§ Mr. McNamaraI beg to move amendment No. 14, in page 1, line 15, leave out from 'void' to end of line 16.
I do not intend to delay the Committee for too long. Those hon. Members who have read the amendment will see that I merely seek to put the position back to what it was before the House, in its error, did away with the distinction between felonies and misdemeanours.
I am endeavouring to put the clock back. A constituency would be able to nominate whom it wished and elect whom it wishes. That person may eventually be disenfranchised, but it is the right of a constituency to decide who it wants as its representative in the House of Commons. That is all that the amendment does, and I do not wish to take up any more of the time of the Committee.
§ Mr. George CunninghamMy hon. Friend the Member for Kingston upon Hull, Central (Mr. McNamara) explained his purpose in moving the amendment, and I have one or two things to say about that purpose. Before coming to that, however, perhaps I can ask the Minister to explain just what the effect would be of deleting the words as proposed by the amendment.
Earlier this evening the Minister referred to "belt and braces". It seems to me that we have got belt, braces and something else in the Bill, and that the words that are proposed to be deleted are the "something else". First, we say that the returning officer can reject the purported nomination. Then we seem to say that if he does not, it is void anyway. That is the job that is done by the words at the bottom of the page. Then we say that if, somehow or other, nevertheless, the election takes place and the person gets into the House, he is disqualified from sitting there.
I am not sure why we need those three ways of catching the persons defined in the Act. Perhaps the Minister would explain exactly what would be the effect of deleting these words. I do not think that the effect would be to change the situation to that covered by the 1870 provisions. But if the amendment does have the effect described by my hon. Friend, it is the very heart of the Bill. If we were returning to the situation of 1870 we would be saying that a person as described in the Bill cannot sit and vote in the House. He could be nominated, and an election could take place but then the process would stop.
During our discussions on Monday there were some remarks about the position on local government elections, and the implication of some of those remarks was that in such elections we did disqualify from election—not just from sitting but from election. The implication was that we already did with regard to local elections more or less what is being proposed here with regard to parliamentary elections, and I put it to the Minister—who invoked on Monday the comparison with local government elections—that that is not correct, because the rules relating to local government elections state that 454
The returning officer shall be entitled to hold a nomination paper invalid only on one of the following grounds".Then there are two grounds, both of which relate 1:0 the form of the nomination paper—that it is not subscribed as required, or that the particulars of the candidate or the person subscribing the paper are not as required by law.In local government elections, the returning officer, as I see it, does not have the right to rule that a person's nomination is an invalid one. It is true that in his consent to nomination the nominee has to certify that to the best of his knowledge he is qualified to sit, and he would presumably be committing perjury of some kind if he were to certify that contrary to his true knowledge. But the returning officer, even if he knows absolutely that the person is not qualified to sit in a local authority, does not appear to have any power to reject the nomination upon that ground.
So it is not only that until now in parliamentary elections we have not given to the returning officer the power to invalidate a nomination; in local elections., too, we have not given that power to the returning officer, which only stresses the fact that we are breaking new ground just as much as we said we were on Monday. We are breaking ground that has not previously been broken, either with regard to parliamentary elections or with regard to local elections.
§ Mr. MayhewTo deal with the textual point first, the effect of the amendment and—I understand from the hon. Member for Kingston upon Hull, Central (Mr. McNamara)—its purpose is to remove the provision whereby persons disqualified for election under the Bill are also to be disqualified from being nominated. The amendment seeks to do that by taking out the words after the semicolon in line 15:
and if such a person is nominated for election as a member of that House his nomination shall be void".It is my fault if I have misunderstood the hon. Member for Islington, South and Finsbury (Mr. Cunningham), but I did not altogether follow his remarks about the use of the word "void".Under the procedure there are two stages. First, at nomination, the returning officer has to inquire whether the proposed candidate falls within the class excluded by the Bill. If the returning officer is satisfied that he does, he may not include the candidate's name in the list of those who are validly nominated.
That is what the hon. Member for Kingston upon Hull, Central seeks to remove from the Bill, for reasons that understand. The amendment would have that effect, save that it should have gone on to strike out the provision in the schedule giving effect in the parliamentary elections rules to the changes in the nomination procedure. It is a perfectly proper point, and the amendment would achieve it.
I can answer the question put by the hon. Member for Kingston upon Hull, Central as shortly as he put it. We: intend to deal not with those who are standing bona fide: with any intention of taking part in parliamentary affairs or with any intention or capability of getting elected. We have to deal with cases in which a candidate is put up who is unable to take any part in parliamentary affairs but who serves a political purpose by being used in that way.
The hon. Member for Erith and Crayford (Mr. Wellbeloved) accurately described the motives behind those who use prisoners for this purpose. That is why we 455 do not believe that we would be getting more than a small fraction of the loaf if we were simply to disqualify for membership of the House.
That would leave to these people the great prizes of an election campaign with free postage, free television appearance, free coverage in the media generally and, at the end, depending upon the degree of success that the various methods, lawful and unlawful, would have had, the possibility of being able to say "See, the majority have voted for our candidate". To go through these hoops and to end without having shut the door on that part of the abuse which is almost the most damaging part would be silly. That is why I cannot accept what the hon. Gentleman wants us to do.
The hon. Member for Islington, South and Finsbury drew attention to the local government election rules. On Second Reading I did not seek to rely upon the Local Government Act as a precedent for refusing nomination, or for conferring upon the returning officer the power to determine whether a nomination was valid, save in respect of the technical rules about subscription. I was relying on the Local Government Act in another context. I was seeking to show that the Local Government Act provided that a person who had been convicted of an offence and sentenced to prison for more than three months—even as long ago as five years—cannot be qualified to be elected to a council. That was the context in which I drew attention to it. I have not looked at the local government election rules. However, I am content to accept what the hon. Gentleman says about their contents.
9 pm
Our provisions are not without a precedent, although I do not rely strongly on it. In the previous Scottish local election rules a returning officer could reject a nomination if he was not satisfied with a potential candidate's eligibility to stand. For example, he might hold a disqualifying office or he might be under the qualifying age. The returning officer is no longer required to consider any such provisions, but there was a time when he was. I am not sure whether that confers greater respectability on these provisions. However, I do not mind, because as they stand the provisions are respectable. They meet a proven need to remedy an abuse and are of great value.
I cannot advise the House to accept the amendment.
§ Mr. McNamaraI greatly regret what the Minister said. I had hoped that he would accept the amendment. Indeed, if the House accepts the amendment I am sure that you, Mr. Godman Irvine, will accept the necessary manuscript amendments.
The amendment goes to the root of the Bill. It touches on the central point of the argument, namely, whether people should be allowed to stand, and whether a constituency should be allowed to choose whoever it wishes to be a candidate, without let or hindrance from others. The constituency must then take the consequences of having elected a person under such circumstances. It will continue to be a matter of argument in the House, if, by closing the loophole—if there is one—we have again told the IRA on the one hand that there are democratic methods and, on the other, that if they use them we shall alter them if we do not like the result. That has been the 456 argument. If we change the rules in this way, at this stage, we shall be making a grave error. Therefore, I shall press my amendment to a Division.
§ Mr. WinnickI shall keep my remarks brief. Some hon. Members, deliberately or otherwise, seemed to misunderstand our position. My hon. Friend the Member for Erith and Crayford (Mr. Wellbeloved) spoke about the victims of terrorism. He has no monopoly of concern for the victims of terrorism. I include among those victims those soldiers who have been killed during the past 12 years. The last thing that we wish to do is to condone terrorism. I am opposed to terrorism in any shape or form. There is no excuse for it in the conditions of Northern Ireland.
It is a question of finding the most effective way of fighting terrorism while at the same time finding a solution that will bring peace to the Six Counties. Unsuccessfully, we have tried to stress to the Government that the rights of the electorate should be our first consideration. If the electorate wish to vote for someone who is disqualified from sitting in the House, that is a matter for them. I do not suggest for a minute that if a detained or imprisoned person is elected he should be released from prison. That is not my argument. I did not suggest that the late Mr. Sands should be released. However, I did not agree that he should be expelled from the House. I saw no reason why the House should seek to do that.
In the coming by-election in Fermanagh and South Tyrone the IRA will find other ways of causing the Government the maximum amount of political embarrassment. The Bill will be proved to be an irrelevance. Ultimately, the House must decide. Unfortunately, it seems that it will make the wrong decision. The person for whom the electorate wishes to vote should have the right to stand for election, even if he is in prison and has no right to sit in the House. The electorate know the circumstances and it is up to them to make up their minds.
§ Question put, That the amendment be made:—
§ The Committee divided: Ayes 41, Noes 150.
457| Division No. 232] | [9.5 pm |
| AYES | |
| Alton, David | Kerr, Russell |
| Atkinson, N.(H'gey,) | McKay, Allen (Penistone) |
| Bidwell, Sydney | McNally, Thomas |
| Campbell-Savours, Dale | Maxton, John |
| Canavan, Dennis | O'Halloran, Michael |
| Cook, Robin F. | Pavitt, Laurie |
| Cox, T. (W'dsw'th, Toot'g) | Penhaligon, David |
| Cunliffe, Lawrence | Richardson, Jo |
| Davidson, Arthur | Ross, Ernest (Dundee West) |
| Davis, T. (B'ham, Stechf'd) | Sheerman, Barry |
| Deakins, Eric | Sheldon, Rt Hon R. |
| Dean, Joseph (Leeds West) | Skinner, Dennis |
| Dixon, Donald | Stallard, A. W. |
| English, Michael | Stoddart, David |
| Field, Frank | Taylor, Mrs Ann (Bolton W) |
| Foster, Derek | Thomas, Dafydd (Merioneth) |
| Freud, Clement | Wainwright, R.(Colne V) |
| Graham, Ted | Wilson, Gordon (Dundee E) |
| Hamilton, W. W. (C'tral Fife) | |
| Haynes, Frank | Tellers for the Ayes: |
| Heffer, Eric S. | Mr. Kevin McNamara and |
| Hooley, Frank | Mr. David Winnick. |
| Howells, Geraint |
| NOES | |
| Alexander, Richard | Baker, Kenneth(St.M'bone) |
| Ancram, Michael | Beaumont-Dark, Anthony |
| Arnold, Tom | Beith, A. J. |
| Atkinson, David (B'm'th,E) | Bendall, Vivian |
| Benyon, Thomas (A'don) | Major, John |
| Berry, Hon Anthony | Marlow, Tony |
| Best, Keith | Mates, Michael |
| Bevan, David Gilroy | Mather, Carol |
| Biggs-Davison, John | Maxwell-Hyslop, Robin |
| Blackburn, John | Mayhew, Patrick |
| Boscawen, Hon Robert | Meyer, Sir Anthony |
| Braine, Sir Bernard | Mills, Iain (Meriden) |
| Bright, Graham | Mills, Peter (West Devon) |
| Brinton, Tim | Moate, Roger |
| Brooke, Hon Peter | Molyneaux, James |
| Brown, Michael(Brigg & Sc'n) | Moore, John |
| Bruce-Gardyne, John | Morgan, Geraint |
| Buck, Antony | Morrison, Hon C. (Devizes) |
| Budgen, Nick | Morrison, Hon P. (Chester) |
| Butcher, John | Murphy, Christopher |
| Carlisle, John (Luton West) | Myles, David |
| Carlisle, Kenneth (Lincoln) | Neale, Gerrard |
| Chapman, Sydney | Needham, Richard |
| Clark, Sir W. (Croydon S) | Newton, Tony |
| Clarke, Kenneth (Rushcliffe) | Onslow, Cranley |
| Colvin, Michael | Page, Rt Hon Sir G. (Crosby) |
| Cope, John | Page, Richard (SW Herts) |
| Costain, Sir Albert | Paisley, Rev Ian |
| Cranborne, Viscount | Patten, Christopher (Bath) |
| Critchley, Julian | Pattie, Geoffrey |
| Dean, Paul (North Somerset) | Percival, Sir Ian |
| Dover, Denshore | Powell, Rt Hon J.E. (S Down) |
| du Cann, Rt Hon Edward | Prentice, Rt Hon Reg |
| Dunlop, John | Proctor, K. Harvey |
| Dunn, James A. | Renton, Tim |
| Dunn, Robert (Dartford) | Roberts, Wyn (Conway) |
| Dykes, Hugh | Roper, John |
| Eyre, Reginald | Ross, Stephen (Isle of Wight) |
| Fairgrieve, Russell | Ross, Wm. (Londonderry) |
| Faith, Mrs Sheila | Shaw, Giles (Pudsey) |
| Fenner, Mrs Peggy | Shaw, Michael (Scarborough) |
| Fisher, Sir Nigel | Shepherd, Colin (Hereford) |
| Fletcher-Cooke, Sir Charles | Shersby, Michael |
| Fox, Marcus | Sims, Roger |
| Fraser, Peter (South Angus) | Speed, Keith |
| Garel-Jones, Tristan | Speller, Tony |
| Goodhew, Victor | Spicer, Michael (S Worcs) |
| Goodlad, Alastair | Sproat, Iain |
| Gower, Sir Raymond | Stanbrook, Ivor |
| Greenway, Harry | Stanley, John |
| Griffiths, Peter Portsm'th N) | Steen, Anthony |
| Hamilton, Hon A. | Stradling Thomas, J. |
| Hampson, Dr Keith | Tapsell, Peter |
| Hannam, John | Taylor, Teddy (S'end E) |
| Havers, Rt Hon Sir Michael | Thomas, Rt Hon Peter |
| Hawkins, Paul | Thompson, Donald |
| Hawksley, Warren | Thorne, Neil (Ilford South) |
| Heddle, John | Townsend, Cyril D, (B'heath) |
| Hogg, Hon Douglas (Gr'th'm) | van Straubenzee, W. R. |
| Howell, Ralph (N Norfolk) | Viggers, Peter |
| Hunt, John (Ravensbourne) | Waddington, David |
| Jopling, Rt Hon Michael | Wakeham, John |
| Kilfedder, James A. | Waldegrave, Hon William |
| King, Rt Hon Tom | Watson, John |
| Kitson, Sir Timothy | Wellbeloved, James |
| Lang, Ian | Wells, Bowen |
| Langford-Holt, Sir John | Whitelaw, Rt Hon William |
| Lawrence, Ivan | Wickenden, Keith |
| Lawson, Rt Hon Nigel | Wilkinson, John |
| Lee, John | Winterton, Nicholas |
| Lennox-Boyd, Hon Mark | WoIfson, Mark |
| Lloyd, Peter (Fareham) | Wrigglesworth, Ian |
| Lyell, Nicholas | Young, Sir George (Acton) |
| McCrindle, Robert | |
| MacGregor, John | Tellers for the Noes: |
| McNair-Wilson, M. (N'bury) | Mr. Selwyn Gummer and |
| McQuarrie, Albert | Lord James Douglas-Hamilton. |
§ Question accordingly negatived.
9.15 pm§ Mr. McNamaraI beg to move amendment No. 16 in page 2, line 2, at end add— 458
`(3) If in a case covered by subsection 2 of this section it appears to the House of Commons that the circumstances are such that it is not proper for the Member to be disqualified and his seat to be voided the House may by order direct that any such disqualification shall be disregarded for such period as the order may provide; and any such order shall be subject to cancellation or amendment by subsequent order of the House.'.
The First Deputy Chairman (Mr. Bryant Godman Irvine)With this it will be convenient to take the following: amendment No. 15, in page 2, line 2, at end insert
'providing any such disqualification has been confirmed by the House of Commons'.Amendment No. 17, in page 2, line 2, at end add—`(3) No person shall be disqualified under subsection (1) of this section until an order relating to his particular nomination or election has been laid before the House of Commons, and such disqualification shall become void if the order is not approved by affirmative resolution within fourteen sitting days.',New clause 2—Secretary of State's discretion.
§ Mr. McNamaraThe purpose of the amendment is to take the Bill beyond its relevance to the situation in Northern Ireland and to examine the rights of hon. Members to determine our own membership in the House. My hon. Friend the Member for St. Helens (Mr. Spriggs) has asked me to say that he apologises for the fact that he cannot be present to move his amendment and asks to be associated with what I say. Whether he will still say so after reading my speech is another matter.
I seek to give back to the House the ultimate right to determine its own membership. Clause 2(2) states:
If a member of the House of Commons becomes disqualified by this Act for membership of that House his seat shall be vacated.Hon. Members have always been extremely jealous of our rights to determine our own membership once people become Members of the House. Whatever is decided in relation to whether a person is entitled to stand and whether there is a list of disqualifications to prevent him from being nominated or to prevent him from taking his seat, we have generally determined, as a House, that once he has been elected, we shall decide who shall or shall not be present. It is grievous despite what the Minister of State said earlier about the general codification of these matters, that the House itself should still not have the ultimate right to decide on its own composition and the right of any person, properly elected and having taken his seat, to remain.The proposed "over-ride" subsection, as my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) describes it, seeks to ensure that ultimately the House itself shall decide whether or not the seat shall be vacated. This means that if, in any case covered by subsection (2), we as a House, believe that it is not proper for a Member to be disqualified, we can take a vote and decide the matter. That seems a fundamental right of the House.
Although the Bill is brought before the House specifically to deal with a matter that arose in Fermanagh and South Tyrone, it goes further than that by-election and the six counties. It affects the whole of the United Kingdom. It affects any seat of any Member in any circumstances. Once a Member is elected to the House, he is expected to abide by the rules and regulations that we, normally, as a self—disciplining body, make.
That has always been a matter of selfishness for the House of Commons. It is something that it has kept to itself, and in the past it has brought it into conflict even 459 with the electorate when the House of Commons has sought to expel and the electorate has sought to return. However, in the long run the House of Commons has bowed to the wishes of the electorate. Equally, it has retained the power to regulate who shall or shall not sit in this place.
That right has been preserved and it rests with the membership of the House of Commons. It is an overriding right. It does not necessarily undo the principle that the Government are seeking to introduce by means of the Bill. It does not affect a person standing for election. It does not affect a person being elected. However, it deals with the person who is a Member of this place at the time he is convicted. I am saying that if he is sentenced and convicted, the power to override should rest with the House of Commons and it should be able to decide whether that person should properly be expelled.
I am certain that in the majority of cases the House of Commons would not seek to interfere with judicial decisions. However, if a maverick judge sentenced someone to a term of imprisonment of a year and a day—equally, a maverick judge could sentence someone to 11 months and 28 days—we could feel as a House of Commons that that person had been improperly treated.
It is not beyond the bounds of reason to say that there are occasions when a person may be picked up under the criminal law on something that is generally accepted as being not necesarily a crime in the sense that it would have been so regarded 20, 30 or 50 years ago. The person concerned might be sentenced to a term of imprisonment longer than a year. We as the House of Commons might say, "That is not right. That is not proper in our times and in our day." The amendment seeks merely to overcome that problem and to retain something that it has jealously guarded. That is the right of the House to decide its composition.
§ Mr. WellbelovedI hope that my hon. Friend the Member for Kingston upon Hull, Central (Mr. McNamara) will not be too embarrassed when he learns that I support the amendment. I like to be even-handed in my support. Having supported the Home Secretary, I think that I should support my hon. Friend and explain why I do so.
There are two categories of persons who can develop a disability while they are Members of the House of Commons. I refer to lunatics and criminals. It is right that neither certified lunatics nor convicted criminals should have the right of nomination or election to this place. It follows that those without those disadvantages who become Members should not be treated separately.
Our mental health legislation deals effectively with a Member of Parliament who becomes a little loony. I understand that Mr. Speaker has to call upon the presidents of the two Royal Colleges to examine and report independently of each other their opinion of the hon. Member's mental state. On receipt of the reports, Mr. Speaker may put it to the House of Commons that the Member should be removed and confined in an asylum.
If we do that for lunatics, the same should apply to convicted criminals. If a person is elected to the House and subsequently is convicted and falls within the purview of the Bill, it should remain the right of this place to exercise a judgment. Parliament is the supreme court, and it would 460 be right for it to judge. I hope that it would become custom and practice, unless there were sound reasons that satisfied the House to the contrary for criminals to be expelled. I am sure that my hon. friend would not necesarily dissent from that.
I hope that the Government will think carefully about this proposal. If they cannot give an undertaking tonight to accept my hon. Friend's amendment, I hope that they will at least say that they will give the matter further consideration with a view to the possible introduction of such an amendment in the other place.
§ Mr. WinnickMy amendment No. 17, which is being taken with amendment No. 16, is somewhat different. It deals with subsection (1) of clause 2. It proposes that an affirmative resolution should be approved by the House of Commons before a person is disqualified under the Bill.
My right hon. and learned Friend the Member for Dulwich (Mr. Silkin), speaking on Second Reading on Monday, came to the conclusion that it was impossible to improve the Bill. Perhaps that explains his absence tonight. Speaking with all the authority of a former Attorney-General, he said that the Bill was inadequate, as many of us have said all along.
However, if the Bill is to be passed, as clearly will happen, it could be improved in this way, so that no one could be disqualified automatically. An order would be placed before the House, and it would have to be approved by affirmative resolution. That would be one way to overcome the view held by many Labour Members that it is quite wrong to deprive a person of the possibility of standing in an election, even though that person would not be able to take his seat in the House of Commons. Hence the reason for my amendment.
§ Mr. James A. DunnI have tabled an amendment, but it is starred, so it could not be called. It relates to that of my hon. Friend the Member for Kingston upon Hull, Central (Mr. McNamara). I have sought leave to bring it back as a manuscript amendment on Report. My starred amendment is probably more acceptable, in that it deals with all the situations without qualification and returns in full that which the House is now being asked to surrender.
The House would be unwise to surrender what it now possesses. We as a body have always been able to deal with affairs in a manner which has been just and has taken into account all the circumstances. The procedures that we have adopted permit full consideration of such affairs. As my hon. Friend the Member for Erith and Crayford (Mr. Wellbeloved) said, at the end of the day the House is supreme, and that should not be diminished in any way by this Bill.
I have brought to the House's attention hypothetical cases and factual cases in which, if the powers had not existed, there would have been major problems, and certainly injustice. If we surrender the powers now, that which could have happened before will certainly happen at some time in the consideration that might be attached to the authenticity of a person sitting in this Chamber.
If I am a little unfair, I know that the Minister will not take offence. His own profession—probably wisely—has a discipline procedure that deals internally with behaviour that is unecceptable to him and to his professional colleagues. I am sure that if anyone were to suggest that that right should be surrendered, the hon. and learned 461 Gentleman would be loud in his protests, because experience has shown how valid that procedure has proved to the legal profession over the years.
I raise my voice in exactly the same way. The House has controlled its destiny and dealt with any misdemeanours that might have been committed by one of its Members. There are other aspects than criminal offences and imprisonment in which the House may exercise its prerogative. I support the amendment, but in all honesty, I should prefer the House, at a later stage, to adopt the amendment that I shall seek leave to introduce on Report.
Mr. J. Enoch PowellThe hon. Member for Kingston upon Hull, Central (Mr. McNamara) knows from a previous debate that I am at one with the intention of his amendment, but I put it to him, and to the Committee, that it is defective in at least three serious respects. That is why I was glad to learn that the hon. Member for Liverpool, Kirkdale (Mr. Dunn) might have the opportunity to move what I regard as the correct amendment to deal with the problem, namely, a provision to eliminate clause 2(2).
The three defects which render the amendment unacceptable for achieving the hon. Gentleman's and my purpose are, first, that it purports to give to the House, by statute, power that is inherent in the House. That is an undesirable proceeding, for what statute has given, statute can take away. If we proceed to confirm to ourselves the privileges that we inherently possess by incorporating them into statute, we shall weaken rather than strengthen them. We derive our right to discipline our Members at our discretion not from statute, but from the inherent nature of a Sovereign assembly that is not subject to be overridden by any external body. That position should be left as it is—as part of what is somewhat inaccurately called the "law of Parliament", but at any rate is not statute law.
Secondly, and conversely but not contradictorily it is also objectionable that one House of Parliament should be given, even by statute, the right to suspend a statute. It is a suspensory power that the hon. Member for Kingston upon Hull, Central seeks through his amendment, to give to the House. That contravenes another important principle, which is that what statute has done, only statute can undo, and that no single House of Parliament, by its resolution, can undo or suspend the law. Long ago this House succeeded in establishing that the Executive cannot suspend the law. But neither can the House, as a House, suspend the law. I do not think that we should resort to forms that imply that.
The third, and perhaps the lightest, of the difficulties—it emerged more from the speech of the hon. Member for Kingston upon Hull, Central than from the wording of the amendment—is the notion that we should revise judgments of the courts. I know that Parliament is the High Court of Parliament and, with bated breath be it said, that the Chair is sometimes guilty of referring to the House as a court; but, in fact, it is not a court.
What we express here is opinion, although when expressed in binding form it is authoritative and law-making opinion. It would be undesirable for the impression to be given that if a court should make a finding, and a judge should judge a judgment, the House of Commons, after looking at the circumstances, the sort of chap involved, and what it thought about the judge and the general circumstances, could say that it did not think 462 it a right judgment by implication, and should be empowered to annul what would otherwise be the consequences of that judgment.
I realise the difficulties under which the hon. Member for Kingston upon Hull, Central has laboured in attempting to put the point in the form of an amendment at this stage of the Bill, but I believe that it is unsatisfactory and would in all those three respects create undesirable precedents if the Committee were to make the amendment.
§ Mr. George CunninghamIt is always fascinating to debate issues with the right hon. Member for Down, South (Mr. Powell). When he enumerated his three points, I was rather in fear that I would find myself in flat disagreement with him on all three. Therefore, I was glad when he came to his third, because on that point, I strongly agree with him. It would not be right for us to regard any power of override as a power to dissent from a conviction awarded by a court or a sentence awarded by a court. To that extent, I disagree with the manner in which my hon. Friend the Member for Kingston upon Hull, Central (Mr. McNamara), put his point. I am sure that he will not mind if I say that he and I have talked about the wording of the amendment and that, therefore, if I take something of a paternal attitude towards it, it is because of that.
I cannot find myself at all in agreement with the right hon. Gentleman on his first two points. On his first point, he said that the power of the House to expel someone is inherent in the House anyway. That cannot be so. It cannot be the case that, if all the procedures necessary for passing a statute have been gone through and if this House and the other House have said, for example, that an infant cannot be a Member of the House, we in this House, without managing to repeal such a statute, should say that, whatever the statute says: "There's an infant and we are keeping him in the House." I assert that we have no power to do that. It should surely go without saying that if we, as part of Parliament, make a statute, that has a stronger power than a resolution of the House.
The right hon. Gentleman is getting into deep water with regard to a matter which he and the House have been in dispute about over a number of years. He has been arguing that he can be required to do something as a condition of his membership here, on the basis of a resolution. He has now been resisting that proposal and saying that if we want to impose that condition upon him, we have to do it by statute. Therefore, I believe that there is some contradiction in the right hon. Gentleman's attitude. I assert that in the matter of law, he must surely be wrong.
Mr. J. Enoch PowellThere is a contradiction—but it is an unavoidable one—in my position in the matter to which the hon. Gentleman has referred. I assert—here I agree with the point which he is making—that we cannot do by resolution what has to be done by statute. However, I also accept that our privilege of disciplining our own Members is unlimited, and that we have the right, even without cause shown, even to expel one of our number and that power is inherent and derives from the nature of this assembly.
§ Mr. CunninghamPut that way, I accept what the right hon. Gentleman says. That is not the point which is involved here. With respect, it is not a right to expel a Member who might otherwise be able to be here. What is 463 proposed here is a right to retain a Member who is by statute barred from being here. Therefore, I say to him again that what is proposed in the amendment is not an inherent right. It would need to be in the Bill for us to be able to accept it.
The right hon. Gentleman's second point—these points are so fascinating that I cannot resist going into them, although I shall come to the other remarks that I wanted to make in a moment—is that it is not possible for one House to veto something that has been passed by Parliament. We do it. We do it when we say that the Minister can make an order that will come into effect, but, that, if either House passes a resolution to the contrary, it is nullified.
More directly, we do it in the House of Commons Disqualification Act, to which I shall refer in a moment. It is an exact precedent for the amendment that my hon. Friend the Member for Kingston upon Hull, Central has moved. Its wording follows very closely, mutatis mutandis, the wording of the Act. It is, therefore, not true to say that there is anything unprecedented or odd about providing in statute that if one House passes a resolution the effect that would otherwise occur will be nullified. That is possible and is done.
Clearly, to some extent the debate overlaps the subject matter that we touched on earlier in the amendment of the hon. Member for Grantham (Mr. Hogg) about appeals. I do not want to go over that ground again, but may I just put in these two points that overlapped the discussion on that occasion? I mention this because it would be possible for the House to use this power of override to deal with cases where an appeal was pending or was being thought about.
The Minister of State said with regard to the earlier amendment that there would be a difficulty in distinguishing between a case where an appeal had actually been launched formally and a case where leave to appeal had been requested but had not yet been given or denied. Actually, in the procedure of the House we acknowledge precisely that distinction with regard to the sub judice rule. If a person has applied for leave to appeal, the subject matter is not debarred by the sub judice rule, as I understand the situation. The sub judice rule comes in again in the House only when leave to appeal is actually granted. That is a distinction—not in statute, I grant, but in something certainly of a quasi-legal nature—which the House has taken account of and which the House itself operates.
Secondly, on that general matter, can we recollect the situation with Mr. Stonehouse, when the House was extremely reluctant to do the natural and sensible thing, which was to expel him, because we feared that it would prejudice his case? Imagine the situation where someone has been convicted but has lodged an appeal and the processes require that he is expelled from the House. For three months at least the constituency is entirely unrepresented, by the way. That is unavoidable.
An election takes place. The person is in that very public manner discredited and his appeal still has not been heard. There is a similarity. I see the Secetary of State shaking his head, but there is at least a similarity worth taking into account, is there not? No normal House without an overriding case on the other side, would say 464 that, pending the appeal already lodged, it would allow—it would be seen that way by the public—the Member to be automatically deprived of his seat.
What is involved in the amendment is a power in the House to override the disqualification—not to override the verdict of the case, of course, or the sentence, but simply to suspend or to cancel the disqualification which would otherwise take place. It, therefore, does not apply to the nomination procedure. It bites on the case only where a Member is already a Member of the House when he is convicted. No interference with sentence is involved.
The Minister of State in the earlier debate also said that this automatic disqualification took place under the law as it was up to 1967, although he indicated that there was at least one occasion when the House seemed to behave as if it did not. Well, it does not lie really in Ministers' mouths to invoke the law that applied up till 1967. They are not asking us to make the law now as it was up to 1967. They are introducing a totally unprecedented proposal. Therefore, they are estopped from invoking that consideration.
§ Mr. BudgenMalapropped.
§ Mr. CunninghamI like to use these legal phrases, simply to show that I use them badly and that I am not a lawyer. I say that Ministers are estopped from invoking this consideration. It is a good word, and I am grateful to the lawyers for teaching it to me. I hope that I have used it correctly.
The argument is that no outside authority should, without a right in this House to take a decision on the matter, be able to do something that leads to a Minister ceasing to be a Minister, at least during the period of appeal. I ask hon. Members to consider again the case that I referred to earlier. Since the Minister concerned is still alive and was found to be entirely innocent of the charge brought against him, I shall not mention his name. He was found guilty in 1947 or thereabouts, and sentenced to nine months' imprisonment. I know that that would not have bitten here, but he could well have been sentenced to 15 months. Under this statute he would have lost his seat. However, his appeal was later allowed and the court made remarks to the effect that the Member was entirely innocent of the charges brought against him and there was no stain on his character.
The Secretary of State may think tonight, although he is not as sure now as he was before—he is a little up a gum tree again—that on balance it is better to do it in the way that the Front Bench has argued. Had things happened as they did in 1947 he would change his mind, because the public and newspaper reaction would be extremely hostile.
This amendment is parallel to the procedure in the House of Commons Disqualification Act 1975. The Act does not, of course, deal with all grounds for disqualification—only those that used to be called offices of profit under the Crown. It provides a long list, far too long for some Conservative candidates to read, as we saw at the last European election. It says that holders of those offices are debarred from being in the House.
But the Act says in section 6(2):
If, in a case falling or alleged to fall within subsection (1) above"—that is, where a person holds one of those offices—it appears to the House of Commons that the grounds of disqualification or alleged disqualification under this Act which 465 subsisted or arose at the material time have been removed, and that it is otherwise proper so to do, that House may by order direct that any such disqualification incurred on those grounds at that time shall be disregarded for the purposes of this section.It is not an exact parallel. In particular, it says that the grounds of disqualification have to have been removed. I accept that, but it is a power in the House to override the disqualification that would otherwise occur. That power has been used.When it was discovered that my predecessor in the House had inadvertently disqualified himself, an Act of Parliament had to be passed so that he could remain. Even in my 10 years in the House, we have on at least one occasion passed a resolution under that provision, because of an inadvertent disqualification which had occurred and which had not been noticed. I refer to the case of a Member who is now a Liberal peer. The disqualification was entirely innocently incurred.
All that we are saying is that the House should have the right to do that. It would rarely be wise for the House to use the right, but unless an amendment along these lines is put into the Bill, the House cannot do it, whatever the circumstances.
If the right hon. Gentleman wants the House to retain its traditional power to take decisions about who is deprived of a seat in this House, it can be done only by means of an amendment along these lines. I ask the Secretary of State to consider seriously this amendment, if not now—the brief is already written—afterwards, in the light of the debate.
In the process of doing this business—with which we disagree in principle, but if it has to be done it will be done—we do not want to be walking along the road knocking over one power after another belonging to the House of Commons and one traditional practice after another which has stood the test of time.
On this proposal, therefore, as on the earlier one on appeal, I hope that the Secretary of State will carefully consider the arguments, and I hope that, if not now, then before the matter is considered in the House of Lords, he will decide that these are two wise concessions which he ought to make.
§ Mr. James A. DunnOn a point of order, Mr. Godman Irvine, may I seek your help and guidance? I have made general reference to the point, but perhaps I may spell it out.
As I understand it, the amendment seeks to allow a statute law to be created and then to override it. This has been well explained by those who have spoken in support of it from the Front Bench and by the right hon. Member for Down, South (Mr. Powell). My point is that it creates something and then disqualifies what it does.
My manuscript amendment, if accepted—I appreciate that there are problems about it—would not create something and then create a machinery to deal with what it had created. It would virtually return to the disqualification referred to by my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham).
I am therefore in a dilemma, as I am sure other hon. Members are, too. If the manuscript amendment were not selected for debate it would colour the way in which I would vote if a Division were called. If, on the other hand, it were allowed, there are a number of issues that I would wish to take into account. I might then wish to vote neither one way nor the other to show my feelings about it.
466 A matter of some principle is involved. The amendment before us raises the question of overriding, whereas my amendment would do nothing of the kind, nor would it create anything new. It seeks to retain the status quo.
The First Deputy ChairmanI think that the hon. Gentleman well knows why his amendment has not been selected for consideration in Committee. I now have the information to pass on to him that Mr. Speaker has not selected it for consideration on Report.
§ Mr. MayhewThis group of amendments deserves careful consideration. It may be helpful to remind ourselves of what each would achieve before I reply to the important points that have been made.
Amendment No. 15 seeks to ensure that a Member of the House of Commons who becomes disqualified by the Bill will be required to vacate his seat only if the disqualification is confirmed by the House.
Amendment No. 16, moved by the hon. Member for Kingston upon Hull, Central (Mr. McNamara) has the purpose of allowing the House of Commons, by order—which may be cancelled or amended by a subsequent order—to direct that the disqualification of a Member of the House of Commons may be disregarded for the period provided by the order.
Amendment No. 17, in the name of the hon. Member for Walsall, North (Mr. Winnick) proposes to defer the further disqualification of a person elected to or nominated for election to the House of Commons until an order relating to the particular election or nomination has been laid before the House, and to provide that the disqualification shall be void if the order is not approved by affirmative resolution within 14 days.
Lastly, new clause 2, with which we have not really dealt, has the same overall kind of purpose—to allow the Secretary of State, by order, to waive the disqualification for membership of and election to the House of Commons in respect of
any person, country, or class of persons or countries.The overall purpose of these amendments is to provide a kind of fallback safeguard. I think that those who have proposed the amendments are really saying that if one is to provide a disqualification for remaining a Member of the House of Commons, and if one is to provide as a disqualification for nomination or election to the House of Commons the fact that a person is serving a sentence of more than 12 months in the circumstances caught by the Bill, the House of Commons should be permitted to retain its residual power to determine who shall remain a Member. That is really the point, and it is an argument that I greatly respect.However, the right hon. Member for Down, South (Mr. Powell) illustrated a major danger inherent in these arguments, because if we have said "Very well, by statute this shall be a disqualification", it is dangerous to allow the House of Commons, in the interests of its own Members, to say "But this shall not apply for a certain time, or in these circumstances, if we say so". That is not a sound way to legislate.
The hon. Member for Liverpool, Kirkdale (Mr. Dunn) pulled my leg in a nice way about lawyers having the power to regulate themselves. Indeed they do, and it is right that self-regulation should continue to be available in the professions so long as they show that they are willing and able to operate such self-regulation in a conscientious way. But no power of self-regulation enjoyed by lawyers, 467 or by any other professional body of which I know, permits them to override the operation of statute. If a lawyer is sentenced to 15 months' imprisonment, no power of self-regulation vested in the Bar Council or the Law Society will get him out of one day of it, and quite right, too.
§ Mr. George CunninghamBut we are not suggesting that.
§ Mr. MayhewBut the hon. Gentleman was hoping to find some means of twitting me.
§ Mr. McNamaraBut no rule of the Bar Council or Law Society automatically expels the member. The matter must go before the Bar Council.
§ Mr. MayhewThe automatic expulsion that we are discussing would be contained in the Bill once it became a statute. That is where automatic expulsion arises, and if statute imposes a penalty it is not right to permit it to be suspended, qualified, put on one side or overridden in any way, even at the instigation of this House. That is the issue before us.
We should also bear in mind that the trend has been to regulate by statute matters of qualification for Members of the house. That trend goes back to the eighteenth century. Before that, it was the custom to deal with these matters at the time. I would not say that they were dealt with on their merits, but at any rate they were discussed in the context of party advantage. It was because this was seen to constitute an abuse that Parliament decided that in future the right approach was to regulate these matters by statute, so that we would not have to determine each case in circumstances that might or might not be embarrassing or impose a temptation to determine them according to party advantage. It was decided that the criteria should be laid down in advance. That is a sound basis for dealing with these matters.
The hon. Member for Islington, South and Finsbury (Mr. Cunningham) referred to the House of Commons Disqualification Act, which now deals with what used to be called the "offices of profit under the Crown". But that illustrates my point, because they are now dealt with by statute. We now know by looking at the statute the circumstances under which we would be disqualified if we take one of those offices, and they are dealt with there and then.
The hon. Gentleman fairly indicated that a qualification is written into the statute that if it appears to the House of Commons that the grounds have been removed, an exemption can be made. But even that is not on all fours with the principle that is now proposed. We are being asked to allow the House a bite at the cherry after, by our own legislative process, we have created the statute that sets up the disqualification.
I believe that this issue goes back to the one that we discussed and decided on the amendment moved by my hon. Friend the Member for Grantham (Mr. Hogg). Are we or are we not content that this disqualification should 468 attach to sitting Members, as it is proposed that it should be attached to those who are seeking nomination and those who are seeking election? It goes back to that. The argument that I put forward then is the argument that I put forward now—
§ It being Ten o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.
§ Committee report Progress.