§ 3.37 p.m.
§ Lord Belstead
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee—(Lord Belstead.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 1 [Disqualification of certain offenders for membership of the House of Commons]:
Lord Jenkins of Putney moved Amendment No. 1:
Page 1, line 7, leave out ("elsewhere") and insert ("in the Channel Islands, the Isle of Man or in any British dependent territory").
§ The noble Lord said: This is an amendment which I feel confident will have Government support and immediate acceptance. My reason for such confidence is that when I asked the noble Lord, Lord Belstead, what was the meaning in the Bill of "elsewhere" during our Second Reading debate he said in effect that it means the Channel Islands, the Isle of Man or any British dependent territory—that it does not mean elsewhere, but that. Since "elsewhere" does not mean "elsewhere" but means the Channel Islands, the Isle of Man or any British dependent territory, I think we should say in the Bill what is meant, not what is not meant. Therefore, I suggest that we substitute 297 for the word "elsewhere" the words of my amendment. I hope with some confidence that the noble Lord will indicate to us the Government's acceptance of this clarification. I beg to move.
§ Lord Belstead
There is one fundamental point which I should like to make in reply to the noble Lord, Lord Jenkins of Putney. The Bill is not concerned with people who are qualified to stand who are in prisons outside the British Islands or the Republic of Ireland. The Government accept that it would be offensive to public opinion if, say, a British subject who was in prison in a dictatorial country for, let us say, political offences lost the civic privilege in this country of standing for Parliament. Such people would not be returned to serve their sentence in this country or in the Republic of Ireland. This Bill cannot apply to them. That is not the point of the noble Lord's amendment, but I thought it right to make this fundamental point clear at the beginning of the Committee stage. The persons to whom this Bill must apply, in all equity, are those who are convicted and who serve their sentences either here or in the Republic or who are transferred as a matter of routine to British prisons.
The amendment of the noble Lord, Lord Jenkins of Putney, identifies persons who are convicted in the Channel Islands, the Isle of Man and the British dependent territories. The noble Lord recognises that it would be anomalous to exclude them, but I must plead guilty, in that when I replied to the noble Lord at the Second Reading my indication of whom it was to which "or elsewhere" applied was not exhaustive. The list which I gave, and which the noble Lord opposite has repeated in moving his amendment, was not comprehensive. The list of persons transferred would also include British subjects sentenced to courts-martial under the provisions of the various Service Acts and transferred after sentence to serve their terms in British prisons. Another effect of the noble Lord's amendment would be to exclude prisoners convicted in the Republic of Ireland and serving their sentences in that country. That was, of course, an absolutely basic point put into the Bill in the other place as a result of representations which were made in the House of Commons. The Government believe that it is better to cover all these categories in one form of words rather than specify, and in doing so the noble Lord, Lord Jenkins of Putney, can be assured that the rights of any persons qualified to stand are not adversely affected.
§ Lord Jenkins of Putney
I am grateful to the noble Lord for that explanation, but I am still a little worried at the use of the word "elsewhere". The noble Lord has explained that in this case "elsewhere" does not mean elsewhere, and that what it means is not precisely what I have said it means or what the noble Lord said it means; but that it means something different from what the noble Lord has said it means. If the Government were to say, "We recognise that the word "elsewhere" is altogether too wide and we will institute a form of words other than "elsewhere" which will mean what we say it means", then I would be very happy not to press this amendment. Can the noble Lord say that?
§ On Question, amendment negatived.
§ 3.42 p.m.
§ Lord Mishcon moved Amendment No. 2:
Page 1, line 12, at end insert—
("A person shall not be disqualified under this section until after the determination by any competent court of appeal in the United Kingdom or elsewhere in the British Isles or in the Republic of Ireland of any appeal entered by any such person within the statutory time limits against any conviction sentence or order as is mentioned above.").
§ The noble Lord said: I believe it might be for the convenience of the House if instead of repeating speeches which roughly have the same theme, I were to speak to Amendments Nos. 2 and 4 and then, if your Lordships seem as though they are with me on this Division of votes, I would seek (for a reason that I am going to give) to ask the House to vote on Amendment No. 4—unless, of course, my pessimism is misplaced and the Government decide to accept one or both of these amendments.
§ We are dealing with a very important constitutional issue in both amendments. The situation at the present moment in regard to our law is that somebody who is serving a prison sentence, be it for more than 12 months or less than 12 months, can validly stand for election. If he is in fact elected, it is for the other place to decide whether or not it will expel that person. One may have views about the Government's purpose in this, but in dealing with this amendment and with the other amendment one should simply state the Government's purpose and accept it. The purpose of the Government is to alter the present position and to have an enactment that does two things. First, it would revert to the law as it was before 1967, as the Government say. In my view, it does not completely do that, but I am not going to weary your Lordships with that point at this moment. This will therefore see to it that a person who is serving a prison sentence of more than 12 months is disqualified from being elected to the House of Commons. The Government are seeking to do something in addition to that which has never been part of our electoral law at any time; namely, to stop matters at the nomination stage. Therefore, anyone who is serving a sentence of more than 12 months in one of our prisons in the United Kingdom is to be disqualified from standing.
§ As I have said, I am not going to complicate the argument by dealing with the issue as to whether or not the Government are correct in the view that they hold. At Committee stage I want to assume that the Government view is correct. What I am appealing to your Lordships' House for is that justice should operate to this extent; that in the case of somebody standing for election and also in the case of someone who has been appointed by the people to be a Member of the other place, there shall in both cases at least be provision for the matter to be put right if the person so convicted and sentenced appeals and the appeal is either successful on sentence, in order to reduce the sentence to less than 12 months, or is successful against conviction. There has been such a case, for 299 example, in another place. I do not consider that it would be appropriate to mention names, but there has been a case in recent history where a Member of the other place was convicted and was sentenced for more than 12 months and who, on appeal, was completely acquitted of any suggestion of guilt by the appellant court. Indeed, there were statements made in sheer fairness on that occasion that a conviction should never have taken place.
§ Amendment No. 2 deals with this question of the nomination stage, and indeed of the election of a person not yet elected to another place. Amendment No. 4 deals with the situation of somebody who has already been elected. If I may say so, there are slightly different arguments which apply in each one of these cases. If I may take Amendment No. 2 first, it deals, as I have said, with the nomination and election stage of a Member of the other place. I should like to express my indebtedness, in that I have used very substantially in these amendments the wording of an amendment that was put forward in the other place by the honourable Member for Grantham, who bears the name of Mr. Douglas Hogg—a name not unknown in your Lordships' House. That amendment was moved in the other place by a distinguished member of the Government. He moved the amendment in regard to the situation of somebody nominated for or first elected to the House of Commons; the question of disqualification at nomination stage or at election stage was what the Member of the other place was dealing with in moving that amendment. The answer that was given to that amendment is of some interest in that it was dealt with by both the Minister of State, Mr. Mayhew, and by the Home Secretary himself, Mr. Whitelaw.
If your Lordships will permit, I should like to quote from the comments made by Mr. Mayhew in the House of Commons on 25th June. He said:
I turn to the high water mark of the case so attractively made by my honourable friend. In the case of someone who is sitting as a Member of the House, the penalty is more dire".
As I said, I shall be quoting the rest of what he said when I deal with the question of the election to the House of somebody who is already a Member and then will be disqualified. This is what he went on to say:
One has to acknowledge, facing the situation in Northern Ireland, that it is not possible, while seeking to remedy an abuse of the nature of that with which we are dealing, to serve completely the interests of justice and, at the same time, to serve completely the interests of practicality and the interests of speed".—[Official Report, Commons, 25/6/81; col. 445.]
§ I am ending the quotation there and your Lordships will not be surprised if I make the immediate point that this is meant to be legislation not for Northern Ireland and not only to deal with the tragic events of this time in Northern Ireland. This is meant to govern the whole of the United Kingdom and it is meant to be legislation of a permanent nature. Therefore, it is somewhat surprising that the Minister limits himself to the argument that, because of the urgent situation in Northern Ireland, the interests of justice have to give way to the necessity for speed. One knows what the necessity for speed is because indeed we heard the noble Lord the Leader of the House on that matter when he moved his Motion earlier today.300
Later in the proceedings, after a member of the Government had said—and I am paraphrasing—that he supported the Bill on Second Reading with reluctance because he distrusted rushed legislation, the Home Secretary, Mr. Whitelaw, said:
I reinforce what my honourable and learned friend the Minister of State said. Of course, I shall consider the points that have been made on this issue. It would be possible to make a change in another place, and I shall consider this, but I must do so at this stage without commitment. I undertake to consider what has been said ".—[Official Report, Commons, 25/6/81; col. 471.]
What had been said by the honourable Member for Grantham in another place was that it was transparently unjust for somebody who was exonerated on appeal to have the disqualification of not being able to stand for the election or, if this disqualification arose between nomination and election, of not being able to be a Member of the House although elected. Therefore the answer depends on the question of speed, and I have ventured to alter the wording of the amendment as tabled by the honourable Member for Grantham because the argument on speed was deployed in this way—and I am paraphrasing what the Minister said. One need not necessarily appeal within the statutory time. One could go on and, if one wanted to delay the matter, petition the court, asking for leave to appeal out of time. So, bearing in mind that an election cannot stand still, I have specially put the words in this amendment that the appeal has to be entered within the statutory time-limit, which is four weeks.
§ In those circumstances I should have thought that this would be an opportunity such as the Home Secretary himself thought was available—namely, for this place, having considered the matter, to alter the Bill in order to provide this cover of justice to what is otherwise a very severe disqualification clause.
§ So that your Lordships are not burdened with two speeches of mine on this issue, I promised that I would deal in the same speech with Amendment No. 4, which covers a different situation—namely, that somebody is already sitting as a Member of the House. Let there be no misunderstanding about this—and if I am wrong, I know that with his usual courtesy and his usual firmness the noble Lord, Lord Belstead, will correct me. As I understand it, the position before 1967 was that, if you were a Member of the House and you were disqualified, should you be unfortunate enough, or wicked enough, to be sentenced to a term of imprisonment of more than 12 months, you were disqualified from sitting and disqualified from voting but, unless another place by resolution expelled you, your seat was not declared void. Therefore, there was no question of your automatically finding yourself disbarred as a Member of another place. I believe that that was the situation.
§ Under this Bill, which not only seeks to reimpose the situation as it was before 1967, I understand that what will happen to a Member of another place if he is sentenced and is serving a term of imprisonment of more than 12 months, is that he will cease to be a Member of another place. That of course goes very much further and, in going further—and even if I am wrong and it does not go further—it must be a complete and absolute injustice, if an appeal is entered and is successful, if the Member of another place, properly elected 301 by the people, has not the right to resume his seat with the power to sit and the power to vote.
It was conceded at the Committee stage in another place that this was indeed a matter of very hard law, and hard cases were referred to in the argument. Therefore, what I would seek to do now is to quote in full what I was endeavouring to quote before from the speech of the Minister of State in answer to this amendment when it was moved in the other place. He said:
In the case of someone who is sitting as a Member of the House, the penalty is more dire. He is tipped out of his seat. He is tipped out of his job. It can be said that the consequences affect more people than are affected by the application of the Bill to somebody who is seeking to be nominated or elected. That has to be faced. It is not, however, all one way. The Forfeiture Act 1870 presented exactly that pattern. Disqualification under the 1870 Act, to the extent that it disqualified from sitting and voting in this House and being elected to the House, operated straight away upon conviction ".—[Official Report, Commons, 25/6/81; col. 445.]
§ I have ended the quotation and your Lordships will see that certainly in the mind of the Minister of State was the fact that, pre-1967 and taking into account the provisions of the Forfeiture Act, the situation was that there was disqualification from sitting and voting, not an automatic voiding of the seat and not an automatic expulsion from membership of another place.
§ The last argument that I wish to burden your Lordships with is the rather theoretical argument that has been advanced, which is that the principle of our law is that until you are convicted you are innocent and after you are convicted you are deemed to be guilty. I wonder whether I can ask your Lordships not to be adjudicating upon some strange person, some third party who might be a colleague in another place. I wonder whether any one of us would not feel a sense of the most dreadful injustice if, by some mischance, it happened to us. It has been said before, and instanced only recently: the judges are but human, juries are but human and expert witnesses are but human, and some people have been convicted of the most serious offences and it has been found afterwards that the conviction was completely misplaced. As I said, Nye had an instance of it only over the last week or so.
§ Suppose it happened to one of us and we were disgraced and sent out from another place, or indeed from this place—although the Forfeiture Act indeed dealt with this House while the present Bill does not, and possibly because it is a Representation of the People Bill one can understand it. But can one imagine the sense of abhorrent injustice if it happened to us—any one of us—and we were completely exonerated on appeal and we had no right to go back to the seat to which we had been properly elected in a democratic assembly by a democratic vote; we had been expelled, we had been disqualified, the seat had been voided, even though on appeal all was well and we were acquitted.
§ It cannot be argued in the second case that there is such a hardship upon the electors who had appointed that Member, that for some period of time they were unrepresented. Have we so little confidence in our appeal administration as to think that a case of this kind, an appeal of this kind, would not be expedited? Of course it would be. Have we not all experience of constituencies that are not represented for some time, 302 because of illness and other matters? Arrangements are made, quite obviously, for the constituency to be looked after in the meantime.
§ We are dealing with a matter of great constitutional importance. I beg of your Lordships not to be misled, as I respectfully say the Minister of State was misled, into arguments about what is happening at the present moment in Northern Ireland. This is not a Northern Ireland Bill; it is a United Kingdom Bill. It is a permanent Bill. As was said by the Home Secretary, there could be an opportunity in this place to put this matter right.
§ Only so that the noble Lord, Lord Belstead, may know what my intentions are because it is only right that he should, may I say that I believe that the proper way of expressing the opinion of this House, in a Division as against a verbal vote, if I may put it that way, would be to take the case of a Member of another place which is, in my view, the harder case of the two. I therefore would propose, unless the Government can accept this amendment, to divide on Amendment No. 4, but I hope your Lordships will be sufficiently vocal on Amendment No. 2 to make it completely plain that "the Contents have it". I beg to move.
§ Lord Hampton
If I may, I wish to speak only quite briefly. I find the noble Lord, Lord Mishcon, very persuasive and I should support him in the event of a Division. I cannot accept quite everything that he says, but those points may have to be taken up later. It seems to me the Government have been accused, rightly or wrongly, of rushed legislation today, and here is a case of not only rushing legislation but rushing one stage further. The statutory time is four weeks, as the noble Lord, Lord Mishcon, has said, and when it is a case of a man appealing against forfeiture of nomination for election to another place, or of being disqualified, I cannot see that this is not a reasonable step to take. I would support the noble Lord.
§ Lord Rawlinson of Ewell
I start by apologising to the noble Lord, who, of course, should have had precedence; I am only sorry that I did not see that he had risen. I apologise to him and to the Committee. We are dealing here with the Representation of the People Bill, and while I fully accept that it is the right of this House, and indeed on occasion I can fully understand that it might be the absolute duty of this House, to play a very strong part over a Bill which deals with election to the House of Commons, nevertheless I suppose we should take into account that this is a Bill which deals solely with election to the House of Commons on which the House of Commons have exercised their vote and their decision. I think it is something that we should take into account.
We have to be realistic. While I listened with great pleasure, as I always do, to the noble Lord, Lord Mishcon, I think we have to be realistic about why this Bill is before this Parliament at this particular time. For us to try to deal with it in a vacuum would, I think, be totally absurd. It is, of course, persuasive to say that normally one would try to wait until all the appeal procedures had been completed, which, of course, goes beyond going to the Court of Appeal; 303 it would include coming to your Lordships' House, to the Judicial Committee. Although that might be expedited it might take a very considerable time. We have to be realistic, in that we have to face the situation in which what happened in the by-election when the late Mr. Sands was duly elected was, in my view, one of the most serious propaganda defeats for this nation.
The desirability of this Bill, I believe, is felt by everybody. It is offensive to the general public, and it must be particularly offensive to those citizens of the United Kingdom in Northern Ireland, that there should arise a situation where a person can be nominated for election to the British House of Commons who is in the position of a convicted terrorist. The consequences of that situation, for instance in the United States of America and elsewhere, were very grave indeed. I believe that it is right for the Government of the day to take upon itself the duty and the responsibility of seeing that that situation does not arise again, because it was a situation which I believe gravely offended the general public in this country.
The conviction of a person of a crime creates a situation where the press and public speak of a "convicted person"; the person's history is given, which it has not been before. Reflect, if your Lordships would, on the recent cases which have been in the public press. Someone has been convicted, and though an appeal may be pending nevertheless that person is treated as a convicted person. Being treated as a convicted person, none of the laws of contempt apply and he can be called what he is: a convicted murderer, a convicted terrorist. I appreciate from what the noble Lord has said that, of course, there must be conceived the situation whereby on appeal that verdict is reversed and the convicted murderer, the convicted terrorist, then has that conviction quashed. But we have to look to the consequences upon our institutions, and upon this Parliament, which we all serve, if in elections to the House of Commons, where there is the representation of the people, there can be nominated to serve there a person who has been convicted of terrorism or of murder or of any of those serious offences.
While, of course, the noble Lord is right in saying that this Bill deals with the whole of the United Kingdom and is, on the face of it, a permanent Bill, nevertheless we must sec it in the context in which it was introduced into Parliament. We must see it in the context of that situation and of the possibility of it arising again. What are the public to say of a Government and a Parliament which let such a situation arise again?
Therefore, I believe that it is right that we should do that which we set out to do. We set out to do it on conviction because I believe that, if we delayed it for a time and provided for the time when it goes to appeal to the Court of Appeal and then up to your Lordships' House, the objects and purposes of the Bill would be defeated. In my view, this is a Bill in which we must take into account the balance—and I think that there is a balance here—between the public interest and the interest of the individual. I believe that the interests of the public demand and insist that no longer should it be possible for a situation to arise in which a person such as Mr. Sands could be elected to serve in the House 304 of Commons. Therefore, I disagree with the noble Lord and I agree with the Bill as presented by the Government. I feel that we should maintain the clause as it is and reject the amendment.
§ Lord Renton
Since the time factor has been mentioned, I should just like to say that I am one of those who feel very strongly that normally we should take plenty of time on legislation, because legislation is so difficult. So frequently it has been shown that your Lordships' House, by exercising its powers of revision with great thoroughness and great care, has managed to improve legislation a great deal. But there are other occasions when the public do not expect us to tarry: they expect us to correct something which is plainly wrong. I would suggest that this Bill is one of those occasions. Perhaps that is irrelevant to the amendment moved with his usual clarity by the noble Lord, Lord Mishcon, and I should like, therefore, to turn to that matter.
I wonder whether it has occurred to the noble Lord, as it has to me, that his two amendments, if accepted, would confer a privilege upon Members of Parliament and people wanting to become candidates for Parliament—a rather strange privilege I concede—which is not available to other convicted people. Other convicted people, even though an appeal is pending and until it has been heard, normally have to remain in prison and cannot enjoy any civil rights such as, for example, voting. They have to live and work in prison. There are exceptions, but they are rare. Sometimes bail is granted pending an appeal, but that is a pretty rare occurrence. Sometimes for reasons of compassion a man may be released for a day from prison, in custody, to get married or even to attend a funeral, but those occasions are very rare. Normally, convicted people, even though they may have a splendid chance of succeeding on appeal, have to stay in prison.
§ Lord Mishcon
The noble Lord is always so courteous that I am sure he will not mind my intervening. No suggestion was ever made in this amendment or in any speech that I made in support of it that a Member of Parliament or a candidate should be exempt from serving his prison sentence pending appeal. He will be in prison and therefore he will be unable to sit and unable to vote.
§ Lord Renton
The noble Lord is perfectly right and it is obvious that I have not made myself clear to him nor perhaps to other noble Lords. I am saying that once one has been convicted, and even though an appeal is pending, one is deprived of one's ordinary civil rights which go with liberty. That is what I am saying.
Let me come briefly to my other two points. First, we do know and the noble Lord knows—although I am sure that he has never been guilty of delaying an appeal in any circumstances; it is unthinkable that he could have done so—that appeals get delayed, sometimes intentionally, sometimes inevitably and sometimes accidentally. However, if this amendment is accepted, there will be a very great temptation and a very strong motive for delaying appeal so as to try to hold the person still as a candidate for Parliament or as a Member of Parliament. The uncertainty that could be created by the simple fact that appeals so often are 305 delayed, as my noble friend has suggested, would be surely against the public interest.
There is an even stronger short point that I would wish to make and that is to emphasise that the effect of these amendments would be further to disfranchise thousands of people in a constituency. They would be disfranchised in what I would consider to be an unnecessary and sometimes vain attempt to produce a form of special justice for the Member of Parliament or the candidate concerned, and I do not consider that constituents should be disfranchised in that way. Therefore, I hope that my noble friend on the Front Bench will oppose the amendment.
§ Baroness Wootton of Abinger
I think that, at the time of the 19th century legislation to which my noble friend Lord Mishcon referred, Members of Parliament were not paid. I wonder whether my noble friend would make it clear whether, in the case where a person has been convicted and is in prison pending an appeal, he would or would not, under my noble friend's amendments, be drawing his parliamentary salary? If he is detained in prison pending appeal obviously he could not attend this House; but would he retain his parliamentary salary pending appeal?
§ Lord Belstead
Like my noble and learned friend Lord Rawlinson of Ewell, I acknowledge on behalf of the Government that there is a balance to be weighed in this matter. The noble Lord, Lord Mishcon, certainly made a strong case in terms of justice and equity to the individual that there is a right that the penalty of disqualification from nomination and election to the House of Commons should not be incurred until an appeal within the statutory time limit has been resolved. In saying that, I am endeavouring to speak to the first of the two amendments with which the noble Lord has dealt.
The Government's case is that the possible risk of that feeling of injustice for the individual has to be weighed against injustice to a constituency which, if a Member were elected during an appeal period but was in prison, might go unrepresented for a considerable time. If I may say so, I really do think that my noble friend Lord Renton was absolutely right to point out that, under those circumstances, for a period of time which could be of considerable length—even allowing for the fact that in this amendment we are talking about an appeal made in the allowed period—people of a constituency, both those who have voted for the successful candidate and those who have voted against him, will all, in effect, be disenfranchised. The Government believe that the noble Lord's amendment on those grounds is not well-based, but we are also worried because I think that there are anomalies which could be created as a result of the first amendment and which would not necessarily remove the sense of injustice of a particular individual. I should like to refer to these anomalies as they occurred to me.
The noble Lord, Lord Mishcon, fairly said that the amendment is confined to the statutory period for an appeal. As your Lordships know, there are, quite rightly, extensive rights of appeal in the separate judicial systems operating in the United Kingdom. The statutory period to which the noble Lord referred is not, of course, the only right of appeal enjoyed by 306 any individual. Leave to appeal can be sought in most cases at any time during sentence, but that is not, of course, covered in this amendment. This means that the noble Lord's amendment will not affect all appeals that may be fought or may protect the position of a person who believes that he or she has been wrongly convicted. This amendment would affect only a limited number, and it therefore can scarcely be said that this amendment rests wholly on a matter of principle, because under the amendment some appeals would delay disqualification and some would not.
Reference has, quite understandably, been made to the history of this matter. As I understand it, the position is as follows. The Forfeiture Act 1870 disqualified for election to or sitting and voting in the House of Commons persons convicted of a felony and sentenced to more than 12 months' imprisonment. No exception was made in the various subsequent Acts establishing our appeals procedures for those who had lodged an appeal. Nor does the Representation of the People Act 1969 make any exceptions in respect of the disqualification of a convicted prisoner from voting. As for other forms of disqualification they apply directly, without waiting for any chance of appeal. For instance, if a person is, on the day of nomination or election, a bankrupt or has been convicted of treason or certain electoral offences, his subsequent election would be void. However, I do not base the Government's case against this first amendment solely on the grounds of anomaly or history.
It was my noble and learned friend Lord Rawlinson who, in his speech, argued that it is essential to approach this Bill not in a theoretical, but in a realistic spirit. We must ask ourselves what would be the practical effect of allowing a period of grace during appeal. After all, on Second Reading the noble Lord, Lord Blease, referred to the prospective loophole in Northern Ireland, with a large number of prisoners there on remand because of the pressures on the courts. I think that this amendment would open a much wider loophole, because it would inject a degree of false uncertainty into the disqualification of prisoners—false uncertainty, because it is the law of the land that once convicted a person is guilty. He or she can be referred to in the press—as my noble and learned friend said—as being a guilty person and is treated in custody as being guilty. It would make the returning officer's job of disqualifying the nomination of prisoners convicted and serving sentences of more than 12 months more difficult, as the returning officer would have to receive information about the appellate position of the prospective candidate.
To put it in absolutely concrete terms, it would enable those who arranged the nomination and election of the late Mr. Sands to have an opportunity to select a recently convicted hunger-striking prisoner who, just at that time, had entered an appeal, however hopeless his appeal might be.
There is, however, the second amendment on which the noble Lord has warned that if the Government cannot meet his case, it would be necessary to divide. This amendment differs in one important respect from the other amendment moved by the noble Lord. The first amendment refers only to the suspension of the disqualification for nomination and election during 307 the period of a statutory right of appeal, and then, of course, the appeal must be heard. The suspension during appeal provided in the second amendment for membership of the House of Commons, does not appear to be confined to statutory rights, but would extend to any appeal. I was a little surprised when the noble Lord, Lord Hampton, said that he felt that he would support the Opposition Front Bench in this matter. I wonder whether the noble Lord had quite taken on board that, as the amendment is drafted, this would mean that for a very long period of time it would be necessary to wait to see whether a Member who had been convicted for a period of more than a year would make an appeal. I repeat this because, of course, on conviction a person is found guilty and if in prison can no longer represent his constituents. But this is an amendment which would affect sitting Members of another place, and it is relevant that another place debated this and voted against the amendment.
I only say that because I do not find it surprising that even on this very sensitive issue affecting Members of another place, the House of Commons decided against this amendment. After all, until 14 years ago, the law was what the Bill now says it ought to be in respect of sitting Members. By that, I mean that the Forfeiture Act 1870, which was repealed in 1967, disqualified from sitting and voting in the House of Commons and from being elected to the House immediately upon sentence.
The noble Lord, Lord Mishcon, asked me a direct question about that. He said that he felt that that did not mean that the Member would then be disqualified by the old Forfeiture Act, which was the law of the land until 14 years ago. The noble Lord invited me to respond. Perhaps I might draw the noble Lord's attention to a case which I ventured to mention on Second Reading, which was the case of Arthur Alfred Lynch, who was adjudged guilty of high treason in March 1903. But, of course, high treason fell into exactly the same section of the Forfeiture Act 1870 as the position of those people who had committed crimes for which they had been convicted with sentences of more than 12 months. In considering the vacancy which was occasioned by Mr. Lynch's misdemeanour, in the House of Commons on 2nd March, 1903, at column 1121 the Attorney-General, Sir Robert Finlay, quoted, first, the relevant section of the Forfeiture Act 1870 and then he said:That express enactment renders it quite unnecessary for the House to pass any resolution stating that that is the effect of the judgment. Before that Act the practice had been established of having a resolution declaring that the judgment had the effect of disqualifying the person in question, and that practice survived in several cases after the statute of 1870;the Attorney-General continued:but I think the House will agree with me that in the face of this express enactment it is absolutely unnecessary to pass any resolution. That is a matter of clear law, and the only question that remains is, what shall be done with reference to the vacancy in Galway, which has been so created?".My reading of that is that in 1903 the Attorney-General was saying that the 1870 Act in fact disqualified the Member of Parliament. Again, I do not find that surprising.
308 Finally, may I ask your Lordships to consider the effect of the second of the two amendments in the name of the noble Lord, Lord Mishcon. In the event of a Member of another place being convicted and sentenced to a term of imprisonment of, let us say, three years or five years, under this second amendment everyone would have to wait for an indefinite period in case the Member were to appeal. I think that it would he most undesirable to disenfranchise the clectorate of the constituency concerned, pending an appeal made within the statutory limits, which is the effect of the first amendment; but to remove the right to have a Member of Parliament from a constituency, while an appeal was awaited out of time, from someone convicted and sentenced, which is the effect of the second amendment, really would be intolerable. I only venture to say that so trenchantly because that was the view of Members of another place, that these amendments should not be made, and I hope that your Lordships will take the same view.
§ Lord Mishcon
May I pay tribute to the noble Lord for a very powerful speech, but unhappy is the person who endeavours to debate with the Government Front Bench. I say that, because whichever way one argues, one will find that one cannot win. I shall instance this to the Committee in this way. In the other place, when almost the same amendment was moved by the honourable Member for Grantham, the argument against him was that in the case of someone who was nominated, it was very wrong, because of the time element, to approve of this amendment by virtue of the fact that the person concerned could appeal out of time and the whole thing could go on interminably.
Therefore I endeavoured to answer that argument in the case of nomination and election by saying, "Well, let us limit it to that category who do in fact comply with the rules and who appeal within the 28 days that are allowed". When I do that, I am told by the noble Lord, Lord Belstead, that I am guilty of arguing an anomalous position because I have taken one section only of those people who might appeal and I have discarded the rest. In such a debate nobody can win. Nevertheless, I shall struggle on.
I do not want to repeat the arguments I have advanced. The noble and learned Lord, Lord Rawlinson, will forgive me if I instance his speech which, as usual, was most powerful, but he talked about the circumstances in which this legislation was being put to the House. He talked about the scandal—and scandal it is—of what happened in the Sands election. I do not like the idea of Parliament being bombed into legislation by the IRA. I dislike it intensely. I dislike the fact that the whole time we have got in mind the Sands election. I dared to say at Second Reading that this will become known as the "Sands Bill", and I did not think he was entitled to that memorial.
I am trying to plead for people not guilty of terrorist acts; not guilty of treason. I am talking about the person who may be involved in business and, as a result it may be of the dereliction of fellow directors, finds himself on trial because his company has done something wrong. Then it is found that he should never have been convicted, by virtue of the fact that he did not have the knowledge and could not be 309 impugned as a result of that. I am even talking about a person who, in spite of the fact that there is a breach of the law—and obviously a breach of the law cannot be condoned—may, for conscientious reasons which the electorate think were conscientious and they support him, find himself sentenced to more than 12 months imprisonment.
Our penal legislation these days goes very far. It goes very far in regard to all sorts of legislation that am not going to instance before your Lordships now. I cannot carry the argument any further than to say that it is not just the view of somebody on this side of the Committee, or this side of the Committee in another place; it was the view of a distinguished lawyer and member of a distinguished legal family that the appellate rights must be recognised, if not—and I say this; he did not say it—of the person nominated and elected, at least of the person who is a sitting Member in another place. As I said, I can carry the matter no further. I do not think there are any politics in this. Therefore I hope that those who do not feel the stinging impact of a Whip may feel fit to vote on this amendment when the time comes as something that is an intrinsic part of our justice.
§ On Question, amendment negatived.
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ 4.34 p.m.
§ Lord Mishcon
I apologise to the noble Lord that I did not give him notice of this question, and I shall well understand if he tells me that he is going to write to me about it, unless of course he can answer the question now. The Committee will be aware of the very short programme of time that we have for consideration of this Bill, and this thought occurred to me only this morning when I was reading Clause 1.
The clause refers to one or more offences, and then goes on to refer to an indefinite term in regard to detention or custody. It occurred to me that there is of course both criminal contempt and civil contempt, which can operate if the person concerned is convicted of it by the court's deciding that he shall be in custody for an indefinite period until he purges his contempt. "Offence" is not defined in this Bill, and I merely ask the Minister to consider—and not necessarily answer me now, because I have thrown this point at him—whether or not the disqualification provisions apply immediately to somebody who, on nomination day or indeed on election day, or indeed if he is a sitting Member, finds himself in contempt, for example in regard to an order made in the Family Division, and is therefore in custody by an order of the court—and an order is mentioned this clause—for an indefinite period, namely until he purges his contempt.
§ Lord Belstead
I am advised that the answer to the noble Lord's question is that Clause 1 only covers criminal contempt.
§ Lord Mishcon
If that is so, if it covers criminal contempt, although it is unusual for the court—and here I invoke the aid, if I may, of noble and learned Lords present in the Committee—and is not the practice of the criminal court to confine somebody to custody for an indefinite period, it is competent for a 310 criminal court to do so, and indeed it has been done. I repeat, it is not the practice but it can be done in the case of criminal contempt. In those circumstances, I ask the Minister whether he would care to consider this. The situation would be extraordinary. If someone on nomination or election, or a sitting Member, was indeed in contempt of court and was therefore detained and it happened to be for 24 hours, but the order was that he be detained indefinitely, surely he would be caught by this.
§ Lord Belstead
Certainly I will consider what the noble Lord has said. I would remind the noble Lord of what I ventured to say to the Committee on the first of the noble Lord's two amendments which we have just been discussing. If on nomination day, for instance, a person has been adjudged a bankrupt, he is then caught. Therefore, although I realise that I am not comparing like with like, the fact that the time factor works in the way the noble Lord is putting it, I do not think is necessarily as unfair as the noble Lord appears to think.
§ Clause 1 agreed to.
§ Clause 2 [Effects of disqualification]:
§ 4.29 p.m.
Lord Underhill moved Amendment No. 3:
Page 1, line 15, leave out from ("void") to end of line 16.
The noble Lord said: Arguments in support of this amendment were included in the debate on the Second Reading. I am certain that most noble Lords who have read the Official Report will take the view that many of the arguments were not fully answered by the Government. The claim is made that the Bill, and this clause in particular, are to meet a particular Northern Ireland situation. This afternoon the noble Lord, the Lord President, said the reason is that a constituency is unrepresented. He also said that the effect was greater on another place than on this House, and that latter reason is why the amendment does not propose to deal at all with the first part of the clause, which concerns disqualification from membership of the House of Commons. However, the second part of Clause 2(1) says:
if such a person is nominated for election as a member of that House his nomination shall be void".
That does not confine the clause to Northern Ireland. I will not deal with all the arguments put forward, even on the Northern Ireland question, on Second Reading, except to say that the clause would in no way debar from nomination a gunman or terrorist who had completed his sentence and was no longer detained in prison.
§ My main point is that the Bill, and this clause in particular, could affect any constituency and the electors of any constituency in the United Kingdom, so in that respect it is a fundamental constitutional change. Reference has been made, particularly on Second Reading, to the fact that the Bill seeks to restore the position to what it was prior to the passing of the Criminal Law Act 1967. In fact, the clause goes far beyond that; there has never been a situation where a person has been disqualified from nomination, though that is what the clause is proposing and what 311 the amendment seeks to change. In other words, the clause would introduce something we have not had in our constitution for a century or more.
§ The electors of a constituency have always had the right to elect whom they wish, even if they wish to act irresponsibly. Numerous examples were given on Second Reading of such cases and I shall not weary your Lordships by repeating them; in fact, I shall credit all noble Lords present, and those who are interested outside, with having read the Official Report, and therefore they would have read the examples which were given at that stage. However, we also dealt on Second Reading with the possibilities of persons who could be covered by the clause, not just terrorists and gunmen but individuals who felt they should stand out on a conscience issue and who might find themselves acting contrary to the law and, as a result, imprisoned for a year or more. All those people, if still detained, could be debarred from nomination—the sort of people who in the past have stood for a constituency and about whom their constituents have said, "We admire what you have done and we shall elect you, even though we know you are not entitled to take your seat and vote in the House of Commons".
§ The amendment is designed to maintain the constitutional right of electors to choose whom they want. We have always stood for the right of constituencies to vote for whomever they want, and I hope noble Lords will appreciate that that is the principle of the amendment. I also hope noble Lords will remove from their minds the question of Northern Ireland; this must not he dealt with solely in the context of Northern Ireland because it is a great constitutional right. This House has always stood for the protection of constitutional rights. That is what the amendment is about and I hope noble Lords will support it.
§ Lord Hylton
I indicated on Second Reading that I supported the principle of this amendment, and I hope the noble Lord, Lord Underhill, will press it because in my view it is even more important than Amendments Nos. 2 or 4. My noble friend Lord Belstead on Second Reading indicated that the Government were anxious in the Northern Irish context to stop up certain loopholes. They may be doing so, but they had better he careful because they will find there are an enormous number of loopholes still open and usable which would be almost impossible to cure by any amount of legislation. I am thinking, for instance, of terrorists who have completed their sentences; of others who have been sentenced to terms of less than one year; and of the possibility of changes of name by deed poll, as was brought out—without reference to this Bill—in a Question in the House earlier today. In the past we have seen in other countries, particularly in the Commonwealth, many occasions when former terrorists have been negotiated with, been elected, become Prime Ministers and valued members if the Commonwealth. Can we sensibly say to a particular terrorist organisation, "You shall not try to make use of parliamentary and democratic procedure"? think we may be very unwise to do so.
§ Lord Belstead
The noble Lord, Lord Underhill, is of course entitled to ask what has prompted the 312 Government to go beyond the provisions of the 1870 Act in putting this provision in the Bill—that disqualifications can extend to nominations—and the Government's answer to that is simple. The considerations really have changed in the intervening years. In more recent years the benefits accruing to candidates have increased enormously. I referred to some of them in moving the Second Reading; the free post facility, the free use of public rooms for election meetings and, most significant of all in the recent context, the many additional opportunities for coverage by the press and broadcasting authorities.
I am afraid we cannot put out of our minds what happened in Fermanagh and South Tyrone. The fact of the matter there was that those who put up a prisoner as a candidate in a parliamentary election gained by that act itself many opportunities, which they ruthlessly exploited, to spread their propaganda. It was against that background that we had to decide how we should respond in order to prevent that recurring. We decided that as imprisonment is a matter of fact, it should not be unreasonable to prevent the nomination of a prisoner disqualified from election under the Bill.
Incidentally, in suggesting, as has been suggested, that the provisions which the amendment seeks to remove would be a total constitutional innovation, that is not quite correct. Under the provisions of the Scottish local elections rules a returning officer could reject a nomination if he was not satisfied that the potential candidate was eligible to stand, for example on grounds of a prospective candidate holding a disqualifying office or because such a person was under the age for qualification, and the procedure embodied in the Bill is therefore not entirely new.
It was, I assure the House, a common theme of the many representations which the Government received about the election result in Fermanagh and South Tyrone that it should not be possible for a convicted terrorist to stand, let alone to be elected. The people who expressed that view were very much aware that it is not only the act of election but also the act of nomination and candidature during a run-up to the election which is objectionable. The effect of the amendment, if carried, would be that the matter of disqualification could not be resolved until after the election, probably on consideration by an election court of an election petition. Meanwhile, those who manipulated a hunger-striking prisoner, for example, whom they put up as a candidate, would be able to take full advantage of all the propaganda, all the distress, and all the disruption of the election process, and I do not think that is right. On those grounds the Government do not think the amendment is right either.
§ Viscount Simon
Towards the end of his speech the noble Lord spoke about the Scottish position, and if I understood aright, he said that the returning officer could refuse a nomination if the person was disqualified from standing. That is begging, the question, is it not? He cannot refuse a nomination because the person is disqualified from sitting. The Bill will require the returning officer to refuse a nomination because it is to disqualify the man from standing if he would be disqualified from sitting. I think that that is the point that the noble Lord, Lord Underhill, was 313 making, and to that extent it is a new proposition. I am not at the moment arguing whether it is right or wrong, but it is a new proposition.
§ Lord Hale
I should like to add only a few words to what has just been correctly said, because there was a slight omission. In many circumstances the returning officer cannot know what is a disqualifying office. We have spent much time in passing Acts of Parliament to revoke discrimination against people who held tuppence ha'penny little offices. I am not speaking of them in a derogatory way, but they were offices of no great wealth. My noble friend makes a little signal to me which indicates that I can go a little further and say something that I was not going to say. Almost every day we have the privilege of seeing on the Front Bench a most distinguished Member who managed to disqualify himself quite unknowingly by having something to do with citrus fruits. A considerable number of Labour Members came into Parliament in 1945 and their disqualification was connected with accepting fees from a Government office, very properly, in the ordinary course of business. I do not think that that form of disqualification has very much to do with what has been said by the noble Lords, Lord Mishcon, and Lord Rawlinson of Ewell.
The noble and learned Lord, Lord Rawlinson, introduced the term "realistic". I do not doubt that the noble Lord knows most cases, but I wonder whether he knows of the case to which the noble Lord, Lord Mishcon, referred when he opened his speech. It is not now well known. It happened some time ago. The noble Lord, Lord Mishcon, stated the facts with absolute correctitude. I say that because I knew about the case; I had some connection with it. I knew the Member concerned. The noble Lord, Lord Mishcon, quite properly did not mention the name. The person ultimately retired from another place with the complete approval of his constituents and with their complete gratitude for his many years of service. He did not leave us so very long ago. He was a man of absolute probity. He was convicted by a British court of an offence that did not exist—an offence which had it been an offence, the court made quite clear he had no connection with, and no one could have believed it. I think that the use of the word "realistic" in connection with the law at all would have to be limited.
§ Viscount Massereene and Ferrard
Before my noble friend replies, may I ask what on earth would be the point of a candidate standing if he is disqualified from sitting? It seems completely nonsensical. My noble friend behind me said that it was unfair if a terrorist could not take advantage of the democratic process. My God! if he is a terrorist, he has no right to take advantage of the democratic process.
I should like to say a few words in favour of what my noble friend has said. In reply to the noble Viscount, Lord Massereene and Ferrard, I would say that there is a difference between standing and sitting. It has been seriously suggested that certain noble Lords in this Chamber should be allowed to sit, but not allowed to stand up and speak. I would submit that these matters are quite different. Whether it is right or wrong to have sitting Peers 314 who are not allowed to speak, or speaking Peers who are not allowed to sit, is an interesting question, but it does not alter the fact that sitting and standing are different things, which I think is what my noble friend was pointing out.
§ Lord Belstead
If I may reply to the noble Viscount, Lord Simon, I would say that the point that I was seeking to make during my remarks is that under the previous Scottish local election rules—and I think that by a slip of the tongue I said the present Scottish election rules—if a person was disqualified, a returning officer could have thrown out the nomination. It is that point which I believe is on all fours with what is being proposed in the Bill at present.
§ Viscount Simon
The noble Lord said, "If a person was disqualified"—but disqualified from what? Is he disqualified from standing or from sitting?
§ Lord Belstead
I do not want to make my speech all over again. I itemised the kind of ways in which the person could be disqualified, and perhaps the noble Viscount would care to glance through Hansard to see what I said.
§ 4.56 p.m.
§ Lord Mishcon
It is an odd circumstance when former Scottish election rules are invoked so as to persuade noble Lords to do something by way of enactment in order to deal with a situation in Ireland. I hope that I am not being very insular when I say that this seems to be an odd geographical argument, to say the least. I want to add only a few words in answer to what the noble Lord has said. The arguments here have been very clearly expressed and there is no point in repetition. What is in issue here is as follows—and I beg of the noble Lord at least to listen to this argument. I was trying awfully hard to keep Ireland and Irish circumstances out of the argument, but if we are to legislate because of what is happening in Ireland, will the noble Lord consider what the situation is likely to be in regard to propaganda issued by those who are not disposed in a friendly way to this country's position in Ireland?
It is said that a person shall not be elected if he is serving a term of more than 12 months' imprisonment—and we have all been told that this is really all about the Irish terrorists who have been convicted and who are serving such sentences. In addition, we, the mother of democracy, not just the mother of Parliaments, say to the whole world that we go further than that. We are now preventing people who are in that position from being even nominated, and, in the language of the Minister, we are doing that because we do not want them at the cost of the state to be propagating in their literature and election addresses ideas that we abhor.
There immediately occurs to me the saying, which is often used, about hating opinions but defending to the death the right for them to be expressed. What we are saying at this moment to the whole world is that these people cannot be listened to because they have chosen the bomb instead of the ballot box. Public expenditure can be used by fascist candidates in this country in order to propagate racial hatred,
§ Clause 3 [Amendment of Parliamentary Elections Rules]:
Lord Underhill moved Amendment No. 5:
Page 2, line 5, at end insert ("but notwithstanding anything in that Schedule, regulations shall be made to provide that the last day for an application for a postal vote shall be ten days before the day of the poll").
§ The noble Lord said: This is an amendment which strictly is not in any way associated with Northern Ireland; there can be no emotional arguments about this one. It is rather a technical issue affecting elections. The schedule of this Bill provides for the exclusion of Saturdays in calculating the days during the election period. It also provides for changes in the election timetable, for the last date of receipt of nominations and for polling day itself. The effect will be to change the last date for receipt of applications to be treated as an absent voter. The regulations as at present provide that this last date is 12 days before the day of the poll, excluding any excepted days.
§ If we take polling at a general election as normally being on a Thursday, then the last date for absent vote applications is the Thursday two weeks before. The changes in the schedule make this the Tuesday before then; that is, 16 days—counting all days—instead of 14 as at present. I have no doubt that the noble Lord the Minister will argue that under the schedule the period of the campaign from proclamation will be extended; but that is not the issue. Many noble Lords will have participated in elections and appreciate that work on the postal votes intensifies the nearer one gets to polling day. As canvassing increases, so the absent votes applications increase, particularly those for removals, which are usually found by canvassers as they are going around. To move the closing date for applications further away from polling day will be unwise, not only for those who are concerned with the democratic running of elections but also for the effect on electors.
§ I should like the noble Lord to confirm the information which I have, that this important change has been carried through without the normal type of consultation that there is with the political parties. I have never known in all my experience any amendment proposing absent vote changes—never mind other election law changes—to be made without consultation. It may well be that consultation might have led to rather a different provision in the schedule. It is the principle with which we are concerned and I hope that the Minister will find it possible to agree to this amendment. I beg to move.
§ Lord Belstead
On Second Reading, and again this afternoon, the noble Lord, Lord Underhill, has expressed concern that, as a result of the changes in the parliamentary election timetable, there will be less opportunity for electors to make postal voting applications, in that we may now only have a minimum of 16 "working days'" rather than 17 "working days'" notice of a parliamentary general election, while in the Representation of the People Regulations applications for postal votes have to be disregarded by the registration officer if they are received after the twelfth day before the date of the poll. May I say, in passing, that although I am a Member of your Lordships' House, I am very much aware, working on the opposite 320 side in politics to the noble Lord, of the extreme importance of this particular provision in our law. Very often I have seen the date for the closing of postal votes coming towards me as I have gone rapidly from house to house. The noble Lord recognises that because Saturdays are no longer to be treated as "working days", we are in fact extending the normal calendar timetable of notice of a parliamentary general election by two days.
Before dealing with the substantive issue, I think I ought to draw attention to some deficiencies in the wording of the noble Lord's amendment. First it deals only with postal voting, but I am sure that the noble Lord would wish to apply the same rules to proxy applications if it was going to be written into law. Secondly, the amendment refers to "applications", although I assume that it is intended to refer to the receipt of applications rather than merely to the day on which they are sent. Thirdly, this Bill does not in fact confer any regulation-making power on the Secretary of State. Any new regulations to deal with postal voting, amending the 1974 regulations with which the noble Lord, Lord Underhill, is familiar, could fall to be made under regulation-making powers in the Representation of the People Act 1949. In fact the provisions in paragraph 2 of the schedule to this Bill dealing with the computation of time does not affect the Representation of the People Regulations 1974, in which there are specific computation of time provisions separate from those in the 1949 Act. If the Bill is passed, therefore, while Saturdays will no longer be working days for the purposes of nomination and other proceedings set out in the parliamentary elections rules in the 1949 Act, the provisions of the regulation under which application for postal votes may be made and received on Saturdays will not be affected. It does not therefore follow that on all occasions there will be less time for making and receiving absent voting applications. The amendment which is I am sure designed on the false assumption that Saturdays are not working days, does not seem at this stage, at least, to be necessary.
The Government accept, however, that to have two separate computation of time provisions, which will no longer be in parallel, may not prove to be satisfactory. It may be necessary to revise the Representation of the People Regulations to clarify the matter. As the noble Lord knows, it is the practice of the Government to consult ad hoc with the electoral registration officers' representatives and the political parties on changes such as this. If it is necessary, we shall certainly do so on this occasion. With that assurance, I hope that the noble Lord will feel able to withdraw his amendment. It has been valuable that we have been able to discuss this matter, which, as the noble Lord says, is really divorced from the rest of the Bill.
§ Lord Underhill
May I first accept what the noble Lord said about the drafting of the amendment. All I can say in excuse for myself is that this raises the very point which my noble friend raised, that these amendments had to be put in at such short notice, and this one was put in in handwriting at nine o'clock at night. I accept the corrections that the noble Lord has made.
I appreciate that there will be opportunities for 321 consultation with the returning officers and also with the political parties. But that cannot affect this Bill, because this Bill is going to be passed through all stages today. Therefore, unless the noble Lord the Minister can possibly bring forward an emergency manuscript amendment, we have to approve the Bill as it is now, including the schedule. However, in view of what the Minister has said I will not press the amendment. I hope that possibly in the future there will be some amending regulation. I hope only that it will be kept in mind that the point I was making is not that there will not be the same amount of time to get postal votes but that the closing date for the receipt of applications will be moved further away from polling day, and the further it is moved away from polling day the greater the difficulty as far as the electors are concerned. In the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4 [Citation]:
§ 5.30 p.m.
§ Lord Mishcon moved Amendment No. 6:
Page 2, line 8, at end insert—
("( ) This Act shall remain in force until the expiry of the period of twelve months beginning with the passing of this Act and shall then expire unless continued in force by an Order made by the Secretary of State which shall be laid before and approved by a Resolution of each House of Parliament.").
§ The noble Lord said: The noble Lord opposite, who has much experience in matters of voting and Divisions, pointed out to me with a smile about 10 minutes ago that I had acquired far more votes when speaking briefly than when I had addressed your Lordships at some length. I hope to learn from the lesson! I merely have to commend this amendment, which your Lordships will see seeks to make this Bill one which will be in operation for 12 months and thereafter can be renewed by order of the Secretary of State, provided it has the approval of both Houses. A small point which I am sure your Lordships will appreciate is this. We have been driven, if I may use that word, into this Bill by events which have occurred in Northern Ireland, which all of us deplore. In my view, we have not really had an opportunity of doing more than saying we must pass this Bill as a temporary measure in order to deal with the situation in Northern Ireland. The Committee may well accept that as a proper Act. At this very moment in another place, I believe they are considering whether or not to prolong the legislation which deals with the question of terrorism in Northern Ireland, and your Lordships may think it appropriate that this Bill, if passed, shall be for a period of one year, and if indeed it is shown to be an enactment which has not the defects some of us feel it might have as a constitutional Bill, it can go on thereafter purely by order of the Secretary of State and approved by Parliament. But, if we find that it has not worked in the way we think it should, we have an opportunity then of bringing this measure to an end. I beg to move.
§ Lord Jenkins of Putney
My noble friend has been so brief that he renders it possible for me to add a few 322 words in support without taking up more time than would be normally taken up by a single speech, because I shall emulate him in being equally brief. It seems to me that what he has said is very cogent indeed and I hope that the noble Lord will see his way to accept what my noble friend has said and to accept the amendment.
I think it is generally agreed on all sides of the Committee that this Bill is brought forward because of events in Northern Ireland. Therefore, we have a Bill of general application, because in the Bill itself there is no specific reference to Northern Ireland although we all know that is the causation of the Bill; and so we have the position where, because of a particular case, a general proposition is put forward. Where a general proposition or a general "cure" is put forward in order to deal with a specific case, this seems ideally suited for temporary legislation, and therefore I would have thought that my noble friend's argument is very persuasive and I hope that the noble Lord, Lord Belstead, will see his way to accept it.
§ Lord Hylton
I should like to support this amendment and I very much hope that my noble friend will feel able to accept it. He said on Second Reading at col. 143 on 30th June 1981:…the Bill is aimed…at those who organise terrorism,".I think we all hope, regardless of party, of where we live or anything else, that terrorism will not be a permanent feature of the life of this nation. Therefore, this seems to me an extremely suitable subject for temporary legislation.
The only other point I would make is that the organisation known as Provisional Sinn Fein is a perfectly legal party. At some time they may decide to put up candidates who are convicted felons and sometimes they may decide to put up ordinary civilians. That is up to them. I do not think we should exercise a judgment by statute, and by permanent statute, on what sort of candidate a legal party may put up.
§ Lord Rawlinson of Ewell
I regret that I disagree with my noble friend. I think that this Bill is right in principle. I do not think it is right that anyone who, as we say, stands for Parliament or, as the Americans would put it, runs for office, who wishes to represent a constituency in Parliament and who has been convicted of offences and sentenced to a term of imprisonment for more than one year, should be allowed to stand. I do not think it is right that a person should so stand and therefore I believe the Bill is right in principle.
§ Lord Swinfen
I should like to support what my noble friend has just said because I also am not in favour of this amendment. If the other place had, in their own wisdom, thought it right that people who were convicted should stand for Parliament, they themselves would have brought forward this amendment. They are very careful and caring about their own honour and integrity, and I do not think it is right that we should disagree with them at this stage by passing this amendment. I therefore hope that it will be rejected.
§ Lord Belstead
I welcome the opportunity to make again a point that I have made before but which I think bears repeating. I do not think that the country will believe it to be right—this year, next year or the year after—that a prisoner serving a substantial sentence should be elected to another place because it is then impossible for such a person properly to represent all his constituents, including those who did not vote for him. The people of the constituency are in effect disenfranchised. Moreover, the candidature of prisoners who have been convicted of serious offences and people who, as we have seen in the recent election in Northern Ireland, have no intention or wish to represent anyone in Parliament and yet are still able to enjoy all the privileges of candidature really does provoke a feeling of outrage among the public and brings our electoral system into disrepute. The Government therefore have no hesitation in bringing forward this measure, and see no justification for constricting its operation by an arbitrary time limit.
Perhaps I might say finally that we believe that the disqualification of convicted prisoners, which is common to virtually every other democratic electoral system, is a desirable feature of our electoral law. Of course the Government cannot bind future Parliaments: they may take another view. But for the moment we believe that Parliament is ready to take a view on this issue and that the public expect us to pass this Bill without qualification.
§ On Question, amendment negatived.
§ Clause 4 agreed to.
§ In the Schedule.
§ 5.40 p.m.
Lord Underhill moved Amendment No. 7:
Page 3, line 40, leave out paragraphs 4 and 5.
§ The noble Lord said: This amendment seeks to delete two new rules in the schedule. Paragraph 4 gives the returning officer power to disqualify a nomination. Paragraph 5 is consequential and sets out the procedure to be followed in carrying out paragraph 4. I propose to concentrate my few remarks on paragraph 4, because that is the important amendment.
§ At present, a returning officer determines only the validity of nomination papers—I emphasise that—on two grounds: first, that the details of the candidates and others who subscribed to the paper are not as required by law; and, secondly, that the papers are not subscribed as required by law. There is no other reason. Up to now, the returning officer has not had any power or responsibility to determine whether a person is fit and proper to be nominated. The returning officer has adjudicated only on the completion of the nomination paper.
§ Again, we may be quoted past Scottish local election rules, but what I am saying applies to parliamentary elections throughout the United Kingdom, to parliamentary by-elections throughout the United Kingdom and also to local elections in England and Wales. Therefore, we are bringing in a completely new power for a returning officer.
§ At the moment, if there is any challenge following an election, the position can be dealt with either by a decision of the House of Commons, if a person is 324 elected and it wishes to take action, or by an election petition. This issue again must not be considered in the context of Northern Ireland. It must be looked at only from the standpoint of extending election law to give an additional responsibility to the returning officer, which he has never had previously. Therefore, once again, a fundamental change is being made in election law.
§ Whatever other consultations there may have been, I can assure your Lordships that one important political party has had no consultation at all about this change in election law. Developing this power of a returning officer is surely an important change, on which there ought to have been consultation, and this Bill will now bring in this important change. As the proposed amendment moved by my noble friend Lord Mishcon was negatived, that means that there will be no opportunity to come back to this, unless at some time the Government introduce completely new regulations. Because of this change in election law, I beg to move.
§ Lord Belstead
I hesitate to cross swords with somebody with such experience of this whole subject as the noble Lord, Lord Underhill. But all the Bill is doing is imposing on a returning officer a duty to examine a candidate's qualification on the one ground alone; namely, that the candidate is not serving a sentence of imprisonment of more than one year. That will be a matter of fact, and if the returning officer is clear that the candidate is in prison for more than one year, it is on that one ground alone, as a matter of fact, that the nomination will be rejected.
Of course, as I was at great pains to try to say on Second Reading, if the returning officer is not sure and it appears to be a matter of discretion, then he will obviously use his discretion in favour of the candidate and the matter will go forward. Then, if it is found that the candidate is serving a period of imprisonment of more than one year, it will be a matter of voiding the election. This is perfectly reasonable, so far as returning officers are concerned. All the Bill does is to ask them to adjudicate on a matter of fact. On that ground, I hope that the noble Lord may reconsider his amendment.
§ Lord Underhill
It is correct that we are asking the returning officer to adjudicate on a matter of fact. Therefore, so could the returning officer be asked to adjudicate on every other matter of fact, dealing with every other type of person who could be disqualified. I shall not go into that now, but on Second Reading the Minister detailed all the categories of persons who are now disqualified from sitting or voting in the House of Commons. One could place all those responsibilities on the returning officer, as matter of fact. But we are not doing that. We are picking out just one, and we are extending that power.
In view of what the Minister has said, I shall beg leave to withdraw the amendment. But I hope that he and his department will give serious attention to this point, because the Bill is extending a power and I am certain that many people will wonder why there is this one extension of power. There could be a danger of 325 extending a returning officer's power to adjudicate on an individual's qualifications, instead of on the completion of the nomination paper. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule agreed to.
§ Title agreed to.
§ House resumed: Bill reported without amendment.
§ Then, Standing Order No. 43 having been dispensed with (pursuant to Resolution), Report received.
§ Moved that the Bill be now read 3a.—(Lord Belstead.)
§ 5.47 p.m.
§ Lord Mishcon
My Lords, I had forgotten the rapid programme of this Bill when I addressed the House earlier, and asked the noble Lord the Minister whether he could deal with a point which worried me on Clause 1. I am now dealing only with a defect in the Bill. I am obviously not dealing with the policy of the Bill. I invited him, since I had taken him by surprise, and knew it, to write to me if he wished. But I had forgotten that, in spite of the rapidity of our Post Office, which we all know about it was wrong to expect that I would be getting a letter—when I invited him to do this only an hour ago—by the time the Third Reading of this Bill had been reached. I am worried and I do not know whether the noble Lord the Minister can carry this matter any further.
May I just remind your Lordships very briefly of what the point was. Clause 1 reads as follows:A person found guilty of one or more offences"—and the noble Lord the Minister, in answer to a question that I put, said that, yes, it would be an offence if it were a question of criminal contempt—… and sentenced"—that would not necessarily apply to criminal contempt on my point—… or ordered to be imprisoned or detained indefinitely"—those were the words on which I concentrated—… shall be disqualified for membership of the House of Commons while detained anywhere in the British Islands or the Republic of Ireland in pursuance of the sentence or order or while unlawfully at large at a time when he would otherwise be so detained".I conceded at once that it is not usual, so far as I know, that in a case of criminal contempt there is an indefinite sentence. As we know, that is very often the case in civil contempt, where somebody is imprisoned for breach of an order until the contempt is purged. But in criminal contempt, it is still possible for a court—and this has been done—to say to somebody "You have been in contempt of court. You will be detained indefinitely and I will make up my mind, very possibly, about the sentence when I know that you have apologised or behaved in a way in which you ought to have done". There are, therefore, cases that are quite possible, where somebody has been a Member of the House, or been a parliamentary candidate, and has offended a magistrate or a judge in that way and finds that on the very vital day— 326 namely, the day of nomination or election, or subsequently, while sitting as a Member of the House—he has been ordered to be detained indefinitely. It is this which troubles me. It is a genuine point. It is not one that is meant to have any significance regarding the policy of the Bill. However, bearing in mind the rush that we are faced with, I am anxious that we should not do something foolish. That is my reason for raising the point. If there is a complete answer I shall retire, I hope gracefully, from the point.
§ Lord Hylton
My Lords, from what my noble friend the Minister has said several times during the course of the passage of the Bill, it is quite clear that its prime motive is an anti-terrorist one. It has been introduced because of the concern, anxiety and disquiet which have been expressed by many sides to the Government about abuses of the parliamentary process by terrorists. Can my noble friend therefore explain why it has been found necessary to tack on to the Bill certain matters which deal with the technicalities of all elections? The noble Lord, Lord Underhill, moved two amendments, one dealing with postal votes and the other with returning officers, which have absolutely nothing to do with terrorism. The course which the Government have adopted seems to be particularly strange because, as I understand it, a general review of electoral law is taking place in the Home Office. I should be grateful if my noble friend could answer this question—all the more so because we have had to consider the whole Bill in a mere 48 hours.
§ 5.52 p.m.
§ Lord Jenkins of Putney
My Lords, the Bill is unique in at least two respects. The first is that the primary reason for the penalty which is adduced in the Bill—disqualification from standing for Parliament—is one which may be exacted in any country in the world. In other words, the guilt for which the penalty may be exacted may be found not only in this country but anywhere else in the world. The word "elsewhere" means "elsewhere". Therefore we in these Houses of Parliament are saying that, in determining the question of guilt, we shall allow the laws of any country to apply. As I said at Second Reading, this must be unique. I cannot think of any other measure which has ever passed through Parliament in which Parliament has said that we shall decide that the guilt determined in any country, whether we approve or disapprove of that country, whether it be a dictatorship or any other kind of country, will be the determining factor as to whether or not the penalty applies.
The noble Lord says, "Yes, but there is another qualification. He has not only got to be found guilty; he has also got to be detained in this country or in the Republic of Ireland". The Minister also says that the word "elsewhere" in the Bill—this is its second unique characteristic—does not mean "elsewhere". This is the only Bill I have ever known in which a Minister has said that a word does not mean what it says. The noble Lord told us what the word "elsewhere" means. I endeavoured in an amendment to the Bill to spell out what the Minister had told us at Second Reading is really meant by the word "elsewhere". The Minister told us earlier today that he 327 was not quite right then: that its meaning was a little different, but he was quite unwilling to substitute for the word "elsewhere" what he says is meant by "elsewhere". In other words, he insists upon having in the Bill the word "elsewhere", which he says does not mean what it says, rather than that there should be put into the Bill the words which he says it does mean.
So in two respects the Bill is unique. It is unhappily unique, in the sense that it takes into account the question of guilt elsewhere in the world and also in the sense that it includes a word which the Minister himself says is not the word which is really meant. These are two things which these Houses of Parliament do not normally do. I am glad that they do not do it and I think that they ought not to do it in this Bill.
§ Lord Rawlinson of Ewell
My Lords, may I return to what the noble Lord, Lord Mishcon, posed as a question to my noble friend the Minister? It is very rash always to try to give answers to legal matters from the Back-Benches. It is easier to pose questions. However, it seems to me that in Clause 1 a person has to be found guilty of one or more offences. The word "offence" is the governing word. It appears to me that the offence can only be, in matters of contempt, criminal contempt. Criminal contempt is governed by the powers of the court to order settled terms of imprisonment. It is in civil contempt that indefinite orders are sometimes made. If somebody is in breach of an order of the court with regard to a matrimonial matter or a matter of property that is civil contempt, and it seems to me that in those cases it would not be an offence. This is my preliminary feeling about the very important and interesting question which has been raised by the noble Lord, Lord Mishcon: that where it is a civil contempt, where there may be an indefinite detention, it does not become an offence and therefore does not come within Clause 1 of the Bill. As I have said, it is a very rash man who gives an answer. It is a crafty man, though, who poses the question.
§ Lord Mishcon
My Lords, with the permission of the House and before the noble and learned Lord sits down, may I thank him very much for his intervention. It was very courageous of him and it was typically helpful. I did concentrate on criminal contempt and I took the precaution of looking up the authorities, which appear to say that a judge in a criminal court still has the right to impose an indefinite sentence and is not bound by statute to impose a fixed sentence, although it is the custom of the court so to do. That may he wrong and I may have misread the authorities. However, the rush that we are in makes it necessary, in my view, for me to raise the point. I have done it as a matter of conscience. If I am proved to be wrong hereafter I have wasted only a moment or two of the time of the House. If I am proved to be right, it is one of the reasons for saying that a Bill of this kind ought not to be rushed in this way.
§ Lord Belstead
My Lords, it only remains for me to say, as the House would expect me to say, that both my noble and learned friend Lord Rawlinson and the noble Lord, Lord Mishcon, are both right, speaking for the different branches of the law. I shall not say 328 any more about what they have said. However, I think I am correct in saying that the Contempt of Court Bill which was the subject of further consideration yesterday in your Lordships' House, will remove the power of the court to imprison somebody for an indefinite period of time for either civil or criminal contempt. If I am wrong about that, I will most certainly write to the noble Lord, Lord Mishcon. However, although it is perhaps uncharacteristic of me to claim it, I believe that I am correct.
May I reply to my noble friend Lord Hylton? He asked me, perfectly reasonably, why the schedule is in the Bill. The schedule is in the Bill because it deals, among other things, with such matters as the rejection of nominations, which is an integral feature of the Bill, and the power of a returning officer to reject nominations. This is a necessary power, the Government believe, to be included in the Bill. It also deals with certain timetabling provisions which we have debated with the noble Lord, Lord Underhill. These are necessary parts of the Bill. I think I have already debated the point which the noble Lord, Lord Jenkins of Putney, raised. Therefore I hope that the Bill may now be read a third time.
§ On Question, Bill read 3a, and passed.