MINISTERS OF THE CROWN BILL. (Hansard, 29 June 1937)

HL Deb 29 June 1937 vol 105 cc849-62 849

§ Order of the Day for the Third Reading read.

§ THE LORD CHANCELLOR (VISCOUNT HAILSHAM)
My Lords, this Bill passed its Second Reading amid general assent. 850 On the Committee stage it was not amended, and therefore I should normally merely move its Third Reading in a formal way. On the Committee stage, however, my noble friend the Marquess of Salisbury, in speaking on an Amendment to sever the positions of Prime Minister and First Lord of the Treasury, made certain observations about Treasury control. He made them in the course of the withdrawal of his Amendment, which he was good enough to make, inasmuch as the Government did not accept it, and the result was that I had not any opportunity to deal with his statements, which unfortunately seemed to convey some reflection on certain members of the Civil Service and therefore not to be remarks which ought to pass altogether unnoticed. Anything that my noble friend says naturally carries weight both inside the House and outside, and I am sure that he will be the first to desire that I should correct any impression which may have been created but which is not altogether justified in fact.
My noble friend said that the provision of the Bill which linked the position of Prime Minister with the office of First Lord was inserted as a result of what he called: a new effort by the Treasury to get control of the rest of the Civil Service. My noble friend explained to the House what he meant: … the Treasury have been making a strong effort for many years to assume control of the rest of the Civil Service. And that your Lordships had all witnessed that process. He went on to say that the hegemony of the leadership of the Treasury over the other offices, and that of the permanent head of the Treasury over the other services, has never been really admitted. And he suggested that some official—presumably, I suppose, the Permanent Secretary to the Treasury—had "by some dexterous suggestion to the draftsman" surreptitiously attempted to get introduced into this Bill, "designed for a totally different purpose," a few words in order to establish the Treasury as the head of the Civil Service. I should like if I may, with your Lordships' indulgence, to deal with those statements.
So far from the Treasury making a new effort to get control of the rest of 851 the Civil Service, I think I can satisfy your Lordships that from the time the Civil Service was created a control by the Treasury over the Civil Service has always been recognised; and that, instead of the hegemony or the leadership of the Treasury over the other offices never having been really admitted, it has been repeatedly admitted both in another place and in the Service itself. Although your Lordships have witnessed, no doubt, a process of strengthening the Treasury control during the last twenty years—at any rate since the War—that has not been at all an effort by the Treasury to assume control, but an effort by Parliament and by successive Governments to make the control, which was always recognised, effective.
If I may, I shall have to go back a little to make that good. In 1855 the Civil Service Commission was first appointed. Before that date every Ministry appointed its own staff, mainly by favouritism, nepotism or anything of that kind. Even before 1855, however, it appears from the evidence of Sir Robert Peel, who was first Lord of the Treasury and Prime Minister, before a Select Committee in 1850, that the major posts in what became the Civil Service were always subject to the control and advice of the Prime Minister. In 1855 the Civil Service Commission was appointed, and it was not until 1867 that the office of Permanent Secretary to the Treasury was first created. We have not got at present, we have not got anywhere, the papers relating to the actual appointments, so that I cannot produce the actual minute of appointment in the first instance. Nevertheless, as early as 1872, which was only five years after the appointment, it was recognised that the Permanent Secretary to the Treasury was the head of the Civil Service.
That appears from a debate in the House of Commons on the giving of a salary of £2,500 to an Under-Secretary for Foreign Affairs, where the suggestion was made that this could not be done because other Under-Secretaries would ask for the same. To that demurrer rejoinder was made: "Well, there is already £2,500 paid to the Permanent Secretary of the Treasury, and therefore there is nothing in that argument." The answer given by the Chancellor of the Exchequer, 852 Mr. Robert Lowe, as he then was, was this: The Secretary of the Treasury is not an Under-Secretary, he is the head of the Civil Service. That was in 1872. In 1889, in Todd's Parliamentary Government, there is this statement: The Permanent Secretary [to the Treasury] is the official head of the Department and of the whole Civil Service. So that at that date, at any rate, it was recognised both inside Parliament and by those who study constitutional matters that the Permanent Secretary of the Treasury was head of the Civil Service. In those early days the control of the Treasury was exercised first of all by a process of recruitment for all classes of posts throughout the Service being placed on a regular basis, subject to Treasury approval of the schemes for selection. Secondly, Treasury sanction came to be required for special appointments outside such schemes; and thirdly, Treasury sanction was specifically required in respect of numbers, pay and classification, in the case of all civil establishments. And the Prime Minister and First Lord of the Treasury was always treated as entitled to be consulted as to who should be appointed to major posts in the Civil Service.
That was half a century ago, but no doubt in the latter part of the nineteenth century, and the early part of the twentieth century, Treasury control came to be somewhat relaxed, and that was made a matter of complaint by Parliament and by Royal Commissions. In 1912 a Royal Commission was appointed on the Civil Service because of criticisms made in another place, and that Commission, after enumerating defects which in their judgment existed in the organisation of the Civil Service at that time, recommended that the Treasury should be strengthened for the purpose of establishing a more effective control over the organisation of the Civil Service. In 1917 a Select Committee was appointed on National Expenditure, and that Committee reported that the degree of Treasury control then being exercised fell far short of the needs of the case. In 1918 the Machinery of Government Committee, presided over by Lord Haldane, was appointed to give effect to the re- 853 commendations of those two Commissions, and they made detailed recommendations as to the manner in which Treasury control ought to be strengthened. Their Report was published on December 14, 1918. That Report was considered by the Government of that day, by a very strong Committee, consisting of Mr. Lloyd George, Mr. Bonar Law, Mr. Austen Chamberlain, Lord Milner and Sir Auckland Geddes. They prepared a definite scheme which was submitted to the Cabinet and embodied in a Treasury Minute published over the signature of Mr. Baldwin, who was then Financial Secretary to the Treasury, which codified the position of affairs in 1919.
The statement in that document was that The functions of the Permanent Secretary will include responsibility for the organisation of the Treasury, for the general supervision and co-ordination of the work of the Treasury as a whole and for advising the Board. He will act as permanent head of the Civil Service, and advise the First Lord in regard to Civil Service appointments and decorations. That was in 1919. Since that date the position has been recognised repeatedly in Reports of Committees, of which I will give merely a selection. In 1920 there was a Committee on Civil Service pay which was presided over by Mr. Asquith, and its Report contained this statement: The Secretary of the Treasury receives, in addition to his salary and bonus as a Departmental head, £500 a year to mark his position as permanent head of the Civil Service In 1922 the Report of the Royal Commission on Honours contained this statement: The respective claims (i.e. to honours) are weighed and considered by the Prime Minister in conjunction with the Permanent Secretary to the Treasury, whose duty it is, as head of the Civil Service, to advise the Prime Minister on Civil Service decorations. The Alan Anderson Committee in 1923 reported in these terms: In private employment the duties assigned to senior posts in the Civil Service carry a higher salary. For example, many large companies pay their general manager more than three times the salary of the Secretary to the Treasury, who is the permanent head of the Civil Service and chief financial adviser of the Chancellor of the Exchequer and the Prime Minister. And in 1924 a Sub-Committee of the Committee of Imperial Defence, whose Report was published, stated who shall 854 normally be the members of the Committee of Imperial Defence, including, among others, The Permanent Secretary to the Treasury as head of the Civil Service. I could give further examples, but I hope that is sufficient to indicate to your Lordships, first of all, that the position of Treasury control has existed from the very days when the Civil Service as we now know it was constituted in the middle of the last century; that the Permanent Secretary to the Treasury has been recognised as the head of the Civil Service during the whole of that time; and that what has happened during the last twenty years has been that Parliament and Royal Commissions have insisted that Treasury control should be rendered more effective, and have persuaded the Government to make the control a more real thing than it had been in the past. Finally, so far from its not being recognised that the permanent head of the Treasury was the head of the Civil Service, Committee after Committee has definitely stated from 1872 down to 1924 that that was the office which he held. I venture to make this rather lengthy explanation because, as I said, anything that comes from my noble friend naturally attracts attention and naturally demands respect and consideration. I have, therefore, felt it my duty to deal somewhat exhaustively with the observations which he made. I beg to move.

§ Moved, That the Bill be now read 3^a.—(The Lord Chancellor.)

§ THE MARQUESS OF SALISBURY
My Lords, I need not say that I am extremely obliged to the noble and learned Viscount on the Woolsack for his full explanation of the position of the Treasury. I need not add that I had not of course the opportunity of seeing all those documents which the noble and learned Viscount has cited, and no doubt if I had seen them my observations would have been couched in rather different language. The advantage of discussions in your Lordships' House on several stages of a Bill is that as the stages proceed the explanations become a little fuller. That is, of course, of great advantage for the public information. As to the position of the Treasury, I think the noble and learned Viscount has established by the documents which he cited that the Treasury is at the head of the Civil Service and that 855 the Permanent Secretary to the Treasury is the principal representative of the Treasury, and in that capacity has a certain leadership. The proper head of the Treasury is undoubtedly the First Lord of the Treasury, and I certainly never contested his position; on the contrary, the greater the control of the First Lord of the Treasury over the Treasury the better for all concerned.
The real thing that we require to avoid is anything like the gradual invasion of bureaucratic power in this country. What we want is permanently to maintain what we possess, and what we possess in the highest degree, which is the government of this country by Parliament and by the representatives of Parliament—namely, His Majesty's Government. They are the people who ought to control the Civil Service or any Department in the Civil Service, and, so far as the First Lord of the Treasury is concerned, I should not like in anything I said to derogate from his power in the least. No doubt if he is not Prime Minister he is himself not supreme, for the Prime Minister, if he occupies another office, which he may do, is the real supreme head of the Government, and the First Lord of the Treasury, though not exactly his subordinate any more than any other of my noble friends on that Bench are subordinates of the Prime Minister—they are his colleagues—like them, accepts his leadership and ultimate control of the Government of the country. I do not desire for a moment to derogate from the power of the First Lord of the Treasury, but let us be quite clear that we do not want the permanent head of the Treasury to interfere too much in the government of this country. It is because, whilst I had the opportunity of seeing it close, that I detected a tendency in that direction that I felt called upon to make the observations I did.
I should like to say—because it is only right I should say—that I have a great respect for the present occupant of the office of permanent head of the Treasury. I believe him to be a civil servant of the highest character and one who has performed great services for this country. He happens to be a personal friend of my own and I am very proud to have his friendship. But that does not alter 856 my view that in that capacity he ought not to have too much control of the government of this country. Government should reside not in the permanent officials but in the Parliamentary chief. And it is because I was aware long before the debate took place on this Bill that there was a tendency in the other direction, and I thought I detected a tendency on the part of the head of the Treasury to interfere with the powers of the permanent heads of the other Departments, that I said what I did. And I think the noble and learned Viscount will find, if he makes inquiry, that the apprehension which I expressed is shared by a good many members of the Civil Service and that I do not stand alone in that respect. But I agree, and I ought candidly to admit, that I was not aware of the documents which the noble and learned Viscount has cited. I fully accept the statement which he has made and recognise that if I had known what he knows I should not have couched what I had to say in the language that I used.

§ THE LORD CHANCELLOR
My Lords, I would only like to associate myself with what my noble friend has said, that the First Lord of the Treasury, or rather the Treasury Board with the First Lord as its head, is the organism which exercises Treasury control. The Permanent Secretary to the Treasury is the civil servant whose duty it is to advise the First Lord on the matters which come before him in relation to the Civil Service but the First Lord is himself, no doubt, entirely the person responsible to Parliament and to the country for the exercise of Treasury control. I think Treasury control does not really mean anything more than the control by the First Lord of the Treasury, and the headship of the Civil Service does not really convey very much more than that the Permanent Secretary to the Treasury is the person charged with the duty in the Civil Service of advising the Prime Minister on Civil Service matters. I entirely accept what my noble friend said in that regard.

§ THE MARQUESS OF SALISBURY
I am much obliged to the noble and learned Viscount.

§ On Question, Bill read 3^a.

§ Clause 3 [Additional salaries to Cabinet Ministers, who hold offices at salaries less than five thousand a year]:

857

§ VISCOUNT BERTIE OF THAME moved to leave out "which" ["any Minister of the Crown to which this section applies"] and insert "whom." The noble Viscount said: My Lords, I feel sure that my noble and learned friend on the Woolsack will be the first to agree that it is impolite and indeed improper to refer at any rate in an Act of Parliament to a Minister of the Crown as neuter. I therefore have much confidence in moving the small Amendment which stands in my name.

§ Amendment moved— Page 3, line 20, leave out ("which") and insert ("whom").—(Viscount Bertie of Thame.)

§ THE LORD CHANCELLOR
My Lords, I should like to make my apologies to my noble friend, who is always a purist in grammar and who constantly keeps us straight in relation to some of these Bills. I have communicated with the draftsman, and he desires me to express his indebtedness to my noble friend for having detected the mistake. We gladly accept the Amendment.

§ On Question, Amendment agreed to.

§ Clause 9:

§ Capacity of persons to whom salaries are payable under Act to sit and vote in House of Commons.

§ 9.—(1) Subject as hereinafter provided no person to whom a salary is payable under this Act shall by reason of his being the holder of the office or place in respect of which such a salary is payable, be rendered incapable of being elected, or of sitting and voting, as a member of the House of Commons:

§ Provided that—

(a) the number of persons entitled to sit and vote in that House while they are Ministers of the Crown named in Part I of the First Schedule to this Act shall not exceed fifteen;
(b) the number of persons entitled to sit and vote in that House while they are Ministers of the Crown named in Part II of the said Schedule shall not exceed three; and

§ THE MARQUESS OF CREWE moved, in subsection (1), to leave out paragraphs (a) and (b) and insert:

(a) the number of persons entitled to sit and vote in that House, while holding any office named in Part I of the First Schedule to this Act, shall be less by two or more than the number of persons holding offices specified in Part I of that Schedule;
(b) the number of persons entitled to sit and vote in that House, while holding any office named in Part II of the First Schedule to this Act, shall be less by one or more than the number of persons holding offices specified in Part II of that Schedule; and"

§ The noble Marquess said: My Lords, I need not assure the House that in placing this Amendment on the Paper I had no intention of suggesting any fundamental change either in the Bill or in the Schedules of the Bill. Had that been my purpose I should clearly have proceeded to do so at an earlier stage. The purpose of this Amendment is to lay somewhat stronger emphasis on a principle which I think it is safe to say would be accepted by all Parties in your Lordships' House—that is to say, that in the allocation of the different Ministries there should be a certain number, limited by the terms of the Bill, to those who sit in another place, and that the other members either of the Cabinet or of those included in the Second Schedule should be members of your Lordships' House. That cannot, as the Bill is drawn, be anything more than a recommendation. It is not, curiously enough, obligatory so far as I know on any Minister of the Crown to sit in either House of Parliament. To take an extreme instance, if the Prime Minister to-morrow were to apply to be appointed Steward of the Chiltern Hundreds or of the Manor of Northstead, after having vacated his seat there is nothing so far as I know to prevent his retaining his office as First Lord of the Treasury.

§ There have been many cases in the past where Ministers have not sat in Parliament. There is the well-known case of Mr. Gladstone who, having been appointed Colonial Secretary by Sir Robert Peel in December, 1845, and having resigned his seat at Newark owing to a conscientious scruple, remained out of Parliament but continued as Colonial Secretary until the Government was defeated and turned out in July of the following year, 1846. There are also some recent instances. Unless I am mistaken there has recently been a case of one of the Scottish Law Officers who had no seat in Parliament for a considerable time but who held his office without complaint from anybody. So far as Mr. Gladstone was concerned, I believe that even his unequalled explanatory powers did not enable him to answer the criticism which was levelled at his retention of office during that period of eight or nine months. 859 As some of your Lordships will know, there have been cases where the noble and learned Lord on the Woolsack has at times not been a member of your Lordships' House. Having been a commoner until his patent is entirely completed, it is possible for him to come and sit as Speaker of the House without any power of speaking or voting. That has actually happened within the knowledge of many of your Lordships.

§ THE LORD CHANCELLOR
It happened to me.

THE MARQUESS OF CREWE
Apparently it happened even in the present case. But if any noble and learned Lord on the Woolsack endeavoured to exceed the functions of Speaker and endeavoured to take part in debate, he might easily find himself in the position of a Speaker in the seventeenth century of being forcibly held down on the Woolsack by some noble Lord—perhaps by my noble friend Lord Strabolgi, who is so capable of doing it. When you come to think of it, that is a very strange position. It is conceivable there might be a Ministry composed of Privy Councillors—because nobody can advise the Crown except Privy Councillors—of persons not having a seat in either House of Parliament. It will be said, of course, and there I agree, that it is a situation not exactly likely to arise, but I can conceive some conditions under which, in a modified form, a difficulty might be created by the appointment of Ministers who were not members of either House.
I am sorry, therefore, that when His Majesty's Government were engaged in removing various anomalies attached to the salaries paid to Ministers and, so to speak, were tidying up the whole business, they did not go a step further and, while leaving the terms of the Bill much as they are—that is to say, that the number of Ministers who can sit in one House should not exceed a certain figure—they did not add a further proviso that nobody should be able to retain any of these offices after an interval, say, of two months or whatever might be considered the appropriate interval, unless he were a member of either one House or the other. That is not an Amendment which it would be possible for any of us to move within the terms of the Bill. It would, I fancy, necessitate a change in 860 the Title and Preamble of the Bill; and in present circumstances it may be assumed that neither that Amendment nor a still more marked Amendment—namely, that a maximum figure should be allotted to this House as also to another place—would be accepted. As I say, I am sorry that some such step was not taken, and I can only hope we shall not be told it is too late now to make some Amendment of that kind with the agreement of our friends. If that is so, I think it is a regrettable circumstance.
Various difficulties may arise according to the wording of the clause as proposed. It says: the number of persons entitled to sit and vote in that House while they are Ministers of the Crown … shall not exceed fifteen. That would not prevent one or more of them from holding several of the offices included in the list. As we all know, it is by no means uncommon for a Minister to hold more than one office. The noble Marquess opposite, the Secretary of State for India, has also lately, I think, become Secretary of State for Burma. For some time after the division of the Dominions Office and the Colonial Office the two Offices were held by the same Minister, and, if I may refer to my own experience, it twice happened to me to hold the office of Lord Privy Seal in conjunction with two other different offices. How far it is possible to accept the terms of my Amendment, which says that the number of persons entitled to sit and vote in another place shall be less by two or more than the number of persons holding offices specified in Part I of that Schedule, I do not know, but it appears to me to meet the minor difficulty which I have just mentioned. I will not detain your Lordships longer, but I hope the noble and learned Viscount on the Woolsack will be able to say that in so far as this measure is concerned it is the desire of the Government that those members of any Ministry who are not sitting in another place should sit as members of your Lordships' House.

§ Amendment moved— Page 5, line 10, leave out paragraphs (a) and (b) and insert the said new paragraphs.—(The Marquess of Crewe.)

§ THE LORD CHANCELLOR
My Lords, I readily give the Marquess at once the assurance for which he asks—or very nearly the assurance for which he asks 861 —namely, that Ministers who do not sit in the House of Commons should be members of this House. I do not give it quite in an unqualified form, because, as my noble friend himself points out, there have been cases in which Ministers who have not been members of either House have nevertheless held office for quite substantial periods. The Lord Advocate, in 1923 I think it was, was my noble and learned friend Lord Thankerton, then Mr. Watson. He was a Minister for nine months without being a member of another place; and the present Solicitor-General for Scotland, Mr. Reid, has only recently been elected to Parliament in the House of Commons. Therefore I cannot say that we will do away altogether with the power of having such an arrangement; but I do most emphatically assure my noble friend that we should regard it as being entirely outside the purpose of the Bill for members who were not members of either House of Parliament to be appointed and to the detriment of the representation in this House of the Ministry of the day.
I do not think—my noble friend will forgive my saying so—that that is a thing very likely to happen. There may, of course, be extreme Governments. That is always a possible thing, although I hope not a very probable one in this country, but if an extreme Government came into office they probably would operate, not by way of decreasing representation on the Front Bench, but of increasing the representation on the Back Bench, and they would be much more likely to seek to end this House than to hamper their own administration of their business in the House. Your Lordships appreciate that if a Government has not got adequate representation on the Front Bench in this House it suffers inevitably in its efficiency, in the explanation of its case and in the presentation of its Bills. I do not think that it would be very likely for the Government to do that, because the only conceivable object of putting down the representation in this House would probably be to increase the representation in another place, and that is prohibited by the express terms of the Bill as it stands.
I am afraid I cannot accept my noble friend's Amendment. In the first place it is rather a drastic one to make at this stage. It would entail all sorts of consequential Amendments. For instance, 862 Clause 9 itself, subsection (2), deals with the position which would arise if at anytime the number of persons who are members of the House of Commons while they are Ministers of the Crown exceeds the number in Clause 9 (1). If that occurs then you have to wait until the number of Ministers in the House of Commons is reduced by death, resignation or otherwise. If my noble friend's proposed words were accepted, a number of consequential Amendments undoubtedly would have to be made. I think my noble friend's intention is exactly the same as the Government's intention, and I do not think there is any real danger of the contingency which my noble friend contemplates arising, because the only conceivable inducement for a Government to do anything of the kind—that is to say, appoint a member of the House of Commons to more than one office and have fewer Ministers in this House than this Bill contemplates—would be to provide extra Ministers in the House of Commons, and that is a thing which they are forbidden to do by the expressed terms of Clause 9. I hope therefore that my noble friend will not press his Amendment, although I hope also he will accept my assurance in the qualified terms which I am able to use.

THE MARQUESS OF CREWE
My Lords, after the explanation which the noble and learned Viscount has given, I beg to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ Bill passed, and returned to the Commons.