HC Deb 13 February 1997 vol 290 cc492-501

8.—(1) In the entry relating to Her Majesty's Lord-Lieutenant or Lieutenant for a region in Scotland—

  1. (a) for 'a region' there shall be substituted 'an area'; and
  2. (b) for the words from 'such part' to 'Majesty' there shall be substituted 'the area'.

(2) In the entry relating to Her Majesty's Lord Lieutenant or Lieutenant for the district of the city of Aberdeen, Dundee, Edinburgh or Glasgow—

  1. (a) the words 'the district of' shall be omitted; and
  2. (b) for 'the district in' there shall be substituted 'the city in'.

The motion seeks the approval of the House to an amendment by Order in Council of schedule 1 to the House of Commons Disqualification Act 1975. As hon. Members are aware, the Act is concerned with the maintenance of the independence of the House and the safeguarding of hon. Members from undue influence by the Executive through the exercise of patronage. Schedule 1 to the Act lists those offices whose holders are thereby disqualified from membership of the House.

It has been usual practice for any legislation that establishes new offices or winds up existing ones to amend schedule 1 accordingly. The 1975 Act is therefore reprinted from time to time in accordance with the provisions of the Act to incorporate such amendments. The last reprint was made on 6 January 1994. A further reprint will be ordered after the new order has been made. In addition, from time to time, it is necessary to use the procedure outlined in section 5(1) of the Act in order to bring schedule 1 up to date by Order in Council.

This section provides for the schedule to be amended following an affirmative resolution of the House by adding offices that have been created by administrative action, by amending or correcting existing entries and by deleting offices that no longer exist or where statutory disqualification is no longer appropriate. This procedure has been followed on 10 previous occasions, the first in 1961 and the last in June 1993. Copies of the explanatory note describing the amendments in detail have been made available in the Vote Office since 6 February.

Ministers have been individually responsible for the details of the additional entries and deletions that cover the offices within their areas of responsibility. They have based their judgments on the same general principles and criteria that have been followed in the past and are covered by the explanatory note. Of the 85 amendments covered, 48 are new entries, 25 are deletions and 12 are amendments to existing entries. Approximately 3,400 office holders will be brought within the scope of schedule 1, and up to 240 others will no longer be disqualified. That includes offices that have been abolished. There is, therefore, a net increase of 3,160 disqualified office holders. Of the 3,400 added to the schedule, up to 2,700 are lay members of industrial tribunals in Great Britain and Northern Ireland, the vast majority of whom are already precluded from sitting as Members of Parliament by the terms governing their appointment.

We propose that the de minimis level—the level below which paid officers in the gift of the Crown or Ministers do not normally attract disqualification—should remain at £8,000, as agreed in 1993. Of course, the de minimis level has no effect on the level of remuneration received by office holders. Its purpose is merely to prevent trivial disqualification. As we are following a well-established procedure, I commend the motion to the House.

4.56 pm
Mr. Jeff Rooker (Birmingham, Perry Barr)

I apologise to you, Madam Deputy Speaker, and to the Minister for not being present for the beginning of the debate.

Mr. Peter Ainsworth (East Surrey)

Disgraceful.

Mr. Rooker

I agree with the hon. Gentleman. I am reminded of the debates that I read while preparing my speech. When a similar motion was moved in 1985, my colleague with the relevant responsibility was not present. As I had spoken on the previous legislation, I became the first speaker for the Opposition; so I have had my comeuppance.

It is interesting to note that we are not dealing with a statutory instrument or with delegated legislation, but are being asked to amend a schedule to an Act of Parliament on the say-so of a motion on the Order Paper. That might have some advantages, in that the motion is clearly amendable. However, it means that the normal scrutiny procedures of the House will not apply: we will not be able to examine the proposals, take evidence and ask questions. I shall return to that issue later.

I welcome the explanatory notes on the motion—although I think that they should have been available earlier. They were not available last Thursday when I left the building, so the Vote Office posted them to me on Friday and I read them during the weekend. In previous years, the notes were available from the Vote Office up to three or four weeks before debate in the House. The notes comprise an excellent, up-to-date list of the quangos established by the Government—many salaries run to six figures—so it is a useful addition to our weaponry. The notes are not available for general sale: there is no price or reference number on the document. In a way, it is the main meat of the motion.

Other than the holders of office set out in section 1 of the main Act, such as civil servants, the police, the armed forces and members of foreign legislatures, those who are disqualified from membership of the House—the number runs to well over 1 million people—are not covered by statutory criteria. There are ambiguities, and there is a good deal of ministerial discretion as to who is and is not disqualified. We are now adding another 3,400 of our fellow citizens to the list of those disqualified from membership of the House of Commons. It is clear that membership of the House should be as open and as accessible to as many citizens as possible, and that disqualifications must be clear, unambiguous and reasonable.

Although it is called the House of Commons Disqualification Act, it does not cover all the people who are disqualified from membership of the House. Bits and pieces of a tabloid newspaper are being put through our doors by a fictional political party, which exists only in the bank balances of its leader. A member of a foreign legislature is not able to be a Member of the House. We can have dual membership of this House and the European Parliament. That usually means a seat in the United Kingdom Parliament and a seat in the European Parliament, but I am not sure about the arrangements. How does the Act apply to a person who sits in the European Parliament for a constituency in France and seeks membership of the United Kingdom Parliament? Perhaps the Minister could take advice on whether it is lawful for the leader of the Referendum party to seek membership of the House while being a Member of the European Parliament for a foreign nation.

The Act is comprehensive. I want to draw some of the paradoxes to the House's attention by way of illustration—I would obviously be out of order, Madam Deputy Speaker, if I went into substantial detail. Our fellow citizens are not treated equally: some are disqualified from being Members of the House under schedule 1, and some are disqualified under other Acts of Parliament.

The legislation that applies to ordained ministers of religion goes back to the House of Commons (Clergy Disqualification) Act 1801. When preparing for this debate, I was struck by the recent publication by Robert Blackburn, reader in public law at King's college, called "Electoral System in Britain". He delves into the history of certain aspects of the process, including parliamentary candidates. He gave examples that occurred in Oxfordshire. A candidate at the last general election in Oxford, West and Abingdon is disqualified for life from membership of the House because he used to be an ordained priest of the Roman Catholic Church, even though he has now resigned the priesthood. If he had won the seat, the House might have addressed the issue. Bruce Kent did not win, but even if he changes his faith or declares no faith, the fact that he was once an ordained priest of the Roman Catholic Church means that he is disbarred for life from membership of the House.

That does not apply to someone who is disbarred because he is a civil servant. The right hon. Member for Witney (Mr. Hurd) was a distinguished former Home Secretary and Foreign Secretary, and had previously been a civil servant. One day, he was a civil servant and disqualified from membership of the House; the next day, he resigned and was able to be a candidate and serve as a Member of the House. The same applies to a minister of the Church of England, who is disqualified but can also resign and then be a candidate. Priests of the Catholic Church are disqualified for life, whether or not they remain in their faith. That is one of the inconsistencies and anomalies.

The Minister is now adding 3,400 persons to the list of those banned from membership of the House. He referred in his short introduction to the largest group: the 2,700 of our fellow citizens who serve on industrial tribunals. They are unpaid lay people who do a valuable job for society. They are required to be politically impartial in the execution of their judicial function: that is part of the operation of a tribunal. Why have they not been added to schedule 1 before? Industrial tribunals have existed for the best part of 30 years. Has consultation taken place? It is part of their terms and conditions that they cannot be Members of the European Parliament or Members of the House. Why change now?

The schedule was updated in 1993, 1985 and 1987: every three or four years, although not necessarily tying in with general elections; sometimes it has been twice in a Parliament. At no time have the general lay members of industrial tribunals been added to the list of those disqualified from serving in the House.

Some hon. Members may be justices of the peace, who are not technically banned from serving in the House. Members are advised not to sit as JPs, but if they can manage the requirement of 26 sessions a year, not in their own constituency and not as a paid stipendiary magistrate, technically nothing prevents them from being elected as a Member of the House. There is therefore a paradox if the requirement is for political neutrality or impartiality in a judicial function.

There is also a contradiction in respect of local government councillors who serve as magistrates, even in the locality of their council. Why are they allowed to continue to undertake a function for which they have to be judicially impartial while not being disqualified from membership of the House, whereas we disqualify the lay members of industrial tribunals? That does not make sense. It is not equal and fair treatment for people carrying out the same sort of quasi-judicial function. It is unfair that one group of 2,700 people—it includes members of industrial tribunals in Northern Ireland—is disqualified.

The schedule has been added to and has grown like Topsy at ministerial whim, without proper scrutiny by the House, because of the manner in which it is done—by resolution and not by statutory instrument. It gets worse. When I read previous debates, I was reminded of what happened in 1985, when I had to make a brief contribution. Full-time members of the judiciary are rightly disqualified from being Members of the House, but part-time members of the judiciary are not disqualified, as we shall hear from my hon. Friend the Member for Newham, South (Mr. Spearing). Why should a part-time paid judge, who acts as a recorder, be able to sit in Parliament, and a part-time unpaid member of an industrial tribunal be disqualified? It is not fair, does not make sense, and is wholly inconsistent and illogical.

I invite anyone who thinks that I am nit-picking to look at the first amendment to schedule 1. The Secretary of State for Scotland is disqualifying temporary judges from membership of the House.

Mr. Nigel Spearing (Newham, South)

Quite right too.

Mr. Rooker

Absolutely, quite right.

To disqualify temporary judges in Scotland and lay members of industrial tribunals yet allow part-time judges in England to sit in the House is inconsistent and unfair. I raised this point in the debate on 22 July 1985 at column 801. I asked about recorders and was fobbed off by the then Minister. He referred us to an earlier debate on 12 April 1983. I have taken the precaution of reading that debate again. Why part-time judges under the guise of recorders can sit in the House was not satisfactorily explained. We were given the historical reasons for the acceptability of that, but I did not find them satisfactory then, and I do not think that they are satisfactory now—especially in view of the fact that we are ruling out changes in regard to lay, unpaid members of industrial tribunals.

In our debate on 22 July 1985, when we discussed schedule 1, my speech was followed by one from a Conservative Back Bencher who challenged the whole idea that Ministers could add to the list of people disqualified from membership of the House as we are doing today. He made what I considered a powerful case for the criteria to be made clearer and more precise: it can be found in columns 802 and 803 of the Official Report. He described the current practice as "highly undesirable".

There are four criteria, and I ask the Minister to confirm that they are not statutory. The first criterion refers to offices of profit in the gift of the Crown or Ministers", which includes salaried, pensionable and certain fee-paid posts. There is a de minimis of £8,000. People whose remuneration is below that level can, however, be excluded at the Minister's discretion.

Also excluded are certain positions of control in companies in receipt of Government grants and funds, to which Ministers usually, though not necessarily, make nominations". I shall return to that in a moment.

The third criterion refers to offices imposing duties which, with regard to time and place, would prevent their holders from fulfilling Parliamentary duties satisfactorily"— which means that they would take up too much time, or otherwise prevent a Member from attending Parliament.

Mr. Andrew Mackinlay (Thurrock)

I had to re-read that.

Mr. Rooker

So did I—as, indeed, I have in the past.

As I have said before, I think that it would be difficult to legislate for a full-time House, but these are non-statutory criteria operating against some of our fellow citizens.

The fourth category is offices whose holders are required to be, or to be seen to be, politically impartial. That covers many of the examples that we are discussing today.

As I have said, in 1985 a Conservative Back Bencher described the process as highly undesirable. He questioned the payment levels involved in disqualification, and claimed—I believe there were some grounds for his claim—that people were disqualified when it was not possible to test whether they should be, because of the lack of scrutiny. He called for a Select Committee to look at the draft resolution each time, and report to the House before it came to us for approval. If it were a statutory instrument, that would be possible: the Select Committee on Statutory Instruments could examine it, and take advice and evidence.

I agreed with that Member of Parliament then, and I agree with him now. So why do we have amendments Nos. 16 and 38? The amendments are not numbered on the Order Paper—for our inconvenience—but they are numbered 16 and 38 in the set of notes with which we have been provided. They are listed at lines 42 and 43 on page 1898 of the Order Paper, and at lines 72 and 73 on page 1899, and both are promoted by the Minister of Agriculture, Fisheries and Food. It so happens that the Minister—the right hon. and learned Member for Grantham (Mr. Hogg)—is the Member who spoke from the Back Benches in 1985, and said that this was a wholly undesirable process. The House is almost empty and there is plenty of time, but I am not hunting for the right hon. and learned Gentleman. I prepared my speech three days ago, well before I knew about next week's censure motion.

Amendment No.16 covers the Chairman of an Agricultural Land Tribunal or a member of a panel appointed under paragraph 14 or 15 of Schedule 9 to the Agriculture Act 1947. The new entry will bring up to 306 office holders into the schedule—306 more citizens who cannot become Members of Parliament. We are given the same old argument that such people must be politically impartial in the execution of their judicial functions.

The new entry in amendment No. 38 is Any director of Horticulture Research International in receipt of remuneration. That, too, is promoted by the Minister of Agriculture.

I have a question, the answer to which I have not been able to discover fully, even from our experts in the Library. Horticulture Research International was set up on 1 April 1990, in response to the recommendations of a Government study. Why were the 10 paid directors who have been added to schedule 1 today not included in 1993, when the schedule was last updated? What has happened since that has caused them to be on this list, although they were not on the earlier list? It is possible that, although the organisation was set up in 1990, no one was paid until after 1993; that is what I have not been able to establish by looking at the annual reports in the Library.

Mr. Peter Bottomley (Eltham)

It may be worth emphasising, for the benefit of those who read the report of the debate, that it is possible to give up such a position before taking a seat in the House.

Mr. Rooker

Earlier—the hon. Gentleman probably was not in the Chamber yet—I drew attention to one of the paradoxes that are involved in the legislation. Most of those who are barred from membership—more than 1 million people—can become eligible for parliamentary seats by giving up their posts, but that does not apply to someone who has been an ordained priest in the Catholic Church. That cannot be wiped out: those people are banned for life, whatever happens in the future.

There is a procedure—although I do not know the details—in respect of, I believe, the armed forces and the police. I understand that a little sub-committee at the Home Office, comprising six former Members of Parliament and a couple of other people, adjudicates on whether people can give up certain positions in order to stand for Parliament. Its purpose is to ensure that frivolous people are not trying to get out of the armed forces, as probably the most famous example did many years ago—but I shall not go down that byway. The hon. Member for Eltham (Mr. Bottomley) is right: people can give up their posts voluntarily.

What worries me most are the inconsistencies and apparent unfairness. I have mentioned people who serve on industrial tribunals, part-time judges and local councillors who serve on the bench. The criteria and rules applying to those people are not the same, and there seems to be no good reason for that.

Mr. Mackinlay

I agree with everything that my hon. Friend has said, but let me ask a rhetorical question: would not members of industrial tribunals face a real dilemma if they intended to stand for Parliament in a few weeks' time? They would have to resign before the election, because they cannot resign after they have been elected. That strikes me as demonstrably unfair. Having resigned from the tribunal, an unsuccessful candidate for election would have to be beholden to the Secretary of State for Education and Employment: it would be for the Secretary of State to reinstate that person.

Mr. Rooker

It is some five years since I signed the nomination papers to be a parliamentary candidate, but I have a feeling that a candidate has to sign a statement that he is not excluded by the terms of the House of Commons Disqualification Act. Being on the list means that a person cannot be a legal candidate, which is why I question how Bruce Kent could possibly have been a legal candidate in the last election. Clearly, under the 1801 Act, he could not have taken his seat in the House if he had been successful.

The House is so slothful in bringing its procedures up to date that we would be forced to face the issue only if someone succeeded in an election in those circumstances. As my hon. Friend the Member for Newham, South will confirm, however, shortly after the election of a Member of Parliament we had to pass a retrospective motion enabling him to remain a Member, all because he had given a few hours' paid service as a medical adviser to a medical tribunal. I think that it was the late Lord Winstanley—I hope I am not doing him a disservice; I believe that he is now deceased—who served as a Liberal Member of Parliament, representing, I think, Colne Valley.

The House could rectify the position if something like that happened, but there would be one hell of a row, particularly as we have not set up proper procedures to ensure that there is fairness, openness and logicality in the way in which we disqualify more than 1 million people from being Members of the House.

Mr. Mackinlay

Was it not absurd that, in 1979, Dame Sheila Roberts was elected to the European Parliament in the Conservative cause, was a successful candidate for London South West and then found that she was disqualified? In what was a technical anomaly, there was no such mechanism for her position to be rectified, as in the case of Dr. Michael Winstanley, the former Member for Cheadle and then for Colne Valley. There had to be a by-election, at enormous public cost, which Dame Sheila again subsequently won—with a diminished majority, but she won. It was an absurd circus for that Conservative Member of the European Parliament to be elected, to be disqualified and then to have to stand again, all because there had not been true and reasonable understanding of the ground rules and no mechanism was in place to remedy what was demonstrably an error.

Mr. Rooker

It all comes down to the fact that there is not really a consolidated list and a formal structure whereby that list can be scrutinised and we have all the people who are disqualified from membership of the House. We are dealing here, it is true, with the schedule to the main Act, but the Act, as I have said more than once, is not the only Act that disqualifies people from membership of the House. In an open, accessible and pluralistic Parliament, there should be good grounds, as we approach the 21st century, to review wholesale disqualification, some of the rules of which, as I say, go back to the early part of the 19th century. Such a review is long overdue.

Having considered this in some detail in recent times, having considered the matter in a different capacity and having discussed it with one or two of my colleagues, it is something that a new Government would consider. That may be done by a Select Committee, by someone who is independent or by the Nolan committee.

This has grown like Topsy. It is shot full with anomalies, inconsistencies, unfairnesses and illogicalities. It is right that there has to be some sort of disqualification procedure; it is clearly necessary for the natural categories of disqualification: the police, the civil service and armed forces. However, matters have got out of hand when the list can be added to by ministerial discretion, where there are no clear criteria. What is more, the House has failed to set up a proper scrutiny procedure so that we can go through these things in detail, instead of having to deal with them in just an hour and a half this evening.

5.22 pm
Mr. Peter Bottomley (Eltham)

I acknowledge that I was not here at the beginning of the debate, but I did hear the relevant points that were made by the hon. Member for Birmingham, Perry Barr (Mr. Rooker). I say to my hon. Friend the Minister that the anomalous position involving people who have been ordained in the Roman Catholic Church needs to be sorted out. Roman Catholics are discriminated against in a number of ways. For instance, Roman Catholic bishops cannot pick the title of their diocese, but that is slightly away from this debate. The anomalous position of two people, one of whom has been ordained as a Roman Catholic priest and one of whom has been ordained as an Anglican priest, should be on all fours. I hope that my hon. Friend the Minister will ask someone to find a way in which the House can consider dealing with that anomaly. It is not the most important issue, but it is one of fairness.

There is an alternative way in which to deal with some of the positions in part III of schedule 1. Given that most of the people involved are appointed by Ministers, there is no reason why Ministers should not say that they will disappoint anyone who is successful in an election. That would solve some of the problems of people who would want to continue with their ordinary lives, if they are unsuccessful candidates. It can be done in a simple way. Where the appointment cannot be taken away, it may be possible to say that people will not be able to sit. There may be other administrative ways in which to deal with that.

Outside the Chamber, I was reminded by the hon. Member for Newham, South (Mr. Spearing) that I had some form, if I may put it that way, over noticing that some of our colleagues have sat as temporary judges and assistant temporary judges—let us say as recorders. I cannot remember precisely what I might have said; I suspect that the hon. Gentleman will comment on that. If there are examples of people perhaps feeling that in some way they have not received justice because someone who has some prominence beneath his wig has sat either as a justice of the peace or as a judge, they should certainly be able to object in advance.

Whether people should be prohibited from sitting as judges or as recorders is not something on which I have strong views today, but I do believe that the answer to most of the questions put by the hon. Member for Perry Barr, the Opposition spokesman, is that it is not the highest priority in Government Departments to consider whether new or adapted jobs should join the list. It is one of those things where there is an occasional trawl. People cough up possible positions that might be held to be suitable for disqualification. At the margin, there will always be difficulties.

I am not sure that it is right to accept necessarily the criticism that doing it by amendment makes it less easy for the House to consider the matter than doing it by secondary legislation. By secondary legislation we do not have the opportunity of tabling amendments. At least with this procedure, we do.

It is not the most important issue because the House would, I suspect, overturn nearly all disqualifications, were that to be tested. The right hon. Member for Chesterfield (Mr. Benn) repeatedly stood for the House of Commons, although he was disqualified under previous rules because he had inherited a place in the House of Lords. The House did then make changes to allow people not to take up peerages or to drop hereditary peerages.

I say in passing that some of the positions in part III would not disqualify a Member of the House of Lords from sitting there. I think that I am right in saying that a Member of the House of Lords can be chairman of a research council. The Earl of Selborne served in a distinguished way on the Agriculture Research Council. I do not argue for consistency. The position of holding an office of profit under the Crown is worth protecting. I do not make any adverse comment about prohibiting some people in the more senior ranks of the civil service from being actively involved in national politics, but I do not think that we want to screw things down so far that those who want to take part in local politics should be discouraged from doing so, if it is compatible with their role.

In general we get these things about right, but if we ever get to the stage where we are wanton or careless in the people we do not allow to stand for Parliament, we should be careful. It is far better to disqualify people after election, if necessary, than to stop them standing. We want to allow the widest range of people to stand, even though a fair number of them can be reasonably sure that they will not be elected in any particular election.

5.26 pm
Mr. Nigel Spearing (Newham, South)

I beg to move amendment (b), in paragraph 1, after "following entry" insert—