibition proposed by the Bill. The Bill might catch people who, prior to 1967, could not have been disqualified because they committed a misdemeanour rather than a felony. We survived without difficulty when prisoners who committed misdemeanours and were imprisoned were not disqualified from sitting in the House.

One of the worrying things about the present drafting of the Bill is that someone might be disqualified from becoming a Member of Parliament when he had virtually finished his sentence and, were he to be elected for the majority of the remainder of Parliament, he could serve his constituents in the normal way.

The Bill's underlying purpose is presumably to ensure that anyone who has committed a grave crime cannot stand for election as or become a Member of Parliament. The question is whether major criminals are likely to be given sentences of just over 12 months. A man of principle could be sentenced for an offence that many people would not condemn him for, or for beliefs that may become accepted in a relatively short time, but a man serving more than five years' imprisonment is likely to have committed a serious offence and normally, although not always, one of violence.

The Government's wish to ensure that a person who has committed a serious offence shall not become an hon. Member would carry more weight within the general ambit of the Bill than a provision that the same should apply to someone sentenced, for example, to 13 months' imprisonment. It is difficult to believe that a person convicted of a serious offence would receive a sentence of only 13 or 18 months. The amendment invites the Government to consider a longer period.

It is possible that a person serving a six-year sentence would stand for Parliament just before he was released, but that is less likely if a long sentence has been given, particularly in view of the parole system, the likely changes in it, and remission. With remission, a 12-month sentence will last for only eight months--or less if the man has been in custody for a considerable time prior to sentence.

The Bill is presumably designed to prevent persons who have committed serious crimes from standing for election to the House, so its provisions should be aimed at that and at no other result. That is my aim in wanting to change the wording from "more than one year" to "more than five years". The suggestion does not undermine the Bill's basic principle. It is a compromise, and may have weaknesses, but I cannot understand why the Government want to stand firm on one year. It surely cannot be simply because that was the length of time for felonies prior to 1967.

The Bill would catch all who have committed murder. All sentences not defined in a term of years are already caught by the wording of the clause. We are dealing only with persons who are to be or have been sentenced to fixed terms of imprisonment. By introducing a provision that those with no defined sentence in terms of years shall be disqualified, it appears that people who have committed murders, in particular, will not be able to stand for or sit in Parliament. Then we come down from what amounts to life sentences to sentences of 13 months' imprisonment, so there appears to be a serious disparity.

Why have the Government picked on one year rather than a period designed to catch only serious criminals?

Mr. Mayhew

I am grateful to the hon. and learned Member for Bradford, West (Mr. Lyons) for the way that he moved his amendment. He was absolutely right when he said that it was not without weakness, but I understand entirely why he moved it. If one is frank, the same can be said about almost any formula that one might choose to meet the broad objects of the Bill, which were fully discussed earlier this week. I have never pretended that it was possible to meet fully the three objectives that one tries to meet in legislation—justice, practicality and doing what is necessary within a reasonably short time.

We adopted a period of 12 months in part because we consider that it would not be right to visit the sanctions of the Bill upon a prisoner serving a very much shorter sentence than that. The provision would then catch people who would not be out of the running for a significant time and who probably would not have been sentenced for even a mildly serious offence. In these matters one can speak only in the broadest generalities, as the hon. and learned Gentleman knows.

If one is talking of somebody sentenced in these days to 12 months' imprisonment, one is speaking of somebody who, as I tried to express it the other night, was at least fairly criminally culpable and who had been sentenced to a fairly serious term of imprisonment.

There is also the precedent of 12 months. I entirely take the hon. and learned Gentleman's point. Before 1967 it was possible to be in prison for longer than 12 months if sentenced for a misdemeanour and not be caught by the provisions of the Forfeiture Act, but 12 months seems to us to be about the right dividing line. It is to be observed that under the Forfeiture Act, if a person was guilty, albeit as a felon, of an offence for which he was sentenced to hard labour, any period of hard labour attracted the provisions of the Act.

I cannot give a more satisfying answer than to say that the line has to be drawn, and in our judgment a period five years would be much too long. It would then be possible for a whole constituency to be disenfranchised for what might be very nearly the length of a Parliament, which would be to defeat one of the principal objectives of the Bill.

The amendments would mean that the Bill did nothing to prevent the candidature of prisoners who had committed offences so serious that the courts had imposed what would be in these days a substantial sentence. Accordingly, although I acknowledge that there may be hard cases, and cases that may appear to be a little difficult to justify, if a line has to be drawn to meet those very unusual circumstances, a period of 12 months is about right. I am afraid that I cannot put it more satisfyingly than that.

Mr. Winnick

The Minister says that five years—10 years in my amendment—is not acceptable because constituents would be disenfranchised, but that does not deal with the most important issue of principle—whether the electorate wish to vote for a candidate. If they wish to vote for a person in prison they should be able to do so, knowing that he would have no qualification to sit in the House.

The Bill introduces such a major and, I believe. wrong element in the way in which nominations can be refused for election to the House, that I believe that the disqualifying term of imprisonment should be longer than 12 months. I should be willing to accept five years and ask leave to withdraw the amendment, but the Minister does not agree.

I cannot see the Bill as something apart from the hunger strike and the current situation in Northern Ireland, but in the wider context a person who has received a sentence longer than 12 months may be utterly convinced of and insist on his innocence. Let us take the example of a person who is so convinced of his innocence that he wants to be in a position to put his case to the electorate, perhaps in the constituency where he lived before his imprisonment. He would have been able to do so previously, even though his chances of being elected were remote. That could have been the position of George Davis, although he was serving a prison sentence longer than 10 years. I am illustrating the fact that we are again eroding the democratic right of a person, whether or not he is in prison, to stand for election to the House of Commons.

6.30 pm

My hon. Friend the Member for York (Mr. Lyon) said on Second Reading that if the Government gave in to the clamour of some of their more diehard Back Benchers on anti-trade union legislation—one hopes that it will not happen—under the Industrial Relations Act 1971 trade unionists, who are not criminals in the accepted sense of the word, could be sent to prison charged with conspiracy, and so on. Having been sent to prison, they would be keen to proclaim their innocence and to campaign against having been sent to prison.

It is interesting to note that the father of one of the leaders—I had better not say "the leader", because apparently his party does not have one—the hon. and learned Member for Bradford, West (Mr. Lyons) was sent to prison for a period of less than 12 months following the 1926 strike. There was no shame about it. Some would say that it was a matter of honour. But under provisions similar to those in the Bill, if that gentleman had wanted to stand as a candidate for Parliament he would have been disqualified from so doing if his term of imprisonment had been longer than 12 months. The Bill introduces such a major new element into our electoral law that if a person is to be disqualified from standing for election to the House of Commons he should be serving a longer term than 12 months.

Mr. Edward Lyons

I did not find the Minister's reply entirely satisfactory, although it was entirely courteous. Nevertheless, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Secretary of State for the Home Department (Mr. William Whitelaw)

I beg to move amendment No. 8, in page 1, line 10, leave out 'United Kingdom' and insert `British Islands or the Republic of Ireland'.

The Second Deputy Chairman

With this we may take the following amendments: No. 7, in page 1, line 10, leave out 'in the United Kingdom'.

No. 9, in page 1, line 10, after 'Kingdom', insert 'or the Republic of Ireland'. No. 10, in page 1, line 10, after 'Kingdom', insert 'or elsewhere in the British Isles'. No. 11, in page 1, line 10, after 'Kingdom', insert 'or elsewhere in the British Isles or the Republic of Ireland'.

Mr. Whitelaw

The reasons for this amendment were well rehearsed on Second Reading, and I do not propose to go over all that ground again. My hon. Friends urged upon me the need to make this amendment. I would certainly have accepted the amendments that they put down rather than table one of my own, but I was advised that their amendments were slightly defective. My amendment expresses in terms exactly what they want.

The purpose of the amendment is to extend the disqualification for election to, nomination for and membership of the House of Commons to cover persons imprisoned or ordered to be detained for more than 12 months in the Republic of Ireland. When we originally drafted the Bill I took the view that we were right to confine our attentions to those prisons within our control, particularly as the nomination procedure, which is important from the Government's point of view, and we believe right for the Bill, would be more easily carried through if it covered only prisons under our control. However, the feelings were so strong that I thought it right to give that point to my hon. Friends. I think we can rely on the help, in so far as they are able to give it, of the Government of the Republic. On that basis it is reasonable to make the amendment.

At the same time, we have, for completeness, in answer to a request made on Second Reading by the phrase "the British Islands" extended the Bill to the Channel Islands and the Isle of Man. I believe that the House as a whole, including those hon. Members who did not like the principle of the Bill, thought is sensible to include this provision. I am grateful to my hon. Friends for what they said at the time, and I hope that I have met the point that they made.

Mr. Roy Hattersley (Birmingham, Sparkbrook)

I have little to say about the amendment that I did not say on Monday. However, two or three things should be said, both about its contents and about the way in which it has been brought forward.

It is now clear that without the amendment the Bill would be nonsense, I want to make it plain to the Home Secretary that those of us who disapprove of the Bill in principle care not whether it is nonsense or not. I drew his attention to the absurdity of passing the Bill without this amendment simply because I believe that it is the first duty of the Government not to present unworkable Bills to the House. It is equally their duty, when they have discovered that Bills are unworkable, to report that fact to the House, rather than have the information dragged out of them like an aching tooth, which is what happened in the House on Monday afternoon.

The change that the Home Secretary has made makes the Bill no more acceptable in principle, but in some ways it may make it more workable in practice in achieving his objectives. It may make it possible for him to argue that the Government are being appropriately tough on the people of whom he disapproves, but I wonder whether it will lay the Government open to any less ridicule when the entire episode ends, when the by-election has taken place, with the nominee whom the Government fear not being put into the lists, but another nominee, whose candidature will be wholly legal even under the Bill, fighting in the same terms and in the same way as the Government are attempting to avoid.

I come now to the practicalities of the Bill. I suppose that I must accept that the Home Secretary is moving the amendment because feelings were so strong on Monday afternoon. The corollary of that is that had feelings not been so strong he would not have moved the amendment, and we should have had a Bill that was nonsense.

I am prepared to give the right hon. Gentleman credit for something that he has not admitted this afternoon, that had there not been a voice raised in favour of the amendment he would eventually have realised that to make his scheme work something like this had to be proposed. I understand why he was reluctant about it initially. We are now to have the extraordinary state of affairs that the Government of a foreign Power—admittedly a friendly Power, and I hope an increasingly friendly Power—have the ability to disqualify a man or a woman from standing for election in the United Kingdom.

The Home Secretary said that he was relying on the Government of the Irish Republic, in so far as it was possible for them to help, to provide the information necessary to enable disqualification to take place. I hope that, with the opportunity that the Committee provides for a speaker to address it more than once, the Home Secretary will tell us in some detail how he imagines the power will be exercised by the Government of the Republic and what procedures will take place when it is suspected that a nominee is not properly qualified.

What will happen when a returning officer has a suspicion that a nominee is a man who is sentenced under the terms of the Bill and is serving his sentence in the Republic? It is clear what would happen in the United Kingdom—undesirable though we would imagine it to be. When a man is incarcerated in a foreign jail, what does the returning officer do? How does he find out the information within the two days? Who asks for it and who provides it?

I see a little activity on the Conservative Benches. We always say that. We often say it with the Home Secretary, because we realise that he does not know this kind of thing until the information is spoonfed to him. [HON. MEMBERS: No."] Perhaps the Home Secretary has a reputation for command of detail that I have not recognised over the past few years. If that is so, I withdraw my allegation unreservedly. I am not insulting the Home Secretary. That would be out of order. I am describing him, which is wholly proper in our debates.

However the information comes to the Home Secretary, I hope that he will go into the detail of how the suspicion that a person is in prison in Ireland and thus disqualified from election is actually confirmed and the disqualification made legal.

If the man or woman involved chooses to challenge the disqualification, how will the United Kingdom court ensure that the information sent by a foreign Power about that persons's parliamentary status is appropriate, right, and correctly passed from one Government to another?

These are matters of some concern and consequence. I believe that for the first time in our history we are giving to a foreign Power the opportunity to determine who may or may not stand at a British parliamentary election. I believe that that is wrong in principle, just as I believe that the Bill is wrong in principle. Nevertheless, the details of how it will be worked out are essential if the Committee is to examine the matter properly. I hope that the Home Secretary will take an early opportunity to describe what those details will be.

Mr. Tony Marlow (Northampton, North)

I should just like to tell my right hon. Friend how pleased I am that the Government have brought forward this amendment, which I think deals with the problem that some of us were concerned about on Monday. I was very pleased that he made it quite clear that he was happy to receive amendments from the House and to discuss them.

I ask for an explanation of a small point. I notice that the Government amendment talks about the British Islands or the Republic of Ireland. I have heard the expression "British Isles", which I understand includes the Republic of Ireland. If we are talking about the British Islands, is that something different from the British Isles—and is Northern Ireland, which is not a complete island on its own, considered to be part of the British Islands?

Mr. McNamara

I wish to follow some of the points made by my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) in his gentle chiding of the Home Secretary.

It seems to me that it is not only a question of a foreign Power having a veto over the question of who should be a candidate in an election. There is more to it than that. There is now an accelerated timetable for nominations.

Let us take the example of a person born, say, in Penrith, who is serving a sentence of more than a year in the Republic of Ireland for some strange offence, such as smuggling contraceptives into the Republic. He seeks to stand for election in the United Kingdom. His nomination forms go through, because this is a great matter of civil liberties in the Republic, people want to establish a right, and so on. His nomination form therefore goes in correctly. The returning officer is a little suspicious, however, and wonders about the nomination. To whom does he go, and for what information? Does he go to the British Government and say that he believes that the person is a prisoner in the Republic? Do the British Government then contact the Government of the Republic, who contact the governor of the appropriate prison to find out whether the person is there, and for what purpose?

6.45 pm

A further important question then arises. In a country with a written constitution there is the question whether its Government would be entitled so to endanger the civil rights of a citizen of another country as to communicate that information to another Government. If the person concerned sought an injunction against the Government of the Republic to prevent their passing that information—if they had that information—to the United Kingdom Government and thence to the appropriate returning officer, what would the position then be?

The situation created by this proposal is nonsense. It depends upon two things. First, it depends upon good will and the proper procedures being followed to establish whether a potential candidate is in fact incarcerated, and has been rightly convicted and sentenced to a term of imprisonment or detained for a period that qualifies under the legislation. All that has to be got through.

A second very important matter arises in relation to the Government amendment, which demonstrates even further the nonsense of the case. The Home Secretary wishes to show himself to be tough and to give way to pressure from his own Back Benchers over the position of people convicted in the Republic of Ireland of what one would presumably describe as the equivalent of our terrorist offences. Other offences are covered, but basically the provision is aimed, as we all know, at people convicted of terrorist offences. It is, of course, possible—indeed, it is highly likely—that people could be convicted and sentenced in other countries for offences appertaining to the present distress in the Six Counties of Northern Ireland. They would not be caught by the Bill.

Let us take again our mythical citizen from Penrith. Let us suppose that he seeks to smuggle arms from the Republic of the United States to the Six Counties of Northern Ireland. He is convicted under United States law and sentenced to a period of imprisonment of 12 months or more. He would be allowed to be a candidate. I believe that nothing could be more emotive in the Irish and Irish-American situation than for a citizen of the Republic or of the Six Counties, imprisoned in the United States of America on a gun-running charge, to stand as a candidate in an election. There is nothing in the Bill to prevent that happening. This shows the complete and utter nonsense of what is being done in this legislation.

The same could apply in Australia, New Zealand or Canada. A person might be smuggling arms from Canada to the UDA. That is equally possible, and highly likely. Again, such a person would not be caught by the legislation. If we are to experiment in partial justice of this nature, the whole matter is shown to be the nonsense that it is. People in that situation would qualify and would be able to stand.

One could go even further. Our mythical man from Penrith might be a professional terrorist who supports the PLO or some other terrorist organisation such as GRAPO or ETA. He may commit an offence in Spain, Portugal, the Lebanon, Egypt or Israel. Yet he could still be a candidate. He is barred only if he has been sentenced in the Republic of Ireland. The original intention of the legislation was to discriminate not against people convicted of terrorism or against hunger strikers but against anybody sentenced to a period of imprisonment longer than one year. The effect of seeking to close this loophole in this way, however, is not only to give a propaganda victory to the IRA but to create a political farce, for that is what it amounts to.

If someone of Irish or United Kingdom citizenship is sentenced in the United States, he can be a candidate. The same applies if he is sentenced in Canada, Australia and elsewhere. In that respect, we have not closed the door. We have not even half shut it. In many ways we have created a bigger bogy than the one that we have tried to get rid of—a bogy that is more emotive, capable of raising more funds, and liable to cause more embarrassment to the Government.

Sir John Biggs-Davison (Epping Forest)

My hon. Friend the Member for Grantham (Mr. Hogg) has asked me to be brief, so that he can speak. I am tempted to protract my remarks, but I shall resist that temptation scrupulously.

The right hon. Member for Birmingham, Spark brook (Mr. Hattersley) could have avoided detaining the Committee by his boorish exhibition of discourtesies against my right hon. Friend the Home Secretary, who has responded to the desire from various quarters of the House to deal with the problem of prisoners without the immediate jurisdiction of the United Kingdom.

I welcome the amendment, which renders nugatory my own amendment, No. 10. Some hon. Members have asked about terrorists who are apprehended, tried and convicted beyond the jurisdiction of these islands. Some IRA men have committed outrages in other NATO countries, but I believe that such cases are few in number, if there are any at all, and neither the Government's amendment nor my own deals with such contingencies. However, my right hon. Friend may wish to say something about that.

Both amendments are confined to the Republic of Ireland and the United Kingdom. I have used the term "British Isles" in the conventional geographical sense and not in the strict sense of the definition. I mean the definition at present in force, although I understand that formerly the term "British Isles" comprehended the whole island of Ireland.

The Republic of Ireland has a unique relationship with the United Kingdom. It is within the common travel area, which also comprehends the Isle of Man and the Channel Islands, which have already been discussed. In addition, the Republic of Ireland and the United Kingdom are menaced by the same terrorism.

The right hon. Member for Sparkbrook asked how the requisite information would be obtained. I believe there to be the closest co-operation between the main part of the security forces in the United Kingdom and the Republic. In that respect the problem posed by the right hon. Gentleman was probably more theoretical than actual. No doubt my right hon. Friend will give an authoritative reply. I conclude by welcoming the amendment.

Mr. James A. Dunn (Liverpool, Kirkdale)

The Home Secretary introduced the amendment by saying that he was "advised". It is a pity that such advice was not given when the Bill was drafted, because it might not have been the nonsense it was when it was brought before the House on Second Reading.

In my opinion, the Bill was in default to the extent that it was open to ridicule. However, the amendment brings the measure back into the realm of common sense. I support the intention behind it, and if it goes to a vote I shall vote in favour of it. Before it reaches that stage, however, I should like to make a few comments about it.

In our discussions on earlier amendments we may have lost an opportunity to deal with the degree of offence that would disqualify a person. Perhaps we should have listed such offences in a schedule, although there may be difficulties about that, because of a recent decision by the House not to maintain a clear distinction between a misdemeanour and a felony. I am not an expert on these matters, but I understand the complexities and problems involved.

The amendment deals with a problem that has caused many people grave concern and offence. I am among those who felt that the way in which the candidate was chosen at the recent by-election, and the way in which the campaign was fought, caused a lot of offence. Some of my hon. Friends take the opposite point of view, based upon their appreciation of democracy. My opinion does not coincide with theirs, but I offer no apology for that, because I hold these views strongly.

Had the Bill contained a schedule of offences, some of the doubts that have been expressed would probably be resolved. In addition, some of my own doubts would be answered. I would be equally offended if someone were sentenced to 12 months' imprisonment for a civil offence because of non-violent opposition to something that was felt to be an imposition upon him.

My right hon. and learned Friend the Member for Dulwich (Mr. Silkin) recently warned that a prison sentence on conviction could determine whether at a subsequent date a person could qualify as a candidate. There could well be favoured sons who might catch the eye of those on the Bench passing sentence, and there could well be those who would not be regarded with such favour. To that extent, I have grave reservations about the 12 months sentence, as well as some of the consequences that might flow from the amendment.

There could well be problems in verifying whether a person was disqualified because of imprisonment in the Republic of Ireland. However, I do not believe that such problems would be as severe as some of my hon. Friends suggested. They object to this measure in principle, but I have never heard them object to the way in which undesirable aliens are refused entry into the United Kingdom because of an alleged or known offence, and that applies just as much to people coming from the Republic of Ireland or the United States.

People come into the United Kingdom who have been imprisoned in the past. They can be stopped on entry, and if the authorities feel that they are undesirable they can be sent back to their country of origin. Therefore, I cannot understand some of the objections that are now put forward about candidature in a parliamentary election within the United Kingdom to represent people of the United Kingdom.

The only veto that can be exercised by foreign Governments is that of a known conviction and imprisonment, which may disqualify someone under the provisions of the Bill. However, taking into account the point that I made about undesirable aliens, the challenge to the amendment is not as serious as some of my colleagues have tried to make out.

If the loophole had not been closed, ridicule would have been heaped upon the House, upon the Government and, indeed, upon the Home Office, resulting from the ill-advised draftsmanship of the Bill. Much worse than that, there could have been dire consequences for innocent people.

Therefore, belated though the amendment is, it is welcome.

7 pm

Mr. Mates

I am most grateful to my right hon. Friend the Home Secretary for having tabled the amendment. The right hon. Member for Birmingham, Sparkwood (Mr. Hattersley) was right to say that we shall depend upon the good will of the Republic of Ireland for the proper operation of the part of the clause that deals with the disqualification of people serving sentences in the Republic.

I do not suppose that any sovereign Government can, in advance, give a blanket guarantee that all will be well if and when the particular moment arises, but we have a very close relationship with the Government of the Republic of Ireland, and we have no possible reason in this House to doubt that if and when a request has to be made it will be answered promptly and in the most friendly fashion. No one can ask for more than that. There is, of course, an element of trust, and that is something that we must have.

The right hon. Gentleman also mentioned—as did the hon. Member for Kingston upon Hull, Central (Mr. McNamara) —that we are putting in the hands of a foreign Government the power to veto the qualifications for membership of this House. It is not so much a foreign Government, as a foreign judiciary. I am sure that the Irish judicial system is as independent of the Irish Government as our judicial system is of our Government. I cannot conceive that in passing sentence any judge in the Republic of Ireland would be influenced by the ridiculous concept that if the prisoner were given more than 12 months he could not in due course stand for a parliamentary by-election in a foreign country. I do not think that we need bother about that. I heartily welcome the amendment and commend it to the Committee.

Mr. Winnick

There has been no explantion of why the Bill was framed in the way in which it came before the House on Monday. If the Home Secretary is so keen on the amendment—as apparently he is—why was the matter not dealt with before Second Reading? Is it to be assumed that if my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) had not made his valid point, and if there had not been a clamour from Conservative Back Benchers, there would have been no support for the amendment proposed today by the Home Secretary?

One must work on the assumption that the Home Secretary read the Bill before Second Reading. He was perfectly aware of what has been described as a loophole. It seems strange that the Bill should have been presented to us in the form in which it appeared on Monday, if there was a feeling that it might require to be amended in the way that is now proposed. Surely the Bill should have been examined more thoroughtly beforehand. If the point at issue is so important, why was it not included in the Bill originally? I do not believe that it is such an important point; indeed, the amendment only serves to make the Bill worse that it is already.

Relations between the British Government and the Irish Republic have improved in the recent past. The Prime Minister has spoken about the talks that she had with the Prime Minister of the Irish Republic. She said that various matters were under discussion. Inevitably, the question that comes to mind is: what consultations have taken place on this issue with the Irish Government? As has been said, we are discussing here the involvement of a foreign Power.

Conservative Members sometimes give the impression that Ireland remains a sort of colony of the United Kingdom, whereas we are dealing with a completely independent country—a country that has been independent for many years. It has a special relationship with the United Kingdom. Its citizens can live here without restriction, and so on, I hope that that feature will continue for many years; indeed, I hope that it will be permanent. If we are to involve a foreign Power in a matter of this kind, the Minister concerned ought to tell us what consultations, if any, have taken place on it. The Second Reading of the Bill was on Monday. Was there consultation before Monday? If not, what consultation has taken place since Monday? No such informantion has been given to us.

My hon. Friend the Member for Kingston upon Hull, Central (Mr. McNamara) was right to give the illustration of those who gun-run for the IRA and who are detained in the United States. Why should not the United States be included in the amendment? I suppose that the answer AS that it is too large a Power to involve in a Bill of this kind. The assumption is that we can deal with the Irish Republic in this context, but not with the United States. If there were a loophole originally, it will remain, even if the amendment is passed, because although the clause will include the Irish Republic, it will not include other countries, such as the United States, where people could be held in prison who would be qualified to stand in British parliamentary elections. Obviously, there will still be a loophole in the Bill.

This is a panic measure. The Bill has not been properly looked at and, despite the proposed amendment, it remains as inadequate as it was on Monday.

Dr. Mawhinney

The worst aspects of the Opposition's attitude to the Bill are emerging in this short debate. They asked that a loophole be closed, and when the necessary amendment is brought before the House they complain that an amendment has had to be moved in order to close the loophole. That is an indefensible position to adopt.

Mr. McNamara

It is not a question of closing the loophole. We do not want the Bill at all.

Dr. Mawhinney

I shall come shortly to the comments of the hon. Gentleman, which are a further illustration of the Opposition's behaviour in the debate.

I congratulate my right hon. Friend the Home Secretary, who said on Second Reading that he would listen to the House and act accordingly. That is what he has done. That is why I am happy to have had the opportunity to sign the amendment that is before the Committee. The amendment will greatly strengthen the Bill. We have already been told by certain people that, had the loophole not been closed, they would have taken advantage of it in order to run a Provisional IRA candidate from Portlaoise. That would have made nonsense of the measure. Obviously, the amendment is to be welcomed.

The amendment is realistic. After listening on Monday to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) and after listening today to the hon. Member for Kingston upon Hull, Central (Mr. McNamara) one might be forgiven for thinking that they live in an academic world that does not impinge on the realities of life. The reality is that the vast majority of people in this country want the Bill to be passed. They want to see the loophole closed, because they are offended and outraged by the fact that people who are dedicated to destroying the democratic foundations of this country—and who do not hesitate to use violence, terror and the bomb—should be permitted to be involved in the democratic process and to seek representation in this House, which they despise.

Mr. Winnick

The hon. Gentleman spoke about: the majority of the people wanting the Bill. He may be right. he may be wrong. Perhaps all the difficulties have not been explained to the majority of people. Does he not accept that, after what has happened in the past 12 years, it is likely that the majority of people in Britain want to see a different future for the Six Counties from that which the hon. Gentleman wishes to see?

Dr. Mawhinney

The hon. Gentleman will have an opportunity to argue his case if he cares to join in the debate next week.

The hon. Member for Kingston upon Hull, Central argued that there was no distinction between the Republic of Ireland and any other country, and that what applied in the amendment to the Republic ought in all conscience to apply to any other country. That shows the lack of reality and unwillingness to face facts that characterised his contribution.

The amendment is necessary because the Republic of Ireland recognises politically motivated activity. It is not possible to extradite from the Republic to the United Kingdom anyone who stands up in a court in the Republic and says "My Lord, I did it for political reasons". He is immediately protected. In that sense, the South grants to those people a measure of political status which we do not.

If that were not the case, and if 60 years of history did not show that the relationship between some of the people in the Republic and some of the people in the North was the basis for terrorism, and if the border did not exist as a safe haven for people who commit crimes in the North and then disappear across it, only then might the argument that the hon. Member for Hull, Central was making have some validity. Because he ignores all the realities of life, his argument has no validity.

I appreciate the prompt way in which my right hon. Friend has responded and moved the amendment, and I give it my fullhearted support.

Mr. James Wellbeloved (Erith and Crayford)

I wholeheartedly support the Home Secretary and the amendment. I congratulate him on the speed with which he responded to the expression of opinion in the House earlier this week.

I ask the people who have criticised the Home Secretary for moving the amendment to cast their minds back to the time when they were Ministers in a previous Administration, or supported that Administration, to see how many Government amendments they moved to correct faulty legislation. No one who has been in that position should criticise the Home Secretary for responding so promptly and sensibly to the will of the House.

The old argument has been advanced that the Government are moving the amendment to try to save themselves from embarrassment. That is not so. The measure is necessary to deal with an affront to the people of this country. The affront arises from the fact that people who have been convicted of crimes associated with the murder of British soldiers should have the right to stand for election to this Parliament. There is no question of saving the Government or anyone else from embarrassment. The embarrassment should be felt by those who do not support this attempt to eradicate that affront and the dishonouring of soldiers who have given their lives.

7.15 pm

Various dodges have been suggested for circumventing the will of the House in supporting the amendment and passing the legislation. I have no doubt that members of the IRA will draw comfort from some of those suggestions. They may not have thought of them. Gunmen do not always have an endowment of brains as well as violence. No doubt they will read our debate with interest and welcome the dodges that have been suggested to them for circumventing the law.

My right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) spoke about foreign Powers. The Republic of Ireland is a unique foreign Power. Its citizens have the right of entry and abode in the United Kingdom and, arising from that right, the right to stand for election. If my right hon. Friend really believes that the Republic of Ireland should be treated like any other foreign country he should take that argument to its logical conclusion and say that the right of entry and abode and the ability to stand for election should be removed from citizens of the Republic of Ireland. I know that he will not, and we all know why. If he argues in that way he should take the argument to its logical conclusion and withdraw those rights.

I do not view the Republic of Ireland as being a foreign Power in the same way as I view all other countries. There is a unique historical link between the two countries. There are sound reasons why we should not treat the Republic as a foreign Power and why we should look to the Government of the Republic of Ireland for the fullest co-operation in the operation of the Bill and in giving effect to the amendment. My belief is that we shall get it.

My hon. Friend the Member for Kingston upon Hull, Central (Mr. McNamara) said that the Bill and the amendment were complete nonsense. I do not believe that; nor will many people in the working men's clubs and pubs. We are seeking, with our best endeavours, to produce a law that makes it as difficult as possible for murderers of British soldiers, and those associated with such murderers, to stand for election to the House of Commons, and I hope that the amendment succeeds. Those of us who want the Bill to succeed will be here. Where are those who, earlier this week, seemed to erect a great principle? Are they willing to defend that principle a few days later?

Mr. Ivan Lawrence (Burton)

As everyone who has spoken, apart, of course, from the hon. Member for Kingston upon Hull, Central (Mr. McNamara) has been in favour of the amendment, I did not propose to speak on it, but the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) has provoked me. I thought that his outburst was typically graceless, cocksure and arrogant, and I am happy that the hon. Member for Erith and Crayford (Mr. Wellbeloved) put his right hon. Friend in his place.

Four benefits come from the amendment. First, the country can see the degree of silliness to which the Opposition Front Bench spokesmen descends. Perhaps it will underline the fact that in matters as important as this we do not have to take his words with any great seriousness.

Secondly, the opportunity afforded by the amendment enables me to say that the country can feel confident with my right hon. Friend the Home Secretary in charge of affairs. The speed with which he has responded to the requests made earlier this week does him great credit. It will be a substantial cause for confidence in the country that the Home Office is in the right hands.

Thirdly, the amendment underlines the fact that both Britain and the Republic of Ireland are fighting the same battle. We are together. To some extent, I share the feeling that we should be completely in charge of our own destiny, but in this fight it may be no bad thing that there should be a legislative provision showing that Britain and Southern Ireland are together.

Fourthly, the amendment underlines the absurdity of the situation that someone who is not a British citizen can stand for election to the British Parliament. I hope that it will be realised from Second Reading and from today's debate that we reflect the view of a large proportion of the population in thinking that this situation is absurd. It is grotesque that any Tom, Dick or Harry from any country in the world can seek to be elected to this Parliament. Indeed, the situation is so absurd that one can only marvel that previous Parliaments have not put it right. I regret that the Bill does not put it right, but I understand that that is part of a wider question. I hope that my right hon. Friend will bear that in mind when he considers the reform of the whole situation.

Mr. Nick Budgen (Wolverhampton, South-West)

Does not my hon. and learned Friend agree that the situation is all part of the major mistake that the Government made in not being prepared to accept the concept of allegiance in the British Nationality Bill and in this Bill?

Mr. Lawrence

I accept that as a matter of practicality it is absurd.

Mr. McNamara

Does not the hon. and learned Gentleman realise that the majority of prisoners in Port-laoise come from Northern Ireland?

Mr. Whitelaw

I am grateful to my hon. Friends for their support and for their remarks about the immediate action that I took in relation to what was proposed on Second Reading. Naturally, I am particularly grateful to the hon. Member for Liverpool, Kirkdale (Mr. Dunn), and to the hon. Member for Erith and Crayford (Mr. Wellbeloved), who has explained that he has had to leave the Chamber for a while.

I agree with many of the remarks of the hon. Member for Kirkdale. He was characteristically generous in his support for what I am doing. I agreed with his other points, although some of them went wide of the amendment. Nevertheless, they were of value. Obviously, I agreed with much that the hon. Member for Erith and Crayford said, though I should not have said it in quite the way that he did because it would not have been like me to do so. However, he said it, and that is a matter for him.

I have been asked why the amendment had to be brought forward today and why it had not been considered before Monday. I was first charged with taking a Bill through the House in 1962. Since then I have been making changes and amendments to proposals that have been found, in some way, to be wrong. If, in 1981, I have had to make another change, hon. Members should realise that there is nothing new in that. I do not find that particularly surprising. What would be the point of Parliament if hon. Members could not sometimes prove themselves right, and Ministers wrong? Is that not satisfying? I do not know why some right hon. and hon. Members mind that they have been proved right and that I have been proved wrong. If I have given them a little satisfaction, that is splendid.

I come now to some of the important matters of detail that have been raised. My hon. Friend the Member for Northampton, North (Mr. Marlow)—who is not in the Chamber—asked about the term "British Islands". I understand that the "British Islands" is defined in the Interpretation Act 1978 as meaning the United Kingdom, Channel Islands and the Isle of Man. The British Isles is not so defined, and it is not clear whether the term would include the Channel Islands and the Isle of Man. In order to satisfy the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), I should add that I received such detailed advice from the Box. Naturally, the right hon. Gentleman would not expect me to carry such information in my head.

I accept that the point about nominations is important. It was one such consideration that led me to a conclusion that I now accept to have been wrong. The position is that the returning officer is obliged to make the best judgment that he can on the facts available. Imprisonment is a matter of fact, not of opinion. If he is in doubt, even after he has made inquiries, he will be obliged to allow the nomination to stand. An invalid nomination can be disqualified after the election. If the returning officer makes a mistake in the other direction—which would seem unlikely—and disqualifies a valid candidate, an election petition can be presented after the election.

I deal next with the procedure by which returning officers can satisfy themselves. The Home Office will make the administrative arrangements—as regards prisons in the United Kingdom—to ensure that, as far as possible, information is available to returning officers from the United Kingdom prison authorities or through the Home Office.

I should point out to the Hon. Member for Walsall, North (Mr. Winnick) that information was properly given to the Government of the Republic, and they knew that we would introduce this amendment. In order to satisfy the hon. Gentleman still further, I should add that that information has been given since Monday. Therefore, those concerned have been properly informed. In such cases the returning officer would naturally contact the Home Office, which would contact the Republic of Ireland. Wherever it was reasonably possible, information would be readily given. That is a satisfactory administrative way of proceeding.

If some hon. Members feel that we should go further, they should bear in mind the difficulty of getting an answer, given time differences all over the world. That is a sensible reason for confining the provision to the Republic of Ireland. I realise that the hon. Members for Kingston upon Hull, Central (Mr. McNamara) and for Walsall, North do not like the principle of the Bill. They will seek to cast doubts on the amendment. However, the debate has shown that those who believe that the Bill is right, such as the hon. Member for Kirkdale and the hon. Member for Erith and Crayford, and my right hon. and hon. Friends, accept that this is a sensible amendment.

I am grateful to all those who have helped me, to put right something that was initially wrong. If I bear the responsibility for being wrong initially, I can at least say that we have now improved the Bill. I hope that the Committee will accept the amendment.

Question put, That the amendment be made:

The Committee divided: Ayes 164, Noes 38.

Division No. 229] [7.28 pm
Alexander, Richard Lee, John
Alton, David Le Marchant, Spencer
Ancram, Michael Lennox-Boyd, Hon Mark
Arnold, Tom Lewis, Kenneth (Rutland)
Atkinson, David (B'm'th,E) Lloyd, Peter (Fareham)
Baker, Kenneth(St.M'bone) Loveridge, John
Beaumont-Dark, Anthony Lyell, Nicholas
Beith, A. J. MacGregor, John
Benyon, Thomas (A'don) McNair-Wilson, M. (N'bury)
Berry, Hon Anthony McQuarrie, Albert
Best, Keith Major, John
Bevan, David Gilroy Marlow, Tony
Biggs-Davison, John Mates, Michael
Blackburn, John Mawhinney, Dr Brian
Boscawen, Hon Robert Maxwell-Hyslop, Robin
Boyson, Dr Rhodes Mayhew, Patrick
Braine, Sir Bernard Meyer, Sir Anthony
Bright, Graham Mills, Iain (Meriden)
Brinton, Tim Mills, Peter (West Devon)
Brooke, Hon Peter Mitchell, David (Basingstoke)
Brown, Michael(Brigg & Sc'n) Mitchell, R. C. (Soton Itchen)
Bruce-Gardyne, John Moate, Roger
Budgen, Nick Molyneaux, James
Butcher, John Moore, John
Cadbury, Jocelyn Morgan, Geraint
Carlisle, John (Luton West) Morrison, Hon C. (Devizes)
Carlisle, Kenneth (Lincoln) Morrison, Hon P. (Chester)
Chapman, Sydney Murphy, Christopher
Clark, Sir W. (Croydon S) Myles, David
Clarke, Kenneth (Rushcliffe) Neale, Gerrard
Colvin, Michael Needham, Richard
Cope, John Newton, Tony
Cranborne, Viscount Page, John (Harrow, West)
Dean, Paul (North Somerset) Page, Rt Hon Sir G. (Crosby)
Douglas-Hamilton, Lord J. Page, Richard (SW Herts)
Dover, Denshore Paisley, Rev Ian
du Cann, Rt Hon Edward Parker, John
Dunlop, John Parkinson, Cecil
Dunn, James A. Patten, Christopher (Bath)
Dunn, Robert (Dartford) Pattie, Geoffrey
English, Michael Penhaligon, David
Eyre, Reginald Powell, Rt Hon J.E. (S Down)
Fairgrieve, Russell Prentice, Rt Hon Reg
Faith, Mrs Sheila Proctor, K. Harvey
Fenner, Mrs Peggy Roberts, Wyn (Conway)
Fisher, Sir Nigel Roper, John
Fletcher-Cooke, Sir Charles Ross, Stephen (Isle of Wight)
Fox, Marcus Ross, Wm. (Londonderry)
Fraser, Peter (South Angus) Rossi, Hugh
Garel-Jones, Tristan Shaw, Giles (Pudsey)
Goodhew, Victor Shaw, Michael (Scarborough)
Goodlad, Alastair Shepherd, Colin (Hereford)
Gow, Ian Shepherd, Richard
Gower, Sir Raymond Shersby, Michael
Greenway, Harry Sims, Roger
Griffiths, Peter Portsm'th N) Speed, Keith
Hamilton, Hon A. Speller, Tony
Hampson, Dr Keith Spicer, Michael (S Worcs)
Hannam,John Sproat, Iain
Harrison, Rt Hon Walter Stanbrook, Ivor
Havers, Rt Hon Sir Michael Stanley, John
Hawkins, Paul Steel, Rt Hon David
Hawksley, Warren Steen, Anthony
Heddle, John Stevens, Martin
Hill, James Stradling Thomas, J.
Hogg, Hon Douglas (Gr'th'm) Tapsell, Peter
Howell, Ralph (N Norfolk) Taylor, Teddy (S'end E)
Hunt, John (Ravensbourne) Thomas, Rt Hon Peter
Jopling, Rt Hon Michael Thompson, Donald
Kellett-Bowman, Mrs Elaine Thorne, Neil (Ilford South)
Kershaw, Anthony Townsend, Cyril D, (B'heath)
King, Rt Hon Tom van Straubenzee, W. R.
Kitson, Sir Timothy Viggers, Peter
Knight, Mrs Jill Waddington, David
Lang, Ian Wakeham, John
Langford-Holt, Sir John Waldegrave, Hon William
Lawrence, Ivan Warren, Kenneth
Lawson, Rt Hon Nigel Watson, John
Wells, Bowen Wrigglesworth, Ian
Whitelaw, Rt Hon William Young, Sir George (Acton)
Wickenden, Keith
Wilson, Gordon (Dundee E) Tellers for the Ayes:
Winterton, Nicholas Mr. Carol Mather and
Wolfson, Mark Mr. Selwyn Gummer.
Atkinson, N.(H'gey,) McNally, Thomas
Campbell-Savours, Dale Maxton, John
Canavan, Dennis Newens, Stanley
Cook, Robin F. O'Halloran, Michael
Cox, T. (W'dsw'th, Toot'g) Orme, Rt Hon Stanley
Cunningham, G. (Islington S) Pavitt, Laurie
Dalyell, Tam Richardson, Jo
Deakins, Eric Ross, Ernest (Dundee West)
Dixon, Donald Skinner, Dennis
Ennals, Rt Hon David Snape, Peter
Field, Frank Soley, Clive
Freud, Clement Stallard, A. W.
Graham, Ted Stoddart, David
Hamilton, W. W. (C'tral Fife) Summerskill, Hon Dr Shirley
Haynes, Frank Taylor, Mrs Ann (Bolton W)
Heffer, Eric S. Thomas, Dafydd (Merioneth)
Howells, Geraint Wainwright, H.(Colne V)
Johnston, Russell (Inverness)
Jones, Dan (Burnley) Tellers for the Noes:
Kerr, Russell Mr. Kevin McNamara and
McKelvey, William Mr. David Winnick

Question accordingly agreed to.

Mr. Douglas Hogg (Grantham)

I beg to move amendment No. 12, in page 1, line 12, at end insert— 'A person shall not be disqualified under this section until after the determination by any competent court of appeal in the United Kingdom or elsewhere in the British Isles or in the Republic of Ireland of any appeal made by any such person against any conviction or sentence as is mentioned above.'. The purpose of the amendment is not to frustrate the objectives of the clause, which I strongly support, but to cure an injustice that the clause will create.

The question that the Committee should ask itself is whether it is right to impose disqualification upon a person whose conviction may subsequently be found to have been unsound. A related question is whether it is right to impose disqualification on someone whose sentence is subsequently judged to be excessive. Those are two important questions that the Committee must try to resolve.

Simply to pose the questions as I have and to apply to their resolution the ordinary principles of justice and common sense to which the Committee would like to adhere suggest the sort of answer that the Committee should give.

As a general proposition, it cannot be right, by our statute law, to disqualify persons whose convictions are subsequently found to be unfair, or persons whose sentences are subsequently judged to be excessive. Those general propositions have even greater effect in the context of Northern Ireland, where many persons are tried by the special procedure before a single judge, sitting without a jury. It is an important safeguard for the defence of such persons that they should be able to appeal. It would be monstrous if those who appealed successfully should find themselves disqualified from standing for Parliament.

I accept that one cannot judge such questions exclusively by reference to general considerations. One must always temper those considerations by considera-tions of compelling political necessity or expediency. Therefore, the question that has to be asked is whether there are compelling reasons of political necessity that outweigh the general propositions that I have outlined. I do not believe that there are such reasons.

I accept that in a small number of cases people will appeal after conviction and, during the process of appeal, will stand for Parliament, but we have to ask whether that is such a terrible thing. If the appeal fails the disqualification will operate at the moment of failure and we shall be back to the pre-1967 situation. We shall be doing no more than reverting to the Forfeiture Act 1870 proceedings.

I am also not greatly concerned about the argument of delay that has been put forward by a number of hon. Members who are worried about the effect of the amendment. I do not believe that as a general rule courts will delay the hearing of appeals. They are aware of the importance of the issue and I am sure that either by a general direction issued under the practice directions or by application of rules to particular cases the hearing of appeals will be expedited to prevent undue delay.

The other matters that concern some hon. Members is what will happen if people appeal out of time and whether that process could be used to frustrate the clause. I do not believe that that will happen. The amendment deals only with appeals, and before an appeal can be an appeal within the meaning of the amendment it must be valid. It will not be valid unless it is brought within the relevant period, which I think is six weeks, or leave to appeal has been granted, and leave to appeal will not be granted in spurious or frivolous cases. We are dealing only with cases that can be properly construed as appeals. It will be difficult for persons who apply to appeal out of time simply to be relieved from the consequences of the clause.

7.45 pm

In any case, what I am contemplating is not so different from what my right hon. Friend the Home Secretary is already contemplating in the clause, which provides that disqualification does not bite until conviction, but there is nothing to prevent a man charged with an offence being nominated for election and, subsequent to the nomination, being convicted and disqualified. The disqualification will operate at the moment of conviction. All that I seek to do is to postpone that moment by a little, so that disqualification operates at the moment when the appeal is finally determined.

The general proposition in favour of the amendment is obvious. Therefore, we have to ask whether there are any good reasons of compelling political necessity that should cause us to disregard those general propositions. We must always bear in mind that our policies in Northern Ireland are judged on a wider stage, particularly in North America, and that we should not, by our statute law, impose limitations that we cannot or will not justify.

There are only two competing views on the amendment. Either we say that the situation is unjust and, because it is unjust, we shall have the amendment, or we say that the situation is unjust, but, though it is unjust, we shall not have the amendment because of compelling political necessity. We have to agree that the position is unjust, and I do not believe that there are arguments of compelling political necessity. I hope that my right hon. Friend will accept my modest proposal.

Mr. Mayhew

I must begin my consideration of the amendment moved with such clarity by my hon. Friend the Member for Grantham (Mr. Hogg) by looking at the timetable provided for appeals, so that we may be clear what time scale we might be concerned with if we accepted the amendment and provided that the Bill's provisions should not bite upon those who are nominated for election having been convicted of an offence and sentenced to more than 12 months' imprisonment, those who have been sentenced before election, or those who, as sitting Members, are convicted and sentenced to a term of imprisonment of more than 12 months.

My hon. Friend will know, though others may not, that every convicted prisoner has a statutory right of appeal within a stated time limit. In England, Wales and Northern Ireland, the period is 28 clays. In Scotland the period differs according to the mode of trial.

That is only the time scale for an appeal at first instance. Rightly, in nearly every case there is the right to go higher up the appellate ladder. At any point during the time when a sentence is being served it is open to a sentenced prisoner to apply for leave to appeal out of time. Although we have this structure of time within which one must lodge an appeal, followed by the processes of appeal, which are not always quick and which cannot always be expedited—I agree that in proper cases courts try their best to expedite an appeal—there arises the question whether one is to pay attention to someone who has applied for leave to appeal even though the time in which he should do so has long expired.

Mr. George Cunningham

The hon. Member for Grantham (Mr. Hogg) dealt with that point.

Mr. Mayhew

What my hon. Friend said was that within the meaning of his amendment, by which think he probably means within his meaning or intent, an appeal would be a relevant appeal only if it were a valid appeal. Where is the principle that lies behind that? We allow people to apply for leave to appeal out of time because we recognise that circumstances my arise in which new evidence has come to light or a new factor has arisen that warrants an appeal and gives a reasonable prospect, of an appeal being allowed. One can at any rate get an appeal on its feet.

If it is thought right that in this context, we should make the exemption, within time, why should we deny it to someone who claims that he has found grounds for appeal, albeit out of time? One has to recognise the extent of the time scale with which we are dealing.

Mr. Douglas Hogg

I am sorry to go on about this matter. We are dealing with a situation in which the ordinary appeal time has expired. Until leave to appeal has been given there is not an appeal before the court, and the relief afforded by my amendment does not operate.

Mr. Mayhew

If someone has applied for leave to appeal, I do not read my hon. Friend's amendment as exempting from its ambit the relief that he seeks. I do not believe that if this were incorporated into the Bill, it would be clear that there would be excluded from the relief that this amendment would confer a prisoner who has applied in proper form for leave to appeal out of time.

One can take the case of someone who has not necessarily applied for leave but has lodged an appeal. I take the case of someone who is then nominated. That person will say that he agrees that he is serving a sentence of more than 12 months but that he must be allowed, no matter what the nature of the offence for which he has been convicted, to be nominated, because in a few weeks' or months' time, or perhaps more than a year's time, the processes of justice will work and he may be acquitted. That imports into our electoral procedures a harmful and incongruous degree of uncertainty, to put it no higher.

If we are talking about disqualification for election to the House and membership of the House, the same point applies. If we think it right—hon. Members have to accept the principle that was accepted on Second Reading—to exclude someone who has been convicted and given a sentence of the type with which we are concerned and on which the Bill bites, it cannot be right to import this degree of uncertainty simply because there may be an acquittal. The assumption has changed. Until we are convicted, the assumption is that we are innocent. Once we are convicted, the assumption is that we are guilty.

I turn to the high water mark of the case so attractively made by my hon. Friend. In the case of someone who is sitting as a Member of the House, the penalty is more dire. He is tipped out of his seat. He is tipped out of his job. It can be said that the consequences affect more people than are affected by the application of the Bill to somebody who is seeking to be nominated or elected. That has to be faced. It is not, however, all one way. The Forfeiture Act 1870 presented exactly that pattern. Disqualification under the 1870 Act, to the extent that it disqualified from sitting and voting in this House and being elected to the House, operated straight away upon conviction.

We must test these provisions, as we must test an amendment, against a hypothetical case. There might be someone who is now a sitting Member. At the time he was elected he was somebody who was not convicted. He was somebody charged with an offence of terrorism. He was somebody who had not yet been convicted. There was no bar either to his nomination or to his election. Shortly after his arrival in the House, he is convicted and sentenced, say, to a term of imprisonment of five years. Is it really what we desire, having regard to the principle accepted on Second Reading, that such a person should remain as a Member of the House until such time as the ultimate of the processes of appeal has been reached and determined? That is one view. For that period, which may extend to more than a year, that—

Mr. Cunningham

Innocent man.

Mr. Mayhew

No. Not that innocent man. In law, the assumption is that he is a guilty man because he has been convicted. The constituency for that period will be disfranchised. That is the practicality. That type of case can arise.

One has to acknowledge, facing the situation in Northern Ireland, that it is not possible, while seeking to remedy an abuse of the nature of that with which we are dealing, to serve completely the interests of justice and, at the same time, to serve completely the interests of practicality and the interests of speed. I acknowledge that there can arise from the Bill, as constructed, a hard case. I invite my hon. Friend to consider, however, the fact that there cannot arise a very hard case for a whole constituency that would be disfranchised for a period of many months and, perhaps, a year, in the circumstances that I have suggested. Twelve months is too long to disfranchise a constituency.

My hon. Friend has been fair in arguing his case. I concede that the last point that I have made does not apply to an appeal against sentence. I fall back upon the first two points that I made. In the House we always look to see whether what we are doing is justifiable on its merits and to see whether we can be reassured by the knowledge that the principle has been applied before. The principle was applied for 97 years in the case of felonies in the House, for sentences of more than 12 months. In the case of felonies, where there was a sentence of hard labour, it did not have to be 12 months. Any sentence of hard labour attracted the disqualification of the Act.

I recognise that a case exists and that it has been expounded as eloquently and as fairly as possible for the amendment. However, the practical consequences of it, when applied at the point of nomination, when applied at the point of election, and when applied at the point of conviction of a sitting Member of the House, are such as to represent far too damaging a weakening of the provisions of the Bill. On balance, and without pleasure, I suggest that the amendment should be rejected.

8 pm

Mr. Hattersley

I congratulate the hon. Member for Grantham (Mr. Hogg) not only tabling the amendment, but on the way in which he moved it. It seemed that, apart from one part of his argument, he made an incontrovertible case. The one part to which I have referred seemed probably right, while the rest of his speech was certainly right. I hope that the hon. Gentleman and others will press the amendment to a Division. If the hon. Gentleman does so, I shall be in the Lobby alongside those who think that this improvement to the Bill should be made.

The Minister of State summarised his argument against the amendment rather paradoxically when he replied to the debate on Second Reading three days ago. In answering a question that I put to him, he explained in encapsulated form the case that he has argued this evening. He said: I acknowledge that someone who has entered an appeal against sentence or conviction will, nevertheless, be caught. This is where the interest of speed arises, because in many cases we cannot await the long processes of an appeal in order to determine such matters. An election cannot be spun out in that way." —[Official Report, 22 June 1981; Vol 7, c. 106.] By any standards, that is a description of rough justice. The Minister was saying that he regarded the practice of excluding men and women whose case may still be subject to appeal as undesirable. He was arguing that it was unavoidably undesirable.

As I understand the argument of the hon. Member for Grantham—I trespass with some trepidation and reluctance into some of the legal technicalities that he exchanged with his hon. and learned Friend the Minister of State—he has done his best to limit the delay and the possible categories in which delay is possible. Certainly the amendment refers to when the appeal is made. As I understand it, that will produce two results. The first result is that there may be an appeal in time, which will not cause the unconscionable delay of which the Minister speaks. The second result is that until leave to appeal is granted the disqualification will not apply.

I assume that in cases where there is an obviously contentious, fractious or bogus appeal, made for the purpose of delaying the disqualification, the courts will look upon that in a practical and sensible way and will avoid the situation that the Minister has described of a long delay in a protracted case: that is, the intention to make nonsense of the Bill.

The hon. Member for Grantham is concerned with a hypothetical case, apart from the one that the Minister of State described, which was the best that he could possibly make. That case involved, not a convicted man who was not serving a 12-month sentence for any of the offences that might regarded as being on the margin of culpability, but a terrorist. Let us take a different hypothetical case in which a man is convicted and sentenced to 12 months' imprisonment, or a little more, and, after an appeal in time, is discovered to be innocent.

I am sure that the Minister and the hon. Member for Grantham are right to say that after initial conviction the assumption is no longer of innocence, but of guilt. However, we should be discussing not the assumption of innocence or guilt, but the possibility of the reality of innocence or guilt. As the Bill stands, it is possible for a man or woman to be convicted and, in the end, having been excluded from this place, to be adjudged not to have committed the offence that caused the exclusion. It is possible for a man or woman to be convicted, to be sentenced for a period that results in exclusion from this place, and to have the sentence reduced on appeal to a period that does not make exclusion inevitable. That cannot in principle be right. Can it in practice be justified?

The Minister will understand that it is difficult for those of us who object to the Bill in principle to climb inside his logic to try to examine the practicalities of applying the Bill. That is a difficult task that I know I shall perform inadequately. It seems that within the limits carefully described by the hon. Member for Grantham the practicalities are observed that are necessary to the Minister's case. The Minister argued in part with the hon. Gentleman's drafting. He said that if he were asking for the avoidance of exclusion in the categories that he described, his amendment embraced that proposal imperfectly.

I hope that the Minister will forgive me for saying that I always find that a deeply unattractive way of resisting a Back Bencher's amendment. The argument that the Minister must advance is that the hon. Gentleman's intention is faulty. If the hon. Gentleman's argument and intention are right, and if a couple of prepositions or three badly placed words make the intention unworkable, it is the Minister's duty—he certainly possesses the opportunity in another place—to tidy up what the hon. Gentleman originally intended.

The original intention was that there should be strict limits around a provision that states that lest a man be innocent he should not be excluded before his appeal is exhausted. Some of the arguments that the Minister advanced against his hon. Friend's case seemed to be stretching the bounds of credibility. He talked about the disfranchisement of a constituency while an appeal is being heard. I know that for the purpose of the amendment I must accept the hon. and learned Gentleman's opinion and ignore my own argument, but a constituency is not necessarily disfranchised because its Member is serving a prison sentence.

The Minister is prepared to see a constituency disfranchised for 11 months and three weeks under the Bill. The fact that a Member of Parliament is in prison and not able to carry out his duties is not an automatic barrier or bar to his membership. Why should the Minister's argument be wheeled out when the Member is in prison in these altogether special circumstances? I refer to the circumstances of mounting an appeal which may in the end prove his innocence and may result in a sentence being imposed upon him which would result in disqualification.

I ask the Minister to think again. The hon. Member for Grantham has made the strongest possible case for what he is arguing. Some of my hon. Friends support the Bill in principle in a way that I could not, and do not, but I think that they will regard it as right to provide this element of protection. I hope that the hon. and learned Gentleman will find it in his heart and mind to change his attitude and to accept the amendment, which is workable and proper. If he is not prepared to do so, I am sure that the Committee will want to take the matter to a Division. There are many of us who think that the suggestion of the hon. Member for Grantham is admirable in every way and that it deserves the approval of the Committee.

Mr. J. Enoch Powell

In relation to nomination and election, which is clause 2(1), the Minister of State made out against the amendment an argument of practicality which it was difficult to resist. However, when we test the amendment against clause 2(2), which is the case of a Member who becomes disqualified under this measure when he is already a Member of this place, we are forced to recognise that by this Bill we are depriving ourselves of a useful discretion, and a descretion which we have hitherto possessed. That is a result which is not in any way necessary to the general purpose of the Bill.

The difficulty that the amendment highlights of the certainty of guilt not being clear at the time of election can be dealt with and has been dealt with, under our existing procedure whereby the expulsion and the voiding of a seat take place by the decision of the House. The House is therefore able to take into account in coming to its decision circumstances such as whether there is an appeal pending and all the attendant particulars of the individual case. The Bill, by clause 2(2), is substituting statute for the decision of the House. It is a measurable and perceptible diminution of the sovereign self-government of this House that a seat in the House is now to be voided by statute automatically by reason of the provisions of the Bill.

That effect is not necessary to the purpose of the Bill. Moreover, the inconvenience which the amendment has highlighted and the injustice are at their height when someone is already a Member of the House. After all, what that person is being denied under the Bill, if it is a matter of election and nomination, is the opportunity to be elected. None of us knows whether he will be elected. He may not have the remotest chance of being elected. It is perhaps a tolerable hardship—though perhaps not one of strict justice—to have to defer one's attempt to become a Member of this honourable House until one's innocence has been established by a successful appeal.

It is a different matter when a person has, by a majority of the electorate, been made a Member of this House, and has perhaps been a Member for a substantial time, conceivably through a series of Parliaments, for that seat to be voided when, retrospectively, we may know that it was not necessary that it should have been voided, and for a by-election to take place and that place to be filled over the head of a person who is subsequently on appeal found to be innocent.

Therefore, because of the practicalities concerning the main purpose of the Bill in clause 2(1), I would not go so far as to support the amendment as it stands. However, the House should be very tender of surrendering to statute that which it possesses of its inherent right. This is something that the Government should consider, as they have the opportunity to consider it, in the subsequent stages of the Bill.

Mr. James A. Dunn

I add my voice to the request that this matter be reconsidered. In my opinion, it would be unacceptable to the House in forms of evaluating justice if any person were denied an opportunity to be a candidate in an election and offer himself in the ways that we all have done, if any appeal has been made on his behalf, taking into account the out-of-time situations which were drawn to our attention when the amendment was moved, and bearing in mind that any appeal that is made out of time has to have the agreement of the court that it should be allowed.

I note what the right hon. Member for Down, South (Mr. Powell) said, but we are discussing two situations. We are discussing circumstances which could easily arise from amendment No. 16, where the House is seeking to regain the powers which, if the Bill were passed in its present form, it would surrender. These are two different points.

8.15 pm

One of my principal objections to what happened before the Bill was the question of offence. It was against natural justice that people who are guilty of such criminal offences could stand as candidates in United Kingdom elections. It was for that reason that I gave the proposal my absolute and wholehearted support. But I believe that it is just as much an offence to deny people the right to use existing legislation to claim what they consider to be natural justice, too.

Until all the possibilities have been explored and a final decision is made, I do not go along with the way that the Minister has explained that a person is guilty. If after rough justice a person is found innocent, after all the appeal procedures have been invoked—such as happened recently—and a disqualification is added to the burden of an offence against natural justice, that will be totally unacceptable to me.

Although the wording of the amendment may not necessarily be entirely acceptable, I hope that the Home Office will accept its intention and come back with a new wording that will be acceptable to all those who have spoken. That would probably satisfy the hon. Member for Grantham (Mr. Hogg), who moved the amendment, and it would certainly be acceptable to me. Those who advise from another place that the amendment should be rejected should think with care, because I shall support the amendment if it is taken to a Division.

Mr. Mayhew

We are debating a matter of great importance. I have listened with care to the three speeches that followed that of my hon. Friend the Member for Grantham (Mr. Hogg), who moved the amendment.

The right hon. Member for Down, South (Mr. Powell) is right when he says that the House of Commons itself has the jurisdiction to expel any of its Members, and an inherent jurisdiction to determine who shall and who shall not sit here. However, I think that he will agree that the trend over the past century or more has been to regulate matters of disqualification of Members of the House by statute rather than by leaving them to the resolution of the House, which certainly in days gone by tended to be influenced by party considerations.

That has been a general trend. Of course, it does not exclude the possibility of regulating this matter, whether a sitting Member should lose his seat by virtue of this Bill—or statute, as we hope it will become—or whether it shall depend upon the exercise or non-exercise by the House of that jurisdiction. We can leave it to the power of the House to expel.

However, it would not be right to do so in this case, and it would be difficult to justify outside the House the fact that we were prepared to accept a period of what I have called disfranchisement for a constituency when its cause and origin was the conviction of one of our own Members, when we were not prepared to accept that when its cause and origin was the conviction of someone who had yet to become a Member and who sought to be nominated or to be elected. It would be difficult to avoid the charge that we were again seeking to confer special privileges upon ourselves which we were were not prepared to confer on other people.

I have acknowledged that it is at the highest point of my hon. Friend's case that he can say, as the right hon. Gentleman and others said, that here we are dealing with someone who is a Member of the House of Commons, whose expulsion will have much more serious consequences on other people than those that will be visited upon other people if he is simply prevented from standing.

For the reasons that I have sought to advance, it would not be right to make an exception in favour of one of our Members. Because these matters are of profound importance, and it is not right at the conclusion of a short debate to say that the mind can be made up on the basis of arguments so recently advanced, we shall consider whether—contrary to my present opinion—it is right to heed what has been said and act upon it. At the moment I cannot hold out any hope.

Mr. J. Enoch Powell

Should it not be borne in mind that for 97 years there has been a statutory disqualification but that, nevertheless, the voiding of the seat has taken place by decision of the House? It would be hard to say that we were discriminating in the matter of disqualification between our Members and those who were not our Members.

Mr. Mayhew

That intervention gives rise to an interesting glimpse of history. To my knowledge, only two cases have arisen since the 1870 Act took effect. One was the case of Mr. Lynch, who, while a sitting Member, was convicted of treason. The Attorney-General of the day gave it as his opinion that there was no need to pass a resolution, or even to consider whether he should be expelled, because the Act made it clear that that was the only course, there and then. That advice was accepted, the writ moved immediately, and the seat vacated. That was a treason case in 1904.

In 1956, in the case of a Mr. Baker, the House did expel. It was a felony conviction, and the House resolved to expel Mr. Baker. I expect that the right hon. Member for Down, South remembers that. I suspect that there was an element of belt and braces in that. The advice given to the Government was that under the Forfeiture Act 1870, the disqualification that was imposed by the Act took effect there and then. In the case of Mr. Baker there was no need for the resolution that was passed. I do not think that the right hon. Gentleman's point is established—certainly not beyond controversy. It is noteworthy that there have been only two cases. We are talking of a rare occurrence.

Mr. James A. Dunn

I recall a case that involved a Labour colleague—I cannot remember his name, although is is on the tip of my tongue—who was found guilty of an offence but later, on appeal, was cleared. What would the Minister say under those circumstances if there was an automatic disqualification and a vacating of the seat, in which the House would not have a voice because it would have been done by statute? Upon reflection, and with the knowledge of a successful appeal, what would he advise us to do then? What would be the consequences if the Bill became law overnight?

Mr. Mayhew

The consequences are clear. The seat would be vacated. No doubt a writ would be moved. It all depends on the time scale. I concede that the consequence is that the seat would be vacated. It would be a hard case. I have not sought to conceal that.

Mr. George Cunningham

The case to which my hon. Friend the Member for Liverpool, Kirkdale (Mr. Dunn) referred is well known. The Member in question was, on appeal, called into the well of the court and addressed by the judge in firm terms. He said that he should never have been convicted and that there was no stain upon his character. Could the Minister imagine the position if a person had been wrongly convicted, was told something like that in court, but meanwhile, by the automatic functioning of such a Bill, had been expelled by the House? Whatever is said tonight, it would then be said that that was a massive injustice.

Mr. Mayhew

So it would. We have to weigh that possibility against the evil that we are seeking to combat. Surely that was the case in 1870. As my hon. Friend the Member for Grantham acknowledged, these matters fall to be weighed against the existence of political necessity, and the weight that it is thought proper to give to political necessity.

I do not think that I can do fairer than to say what I have said, that we shall consider what has been said tonight. I hope that it is plain that I have never acknowledged that this would be other than rough justice. It is inherent in any instance of rough justice that there are hard cases as well as cases that are not hard. It is rough justice in the case of someone who is prevented from being elected. However, I believe that we are inclined slightly to get away from the realities as we rightly test out those proposals against the cases which can arise. In the case of nomination and of election, we are concerned with people who are being manipulated.

I gave the circumstances of a hypothetical case which came to my mind. It is possible to conceive of someone who is being used in the same way, but in that case is lending himself to a more active role in the scheme, whereby someone who has been charged, for example, with terrorist offences, comes here but has not been convicted and is then almost immediately convicted. I suggest that it is against that background that we need to examine whether it is essential, in the interests of justice, that he should be permitted to retain that seat while in prison and while the processes of appeal are pursued to an ultimate conclusion.

I do not believe that I can make the Government's position clearer. Others might be able to do so. We shall listen, but it would be wrong for me to say now that I believe that there is a likelihood that we shall feel it right to change to the extent which the right hon. Member for Down, South suggests. I am grateful for what he said about the first part of the proposition.

Mr. Douglas Hogg

I cannot pretend that I am entirely satisfied with the answers of my hon. and learned Friend the Minister of State. I am grateful to Opposition Members. I beg to ask leave to withdraw the amendment.

The Chairman (Mr. Bernard Weatherill)

Is it your pleasure that the amendment be withdrawn?

Hon. Members


Question put, That the amendment be made:—

The Committee divided: Ayes 53, Noes 137.

Division No. 230] [8.27 pm
Alton, David McKay, Allen (Penistone)
Atkinson,N.(H'gey,) McNally, Thomas
Beith, A. J. Maxton, John
Campbell-Savours, Dale Morton, George
Canavan, Dennis O'Halloran, Michael
Cook, Robin F. Pavitt, Laurie
Cox, T. (W'dsw'th, Toot'g) Penhaligon, David
Cunliffe, Lawrence Richardson, Jo
Cunningham, G. (Islington S) Roper, John
Dalyell, Tam Ross, Ernest (Dundee West)
Davidson, Arthur Ross, Stephen (Isle of Wight)
Davis, T. (B'ham, Stechf'd) Sheerman, Barry
Deakins, Eric Sheldon, Rt Hon R.
Dean, Joseph (Leeds West) Shepherd, Richard
Dixon, Donald Skinner, Dennis
Dunn, James A. Stallard, A. W.
English, Michael Stoddart, David
Field, Frank Summerskill, Hon Dr Shirley
Foster, Derek Taylor, Mrs Ann (Bolton W)
Freud, Clement Thomas, Dafydd (Merioneth)
Graham, Ted Wainwright, R.(Colne V)
Hamilton, W. W. (C'tral Fife) Wilson, Gordon (Dundee E)
Hattersley, Rt Hon Roy Woolmer, Kenneth
Haynes, Frank Wrigglesworth, Ian
Heffer, Eric S.
Hogg, Hon Douglas (Gr'th'm) Tellers for the Ayes:
Hooley, Frank Mr. Kevin McNamara and
Howells, Geraint Mr. David Winnick.
Kerr, Russell
Alexander, Richard Budgen, Nick
Ancram, Michael Butcher, John
Arnold, Tom Cadbury, Jocelyn
Atkinson, David (B'm'th,E) Carlisle, John (Luton West)
Baker, Kenneth(St.M'boone) Carlisle, Kenneth (Lincoln)
Beaumont-Dark, Anthony Chapman, Sydney
Bendall, Vivian Clark, Sir W. (Croydon S)
Benyon, Thomas (A'don) Clarke, Kenneth (Rushcliffe)
Berry, Hon Anthony Colvin, Michael
Best, Keith Cope, John
Bevan, David Gilroy Costain, Sir Albert
Biggs-Davison, John Critchley, Julian
Blackburn, John Dean, Paul (North Somerset)
Boyson, Dr Rhodes Dickens, Geoffrey
Braine, Sir Bernard Douglas-Hamilton, Lord J.
Bright, Graham Dover, Denshore
Brinton, Tim du Cann, Rt Hon Edward
Brooke, Hon Peter Dunlop, John
Brown, Michael(Brigg & Sc'n) Dunn, Robert (Dartford)
Bruce-Gardyne, John Fairgrieve, Russell
Buck, Antony Faith, Mrs Sheila
Fenner, Mrs Peggy Murphy, Christopher
Fisher, Sir Nigel Myles, David
Fletcher-Cooke, Sir Charles Neale, Gerrard
Fox, Marcus Needham, Richard
Fraser, Peter (South Angus) Newton, Tony
Goodhew, Victor Onslow, Cranley
Goodlad, Alastair Page, Rt Hon Sir G. (Crosby)
Gower, Sir Raymond Page, Richard (SW Herts)
Greenway, Harry Paisley, Rev Ian
Griffiths, Peter Portsm'th N) Pattie, Geoffrey
Hamilton, Hon A. Powell, Rt Hon J.E. (S Down)
Hampson, Dr Keith Prentice, Rt Hon Reg
Hannam,John Proctor, K. Harvey
Havers, Rt Hon Sir Michael Renton, Tim
Hawkins, Paul Roberts, Wyn (Conway)
Hawksley, Warren Ross, Wm. (Londonderry)
Heddle, John Shaw, Giles (Pudsey)
Howell, Ralph (N Norfolk) Shaw, Michael (Scarborough)
Hunt, John (Ravensbourne) Shepherd, Colin (Hereford)
Jopling, Rt Hon Michael Shersby, Michael
King, Rt Hon Tom Sims, Roger
Kitson, Sir Timothy Speed, Keith
Knight, Mrs Jill Speller, Tony
Lang, Ian Spicer, Michael (S Worcs)
Langford-Holt, Sir John Sproat, Iain
Lawrence, Ivan Stanbrook, Ivor
Lawson, Rt Hon Nigel Stanley, John
Lee, John Stradling Thomas, J.
Lennox-Boyd, Hon Mark Tapsell, Peter
Lloyd, Peter (Fareham) Taylor, Teddy (S'end E)
Lyell, Nicholas Thomas, Rt Hon Peter
McCrindle, Robert Thompson, Donald
MacGregor, John Thorne, Neil (Ilford South)
McNair-Wilson, M. (N'bury) Townsend, Cyril D, (B'heath)
McQuarrie, Albert van Straubenzee, W. R.
Major, John Viggers, Peter
Marlow, Tony Waddington, David
Mates, Michael Wakeham, John
Mather, Carol Watson, John
Maxwell-Hyslop, Robin Wells, Bowen
Mayhew, Patrick Whitelaw, Rt Hon William
Meyer, Sir Anthony Wickenden, Keith
Mills, Iain (Meriden) Wilkinson, John
Mills, Peter (West Devon) Wolfson, Mark
Moate, Roger Young, Sir George (Acton)
Molyneaux, James
Moore, John Tellers for the Noes:
Morgan, Geraint Mr. Robert Boscawen and
Morrison, Hon C. (Devizes) Mr. Selwyn Gummer.
Morrison, Hon P. (Chester)

Question accordingly negatived.

Question put, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 151, Noes 45.

Division No. 231] [8.38 pm
Alexander, Richard Bruce-Gardyne, John
Ancram, Michael Buck, Antony
Arnold, Tom Budgen, Nick
Atkinson, David (B'm'th,E) Butcher, John
Baker, Kenneth(St.M'bone) Cadbury, Jocelyn
Beaumont-Dark, Anthony Carlisle, John (Luton West)
Beith, A. J. Carlisle, Kenneth (Lincoln)
Bendall, Vivian Chapman, Sydney
Benyon, Thomas (A'don) Clark, Sir W. (Croydon S)
Berry, Hon Anthony Clarke, Kenneth (Rushcliffe)
Best, Keith Colvin, Michael
Bevan, David Gilroy Costain, Sir Albert
Biggs-Davison, John Cranborne, Viscount
Blackburn, John Critchley, Julian
Boscawen, Hon Robert Dean, Paul (North Somerset)
Boyson, Dr Rhodes Dickens, Geoffrey
Braine, Sir Bernard Douglas-Hamilton, Lord J.
Bright, Graham Dover, Denshore
Brinton, Tim du Cann, Rt Hon Edward
Brooke, Hon Peter Dunlop, John
Brown, Michael(Brigg & Sc'n) Dunn, James A.
Dunn, Robert (Dartford) Myles, David
Eyre, Reginald Neale, Gerrard
Fairgrieve, Russell Needham, Richard
Faith, Mrs Sheila Newton, Tony
Fenner, Mrs Peggy Onslow, Cranley
Fisher, Sir Nigel Page, Rt Hon Sir G. (Crosby)
Fletcher-Cooke, Sir Charles Page, Richard (SW Herts)
Fox, Marcus Paisley, Rev Ian
Fraser, Peter (South Angus) Patten, Christopher (Bath)
Garel-Jones, Tristan Pattie, Geoffrey
Goodhew, Victor Powell, Rt Hon J.E. (S Down)
Goodlad, Alastair Prentice, Rt Hon Reg
Gower, Sir Raymond Proctor, K. Harvey
Greenway, Harry Renton, Tim
Griffiths, Peter Portsm'th N) Roberts, Wyn (Conway)
Hamilton, Hon A. Roper, John
Hampson, Dr Keith Ross, Stephen (Isle of Wight)
Hannam, John Ross, Wm. (Londonderry)
Harrison, Rt Hon Walter Shaw, Giles (Pudsey)
Havers, Rt Hon Sir Michael Shaw, Michael (Scarborough)
Hawkins, Paul Shepherd, Colin (Hereford)
Hawksley, Warren Shepherd, Richard
Heddle, John Shersby, Michael
Hogg, Hon Douglas (Gr'th'm) Sims, Roger
Howell, Ralph (N Norfolk) Speed, Keith
Hunt, John (Ravensbourne) Speller, Tony
Jopling, Rt Hon Michael Spicer, Michael (S Worcs)
King, Rt Hon Tom Sproat, Iain
Kitson, Sir Timothy Stanbrook, Ivor
Knight, Mrs Jill Stanley, John
Lang, Ian Stradling Thomas, J.
Langford-Holt, Sir John Tapsell, Peter
Lawrence, Ivan Taylor, Teddy (S'end E)
Lawson, Rt Hon Nigel Thomas, Rt Hon Peter
Lennox-Boyd, Hon Mark Thompson, Donald
Lloyd, Peter (Fareham) Thorne, Neil (Ilford South)
Lyell, Nicholas Townsend, Cyril D, (B'heath)
McCrindle, Robert van Straubenzee, W. R.
MacGregor, John Viggers, Peter
McNair-Wilson, M. (N'bury) Waddington, David
McQuarrie, Albert Wakeham, John
Major, John Waldegrave, Hon William
Marlow, Tony Watson, John
Mates, Michael Wellbeloved, James
Mather, Carol Wells, Bowen
Maxwell-Hyslop, Robin Whitelaw, Rt Hon William
Mayhew, Patrick Wickenden, Keith
Meyer, Sir Anthony Wilkinson, John
Mills, Iain (Meriden) Winterton, Nicholas
Mills, Peter (West Devon) Wolfson, Mark
Moate, Roger Wrigglesworth, Ian
Molyneaux, James Young, Sir George (Acton)
Moore, John
Morgan, Geraint Tellers for the Ayes:
Morrison, Hon C. (Devizes) Mr. John Cope and
Morrison, Hon P. (Chester) Mr. Selwyn Gummer.
Murphy, Christopher
Alton, David Haynes, Frank
Atkinson, N.(H'gey,) Heffer, Eric S.
Bidwell, Sydney Hooley, Frank
Campbell-Savours, Dale Howells, Geraint
Canavan, Dennis Kerr, Russell
Cook, Robin F. McKay, Allen (Penistone)
Cox, T. (W'dsw'th, Toot'g) McNally, Thomas
Cunliffe, Lawrence Maxton, John
Cunningham, G. (Islington S) Morton, George
Davidson, Arthur O'Halloran, Michael
Davis, T. (B'ham, Stechf'd) Pavitt, Laurie
Deakins, Eric Penhaligon, David
Dean, Joseph (Leeds West) Richardson, Jo
Dixon, Donald Ross, Ernest (Dundee West)
English, Michael Sheerman, Barry
Field, Frank Sheldon, Rt Hon R.
Foster, Derek Skinner, Dennis
Freud, Clement Stallard, A. W.
Graham, Ted Stoddart, David
Hamilton, W. W. (C'tral Fife) Summerskill, Hon Dr Shirley
Hattersley, Rt Hon Roy Taylor, Mrs Ann (Bolton W)
Thomas, Dafydd (Merioneth) Tellers for the Noes:
Wainwright, R.(Colne V) Mr. Kevin McNamara and
Wilson, Gordon (Dundee E) Mr. David Winnick.

Question accordingly agreed to.

Clause 1, as amended, ordered to stand part of the Bill.

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