§ 4.8 p.m.
§ Order of the Day for the Second Reading read.
§ THE EARL OF LONGFORD
My Lords, I rise to move the Second Reading of the Machinery of Government Bill. This could hardly be described as one of the major measures being brought forward by Her Majesty's Government, although it establishes three vital Ministries. It is a highly technical and complex Bill. This can fairly be said to be no fault of ours or of the draftsmen or, for that matter, of the late Government. It arises from the very abstruse character of the law on this subject.
I cannot suppose that any noble Lord, however acute and earnest, could have made much sense of this Bill as it stands without a thorough understanding of the 1957 Act and a good deal of other background. The Attorney General in another place, without wasting words, spent fifty minutes in explaining the main provisions and I hope to detain your Lordships for a great deal less time than that. A number of noble Lords, including those who are going to speak, will have no doubt studied the proceedings elsewhere, and therefore I need not repeat them extensively. I hope that the House will allow me, in introducing this Bill, to attempt an exposition which will be easily understood by your Lordships' House as a whole, even those who are coming fresh to the subject this after- 384 noon. My noble and learned friend the Lord Chancellor, when he winds up, will deal with any points that may be raised, intricate or otherwise.
As I see it, the Bill serves three purposes. First, it creates three new Ministries; secondly, it increases the number of Ministers sitting in another place whom the Government are legally permitted to appoint at any one time; and, thirdly, it clarifies, and to some extent—though only to some extent, I agree—rationalises the rules governing the type and number of Ministers who can be appointed. It includes new provisions for the payment of these Ministers, and it does something, at least, to introduce new safeguards. I do not want to exaggerate this latter point. I hope that any anxieties which exist in connection with the proposed increase of Ministers will be allayed after our discussion to-day, but so far as they continue to exist, I hope that the provision for rationalisation and new safeguards will do something, at least, to counteract them.
As regards the new Ministries, the Ministries in question are, first, the Ministry of Land and Natural Resources; secondly, the Ministry of Overseas Development; and thirdly, the Ministry of Technology. The House is well aware that three of the issues stressed with special force by the Government at the time of the General Election, and three of the main issues on which they can, therefore, fairly be said to have been elected, were the land policy, the policy for aid to underdeveloped countries and the policy of applying technology to industry far more deliberately than ever before. I should hope that as rgeards overseas development and technology, whose spokesmen have made such a fine start in your Lordships' House—and, of course, technology is officially represented here by the noble Lord, Lord Snow—there is no real difference of principle between us. I cannot hope to say the same about land policy. But even noble Lords opposite, who may be the most critical of the proposed Lands Commission, would surely prefer that very great care and trouble and specialised attention were given to the creation of the Lands Commission. This will be one important consequence of establishing this new Ministry of Land and Natural Resources.
385 I hope the House will forgive me for not saying more of the functions of the three Ministries this afternoon. I repeat that, in the firm opinion of the Government, they are all necessary if the Government are to give effect to the policy on which they were recently elected. Every Government must make up their own mind regarding the categories of Ministers and Ministries which they judge essential. Certainly that was the position taken up and given effect to between 1951 and 1964 by the Conservative Administration.
To give your Lordships just a small illustration of how things changed during a considerable period of government, the 1951 Conservative Administration, for example, had a Cabinet of sixteen, including ten Ministers in another place and six in your Lordships' House. Those of your Lordships who have been here for some time, and certainly all those in politics, will easily recall that in the 1951 Government the experiment with Overlords was tried. When the Conservative Administration went out of office this year they had a Cabinet of 23, of whom three sat in your Lordships' House. Those were considerable changes of the kind which every Government have the right to make, though equally the Opposition have the right to criticise them, as they think fit.
Between 1951 and 1964 many changes took place in the pattern of Ministries and offices. The Overlord system was not voted a success, but we saw the evolution of the Defence Departments to their present shape under a single Secretary of State for Defence. There were amalgamations, like Transport with Civil Aviation and Agriculture and Fisheries with Food. But new Departments were also formed by Conservative Governments; for example, the Ministry of Aviation, in 1959, the Office of the Minister for Science in the same year, the Department of Technical Cooperation in 1961, and the Central African Office in 1962, each of them meeting what was judged an emerging requirement at the time. These three new Ministries, therefore, are the last up to the present time in a long line of Ministries that have been established by the Government of the day to give effect to their policies.
I now come to the second and third purposes, which I agree are rather harder to follow if one has not done any pre- 386 vious work on this subject: I refer to the increase in the number of Ministers permitted to sit in another place, and the simplification and the introduction of one or two new safeguards into the arrangements concerning the appointment and payment of Ministers. The present situation, as I indicated at the beginning, is highly complex and full of anomalies. At the risk of oversimplification (and if I go wrong, no doubt I shall be corrected, now or later, by the noble and learned Lord the Lord Chancellor), I will sum it up in this way.
At the present time, not more than 70 Ministers from a specified list—the names must be taken off a printed list—may sit in another place, and not more than 27 may sit there if they come under the heading of senior Ministers in the same list. That is the position before this Bill comes forward. This does not impose quite so clear and absolute a limit to the creation of Ministers as might be supposed at first hearing. In the first place, there is no limit at present to the number of Ministers who may sit in this House. There may be practical limits, as the House will understand, but there is no statutory limit to the number of Ministers who may sit here. However, I will come to the position of this House before I close.
Secondly, as regards the other place, although the office of Minister of State (and that term is particularly tiresome in this connection, because it does not mean just what we mean by Minister of State here: it means any non-departmental Minister who is not on the stated list; and he may be in the Cabinet or out of it) counts as a senior ministerial office, so that its holders come within the total limit of 27, they do not count as holding that office unless they are appointed to it at a salary. Therefore, if they do not receive a salary they are not caught by that restriction. In the third place, there is no limit at the present time to the total number of Ministers of State, paid or otherwise, whether they sit in this House or in another place.
What changes do we propose? One type of change extends the existing power of the Government and another introduces two new safeguards. In future—this is the extension of the power of the Government—the number of Ministers who may sit in another place may be increased 387 from 70 to 91, and the limit on the number of so-called senior Ministers who may sit elsewhere will be removed. That increases the freedom of the Government, in the sense that it gives any future Government the power to go as far as the present Government have done; and they will also have the power to pay all the Ministers in question. But against this the Bill introduces two new restrictions, which do not exist now, on the power of future Governments.
First, the limit on the number of Ministers who may sit in another place will bite (to use what seems to be the jargon word) not only on Ministers of State appointed at a salary, but also on any who are appointed without a salary. Secondly, the Bill introduces for the first time a limit on the total number of Ministers of State who can be appointed and paid. The number chosen—where there was not any limit before—is 19, which is the number of Ministers of State in the present Administration. As I say, the term "Ministers of State" does not mean what we ordinarily call Ministers of State. It means these non-Departmental Ministers, whether in the Cabinet or out of it, and not counting those in the specified list like the Lord Privy Seal or the Lord President of the Council. Some noble Lords may consider that the increase from 70 to 91 Ministers permitted to sit elsewhere sounds rather a steep increase. But may I point out that six Assistant Whips, previously unpaid, are now to be paid—and I hope nobody is going to object to that—which brings the difference down to 15.
I fully appreciate—and I hope noble Lords will not think I am handling at ail lightly the issue here—the genuineness of concern about this question. The noble Lord, Lord Dilhorne, and the noble Lord, Lord Morrison of Lambeth, and other noble Lords who speak, may pause to ask the question: Are we sure that the Government are not acquiring too large a direct influence over the Members of another place? I hesitate to say this, particularly with the noble Marquess, Lord Salisbury, so to speak, so close at hand, because I am not sure whether this is a correct point of view. It seems to me that this particular issue of how many Ministers are sitting in another place is one on which the House of Lords may hesitate 388 to pronounce too dogmatically, at any rate except in so far as it bears on our work in this House. I agree that there is an inter-connection, or there may be thought to be, although the interconnection is not what some may suppose.
I concede that there is obviously some limit to the number of Ministers whom it is desirable to appoint in relation to the total number of Members of Parliament. Whatever the right figure is, there must be some upper limit. I am sure that that, at least, is conceded. On the other hand, I hope noble Lords will not suppose there is any special sanctity about some figure that has been settled at some moment in time, as the functions of Government in this country tend to be expanded. This is so, whatever Party happens to be in power. It is impossible to argue that the right number of Ministers yesterday is necessarily the right number to-day, or still necessarily the right number tomorrow. One cannot say that.
If I may say so, the whole experience and practice of the Conservative and other Governments has proved the contrary. If you take the last Conservative Administration, for example, during their considerable period of power they found it necessary to add 9 Ministers to a previous total of 82—so they certainly did not stand still. On top of the 91—the 82 plus 9—there were 6 Assistant Government Whips in another place unpaid; so the total of Ministers and Whips who might fairly be regarded as under the direct control of the Government just before the present Administration came to power was 97. The comparable figure at this moment is 108, but I believe I am at liberty to assume that three remaining Household positions will be filled in your Lordships' House, which will bring it to 111. That, on the face of it, would mean that there are 14 more Ministers to-day than there were in the last Government.
But I think it is right to take some notice, surely, of the number of Parliamentary Private Secretaries. There were 36 Parliamentary Private Secretaries just before the last Election, and there will be probably rather fewer in this Administration. Certainly there are fewer at the moment, and will be even 389 when the two new Ministers have been elected to Parliament. When that happens—as no doubt it will—I consider the number of Parliamentary Private Secretaries will show a reduction. On some other occasion—it would be perhaps rather dangerous for me to do so now—I might venture to ask the view of the House as to how many Parliamentary Private Secretaries are desirable in any case; but perhaps that is more a matter for the House of Commons than for us.
Looking at the picture as a whole, we see that the extent of the patronage exercised in these ways has not been increased by a striking figure. Perhaps as a result of our coming into office with far-reaching schemes and a sense that a great deal needs to be done, the total reckoning, if you count in the Parliamentary Private Secretaries, is a little, if any, more than occurred during the period of the last Administration. The number of Ministers, of course—none of us can be sure of the future, any more than be sure of what Party will be in power—cannot go up in future without fresh legislative sanction. For all I know, the number of Ministers may go down. There seems to be a widespread impression—I do not know how justified—that the Prime Minister himself regards the present Cabinet as rather too large. There is even talk of cutting out dead wood after a trial period. This rumour, true or false, should encourage noble Lords opposite who never like to see too many Ministers, though it carries its own threat, I suppose, to the older timber—I mean the old hands who were first appointed to office in 1945, and who are still in the Government in one way or another. Of these, there are three in the Cabinet; one is the Prime Minister himself, and of the other two I happen to be one. So all this talk suggests that I had better make hay while the sun shines. I only hold out these prospects which may console people when they see a great many Ministers just now.
I now turn to your Lordships' House and our position. It may be that some noble Lords will fear that, by removing the limit of 27 on the number of Ministers who may sit in another place which has operated up to now, the Government have reduced in practice the assurance of senior Ministerial representation in this House. I know that fear exists, but it needs very 390 careful study before one is in a position to form an opinion. My opinion is that in fact nothing of that sort has occurred. But this is a very complex subject. If one looks at the situation as it has been with the existing limit in force, and as it will be without that limit, I strongly suggest to the House that these apprehensions are groundless.
I would say that the existing law provides by itself no assurance about the number of Ministers who may sit here. It merely assures this House of any excess of the total number over the number who are allowed to sit in the House of Commons. But whether there are 70 or 91 who are allowed to sit in another place does not finally determine the number who sit here. Nor does the removal of the limit of 27 senior Ministers remove an effective protection. Whether you have 17, 27 or 37 senior Ministers allowed elsewhere does not finally determine the number of senior Ministers who in practice would be appointed in this House. It is not the operation of any limit that has settled, for example, the number of Ministers in this House now. The limits in the Bill reflect the distribution between the two Houses as it emerged for quite different reasons, but the actual distribution of offices between the two Houses is something which depends upon the policy of the Government of the day. I can assure noble Lords that I cannot myself see how it can be affected in any substantial way by a Bill of this kind.
At the end of the last Government there were 21 Ministers in your Lordships' House. In 1959, I believe there were 17. As I explained in an earlier debate, when all the offices are filled here we shall have 20. I admit that possibly we ought not to count the noble Lord, Lord Caradon, who may be absent for most of the time at the United Nations, though I am happy to think he will be speaking here next week. I will not go into the argument which I went into in an earlier debate in which I sought to demonstrate that quantitatively speaking—I was not concerned with quality—there should be as much Ministerial spokesmanship available under the new dispensation as there was during the period of the late Government.
I am bound to make one admission here, and I think it is a point which the noble Lord, Lord Dilhorne, had in mind 391 in a subsequent speech he made in that debate. At the moment I agree that we have fewer Ministers of State in this House than had our predecessors—using the term Ministers of State now in the sense of assistant Ministers, and not in the technical sense of this Bill. But, to be quite frank, I cannot agree—and I question whether anybody who sits on the Cross-Benches would agree—that in terms of experience, maturity or debating ability our combined team of Ministers of State and Parliamentary Secretaries is any weaker than that of the last Government, whatever their status was or ours is.
With proper diffidence I therefore lay before the House that this particular change of status has not had any particular effect on the strength of the Government of the day. If anyone has any complaint as regards the point of status, I venture to suggest that it could not be the House as a whole; it could only be the Ministers themselves who are called Parliamentary Secretaries now where they would have been called Ministers of State by the last Government. I am sure my colleagues who come under these headings will not be in any way disgruntled.
My Lords, I certainly do not think that anyone who was present, for example, at the Economics debate last week would argue that our Ministers were out-gunned. One criticism that reached me was that there were too many of us taking part and that we spoke for too long, but that does not suggest under-representation. Certainly at one point our oratory had become so overwhelming in a good sense or a bad that the Benches opposite, Front and Back, were totally vacated. If we had had more senior Ministers here, heaven knows what would have happened to noble Lords opposite. We on this side had to waste our fragrance on the desert air. I repeat, the number or type of Ministers in this House is not the cause or effect of a Bill of this kind. I would say that it is totally unaffected by it.
The noble Lord the Leader of the Opposition, in a generous speech welcoming me to my present office, was good enough to say that he felt sure I should do my best to defend the interests of the House. I can hardly claim to be the author of the present Bill, but I would 392 not commend it to your Lordships if I thought that it in any way impaired the rights of the House or the prospect of adequate explanation and defence here of Government policy; I am sure that is not so. On the contrary, I am sure that this Bill will be useful in a great number of ways, above all in establishing new Ministries which will be of the utmost service to our people in the years ahead. I beg to move that the Bill be read a second time.
Moved, That the Bill be now read 2a.—(The Earl of Longford.)
§ 4.33 p.m.
§ LORD DILHORNE
My Lords, I listened with the greatest interest to the speech made by the noble Earl the Leader of the House in moving the Second Reading of this Bill. It was a very skilful speech. The noble Earl touched on a wide variety of subjects and very wisely said very little about the Bill. What he did say was, I think, inaccurate in one particular, to which I shall come, and inaccurate as to the effect of the Bill at the present moment, but not, I hope, with regard to the Bill when it leaves your Lordships' House. It really is a very odd Bill. I am not going to follow the noble Lord's invitation to discuss the merits, capacity, maturity and extent of dead wood in the members of the Government sitting opposite me. Nor am I going to engage and follow his example in self-praise and praise of my colleagues on these Benches, because that is entirely irrelevant to this debate. But this Bill is really rather odd from start to finish.
First of all, it is called the "Machinery of Government" Bill. Where is the machinery? There is plenty about the Government. There is only one Clause 1n it which can possibly be described as dealing with the machinery of Government, and that is Clause 4, which is a completely non-controversial clause. As the Long Title shows, the Bill's main object is… to make provisions with respect to departments and salaries of certain Ministers: to amend the provisions of the House of Commons Disqualification Act 1957 … ".Neither of these two objects has anything to do with the machinery of Government, and I would ask the noble and learned Lord on the Woolsack, who has, as your Lordships will remember, so frequently criticised the Statutes passed by Parliament, both their form and their content, 393 in all seriousness, to find a more appropriate Title. It will require an Amendment to Clause 6 (2); but this Title will not do.
If the noble and learned Lord wants any suggestions I am perfectly willing to put some forward, though I fear that they may not prove very acceptable to him. A very apt Title for this Bill would be the "Inflation of Government" Bill. But perhaps, speaking more seriously, the right Title would be one similar to that of the Ministers of the Crown Act, 1937, which dealt with very much the same matters, with salaries of Ministers, numbers of Ministers, and the limit on the number of Ministers who can sit in another place. Why this Bill has been given this very odd title of "Machinery of Government" I have not the least idea, and I hope that the noble and learned Lord on the Woolsack, if he wishes to retain this Title, will at least make that point clear.
I should like now to turn to Clause 1 of the Bill, which, again, is a very odd provision at this lime; though it would be a perfectly ordinary provision if, as has so frequently been done, a Bill had been introduced to create and set up a new Ministry and then, that Bill having reached the Statute Book, a Minister was appointed. But here the cart has gone well before the horse. Ministers have been appointed, and the only purpose of Clause 1 is to attract the First Schedule; and I want to ask your Lordships to look and see what that does. But before I do that, might I just draw your Lordships' attention to the fact that when you look at Clause 1 you will see that there is a subsection (1)? What has happened to subsection (2)? There is not one. I looked it up as a matter of interest, and it has been in that form ever since presentation in another place. Again, I would ask the noble and learned Lord on the Woolsack to remind himself of the criticisms that he has made so powerfully of sloppy legislation, Bills badly prepared, et cetera, and ask him: What has happened to subsection (2)?
When one comes to look at Schedule 1, and sees how the Schedule applies to the three Ministers—the Minister of Land and Natural Resources, the Minister of Overseas Development and the Minister of Technology—the first provision is thatThe Minister shall take the oath of allegiance, and the official oath … ".394 Have they done so already? I would suspect that they all took the oath of allegiance on appointment, immediately after October 15. Is that the case? Could we be told? If they have already taken the oath of allegiance, why are we required to pass an Act of Parliament to say that they should do so again?
§ LORD DILHORNE
I am going to ask a series of questions to which I hope the noble and learned Lord will reply. But if the noble Earl remains in a semi-recumbent position I cannot possibly tell whether or not he desires to interrupt. But I think I can compress my remarks into a shorter compass and make them a little clearer if I am allowed to proceed without interruption (unless the noble Lord wishes to explain something). I did not interrupt the noble Earl, Lord Longford; I listened with interest to what he said.
I come to paragraph 2 of Schedule 1, which says:The Minister may appoint such secretaries, officers and servants as he may with the consent of the Treasury determineI do not for one moment suggest that Ministers have not been given help before the passage of this Bill. I do not for one moment suggest that there may not be ways and means whereby civil servants can be appointed to these different Ministries. But if that can be done without a Bill of this sort, why are we now asked to pass a Bill containing these provisions which, we are told. In the explanatory Memorandum of the Bill arethe standard provisions relating to oath of office and departmental structure which have been enacted, in more or less common form, for all departmental Ministers created since 1916, other than Secretaries of State"?It does seem rather odd; and of course it is due to the fact that action was taken without statutory authority.
When the noble Earl the Lord Privy Seal suggested that noble Lords had no doubt studied the proceedings in another place, I must point out and make a complaint that in fact noble Lords have not had much time for the consideration of this measure. It is all very well for the 395 noble Lord to say that Members of your Lordships' House should read Hansard of another place, or should wait for answers given to supplementary questions by the Chancellor of the Exchequer in another place; but this House, if it is to do its work properly, must have proper opportunity and time for consideration of measures such as this, which the noble Lord described as technical and complex.
Here we have this Bill, which was introduced into your Lordships' House on December 11, being debated on Second Reading to-day; and I gather that the Committee stage, and perhaps the remaining stages, will be taken next Monday. That is hardly treating your Lordships' House with proper respect. We are not approaching the end of the Parliamentary Session. What is the reason for the urgency? I should have expected the noble Earl to make some explanation or statement, when he moved the Second Reading, telling us why it is being taken so soon; but on that subject he was entirely silent. The reason is obvious—he will correct me if I am wrong. The reason is that until this Bill is enacted, if it is ever enacted, the salaries cannot be drawn by these Ministers appointed without statutory authority. If that is the explanation, I should have thought something would be said by the noble Earl to your Lordships' House about it.
Let us look at exactly what has happened. The Prime Minister decided that there should be a Minister of land and natural resources. I am not here to go into the functions of that Minister in any degree to-day, because, while that might be in order, it does not seem to come quite within the scope of this Bill; because in relation to that Minister Schedule 1 is applied, and that is about all, apart from the salary. But the noble Earl did say—and it was the sole justification that he gave, so far as I could see—that there must be a Ministry of Land and Natural Resources because of the Government's land policy and their desire to set up a Land Commission. It is a horrible prospect if, every time this Government propose to set up a Commission of one kind or another, there must be a separate Ministry to look after that Commission. I do not think the arguments he advanced on that stand any examination.
396 The next one is the Minister of Overseas Development; and about this I will say something later. Then there is the Minister of Technology. The Prime Minister decided that there should be a Minister of Technology. I am not going to discuss the functions of that Ministry. This Bill is concerned primarily with the Minister. The man appointed as Minister of this new Department was, as we all know, the leader of a large or great trade union: not a Member of the House of Commons, not even a candidate at the last Election. The Prime Minister has decided that this gentleman, whose interests, I gather, were until recently chiefly trade union affairs and unilateral nuclear disarmament, was the right man to put in charge of technology.
§ THE EARL OF LONGFORD
I do not know whether the ban on interruptions is still in force, but I can only assure the noble Lord that we thought that an extraordinarily cheap remark, coming from a former Lord Chancellor.
§ LORD DILHORNE
I have not sought to impose any ban on interruptions. The noble Earl seems to think I can read his mind when he does not move his head. If he wants to interrupt he can rise, and I will, of course, give way, as I always have done. But I do not think I ought to be expected to give way for comments on what I am saying, and I will repeat it if necessary. I do not care what the noble Earl's opinion is. It is fair comment, and I do not think fair comment should be suppressed. I am entitled to say it. There may be powerful political reasons for this appointment. I must say that I think it preferable he should seek the approval of the electors, even after his appointment, to his being created a Peer to hold the post, for which his qualifications are not readily apparent. He does not even write articles in The Times on technology. It is to make provision for him and other Ministers that this Bill comes to your Lordships' House
I have dealt with the Schedule and Clause 1. I now come to Clause 2. Here, there are some unusual features, and I would ask the noble and learned Lord the Lord Chancellor, if he would, to answer certain questions with regard to them. In subsection (1) (b) of Clause 2 397 one finds that the annual salary to be paidto the Chief Secretary to the Treasury and to any Minister of Sateis to beof such amount as the First Lord to the Treasury may determine …Is that not novel? I cannot remember a similar provision. There is, of course, a ceiling of £5, 000. But is this not novel; and, if it is novel, what is its justification? Why could not we provide in this Bill, as we do for Cabinet Ministers and, I think, for Parliamentary Secretaries and others, what shall be the salaries of, it may be, different grades of Ministers of State? Is it not unusual and without precedent that it should be left to the Prime Minister to say what rate, up to £5, 000, each Minister of State should have? That is one point I should like to be dealt with. But there is nothing in Clause 2 about machinery.
I have dealt with the first two clauses fairly shortly because I want to spend a little time on Clause 3, and this is where I think, with great respect to him, the noble Earl the Lord Privy Seal fell into very considerable error. I would remind your Lordships a little of the background to this. In 1937 we had passed the Ministers of the Crown Act, which was very similar to this Bill, and Section 9 of that Act dealt with the capacity of Ministers to sit in the House of Commons. It was Part II, and was so headed. Following upon that we had the Herbert Committee and I should like to refer a little to the Report of that Committee. It was a strong Select Committee, presided over by Sir Dennis Herbert, who was a considerable authority on matters of this sort. Sir Donald Somervell, the then Attorney-General, gave evidence before it, as indeed did the Lord Chancellor of the time, Lord Simon.
The Report includes a great historical survey, and then we find that paragraph 19 begins:In the foregoing historical survey there can be traced the genesis and gradual development of the three chief principles which by the beginning of the eighteenth century had become, and have since been, and should still be, the main considerations affecting the law on this subject: these, in the order of historical sequence, are (1) incompatibility of certain non-ministerial offices with membership of the House of Commons … (2) the need to limit the control or influence of the executive government over the House by means of an undue 398 proportion of office-holders beings members of the House …Then in paragraph 23 one finds this statement:A limit on the number of Ministers in the House of Commons is necessary as was recognised and provided for in the Act of 1707".And in paragraph 24:There is quite naturally a tendency (possibly an unavoidable need) with the growing complexity of affairs generally, and government administration in particular, for government departments to extend and for the number of Ministers to increase; but Your Committee consider that there is not, and so far as it is possible to foresee the future, not likely to be, any necessity for a long period to make any appreciable increase in the number of ministers whose membership of the House of Commons is essential to the present system of relations between the executive government and Parliament. If this opinion is correct, it would certainly seem desirable that definite steps should be taken …and so on. The Report deals with numbers, but I have cited those passages to show that it was recognised then, as indeed it had been before, that there was a real necessity for a limit on the number of Ministers who could sit in the House of Commons.
Then the House of Commons Disqualification Bill was introduced, I think in 1956, and after a Second Reading it went to a Select Committee. Then, having been considered by a Select Committee, which is an unusual procedure, it was reintroduced and passed. As the noble Earl has said, Section 2 of that Act imposes two limits: an overall limit of 70 Ministers and 27 senior Ministers. The list of senior Ministers included Secretaries of State and Ministers of State. So that there was a pretty effective limit on those numbers if you give "Secretary of State" and "Minister of State" their ordinary interpretation. There was no comment by the Select Committee, and no comment during the course of the passage of that Bill through either House, so far as I can recollect, about the provisions of Section 2 of the 1957 Act.
I say that that section, considered by a Select Committee on which sat members of both Parties, considered the whole way through Parliament, not criticised, embodies quite clearly what I suggest was the obvious intention of Parliament: that there should be an effective limit on the number of Ministers in the Commons. 399 The noble Earl says to-day that he recognises that there must be—I quote his words—some upper limit. That, he says, is at least conceded. But I want to come on now to whether or not this Bill provides for an effective limit, even if you do take the maximum contained in Clause 3 (2). I should be most interested to hear whether the noble and learned Lord the Lord Chancellor disputes that the intention of Parliament in passing the 1957 Act was, by Section 2, to secure such an effective limit. I put that question to him at the close of the debate on the gracious Speech, and I hope that this evening he will say something about it. Surely all Ministers are normally appointed at a salary, and the creation of new Ministries is surely normally prefaced by a Statute before appointments are made.
I think it is true to say that in 1957 no one contemplated that any Prime Minister would adopt the device of securing appointments without salary immediately payable, in order to avoid the clear intention of Parliament that the limits laid down in the 1957 Act should be observed. I think it is true that before 1957 this device could not have worked, because then we were concerned with offices of profit under the Crown. It was, as your Lordships will remember, because of the difficulty in defining "offices of profit" that we tried to alter the system and to specify them in a different Schedule to the 1957 Act. But I should have thought that there could be no doubt that, holding the office of Minister under the Crown was an office of profit whether or not a salary was payable, for it is quite clearly established that you can be the holder of an office of profit without being in receipt of a salary. The noble Earl, I think, drew attention to the fact that in Section 13 (1) of that Act "Minister of State" is, among other things, defined as someone "appointed at a salary" I think I am right in saying that that is probably the first statutory authority for the payment of salaries to Ministers of State. But, however that may be, I draw the attention of the House to the fact that the words are "appointed at a salary."
The Chancellor of the Duchy of Lancaster has agreed that when the Ministers of State to whom the Bill 400 relates were appointed they were told the salaries they would receive in the future. Reference to that can be found in Hansard of December 10. If that is so—and the authority of the Chancellor of the Duchy is there for saying it was—were they not appointed at a salary? Do you cease to be appointed at a salary if you are told that the salary will not be paid for a month, for two months, three months or six months? Surely, if they were appointed at a salary, then indeed there has been a clear breach of the law. If the law applied, a number of Members should come under Section 2 (2) of the 1957 Act and be excluded from voting in another place. That is a matter of law. I shall be interested to hear what the Lord Chancellor has to say about this. But I am more concerned about the future. If the Government accept that there should be a limit on the number of Ministers qualified to sit in the Commons, and it is the fact that this Bill does not seek to repeal the limit set in Section 2 of the 1957 Act—and what the noble Earl has said to-day indicates that the Government think that there should be a limit—then surely it must be, even if it is not already, an effective limit.
The noble Earl the Lord Privy Seal talked about "does something to provide new safeguards". With great respect to him, I do not think it does at all. I will tell him why. First of all, I think that it leaves the same loophole, enabling the appointment of Ministers not at a salary not counting for the purpose of the number of 91; and it makes it possible, I think, for the present Prime Minister or any other Prime Minister to do exactly the same thing. I ask your Lordships to note that it is not just confined to Ministers of State. The same device was operated with regard to the Secretary of State for Wales. He was one over the limit; but he was not appointed at a salary, and therefore he did not count for the purpose of either the limit of 27 or the total limit of 70 as it is now.
On looking at the Bill, I think your Lordships will see that the noble Earl the Lord Privy Seal was quite wrong when he said that this Bill bit on Ministers of State appointed without a salary. As I recall, efforts were made in another place to secure that amendment, but it was rejected. The noble Earl said, 401 more than once, that this was the new safeguard. Your Lordships will see that Clause 3 (1) provides for the inclusion in the schedule of offices "not already described therein" Then you come to these words:in respect of which salary is payable by virtue of Section 2.It is again linked with salary. Then, Clause 5 (3) amends the definition of "Minister of State" by taking out from Section 13 of the 1957 Act the wordsappointed as a Minister of State";but it adds certain words, so that the definition of "Minister of State" would now read:'Minister of State' means a Member of Her Majesty's Government in the United Kingdom, who neither has charge of any public department nor holds any other of the offices specified in the Second Schedule to this Act.I think those words go out, and you find these words added:or any office in respect of which a salary is payable out of moneys provided by Parliament …You have still got the requirement of financial payment in that case.
What I say with confidence is that if the intention of Parliament in the 1957 Act was as I have said, that clear intent has been avoided by the appointment of a Secretary of State and Ministers of State without a salary. If, on a true construction of it, they were told what they were going to get but that payment would be delayed a little, it is really right to say that they were in fact appointed at a salary and the device has failed to operate properly. As I have said, I do not see anything in this Bill which prevents that kind of evasion of the intent of Parliament from being perpetrated again. I should like to press the noble and learned Lord the Lord Chancellor to give an assurance that, before this Bill leaves your Lordships' House, steps will be taken to make sure that the limit—a limit which the noble Earl concedes there must be; he said that there must be some upper limit—is in fact a limit which is effective.
There is another loophole with which this Bill does not deal. Your Lordships will bear in mind that the only Ministers) who will count under this Bill towards the total are those named in the Second Schedule to the 1957 Act. That is the position, on one view, up 402 until now. As the House knows, the functions of Ministers can be transferred from one Minister to another by Order in Council under the Crown (Transfer of Functions) Act. In the Orders in Council which relate to that Act there is a common form provision by which power was given under the 1957 Act to secure that the name of the new Minister was inserted in the Second Schedule and would count. But when the Order in Council was passed under the Crown (Transfer of Functions) Act to create a Minister of Overseas Development, your Lordships will see that this common form of provision was left out. So that there was yet another Minister who would not count towards this total. That was clone then. Of course, the name of that Minister is now in Schedule 2 to this Bill, but it has been conceded by the Solicitor General that this could be done again and again. I should like to cite his words on this when dealing with an Amendment to prevent this from happening. He said.I admit to the Committee that this clause could have any effect only if a Minister were appointed to some new office—an office which had not already been created." [OFFICIAL REPORT, Commons. Vol. 703 (No. 31), col. 1893, December 10, 1964.]That is the point of it. I say at once that that may happen; it can go on happening under this Bill.
I think that we should take steps to see that this kind of, presumably, deliberate omission cannot be repeated and to secure that the limit, whatever it is, is a limit which cannot be evaded in future. The right course, surely, if the limits are too small and there is a case for a new Ministry or a case for more Ministers, is to come to Parliament and get Parliamentary authority. I must say that I consider that the Bill as it stands is objectionable; it it a very odd Bill. I object to legislation which purports to prescribe limits and then, apparently deliberately, leaves open a way in which the limits can be evaded. That is not really treating Parliament properly, but I hope, particularly in view of the words of the Lord Privy Seal conceding that there must be some upper limit, that he will at least go so far as to secure that the upper limit, whatever it is, is effective.
§ 5.5 p.m.
§ LORD MORRISON OF LAMBETH
My Lords, I wish that this debate had come on at an earlier hour in the day, as I have an appointment in Harley Street which I have postponed but I cannot postpone it beyond a certain time. Therefore, if I am not in the House at the end of the debate I hope that I may be forgiven by the House, and particularly by the noble and learned Lord the Lord Chancellor, though I shall read the rest of the debate and particularly his speech. I find the description of this Bill as a technical Bill and a complicated Bill true, but fundamentally I regard this a constitutional Bill.
§ Several Noble Lords: Hear, hear!
§ LORD MORRISON OF LAMBETH
That is what it is, and there is nothing to be lost by admitting that that is what the Bill is. Because the number of members of a Government and their official associates allowed to sit in the House of Commons, as against the other Members of the House of Commons, is a very important constitutional principle. The Bill takes powers to ratify the action of the Government in appointing more Ministers than were contemplated by the Act of 1957. Therefore, I say that it is a constitutional Bill. That was probably a good reason for its being taken in Committee on the Floor of the other place, for I myself when Leader of that House laid it down that constitutional Bills and Finance Bills should be taken on the Floor and not upstairs. I can imagine that that may have been the reason.
This tendency for increasing the number of Ministers in the House of Commons, I must say in fairness, did not start with this Government; it started with previous Governments which were Conservative in character. Some time ago I put a Question in this House for Written Answer asking for the number of Ministers at certain dates. I have not it by me, and unfortunately I could not read it if I had, but if noble Lords will look it up they will find that there was a tendency for the number of Ministers to increase. I think that the late Conservative Government were sinners against the light in some appointments which never ought to have been made.
404 I refer in particular to the Minister without Portfolio who was in charge of the Government information services. That is not a full-time job, or, if it is, it ought not to be a full-time job. It is a dangerous job, because in that setting it is too much like Ministers of Information functioning on the Continent of Europe or in Egypt. If he is going to be full-time, he will be playing about with the Government information services too much in the interest of Party politics. In any case, as I have said, it is not a full-time job. It was one of a dozen jobs which I supervised when I was Lord President of the Council some years ago, and that was a not manufactured job. Either this was manufactured in order that the job could be done more fully, and possibly more improperly, or it was manufactured in order to find a post for somebody, which I rather doubt in the circumstances of the case.
There have been other cases where appointments have been needlessly made without there being adequate work for the man to do. Of all the silly things for any Prime Minister to do—to appoint an able person to an office under the Crown as a Minister and not to give him enough to do! He will only get into mischief. I remember the case of Sir Oswald Mosley, who was Chancellor of the Duchy of Lancaster, assisting the late Mr. Thomas in regard to unemployment. He told me that his job as Chancellor of the Duchy took about half an hour a week, and the poor man had got nothing else to do except to help Mr. Thomas. His way of helping Mr. Thomas was to be a nuisance to Mr. Thomas. And he had got a brain. I admit that brain has gone wrong since then, but he had got a brain. And to condemn a man with a lively brain to a ministerial position in which he has practically nothing to do is asking for trouble. However, that is by the way.
But, my Lords, this is a constitutional Bill of very great importance and of very great significance. We were told by all the newspapers, when it was discovered after the Government was formed—it may have been discovered during the time the Government was being formed, but it did not come out until after the Government was substantially formed—that the whole trouble had arisen from Parliament in the days of Queen Anne. It is a great joke to make fun of Queen 405 Anne. I cannot speak about her merits or demerits because I do not know enough about her, or, indeed, about her times. But, my Lords, it is not right to treat as a Queen Anne joke this business of the balance of power and authority between Ministers and Members in the House of Commons. I would say that the Parliamentarians at the time of Queen Anne who fought for legislation to prevent too many Ministers in the House of Commons—too many "placemen" as they were very accurately called—were absolutely right. They rendered a service to British Parliamentary Government and to the evolution of the British Constitution; and to upset the principle with which they were concerned is a dangerous thing.
I do not say that this Bill upsets the principle in itself, because it does not give unrestricted power to the Government to appoint as many Ministers as they like. That is subject to the point that the noble and learned Lord who preceded me has made, and which will no doubt be dealt with by the noble and learned Lord the Lord Chancellor in due course. On the face of it, the Bill imposes a limit. But it increases the earlier outside limit of 70 to 91, which is no mean increase, and it gives elasticity in some other respects. I wish to impress upon your Lordships that the balance of power between Ministers and the Back-Bench Members of the House of Commons, and particularly the Back-Bench Members of the Ministerial Party in the House of Commons, is a matter of fundamental and vital Parliamentary and constitutional significance, and it should be so regarded.
We must remember that it is not only members of the Government who are concerned, as I shall show. I must agree with the noble and learned Lord who preceded me that, whether they are paid or unpaid—it is a little difficult to imagine Ministers going on for long without being paid—the very fact that they are Ministers puts them in the category of being members of the Government who are not free to vote as they might wish in the House of Commons. Whether they are paid or unpaid is irrelevant. In any case, one of the purposes of the Bill is to see that they are able to be paid.
We have 23 members of the Cabinet, the same number as in the Cabinet of Sir Alec Douglas-Home. I thought that 406 Cabinet was too large; so did my noble friend Lord Attlee, and he said so on television; and, if I remember rightly, so did my right honourable friend the Prime Minister before this Government was formed. I still think that 16 or 17 is about the right number for a Cabinet, and that 23 is a very difficult body to be effective and to manage. It may be, and I hope it will be, the case that this Cabinet is efficient, effective and able to do its work properly; but I think it is too large.
In addition to the members of the Cabinet, there are the Ministers in charge of Departments outside the Cabinet. There are the Ministers of State—a relatively new creation—who have grown in numbers and are still growing. I am inclined to think that there are rather more Ministers of State than Her Majesty's Government need. There is something in the point that was made in an earlier debate, that the absence of a Minister of State for Scotland sitting in this House is a pity—not altogether because noble Lords may prefer a Minister of State here to one in the House of Commons, but because the purpose of the former Minister of State's being a Member of this House was that he could devote by far the greater part of his time to being in Edinburgh, in Scotland, serving the needs of the people of Scotland, seeing local authorities and so on.
The Minister of State is now a Member of another place, and, especially in the difficult Parliamentary circumstances which obtain for the Government, it will be very difficult to allow him a great deal of time in Edinburgh unless he can get a "pair ", which I know is a bit of a gamble. To that extent, therefore, Scotland is missing a more or less resident Minister of State with a great degree of authority, who could be available at St. Andrew's House and elsewhere in Scotland to see people who felt they had troubles. So, my Lords, there are the Ministers of State and they have increased in number.
There are, too, the Parliamentary Secretaries, who, I think, have also increased in number, and the Whips. But one must go further than that. Parliamentary Private Secretaries are unpaid, and let me pay a tribute to them. I have been well served in my time by Parliamentary Private Secretaries. They 407 do all sorts of odd jobs, some of importance and some not of importance. They are of comfort to the Minister; they smell out trouble before it emerges, which is very useful, and they do good work. But they are unpaid. Two former ones are now Ministers of this Government—my noble friend Lord Taylor and my noble friend Lord Shackleton—and there is another Minister, the Secretary of State for Foreign Affairs, who was a P.P.S. of mine in days past. Therefore, I pay tribute to them. But let there be no mistake: they are unpaid.
This illustrates further the point about unpaid Ministers. Notwithstanding the fact that the Parliamentary Private Secretaries are unpaid and are not members of Her Majesty's Government, they are expected by their respective Ministers and by the Whips not to vote against the Government, and not even to speak against the Government—at any rate, not frequently. So they have to be added to the total number of people who are not free in the House of Commons to speak and vote as they like. I do not know what is the proportion of Ministers and P.P.S.s to Back-Benchers on the Labour side of the House of Commons, but I think it must be getting towards 50 per cent., if it is not there. But somebody may know.
§ LORD MORRISON OF LAMBETH
I hope my noble friend is right. I should point out that I am including the Ministers who are at present without salaries.
§ LORD MORRISON OF LAMBETH
That is bad enough. It is a very serious proportion of people on the ministerial side of the House of Commons who are not free. But let not the Ministers who are not yet receiving salaries be excluded, because they are as much tied as anybody else.
I think the growth is unhealthy and it is a great pity that it has happened. As I have said, it has happened not only with this Government; noble Lords opposite must face the responsibility that it happened with their Government as 408 well. Perhaps their sense of guilt about it is why the Opposition did not divide on the Bill in the House of Commons—they did not, which is significant—as I expected they would. But I am not inciting your Lordships here to divide on the Bill. I do not think that would be a proper function, in this case, of your Lordships' House.
My Lords, I have spoken frankly but very sincerely about the Bill, because I have written about these subjects. I have held opinions in earlier times and, although I am a loyal member of the Labour Party and have sometimes suffered for being loyal to the Labour Party, and although I am a supporter of this Government and wish them well, I think that this is a constitutionally questionable and somewhat dangerous development. I think my noble friend the Leader of the House made a very good speech in opening the debate. I am not sure that anybody else could have made a better speech on the subject, and I congratulate him upon it. But, having said that, I must say that I do not think he made an adequate case for the Bill. I am sorry to have had to speak in this way, but I should have felt that I was lacking in my Parliamentary duty and in my duty to the country if I had not made the speech with which I have troubled your Lordships this afternoon. I hope very much that everybody will take it into account, because I believe that this question opens up matters of deep Parliamentary and constitutional concern which we shall ignore at our peril.
§ 5.20 p.m.
§ BARONESS HORSBRUGH
My Lords, the first thing I should like to say is how glad I am in many ways to be able to follow the noble Lord, Lord Morrison of Lambeth, this afternoon. We have all listened with extreme interest to his speech, and we who have known him very many years saw that all the logic and all the argument is still there, and that he still has the courage of his opinions. But there is one reason why I am sorry that I am now following the noble Lord, Lord Morrison of Lambeth; it is because he has said so much of what I wanted to say, but could not have said so effectively or nearly so well as he has said it. I will therefore try to 409 cut down to the very limit the points that I meant to bring to the notice of your Lordships.
When I first heard of this Bill I got a copy and saw that the Title was "Machinery of Government". The noble Lord, Lord Dilhorne, has already spoken about this, but I, with less knowledge of these affairs, began to look to find out what there was in the Bill about the machinery of Government. I thought that, with this high-flying, grand Title, it must be there, and that there must be provision for a good deal of change in the whole of our machinery of Government. What struck me first was that, if it really did provide for a change in the machinery of Government, surely there should have been consultation between the two Parties. Surely it would have been well that if the Prime Minister had wished to make changes in the machinery of Government, he should have suggested some consultation, some Committee, some discussion as to the best way of doing it. But in that case I suppose we should have been told that the reason he did not do so was that the Government were in too much of a hurry. We have been told that in regard to all the blunders and all the mistakes that have taken place. I fear that, because of that disastrous statement about the first "Hundred Days"—I think that at one time they were called "dynamic" days; one could never hear a speech made without the word "dynamic" being used at any rate once—this matter had to be rushed and crashed in without consultation and, one would think, without very much thought. So I was glad to hear the noble Lord, Lord Dilhorne, ask: Why is the Title of the Bill "Machinery of Government"?
Then I thought I had perhaps better study it more fully and read what was said in another place, so I began with the speech of the Attorney General, who moved the Second Reading of the Bill. He said:This is a purely technical Bill…."—[Official Report, Commons Vol. 702 (No. 16), col. 642, November 19, 1964.]and constitutional points are not in the least involved. That point has been touched on already by the noble Lord, Lord Morrison of Lambeth. That seemed to me a little strange, but I 410 went on. Now his speech is difficult to read. Various legal points are brought forward, and I dare say I did not understand it all: but, my Lords, I did think I understood ordinary English—and, if not, of course I could come for assistance to my noble friend Lord Conesford. But then I reached this extraordinary sentence:… we are not suggesting"—he is talking of the number of Ministers—the abolition of the limit of 70. All we are doing is asking for an alteration of it." [col. 648.]my Lords, I could not think what that meant. I have not the slightest idea; but perhaps other noble Lords have.
As I went on, I came to the conclusion that there was not much in this Bill about the machinery of Government, but that what there was, or what it aimed at, so far as I could see, was what could be called "better organisation of government", and that that was intended to be brought about by increasing the number of Ministers. So we have to ask ourselves, it seems to me: are we going to get a better organisation of government? Is it going to be a better machine when it is larger and, I think, becomes slower and more cumbersome? The strange thing is that with modern machinery—not Government machinery, but modern, other machinery—one has a machine that takes not one action but many actions. Where you had to use four machines, you now have to use only one. When one sees a computer working, one realises the amount of work that one machine can do. But as other machinery becomes more compact, the machinery of government is spreading out. Is it going to be better?
I remember that when, a little time ago, we were discussing whether it would be wise to have two Ministers of Education, many of us thought that it would not be wise, and that Education should be brought under one Minister. It was, I remember, a case where a great many people thought otherwise, but I think the majority of the Members who are now on the other side of the House were in favour of one Minister because they were against the idea of too many Ministers all having to communicate with each other. Any of us who have had any 411 experience of being in charge of a Department know the extraordinary time involved and the delay there is if there has to be inter-departmental conferences. Inside one Department, one may have made one's arrangements and then found that there were certain things that overlapped with another Ministry. Therefore, there had to be inter-departmental consultation, first with officials, which may have been enough, but, if not, then with Ministers. Two such consultations may have been found necessary. Sometimes a compromise concession may have been made which was not a good one, or you may not have been able to agree, and then the matter had to go to the Cabinet. Under this scheme, with more Ministries and with the frontiers not properly defined, I foresee delay in making arrangements through inter-departmental conferences, and any amount of problems having to go to the Cabinet for decision.
Some people have said that these particular Ministries are wanted, and that the subjects they are dealing with have not been stressed enough in previous years. I wonder whether it would not have been possible to reorganise a good many of our Government Departments without necessarily increasing the number. I am perfectly certain something could have been devised that worked more swiftly and, I should have thought, with greater accuracy. There is, of course, the old saying about "too many cooks, "and one can only hope that the "broth" is not going to be a witches' cauldron.
My Lords, I turn now from the Government side to the Parliamentary side—and here, of course, the noble Lord, Lord Morrison of Lambeth, expressed opinions with which I think he knew the great majority of us fully agreed. What is the comparison in numbers now between those who are—I will not say in the pay of the Government, because some are not being paid, but who are Ministers, in some form or shape, and the number of Back Benchers on the Government side to-day? We must remember that there are fewer Back Benchers, the majority being small, than is usually the case; and I think the ratio of Ministers to Back Benchers must be quite startling.
As the noble Lord, Lord Morrison of Lambeth, said, there are also the Whips. 412 The noble Earl the Leader of the House was speaking about the six Assistant Whips. He said that they are now to be paid, and that surely no one would disagree with that. If he were here, I would tell him that I disagree entirely. I can see no reason whatever for giving salaries to the six junior Whips. But we have these people. I am not calling them "placemen", a word we are tired of by this time; I would rather say that they are prisoners. They cannot really take a free choice of what they are going to do and say. They are imprisoned, but they can resign. If they disagree, why not have the courage to resign? They can do so. But, as we all know, that is a very big decision to take. There may arise minor matters on which it would really be stupid to say to them: "You must resign your office if you are not satisfied."
My Lords, one presumes that the people chosen to become Ministers are those who are most able. So if the number is increased the Back Benches are left without able people to criticise and question their own Government. For it is not merely an Opposition who should be critical. Criticism has always come also from the Government Back Benches; and those of us who have been in that position have always thought that criticism to have been our duty and right. Over and over again, a new point of view emerges as a result. Perhaps the Minister has been struggling with a particular project; then, after a lot of difficulty, it is produced either as a Bill or as a White Paper. But sometimes from the Back Benchers, who are looking at it with a fresh look, comes a great deal of help. After all, not every Bill ends up after Committee unchanged. I think that people sometimes forget the value to the Government of the Back-Bench Member, whether of the Opposition or of their own side. I think that perhaps we have not appreciated that, and that those who are talking about this new machinery of Government have not altogether appreciated it.
It has been already said in your Lordships' House that there are Ministers who are able to answer all the questions on the various subjects; and we need have no complaint of the number here. I would congratulate them. I think they are doing a noble job. One day the noble Lord, Lord Taylor, answered a question on prescriptions in the Health Service; the next 413 day a question on the frozen assets in Ceylon; and to-day he was discussing diplomatic privileges. I congratulate him on the way he does it. But I believe that these Ministers have a task which not only is too difficult but, in the end, will not be done in a way that gives satisfaction; because, however well they do it, they cannot possibly have the background knowledge of all these various subjects. But I congratulate them on what they have done. More and more we are finding interest in supplementary questions and in getting more information—and that information we certainly want.
It has already been stated that this Bill came to us only a couple of days ago, but we are to study it and pass it, I presume, in a very few days. I would suggest, as the noble Lord, Lord Dilhorne said, that that is not treating this House as it ought to be treated. I believe that more effort must be made to see that we are given proper time to study these matters. Especially after the responsibility of the Back Benchers in another place is being minimised, we here have more work to do, and a greater responsibility: a responsibility to see that when Bills come to us they are properly examined, and that the machinery of Government either works properly or is scrapped.
§ 5.35 p.m.
§ LORD ALPORT
My Lords, if I find myself in the same position as the noble Lord, Lord Morrison of Lambeth, owing to the unexpectedly late hour at which this debate started, I hope the House and the noble and learned Lord who sits on the Woolsack will acquit me of any discourtesy. I think I am right in saying that the noble Earl the Leader of the House was at one time a lecturer or tutor in constitutional history at Oxford. I wonder what his reaction would have been to an essay submitted by one of his pupils on the relations between the Executive and the Legislature which followed the treatment which he gave to this particular Bill during the speech he made in presenting it to your Lordships' House. I think the probability is that the young man would have been told to pay more attention to the teaching of the noble Earl during the immediate future if he wished to be successful in any constitutional history paper that might be set for him in an examination.
414 The noble Earl, as has been pointed out by the noble Lord, Lord Morrison of Lambeth, and by my noble friend Lady Horsbrugh, has introduced this Bill not as a major matter, but as a technical Bill having, apparently, very little constitutional significance. But it has been quite clear to anyone who has studied its terms that the problem of payment of Ministers and the problem of rearrangement of Departments in the Government with which it deals are quite subsidiary to the main problem of the substantial increase in the number of Ministers who can now sit in another place.
I know that when this matter was debated in the House of Commons one of the speakers, to whom I must confess I pay great deference because at one time he tried to teach me constitutional law, said that nothing could be more boring than a person who seeks to find a great constitutional principle in a matter which is really one of political expediency. Not wishing to be unnecessarily a bore to your Lordships, I think one must accept the contention of the noble Earl the Leader of the House that the root cause of this particular piece of proposed legislation is one of political expediency. Indeed, the point was made very clearly by the Chancellor of the Duchy of Lancaster when he replied to the Second Reading debate in another place. He used words to the effect that the Prime Minister, in order to provide modern government in this day and age, in order to carry out the great economic "Dunkirk" upon which he is at present apparently engaged, requires neither more nor less than 91 Ministers from the Members of the House of Commons—not 90 Ministers, or 91½ Ministers, but 91 exactly. And your Lordships are now being asked to meet the Prime Minister's requirement as a matter of political expediency.
I am not by any means arguing against the creation of at least one of the Departments involved in this Bill, and I personally welcome very much the elevation of the Department of Technical Cooperation into the Ministry of Overseas Development. It is something which I should have advocated some time ago. But, of course, that particular step now makes it unnecessary for the continued existence of a separate Secretary of State for the Colonies, because the whole object of the creation of that Department was 415 to enable the emphasis of British overseas policy to be transferred from the old Colonial Office into a new Department which would not be involved in the political control overseas but would be available to help, as was the case with Governments all over the world, with technical development and capital investment. The answer, therefore, is really that there is no need for an additional Secretary of State, as is provided by this Bill. As was done under the previous Government, a readjustment of functions between existing Departments and existing Ministers would have met in this case the purpose which the Prime Minister had in mind. But, no—91, neither more nor less, from the body of Members of another place are required in order to enable him to govern.
Therefore, I think it is reasonable that one should regard this Bill as a matter of political expediency. My noble and learned friend Lord Dilhorne asked for a real and effective limit to be placed on the number of Ministers to sit in another place; but the noble Earl who moved the Second Reading of this Bill made it clear that so far as the Government were concerned there was no sanctity in numbers. The fact that there were 47 in 1941 and 60 in 1957, and there are to be 91 if this Bill is put on the Statute Book, does not prevent there being the need, as part of political expediency, for 101, or 201, Ministers in another place. All that is necessary is to make the appointments and then present a Bill before the two Houses of Parliament to have the retrospective effect which this Bill is to have in this case.
As I have said earlier, I do not want to be regarded as a bore, finding an important constitutional principle in what is really a matter of political convenience, but I think it right to remind the House, as the noble Lord, Lord Morrison of Lambeth did, that until ten years ago this was not regarded as a matter of political convenience, but as a most important constitutional principle. Those who fought for this principle, right from the days of Queen Anne and before, to prevent the Executive, whether it was the Crown, an oligarchy or class or section, from imposing its will upon the House of Commons, were so successful in their efforts over the years that the British Parliament has been regarded as 416 the most effective form of Legislature that history and ingenuity have devised for any country. Therefore, I think that it is rather a melancholy thing that today one of those principles which were regarded as essential, right up to as recently as ten years ago, in forming part of the strength and power of our Parliamentary institutions, should now be so whittled away, simply as a matter of political convenience: that it should be treated by the Government of the day not as a constitutional matter at all, but as a technical change in the machinery of Government, enabling them to carry through their policies and to maintain the cohesion of their Party in doing so.
Over the last fifty years Parliament, in both Houses, has fought a losing battle against the Executive. There is little enough power in either House at the present time against the Executive—the Government of the day. And this Bill is simply another step in the same direction of reducing a little further the independence of Parliament and its relationship with the Executive. It is doing it under the age-old excuse that it is a matter of political convenience. It is not for us, I think, in your Lordships' House, to fight the battle of the House of Commons. Therefore, we cannot vote against the Second Reading of this Bill. But I would say that, for my part, I hope that the fact that I do not do so is not construed as willingness to acquiesce in this as a matter of political convenience, or as deriving from any failure to realise that this Bill erodes still further the rights and powers of Parliament in the United Kingdom to be the final repository of political power.
§ 5.46 p.m.
§ LORD CONESFORD
My Lords, there have been many speakers in this debate and I am anxious, so far as possible, to avoid repetition. My own conviction is that this Bill is both very important and very bad. There has been some dispute in another place about whether this Bill is a technical Bill or a constitutional Bill, as though those alternatives provided any dichotomy. Of course, the Bill can be, and is, both. The first speaker who pointed this out with emphasis was the noble Lord, Lord Morrison of Lambeth, who, I thought, made one of the best speeches I have ever heard him make. Perhaps I may say, I think on behalf of all of us, as 417 I gather that he has gone to Harley Street, that I hope he there finds that reassuring message which will delight his many friends and admirers. He has taken, as I have taken, a profound interest in constitutional matters.
May I remind the House—and I think that nobody has yet done this—of an important and rare, if not unique, feature of our Constitution? I suppose that every teacher on constitutional matters, and I am certain the noble Earl the Leader of the House, has often talked to his pupils about the omnicompetence of Parliament and other features of the British Constitution, but that is not the feature I am going to mention now. I am going to mention a rare, but extemely important, fact about our Constitution. It is the absence of any constitutional safeguard, such as exists in the Constitutions of so many o: her countries, to make especially difficult a change of the Constitution. In this country, unlike almost every other country in the world, we can achieve a constitutional change by exactly the same legislative process as is applicable to the least important and most transient Act of Parliament. Yet we have a long and proud history of Parliamentary institutions and have achieved some continuity in the management of our affairs. How has this been achieved, in a country where the Parties have very different policies and where they may succeed one another with great rapidity?
We have achieved this continuity, my Lords, in our affairs and the proud history of Parliament by one thing alone, and that is political wisdom. It has generally been agreed by all Parties who have held power in this country that constitutional changes should be few and, if possible, should command general agreement. In modern times we have usually sought to secure such general agreement between the Parties by a variety of means, the most relevant for the purposes of the present Bill being the Select Committee. This attempt to secure agreement has sometimes succeeded, and sometimes failed; but at least the attempt has been made. In the case of the Bill before us to-day there has been no such attempt whatsoever.
There is, I believe, no modern precedent for proceeding in this way. I have again studied the speech of the noble and 418 learned Lord on the Woolsack which he made at the conclusion of our debate on November 11. He had a passage to the effect that there would no doubt be many things that the present Administration would do that had no precedent. Well, my Lords, I can understand that this may be so, and that it may sometimes be necessary to do something for which there is no precedent, or no obvious precedent. But I believe that Her Majesty's Government made a great mistake, from which all, including themselves, will suffer, by abandoning the precedent of seeking inter-Party agreement for important constitutional changes.
That this is a constitutional Bill seems to me to be obvious; and I think that few Socialists would deny it, after the speech of the noble Lord, Lord Morrison of Lambeth. Every student of our Constitution knows that constitutional measures are not labelled as such. There are certain Statutes which everybody agrees are of constitutional importance—Magna Charta, the Bill of Rights, the Habeas Corpus Acts and the Parliament Acts, to mention just a few. But that the subject dealt with here is constitutional has certainly been the view of the leading members of all Parties for a very long time. As the noble Lord, Lord Morrison of Lambeth, pointed out, we do not need to go back to Queen Anne. All these Statutes are modern, and there is a succession of modern Statutes mentioned by the Attorney General in his speech moving the Second Reading in another place on November 19.
But almost more remarkable than the Statutes have been the decisions of the Select Committees. The Herbert Committee of 1941 and the Spens Committee of 1956 have been frequently mentioned in the course of these debates. On the occasion of the sitting of both of these Committees every Party treated the question of the number of Ministers in the House of Commons as of great constitutional importance. What is more, substantial unanimity was secured. There were very few Divisions and, so far as I know—I speak without having checked it—none on Party lines. I believe that there is substantial unanimity on the constitutional point that I am now taking between ourselves and the Liberal Party: certainly some forceful speeches, 419 that strengthen the view that I am putting forward, were made by the right honourable Jo Grimond in another place.
The noble and learned Lord the Lord Chancellor, on the occasion to which I have referred, when my noble and learned friend Lord Dilhorne pointed out the object and purpose of Section 2 of the 1957 Act, said it was very strange, if this was the object and purpose, that nobody had mentioned it in the debates in another place. If he had ever been in the House of Commons, that would not have surprised him at all. We who served in the House of Commons know that very often Members do not discuss what is common ground among all the Parties and has never been the subject of dispute. The main discussion takes place on those points on which there is some difference of opinion. I admit that when the Bill (what is now the Act) of 1957 was before another place I had already come to your Lordships' House and took no part in the debates; but, feeling as strongly as I do on the necessity of seeking inter-Party agreement on constitutional Bills before they are enacted, I should have felt no cause to intervene on that occasion to raise matters which were not the subject of dispute either in the Select Committee or in the House itself.
Until Her Majesty's present advisers took office, I do not believe that anybody doubted that Section 2 of the 1957 Act placed an effective limit on the number of Ministers who could sit and vote in the House of Commons. Of course, we all knew that that position could be changed by legislation. But nobody thought that it could be changed without legislation, by the Prime Minister making or recommending a number of appointments of Ministers with new titles, or Ministers of State, who—and here I quote the words used by the Attorney General—"have agreed to serve without remuneration"
The noble Earl the Leader of the House on this occasion, the noble and learned Lord on the Woolsack on the last occasion, and the Attorney General in another place have all said that this raises no very great constitutional matter, because a limit on numbers still remains, and all they are doing is changing the limit from 70 to 91. But is there any practical politician who doubts for one moment that if a quantitative change is 420 great enough it becomes a qualitative change? Does anybody believe that this enormous expansion in the number of Ministers in the House of Commons does not involve, as the noble Lord, Lord Morrison of Lambeth, pointed out, a great constitutional change?
Nevertheless, the Law Officers, and perhaps the noble and learned Lord on the Woolsack, have advised that the thing can be done. That depends, so far as I can make out, on the view that a Minister of State in this Administration is not—and I quote the words of the 1957 Act:a member of Her Majesty's Government in the United Kingdom appointed at a salary …within the meaning of Section 13 of the 1957 Act. That is something on which no doubt advice has been taken, and the Law Officers of the Crown, and perhaps the noble and learned Lord on the Woolsack, have advised that what has been done is lawful. I have great respect for the Law Officers and for the noble and learned Lord on the Woolsack as lawyers, and I have the greatest hesitation in putting forward any doubt that I may feel against their considered view. Nevertheless, perhaps I may be permitted to say that it is not nearly so obvious to me, as a lawyer, as apparently it is to them, that one is necessarily not within the meaning of those words which I have quoted merely because one prefers, or agrees for a time, not to accept a salary.
When I remember the refinements already pointed out by previous speakers—particularly, I think, by my noble and learned friend Lord Dilhorne, and the noble Lord, Lord Morrison of Lambeth—and when I remember how easily it was possible in law to hold an office of profit under the Crown, where you not only had no actual profit but even incurred some losses in holding it, I find it not at all impossible that a Minister of State might be held to satisfy the definition laid down in the section that I have quoted, even if he were not at the moment in receipt of a salary. I have said that I respect the legal opinion of the Law Officers and it may well be right, though I venture to express a small doubt. If, however, it were the case that the advice given by the Law Officers was wrong on this point, then the most wholesale illegality has been committed. This Bill is not yet law, and if that piece of advice was 421 wrong, various people who were not entitled to sit and vote in the House of Commons have in fact been doing so.
Now the question I should like the Lord Chancellor to consider, and perhaps answer, if he can, when he comes to reply—though, if my notice is too short, of course I shall accept his not doing so—is whether the question of whether it is legal or illegal could still be tested in the courts, if any person chose to make the claim to the Privy Council that is described in Section 7 of the Act of 1957. Perhaps I may read the first subsection of Section 7, which says:Any person who claims that a person purporting to be a member of the House of Commons is disqualified by this Act, or has been so disqualified at any time since his election, may apply to Her Majesty in Council, in accordance with such rules as Her Majesty in Council may prescribe, for a declaration to that effect.Then there are numerous other provisions, among other things about giving security for costs. So, unless you are feeling rather rich, it is not perhaps something you would like to embark upon. Nevertheless, it seems to me a possibility that somebody might think the issue here sufficiently important to seek his remedy before the Privy Council under Section 7 of the 1957 Act.
I should like to put this further point to the Lord Chancellor. Suppose that somebody did that. I think he would agree with me that, if his advice were sought, he would advise that it would be wholly improper for Her Majesty's Government to seek to evade the consequences of those proceedings by seeking an Order under subsection (2) of Section 6 of the same Act from the House of Commons, which would, in effect, bar whoever proceeded from his legal remedy, especially since that order, if contested, (I think he would agree) ought not to be decided by the votes of those persons the legality of whose conduct is being called in question.
Even if the limitations imposed by Statute could be lawfully avoided in the way in which it has been sought to avoid them in the present instance—avoided by the new Ministers' agreeing for a time to serve without salary—I should be very surprised indeed if the lawyers in the Government advised that such a course should be taken. I dare say that we shall never be told about that, and I dare say 422 that the Law Officers were not consulted on that point.
My noble and learned friend Lord Dilhorne thinks that some loopholes concerning the new limit may still be left. I have not studied that point, and express no opinion upon it. But for an Amendment brought about by the urgings of the Conservative Party in another place, there would have been an enormous loophole left, and it would have remained possible for Her Majesty's Government to create all their remaining Back Benchers Ministers of State without pay, without any contravention whatsoever of any Statute.
My Lords, I have hitherto been dealing with what I think is the most important point raised by this Bill—namely, this complete constitutional change in a matter always treated by the House of Commons as very important, without any attempt to secure prior agreement, and under the pretence that this was not a constitutional measure. But there is another feature. Three new Government Departments are given legislative sanction. I confess that with some experience of both Houses—because I have been a Member of one or other House for nearly 30 years—I have never been able to take the simple view (nor do I think that the public take it) that the great thing always is to have more Ministers. I have never heard a crowd or a crowded political meeting saying, "What we want is more Ministers." I do not know whether anybody else has. It seems to me not to answer to any reality that we have ever known, and I was delighted to find in how close agreement I am in this matter with the noble Lord, Lord Morrison of Lambeth. Nor do I take the view that it is a particularly good idea, whenever you discover that some question to which you do not know the answer is important, that you should create a new Ministry to deal with it. It is often the silliest thing you can possibly do.
I am not going to discuss the three Ministries to which it is proposed to give legislative sanction. The scientific one I would avoid, because I have myself no scientific qualifications at all, though I think my concern with precision of language and thought often enables me to discover when a scientist is talking nonsense. Nor am I going to say anything about the new Ministry to perform functions with which I think we all 423 agree, though what its relations are to the Foreign Office and other Ministries we do not know. But the new Ministry of Land and Natural Resources comes into a field of which I have had some experience, both as a Minister in another place and as a Back Bencher in both Houses.
If I question the existence of this Ministry or the probability of its doing any good, I know that my noble friend (if I may be allowed to call him that, because the noble Lord, Lord Mitchison, is an old personal friend) will not think I am making any allegation that either he or any of his colleagues could not give very valuable service to the Government in various ways. I am very glad to see him where he is. But I do not think that the mere fact that various individuals can give very valuable service to Her Majesty's Government means necessarily that new Ministries should be created to accommodate them. That seems to me to be an error.
My noble and learned friend Lord Dilhorne wondered why it is called the Machinery of Government Bill. I take it that it is because of these new Ministries, that they constitute part of the machinery of government; and one would have thought it would be relevant to see whether they were good or bad pieces of machinery before they were passed by Parliament. But, my Lords, when these questions were raised by my right honourable and honourable friends in another place the Chancellor of the Duchy of Lancaster, who was replying, treated the question whether the machinery was actually good or bad, or useful or useless, as an almost impertinent question for the Opposition to raise. He had even advised the Ministers concerned, in so far as they are in the House of Commons, and could presumably have given some enlightenment to the House, not to be there. This may have been a prudent act—and I may say in order not to be misunderstood, that the Minister concerned is a very good friend of all of us, on both sides, who know him, and my comments are purely political comments—but the more usual thing to do, if you wanted to create a new Minister dealing with land and natural resources, would be to bring in a Bill 424 with that object, when the wisdom of it could have been properly debated.
I have some experience in this field because I wound up the debate in another place some 21 years ago on the Second Reading of the Bill which became the Minister of Town and Country Planning Act, 1943. The Second Reading was proposed by the late Sir William Jowitt, as he then was, and I had the task of winding up and piloting that Bill through the House of Commons. But the extraordinary thing about this Machinery of Government Bill is that it creates three new Government Departments and nobody has heard the case for those Government Departments and in favour of the piece of machinery that is being created.
What reasons were given for this enormous increase of Ministers in the House of Commons and the creation of these new Government Departments without any attempt to satisfy Parliament of the merits of the proposal? In the course of the proceedings the right honourable gentleman the Chancellor of the Duchy of Lancaster explained more than once that the reason is, and I quote his words:We are the Government nowMy Lords, "We are the Government now "! I recall the statement of almost exact similarity made, also in a debate, when I had the honour of moving that a certain Bill should not be read a third time, when the Minister in another place said:We are the masters now.That fact was immensely useful thereafter to the Conservative and the Liberal Parties.
I wonder if the very similar "We are the Government now" is an excuse for not answering a debate on its merits and is an excuse for saying that it is quite improper for the House of Commons or the Opposition to be concerned with the merits of the machinery that is being set up, and whether it is sufficient to say that this was a decision of the Prime Minister. "We are the Government now": I think it is not insignificant how easily the language of tyranny falls from the lips of Socialist Ministers.
My Lords, as I read the speeches of Ministers in another place and the bland assumption that it was improper for the 425 Opposition even to question a decision of the Prime Minister, I was reminded of a famous line of Juvenal—the Latin language has a perfection of precision that is unrivalled:Hoc volo, sic [...]ubeo, sit pro ratione voluntas.
§ LORD CONESFORD
Certainly:I will it, those are my orders. Let my will serve for reason.I do not think the attitude of Her Majesty's Government could have been expressed with greater precision. That attitude, my Lords, does not become a British Government. Our ancient Parliament deserves more honour and respect.
§ 6.18 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, we have had a most interesting debate on matters of some importance on which different views are held; nearly all of them about how another place should be constituted. Nearly the whole of the debate has been about another place. I have never been quite clear why it is referred to in that way—I imagine because there was some delicacy on the part of your Lordships' House in interfering with the other place—but no doubt your Lordships are entitled to have a debate about it. If I may, I would reply first to some of the observations made by my noble friend Lord Morrison of Lambeth, and, of course, any observations falling from him will always, I know, be most carefully regarded in all parts of the House.
In the first place we should all, I imagine, agree that the relations between the Executive and the Legislature is a question of great importance, and there are many who would say that during the last thirteen years the Legislature has gradually been losing ground to the Executive; that this is not a good thing; that it is a bad thing. I express no opinion as to whether or not that is so, but those who take that view will, I think, say that the reason for it is not that there has been an increase in Government appointments, whether paid or unpaid, but is that of the increase of secrecy, the increase of the field in which things are labelled "secret"; the misuse of the Official Secrets Act to apply it to matters to which it was never intended to be applied; the increase, or at least the maintenance, of Crown privilege under 426 which an English judge cannot see a document which a Scottish judge can; in the field of the Press, the increase in "D" notices; and, particularly, the increase in the field of defence; until you can get into a position in which an Opposition cannot criticise because it simply does not know the facts.
I express no opinion at all as to whether or not any of that is right. If it is right, of course in part it is now being corrected, because, whereas in the field of defence the late Opposition did not know the facts, the present Conservative Opposition having just been in Office of course do know the facts, so in that sense the balance may be in process of correction. If there has been this change, it has not, I suggest, been due at all to any increase in Government appointments.
This Bill comes about, I suggest, in a fairly simple way. I hope I shall not cause any offence to noble Lords on the Liberal Benches if I suggest that in substance we have a two-Party system, and I suppose, as always with that, we have a Party of the Left, if you like to call it that, a Party of change and new ideas, and a Party of the Right, which wishes to conserve the existing division, and you sort out the good new ideas from the bad new ideas. So regarded, I suppose each Party plays an equally useful part in our political life, and I sometimes suspect that the reason why people belong to one Party rather than the other is perhaps more a matter of temperament than of reasoned conclusions; some people take more interest in new ideas, other people take more interest in displaying the critical faculties. Where that is so, where the Party of the Left comes into power determined to change things, particularly if they have been out of office for a very long time, of course, one would expect the maximum amount of change, and it is, I suggest, perfectly natural and simply, as has been said, a matter of political convenience, of business efficiency, if, in those circumstances, they need an extension of the Governmental machine, and, if they do that, to call the measure involved the Machinery of Government Bill seems very natural.
The actual change, so far as the increase in appointments is concerned, is. as your Lordships have heard, not really very much. There were ninety-seven 427 Ministers in the last Administration; there are 108 in this. In this House there were twenty-one Ministers in the last Administration; in this, there will be between seventeen and twenty. The 1937 Act provided that at least three Ministers should be in your Lordships House, but that was abandoned in 1957, and since 1957 we have not had any limit as to the number of Ministers or any limit of the number that must be Members of your Lordships' House, but simply the limit of seventy Ministers and twenty-seven senior Ministers. At that time, there were seventy-seven Ministers altogether, so all the limit of seventy who could sit and vote in another place did so far as your Lordships' House is concerned was to see that there would be at least seven Ministers in your Lordships' House. There are now seventeen. So both in absolute and in proportionate terms the number of Ministers in your Lordships' House in this Government has really suffered no decrease.
The last Administration increased the number of paid Government appointments compared with the previous Administration's by nine. This Administration has increased the number of paid Government appointments compared with the previous Administration's by 12. That is to say, each has increased the number of paid appointments by one in eight over the previous Administration. Including Whips, the paid and unpaid Government appointments in the last Administration totalled 110, and in this, 115, although a further few appointments are due. No really dramatic change has taken place at all. I can well understand the view that it is undesirable in another place that those appointed by the Government should be more than a certain proportion of the Party in power. I can understand the view that, however little change is made by some new Government, there must come a point where the figure is too high. I am only pointing out for the moment that one can expect additional crew appointed by a Party that comes in on a programme of effecting very much more change than there has been for a long time, and the increase is not very great judged by the previous Administration.
If I may deal with the particular points that have been raised, the noble and 428 learned Lord, Lord Dilhorne, asked about Clause 2 (1) (b) in particular. That provides:to the Chief Secretary to the Treasury and to any Minister of State, an annual salary of such amount as the First Lord of the Treasury may determine, not exceeding in any case five thousand pounds.The position, as I understand it, before 1957, was that the salaries of Ministers of State were not fixed, but in the last Government Ministers of State were paid £3, 750 and £4, 500, but if Ministers without Portfolio, £5, 000. It seemed better to regularise the matter in this way, but providing for a limit of £5, 000.
§ LORD DILHORNE
My Lords, before the noble and learned Lord leaves that point, I do not want to make a hostile interruption, but that was not the question I asked with regard to Clause 2 (1) (b). I asked whether there was any precedent for the First Lord determining himself without Parliamentary approval what salaries should be paid to Ministers of State.
§ THE LORD CHANCELLOR
In practice, both then and now, it was and is done by the Prime Minister.
The noble Baroness, Lady Horsbrugh, complained of some statement made in another place that the Government were not asking for abolition of the limit of 70. As she will appreciate, there are two limits, 27 and 70. It is sought to abolish the 27 and to alter the 70. She said there were too many Departments and Ministries and she would like to reorganise some of the Departments that exist. She did not agree with Assistant Whips being paid. But I respectively suggest all these are matters of opinion on which different people will have different views. Some may take the view that a Cabinet of one size is too large; another person takes the view that its size is a good idea.
My Lords, before the noble and learned Lord leaves that point, will he deal with the noble Baroness's point, which those of us who have worked in Whitehall feel to be very valid, that the more Ministries you create the greater the difficulty in running the machinery of government because of questions of consultation and so on?
§ THE LORD CHANCELLOR
This is entirely a matter of opinion and the elected Government of the day must 429 surely in the end decide, because they are responsible, whether they want one Ministry or two. This is merely to give them facilities which they have decided to have. We have had, of course, cases in which Departments have been amalgamated and cases in which Departments have been split up. It is very much a matter of opinion, and which is the better plan depends very much on the circumstances of a particular case.
The noble Lord, Lord Alport, said that some of these additional Ministers were unnecessary, and that again, I suggest, is purely a matter of opinion. Of course, whatever you provide, whatever Section 1s put into any Act, a Party with a majority can always alter it and create additional Ministries, however much there may be in existing Acts stating that an additional Minister may in no circumstances [...]e appointed. The noble Lord, Lord conesford, suggested that the Ministers in question in this case, the Ministers of State in particular, had really been appointed at a salary. I suggest that that clearly is not so. They were told exactly what the position was, that they could not be appointed at a salary, and that they would not be appointed at a salary, but that in due course Parliamentary approval would be sought. I am sure the noble Lord appreciates that they are all at the moment carrying out public duties without any remuneration at all, and, while they will be entitled to be paid from the day that this Bill receives the Royal Assent, they will not be entitled to any retrospective pay, although they will have been serving the country for whatever the period is, without any remuneration at all.
Then the noble Lord said that, if that might be wrong, would I advise somebody who wanted to take proceedings against the Government, under Section 7 of the House of Commons Disqualification Act, whether or not he could go to the Privy Council? I do not think I could undertake that responsibility for those who wish to take proceedings hostile to the Government. But I would suggest to the noble Lord for his consideration that Section 7 is not really anything to do with Section 2. Section 7 provides a means of determining a dispute as to whether or not somebody is disqualified for sitting in the House of Commons, because the very first section of all sets out a variety of people all of 430 whom are disqualified from membership of the House of Commons. Section 2 deals with whether you are entitled to sit and vote. There is nothing in Section 2 which disqualifies you from being a Member of the House of Commons. As to whether you can sit and vote, the only authority I know of to decide that point is Mr. Speaker. So, if I were fitted to advise somebody wanting to bring such an action, I should advise him not to.
§ LORD CONESFORD
My Lords, may I put one point to the noble and learned Lord? I am sorry, but I seem to have mislaid the Statute for a moment. But, supposing that such an action were brought, does the noble and learned Lord agree that it would be improper, or at any rate that he would not advise the House of Commons, to defeat such an action by making an Order under Section 6 (2) in order to defeat the possibility of recourse to the courts succeeding? There is a possibility that, in a vote on that, the people whose right to speak and vote was questioned might be tempted to take part.
§ THE LORD CHANCELLOR
My Lords, before determining what advice to give I think I will wait until such a hypothetical circumstance arises. Then the noble and learned Lord, Lord Dilhorne, asked whether the Bill in its present form has not the result that it is still possible for a Minister to be created and to sit in the House of Commons, other than is provided in the words of Clause 2. Everybody in fact is now caught by the limit, except a Minister who is in charge of a new Government Department. Anybody else is caught by Schedule 2. Whether it is desirable to leave that possibility or not, I do not know. Emergency conditions may arise, and, of course, even from a constitutional point of view you are always in the difficulty that no Act of Parliament can stop the prerogative right, of course on the advice of the Government of the day, of creating new Ministers. Whether it is satisfactory from the point of view of another place—which is what most of our discussion seems to be about—that there should be new Ministers created who are not in another place (one cannot have it both ways), nothing can stop the exercise of prerogative power to appoint the Ministers. Whether it is 431 satisfactory to have them in a place in which the other place cannot control them is again, no doubt, a matter of opinion.
§ LORD DILHORNE
My Lords, the noble and learned Lord has just said that everybody is caught by Schedule 2. Would he be good enough to indicate where a Minister of State appointed in the future without a salary is caught or where a Secretary of State appointed in the future without a salary is caught? I think that is not just a matter of opinion.
§ THE LORD CHANCELLOR
Yes. The first point is that the definition of "Minister of State" is itself altered in two respects. In the first place, the reference to "appointed at a salary" is dropped, and this means that salary will no longer be relevant to the question whether they are caught by the limit, and they are so caught because they are in the list.
Secondly, the limitation to salaried Ministers of State is not brought back by the wordsor any office in respect of which a salary is payable out of monies provided by Parliament under section 2 of the Ministerial Salaries Act 1946.which are to be inserted by Clause 5 (3) into the definition of "Minister of State". The purpose of the words is quite different. If they had not been included, the term "Minister of State" would have included the five Household Officers in this House. These are the Officers referred to by reference to Section 2 of the Ministerial Salaries Act, 1946. The words have no wider application. So the sole purpose and effect of including those words is to prevent the five Household Officers in this House from counting technically as Ministers of State in the new limit of 19.
Lastly, it seems to be suggested that something wrong has been done somewhere. I should like, if I may, to conclude by saying quite positively that the Government have throughout acted in accordance with the law, in accordance with precedent and in accordance with the requirements of Parliament. What the Government have done is to appoint certain Ministers, to pay the salaries and expenses of the new Departments and to bring this Bill before Parliament. So far 432 as the appointment of Ministers is concerned, this is an exercise of the prerogative and is common form. The previous Administration did the same thing when they appointed a Minister for Science, a Chief Secretary to the Treasury and a Minister for Welsh Affairs. There was no Act of Parliament at all. So far as the provision of salaries and expenses is concerned there is ample precedent for relying temporarily for the payment of salaries and expenses of new Departments on the authority of the Appropriations Act, obtained through the presentation and approval of Estimates. So far as transferred staff are concerned, and so far as non-transferred staff are concerned, the convention is that in such cases the Treasury authorise Departments to meet the cost of the services by making advances from the Civil Contingency Fund.
As I have said, there is ample precedent for this in numerous cases. Exactly the same thing was done by the previous Administration in relation first to the Minister for Science, whose office expenses ran from November 3, 1959, and were covered by Supplementary Estimates, though there was no statutory provision—supplementary provision such as is embodied in paragraphs 3 and 4 of Schedule 1 to the present Bill.
§ LORD DILHORNE
My Lords, might I ask the noble and learned Lord this question? Was not the case of the Minister for Science covered under the Transfer of Functions Act by Order in Council, and was not that Order in Council passed before the Minister's staff was appointed?
§ THE LORD CHANCELLOR
My Lords, as I understand the facts, the Minister was appointed under the prerogative, and salaries and expenses were paid at a time when—I am not suggesting anything improper about it—there was no statutory authority for it at all; and it was covered retrospectively. The same thing was done in a number of other cases—such as the Secretary of State for Industry, Trade and Regional Development; the reorganisation of the Scottish Department, producing the Scottish Development Department. Then there were the Lord President and his special responsibility for the North-East; the Department of Technical Co-operation; the Central African Office, the 433 creation of "Neddy", with the Chancellor of the Exchequer as Chairman; the appointment of the Chief Secretary to the Treasury; the appointment of the Minister of State for Wales. Indeed, it is fairly old, going back to the First World War, I am told, when the same thing happened in relation to Mr. Lloyd George and Dr. Addison; and, later, in the Second World War, in relation to the late Mr. W. S. Morrison and to Lord Halifax.
In September, 1939, there was an interval between the time when Mr. Morrison ceased to be Chancellor of the Duchy of Lancaster and was appointed as Minister of Food and, in the same way, was paid out of the Civil Contingencies Fund. Whether it is strictly necessary for Ministers to take the oath, or for it to be provided in the usual way in the Bill that they should take the oath of allegiance, as they have already done so as members of Her Majesty's Privy Council, I do not know. It is not, in fact, an essential step. A Minister without Portfolio who is not a Cabinet Minister does not take any oath at all. It depends who the Minister is; as to what oaths it is or is not necessary for him to take.
434 In conclusion, this is not, I suggest, a Bill which really raises constitutional questions. As has happened in the past, the number of Government positions is increased, but not very greatly. It is a piece of vital machinery of Government, because a Party which has come to power, boasting to do a great many new things and a great deal more in more fields than was done by what, in their view, was thirteen years of stagnation, not unnaturally requires increased machinery to do it; and that is the object of this Bill. Finally, may I concede this?—and it is the one point that I feel able to concede. Whether this matter should be dealt with at another stage will no doubt be determined, but I concede to the noble and learned Lord, Lord Dilhorne, that the figure (1) in brackets, in Clause 3, ought not to be there. I am very sorry about it, it is a serious matter, and I have no answer to it at all. I hope that your Lordships will now agree that this Bill should be now read a second time.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.
§ House adjourned at seventeen minutes before seven o'clock.