HOUSE OF COMMONS DISQUALIFICATION (TEMPORARY PROVISIONS) BILL. (Hansard, 29 February 1944)

§ THE LORD CHANCELLOR (VISCOUNT SIMON)

My Lords, I move the Second Reading of this Bill, the effect of which is to continue for a further period of twelve months the House of Commons Disqualification (Temporary Provisions) Act, 1941. That Act itself was for a limited period, and there have been two enactments since which have extended the period of its operation, each time for one year. If the present measure is passed, the period to which these temporary provisions may operate will be carried down to March 5, 1945. The urgency, therefore, of carrying this Bill at once will be obvious because otherwise the existing legislation will expire next week.

The Bill deals, as your Lordships will recall, with offices of profit under the Crown. That is an interesting subject with a long history behind it, and a subject on which a Select Committee of the House of Commons, presided over by my noble friend Lord Hemingford, made a 1006 most valuable Report to Parliament some time back. There is nothing very scientific about the existing law on this subject, which draws a distinction between old offices, which are offices of profit under the Crown that may be held by a member of the House of Commons, and new offices of profit which are offices that cannot be held by a member of the House of Commons. The only difference between the two categories is that the first lot came into existence before and the second lot after a particular moment in the reign of Queen Anne—in the year 1707.

The history is interesting to us because there was a moment when it very nearly happened that we adopted the law that nobody who held an office of profit could sit in the House of Commons at all. In that event we should have had something like a separation between the Executive and the Legislature, which is a prominent feature of the Constitution of the United States; but before our ancestors finally put in force that provision—which they had carried—they repealed it and substituted the Act of 1707. It was felt—and for us at least this is a good argument—that it really was necessary to have a certain number of Ministers holding offices in the House of Commons, and on the other hand it was most desirable that the number of persons holding offices of profit who were in the House of Commons should not be too large. Consequently, legislation was passed, as your Lordships know, which provides that old offices of profit may be held with a seat in the House of Commons and new offices may not, unless Parliament specially provides otherwise, as Parliament often does. There is, for example, the case of a number of the new Ministries. Take the Ministry of Agriculture—an example before the war. The Ministry of Agriculture was created, and by the express terms of the Statute the holder of that office may sit in the House of Commons. To take a later example within the period of the present war—the Minister of Economic Warfare. By express provision of the law he may sit in the House of Commons.

When you come to the actual period of war such as we are living through now, it has been felt that some special considerations arise. It is a time when everybody wants to undertake what he properly can in the public interest, and it is a time when the Government or the head of the 1007 Government may very well be anxious to use a man who is a member of the House of Commons in a position which is technically an office of profit, though at the same time the individual may be very unwilling to give up his right to sit in the House. An office of profit in this connexion does not mean an office under the Crown for which, in fact, payment is made to the holder. There are offices of profit for which no payment is made at all. The test is not whether the individual is paid; the test is whether the office is the sort of office which would normally receive payment. Thus, for example, a member of the House of Commons who is chosen to take a particular position cannot retain his seat by the simple expedient of saying, "Oh, I shall not take any salary ". That does not make any difference at all. It still remains an office of profit if that is the general nature of the office. Therefore, unless some provision is made in war-time for the beat use of the services of some members of the House of Commons, which the Prime Minister and the Government are anxious to put to a particular use, no arrangement that these members will not receive any salary—as indeed is the case with a large number of the gentlemen who have been certified— would in the least alter the strict operation of the Act of Anne.

That is the situation in which the original Act was passed early in the war. The provision in fact was this, that if the First Lord of the Treasury certified that the appointment of a particular member to this office of profit "is required in the public interest for purposes connected with the prosecution of the war," then the office ceases to disqualify him. There was some criticism, I think, of the original Bill. Certainly one outcome of it was the Committee, presided over by Lord Hemingford, to which I have referred. That Committee recommended that when the original Act was extended, if it ever were extended—for it was only to last for twelve months—there should be set a limit to the number of certificates under the Statute. I think they described it as "a reasonably wide limit" as to the number of individuals in the House of Commons which could get this anomalous advantage—namely, that they were appointed to a new office of profit by the Prime Minister's certificate, which I have just summarized, and consequently 1008 did not lose their seat in the House of Commons.

Therefore in the second Bill, which was for carrying on the arrangements after twelve months, there was inserted a limiting provision. That provision was that not more than twenty-five members of the House of Commons should be allowed to enjoy this advantage at the same time. In fact the number of members now certified under the Bill is, I think, nineteen. Most of them (but not all of them) are in this country doing whatever service it is which they have been appointed to do, and therefore they are not by absence unable to attend the House of Commons, though a few of the others are in that position. In any case the matter is a purely temporary war-time measure. After some discussion in the House of Commons, which was quite natural, the Bill was carried without dissent and it now comes to your Lordships' House to be confirmed by this Assembly. If this Bill were not carried the whole of this arrangement, as I have already pointed out, would automatically come to an end in the course of next week. That unquestionably could not be regarded as a desirable thing; consequently I do not doubt that for that reason, if for no other, your Lordships would be prepared to approve of the decision unanimously reached by the House of Commons to prolong this purely war-time measure for another year.

There was an Amendment made in the Commons which your Lordships will have been glad to note in the present Bill—namely, that a return should be published before the end of January as to the number of the Members of Parliament who are holding these certificates. Some of the services being performed are very large and important and some are of a much more limited character, like presiding over some particular War Board and things of that kind. That, therefore, will be done. If time should so work out that we shall have occasion to consider this matter further in a year's time, there will be a precise return available showing exactly who are the individuals who have been appointed, what is the service which they are rendering and what is their salary, if any, at that stage. I hope I have made plain to your Lordships that really the test of whether a particular appointment is an office of profit is not definitely answered 1009 by inquiring whether the individual filling it is getting a salary or whether he is giving up a salary It is the nature of the office which decides what constitutes in the proper sense an office of profit under the Crown.

If I may conclude with a word of my own view on the matter, I would say that I think that the examination made of this whole subject by Lord Hemingford's Committee was of the greatest possible help. They pronounced their deliberate conclusions on a number of very difficult and very doubtful points and I do not doubt it would be an advantage, if time could be found, to have legislation on the lines of their more permanent recommendations. This, however, is a war-time measure for a purely temporary purpose. I think we shall probably all agree that the principle of Members of Parliament holding this kind of office puts them in an anomalous position and that their number should be strictly limited. It is not merely in the interests of the House of Commons, it is in the interests of both Houses and of the nation that there should not be an unlimited opportunity for an increasing number of Members of Parliament who are specially connected with the Government of the country by holding these offices. That has been assured by this limiting of the number to twenty-five and in fact, as I have slid, the number at this moment is nineteen. I hope with these considerations in mind your Lordships may be disposed to give a Second Reading to the Bill.