QN OFFICES OR PLACES OF tiisrOER THE CRiS#^
19 June, .1941.] The Rt. Hon. the Viscount SIMON,
G.C.S.I., G.C.V.O., O.B.E.
would seem to me positively undesirable,
that a man while remaining a permanent
servant under the Foreign Office should
take part in debate oh matters with which
he has been concerned, often most con-
fidentially, when his political chief and the
Cabinet as a whole are responsible. That
is how the thing presents itself to my mind.
Temporary Envoys may be in a different
position, and I am discussing the thing in
purely abstract terms, but I really do not
see the ground on which that particular per-
mission now stands. I may say that I
have made some inquiry as to what happens
in the House of Lords. This is only just
by analogy. In the old days I believe
when some critical debate on Foreign
Affairs or other things took place in the
Lords cases were not imknown when
Ambassadors were summoned home by the
order of the Foreign Secretary or the
Government in order that they might lend
their support (perhaps make an independent
contribution, but I think lend their support)
to the view of the Government. But the
whole of that tradition has gone in the
House of Lords, and it is a perfectly well
understood convention in the .House of
Lords to-day (though you may have some-
body who is a peer who is a serving
diplomat) that no person who was hold-
ing that position would ever intervene
in such a debate at all, and there would be
the gravest objection if he tried to do so.
I merely make those observations (I do
not know whether anything of this sort has
been said to the Committee before) because
it is not in the least clear to me why a rule
based on a very curious and antique sort
of theory should stand as it does. Thirdly
(and I have only one more after that), may
I take the Regular Forces of the Crown?
The actual position is rather difficult to
get. No doubt you have had witnesses who
have explained it. It is true, of course,
that by a section of the Act of 1707 (I think
it is sometimes numbered Section 27 and
sometimes Section 28; they did not number
very carefully in those days) you got the
position that an officer in Her Majesty's
Navy or Army, who shall receive any new
or other commission in the Navy or Army
respectively " was not excluded from Mem-
bership of the Commons. That is quite
true. It worked out rather oddly. I think
it is this: If, when elected, he was a serving
officer he did not need to be re-elected if he
received a new commission. A Member
who when elected was not holding a com-
mission but who received a commission in
the Army or Navy for the first time
after election required to be re-elected.
Then he could sit, and similar provision was
made for the Air Force in the Air Force
(Constitution) Act, 1917 (I think by Sec-
tion 4), and there have been many cases,
of course, in the past where serving mem-
bers of the Regular Forces of the Crown
have sat in Parliament. A very good
illustration to take is General Picton, who
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
95
[Continued.
was killed at Waterloo, and who was the
right-hand man of Wellington in the
Peninsular. General Picton, I am proud to
say, was a Welshman. He came from my
part of the country. He was the Member
for^ Carmarthen, and he sat in the House
of Commons for a number of years before
his death. Indeed, he was thanked in his
place for his services in the Peninsular by
Mr. Speaker on behalf of the House of Com-
mons. Marlborough was never a Member
of the House of Commons, I think, but that
is not to say that he was not a very poli-
tical General. What happened with Marl-
borough was that he became a peer quite
early in life. I think he became a peer at
about the age of 35. The reason why
restrictions have operated in recent years
before the war to prevent Regular serv-
ing members of the Forces sitting in
the Commons is not, therefore, because
there is anything in the statute law
which would disqualify them. It is
due to something quite different- It
is due to the prohibition that is contained
in the Order in Council of 19271 think it
is the 25th Julycalled the Service of the
Crown (Parliamentary Candidate) Order,
1927, by which these people, as they are
under Government orders, are put under
the same disciplinary restrictions as Civil
Servants; that is to say, they cannot
become candidates unless they get spedial
leave, which I suppose applies both to men
and officers. I confess againI am sorry
if I seem to be asserting my own views too
strongly, but that is what a witness is for
I think the same arguments that apply to
the exclusion of regular Civil Servants,
namely, on the ground that they are fol-
lowing a career in which they serve a poli-
tical office of the Government, apply also
in this case; that is to say, in ordinary
timesI am not talking about now-^I
should have thought the argument for ex-
cluding members of the Regular Armed
Forces on the ground of their obeying other
people's orders
Chairman.
1028. You are speaking of serving mem-
bers. You are not speaking of retired
members?^No. That is what I mean by
" Regular acting members," I would not
draw any distinction between a man and
an officer, of course,
1029. The distinction I wanted to get
clear was this. We have spoken so much
of Regular officers as distinguished from
officers of the Auxiliary Forces. They, of
course, are in a different category, but the
officers of the Regular Army again we
divide into those who are on the active list
and those who have retired or gone on
half pay?My own note wasand it is my
meaningthat I would provide for excep-
tions in the case of Territorials and mem-
bers of the Reserve, as indeed the Order in
Council does.
 96 MINUTES OF EVIDENCE TAKEN BEFORE THE SELECT, COMMITTfeE

19 June, 1941*] The Rt. Hon. the Viscount SIMON, {Continued.

G.C.S.I., G.C.V.O.. O.B.E.

1030. And the statutes creating them, judges were found to be as much divided as
too?^Yes, they do. That is a very the original members of the tribunal,' and
diflficult thing to decide. I think the the ultimate decision was exactly what the
general principle should be rather on the majority of the Lords thought it ought to
side.of allowing people to sit than excluding be.
them. You do not want to exclude them
1033- Just as a matter of interest, were
unless there is a reason for excluding them, the present Law Lords in existence then in
but it does seem to me wrong to have an those days?^Yes. Lord Halsbury took
organised system of servants of the Crown one view and Lord Watson took another.
actively engaged in carrying out the orders Lord Watson was very strongly of one view,
of a political chief and a Cabinet and then and Lord Halsbury was very strongly of
to say that that is no reason why they another. That is why they called them in.
should not come in and take their own part
in the debate. I do not know whether it is 1034. Taw Lords are comparatively
to confirm or to contradict the man who is modem?Comparatively modern. This
really responsible. I should have thought occurred just before I was called to the
it would have very unfortunate results. Bar. Allen v. Flood was, I should think,
Now I have been, I am afraid, a very long in 1897.
time. May I briefly read what I wanted Chairman.'] I was going to say 1899.
to say about Judicial Offices because here
I have a very clear view,. and therefore I Mr. Pickthorn.
can state it without a lot of pros and cons? 1035. I should say it w'as near the end of
This is my view: " The exclusion of Judges the nineties?^Yes. I know for the short
of the High Court and of the Court of period I had to study these things it was
Appeal from the House of Commons by the one of the cases I had to know. It was just
Act of 1875, together with the exclusions before my examination.
of County Court Judges and of Stipendary I have no doubt that the satisfac-
Magistrates, should unquestionably be
maintained." If there are any cases where tion of the public with* the adminis-
Stipendary Magistrates are not excluded I tration of justice at Assizes or in the Royal
am not quite sure. I think they ought to Courts of Justice largely depends on the
be. knowledge that the Judge who decides it is
j
removed from politics. Indeed, I may say
1031. Stipendiary'^?Yes. that in a great many cases the political
sympathies of a Judge are quite unknown
1032. They/ are for the most part?^The and all the modern practice goes to show
overwhelming reason is this: These Judicial that he takes the greatest care not to
Persons whose time is occupied with the ad- exhibit any political feeling he has got.
ministering of Justice surely should be There are exceptions, but they are just
removed as far as possible from a political lapses or mistakes.
atmosphere. That is quite a different
reason, of course, from the one originally 1036. So far as 3/ou can find out his poli-
given for excluding Common Law Judges. tical opinions, they are sometimes quite
It was only Common Law Judges, I think, different after he becomes a Judge?I see
who were originally regarded as excluded. you have been reading some reminiscences.
The old reason that was given was that The Committee might be interested to
they received, as they still receive, a sum- refresh their memory of the speech of
mons to the House of Lords. If you go Macaulay in 1853. I do not know whether
and see the opening of Parliament by the this has actually been called to the atten-
King on the first day of the Parliament you tion of the Committee. It is really well
see sitting in front of the Woolsack on a worth looking at. Macaulay made a speech
great big oblong red sofa the Judges of the in the year 1853. It is the last speech in
Supreme Court, who have received the sum- his collected speeches on this subjectthe
mons just like the Attorney-General and the Exclusion of Judges from the House of
Solicitor-General receive a summons. Of Commons. It was a remarkable speech for
course, in the case of the Common Law this reason, that it is one of the vei>' few
Judges there is involved in it this also, that speeches that unquestionably conipletely
on any very difficult appeal to the Lords in altered the decision of the House hitherto.
which further help is wanted, the House of Some worthy Member or other introduced
Lords sitting judicially can send for the a Bill to declare that the Master of the
Common Law Judges and can ask them to Rolls should not be a Member of the House
give their advice on the case. I speak sub- of Commons. That was all. The Bill
ject to correction, but I think the last went through Second Readingnot a
instance was a long time ago, the famous whisper. It went through Committee
case of Allen v. Flood, the great Trade nobody objected, and it came to the last
Union Case where there was a difference of stage when the Speaker got up and said:
opinion in the Lords. Lord Halsbury and, " The question is that this Bill now be read
I think, one other lord were of one view a third time." Thereupon up rose
and all the rest were against l^em. They Macaulay. It is the more interesting
summoned the judges to try to get further because, I think, he had not made a speech
enlightenment, with the result that the for five years before. A lot of Members

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 C)N OFFICES OR PLACES OF PROFIT UNDER THE CROWN
10 June, 1941.] The Rt. Hon. the Viscount SIMON,
G.C.S.I., G.C.V.O., O.B.E.
rushed in who had jtiever heard him before,
and he delivered this oration, which is the
most persuasive but the most fallacious
piece of reasoning which I think Macaulay
ever produced. It is a complete mine of
all bad arguments which might be used for
keeping Judicial persons in the House of
Commons. But he had a triumphant
s^uccess because everyone woke up and
thought Macaulay was undoubtedly right,
and the unfortunate promoter of this Bill
lost it on the Third Reading by a large
majority. Everybody went home satisfied,
and then some 20 years later, without a
single word being said, the House of Com-
mons passed an Act which removed not
only the Master of the Rolls but all High
Court Judges and the Court of Appeal
Judges from Parliament for ever. It was a
very remarkable speech and very interesting
to read. There is another reference I
would like to give if I may. It is a very
interesting article in a book which was pub-
lished by the late Lord Birkenhead when
he was Lord Chancellor. It is called
Judges and Politics." It had, like most
things, a rather particular cause which I
dare say some people will remember.
There was a discussion between Lord
Carson and Lord Birkenhead which created
some trouble at the time, but this is an
extremely interesting and, I think, very
complete summary of the argument the
other way which indeed is quite overwhelm-
ing. As I have said, I do not think Jus-
tices of the Peace, High Sheriflis or Lords
Lieutenant come into discussion at all.
Their offices are not paid offices^very much
the opposite. I am satisfied that Recorders
should not be disqualified, generally speak-
ing, and I wish to giye two reasons for it.
One is. well known, but the other will not
be so well known. The first reason is this;
Of course, with the ordinary Recoraer, the
barrister, the K.C. who is appointed a
Recorder of some provincial town, his main
worlc remains either Parliamentary or pro-
fessional as before, and he discharges his
duties as Recorder four times a year by
going down and trying the cases that he has
to trycriminal cases or a very limited
class of appeals. I really do not think that
what he has to do as Recorder in any
way disqualifies him from being a Member
of Parliament.
Mr. Mander.
1037. In the same place?I am obliged
to Mr. Mander. Of course, there is the
provision, and it is perfectly right and must
always be right, that he cannot be Member
for the place where he is Recorder. The
second reason I would like to give is this.
It is one which may not perhaps have come
before the Committee. One of the most
difficult jobs in the way of making appoint-
ments is the job of appointing a High
Court Judge. That happens to fall on the
Lord Chancellor. It is a very responsible
and a very, very difficult choice to make.
11867
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
97
[Continued.
Usually there are quite a number of people
to consider. It does not in the least follow
that because a man is a very good lawyer
or makes a very good speech, or has been
a very prudent, wise and much respected
member of his profession, he would make
a good judge. You get people who seem to
get quite a different character when they
are given all the immunities and position
of a Judge. I take the view^it may not
be taken by everybody^that on the whole
it is an advantage or it is a point which
I should count in a mans favour that he
has been in the House of Commons. I do
not want to see the Judicial Bench
completely filled with people who are
no doubt terrifically learned but are
living in complete seclusion and who
have had no contact with the world-
Besides, I think it is a good thing that
he should have seen how legislation, in
fact, is made and have a certain amount
of understanding and, perhaps, of sym-
pathy with the difficulties' of expressing
things in an Act of Parliament quite
clearly. So I do not at all object, if you
can get an equally good man for a Judge,
that he should have been in the House of
Commons. Rather the opposite. But a
most useful way of informing oneself as
to whether he is likely to be a good Judge
is if for some years he has been a Recorder,
because there he is in miniature, as it were,
in the same sort of position occasionally,
and if you can get, as you usually can,
information that he makes a fair-minded,
humane, firm and dignified Recorder, it is
a very material point indeed in determining
whether or not he is likely to make a good
Judge. I should be very sorry for those
who have to select people, to be Judges if
they were deprived of that opportunity.
That is me]fely, perhaps, rather a limited
point of view, but I think it is a weight in
the scale, and I am quite satisfied that
people who have been Recorders have
not in the least suffered in their reputa-
tion because they have also been Members
of Parliament. If you take a man like the
late Lord Merrivale (Mr. Duke as he once
was), who for years and years was Recorder
down in Devonshire, everybody had the
greatest possible respect for the way in
which he administered justice there, and
yet some of us remember that when he was
in the House of Commons he was a very
active Member, and it is so with many other
cases. There remainsand it is my last
pointthe case of the Recorder of the City
of London. I do not know whether the
Committee have this quite clearly in mind.
It is not merely that the Recorder of the
City of London has a great deal to do and
is not free, and all that. The real point
is that the Recorder of the City of London,
although he is called a Recorder, has a
wholly different jurisdiction and a
much v/ider jurisdiction than any other
Recorder ever has. The Recorder of the
City of London is put in the commission for
D
 98 MINUTES OF EVIDENCE TAKEN BEFORE THE SELEQT COMMITTEE
19 June, 1941-] The Rt. Hon. the Viscount SIMON,
G.C.S.I.. G.C.V.O., O.B.E.
the Old Bailey alon^ with the High Court
Judges. He can try a murder case as well
as he can try everybddy else. No ordinary
Recorder, of course, has such jurisdiction at
all. The Recorder of the City of London
has also a very big civil jurisdiction, in fact
an unlimited civil jurisdiction as far as the
City is concerned. So' that there is really
no comparison at all. But the main prac-
tical point is that if a man is going to hold
the position of Recorder of the City of
London, he is going to be continuously or
nearly continuously occupied with his duties
there. He has got to deal probably with
more serious crime than all the Recorders
of the country put together, far more than
is usually dealt with at an ordinary size
town, and if ever there was a case where
the man ought to be regarded by the whole
population, the criminal population and all
the restr* as quite removed from anything
except his duties, it is the case of the
Recorder of the City of London-. When my
friend, Sir Ernest Wild, was elected to that
post by the Court of Aldermen, I know that
my predecessor, Lord Birkenhead, took a
very strong and serious view about it, and
it was no blame to Sir Ernest Wild. It
was rather natural that he should have felt
that he would have liked to remain a Mem-
ber of the House of Commons. Many
people feel that who have left the place,
. but Lord Birkenhead took an extremely
severe view about thisa firm viewand
he pointed out what is perfectly true, that
though the Court of Aldermen can elect a
man to be Recorder, and that gives him
his right to speak for the Corporatioii on
ceremonial occasions and all that kind of
thing, he has not any jurisdiction to sit as
a Judge until the King has approved the
nomination, and the King, of course, in
that, as in all other matters, apts on advice,
and the Lord Chancellor is in a position to
say to the King, I am unable to advise
your Majesty to approve this appoint-
ment." Lord Birkenhead did indicate that
he felt so strongly about this as i matter
of duty and the administration of justice
that he would not allow that position to be
overlooked. Sir Ernest Wild, who was a
friend of many of us, accepted it like he
{After a short adjournment.)
Chairman.
1040. There are one or two questions I
am going to ask you, first of all, which
are more matters of details than anything
else. Taking judicial or semi-judieial offices
generally, I think you dealt with most of
them. As to Stipendiary Magistrates, the
Metropolitan Stipendiary Magistrates are
disqualified by Act of Parliament, but there
are certain anomalies in regard to stipen-
diaries in some of the big cities and
boroughs in the country. Do I take it
that you would exclude from the House
in the same way all Stipendiary Magis-
\ trates?^Yes, I think so. I do not think
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
iContinued.
was, a very good fellow,but no doubt with
a certain amount of sadness, and possibly
the Committee might like to know that the
whole of this was stated in the House of
Commons in an answer, which I will not
read, .by the then Leader of the House. It
was stated by Mr. Austen Chamberlain on
the loth May, 1922, in answer to a question
from Sir William Joynson Hicks. He
asked: Whether Sir Ernest Wilcfs
appointment had not been accompanied by
a condition that he should resign his seat
in this House either immediately .or in the
near future, and whether such condition
was in fact made when the appointment
was sanctioned? " There is a long answer
which I think one may 'safely say was pre-
pared by Lord Birkenheada whole
column. It was read by the Leader of the
House, and it explains what the position
was. I have no doubt at all that the Re-
corder of the City of London ought to be
by law excluded.
Chairman.
1038. There is the Common Serjeant of
the City of London. The Recorder, the
Common Serjeant and -two County Court
'Judges are the four Judges of the City of
London and Mayor's Court. Not to go into
details as to jurisdiction, and so on, those
two, the Recorder aiid the Common
Serjeant, are the two senior judges. The
County Court Judges are junior to them
and they are excluded with all others by
statute. Would you exclude +he Common
Serjeant as well as the Recorder?I have
not really thought about the particular
point apart from more general considera-
tions, but I would have thought that the
right thing to do was to exclude him. It
seems very odd that the man above and
the two men below should be excluded, but
the man in the middle should not. The
Common Serjeant has just the same con-
tinuous. work to do.
1039. Lord Simon, it is quite obvious
that we shall want to see you again. Will
it be convenient for you to come back after
lunch?I am entirely at the service of the
Committee.
there is any logical distinction to be drawn,
is there? The existing distinction proceeds
from the accident that this matter has
been dealt with at different times in dif-
ferent Bills, does it not?
1041. I quite agree; I think that is so.
What is your opinion with regard to the
position of Chairmen of Quarter Sessions?
I do not think I would exclude them.
1042. You would not. Is that partly on
the ground that they are so much part-
time people?^Yes, I think that is ^0. As
far as their judicial work goes they are
rather like Recorders, are they not? That
is to say, they have their duty four times
 . ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN
19 JUiie, 1941.] The Rt. Hon. the Viscount SIMON,
G.C.S.I., G.C.V.O., O.B.E.
a year. They are not occupied in their
judicial duties beyond that. Most of -Sieir
other duties are of an administrative kind.
1943. Except, I think, in the case of the once a year to help in the selection of the
Chairman of the Middlesex Quarter Ses-
sions, who is excluded by the Act which
made it a paid ofi&ce?^That may be right,
because he has a, very great deal of work
to do. I do not myself know.
1044. that case you would leave him
to be -excluded by the special legislation
attaching to his office?I would have
thought it quite right to continue the ex-
clusion; but it seems to me a pity to carry
it to Chairmen ot Quarter Sessions. The
only result would be that the Magistrate,
who, by common consent, is the best person
to act as Chairman, if he were a Member
of the House of Commons would not be
asked to act, and somebody else would be
asked to act. He would still be^ a Member
of the court.
1045. It would be open to the Sessions
generally to elect him or not according to
whether they "considered him the best per-
son?^That is the way in which it is or-
dinarily done, of course.
1046. Then there is one peculiar person,
the Appeal Judge of the Isle of Man. I
understand he sits when it is necessary and
that on the average, I believe, is about
twice a year. It has been put to us by
our principal legal witness up to the present j'efuse?He has to give sufficient reason
that his position is such a peculiar one
as the sole Judge of an Appeal Court, from
whom an Appeal lies direct to the Privy
Council, that he thinks the whole position
of the judicial dignity of his office should
exclude him. Have you any strong views
on that?I certainly have not. I know
very little about it. The Isle of Man is not
a constituency of the Parliament at West-
minster, so thdt it is certain that he- will
not be elected for his own constituency. I
really do not know the circumstances. My
general feeling is that I would not exclude
people from the House of Commons when
. they have been elected by the majority <;f
their constituentsprobably a large popular
vote. I would not refuse the inhabitants
of the place who want a man to be their
representative unless there was a good
reason for it. It seems to me that is
democracy.
1047. * On the judicial
like to make a reference to the question of
the High Sheriff. I think what you told us
really covers that. A point in my mind
is that' we have to think not only of the
question of the control or influence of the
Government in the House of Commons by
making use of Members but also the possibi-
lity of their using what one might roughly
describe as an improper power to get rid
of an objectionable, Member. If I am
right in my understanding of what you
said, I think you said you considered it
would be unthinkable that a Member of
the House of Commons should be appointed
* See Appendix 6.
11876
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
'99
\Continued.
a Sheriff while he was a Mfember?Perhaps
I put that too high. As you know, it is
the Chancellor' of the Exchequers duty
Sheriffs. The practice isAhat three names
are produced for each area. These names
are examinedusually before the day when
it is decided^by the Chancellor of the
Exchequer's advisers, and any objection
that suggests itself is investigated. Some-
times one or other of the names himself
asks to be excused, usually on the grohnd
of insufficient means; sometimes on the
ground that it would be more convenient
for him to serve later on. By a very con-
venient but mysterious dispensation of pro-
vidence the number of persons who want to
be High Sheriffs is just about equal to
the number of High .Sheriffs that are
needed. The thing, therefore,' works in ,a
sort of balance. I put it too strongly if I
said it was unthinkable to put up the
name of a Member of Parliament. I can oidy
say that I have never heard of it being
done, and I would have thought it very un-
likely; but I suppose it is not unthinkable.
1048. Would you think it unreasonable
for the Committee to make a certain recom-
mendation, because I think I am right in
saying that the Sheriffs Office is in these
days rather a peculiar one. It is about the
one office remaining which a man .cannot
why he should refuse. In the old days he
used to brief Counsel, and come into the
Kings Bench, and he could argue all about ,
it. Nowadays it is mostly done by corre-
spondence, I think, but, of course, they do
often asked to be excused, giving good
reasons for it.
Mr. Charles Williams.
1049. Would you regard it as an
adequate reason for not taking on the
office that he considered his duly as a
Member of Parliament would not allow him
to carry it out? Would that be an
adequate reason?As at present advised I
should thjnk so. Perhaps you would allow
me to make an inquiry as to what the
practice has been?
Chairman.I wanted to carry it rather
further, because I was going to ask you
whether
officesyou
I had any strong viaw one way
should
or the other as to the possibility of our
making a recommendation thaf no Member
of the House of Commons should be
appointed a Sheri|E contrary to his own
wish.
Doctor Peters.] Excuse my interrupting,
but is hot that now the fact, that a Mem-
ber cannot be appointed a High Sheriff?
ChairmMn.
T050. I am not at all sure ft is not the
case that he can be appointed a High
Sheriff but immediately loses his seat in
the House. That is the whole point of my
question?I plead ignorance about it. I
had the impression which Dr. Peters had,
D2
 100 MINUTES OF EVIDENCE TAKEN BEFORE THE SELECT COMMITTEE
ii.'I.n.
IQ lime, IQ4I.] The Rt. Hon.' the Viscount SIMON,
G.C.S.I., G.C.V.O., O.B.E.
that really, whether by Statute or other-
wise, we lived under a system by which a
Member of Parliament would not be made
a High Sheriff.
Chair man I entirely agree, but it is
just a question, when we are dealing with
the whole of this, whether that is one of
0 those conventions which might be over-
ridden.
Mr. Maxton.l .Tio you remember I gave
you a case to the contrary? I gave you
the case of a man who was a High Sheriff
and sat in the House at the same time.
Chairman.'] I think we came to the con-
clusion that Mr. Maxton's Sheriffs in the
northern part of England were a different
class of people.
Mr. Maxton.
1051. It was Newcastle. My Sheriffs are
real people. They cannot sit. They are
definitely out of it. They are County Court
Judges?cannot help about it for the
moment but, if you y^ill allow me, I can
very easily make inquiries and perhaps
communicate with you. Sir Dennis, or the
Clerk to your Committee. I am sure I can
be quite definite about it, as a matter of
information.
Chairman.] I remember Mr. Maxton's
case now. I am not sure he is High
I think he is only a Sheriff at Newcastle.
We are speaking of High Sheriffs of
Counties. Occasionally you get a City or
Borough which, according to its ancient
constitution, has one of its ofiicers called
a Sheriff.
Mr. llaxton.] He is performing the same
functions as I understand the other fellows
are performing, ^ie is acting as Host to
the Judges, and so on.
Chairman.] We will discuss that after-
wards.
Mr. Charles Williams.
1052. You would support the position
that we might easily lay it down, as there
is an uncertainty in this matter, that
Members of Parliament should not be made
High Sheriffs?^You mean unless they were
willing to resign their seats?
1053. Yes?I think I would, but may I
include that in my investigation? Might
I say with reference to what Mr. Maxton
has been good enough to say that it would
appear to me that there is only one ground
on which ^ High Sheriff can be regarded
as not properly continuing as a Member of
Parliament. It has nothing to do with
hospitality to the Judges, or other matters,
not even being responsible for hanging con-
victed murderers. It is that in Counties the
Sheriff is the returning officer, and I cannot
see how he could be a returning ojBficer and,
at the same time, be a candidateat any
rate for that County.
Doctor Peters.
1054. Is there not the other point as to
the various duties that a High Sheriff has
to undertakecertainly always through his
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
I .I.irmiii.ii.
\Contifiued,
under-Sheriff; I have done the work myself.
There are duties such as inquisitions and
inquiries, assessing damages in breath of
promise cases, writs of Elegit and Extent
and that sort of thing?^Yes, semi-
judicial duties.
1055. Which rather makes his case- a
little different from that of a Recorder?
It may be.
1056. It might be well to bear that in
mind?Yes. He is not like a. Recorder,
certainly.
Chairman.
1057. Would you give us your views with
regard to such people as the Regius Pro-
fessors at the old universities, the heads of
colleges, where they are appointed by the
Crown, and the Provost of Eton?I have,
for what it iS, worth, a fairly clear view
about them. All the way through one has
to distinguish between the offices which are
held from the Crown because the Crown
nominates for the appointment, because it
is the Crown that says: " So and so take
this office ", and the cases where the in-
dividual is remunerated from public funds.
The Regius Professors are not remunerated
from public funds, so far as I know.
Certainly there are plenty of instances
which one could give where the remunera-
tion does not ^ come from public funds but,
by law or by custom, the nomination, when
the place is vacant, lies in the Crown and
is exercised by one of the Crown's Ministers.
I would have thought that in cases where
the office was held on the nomination of the
Crown but the Crown does not provide the
remuneration, and the office itself is not of
a public characterserving the community
in a more general sensethe Act -of Anne
did not apply; and any rate I do not think
it ought to apply. Unless my memory fails
me Professor Gilbert Murray was Regius
Professor of Greek at Oxford University
and has stood as a candidate.
Mr. Pick thorn.
1058. Professor Jebb was Regius Pro-
fessor at Cambridge?^Yes, I remember
now. That is a better example. I sat in
the House of Commons with him. He held
the position of Burgess for the University
of Cambridge when he was Regius Pro-
fessor. I can see no reason at all why
that should not be so. Where the office,
however dignified and important, is not
really an office of public service, as it were,
but has its strictly limited rangelike an
academic rangeI question very much
whether the Act of Anne had anything to
do with it. May I add that of course the
Crown nominates a whole host of people foi
various positions. It nominates people to
be Trustees of the British Museum and
Trustees of the National Gallery, and all
sorts of things. Some particular Minister
does it, but many of these appointments
are in fact made by the Crown, Nobody
 ON OFFICIES OR FtACEg 6F^
19 June, 1941.] The Rt, Hon. the Viscount SIMON,
G.C.S.I., G.C.V.O., O.B.E.
would suggest that a Member of Parlia-
ment should not be appointed. It is not
an office of general public service but it is
a duty which has its quite defined and
specific range.
Mr. Mander.
1059. But very acceptable as a reward
^very acceptable as a gift?It is a very
fine thing to be Professor of Greek, if you
know enough Greek. I daresay you will
remember that there was some doubt
whether Dr. Jowett, Master of Balliol,
would accept the Regius Professorship of
Greek. That was based on the fact that he
held,^ so it was considered, somewhat
heretical opinions, and at that time a Pro-
fessor was required to sign the 39 Articles.
So they watched his behaviour with great
interest, because he had his enemies. When
the moment came all that Jowett said was:
" Give me a pen."
Chairman.'] Then there is<the question of
local Government Officers. I think there is
a certain amount, of illogicality and one
or two anomalous cases there. Mostly the
important local Government Officers are dis-
qualified by Statutenot under the old Act
of Queen Anne, but by local Government
Statutes.
Dr. Peters.] That is full-time people, is
it not?
Chairman.
1060. Yes. The full-time highly paid
local Government Officials. Do' you think
that is a matter where we should recom-
mend an exclusion as a classdefining the
class carefully, of courseor that we should
leave it to the local Government Legisla-
tion?^It is a branch of the subject I do
not know very well. I happen to have had a
great deal to do with some branches
of the subject, but not with that. If
an opinion in those circumstances is of
any value, I would have thought that it
was right, as long as one applies the essen-
tial test: Is the office one, the holding of
which is not compatible with taking part
in active political controversy?I cannot
think that a Clerk to a County Council
would be naturally qualified for political
activities, because it must so constantly put
him in the position where there is perhaps
a conflict between his duty as a servant ol
the locality ajid his duty as a Member.
1061. Moreover, there are very few coun-
ties in the country where they have any
business to spend a single hour on any-
thing but their own job?^That is another
reason. It is either incompatability of func-
tion or it is preoccupation in other duties.
One or the other it seems to me is the
main test.
Dr. Peters.
1062. Even there we
English County Court Registrars and Town
Clerks and Irish Civil Bill Court Regis-
trars and Town Clerks are not disqualified
for any constituency. Yet, when you come
to County Officials, a County Clerk is?
That ought gp be cleared up.
11867
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
UMDMf lOI
{Continued.
1063. There is just one point on that
besfore we get away from the judicial side'.
Registrars of County Courts, if they have
bankruptcy jurisdiction are disqualified.
That means really that in the larger County
Court districts, if they have not bankruptcy
jurisdiction, they can stand. I do not
know whether you have any view on that?
did not know it, I am afraid.
1064. That was under the old rule when
a Registrar was paid fees. For some years
he has been- directly under the Treasury.
I should have thought that now they ate
all under the Treasury they are more or
less Civil Servants?Ought not- there to
be a more general and consistent rule? I
should have thought so.
Chairman.
1065.
matters which were not mentioned with
which we shall have to deal, I think.
Would you agree that we should, as has
been done, preserve, in all their pristine
and existing glory, the Chiltem Hundreds
and tihe Manor of Northstead?If you do
not, I do not know how anybody is going
to get out of the House of Commons once
he has got in.
1066. I wanted to get that from you.
They have been preserved in a most
interesting way in the Birkenhead Act?
Yes, It is one of the most important func-
tions of a Chancellor of the Exchequer
to appoint these offices. It is regarded as
a rather easy matter, that you do it in
your off moments, and merely sign your
name on a printed form. I remember
receiving a complaint from a Member who
was retiring that, when he got the docu-
ment, it was not inscribed, as it should
be, on parchment and signed by the King
but was a miserable (I think typewritten)
half sheet of paper with my 'undistinguished
name at the bottom. I had to explain to
him that that is the way the Constitution
works.
Mr. Mcmder.
1067. Is there any remuneration?^There
is none now, but all the same it does not
follow that because you do not in fact get
any remuneration it is not an office of
profit. I should think that the office of
Steward of the Chiltern Hundreds in times
of antiquity did probably carry with it
some remuneration. In fact it is plain that
it did so, because if it were not an office of
profit then it would not bring into opera-
tion the Act of Anne.
Chairman.
1068. Then with regard to penalties and
the Common Informer, would you tell us
something about that?^I do not know that
getI anomalies.
have any newIhesystem to suggest, but I
am firmly of opinion that the Common
Informer ought to be abolished. It is a
most monstrous machine and, as I dare-
say you knowand perhaps other Members
*= See Appendix 6.
D3
 102 MiNUiTES OF EVIDENCE TAKEN BEFORE THE SELECT COMMITTEE
ig June, 1941.] The Rt. Hon. the Viscount SIMON,
G.C.S.I., G.C.V.O., O.B.E.
of the Committee knowonce you do get
an action brought by a Common Informer
every kind of legal ingenuity is brought
into play in order to do him out of his
action. It is really a cut*-throat business
which I do not think is creditable to any-
body. I am utterly opposed to that.
1069. Would
(or is it a matter you have not gone into) as
to whether it is necessary to have heavy
penalties, and as to whether, if there are
to be penalties, they should be inflicted by
some special Court as, for example, the
Court that tries Election Petitions?
-have not thought about it.. I do not think
it would be a good plain to have a new
system in which the rule should be dis-
regarded and set at nought without any
serious consequences. If you would allow
me to do so, I should like.to develop that
a little. I had meant to say this earlier.
'One of the serious defects of the present
. system is that there are so many cases of
doubt. I experienced this in the days when
I was Attorney-General. A Member of
Parliament comes to you and says: ' T. air,
told that the authorities would like to ask
me to undertake this ofi&ce "^whatever
it is; it is outside, not a Ministerial ofl5:ce
but some other office You are the
Attorney-General; can you tell me whether
I can hold it with my Membership of the
House of Commons." Very often he would
say: "If I cannot, I am not going to
take the office; I would sooner remain
a Mpmber of the House of Commons and
refuse the office. If I can take it I should
like to take it. Would you therefore advise
me? " It puts a law officer in a very
awkward position because, after all, it is
not his risk; it is the man's risk. If you
say to him: ' Oh, yes, ray dear fellow, I
think that will be all right," and it turns
out to be wrong, you have landed him in
a^ penalty of $00 a day. If you say to
him: "Well, it is a doubtful point; I do
not feel quite sure,", it may easily result
in a man saying: "Well, if you are not
going to guarantee me I shall not take the
office," which may be very hard on him.
I have long thought that is a most unsatis-
factory system, and the system which I
would suggest to the Committee might be
considered (very likely there are objections
to it, but I just throw it out) would be
something of this kind that after you have
devised the best set of rules that you can,
sensible, modern rules, limiting the cases
of doubt, as far as you can, you should
still recognise that there will be cases of
doubt, or that, at any rate, if there are not
now, there will be in the future. Then I
think I would like to see a provision of this
kind that the Speaker, on his attention
being called to the matter, would be autho-
rised to certify that a case of doubt had
arisen as to whether a Memberperhaps
mentioning the Membercould continue as
a Member if he accepted such an office. It
might even be stated without mentioning
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
{Continued,
the Member's name, because the rule would
be the same whoever the Member was.
When the Speaker had certified that, it
shbuld then be possible by Parliamentary
procedure to move for a Select,Committee
in order to examine the case and report
upon it, like the Committee of Privileges
does.
you careThen the any
to go House itself, on the report
further
of the Committee, could decide whether it
would accept the report or not. I would
limit it to cases of doubt because there
may be many cases where it is quite plain
that a man has lost his seatif he is
appointed ar* Judgeor, again, equally plain
that he .has not lost his seat, e.g., if he is
appointed a Minister. But unless you have
some system like that, I think you will
find it very difficult to deal with these
border-line cases except oil the terras which,
in my own experience, have been awfully
harsh, that you had to tell a man: "I
am not at all. sure how this will work out,
and you must not run the risk." I throw
that out merely by the way.
1070. That is a most interesting sugges-
tion. I was going to ask you about that
question. My previous question was more
or less leading up to that?I am so sorry.
1071. Not a bit; you have only helped
me. That .would have a good historical
foundation. Before the Act of 1707 these
questions were dealt with entirely by the
House of Commons itself?Certainly.
1072. And even after 1707 you got that
particular case to which you referred, of the
Reverend Horne Tooke where the matter
was again referred to a Committee of the
House?It is very difficult to see how
it was fitted into the scheme of things after
1707, but it was. Before 1707, there would
be no doubt, about it; for instance, the
decision in Elizabeth's time about a clergy-
man was, I think, arrived at in that way.
It is partly to be explained by this, of
course, that constitutionally the House of
Commons, like any other assembly of
people, has the inherent right to expel a
Member. The House of Commons does on
occasion expel a Member for disgraceful
conduct without asking any questions at
all as to rights. I suppose the House could,
if it liked, say, without talking about it
any more: "You are no longer a Mem-
ber," but the House of Commons would
never do it except in the case of some
gross misbehaviour which did not amount
to a positive disqualification.
1073. One case in the experience of all of
usthe only modern casewas that of
Bottomley?Did not Bottomley become
bankrupt? A bankrupt is automatically
expelled. I was thinking of an earlier case.
I do not remember the name, nor would I
mention it, but it was the case of a
Member of Parliament who had behaved
very disgracefully with a woman of the
town. He had not committed any crime,
but decent people would not associate with
him. w
 ON-OFPIGES OR PLAGES OF PROFIT! UNDER: THE GROTON
19 June, 1941-] The Rt. Hon. the Viscount SIMON, .
G.G.S.I., G.G.V.O., O.B.E.
1074. I think in Bottomley's case the
bankruptcy did not operate. It was either
before or after, or something of the kind,
but the peculiar part of the case was that
although it was a pretty bad one it was
technically a misdemeanour, and 'did not
disqualify?He was convicted of a mis-
demeanour. That might beHt.
Mr. Pickthorn.
1075. Would there not be a risk with this
proppsed procedure, that the decision would
almost always be a political decision, as it
almost always was in the old days?^There
is.a risk, although I think, if I may be
allowed to say so, that the standards of
Members of the House of Commons, when
they are charged in a Committee to deal
with a matter, are very high; I do not think
you do get, as a matter of fact, a lot of
deliberate political bias and X think, too,
it would be a considerable protection
against what Mr. Pickthorn very rightly
fears, or warns us against, if you were to
provide that the decision was not to be a
decision about a particular individual, but
was to be a decision about that particular
office, so that it would apply again and
again.
Chairman.
1076. Just to round it off, let me put a
point w'hich was in my mind: Do you think
that it might be useful to consider whether
we should recommend that no proceedings
should be taken again^ a Member on the
ground of his being disqualified without the
fiat of the Attorney-General?I have not
clearly visualised what the new proceedings
would be. There must be proceedings.
1077. I was contemplating the possibility
that, instead of ;^5oo a day, there might be
a penalty of some kinda much smaller
amountfor sitting when he was disquali-
fied but, if so, there should be some limit
on how such proceedings should be com-
menced, and the fiat of the Attorney-
General seemed to me to be a pdssible way
of meeting that?I merely make the
observation off-hand because I have not
thought about it. Of course it is not
enough to have the fiat of the Attorney-
General except as a necessary preliminary to
the proceedings he authorises. Usually the
fiat of the Attorney-General is given in cases
where there is going to be a criminal pro-
secutionfor instance, taking private
bribes, corruption, and there are other cases.
Therefore that would assume that this was
to be a criminal offence and somebody
would have to prosecute. I do not know
who it would be. In Scotland it certainly
would have to be the Crown because that
is their universal system. In England it
might be a private prosecutor. I think
you would have to have that thought out.
It is the only difficulty about getting rid of
the Common Jnformer.
11867
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
IP3
i
[Continued
1078. I was going to say, it is very easy
to say that you can get rid of the Common
Informer, but no such person is mentioned
in the law and how you abolish him I do
not quite know?There must be some pro-
cedure which can be taken.
Mr. Charles Williams.
1079. Would you have the Committee of
Privileges to deal with the matter or a
Select Committee in doubtful cases?I had
not thought about that very closely. I had
supposed it would be a Select Committee.
1080. Might not the Committee of
Privileges possibly deal with it?^They
might. I think you would have to have on
the Committee some of the most important
people of the House. I think your diffi-
culty (I cannot offer a solution, at any
rate at the moment) is: Who will you sub-
stitute for your Common Informer?
Chairman.
1081. Exactly?^I certainly would not
like the idea that you should lay down a
lot of rules but then, by a polite conven-
tion, not apply them. That would be the
worst of all situations.
1082. It almost comes to this, and I
think I might ask you the question:
Whether you think there is need for penal-
ties at all, or whether you think that in
these times the House of Commons would
not fail to find out, in any gross case at
any rate,^if a man was sitting and was dis-
qualified, and then they would have their
own methods of keeping him out?I do
not think I would like to agree off-hand
that you do not need any form of penalty.
My suggestion was that there should be
an opportunity for an inquiry into a doubt-
ful case so that a man might know -with
certainty how to proceed. Do you think
that in a flagrant case which, perhaps, had
not come to the notice of the public you
ought to let it happen? I think a large
part of the House of Commons would regard
all this procedure as a security against the
undue influence of the Government of the
day, and I think they would be jealous
about it and, in" my view, rightly jealous
about it.
T083. At any rate, that is a matter of
machinery, to replace the Common Informer
by something less objectionable?^Yes. I
have not at present any suggestion to make.
T084. Then as to Officers and men of
the Forces, you have given us your view?
quite clearly and I do not think I need
,ask any further questions on that. Then,
with regard to the Clergy, I have been
asked by a Member of the Committee who
is not here to put this point to you in
particular. I think you have already told ^
us, without expressing any opinion as to
their merits as a class as Members of the
House of Commons, that you see no logical
reason why, from the House of Commons
D4
 '104 MINUTES OF EVIDENCE TAKEN BEFORE THE SELECT COMMITTEE

19 June, 1941.] The Rt. Hon. the Viscount SIMON, IContinued.

. G.C.S.I., G.C.V.O., O.B.E.

ipoint of view, the Clergy should be ex- perfectly just, and I really had some hesita-
cluded if they are not excluded either oy tion in mentioning clergymen at all. The
their constituents or by their own autho- view that clergymen, either of the Estab-
rities, the Church. There no doubt you lished Church of England, or, still more,
had in mind mainly the Clergy of the perhaps, of the Established Church of Scot-
Established Church of England?^Yes, the land hold offices of profit from the Crown
exclusion at present, of course, applies to is, I apprehend, quite unsound. They do
Clergy of the Established Church of England not. A Rector or a Vicar who is an in-
and Clergy of the Established Church of cumbent of a living in England has his
Scotland together with Roman Catholic remuneration from tithes, from endow-
Priests. ments, or from pew rents or from glebe
in various ways, and 1 do not at the
1085. It is the Roman Catholic Prints I moment see why he should be described as
was coming to. ' This is the question I paid by the King.
was asked to put to youwhether you did
not think, in view of the discipline (if I Mr. Maxton.] I should like to examine
may use that word) of the Roman Catholic the Lord Chancellor on this matter. Are
Church, which you will know all about, you proposing to go round individually,
and of the belief held by Roman Catholics Mr. Chairman?^You are conducting your
generally as* to their subservience, in the own personal examination.
last resort, to their ecclesiastical authori-
ties, there might be an objection on those Chairman.
grounds to a Priest of the Roman Catholic 1088. I ha.ve very nearly finished;It is
Church being a Member of the House of my fault for being so provocative.
Commons?I must draw a sharp distinc- Mr. Maxton. It is your fault for being
tion between any personal feelings of my so interesting and stimulating,
own and my sense of what is just and right,
I am not necessarily saying anything which ChcdYman.
I have any great sympathy with. But
it appears to me that a democratic system 1089. Have you any particular views as
' which gives to every adult man and woman to whether in any form whatever there
the duty of choosing its own representative should be restored the necessity for a Min-
is in a difficult position if it says on thatister to seek re-election on appointment?
kind of ground that there is one kind of I have very strong views on that because
representative which by law you must not I am probably the oifly living Parliamen-
choose. That kind of argument, the reason tarian who had to fight three successful
for which I think I well understand, is of Elections in one twelve months. That is
course the argument that was used in 1825 what happened to me, as I happened to
against Catholic emancipation. It was the be appointed Solicitor-General in Septem-
argument which caused an English King ber, 1910. There had already been one
very nearly to get himself into the worst General Election in that year, and as soon
kind of controversy. It lasted for a whole as I had been returned by an increased
generation. It may be a very natural majority Mr. Asquith decided to have a
attitude, it may be a very prudent attitude, secbnd Election. So I have the strongest
but I myself do not' think it is a very opinion about it. I see no reason at all
liberal attitude. why he should be re-elected.
1090. I might put to you, even if it is only
1086. I do not know whether you have, as a matter of interest to you, the sort of sug-
but I have, heard the most interesting gestion that was thrown out to us. It wa^
arguments with Roman Catholic Members that there might be something to be said
ot the House as to the possible limitations for the necessity for a certain number of
on their independence ?-TT1 do not dispute Ministers having to be re-elected on appoint-
it at all. That is a very serious reflection. ment after a General Election in order in
But the point is that we must make up practice to force the Leader of a Party (it
our minds whether the legislature 'is to be would have to be the Prime Minister) to
composed of people whom we regard ab give some indication before the Election of
safe men or whether it is to be composed what his Government was going to be, of
of the people whom the constituents choose whom it was going to consist?^That,-if I
as their representatives. It may be that may say so, is rather a fancy proposal. The
Jews or infidels should not be members, real reason why I think in modern days it
but I find it most awfully difficult, from should not be required that Members, on
my point of view, to draw the line and I being appointed Ministers, should be re-
therefore say so. elected is that, as I apprehend it, it may
I
very seriously restrict t'he choice of the head
Mr. Maxion. of the Government for the best man. He
T087. You would recognise that it was wants very much indeed to appoint a col-
going somewhere beyond the purposes for league, somebody in his Party who would
which this Committee was set up, that it be regarded generally as the best man for
only came into our consideration because, the post, but if that man has a majority
to some extent, they were holding offices of of only 50 he will prefer somebody who
profit?I think, if I may say so, that is has a majority of 10,000. That cannot be,

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 ON OFFICES OR PLACES OF PROFIT UNDER THE GRO^ I05

19 1941 ] The Rt. Hon. the Viscount SIMON, [Continued. ^

G.C.S.I., G.C.V.O., O.B E.

I think, for the good of the country. There
are other ways of challenging policy than
that. It is a most clumsy ^jjay, because it
is not as though yoii get a revised view from
the country. It is only that you get a
particular Constituency going through the
form of election again. I cannot my sell
think it is a' sound principle.
1091. May I close with this, which,
perhaps, I ought to have begun with, but
I am doing it I hope in your interests as
well as our own. It should be understood
that you come here |o-day individually, in
your personal capacity, and not as a
Member of the Government?^Yes, I have
not consulted anybody, and I have very
likely said all sorts of things I should not
have said.
1092. I thought it well to have, that on
record ? Certainly.
Mr. Max ton.
1093. I feel I could usefully sit and cross- a private Member it was not true of me;
question you for about two days, but you I do not mean that I never did a Crown
have given us a very big proportion of your case at Assizes, but it came in the ordinary
timft already ,to-day. You mentioned way of business. I do not know whether
Judges. You definitely exclude them.
Would you add people holding quasi may say so, searching for the application
judicial positions like Umpires, Referees,
and so onP-r-I think in many, cases an
Umpire or Referee acts only because he is
chosen by the parties, possibly for a single
dispute, and ; obviously you would not
suggest that he -should not continue a
Member. If you have some permanent
Official Referee (there are in fact official
Referees in our Courts) I should have
thought that they should be covered
(perhaps they are covered) by the same rule.
Do not you think it really depends on
whether this duty is a duty, quasi judicial,
if you like, which is the permanent occupa-
tion of the individual, which makes it very
undesirable that he should be mixed up in
political controversy?
1094. That brings me to the next point.
On the question of permanence, if a man
becomes recognised as the standing Umpire
on certain types of cases, and he is always
called upon by a certain Government De-
partment, say, to decide on matters in dis-
pute so that that becomes the major
portion of his practice, if he is a barrister,
or a solicitor, would there not be a point
at which he would become a servant of the
Crown and would be holding an office of
profit under the Crown, although he was
paid all the time on piecework as it were
so much per case?^You are assuming that
he'is appointed by the Crown. There are a
great many Umpires. and Arbitrators
who are not appointed by the Grown, as you
well know. There are a great many stand-
ing Arbitrators. . I think Stanley
Buckmaster, before he was Lord Chancellor,
was the Standing Arbitrator in one of the
great trades in the country between the
men and the masters. There have been
cases like that. You could hardly, I think,
disqualify them. I think it would have to
be limited, if you go beyond the. High
Court Judges, to people who are in sub-
stance doing similar work, of which the
Official Referees in the Courts are an
example.
1095.
about Barristers who are Standing Counsel
for Government Departments, or who are
in the position of making a big proportion
of their income on Governmental briefs, to '
such an extent as to make it their main
livelihood?^About that kind of question
there are always two separate points. One
point is: Is this a case where you can
draw the line so as to make a rule and
law? The other point is that, thinking it
over, I do not recall a case of a barrister in
Parliament who was in the position you
describe, apart of course from the Law
Officers. I do not think I recall a case.
When I think of my own time when I was
you could- draw the line there. You are, if I
of the principle that a man does not serve
Parliament faithfully if he is deeply com-
mitted to one point of view. That is a
very darigerous doctrine, if carried too far.
One would have to consider how it affected
Trade Union Members of Parliament, 'and
a lot of other people.
' 1096. That is not quite how it arose m
my mind, although I, more than anybody
else in Parliament, know just how vicious
the vested interest of Trade Unionism may
be in working in politics. I know it better
than anybody else. This is how the ques-
tion came up to my mind at previous dis-
cussions on the Committee. It is a ques-
tion of the power of the Government to
bend -the House of Commons to its will.
In these times the number of persons
actually holding Government positions in
Parliament legitimately is fairly great. It
is greater in war time. I think you your-
self in your evidence said this morning
there was an enormous increase. I do not
think it is so awfully big yet. I do not
think it amounts to one-eighth of the whole
House.
Mr. Mander.l Yes.
Mr. Max ton-
1097. I think we came to the conclusion
that there were about 80 junior Ministers
and Parliamentary Private Secretaries. If
a Parliamentary Private Secretary unpaid
is thereby affected in his independence,
what about a fellow who is earning several
thousand pounds a year by getting briefs
from Ministers of the CrownI give you
the best answer I can. I have a certain
amount of experience behind me about this.
I will give you the most candid view I am
able to give you, of course. When I was
Attorney-General, one of ray duties was to

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 iOb MINUTES OF EVIDENCE TAKEN BEFORE THE SELECT COMMITTEE
'iQ June, 1941.1 The Rt. Hon. the Viscount SIMON,
G.C.S.I., G.C.V.O., O.B.E.
4 _ ,
appoint who should conduct certain pro-
secutions. It is not a very big piece of
patronage really because most prosecutions
have nothing to do with the Attorney-
General; but still it is material. It was
certainly the case in my "time that some-
times I directed that the brief should be
offered to somebody who may have been
a Member of the House of Commons, but in
most cases he was not; it usually depended
upon the Circuit or'the Assize, or some-
thing like that. I think I can honestly
say that it never entered my head that
anybody I directed should get the brief
was thereby being, as it were, suborned.
Generally speaking, the' best barristers are
pretty independent people, and I do not
think they would find it very easy to do it.
They take up a position of their own quite
as often as many other people. I think I
must say so of myself. So I do not really
think it a very serious thing but, of course,
it is true that if you could imagine a
Government which was bent on. trying to
buy a certain amount of sitpport the inci-
dentalsuppose you might call it
patronage which may be in the hands of
the Ministry is still quite considerable- It
is nothing compared with what it used to
be, but I believe the thing contains within
itself the seeds of corruption. I myself do
not think people would stand it. I was
quite as much concerned to be sure that
I did what w'as fair and right' to various
Members, some of them on one side of the
House and some on the other, and some of
them not in the House at all, as anyone
else. Then you are left with this difift-
culty. I very much question whether you
can lay down a rule which draws a line
so as to put the people who are to be ex-
cluded on the one side and the people who
are to be admitted on the other, because
it is all a question of degree. That would
be my own experience. I think you would
find other Law Offeers w'ould say the same.
1098. Along the same lines we come to
this question of the Clergy, so far as it is
within the scope of our Committee's work.
You say that the amount of patronage is
very limited, that the total number of
livings that would be in the gift of the t,ord
Chancellor would be relatively small?As
compared with the whole number it is
small. It is a piece of duty one has to dis-
charge every .week, and probably sometimes
. several cases come up. One has the
opportunity, through the Department, of
examining different names and considering
to whom a living had better be offered.
Mind you, most of the livings in the gift
of the Lord Chancellor are of very little
value. The Lord Chancellor has nearly as
much difficulty in finding people who would
be willing to take the living as he has in
appointing people to it.
1099. On one occasion I so far lost my
sense of decency as to approach the Lord
Chancellor to appoint a man to a particular
living. I was unfortunate. It was at the
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
[Continued.
_ _ -
time of this Lord Chancellor's predecessor?
-But I arn not offering any assurance to
you. j,
1100,
appointments that are made by the Lord
Chancellor the only livings that are in the
gift of the Crown?^No, there are two
channels through which it goes. Some
livings are directly in the gift of the King
and, of course, he acts through a Minister.
The Minister through whom the King acts
for this purpose is the First Lord of the
Treasury; just as he appoints Bishops and,
generally speaking. Deans. The Lord
Chancellor appoints in cases where the gift
is in the hands of the Lord Chancellor for
the time being. Generally speaking the
livings in the Lord Chancellors gift are
livings of very modest value. No Member of
Parliament would exchange his salary for
most of them. That is not true of all; every
now and then he has one which is rather
more valuable. 'But I really do not think
that in that respect anyone would have the
slightest reason to suspect a danger of un-
due influence. It does not seem to me to
come into the modem picture at all. Very
much care is taken. I am really struck with
the amount of care that is taken in the Lord
Chancellors Department about it.
Inquiries are made in all directions. I see
reports as to the man, what sort of a man
he is, what kind of attitude he would take
in discharging his duties. I cannot think
there is any form of appointment about
which more trouble is taken-
' iioi.* Would there not be livings that,
say, the Crown Land Commissioners and
the Minister of Agriculture would have in
their gift as landownerson lands that they
have taken over?I do not know about
that. It is quite true of course that there
are many cases where a private landowner
has the gift of a living. ^
1102. And where one of the Departments
has taken over the land?I suppose there
are such casesI do not know how many
just as Oxford and Cambridge Colleges
have a number.
Chairman.] They are separate from the
land. I do not think there is any case
where a Government Department has
acquired a living because of buying the
land.
Mr. Max ton.] If I go and buy an estate
on which there are two livings I have the
gift of those livings.
Chairman.] You may or may not buy
them, but I am sure a Government Depart-
ment would not buy them. I do not think
there is any case on record.
Mr. Maxion.] Where do they go to?
Chairman.
1103. The vendor of the land?^They
would remain in the hands of the vendor in
the ordinary case. I think.
See'Appendix 6.
 ON OFFICES DR/]PLA(S^S OF PROFIT ONDERafHE OROWN
19 June, 1941*] The Rt. Hon. the Viscount SIMON,
G.e.S.I., G.C.V.O., O.B.E.
/_
Chairman.1 They do not necessarily go
with the land any more than the old man^s
best ^armchair goes with his mansion house.
Mr. lAaxton.
1104. Far be it from me to attempt to
pose as an expert on episcopy. My
ancestors gave their lives trying to destroy
it?I will give you this piece of informa-
tion, if you will allow me, that if you are
ever inclined to buy an estate from a man
who owns the estate and has a patronage of
a living do not buy the living at public
auction, because, if you do will commit
the offence of simony.
1105. The point-I was making was that
all these added up would make a very con-
siderable political interest^the proportion
of the people who could very rightly be
regarded as having their livings in the
hands of the Government of the day?I
think it is quite a point. I do not know
whether you gathered from my evidence
that what was said on this subject was
said because of the general run of my poli-
tical convictions. It was not that I was
seeking ;J;o urge it as a desirable result to
get large numbers of Clergymen in the
House of Commons; I should deplore it if it
happened, and I cannot believe for a
moment that it would happen. It has been
possible to get Clergymen -of the Church of
Wales into the House for the last twelve
years but, as far as I know, nobody has
turned up yet. _ Chairman.'] Pie has come here simply as
Mr. Maxion.'\ We have two Scotsmen and
one Irishman.
Mr. Pichthorn.
1106. A^nd a number of Non-Confor-
mists?I do not think you have many
Non-Conformist Ministers.
Mr. Maxton.~\ Yes, Mr. Sorensen, Mr.
Woods, and' Mr. Barr.
Mr. Williams.^ And Mr. Campbell
Stephen.
Mr. Maxton.
1107. And my colleague, Mr. Campbell
Stephen. With regard to this present way
of certifying an office for the period of the
war by the Prime Minister, that entitles a
man to hold two what would be normally
incompatible jobs for the war periodMem-
bership of Parliament and some offices of
profit, woulcT you regard a certification by
the Prime Minister as not a good way in
normal circumstances?Here, Sir Dennis,
I think I must recall the concession which
you were good enough to make, that I was
giving evidence only in a private and per-
sonal capacity. I am sure Mr. Maxton
will not expect me to make any observa-
tions on a Statute passed on the recom-
mendations of a Government of which 1
am a Member. I would not do that, of
course, but I think your question was
whether I should think it a good plan in
normal times when the war was over?
1108. Yes?No, I should not think it
a good plan.
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
[Continued.
1109.
mittee of the House doing it?^Forgive
meit was rather a different ppint.- The
point was just this that, as things are,
cases of doubt arise as to whether a Mem-
ber can or cannot accept a particular
office, and it seems to, me. a very 'unfair
position to put .him in to say to hirn:
" Accept it at your perils and you will^
p3-y ;^5oo a day if you are wrong ' l'
thought perhaps in cases of that sort it
might be reasonable, when the Speaker cer-
tified that it was a question of doubt, to
have the matter investigated by a special
Committee and reported upon. It was.
merely because in my experience it is yery
imfair to expose an individual, as we
sometimes do, to the risk of being faced
with a very heavy penalty when he only
wants to do the right thing if somebody
will tell him what the right thing to do is.
Mr. Maxton.'\ My point is that we have
had, in the matter of two or three months,
six doubtful cases df whether Membership
of the House of Commons was compatible
with the holding of some other office. They
have gone to the Prime Minister and hp
has certified them.
Chairman.
mo. I think here \ must protect the
.witness. I do not think we must ask him
any question which involves the Govern-
ment of the present time?^Please not.
a private individual of great experience.
We must not ask him questions which in
any way impinge upon his position as a
Member of the Government.
Mr. Maxton.] No; I am not doing that; I
would never dream of doing that; that is
the last thing I would think of doing. I
can get at the Government in other ways.
The point I am making is this, that six
of these doubtful cases have been
decided in a matter of a few months.
Mr. Pichthorn.] They were not doubtful.
The two things were incompatible, but the
Prime Minister certified that they were
necessary.
Mr. Maxton.
nil. That does not matter. You say
that they were not doubtful. I am using
the word " doubtful." The Prime Minister
settled six of them, solving the problem
of the Common Informer, solving the
problem of the Privileges Committee, in a
simple business like way. Would certifica-
tion by one man, not necessarily the Prime
Minister, not be a possible device for coping
with this situation in normal times?It is
a possible alternative. I should not have
supposed it would be so welcome to Mem-
bers of the House of Commons. I do not
know who the individual would be. To a
large extent the House of Commons is the
guardian of its own traditions and even of
its own composition, and I would have
thought that, if there were a real case of
doubt (I am not talking about a case which
 IG8 MINUTES OF EVIDENCE TAKEN BEFORE THE SELECT COMMITTEE

19 June, 1941.1 The Rt Hon. the Viscount SIMON, [Continued.

G.C.S.I., G.C.V.O., O.B.E.

was plainly incompatible) you wanted some representing the King. To some extent the
machinery to settle it. If there is some same thing would apply to the Lords-
single'wise individual or person whom the Lieutenant from that point of view outside
House of Commons would trust to do it, their own Counties?I entirely agree with
that is another matter. It has not occurred you. I was looking at my notes to see
to me that they would take the word of whether I had stated it. I would certainly
the-Lord Chancellor; perhaps they would. have proposed that neither the Sheriff nor
I thought they would probably prefer to the Lord-Lieutenant could be regarded as
have a House of Commons Committee. I qualified to be a Member for the County
do. not know what would be the best in which he was acting. I do not feel any
machine. doubt about that. I think the two things
Mr. Maxton.l Now, I am not nearly would be incompatible.
finished, but I am stopping. Thank you Doctor Peters.'] A Sheriff cannot even be
very much. a Justice of the Peace.
Mr. Mander.
1112.'* For purely historical reasons, * I Mr. Maxton.
should like to ask a question about the 1117. Would you let him do it for a bit
Chiltern Hundreds. How long does the of it? The areas are not usually co-
appointment last for? Is there any fixed terminus. To take Nottinghamshire, the
time? Could the holder, if so disposed; Marquess of Tichfield is presently Lord
go down there and perform any functions? Lieutenant. He represents one division of
^No, there are no functions to perform. the County of Nottingham?I think that
The other point you mention is, if I may the modem view is that the disqualification
say so, an interesting one. It was a attaches to representation in Parliament of
surprise to me when I went to the Treasury the County, but that Boroughs inside the
because I found that when I signed the County are not covered by the rule of ex-
. appointment of a man to, let us say, the clusion. I do not know whether that is
Chiltern Hundreds, in the body of the docu- right or not. One can see an argument
ment, if I remember rightly, there was a either way, but the substance of it is that
recital that the previous holder had if the man is really discharging a lot of
resigned. I think that is pure formality. functions for the Crown and for the public
I do not know what would happen if he which cannot be .combined with fighting a
insisted on holding it. That is the way it furious election, then he ought not to do
works. I think I could get the Committee, both. That is surely common sense, is it
if it is of any interest to them, the form not?
that is actually used. If my memory serves
me right, it in\ jives a statement that so k. Mander.
and so is appointed to the Chiltern 1118. Yes, I quite agree. Then there is
Hundreds in the place of so and so Esquire, a question which you may not care to
the former holder, who has resigned. answer in view of what the Chairman has
1113.* Then he holds it until a new man said, but I think perhaps, on the other
comes along?I think so. If you have hand, you may. It is in connection with
two people at once you appoint to the the Macdonald Bill. I quite appreciate that
Manor of Northstead. that Bill has been passed and the Prime
Minister is very keen on it, for war
Chairman. purposes. The House of Commons is not so
1114. * I think theykeen appoint to the
on it obviously. One of the reasons
Manors alternatively, as a matter of fact? why the passage of the Bill was easy was
I think they do. There are gaps in the because the announcement was made that
form, already to be filled in. this Committee was going to be appointed
Mr. Mander. and it could make recommendations. My
1115. * It would be interesting question istothis: Do you think as a possible
check and see it?
reassurance to the House of
I will get you a copy, and you can see it Commons consideration might be given to
if you like. the question of an Affirmative Resolution
1116. To take you back, for a moment, being passed by the House in the case of
to a rather different ground, about the any certification, which would make the
Sheriffs and the Lords-Lieutenant, ought
not they to be excluded from sitting or Primethink:
Minister, or whoever it might be,
" Well, in the ordinary course it will
standing for their own Counties, in their
own jurisdiction, on this ground that they go through without any discussion at all but
both, in some sense, represent the Crown if I appoint so and so to such and such a
and by tradition and convention in their position there will be a Debate, and it will
Counties they keep out of politics in many be rather unpleasant and controversial; 1
cases. It would be a very undesirable think we will not do it ". It seems to me
thing if the Lord-Lieutenant, the King's it would be some little assurance to the
representative, were rushing round conduct- House. I think they will expect this Com-
ing a furious political campaign in a mittee to say something of the kind on the
<,ount7 Constituency where he was already subject. I cfo not know whether you would
care to answer that?I will do what I can
See Appendix 6. with pleasure. It is quite clear that you are

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN 109

19 June, 1941*] The Rt. Hon. the Viscount SIMON, [Continued.

G.C.S.I., G.C.V.O., O.B.E.

not inviting me to comment onand I is as far as I think we can possibly go?

certainly would never consent to comment Yes. I had supposed that in seeking to
onthe Act of Parliament which has been make, it relevant Mr. Mander perhaps was
carried for the war; I could not do that at raising the question whether this did
all, because tha.t is an Act of Parliament net increase the proportion of the House
of the Government, and I cannot say any- of Commons which is subservient to the
thing about the extent to which I was con- Government.
sulted with regard to it. But, of course, Mr. Mander.
if you come to a period after the war, I . 1123. Yes.And therefore makes more
can quite see that there may well be value acute the question as to how many other
in the suggestion that you have mentioned people there might be influenced by the
(which, of course, we have heard of before) acceptance of an office of a non-political
that an Afl&rmative Resolution by the kind. I suppose that was the sort of point.
House would carry with it the open assent 1124. That is the point. I am not quite
of everybody instead of it being, as it is clear as to what the functions of Parlia-
now, a purely executive act. mentary Private Secretaries are?^I will
1119- I have not made myself quite plain. give you my own impressions, if you like,
I was really referring only to the period but I do not know that they are of very
of the war, because I had imagined that special value. During the time I was a
certification would be dropped altogether Minister in the House of Commons, I was
after the war. I v/as asking you whether always served by a Member of the House
you could make any comment on the who was a friend of mine and was a Private
suggestion that we might include such a Secretary, and I am deeply thankful to
suggestion in our recommendation for war every one of them. I really cannot think in
time, as we are invited to do?I had not my own experience that they felt themselves
understood that. I think, if you do not thereby " nobbled . One of my Private
mind, I would sooner not make any observa- Secretaries was Mr. Alexander Shaw^now
tion on that. Lord Craigmyle^who made one or two very
Chairman. vigorous contributionscertainly I never
1120. If I might say so, I think it might asked any of them or sought to ask any of
be difficult for us, too, if we got any them how they shuld act. I suppose this
expression of opinion from a Member of the is a fair statement: I do not think under
Government?-VI really could not make any the existing system the Parliamentary
comment. Private Secretary vrho -votes against the
Mr. Mander. Government would fail to be noticed. . I
should think it would be rather that sort
1121- There is really only one other of discipline which the Whip employs than
point, and that is whether you give us anything else. The other thing is that he
your view as to the position and functions quite manifestly ought not to make
of Parliamentary Private Secretaries which, speeches on matters using information
according to.the Press, have been elevated which comes to him because of his special
in importance during recent times; and position. I myself have more than once
there seems to be a suggestion that they said to a man who was a Parliamentary
are, if not Ministers, something rather Private Secretary that I thought it was in
closely linked up with them and that the his own interest to keep entirely free of
Government are increasing their power and whatever tie there might be because it might
patronage and control of the House by the be that it would rather hamper his Par-
existence of these Parliamentary Private liamentary work. I think that was good
Secretaries. What was your experience in advice in the case of the person I am
the Hoi^e, if I may ask, as to whether they thinking of. That is the way it has worked
were expected to vote with the Govern- in my experience. At the same time i
ment?k^ould they speak just as they am bound to say that I quite under-
liked, or was there some sort of tie to the stand the resLSons why some good parlia-
Government?If the Chairman thinks that mentarians are concerned at the very long
a proper matter, I am not . , . row of Private Secretaries that now exists.
I do not think anything of the sort existed
Chairman. when I first came into Parliament except
1122. T am not quite sure about it. But as regards the most important Ministers.
I thought we could leave you safely to
make such answer as you might think right Chairman.
in the circumstances. I ought to say that 1125. I am sure it did not. Even in
I have ruled the question of dealing with my time, which was twelve years later
Parliamentary Private Secretaries as out of than yours, the number of Parliamentarv
order under the Terms of our Reference. Private Secretaries was very much smaller,
It is outside the Terms of our Reference. and they were very much less known and
We cannot help considering, if the question less used.I do not think there was any
is brought up, how far the present system particular Bench they sat on. That is
of Parliamentary Private Secretaries affects my impression of the days of Mr. Asquith,
the position of the Ministers whom they quite clearly. I quite understand this feel-
serve and who are appointed; but that ing of concern which so many people have.

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 no MINUTES OF EVIDENCE TAKEN BEI^ORE THE SELECT COMMITTEE

19 June, 1941*] The Rt. Hon. the Viscount SIMON, [Continued,

* G.C.S.I., G.C.V.O., O.B.E.

You cannot altogether exclude the reflec- when you spoke of a patron asking for an
tion that in the French Parliamentary sys- assurance of abstinence from politics, for
tem, or what used to be the French Par- instance, that you would hot be advising
liamentary system, each Minister had his the patron to commit the sin of simony?r
own cabinet, and each luminary had round I ought to know that, of course, but it is
him a certain number of satellites, some not uncommon when appointing to a living
of them perhaps lournalists, some of them, and this is my experience in my present
I think. Members of the Chamber an(l offleeto ask for assurances of certain,
some of them perhaps just energetic friends, kinds. Generally speaking, it is desirable
with the result undoubtedly (and I have that a parish that has been accustomed to a
seen the thing, as it were, at a certain service of a certain order should not suddenly
distance at work in recent years) that you have thrust upon it a clergyman who takes
did get each' Minister with his gang of quite a different view of things and prob-
out-and-out backers. Nothing of that ably quite- horrifies his parishioners; and it
sort exists in this country, and nobody is a usual thing quite informally to see
imagines that it could exist. Public that inquiries are made as to the kind of
opinion would resist it; but at the same ritual w'hich the proposed candidate would
time that is what happened in France. think it right to adopt. He is not told
On the other hand, I myself do not see what particular kind would be approved,
how you could very well expect a Minis- but he is asked what he would like to do.
ter who was very busy to fail to make They write, and you have that in mind
use of a gpod Private Secretary. when he mentions it. I think there are
other cases where you make it plain that
Mr. Mander. ' you appoint him because he has given you
1126. Does that apply to an Under- an assurance of so and so. If he is an
secretary?It is not the same thing, and honourable man his assurance is quite
nobody knows that better than you do. enough. You do not want to make a con-
To a Chancellor of the Exchequer if in the tract with him.
course of the morning he really must see 1133. I should like to follow up the point
a Member before the House meets, or he Mr. Maxton made about the lawyer who
really must explain to somebody <else why makes money out of briefs, and so on. I
he cannot give an answer until to-morrow, understand your view is that in the case-of
and so on, it does make an enormous dif- a barrister who is on a list which is kept
ference if he has somebody who is a good under the Attorney-General's eye or the
fellow and knows every^body and will go Lord Chancellor's eye, or under the eye of
and help about it. a Department, although he knows he does
1127. But I mean is it necessary for an get briefed occasionally from one or other
Under-Secretary to have a Parliamentary Minister, that does not constitute an oflSce
Private Secretary?It is not for me to say. of profit under the Crown?I certainly
I had not one when I was Solicitor-General. thiii it does not.
1128. I quite appreciate that the Foreign 1134. Suppose a man is not a lawyer but
Secretary and the Chancellor of the Ex- is a physicist and simila'dy in on a list
chequer must have one?^Whether it goes which is occasionally consulted by a
too far, I do not feel I ought to say. Government Department, or he is on a
Mr. Pickthorn. panel which is used for advisory purposes
by a Government Departmentwould that
1129. * I am afraid one or two
constitute anofoffence
the ques-
of profit under the
tions I want to ask are rather antiquarian, Crown?I think not.
but perhaps the Lord Chancellor will forgive
me. Were you speaking advisedly when Mr. Maxton.
you said that Justices of the Peace had 1135- Will you allow me to interrupt for
always been unpaid?No, I was not speak- a moment? Supposing the man were called
ing advisedly. I may very well be subject Standing Counsel (I think I am using a term
to correction on that. I did make some I have heard) to so and so. Would that
inquiry, but it was a rather casual one. It make a difference?^There is a rather
is not for me to ask questions, but may I famous instance of it. Very likely Mr.
know whether there is some reason to think Pickthorn, being the Member for the
the contrary? University of Cambridge, knows better than
1130. My impression was that there was a I; but Mr. Forsyth I think was the Member
time when they were paid. I thought pos- for Cambridge?
sibly you .might know when they stopped
being paid?I do not know. Mr. Pickthorn.
1131. My impression is that there was a 1136. Yes?He was a most distinguished
time when they were paid?I think I could lawyer and was Standing Counsel to the
carry it to this length, that certainly at India Office. I think on the matter being
present they are not even paid their ex- investigated it was decided that he was
penses. thereby disqualified from being a Member
1132. If I may re-introduce a pleasant of Parliament. I did not remember a
word that you introduced, are you sure, case when you asked me the question
* See Appendix 6. just now. I could not recall any case

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 ON OFFICES OR PLACES OF PROFIT UIJDER THE CROWN

19 Juiie, 1941.] The Rt. Hon. the Viscount SIMON, {Continued.

G.C.S.I., G.C.V.O., O.B.E.

of a Standing Counsel to a Govern- House of Commons Committee might act

ment Department being a Member of
Parliament. I have never known of such a
case. There are people who are Standing
Counsel to the Admiralty, Standing Counsel
to the Treasury, and so on-^ I think that
must be the reason, that it is felt that if
they are Standing Coupsel it is something re-election' limits the Prinie Minister. The
in the nature of an ofi&ce of a more or less
permanent kind.
1137. Do you think with the development
under modem conditions of Press relations,
and so on, personseither newspaper pro-
prietors or journalists^having such
continuous, and remunerative in one sense,
contact with a Government Department
they might be argued to hold ofiftces of for the fact that that is a desirable sort
profit ? Supposing there is a journalist who
continually finds himself given information
and/or fees by a particular Government wanted for Ministerial positions would be
Office might there conceivably be a point
at which that was held to be an office of majorities?Gladstone was prepared to
profit?I have a little difficulty in appre-
ciating the case. Would not the journalist many places and fought like a tiger. I do
in the case supposed get his remuneration
from disposing of his news?
, 1138. I had understood it could happen
either way?X have never come across that.
I feel confident as a practical matter that
you can only get the conception of office
satisfied if there is something of a fairly
definite and permanent character involved
in the remuneration.
1139. The last thing I should do would be
to argue with you about this, but it has
been held, I think, that a scientist put upon
a panel as a physicist, say, when he is
consulted, which may be four or five times
a year, and he will get three or four guineas
is holding an office of profit?Has it?.
1140. I think so. It certainly has been
argued. The reason that it might be so
held has certainly been used as an argu-
ment?I do not know. I must say that
I think the decision in Doctor Forsyth's
case was a pretty severe one because really
to be Standing Counsel to the India Office
is hardly a livelihood. I have been Stand-
ing Counsel to the University of Oxford,
and the amount of work you have to do
for that is extremely limited. It merely
means that if they do want anything they
will come to you.
1141. May I go back to the case of the
Reverend Horne Tooke. If I may say so
with .respect, I entirely agree with you
that the reason for excluding the clergy
was not the office of profit reason; it was
that they belonged to a different society?
That was the original idea but I have
the impressionand there was a Com-
mittee, of course, over the Horne Tooke
casethat at that time the reason of profit
of office was urged. .
TT42. It was urged by the Committee.
That is the point I was coming towhether
there might be a dangerous analogy be-
tween what a House of Commons Com-
mittee did then and the suggestion that the strong observations that Mr. Gladstone
in future in the same way?You must
remember that Horne Tooke was an un-
popular person, and it was war time.
1143. Is there*'any thing to be said for
the view about the re-election point. You
put the point to us that the demand for
Prime Minister might choose a bad Minister
if he had a 10,000 majority rather than a
man who had only a 500 majority?^The
supply is^ greater than the demand. When
consulting the Chief Whip I think he would
point out that it was rather a dicky *
seat.
1144. Is there not something to be said
of thing because Party organisations would'
take care that persons most likely to be
given the seats where there would be large
take his life in his hands and he went to
not think he was any the worse for that.
Mr. Charles Williams.
1145. Am I right in saying that through-
out the whole of .your official career you
have always found it very irksome having
to deal with irksome cases put before yotf
that is my impressi<m of your evidence
and you would like ro see the whole thing
definitely cleaned up by some new method,
such as you have mentioned just now, and
that there are really many doubtful cases?
^That is what I wpuld like to see, but I
must not exaggerate or romance about my
personal experience. It is. quite limited
to the time when I was Attorney-General,
which w'as a matter of three years.
1146. You must have heard discussions?
^Yes, I have heard discussions on endless
occasions. It does arise and I think it is
a very great hardship to the Member who
has to make this doubtful decision.
1147. If it were possible in any way to
have some form of rules and, say, the
Speaker might, in a doubtful case, be there
to appeal to and then possibly have a Select
Committee, there might -be some way out
of it on those lines?I think so. If you
take the case of Mr. Gladstone, when he
added the position of Chancellor of the
Exchequer to the position of First Lord,
I think he was in a cruel position. He had
enormous responsibilities to the whole
country. There it was. He could not find
out whether or not he had to fight an elec-
tion. He was quite willing to fight an elec-
tion if he had got to do it. Was he a
Member or was he not? No human being
could tell him.
Mr; Pickthorn.
1148. That was a deterrent from holding
both offices?Mr. Childers in his
reminiscences, I recall, makes some rather
4

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 II2 MINUTES GF EVIDENCE TAKEN BEFORE TIffi SELECT COMMITTEE
10 June, 1941.] The Rt. Hon. the Viscount SIMON
G.C.S.I., G.C.V.O., O.B.E.
should not have taken the second of&ce.
It may perhaps be observed that Mr.'
Gladstone did not invite Mr. Childers to
take it.
Mr. Charles WiUiams.
1149. In your experience of the House of
Commons, do you think that the executive
of the day has a greater power over the
private Member than; say, 25 years or 30
years ago, or do you think the ordinary
Member has been able to retain his inde-
'pendence?^It is very flattering to.be asked
such a question. Looking back, although I
was in the House of Commons for a long
time and was first elected in 1905, the
periods in some respects were exceptional.
In the first Parliament^the 1906 Parlia-
ment^the Liberal Government were in such
an enormous majority that nothin'g could
possibly have happened to upset them.
When you are in that situation, though you
may be annoyed with people for criticising
you who are supposed to be your supporters,
it does not hurt you as much as though
your majority was small. If you were to
take the earlier Liberal Parliament when
the majority was quite smallI was a
schoolboyI imagine the situation was
quite different, for every man had to be
watched night and day to keep him on
the right line or else the Government would
have been defeated. In a less degree that
was true of the second and third Parlia-
ments I was in, the one in 1910 and. on to
the war. I think a good majority was 146,
V something like that. You can afford
have a little kicking over the traces when
you have a majority of 146.
Mr. Mander.
1150. It was 120?^Thank you. I had
forgotten the number. Then came the war.
Different kinds of influence then worked to
give the Government a majority which may
very likely be 400 to 3 or something of the
kind for considerations which are not Party
considerations. Then we come to a period
which many of you here know just as well
as I, and you can judge. I think on the
whole there has been some increase in the
effective influence of the Government over
the House. Of course it is constantly
stated^but I believe it to be historically
quite untruethat you had Party Govern-
ment in the strict sense much earlier in
this country, in the sense that there was a
definite body of people who went in and
out. I do not think that is true. There
were one or two occasions when you got an
opposition which was developed, but in the
18th Century people joined or- left Govern-
ments very often without much regard to
their political associations. You had Pitt
and Fox opposed, and Pitt and Fox in the'
same Government, and that kind of thing.
So I myself have not had a period which
has shown this very clearly, but my general
impression is that the authority of the
Government has grown. It has grown in
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
[Continued.
its management of business. The Irish
Members, though there were only 80 of
them, had an enormous power in Parlia-
ment because there were no modem rules
of closure, and they could kee]^ people up
not only all night, and all day, so long as
they liked, and nobody could stop them.
All the machinery which exists, that the
Question shoud be put without discussion
suspending the ii o'clock rule or .moving
the closure is modern, and it is bound to
tend in favour of supporting the Govern-
ment.
Chairman.
1151. I think I am bound to put in a
sentence there. You must bear in mind
the question whether it .is the Government
or whether it is the House?I have heard
you make that ruling many times, and I
accept it literally but I think if the Chief
Whip and the Prikne Minister did not
want the closure adopted it would be very
difficult to get it.
Mr. Pick thorn.
1152. A really big majority in the House
does not necessarily mean that the House
is less independent?I think it tends to
leave a number of people taking a very
free run. Everybody knows that there
are a number of Members who are very
bold so tong as they are certain'^the Opposi-
tion will fail.
Chairman. In the 1919 Parliament the
recognised sport of the time was to defeat
the Government which you were supporting.
Doctor Peters.
1153. I think there are only two ques-
tions left to me, and one is with regard
to the form of the Bill. Have you any-
thing which you could say to us to guide
us as to the form^bearing in mind the
draft Bill of Mr. Pulling's, which is more
or less a consolidating measure? Judging
from your evidence, if I am, judging it
aright, I take it you would want something
rather different from that?I know Mr.
Pulling's document; it is a miracle of com-
pleteness and ingenuity. It is reproducing
in the most acute and accurate way the
effect of all the existing legislation.
Chairman.
1154. And all the doubts and uncertain-
ties?^Yes. All the existing legislation is
an extremely complicated and cryptic busi-
ness. It is not perhaps for me to say so
but if within the labours of your Committee
there came proposals which were more in
the nature of a clean sweep and then some
plain definitionsI do not know whether
that is possibleI should have thought
that it was very much to be preferred. I
should like to see a pit dug and all thi.''
ancient stuff buried. May I make one other
observation in answer to Doctor Peters,
and it is this. Without having thought it
 ON; OFFIGES OR PLAGES OF PROFIT UNDER THE GROWN 113

19 Jitne, 1941.] The Rt. Hon. the Viscount SIMON, [Continued.

G.C.S.L, G.G.V.O., O.B.E,
" __ i

all out very elaborately I had rather sup- discretion is exercised really is by salary.
posed that it would be possible either to If you say that only Members of the Cabinet
make a list of the offices which do not dis- shall receive such-and-such a remuneration,
qualify or of the offices which do disqualify, ' and if you have a further Schedule, as you
whichever is the more practicable of course, have in that Bill, which gives a second list
and add to that some provision for dealing of everybody who got smaller remunera-
with doubtful cases, thereby getting a code tions, there will be a very effective Parlia-
which people would either be in or out; mentary challenge if anybody attempt^
but I trust that Queen Anne will be really to make another dozen Ministers without
dead. any cause. Is that not so?
1155. Buried- as well as dead?^Yes; 1157.
buried ss well as dead. 1 having, looked recently and they are tricky
' Doctor Peters: Bills.
1156. The other point is as to the num- Chairman.
ber of Ministers that may or may not be 1158. We have a Memorandum* from Sir
appointed from time to time and with or Gilbert Campion which gives these figures
without Portfolios?There was a time the particular number of different classes of
when I felt confident that I knew some- Ministers finishing up with 15 additional
thing about it, but it is a few years ago. Parlianlentary Under Secretaries. That
It was the Ministers of the Crown Act, makes the total allowed in the House of
1937. I was responsible for it when I was Commons 81. The Memorandum comes in
Home Secretary. You need to look at the that way. There are numbers of limits?
Act rather closely to summarise the effect It is done by the process of limiting the
of it. I do not think, if my memory is number of different classes of Ministers in
right, that you get from the Act that Uiere -the Commons. I think there is a provision
can be only x " Ministers.. My recollec- that there can be 8 Secretaries of State
tion is that you get a Schedule which names although not more than 5 can be in the
a series of Ministers^the Chancellor of the Commons. I do not think there' is any
Exchequer, the Secretary of State, -the limit at present by law for the making of
President of the Board of Trade, and so additional Ministers in the House of Lords.
on, and then you provide, apart from their 1159. No, there is not. It is only in the
salaries, that there shall not be more than Commons. The Government may be many
so many Secretaries of State in the Com- hundreds, but the limit is in the Commons.
mons. You do not, I think, in the measure That is quite right. Thank you very much.
say expressly that -there can be no more Lord Chancellor. We have shown our
Ministers of the Crown than those there appreciation of your coming here by keep-
named. You have probably looked at the ing you so long?^Thank you very much
Statute since I have, but I think that is for your kindness. I will see that these
right. You could of course do that: you notes of mine are edited a bit and I will
could say that there shall not be more give the Clerk to your Committee tho
Ministers than x,* because the House of chance of circulating this. I will also get a
Commons could always pass an amending copy of the form on which application is
Bill when there was some new Department made for the Chiltem Hundreds.
that must be set up, and make it x plus i;
but I think the practical way in which * Appendix 2, Table of Ministers.
{The WiUiess withdrew.)
Adjourned till Thursday next at a quarter past Twelve o'clock.

THURSDAY, 26TH JUNE, 1941.

Members Present:
Sir Dennis Herbert in the Chair.
Sir Cuthbert Headlam Capfyin McSwen
Mr. Neil M-clean. Mr. Noel-Baker
Mr. Mander Dr. Peters s
Mr. Maxton Mr. Pickthom
Mr. Charles Williams.

The Right Honourable Sir PERCY HARRIS, Bt. (a Member of the House)
called and examined.
Chairman. your very interesting *Memorandum?
There is just one point on that. I do
1160. We are very pleased to see you,
Sir Percy. I feel -sure everybody has read Not printed.

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 II4 MINUTES OF EVIDENCE TAKEN BEFORE THE SELECT COMMITTEE
26 June, 1941.] The Rt. Hon. Sir PERCY HARRIS, Bt., M.P.
not know whether I made it clear, but I
had generally in mind the position after
the war rdther than during the war, I
do not know whether you realised that
when reading my statement?
li^i. I was going to start the proceed-
ings by telling you that^we are quite de-
'finitely working on the lines of splitting
our investigation^ and our Report into two
parts. The biggest part, of course, in
volume at any r^itebeing the question of
normal times, the second part dealing with
the emergency period quite separately. I
will go through your Memorandum with
youthere are one or two pointsand if
you will bear that in mind I shall direct
ray questions accordingly. I have nothing
particular to say with regard to the first
page. With reference to what you say on
the top of the second page, I think I am
right in saying that you have no wish to
re-introduce the old idea of re-election of
Ministers?I am very much against it, in
the light of experience of the past.
Although in principle it was sound, in prac-
tice it worked in an unsatisfactory way.
1162. I think there is nothingon the re-
mainder of page 2, except that 1 am much
obliged to you for putting in some figures,
which I think we are working out, as to
the increase in the number of Ministers.
From 30 Ministers in the House of
Commons (I do not care how many
or how few, so to speak, were in
the House of Lords) in 1891 the
figure had risen to 46 in the Second
National Government of 1931; then you
come to the Chamberlain Government of
1940, and that gets us into the emergency
period?Quite. Then, in Mr. Churchill's
present Government the number has ex- -
panded to 67.
1163. All that gets into the emergency
period, so for the moment I will leave that
out. But prior to what we may call the com-
mencement of the emergency period^that
is tc say, a little time before the actual
outbreak of the warthere had been, over
a quarter of a century and more, a rather
steady increase in the number of the Minis-
ters in the House. I believe I am right in
saying that there is an actual limit at the
moment, but I take it that you would not
think that 50 or, perhaps, even 60, would
be an unreasonable limit to put on the
number of Ministers who could sit in the
House of Commons. That would be one-
tenth. I will come to the question .of the
Pa-^amentary Private Secretaries later.
Leaving,them out, I take it you would not
think 50 or 60 an unreasonable limit?
I would not like to commit myself, I had
not actually turned over in my mind what
should be the limit of numbers. I think
that ought to be carefully considered by
the Committee. I think there should be a
limit. In principle there should be a limit.
1164. Without committing my col-
leagues, I think we are probably all agreed
on that. Speaking for myself alone I had
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
[Continued.
in inind that 50 would have allowed a
margin before the present emergency
period, and that at any tate 60 might be a
figure which we could look forward to as
one which need* not be disturbed for at
least a generation or more after the war.
We have 612 effective voting Members of
the House of Commons, so that it would
be under one-tenth?It 'seem to me a
reasonable proposition. I had not actually
made up my ndnd as to what the right
figure should be. It was more the principle
I was advocating.
1165. Quite. Then there is a point I
wish to get quite plain on page 3. You
say nearly every Minister now has his
Under-Secretary I think I am right in
saying Under-Secretaries are included in
those figures of Ministers to which you have
just referred?Yes.
1166. I just wanted to make it clear
that that was so. Then you get to the
Parliamentary Private Secretaryquite a
different person. We" have been very much
alive to the difficulties before us in regarji
to that particular person?Of . course we
had the. Prime Minister's' statement yester-
day on the subject. He established a prin-
ciple that I rather feel, that as the Parlia-
mentary Private Secretary has access to
papers in almost every caseI believe I
am right in saying that^he ought to be
regarded as more or less, I will not say part
of the Government, but tied particularly
to the Government in the way that the
ordinary private Member is not. He loses
some of his independence.
Chairman.] The first point which oc-
curred to us over it was the question
whether the Parliamentary Private Secre-
tary could, in any circumstances, come
within our Terms of Reference, in that he is
not only not appointed by the Crown but his
appointment is really entirely informal and
unofficial, and it is unpaid.
Mr. Maxton.] The appointment is
gazetted, is it not?
Chairman.
1167. No, certainly not. It appears in
the Press, which is quite another matter.
It is not gazetted. He is not recognised
officially. For reasons which you set out
here so fully. Sir Percy, we must consider
his position, because one of the very im-
portant principles, which is of the essence
of our inquiry, is the question of the powers
of control or influence in the House exer-
cised by the Executive Government. You
go so far as to suggest in your Memorandum
that there should be a limit to the number
of Parliamentary Private Secretaries per-
mitted. You suggest that although the
Parliamentary Private Secretary is a very
useful and justifiable person to some of
the Ministers of higher rank, it is unneces-
sary for Under-Secretaries to have one.
Do you, on consideration, see any way in
which we can possibly prevent the existenceV
 ON OEFIGES OR EBACES OF 'PROFIT UNDER THE GROWN
26 June, 1941.] The Rt. Hon. Sir PERCY HARRIS, Bt., M.P.
of a Parliamentary Private Secretary un-
paid? IViay I put it to you in this way :
Could you possibly stop any Member of
the Government irom going to a friend
of, his, an independent Member in the
House, and saying: Look here,I want
you to come and help me. I want you to
go and interview Members for me* a-od
things of that kind"?I do not think
that is an insurmountab>le difficulty. 1
think it^would be satisfactory (and I think
it is rather the feeling of the House) now
that the position of Parliamentaty Private
Secretary has become so established (far
more so even in my time; it is far more
established than it was, say, 20 years ago)
^ to regularise his ppsition and make it clear
that, although he is not paid, he has a
definite status. Certainly the House of
Commons regards him as having a status.
I know if a man is appointed a Parliamen-
tary Private Secretary, we usually con-
gratulate him, and regard it as a first
stepping stone. I think it has generally
been accepted (it has rather been departed
from during the past few months) that he
has become intimately associated with the
Government.
i
1168. Have you considered anofhei pos-
sible view of it, that if his position \(^ere
to be regularised (if I may use that word) in
the way you suggest, he would be getting
an officially recognised position which he
has not at the present time?I think on
the whole it would be an advantage. After
all, a great deal of our law is unwritten;
our constitution is largely built up on cus-
tom. The Parliamentary Private Secretary
has now become part of our Parliamentary
system. His appointment is announced m
the Press, and it appears in the Parliamen-
,tary Gazette. It does not appear on the
official records of Parliament.
1169. You say that it appears in the Par-
liamentary Gazette, but that cames no
more weight than the Daily Mail," the
Daily Express," or any other newspaper?
^No, I quite accept that. I do not wish
to suggest it is official. It is unofficial; but
it is recognised by custom in the* House.
His status is accepted. He does a lot of
valuable work. I knov^ that in many,
many cases I prefer to wrife to an efficient
Parliamentary Private Secretary than to
either the Minister himself or the Under-
secretary. I think all of us have that ex-
perience. He is part of the custom of the
House; let us recognise him. I feel we
ought in some way to regularise his posi-
tion. I think it would be a misfortune to
do away with himlet us put it that way.
If Ministers were deprived of their Par-
liamentary Private Secretaries in all cases
they would be the poorer. That does not
say fhat every Minister should have a
Parliamentary Private Secretary.
1170. Perhaps I may put it in this way
that you think that, although he has no
official existence at the present time, he
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
IIS
[Continued.
has such a, very definite and recognised tin-
official position that his position ought to
be recognised and regularised?^Yes, pos-
sibly by a statement of the Goveniment.
I think that would probably meet the case.
I am very much against written rules and
regulations. I think it would perhaps
cramp his post; but if the. Government
would recognise him and the House of
Commons, specially through the medium of
the Select Committee, that would meet
the case.
1171.
rather than by anything elsecustom and
convention?^Yes, dustom and convention.
T172. You would wish that such a custom
or convention should be established. No
doubt an announcement on the part of the
Government would be sufficientand their
acting upon it to begin withto the effect
that certain Ministers should be allowed a
recognised Parliamentary Private Secretary
and others should not?Quite. That puts
it very well.
1173. That would still, I think you will
agree, not prevent one of the juniors, who
was hot permitted a recognised Parliamen-
tary Private Secretary, from getting some
friend of his in the House to give him ih-
formal assistance, in the same way as the
Parliamentary Private Secretary originally
came into existence?As we become senior
Members, we have somebody who works
in with us; even Mr. Maxton sometimes
has somebody lending him a hand. You
cannot stop a Minister from having an
informal frjend.
Chairman.] I think we have youY view
on that now quite clearly.
Mr. Noel-Baker.] I should like to put
some considerations to Sir Percy later on on
that point, unless you would like me to deal
with them now.
Chair rnan.
1174. Perhaps I may finish going through
the Memorandum first. At the bottom of
page 3, you are getting again into the emer-
gency period, and possibly I may just put a
question to you on that. More than once
in your Memorandum you draw attention to
the danger of not being able to get rid
of things which are done, to which you
do not object in the emergenpy period.
You say they take a lot of killing," that
is one expression of yours, when the emer-
gency is over, and you indicate a fear that
things which are done in an emergency
period with justification might be used
without such justification as precedents for
a normal period afterwards. That is really
the burden of what you have to say?
I go even a little further. I am inclined to
think tliat after the war we shall be faced
with very difficult and complex problems
almost as difficult as the problems with
which we are faced during the war. I
very much doubt whether, at any rate in
the year or two after the blessed day of
 Il6 MINUTES OF EVIDENCE TAKEN BEFORE THE SELECT COMMITTEE
26 June, 1941.] The Rt. Hon. Sir
the Armistice (if one can think of such
things) there will be a large decrease in
the number of Departments. While some
may go other new ones may very likely
crop up.
1175. You think there will be a decrease
immediately?No, I say I very much
doubt whether there will be. While some
may go other new ones may appear. We
may be faced (and I gather you are con-
scious of it) with a Government of a
permanently expanded size.
1176. Or at any rate there would be a
great likelihood and a great tendency of
what I call the emergency period being
extended beyond the war to cover a
recovery period?recovery period. It
will bring new problems which will require
new Departments. The question is
whether all these new 'Departments should
have a Minister in the House. I put
forward a constructive suggestion later on.
I give the analogy of the Assistance Board.
I think the House of Commons rightly
insists that every Department should
have a Minister responsible for the Depart-
ment to the House. I am very keen on
that principle being established, but it does
not mean that every new Department
should have a Minister sitting in the House
directly responsible, so long as there is
a superior Minister able, and in a position,
to answer. I mention as an exaniple the
Ministry of Shipping Take the Petro-
leum Board. It may.be necessary, owing
to difficulties with regard to petroleum, to
have somebody equivalent to a Minister to
be responsible for the administration of
petroleum. Instead of his sitting in the
House he should be responsible to another
Ministersay the President of the Board
of Trade, or the Secretary for Mines, as
the case may be.
1177. I certainly have very clearly in
my mind (most of my colleagues have, I
think) that, in considering the limit on
the number of Ministers, we ought not to
allow whatever limit we choose ultimately
to recommend to be objected to on the
grounds that business requires so many
more Departments ? Quite.
1178. Because the answer to that is that
in the past we have had Government
Departments which have been directly
represented by their ov/n Minister in the
Lords alone, and in the Commons arrange-
ments have been made for one of the other
Ministers in the House to answer for a
Ministry which is , not his Ministry; and
therefore if the number of Government
Departments is to be increased that is no
reason why the number of Ministers in the
House should be increased?I do not like
the ideaI have not put it down here, but
I have had it in mindof accepting the
principle, especially if you are going to fix
a maximum number of Ministers, that the
Government must always make the head
of a new Department or section of work a
Member of the House of Lords. I think
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
PERCY HARRIS, Bt., M.P. {Continuedt
that is wrong in principle. It would
enable the Government to get round the
desire of the House to limit patronage by
multiplying the number of Ministers sitting
in the other place; and perhaps the other
place might have something to say about
it, too. Of course that has been the way
out in recent years. If a Minister is not
quite a success in the House of Commons
as a debater, they put him in the House of
Lords. If they want to make a new
Department and the right man is not avail-
able in the House of Commons they pick
out some business man and make him a
peer. I do not think that is the right
solution. There are cases where it is justi-
fied, but I think it would be a pity for*
this Committee to suggest that, while the
number of Ministers sitting in the House
should be limited, if the Departments are
multiplied the number of Ministers should
be increased by adding to the number of
Ministers sitting in the House of Lords.
I just put that point
"^1x79. I hope you did not think my
remark just now was intended to mean
that any Minister who was shut out of the
House of Commons, should necessarily go
to the House of Lords?I do not think
it would be a bad thing for your Committp
to consider that point and deal with it
in their report, because there is a growing
tradition where you have to organise a new
Department and bring in an outside person
that automatically he should be given a
seat in the other place.
1180. If there is no room for him to
have a seat in the House of Commons that
is no reason why he should have one in the
House of Lords?I think we are agreed.
1181. What we want^I take it it is your
view and probably ours^is that there
should be somebody in the House of
Commons whose business it shall be to
answer for the Department?Yes. That
puts it very clearly.
1182. I come on page 4 to the para-
graph to which you referred just now deal-
ing with ^ such bodies as the Assistance
Board which is not directly answerable to
Parliament?I quote that merely as an
example. I do not want to go into that
controversial _ point. I do not think it
would be desirable here to say whether the
Assistance Board should be dependent on
or independent of Parliament. That is
rather a big issue. I gave that as an
example to make clear what was in my
mind.
1183. I was going to interpose the
remark there that no recommendations
which we could make, and no action taken
on our recommendations within our Terms
of Reference, could interfere with Parlia-
mentnot merely the House of Commons
but Parliamentsetting up by an Act of
Parliament some body which, under that
Act, should be expressly excluded from re-
presentation in the House of Commons.
What you want to urge as fp,r as possible
 ON OFFICES OR PLACES OF PROFIX UNDER THE CROWN
- -
, 26 fune^ 1941.] The Rt. Hon. Sir PERCY
1 take it is that generally speaking any
administrative Department of the Govern-
ment should have a Minister in the House
of Commons whose business and duty it
would be to answer for that Department?
Quite. That is the principle I wished to
establish.
1184. Necessarily within the terms of any
Act of Parliament creating that particular
Department ? Quite.
1185. Page 5 deals with the posts which
involve absence from this country. There
again, we come to the emergency period.
I should imagine there is not likely to
be any great difference of opinion between
us^between the Members of the Commit-
tee themselves or between you and the Com-
mittee^that these particular appointments
are justified only at the present time by
the emergency period, and the fact of
appointing a man to a post which entails
residence abroad for, a very long time
should certainly disqualify him from Mem-
bership of the House of Commons in nor-
mal times?1 have not put it in my
memorandum, although I had half a mind
to do so, blit i think all Members should
be required to attend to their jobs in the
House pt Commons.
1186. You have put it in?Yes, but I
was going to carry it a step further than
in the memorandum. I think the time
may comeespecially now that Members
are paidWhen they ought to be required,
as is the case in many public bodies, to
sign a book of attendance. They are so
required in the Dominions, and if they are
absent for more than certain number of
days ...
1187. Without leave?^Without leave.
Sickness is always a good reason.
Sir Cuthbert Heddlam.
1188. Does this come within our Terms
of Reference?^That is why I really did not
put it in. I doubt whether it does. But
that is a matter for you to decide. His
absence should be reported to the Speaker
and if no satisfactory explanation is given
he should automatically forfeit his seat.
Mr. Maxton,
1189. Reported by whom?By the offi-
cials of the House. I was 2*8 years on the
London County Council. I had to sign the
book of attendance, and by the rule of that
body, if i was absent for so many days,
any member could call attention to the fact
-of my absence and the seat would auto-
matically be vacant.
Chairman.
1190. It is a very common rule, of
coarse,, in the case of many important
bodies?^Yes. And I believe it is the rule
followed in the Dominions. Of course, it
may be outside your Terms of Reference.
Sir Cuthbert Headlam.] 1 do not think
this is a matter that concerns us in the
least.
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
II7
if I ,
HARRIS, Bt., M.P. [Continued. -,
Chairman,
1191. I am just coming to that. When I
first read what you say at the top of the
next page, I was inclined to say at once:
" This is out of orderthis is outside the
scope of our Terms of Reference." You
will agree I think that that is so, but we
want to interpret our Terms of Reference
with some elasticity: and, like the Parlia-
mentary Private Secretary who is certainly
not enjoying an office of profit under the
Crown but we have to consider his position,
so in the saifie way we shall have to con-
sider, no doubt, the question whether
certain offices are incompatible with Mem-
bership of the House because they prevent a
Member from doing his duty as a Member of
the House. Therefore, to some extent, we
are justified no doubt in considering this;-
but we cannot I think go beyond that.
It would probably scarcely be proper for us
to make, a recommendation in these teirms,
that there should be some statutory obliga-
tion on Members to attend for a minimum
amount of time?Could it be argued
just put it to younow that as we all re-
ceive salaries we are all occupying places of
profit?
1192. No doubt, but I think 1 am right
in saying that we pay ourselves, that the
Crown does not pay us. Am I not right
that Members' salaries still depend upon a
Vote of the House alone, and it is not statu-
tory?It is an interesting point.
Chairman."] It is always a question,
whether we are not robbing the till. I
will not say we." I may say " you ",
because I do not get a Parliamentary salary
as a Member.
Mr. Charles Williams.
1193. May I ask one question on this
point of precedence?Supposing a Member
is a member of a County Council and of
the House of Commons, your position
would be that most certainly he ought to
attend the House of Commons first?
Yes.
1194. Is there any tendency that you
have seen for people to dash off to the
London County Council, to take that as an
example, and neglect their duties in the
House of Commons?I have heard of
Members running across to the other side
just to sign the book and running back
because it is required by the County Council
that they should have a proper attendance.
Perhaps it is rather a bad example, because
you can run across the Bridge. It is
rather a different thing in a remote County
Council.
Chairman.] All that raises very largo
questions. It raises the question of Meih-
bers own private occupations and atten-
dance at their own offices.
Mr. Charles Williams.
1195. You would definitely hold that
Membership of the House of Commons
obliges a Member to be there before any
 Il8 MINUTES OF EVIDENCE TAKEN BEFORE THE. SELECT COMMiTTEE
/
I.
26 June, 1941.] TheRt. Hon. Sir
local authority.?I think that has been
recognised by tradition and custom.
Mr. Pickthorn.] May I raise a question
on what you said? I think the form of
your question contained an assumption that
all Members of the Comraittee'^unanimously
agreed that permission to be out of the
country was justifiable in war time.
Chairman.] No, I am sorry. I said I
thought that the whole committee would be
with me that in normal times a man should
be disqualified if he were appointed to an
ofiSce which took him abroad.
Mr. Pickthorn.] I wanted to be sure that
would be clear on the Shorthand Note.
Chairman.] I should like that to be quite
clear.
Mr. Pickthorn.] In the third line on
page 6 of the memorandum Sir Percy speaks
of enforcing the " statutory duty of atten-
dance ". If this is going to be printed
as part of our proceedings, I think that
is a verbal slip, is it not?
Chairman.
1196. I think it is. It is not a statutory
duty and it never was statutory." En
force the duty of attendance " would be
more correct. That sentence was drafted
for'me by a learned friend. I cannot say
what learned friend it was. I quite agree
that it ought to read enforce the duty of
attendance."
Chairman. It may have been a binding
duty or something of that sort, but it was
not statutory.
Mr. Noel-Baker.
1197. May I ask a question on this same
sentence? I see Sir Percys learned friend
has also said " the House of Commons
should, as on many occasions in the past."
What are the occasions in the past? Has it
ever passed a statute?They used to call
the roll of attendance.
Chairman.
1198. The only remaining part of your
memorandum I think I really have already
dealt with. It has to do with the whole
question of the danger of things which are
done during a period of emergency being
carried over into normal peace times after-
wards. There you are warning us, if I
may put it in those words, that there is
a very grave danger which we should take
into consideration in our report. That is
what it comes to, is it not?^Yes. May
I correct the last paragraph? I refer to
the fact that a citizen depends for the
ventilation of his grievances on his Mem-
ber of Parliament. I did not want to
imply that a Member was a mere delegate.
I think probably it was quite clear to the
Committee, What I did wish to suggest
was that with the expanding activity of
the State it is vital that private citizens
should be able to make contact with their
Members of Parliament
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
i'll. II I . I,I,,
PERCY HARRIS, Bt., M.P. [Continued. '
1199. And through his Member of.Parlia-
ment with Parliament ?~^Exactly.
. Mr. Mander.
1200. With regard to the question of
Parlianaentary Private Secretaries, first of
all, does not your proposal involve this,
that the prestige and importance of the
Parliamentary Private Secretaries is
increased, that th^sy are pushed more in
the direction of the Government itself,
whereas in fact what we want to do is to
discourage any increase in the power of the
Government over the House of Commons.
Is that not a possible objection to your
suggestion that they should be lifted up
a little, though possibly limited in
numbers?^Limit of numbers is one thing.
I do not think you can make a Parlia-
mentary Private Secretary "important
merely by recognising his status. In the
efiSux of time, with the increased activi-
ties of Government Departments, his im-
portance has inevitably increased. I'think
Sir Denis will agree with mehe has
been in the House for a great number of
years-that 20 years ago one never thought
of writing to a Parliamentary Private
Secretary about anything of importance.
I am always doing so now because I find
the Ministers are so busy, with expanding
activities, that if you want a prompt reply
it is often easier and more satisfactory to
write to his Parliamentary Private Secre-
tary. What we do say or not say will
not prevent the importance of the posi-
tion of a Parliamentary Private Secretary
increasing.
1201. Yes, but if you give it any sort
of official recognition you will thereby tend
to increase its importance and status?I
do not for a moment suggest that there
should be an Act of Parliament. I think
that would be most unfortunate. I think
if this Committee recognised the custom
it would not do any harm.
Chairman.
1202. I think you did speak of doing
something by convention and custom, and
said that only certain Ministers should
have a recognised Parliamentary Private
Secretary, although you would agree that
you could not prevent the practice of
something very similar being done by those
who were not permitted an official Parlia-
mentary Private Secretary?^May I put it
this way to Mr. Mander through _you, Sir;
If this Committee recommended that there
'should be a limit to the number of Parlia-
mentary Private Secretaries I do not think
any responsible Government would ignore
such a recommendation. I would not like to
see an Act of Parliament passed. I think
that would be most unfortunate and would
be doing-the very thing we want to avoid.
Mr. Mander.
1203. There is a point arising out of
your interesting suggestion that Depart-
ments should be grouped and that, at the
 6N; OFFICES i&R:M;ACES;0E^?R(iFif^^^W^
.26 /iMe, 1941.] The Rt Hon. Sir
Jiead of some of the^ grouped Ministries,
^there might be individuals who were not
-in eitherHouse. You say in your memo-
xandum: These appointments would be
*on the same basis as those of other
Ministers and would not be permanent."
That meanslet me put it in a way which
Would be most agreeable to youthat
supposing after the next General Election
a Liberal Government were to be returned
to the House of Commons you would, sug-
gest that that Government should then
ihstal its own business,, men as heads of
those extra-Parliamentaiy departments,
and when the Liberal Government came
to be defeated by some other Government
they would then quit office. That seems
to follow from what you w6re saying?
The first thing I am recommendinjg is that
you should limit the number of Ministers
who sit in the House of Commons. At
the same timethink your Chairman
agrees with meit would, not be advisable
tb limit the number of Departments that
were dealing with problems. I give the
example of the Ministry of Shipping.
There might not be any suitable man in
the House -of Commons to deal after the
war with the problem of the reorganisation
dJE shipping. What I am suggesting is
that a person from outside, with a know-
ledge and experience of shipping, should
be appointed by the Government; he should
not necessarily sit in the House, provided
it was made clear that, he would be
responsible to a Minister sitting in the
House who would, be answerable for the
new Department. But I do not want,
and I am very clear about this, necessarily
to see a Department of this character run
by a Civil Servant. Therefore I am sug-
gesting^this is really a little bit outside
the scope of your inquirythat it should
be possible to appoint an outsider. He
would go out of office, it is true, at the
same time as the Government, but if he
were an outside man and was capable, it
would not be impossible for the succeeding
Government to re-appoint him.
1204. I think there is a good deal to be-
said for the project as a whole; but if
those people are to go out with the Govern-
ment it greatly increases the patronage
of the Government that comes in. They
cannot appoint them to seats in the House,
but they can give their friends jobs at
different times. Is there a possible objec-
tion there? Would you not get over it
by making them more permanent?am
now speaking as a Member of the Select
Committee on National Expenditure in this
Parliament and in the last war, and I do
think when Government Departments are
formed to deal with great business problems
if they are going to do it in a satisfactory
way, the Government must have the right
to appoint the best man available. They
should not be limited to Civil Servants.
Sir Cuthbert Headlam.
1205. I do not understand what the
difficulty is, because the Government can
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
PERCY HARMS. Bt.,,M.P. ^Continued.
i '
appoint anybody as ah official, so I do
not see how it arises?^Mr.- Mandei- -is
suggesting that it should always be a
permanent job, and should not. be for the
life of the Government. >
1206. I agree with Mr. Mander that ttie
only possible answer to that suggestion is
that it would enormously increase the
power of the Government to play hanky-
panky with everything if you allowed
officials to come in ahd^ out in that way.
The patronage would' be enormously
increased. However, I do not. think it
comes under our Terms of Reference?
No. It is a difficult issue. If you are
going to bring in outside people, What is
going to be their status? Are they to be
Civil Servants? Are they to be permanent
for the rest of their life, or are they to
be appointed on the same conditions as a
Minister? I think it is a problem someone
will have to consider and study.
. Sir Cuthbert Headlam.1 It settled itself
after the last war.
Chairman.'] For the moment what we
have to be very careful about is to see
that we do not get the Civil Service mixed
up with political office.
Mr. Mander.
1207. There is one other question you
have not touched on in your memorandum,
and that is in regard to the wartime period,
about which I should like .to ask your
views, particularly- as I think you are
the only non-Government Member of
Parliament whom we have had before us;
therefore it is easier for you to say exactly
wiiat you think. We know that when what
I call for short the MacDonald Bill was
passed there was a good deal of feeling in
the Souse with regard to it, and one of
the reasons why its passage was eased was
because it was announced that this Com-
mittee was going to be appointed and the
Committee would have an opportunity of
making recommendations covering not
only the peace time period, but the
war period. That was a late con-
cession. Certainly, therefore we shall
have to make some recommendation
about that. What I would like to
ask you is this. Without going back at all
upon any appointments and Certificates that
may have been given up to the time, in
order to give the House of Commons'some
sort of reassurance and possibly check
would it not be practicable to say that
before any future Certificates were issued,
or before they became ^effective, there
should be an affirmative Resolution of the
House of Commons? The Government
would feel that in most of the appoint-
ments they made if they were justified it
would be purely a matter of form and no
question would arise, but it might make
them pause if they were thinkinglook-
ing at it from the House of Commons
point of viewof making an appointment
which was certainly a little arguable and
difficult to justify. It would make them
 120 MINUTES OF EVIDENCE TAKEN-BEFORE THE SELECT COMMITTEE
26 June. 1941.] The Rt. Hon. Sir PERCY HARRIS, Bt., M P.
hesitate and say; " No, we shall not make
this appointment because we shall have to
face a discussion in the House of Com-
mons." Therefore I am suggesting that
one way to give protection to the House
of Commons' point of view that was shown
during the debates would be to ask for
either an affirmative Resolution or a nega-
tive onethe possibility of a Prayer, or
something of that kind?In war-time con-
ditions, especially in a war of this terrific
scope, it is very difficult to apply ordinary
standards. The fact is that a very large
percentage of the House is absent on public
service, in one of the three Services. You
have that first principle. There are obvious
cases where it would be a good thing to
use the skill and ability of Members 6f this
House. An obvious example is Sir Stafford
Cripps. I am inclined to give a good deal
of latitude to the Government under war
conditions. I think the remedy would
rather be not to insist that there should be
in every case an affirmative Resolution, but
I would rather say that if there is in war
time an appointment that offends the sense
of decency of the House, it is up to the
House to take action, either by calling for
a debate, as they did, or if necessary, per-
haps going through the procedure of a
Prayer.
Mr. Pickthom.'] When did they call for
a debate?
Sir Cuthbert Headlam.
1208. It was on the Second Reading of
the Bill?^Yes, you are quite right; it was.
But we could have had a debate anyhow.
I do not quite like the idea, in the middle
of a war, that with regard to every ap-
pointment there should be an affirmative
Resolution. I have made clear that I do
not like this multiplication of offices, and,
if there is a case where the House feels
strongly, the House can find ways of
making a protest, and would be justified
in making a protest if it felt the appoint-
ment was not justified.
Mr. Mander.
1209. Possibly through a Prayer?Pos-
sibly through a Prayer.
Mr. Noel-Baker.
1210. There are two questions I should
like to raise. The first is with regard to
a reduction in the number of Ministers to a
fixed limit?Rather the fixing of a maxi-
mumnot necessarily a reduction from a
particular number.
1211. Yes, a maximum, which I think
the Chairman suggested might last for a
generation. I am sure you would agree
that that may involve very large ques-
tions of public policy. The B.B.C. method
or the Public Assistance Board may not
apply to many spheres of national life in
which, by the progress of science and civi-
lisation, the State is obliged to play a part;
and, without raising question of Socialism,
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
^Contmued.
which would divide us, it may be plain
that the proper control of things in which
the State must take a part can only be
effective by having Ministers in the House
of Commons. Therefore, is it not difficult
for us to lay down a limit which might
control the actioR of Parliament in that
matter?I think the difficulty can be got
over. I think I made it clear that inevit-
ably there will be more Departments after
this war than probably before this war
certainly than before the last war. There-
fore I suggest the way out is the grouping
of Departments. Let us be realists. There
are many men who would make very good
heads of Departments and run them, but
who would make very bad Parliamen-
tarians, I think I make the point in my
evidence. There are some men equally who
might make very good debaters, who could
defend a Department on the floor of the
House, but who might be bad administra-
tors. I have given one example. I doubt
whether it is wise that this should be
published because it might give offence
to my friend. Lord Ashfield, for whom
I have a great respect and affection; but I
have no doubt that he would accept it
himself. He was very glad to go out
of the House of Commons. I Could quote
other examples of men who were vety
good administrators but not very good in
debate, not very skilful in putting up a
case. I can imagine that my honourable
friend, Mr. Maxton, on the Front Bench
would be an- excellent defender of his
Department and very skilful in debate, but
I doubt whether he would like to be
bothered with the detailed administration
of a Department.
Mr. Maxton.] I do not suppose that it
is a duty of the head of a Department
to be bothered with the details. I have
heard that statement reiterated again and
again about the House of Commons
failure, and the man who does wonderful
things in some place elsewhere. Nobody
sees they are doing them. I do not believe
he exists.
Mr. Pickthom.] Being an extremely bad
debater does not necessarily keep some-
body off the floor of the House.
Mr. Noel-Baker.
1212.
involved in the sentence at the bottom of
page 3, " experience shows that they take
a terrific amount of killing." That will
perhaps divide the Committee on major
policy, because many people think that
after the last war a great mistake was
made because too many Departments were
killed much too quickly. I only wanted
to bring that to the attention of Sir Percy
and the Committee. I want to put two
questions about the Parliamentary Private
Secretary. I regard it as a matter of con-
siderable importanceperhaps because I
have been one. I can only do so if the-

ICES OR PLACES OF PROFIT UNDER THE CROWN
- '
26 June, 1941.] The Rt. Hon. Sir PERCY
Committee and Sir Percy will forgive me
for making a little speech. I want to put
it to you that the change in the position
and activity of the Parliamentary Private
Secretary is not one of an increase of
prestige, but is an inevitable result ox the
increase in public business?I agree.
1213. There is so much more with which
Ministers have to deal that they must pass
on a lot of matters to other people to help
them?^Yes, I entirely agree. I think I
have made that clear from what I have
said.
1214. Yes, but it is not a matter of
prestige but a matter of public business.
The things to which you object are the
result of a very modem and very un-
fortunate tendency which dates from 1931,
and here, if I may, I come to my personal
experience. When I entered the House of
Commons I was immediately asked by Mr.
Arthur Henderson if I would be his Parlia-
mentary Private Secretary, without any
consultation with anybody and he put it
to me in these words: If nothing else
is offered to you that you want to do
instead." While I was his Parliamentary
Private Secretary I ventured on at least
tv/o occasions to x'ote with Mr. Maxton
against the Government. I was severely
reprimanded by the, Prime Minister, Mr.
Ramsay Macdonald, but my own Chief,
Mr. Arthur Henderson, said: "Vote as
you like except about the Foreign Office.
If we quarrel over that no doubt you will
want to leave me." I believe it is since
1931 that the freedom of Vote of the
Parliamentary Private Secretary has been
restricted and that the appointment of
Parliamentary Private Secretaries has
ceased to be a matter of personal choice
of the Minister himself but they are taken
from a kind of list which the Chief Whip
prepares?^It is rather the other way
round, Mr. Noel-Baker, in my view. When
there were not so many Parliamentary
Private Secretaries it was always under-
stood, in the old days, that if you accepted
the position of Parliamentary Private
Secretary, you largely gave up your free-
dom. I think that is so. It is very diffi-
cult to prove, but my recollection is that
in the old days it was considered an
appalling thing for a Parliamentary Private
Secretary to vote against the Government.
There were times when supporters of the
Government did not often vote against
their own Ministers.
Mr. Noel-Baker.'] I was not the only
one who did it. In the 1929 Parliament it
was very much debated.
Sir Cuthbert Headlam.] I have known
several instances where Parliamentary
Private Secretaries have announced their
intention of voting against the Govern-
ment and resigned their job. I think that
1!? the usual practice or used to be.
Mr. Noel-Baker.] Since 1931, or before?
Sir Cuthbert Headlam.] Certainly since.
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
OD3
121
'
HARRIS, Bt., M.P. {Continued.
Mr. Charles Williams.
1215. In 1920, in the Coalition Parlia-
ment, I was a Parliamentary Private Secre-
tary and there was a very clear under-
standing that you practically never voted
against the Government unless it was a
matter of very deep principle or something
personally affecting your Division. Would
^ou accept that as the general position 20
years ago?^Yes, I should.
1216. In other words it has not grown
up in the last 20 years?^No, I think it
has rather lessened. I have been amazed
to seeI am not criticising it; it just
surprised^ me^the Parliamentary Private
Secretary of a Secretary of State sitting
behind bis Minister for part of the day
and crossing the floor and criticising the
Government in the afternoon.
Mr. Charles Williams.
1217. And you never put a Question.
That was absolutely ruled out?I think
perhaps that is going rather far.
Mr. Noel-Baker.
1218. Would the difficulty that you see
be eliminated if the freedom of the Parlia-
mentary Private Secretary were more
clearly established?^I do not see how he
can have freedom, especially when his own
Department is concerned. I Ijave never
been a Parliamentary Private Secretary,
but I think I am right in saying that he
sees the whole of the Minister's box. They
say: " I see the Minister's box; I am
familiar with the papers," and I think
therefore he does lose his independence.
He is in possession of confidential informa-
tion that is not available to the ordinary
Member of Parliament and that is one of
the advantages of being a Parliamentary
Private Secretary. I might perhaps ask
Mr. Noel-Baker to put me wi^e: When you
were Parliamentary Private Secretary to
the Foreign Secretary did not you see most
of his papers?
1219. Yes?There you are. There are
big questions of policy.
Mr. Noel-Baker.] I could not talk about
it, but it did not prevent my voting as I
liked.
Mr. Neil Maclean.] Is a Parliamentary
Private Secretary a place of profit under
the Crown?
Chairma^.] No, it is not.
Mr. Noel-Baker.
1220. May I put this other consideration
of public policy to you. Sir Percy? Your
specific proposal is that Under-Secretaries
should not have Parliamentary Private
Secretaries?^With the exception of the
case where the Minister is not sitting in the
House. To take the case of Mr. Butler,
when he was representing the Foreign
Office, he was certainly entitled to a Parlia-
mentary Private Secretary.
 122 MINUTES OF EVIDENCE TAKEN BEFORE THE SELECT COMMITTEE
26 June, 1941.] The Rt. Hon. Sir
1221. Would it not necessarily diminish
the efficiency of all Under-Secretaries who,
after all, with the modern pressure of busi-
ness, ought to be very busy people, in view
of the fact that there are many things that
cannot be done for a Minister except by a
Member of Parliament, which cannot be
done by an ordinary private secretary out-
side Parliament?1 think with the multi-
plication of Under-Secretaries they really
could do their own work.
Chairman.
1222. I must interrupt for one moment,
because I think this is very important. I
am sure Sir Percy realised what he was
saying, or what I understood him to say.
Did I understand you to suggest that there
might be a Minister out of the House who
would be represented in the House by a
Parliamentary Private Secretary?No; I
did not make myself clear. I meant in the
House of Lords, in another place. I'quoted
the example of Mr. Butler representing the
Foreign Office when /iscount Halifax was
Foreign Secretary. Obviously the Under-
secretary would then require a Parlia-
mentary Private Secretary. I meant that.
It was in another place.
Mr. Noel-Baher.
1223. The only other thing I^ wanted to
put to you \vas this. Is it not Hear firstly
that this is not patronage because it is
very hard work, very often with inadequate
assistance and, secondly, that there is not
the slightest danger of what you suggest on
page 4, that the majority of Members would
be influenced by the Government, because
even your figure of 117 is only 18 per cent,
of the House, and only 30 per cent, of the
majority Party.
Doctor Peters.
1224. There is just one question, with
which we have not dealt at all. I do not
know whether it isquite right to ask you,
but since you had a legal friend to prepare
this, did he make any suggestion to you,
or havfe you any suggestion to make, as to
the actual form that the Bill should take,
as to the exclusion of certain people. I
see at the bottom of page 6 in your M( mo-
randum you say that you quite agree that
a place of profit under the Crown other
than a Ministerial office disqualifies from
Membership of the House of Commons.
You want that vigilancy mamtained. I detail rather than to think about principles,
suppose you take that as a root basis?I
believe you have had evidence from a far
mare distinguished man than myself, the
Lord Chancellor, and I believe some of
these points probably more fittingly could
be, and probably were, put fo the Lord
Chancellor.
1225. I have put them to several wit-
nesses, and I was putting them to you
because you have been in the I-Iouse so long.
I do not know whether you have given
that matter consideration?How to
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
PERCY HARRIS, Bt,, M.P. [Coiitinued.
achieve your purposewhether by legis-
lation or by passing a Resolution of the
House.
1226.
not considered it.
Mr. Charles Williams.
I'll']. On this matter of ventilation of
grievances, obviously on the floor of the
House a Minister cannot ventilate a griev-
ance, but in a representation to a Depart-
ment (we will say in a pensions case or a
case 'of ^ome unfair treatment) does the
Minister suffer at all as against a Private
Member, or would he get any advantage?
I had more in mind absence from the
country. I think it has been argued that
the Minister is in a very strong position to
look after the interests of his constituents.
I do not think I would suggest to the con-
trary. I was rather on the question of
absence from his placeout of the pountry.
1228. Multiplication of Ministers would
not very much hinder representation?
No.
1229. But it would exclude the Minister
being able to put up a case in the House?
The Minister is in a strong position to make
representation to his colleagues. I do think
it is a disadvantage to the constituents to
have their Member in the Government.
1230. And it would not be any dis-
advantage to Private Bill legislation, or
anything like that?^No, I was more think-
ing of the corporate unit of the House of
Commons. The whole democratic system
is personified in a Parliament with control
over the Executive. It is healthy for the
Executive and it is a protection to the
public. If you have a Government in for
a long time they are apt to get slack and
inefficient, and autocratic. There is the
protection that the elected representatives
of the people are there to criticise and to
cross-examine Ministers. That is their
function. If you weaken the House of
Commons by taking too many Members
away from that duty and making them
Ministers the effectiveness ot the House of
Commons must be decreased.
1231. The whole pension system has put
on the shoulders of the House of Commons
a very great burden of work. W -)uM you
say that that work has depreciated from
the private Members capacity to deal with
the bigger and larger questions of policy,
and that the Member is apt to go into
and in that way it has given the Govern-
ment very much more power?I do not
think so. I certainly do not think it could
be said that it applied to this House of
Commons. I have found the House of
Commons quite prepared to discuss abstract
principles and debate them very effectively.
Captain McEwen.
1232. May I put one question? I should
only like to say that 1 confess I do not
agree with Mr. Noel-Bakers contention

ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN
26 /wwe, 1941.] The Rt. Hon. Sir PERCY H.\RRIS, Bt., M.P.
that pre-1931 was a paradisal state, of
Parliamentary Private Secretaries in com-
plete freedom and that only since then
have the regulations become tightened con-
cerning them. In my view they ought to
be tightened up, and the prevailing con-
ditions are reprehensible only in as mucjh
as the rules have slackened. Sir Percy
Harris said the position ought to be regu-
larised. At the same time I understand
you are very much against any form of
written rules and regulations concerning
them. You are in favour of the unwritten
constitution being retained. Would you not
consider that what has already been said
by the Prime Minister on more than one
occasion in the House on this matter is
sufficient as it stands, if attention were
called to it by this Committee, for ex-
ample?I forget for the moment the exact
words of the Prime Minister. I should like
to have them before me.
1233. On at least two occasions in answer
to a Question^yesterday and previously to
one I asked himhe has laid down certain
wide general principles governing the posi-
tion of the Parliamentary Private Secretary.
Would you not consider that that is suffi-
cient?It is a question of method. I do
not attach too much importance to the
method; but I think a recommendation
from a Select Committee appointed by the
House of Commons would have a good
effect to make clear what they think should
be their position. If they could come to
some conclusion I think it might be the
best way to arrive at it rather than, say,
pass legislation or give a fixed status to the
Parliamentary Private Secretary, which is,
I think, undesirable.
Mr. Mander. The Prime Minister did
not say anything about limiting the
number ?
Captain <McEz;en.] No. That is quite
another matter.
Mr. Max ton.
1234. With regard to the number of
Ministers in the House I, like Mr. Noel-
Baker, am not frightened about a great
collection of Ministers in the House. I
do not feel that they can destroy my inde-
pendence?There are two reasons against
a very large number. First, it gives very
greatly increased power of patronage. Lot
us be frank with ourselves. The average
Member of Parliament is inspired by am-
bition. There are a great number who are
not, but, as a general rule, the Private
Member likes to get a seat on the Treasury
Bench. It is a great temptation. As a
spectator I have seen it happening for
years. The desire to get there is very
strong. The more posts you can offer Mem-
bers of Parliament the greater is the pat-
tronge. In the i8th' century they were
afraid of the power of patronage of the
King. They were corrupted?I agree that
it does give the Government little more
power, but remember this that there is
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
QQ9
123
[^Continued.
power right dov;n to the humblest Mem-
ber by the big Government Parties over
Members?Quite.
1235. In my experience a strong Party
with strong electoral power has a big hold
on its Private Member as it has on a Par-
liamentary Private Secretary?It is all a
matter of opinion, and I am not dogma-
tising on it. Naturally, as a rule, the
Government picks for office the ablest men.
We like to believe we are all on an equal
level but there are varying ranges of ability,
even in the House of Commons, both of ex-
pression and of capacity to understand a
Bill and to draft amendments. The more
jobs the Government has to dispose of,
assuming it generally selects men of ability,
the few there are left to discharge the most
important function of the House of Com-
mons of criticism and control of the
Executive.
1236. I would not disagree for one
minute. I think the Government chooses
the men of most ability, and I think a
Prime Minister in choosing a Cabinet,
chooses the men who have the ability and
qualities that best suit his purposes?
Quite.
1237. The point I want to get at is this:
Do you think supposing there are 300
offices instead of 60, that the 300 who are
left as Private Members are in greater
danger of having such independence as they
have sapped?If you put the point I
would say yes. The effectiveness of the
House of Commons would be impaired if
too large a proportion of them held offices.
I am looking at it more from the point of
view of the House of Commons than from
the point of view of the Executive. That
is why I do not much mind the number of
Departments increasing. I do not want to
see the House of Commons weakened as a
debating chamber and as a critical force.
1238. I have seen men in this House
not losing their independence, but not
using it, which is really the same thing,
by threats of action against them in their
constituency, and I have seen it done for
the giving of little honours and distinc-
tions. I have seen a man shut up for a
night. There is nothing personal in that;
that has not been true in the witnesss case,
but I have seen a change come over a
man's personality over these things and it
has nothing to do with offices of profit
at all. I will leave that and come to the
other point. Would you regard an appoint-
ment like the Macdonald appointment to
Canada as completely wrong in normal
peace times?In so far as it means
absence, from his duty at the House of
Commons, yes, because it means that to
that extent the constituency is dis-
franchised.
Mr. Max ton.] I see another appointment
mentioned in the paper to-day. I have
only seen it in the paper; I do not know
whether it is truethat Mr. James Griffiths
is going to the States.
 124 MINUTES OF EVIDENCE TAKEN BEFORE THE SELECT COMMITTEE
26 June, 1941.] The Rt. Hon. Sir PERCY HARRIS, Bt,, M.P.
Sir Cuthbert Headlam.'] To be Labour
Attach^.
Mr. Maxton.
1239. Yes, of the Embassy there. Do
you regard that as a proper appointment?
^The exceptional circumstances of the
war make me excuse it, but I think Mr.
James Griffiths constituency will be at a
disadvantage. I think the modern electors
attach great importance to having a repre-
sentative in the House doing his duty,
watching over their interests, answerable
to them and in contact with them. I
know my constituents do.
1240. You would agree that even in war-
time an indefinite extension of these
cases would create an impossible situation
in Parliament?It is very difficult to
generalise in war time. You have men
in the three Services There are over 100
in the three Services.
1241. Yes, but in the conditions of the
Services since the outbreak of war most
of the Service men have regularly come to
the House and maintained a contact, both
with the House and with their con-
stituencies?^That is so.
1242. These overseas appointments mean
that contact with the House and with the
constituencies is completely broken?I do
not like them.
1243. Do you agree with me that too
many would be a disaster for Parliament?
^I think it would be a bad thing for
Parliament and can only be justified by
war conditions, a case can be made because
of war conditions.
Mr. Pickthorn.
1244. How can war conditions make it
necessary for these men to be in the House
of Commons? I can see it may be neces-
sary for them to go to Madrid or to
Pernambuco. What relevance has their
being nomihally in the House to war con-
ditions?I should say it makes it more
possible for them to be in the House of
Commons, to put if round the other way.
I do not like to see them going abroad.
Captain McEwen.
1245. Is there any idea in your head
of a definite time limit, three weeks or
three months absence and that after that
a Member forfeits his seat?In peace or
war?
1246. Either.I have in mind so many
Parliamentary days, say 60 Parliamentary
daysit is an arbitrary figure, and if a
man is absent without leave of the House
he forfeits his seat. ' 1256. ,You are elected as a Liberal. You
1247. That would cut out all appoint-
ments abroad?Yes.
Mr. Pickthorn.
1248. On the second line of the second
paragraph on page 3 you say; Ev^
Minister now has his under-secretary. I
House of Commons Parliamentary Papers Online.
Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
[Continued.
am not quite sure, but is that not a
mistake? It is not his under-secre-
tary? Nearly every Minister. I do
not say Every Minister.
1249. My point is in regard to the word
his ?That obviously is not the right
word. He sometimes has several. That
is mere phraseology. I ,did not mean to
suggest that he appointed him as an
Under-Secretary. If you like we will leave
out the word his.
1250. It may be pedantic, but it is im-
portant; it is the distinction from the
Parliamentary Private Secretary?^Tech-
nically it is wrong.
Chairman.'] I got that clear from Sir
Percy, that he meant by Under-Secretary
here a Minister.
Mr. Pickthorn.
1251. Do you think there is anything to
be said for the view that the Parliamentary
Private Secretary problem, in so far as
there is one, could be largely solved if
Prime Ministers made a habit of instructing
all but the senior Ministersall those but
Cabinet Ministersnot to send these
appointments to the Press? Do you think
that would make any difference at all?
I do not know that Hiat would make very
much difference. You could not stop the
Press from announcing them. ' I do not
think that wQuld help one way or the other.
Sir Cuthbert Headlam.
1252. It seems to me the whole basis of
your contention is that we ought not to
have too many Ministers in the House of
Commons because it reduces the number of
Members who are left to criticise?In
charge of Parliamentary duties.
1253. In charge of Parliamentary duties,
and to criticise?And control.
1254. Is not that nowadays largely a
matter of politics? Is it really so serious a
matter as you suggest ? Supposing you
have 50 Ministers in the House of Commons
who belong to one Partyor 60does that
really make much difference, because they
all belong to the same Party and in ordi-
nary circumstances are not critics of the
Government?^You are raising a very much
larger issue.
1255. I think it is the whole point?I
think constituents should elect Members
who will be effective in the House of Com-
mons. If they merely, to use a popular
phrase, elect ^yes men, then the House
of Commons suffers accordingly.
profess the Liberal faith, and your criti-
cisms are directed from the Liberal point
of view. There is nothing against it?
That does not say that I do not exercise
a certain amount of independence. I have
seen my honourable friend exercise a certain
amount of independence, although he is a
Conservative.
 M
ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN 125
I
26 June, 1941.]

The Rt. Hon. Sir PERCY HARRIS, Bi., M.P. [Continued.

1257. That does not alter the fact that
primarily we are pledged to support or not
to support a Government. There is one
point I should like to bring out in regard
to this much debated question of the
Parliamentary Private Secretary. The real
use and importance of the post seems to me
to be that it does enable a young Member
of the House of Commons to leain some-
thing about the administrative system of
the country in his early days in the House
and, therefore, to train him for future ser-
vice?I quite agree. I do not want to
abolish the Parliamentary Private Secretary.
I think it would be a misfortune. I think
ft is a great convenience. I simply want to
regularise his position and limit the
numbers. That is all.
Chairman.'] We are very grateful to you,
as has been shown by the questions we have
asked. Sir Percy.

{Adjourned till Wednesday, 16th July, at a quarter past Twelve oclock.)

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 126 APPENDICES TO THE REPORT OF THE SELECT COMMITTEE

LIST OF APPENDICES.
Page
APPENDIX I.
First Memorandum by Mr. Attorney-General ... 127
Second Memorandum ,, 134
Third Memorandum 135
Fourth Memorandum ,, ,, 136
APPENDIX 2.
Memorandum by Sir Gilbert Campion 137
First appendix to Memorandum by Sir Gilbert Campion (Proceedings
on the Act of 1705) 157
Second appendix to Memorandum by Sir Gilbert Campion (Disqualifica-
tion of the Sheriff) > 160
Table of Ministers of the Crown, by Sir Gilbert Campion 162
APPENDIX 3.
Memorandum by Sir William Holdsworth 163
APPENDIX 4.
Memorandum by the Lord Advocate on Offices Peculiar to Scotland ... 167
APPENDIX 5.
Memorandum by Sir Horace Wilson on the Civil Service 170
APPENDIX 6.
Memorandum supplementing the evidence by the Viscount Simon ... 172
APPENDIX 7.
Letter and Memorandum from the Archbishop of Canterbury on the
Clergy of the Church of England 174
APPENDIX 8.
Joint Memorandum by Sir Gilbert Campion and Sir Granville Ram ^
regarding the Common Informer and Penalties 176

APPENDIX 9.
Note of Judicial opinion on Disqualification of Recorders 179
APPENDIX 10.
List of Certificates issued under House of Commons Disqualification
(Temporary Provisions) Act, 1941 180

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 VJU Of

ON OFFICES OR PLACES OF PROFIT UNDER THfe CROWN 127

APPENDIX I.

FIRST MEMORANDUM BY MR. ATTORNEY-GENERAL (the Right Honourable

Sir Donald Somervell, O.B.E., K.C., M.P.)
The question whether the acceptance of an office disqualifies the holder from'
being elected to or sitting and voting in the House of Commons is dealt with
in a number of statutes. The object of this Memorandum is to give a brief
account of these statutes, with references to them. The question of Members
holding office under the Crown and the mischief of place-men arose in the
seventeenth century. Prior to the statutes to which I refer below there were
certain disqualifications, for exarnple, the King's Judges. How these disquali-
fications arose and the principle on which they were ba^ed is dealt with by Sir
Gilbert Campion in his Memorandum. Broadly speaking, however, there was
no disqualification attached to the holding of offices under the Crown.
A Bill rendering all Members incapable of holding places of trust and profit
under the Crown was passed by the Commons in 1693 but rejected by the House
of Lords. The Bill was re-introduced in the following year and passed both
Houses, but William III refused the Royal Assent. Legislation in that reign,
however, disqualified holders of certain offices in the Customs and Excise. The
Act of Settlement (12 & 13 Wpi. Ill, c. 2} provided by section 6* that jio person
who had an office or place of profit under the King, or received a pension from
the Crown, should be capable of serving as a Member of the House of Commons.
If this had stood it would clearly have'stopped the development, of parliamentary
and .Cabinet Government as we know it. Under it Ministers of the Crown could
have been. Peers but could not have sat in the Commons. It was realised that
this absolute prohibition went too far. In 1705 the Succession to the Crown Act
(4 Anne, c. 8, or in some editions of the Statutes c. 20) was passed. 'This Act
repealed section 6 of the Act of Settlement and substituted other provisions which
are now to be found in the Succession to the Crown Act, 1707 (6 Anne, c. 7, or
in some editions of the Statutes c. 41), which re-enacted the provisions of the
earlier Act to make them applicable after the Act of Union with Scotland. The
proceedings on the Bill of 1705 are to be found recorded in the House of Coinmons
Journal, Vol. XV. On pages 140-1 will be found a record of a conference between
the two Houses on this particular subject. There is also a short statement of
the issues in Cobbetts Parliamentary History, Vol. 6, p. 474. In the result
a compromise was agreed to and is now to be found in sections 24 and 25* (or,
in some editions of the Statutes, 25 and 26) of the Succession to the Crown Act
(6 Anne, c; 7 or 41). These sections are unrepealed, though the effect of section 25,
as explained below, has been much modified. Section 24 provided that no
person holding any office or place of profit whatsoever under the Crown created
since the 25th October 1705 should be able to sit in the House of Commons.
A similar absolute disqualification was applied to certain named offices, and also
to persons having any pension from the Crown during Pleasure. Section 25
provided that if any person, being a Member, accepted any office of profit from
the Crown, his election was avoided and a new writ was to issue. He was,
however, capable of being again elected. This section has always been con-
strued as applying to old offices, i.e. those created prior to 1705, although it
does not expressly so state. It clearly must be so limited as it would otherwise
be in direct conflict with the preceding section. The effect of the Re-election
of Ministers Act (1919) as amended by the Re-election of Ministers
(1919) Amendment Act, 1926, removes the necessity for re-election in
the case of an acceptance of an old office. In the interval between 1707 and
1919 many new ministerial offices had been created which were made subject
to the same provisions as to re-election as that contained in section 25. These
were covered by the Acts of T919 and 1926, so that if the office was one the
holder of which was capable of being elected or sitting or voting in the House
of Commons, he did not have to seek re-election. There were other Acts which
* The text is set out at the end of this Memorandum.
r

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 128 APPENDICES TO THE REPORT OF THE SELECT COMMITTEE

I do not refer to in detail which limited the number of Secretaries of State and
of Under-Secretaries who could sit in the House of Commons. This matter is
now dealt with by the Ministers of the Crown Act, 1937 (i Edw. VIII & 1
Geo. .VI, c. 38), which inter alia provided for the numbers of Ministers and
Under-Secretaries who could sit and vote in the House of Commons (see
Section 9). Subject to the above it provided that the Ministers of the Crown
(including Under-Secretaries) named in that Act could be elected, sit and
vote in the House of Commons. It is under this Act that these Ministers are
to-day free from any disqualification. There are still some Ministers, e.g. the
three Ministers without Portfolio and the. Law Officers, whose freedom from
disqualification depends not on the Act of 1937 but on one or more of the Acts
already referred to. To go back to 1707, it was no doubt hoped and intended
that the provisions then enacted would prevent the Crown and its Ministers
obtaining an undue influence in the House of Commons by distributing offices
of one kind or another to place-men. Section 24 clearly prevented the
creation of new ad hoc posts for this purpose. The exception of old offices from
absolute disqualification, however, appears, to have been used for the conferring
of offices on an excessive numiber of Members. This led in 1741 to the passage
of the House of Commons Disqualification Act (15 Geo. II, c. 22)*. This Act
was expressed to be passed for further limiting or reducing the number of
officers capable of sitting in the House of Commons. It describes the various
officers so disqualified, and in particular disqualifies deputies or clerks in
a number of offices, of which the most important are the Treasury, the Admiralty
and the offices of the Principal Secretaries of State. There have been in addition
a large number of statutes disqualifying the holders of particular offices,
and a large number exempting the holders of newly created offices, from the
disqualifications of section 24.
The general principle under which those with ministerial responsibility should
be able to sit in the House of Commons has been followed when piinisterial
offices have been created. I have put in an Appendix to this i|lepprt'a List,
with references to the statutes, of non-ministerial offices which 'disqualify for
Membership and of non-ministerial offices which can be held by Mepibprs. Some
of the offices dealt with are probably not offices under or from the Grown within
the Act of 1707.
Various questions have arisen from time to time as to the construction of the
Act of 1707. Some of the earlier ones may be found in HatselTs Precedents and
Proceedings of the House of Commons, Vol. 2, pp. 42-72 (1818 edition).
I set out below some of the questions which have arisen from time to time
under these provisions:
(a) Has an office ceased to be an old office because its name has been
changed, although there has been substantiil continuity of function? For
example, is the Board of Trade to be identified with the Board of Trade and
Plantations which existed before 1705? There was a discussion in 1774 as
to whether the office of the Clerk of the Pipe was an old office as existing
under another name before 1705 (Hatsell loc. cit. p. 59, note).
{b) Is a distinction to be drawn between offices held under the Crown ,
the words used in section 24, and offices from the Crown , the words used
in section 25?
(c) Ts any distinction to be drawn between "office and "place?
Section 24 speaks of an " office or place of profit and section 25 refers
merely to an " office of profit .
(d) What constitutes an office or place one of profit? The principle that
has been adopted is that if emoluments have ever attached to the office, the
fact that emoluments are not received by the particular holder is irrelevant.
The best illustration perhaps of this is the acceptance of the Stewardship of

* Section i is set out at the end of this Memorandum.

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 O/JL
ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN 129

the Chiltern Hundreds, which vacates the seat on the basis tliat the Steward-
ship is an office or place of profit, though no emoluments are in fact received.
This aspect of the matter was discussed in a debate in 1906 (Hansard, 4th
series, vol. 152, p. 98).

{e) What constitutes an office or place under the Crown? For example,
is a Member who is placed on some statutory panel, as a result of which he
may become entitled to a fee if called on to conduct an Inquiry or perform
some other duty, the holder of an office or place of profit? It has always
been held that the office of Ambassador does not disqualify, nor its accept-
ance vacate the seat of a Member (Erskine May, Parliamentary Practice,
p. 43). The authority for this seems to be a decision of the House in 1715
on the appointment of a Member as Envoy to the Court of Vienna. The
question was whether this appointment was included in the disability of the
Act of 1707, and was passed in the negative. The basis of the decision is not
given (Hatsell loc. cit. pp. 22-23). It cannot have been at that time on the
basis that it was an old office of profit, as at that date this view would
have involved the vacation of the seat and re-election.
(/) What constitutes profit? For example, does an office or place become
one of profit if, although no salary is attached, there is provision for payment
of travelling or subsistence allowances?
These questions, and possibly others, may, arise if the office is one not expressly
dealt with by statute and one has to fall back on the sections of the Act of 1707.
The penalty for sitting and voting in breach of the Act of 1707 is the sum of
500, which can be recovered by a common informer, and the vacation of the
seat. Apart from any question of policy, it would be very desirable if some less
obscure provisions could be made on this subject.
There is a further complexity to which I ought to make some reference. In
1793 legislation was passed by the Irish Parliament dealing with offices, appoint-
ment to which was made by, or subject to the approval of, the Lord Lieutenant
(33 Geo. Ill, c. 41). This Act referred to certain specific offices and drew a
distinction as from that year between new and old offices. After the Union with
Ireland the House of Commons Disqualification Act, 1801 (4 Geo. Ill, c. 52), was
passed. It is not easy to set out the precise effect of the various sections of this
Act. It provides in the first two sections that the disqualifications which existed
for the two Parliaments of Great Britain and Ireland before the Union shall apply
after the Union to Members for constituencies in Great Britain and Ireland respec-
tively. This would appear to preserve the two codes, one for English and Scottish
Members, the other for Irish Members. But in later sections it appears to
assimilate the disqualifications to all Members of the United Kingdom Parliament.
It is perhaps sufficient to say that this Irish Act of 1793 is still part of the
law applicable to Members of the House of Commons and to Members of the
Parliament of Northern Ireland, though there is some difficulty in saying hovr
far it applies to English and Scottish Members.

SERVICE IN THE ARMED FORCES OF THE CROWN.

The Succession to the Crown Act itself drew a distinction between service
under the Crown in the Armed Forces and other " offices ". By section 27 (28)
it was provided that the disqualifying provisions should not extend to any
member of the House of Commons, being an officer in Her Majestys Navy or
Army, who shall receive any new or other Commission in the Navy or Army
respectively. The holding of a Commission was clearly not regarded as an absolute
disqualification, presumably on the principle that it was an old office. The effect
of the section was to make it unnecessary for a Member who was a serving officer
to seek re-election if he received any new or other Commission. A Member
receiving a Commission in the Army or Navy for the first time vacated his seat,
but could be re-electcd. For instances of the issue of new writs for this reason
see 21 Commons Journals 376, 13th May, 1729; 25 ibid. 9, 23rd May, 1745;
11867 E

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 130 APPENDICES TO THE REPORT OF THE SELECT COMMITTEE

28 ibid. 660, 3rd December, 1759; and 39 ibid. 429, 21st May, 1783. This section
is by its terms restricted to officers. Further it may leave uncertain whether
Forces or Corps of the Army or Navy brought into existence since its date might
not be held to be outside the exempting provision, membership of them being
treated as a new office. The Air Force has its own exempting provision in
section 4 of the Air Force (Constitution) Act, 1917, and the Territorial Force in
the Territorial and Reserve Forces Act, 1907, sections 23 (i) and 36. On the other
hand, there was no exempting provision for the Royal Marines, whose establish-
ment may not date back beyond 1755; nor was there any exempting provision in
the Royal Naval Reserve Acts, 1859 to 1927. When therefore the present war
began there was a considerable area over which membership of the Armed Forces
of the Crown might disqualify, and the House of Commons (Service in His
Majestys Forces) Act, 1939, therefore was passed in general terms.

OTHER RECENT LEGISLATION CONNECTED WITH THE WAR.

The Regional Commissioners Act, 1939 (2 & 3 Geo. VI c. 76), expressly

exempted from disqualifio3-tion the Commissioners to be appointed and paid under
that Act.
The Ministers of the Crown (Emergency Appointments) Act, 1939 (2 & 3
Geo. VI, c. 77), gave a general power to create Ministers for purposes connected
with the prosecution of the War who could sit in the House of Commons.
27th March, 1941.

ACT OF SETTLEMENT (12 & 13 Wm. Ill, c. 2, 1700-1).

Section 6.^That no person who has an office or place of profit under the King,
or receives a pension from the Crown, shall be capable of serving as a member of
the House of Commons.
{Repealed by 4 Anne c. 8, s. 25.)

ACT OF SUCCESSION, Anne, 1707.

Section 24.And be it further enacted by the authority aforesaid, That no
person, who shall have in his own name, or m the name of any person or persons
in trust for him, or for his benefit, any new office or place of profit whatsoever
under the Crown, which at any time since the five and twentieth day of October,
in the year of our Lord one thousand seven hundred and five, have been created
or erected, or hereafter shall be created or erected, nor any person who shall be
commissioner or sub-commissioner of prizes, secretary or receiver of the prizes, nor
any comptroller of the accounts of the Army, nor any commissioner of transports,
nor any commissioner of the sick and wounded, nor any agent for any regiment,
nor any commissioner for any wine licences, nor any governor or deputy governor
of any of the plantations, nor any commissioners of the Navy imployed in any of
the out-ports, nor any person having any pension from the Crown during pleasure,
shall be capable of being elected, or of sitting or voting as a member of the House
of Commons in any Parliament which shall be hereafter summoned and holden.
Section 25.Provided always. That if any person being chosen a member of
the House of Commons, shall accept of any office of profit from the Crown,
during such time as he shall continue a member, his elections shall be, and is
hereby declared to be void, and a new writ shall issue for a new election, as if
such person so accepting was naturally dead. Provided nevertheless. That such
person shall be capable of being again elected, as if his place had not become
void as aforesaid.

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 ui a
ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN I3I

HOUSE OF COMMONS DISQUALIFICATION ACT, 1741 (15 Geo. II, c. 22).

Section i.Descriptio7i of officers n'ot admitted to sit in Parliament.From and
after the dissolution or other determination of this present Parliament, no person
who shall be commissioner of the Revenue in Ireland, or Commissioner of the Navy
or victualling offices, nor any deputies or clerks in any of the said offices, or in
any of the several offices following, that is to say, the office of Lord High
Treasurer, or the Commissioners of the Treasury, or of the Auditor of the receipt
of His Majesty's Exchequer, or of the Tellers of the Exchequer, or of the Chan>
cellor of the Exchequer, or of the Lord High Admiral, or the Commissioners of
the Admiralty, or of the Paymasters of the Army, or of the Navy, or of His
Majestys Principal Secretaries of State, or of the Commissioners of the Salt, or of
the Commissioners of the Stamps, or of the Commissioners of Appeals, or of the
Commissioners of Wine Licences, or of the Commissioners of Hackney-Coaches,
or of the Commissioners of Hawkers and Pedlars, nor any persons having any
office, civil or military, within the island of Minorca, or in Gibraltar, other than
officers having commissions in any regiment there only, shall be capable of being
elected, or of sitting or voting as a member of the House of Commons, in any
Parliament which shall be hereafter summoned and holden.

LIST A.

OFFICES INVOLVING DISQUALIFICATION.

I. Judicial Offices.
(a) England.
Judges of the High Court and Court of Appeal.* 15 & 16 Geo. 5. c. 49, s. 12 (2).
County Court Judges. 24 & 25 Geo. 5. c. 53, s. 6 (a).
Vice-Chancellor of County Palatine of Lancaster. 18 & 19 Geo. 5*
s. 14 (i) (/).
Chairman or Deputy-Chairman of London Quarter Sessions. 51 & 52 Viet,
c. 41, s. 42 (4).
Recorder of a borough (for that borough). 45 & 46 Viet. c. 50, s. 1^3 (6).
Barrister appointed to
inquire into alleged corrupt practice at Parliamentary election. 15 & 16
Viet. c. 57, s. i;
try municipal election petition. 45 ^ 4^ Viet. c. 5O' 9^ (2)*
Stipendiary magistrates for certain districts under the Act authorising their
appointment, f
Registrar or other officer attached to court having jurisdiction in bankruptcy.
4 & 5 Geo. 5, c. 59, s. 120.
(b) Scotland.
Judges of the Court of Session and High Court of Justiciary. 7 Geo. 2. c. 16,
s. 4. ^,
Sheriff and salaried sheriff substitute. 7 Edw. 7. c. 51, s. 21.
Advocate inquiring into corrupt practice at Parliamentary election. 15 & 10
\^icfc c 57>
Sheriff clerk or his deputy (for his county). 2 & 3 Will. 4. c, 65, s. 36. 7 Edw.
7. c. 51, s. 52, sch. 2.
' , M ,

* The Lord Chancellor is a judge of the High Court; he and the Master of the Rolls are
ex officio judges of the Court of Appeal: see 15 & 16 Geo. 5. c. 49, ss. 2(1), 6(2).
t See 2 & 3 Viet. c. 15, s. 4 (Staffordshire Potteries District). 41 & 42 Vict. c. iv, s. 40
(Manchester and Salford), 62 & 63 Vict. c. xc. s. 15(4) (South Staffordshire), 10 & ii Geo. 5.
c.'lxxxvi, s. 5 (Pontypridd). r t -KX -
About a dozen boroughs have stipendiaries under the procedure of s. 161 of the Municipal
Corporations Act, 1882 (45 & 46 Vict. c. 50). The metropolitan police magistrates in
London, appointed by His Majesty and paid out ol the Consolidated rune (see 2 3
Vict. c. 71. s. 3, and 38 & 39 Vict. c. 3) are disqualified as holding an office of profit under
the Crown.
F 2
IT 867

>
I

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 132 . APPENDICES TO THE REPORT OF THE SEtECT COMMITTEE

(c) Northern Ireland.

Judges of th>e High Court* and Court of Appeal, i & 2 Geo'. 4. c. 44, s. 2. 40
& 41 Viet. c. 57, s. 13.
County court judgesf and chairmen of quarter sessions. 14 & 15 Vict. c. 57,
s. -2.
Barrister inquiring into corrupt practice at Parliamentary election. 15 & 16
Viet. c. 57, s. I. .

II. Offices Concerned with Tax Collection. v

Farmers and collectors of duties (except certain customs officials). 5 & 6 Will.
& Mar. c. 7, s. 59. ,i Edw. 7 & i Geo. 6. c. 38, s. ii (2).
. Commissioners and farmers of the customs. 12 & 13 Will. 3. c. 10, ss. 87-8.
Commissioners of the revenue in Ireland and commissioners of stamps (who
are now Commissioners of Inland Revenue) see 53 and 54 Viet. c. 21, ss. 37 (2),
39. 15 Geo. 2. c. 22, ss. I, 2. .
Commissioners of customs, excise and stamps in Ireland. 41 Geo. 3 (U.K.
c. 52, ss. 4, 8. . .
Commissioners of excise. 7 & 8 Geo. 4. c. 53, s. 8.
III. Other Offices.
Army agents. 6 Anne c. 41, s. 24. 41 Geo. 3 (U.K.) c. 52, s. 4.
Auditor of the Civil List. 56 Geo. 3. c. 46, s. 8.
Belfast Registry, Registrar of deeds in (for the adaptation to Belfast of the
references to Dublin in the Registry of Deeds (Ireland) Act, 1832 (see S.R. & O.
1923 (No. 614) p. 942). 2 & 3 Will. 4. c. 87-, s. 36.
British Overseas Airways Corporation member. 2 & 3 Geo. 6.c. 61, s. i (7)
sch. I. .
Burma, Adviser to the Secretary of State in respect of. 26 Geo. 5 & i Edw.
8. c. 3, s. 140 (4). * . ,
Central Electricity Board member. 16 & 17 Geo. 5. c. 51, s. i (2).
Charity Commissioner (paid), secretary and inspectors. 16 & 17 Viet. c. 136,
s. 5-
City of London police commissioner. 2 & 3 Viet. c. xciv. s. 7.
Coal Commissioner, i & 2 Geo. 6. c. 52, s. i, sch. i.
Colonial governors. 6 Anne c. 41, s. 24.
Comptroller and Auditor General and assistant. 29 & 30 Viet. c. 39, s. 3.
Cotton Board member. 3 & 4 Geo.. 6. c. 9, s. i (2), sch.
Cotton Industry Board member. 2 & 3 Geo. 6. c. 54, s. i (3), sch. i.
County council's paid clerk or other paid official in permanent employment
(w'hole time) in
England. 51 & 52 Viet. c. 41, s; 83 (13).
Northern Ireland. 61 & 62 Viet. c. 37, s. 83 (10).
Crown Lands Commissioner (formerly named Woods and Forests Commissioner)
other than the Commissioner who is the Minister of Agriculture and Fisheries
(see 6 Edw. 7. c. 28, s. i). 14 & 15 Viet. c. 42, s. 10.
Gibraltar officials. 15 Geo. 2, c. 22, s. i.
India, Adviser to the Secretary of .State as regards.. 26 Geo. 5 & i Edw. 8. c. 2,
s. 278 (4). .
Livekock Commission member (Commission temporarily dissolved) (see
S'.R. & O. 1939 (No. 1303) I. p. 854)*. I Edw. 8 & I Geo. 6. c. 50, s. i (4), Sch. T.
London Passenger Transport member. 23 & 24 Geo. 5, c. 14, s. i (3).
Metropolitan Police Commissioner, Assistant Commissioner and Receiver. 10
Geo. 4. c. 44, s. 18. 19 & 20 Viet. c. 2, s. 9.
* Statutory references to the Supreme Court, etc., in Iceland are now, as regards Northern
Ireland, references to the Supreme Court, etc., in Northern Ireland by virtue of the adapta-
tion order under the Government of Ireland Act, 1920: see S.R. & O. 1921 (No.. 1801),
* t The county court judge in Ireland (formerly the " assistant barrister " mentioned in
Ii & 15 Viet. c. .37, s. 2) sits as sole judge in the county court or " civil bill court " and is
also ex officio chairman of justices at sessions. In the county boroughs of Belfast and
Londonderry the recorder holds the sessions as sole judge and also holds the civil bill court.

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN 133

Road.Traffic Act.traffiic commissioner. 20 & 21 Geo. 5. c. 43, s; 63 (12).

Special Area Commissioner. 25 & 26 Geo. 5. c. i, s. i (i), Sch. 2.
Spindles Board member. 26 Geo. 5. & I'Edw. 8. c. 21, s. i, Sch.
Sugar Com.missioner. 2,6 Geo. 5 & i-Edw. 8. c. 18, s! i (3).
Tithe Redemption Commissioner. 26 Geo. 5 & i Edw. 8. c. 43, s. 4 (4), Sch. 2.
Town clerks in Scotland (for their burghs). 2 & 3 Will. 4.-0. 65,' s. 36'.
7 Edw. 7. c. 51,. s. 52, Sch. 2. >
Treasury, Admiralty and Secretaries of State, deputies and clerks in Offices of.
15 Geo,. 2. c. 22, ss. I, 2.. 41 Geo. 3. (U.K.) c. 52, s. 4.
Unemployment Insurance Statutory Committee member. 2*5 & 26 Geo. s. c- 8
s. 56 (5).
Welsh Church Act Commissioner or employee. 4 & 5 Geo. 5. c, 91, s. 10 (8).
White Fish Commission member (Commission temporarily suspended) (see
S.R. & O. 1939 (No. 1501) I, p. 856). I & 2 Geo. 6. c. 30, s. i (4), Sch. i.

LIST B.
"OFFICES EXEMPTED FROM DISQUALIFICATION.
Bank of England governor or member. 15 Geo. 2. c. 13, s. 8.
Chancellor of the Exchequer qua Master jof the Mint. 33 & 34 Viet. c. 10, s. -14.
Church Estates Commissioner,, First. 13 & 14 Viet. c. 94, s. 3.
His Majesty's Forces:
Army or Navy commission. 6 Anne c. 41, s^ 27.
Reserve of officers commission. 7 Edw. 7. c.^9, s. 36.
Territorial Army commission. 7 Edw. 7. c. 9, s. 23 (i).
. Volunteer Force commission. 26 & 27 Viet? c. 65, s. 5.-
Air Foce commission. 7 & 8 Geo. 5. c. 51, s. 4.
Auxiliary Air Force or Air Force Reserve commission (see the Orders in
Council applying the 1907 Act, S.R. & O. 1924 (No. 1212 and No. 1213)
pp. II, 31).
War provision for M.P. who is member of H.M. Forces. 2 & 3 Geo. 6. c. 85.
Lord High Admiral, member of Council of. 7 & 8 .Geo. 4. c. 65., s. 5.
Paymaster General. 5 & 6 Will. 4: c. 35, s. 5.
Regional Commissioner. 2 & 3 Geo. 6. c. 76, ss. i (2), 2 (2).
Surveyor General of Ordnance (office now vacant). 33 & 34 Viet. ;c. 17, s. 2.
Welsh Church, holder of ecclesiastical office in. 4 & 5 Geo. 5. c. 91, s. 2 (4).

LISTC.
ACTS RELATING TO OFFICES IN IRELAND PASSED BEFORE THE IRISH, FREE STATE
ACTS OF 1922, WHICH ARE INAPPLICABLE TO OR HAVE NOT BEEN APPLIED TO
NORTHERN IRELAND AND MAY BE REGARDED AS OBSOLETE.
%

Offices in Ireland.
48 Geo. 3. c. 140 (Dublin Police Magistrates Act, 1808), s. 15. Dublin metro-
politan police magistrates, receiver and officials disqualified. Act not adapted to
Belfast.
4 Geo. 4. c. 7 (Chancellor of the Exchequer (Ireland) Act, 1823) s. 3. ChancHlor
of the Exchequer of Great Britain if appointed to be. Chancellor of the Exchequer
of Ireland, does not thereby vacate his seat at Westminster.
57 Geo. 3. c. 62 (Pubhc Offices (Ireland) Act, 1817), s. 10. 'i & 2 Will. 4. c. 33
(Public Works (Ireland) Act, 1831), s.ii. Commissioner of Public Works in
Ireland or other official disqualified.
The Public Works Commissioners- in Northern Ireland now form a 'branch of
the Ministry of Finance of l^orthern Ireland.
6 & 7 Win. 4. c. 13 (ConstaJ)ulary (Ireland) Act, 1836), s.i8. Inspector general,
deputy inspector general, receiver or county inspector, or magistrate disqualified.
Under s. 9 of the Government of Ireland Act, 1920 (id & ii Geo. 5. c. 67),
the Royal Irish Constabulary and the resident magistrates (.who are still appointed
in Northern Ireland under the 1836 Act) were to be reserved matters until an
11867 E3

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 134 APPENDICES TO THE REPORT OF THE SELECT COMMITTEE
appointed day to be fixed within three years. The Irish Free State treaty and
constitutional changes in 1922 made it necessary to provide afresh' for a local
police force in Northern Ireland; this was done by tiie Constabulary (Ireland)
Act, 1922 (12 & 13 Geo. 5. c. 55) which disbanded the R.I.C. (Aug. 31, 1922)
and transferred the public services connected with the resident magistrates to
the Government of Northern Ireland. A Northern Ireland Act (12 & 13 Geo. 5.
c. 8 (N.I.)) constituted the Royal Ulster Constabulary and applied thereto the
enactments applicable to the R.I.C. ^ .
6 & 7 Will. 4. c. 29 (Dublin Police Act, 1836), s. 19. Justice of the peace or
receiver disqualified.
No corresponding provision for Belfast; Act not adapted to Belfast.
12 & 13 Viet. c. 91 (Dublin Collection of Ra,tes Act, 1849) s. 24. Collector
general of rates in Dublin disqualified.
No corresponding provision required for Belfast.
30 & 31 Viet. c. 44 (Chancery (Ireland) Act, 1867) s. 4. Vice-Chancellor dis-
qualified. >
Act not required. He became a judge of the Supreme Court by virtue of s. 6 of
40 & 41 Viet. c. 57 and so was subject to the disqualification prescribed for High
Court judges.
44 & 45 Viet. c. 49 (Land Law .(Ireland) Act, 1881) s. 54. Member or of&cial
of the Land Commission or assistant commissioner disqualified. The existing
Irish Land Commissioners retired and their offices were abolished under s. 2 and
t

schedule 2 of 13 Geo. 5 session 2, c. 2. The general subject matter of the Land

Purchase Acts was a reserved matter by virtue of s. 9 (3) of the Government
of Ireland Act, 1920; but it was transferred by the Winding Up Act in 1935 (see
25 & 26 Geo. 5. c. 21, ss. I (3), 15 (3) (4), schedule 2; the appointed day under
s- 15 (3) was April i, 1937). The winding up scheme is in the hands of tlie Land
Purchase Commission, Northern Ireland, set up by the Land Purchase Order,
1923 (S.R. & 0. 1923 (No. 615) p. 723). The Order adapts to the nevr Commis-
sion the statutory references in the Land Purchase Acts to the old Land
Commission.
62 & 63 Viet. c. 50 (Agriculture and Technical Instruction Act, 1899) s. i (3).
Vice-President of Department of Agriculture for Ireland disqualified.
Office terminated; in Northern Ireland there is now a Minister of Agriculture
for Northern Ireland.
LIST D. f

OBSOLETE OFFICES.*
7 Geo. 2. G. 16 (Parliamentary Elections (Scotland) Act, 1733), s.4. The
references to the Barons of the Court of Exchequer in Scotland are unnecessary;
the Barons are now represented by judges of the Court of Session under 19 & 20
Viet. c. 56, s. I.
39 & 40 Geo. 3. c. 97, s. 27. This Act constituting the London Flour Corpora-
tion exempted members, managers and officials of the Corporation from dis-
qualification.
The corporation was established with a capital of ;^i20,000 to supply the metro-
polis with flour, meal and bread at a reduced price. In less than two years it
gave up operations, having lost ^40,000.

SECOND MEMORANDUM BY Mr. ATTORNEY-GENERAL.

The Forestry Commission, the Ecclesiastical Commissioners and the Charity
Commissioners are, I think, the only bodies which are represented in Parliament
by one of their own members to whom questions can be put. The statutory
provisions differ somewhat in each case, and are as follows:
Forestry Commission.
Under section i (6) of the Forestry Act, 1919 (9 & 10 Gfeo. 5. c. 58), it is pro-
vided that one of the unpaid Commissioners shall be a Member of the Commons
House of Parliament. The office of Forijstry Commissioner is, I think, clearly
* The words about the Barons of the Court of Exchequer and the whole of 30 & 40
Viet. c. 97, are being proposed for repeal by Statute Law Revision Bill. *

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN I3j5

an office under the Crown, though it may be that as the Act provides expressly
for unpaid Commissioners,, that office would not be held tobe an office or place
of profit. The section does not in form remove any disqualification, but makes
it necessary for one of the unpaid Commissioners to be selected from Members
. of the House.
Ecclesiastical Comi'^issioners.
The Ecclesiastical Commissioners Act of 1850 (13 & 14 Viet. c. 94) provides by
section i for the appointment of three Church Estates Commissioners, two paid
and one unpaid. Two of these are appointed by the Crown, one being paid and
the other unpaid. The third Commissioner is appointed by the Ajrchbisfiop of
Canterbury. Section 3 of the Act provides that the first Church Estates Com-
missioner (paid) shall be capable of being elected and of sitting and. voting as a
Member of the House' of Commons. In practice however the unpaid Commis-
sioner appointed by the Crown has been a Member of Parhament, who answers
questions in the House. This is no doubt on the basis that the office, being
unpaid by statute, did not disqualify as an office or place of profit.
Chanty Commissioners.
Under the Charitable Trusts Act, 1853 (16 & 17 Viet. c. 137), section i, there
is power for the Crown to appoint one unpaid Commissioner to hold office during
Pleasure. By section 5 of that Act the paid Commissioners, who hold office
during good behaviour, are expressly disqualified. The unpaid Commissioner has
been appointed from among Members of the House and the appointment has
been a political one, the Member resigning his office on a change of Government:
loth April, 1941.

THIRD MEMORANDUM BY Mr. ATTORNEY-GENERAL.

Pensions.
Section 24 of the Succession to the Crown Act, 1707, disqualifies from member-
ship' of the House of Commons persons having any pension from the Crown during
Pleasure. In 1869 the Pensioners Civil Disabilities Relief Act (32 & 33 Viet,
c. 15) was passed. This Act recited that doubts had arisen as to 'whether the
pensions granted to those who had held civil offices in Her Majesty's Service under
statute brought those persons within the disqualifications imposed by the Act
referred to above. It liierefore provided that tiie receipt of such a pension should
not disquahfy. There appears to be no statute which deals in the same way with
pensions to those who have served in the Armed Forces. I have not been able
to trace any discussion of this subject, but one can understand why doubts may
have arisen in the case of Civil Servants but not in the case of officers in the Army,
Whereas Civil Servants in the main were disqualified by the House of Commons
(Disquahfication) Act of 1741 absolutely from membership, no such absolute dis-
quahfication attached to those who held commissions in the Armed Forces as is
set out in my first Memorandum. It might therefore have been thought absurd
to suggest that, an officer on full pay not being disqualified, any disqualification
should attach to him when he was placed on half-pay by way of pension. I think
it may well be that the pensions under statute to Civil Servants were not pensions
during Pleasure within the Act of 1707. That this is a possible view is indicated
by the form of the Act of 1869 as one for the removal of doubts. In the course
of the Bill's passage it was stated that in the judgment of some lawyers the Act
of 1707 excluded from the House of Commons a person who had retired from the
Civil Service on superannuation. (Hansard, Vol. 196, 3rd Series, 1868-9.)
Offices tinder the Crown.
I was asked whether I could state the principles on .which the question whether
an office was " under the Crown " fell to be decided.* The Act of 1707 draws a
distinction between offices under the Crown, which, if new offices, absolutely dis-
qualify, and offices from the Crown ", which, if " old offices ", do not dis-
qualify, but until recent years necessitated a re-election. An office " from the
Crown " is an office to which the Crown appoints. I understand that Under-
secretaries were not required to be re-elected on appointment. They were
Qns. 39 and 48.

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 136 APPENDICES TO THE REPORT OF THE SELECT COMMITTEE

appointed by the*Minister, not by the Crown, and were, unless specially provided
for by a statute setting up-a new Ministry, old offices. Ah office under the Crown
need not be from the Crown. The holders of the most important offices under
the Crown are appointed by the Crown, but the majority of office holders are not
of course so appointed. In considering whether an office is under the Crown one
has to consider who appoints, who controls, who dismisses and the nature of the
duties. If the Crown itself has the power of appointment and dismissal, this
would raise a presumption that the Crown controls, and that the office is one
under the Crown. If, although the Crown appoints, the duties are not duties
' connected with the public service, the office would not, I think, be an office
under the Crown within the Act. Regius Professprs* and the Provost of Eton .are
exaihples of offices in this category. If the duties are duties under and controlled
by the Government then Hie office is, prima facie, at any rate, an office under
the Crown, and the appointment would normally be made by a Minister or by
someone who clearly held an office under the Crown. The office of a Governor
of the British Broadcasting Corporation is, I think, an office under the Crown.
The Crown has the power of appointment and dismissal: the Postmaster-General
has certain powers of control and the functions of the Corporation are of interest
and importance to all citizens.- I was also asked about the Chairmanship of the
War Agricultural Committees, f I understand that this position is unpaid except
in one case. I should not have thought this exception made it an office or place
of profit. The Chaiinmen are appointed by and can be dismissed by the Minister
of Agriculture, and carry out very important functions on his behalf. It might
be said that an office or place within the Act were not apt words to
describe a position of this kind. I would not like to be too. confident on this
matter, but I think that if this position had been established as a paid appoint-
ment it would have been an office of profit under the Crown.
I was also asked about the position of the Master of the Mint, the Kings Printer
and the Warden of the Standards. J Under the Coinage Act, 1870 (33 & 34 Viet,
c. io> s. 14), the Chancellor of the Exchequer is the Master of the Mint, and there
is an express provision that this shall not disqualify him for membership of the
House of Commons. There is power to appoint a deputy, who I think clearly
holds an office under the Crown.
There are to-day two Kings Printers . One will be found referred to in
section 3 of the Rules Publication Act, 1893 (56 & 57 Viet. c. 66) as Queens
Printer of Acts of Parliament . This appointment is held under Letters Patent
by the Controller of His Majestys Stationery Office, which is of course itself an
office under the Crown. There is also the Kings Printer appointed under Letters
Patent who has, with the Universities of Oxford and Cambridge, the right of
printing Bibles, Books of Common Prayer and other Rites and Ceremonies of
the Church of England. This appointment is held by.the legal representatives of
the late George Edward Briscoe Eyre, the printing being done by Messrs. Eyre &
Spottiswoode, Ltd. The early history of the Kings Printers will be found
summarised in a Report of a Select Committee on the Queens Printers Patent
. of i860. Appendix. Although there have been a number of changes and the
present division dates from 1888, the office or appointment would, I think, be
held to-date from before 1705 and therefore to be an old office.
The Warden of the Standards has now been abolished. When it existed it was
I think an office under the Crown.
<

ist May, 1941.

FOURTH MEMORANDUM BY MR. ATTORNEY-GENERAL.

Judge of Appeal in the Isle of Man.

Under sections 4 to 8 of the Isle of Man Judicature Amendment Act, 1918,
it is provided that there shall be appointed a Judge of Appeal; he is to be
appointed by His Majesty, and be a member of the English Bar and a King's
Counsel. He holds office during pleasure for five years, and he can be reappointed,
Qn. 59. t Qn. 117- . t Q^- 56.

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN
e?9
137

and, his renmneration is determined by the Governor subject to Treasury approval.

,He sits as an Appellate Judge in civil and criminal matters, and there is an
appeal from the Appellate Court in the Isle of Man to the Privy Council.
The present holder of the office has given me the dates on which he has had
to sit and they vary, but in some cases there have only been two occasions in
the year, in some as many as five or six. He therefore is called upon to sit on
fewer days than most Recorders, who can of course sit in the House of Commons,
though the nature of the work is diherent, being that of an Appellate Judge.
The Home Office recently expressed an opinion, unofficially, that the holder of
this appointment was disqualified. I think the Home Office were probably right
in saying that this appointment does disqualify, but the Committee may think
it right to consider whether this should be so or not.
May, 1941.

APPENDIX 2.
MEMORANDUM BY SIR GILBERT CAMPION, K.C.B., CLERK OF THE HOUSE OF
COMMONS.

In submitting a memorandum on so wide a subject as the holding by members

of the House of Commons of offices of profit under the Crown, I find it advisable,
for my. own purposes, to place strict and narrow hmits upon the matters which
are covered by your terms of reference. Office has been defined as a right to
exercise a public or private employment and to take the fees and emoluments
thereunto belonging, (2 Blackstone's Commentaries, 36). If this definition is
accepted, it would seem to excuse me from dealing with a number of subjects
which are of a generally analogous* character to the subject under consideration,
such as the position of pensioners, of contractors, of royal warrant holders and
others. I have also thought it necessary not to de^'with matters of policy under-
lying the present position, particularly the temporary conditions applicable to a
period of war, since these matters are the appropriate subject of debate rather
than of evidence. I had considered providing some information about the position
of office-holders under the constitutions of the Dominions and of certain forei^
countries where parliamentary government is in existence. But, on examining
the instances I had collected, it seemed to me that they .threw' little light on
the problem as it affects the British House of Commons. If it were desired,
however, I could submit some information on this subject. Before drafting this
Memorandum I had the advantage of reading Mr. Attorney-General's Memor-
andum* and also of having a conversation with him on the subject. As the result
of this I have directed my mind principally to a description of the historical
background to the attitude of the House of Commons towards the holding of
offices of profit at various periods, especially to the rules laid down in different
periods which have exercised a permanent effect upon the law on the, subject.
This Memorandum is divided into four sections which are entitled:
I. The Historical Background,
II. The Present Position,
III. Review of Cases,
IV. Summary and Suggestions.

I. THE HISTORICAL BACKGROUND.

I. The attitude of the House of Commons towards the holding of office under
the Crown by any of its own Members is a matter of great and obvious constitu-
tional importance. For it raises in the form of a practical problem, demanding
solution, the question of the proper relation of the Commons to the Crown. Can
* Appendix i, above, First Memorandum.

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 138 APPENDICES TO THE REPORT OF THE SELECT COMMITTEE
the presence of the King's ministers and servants among their members be treated
as a matter of indr^erence by the Commons? Should they be excluded? Should
they be welcomed? Or should a distinction be drawn between different categories,
and some be admitted and others excluded? This problem has had a long history,
and the Commons in dealing with it have adopted almost all the possible attitudes
towards itnot in a haphazard way, but because the attitude adopted at a
particular period suited the Commons' conception of their constitutional status
and functions at that period. At least three phases in their, attitude can be
distinguished. And, since the existing law bears traces of each of these phases,
it may be instructive to show briefly the characteristic marks of each successive
phase and the constitutional conditions of the period as a response to which it
v/as developed.
I. THE PRIVILEGE " PHASE.

2. The first clearly defined reaction of the House of Commons to the question
of the holding by its members of offices under the Crown was a rather jealous
insistence on its own prior claim to their services and a tendency to distinguish
between offices, not so much from fear of the influence of the Crown or byregard
for any particular theory of government^these considerations arose later^but
almost entirely according to whether they were or were not compatible with the
physical attendance of their holders on the service of the House. This Attitude,
which was concerned with an incidental feature and not the essence of the problem
and regarded office as only one of a number of disqualifications of a similar nature,
was based on the conception of Privilege, the establishment of which was the
main achievement of the Commons during the period which runs from the middle-
of the reign of Elizabeth to the Long Parliament of Charles Iroughly from
1575 to 1640.
3. During this period the conception which the most active and numerous
section of the Commons was forming of the constitutional status of the House
was that of an independent deliberative body, of right free from the tutelage
exercised by the King and the Council under the Tudors, the equal of the House
of Lords. They made no claim to share in the process of governing or to initiate
administrative policy. But they insisted on their right to criticise and judge
the results of policy and the actions of ministers. For this purpose they tightened
up their control of taxation, which they claimed the exclusive right to grant,
and made their grants conditional on the redress of " grievances ". In order to
increase their efficiency as a deliberative body they devoted much care and
thought to their own procedure and to securing the recognition, under the old
name of Privilege, of the powers and immunities which experience showed to be
indispensable.
4. The enlargement of the claims of Privilege, which is characteristic of this
period, was gradually directed against the King in response to James attempts
to magnify the royal prerogative. The privilege of freedom of speech may be
taken as an example. This privilege was, in its origin, a collective claim of the
Commons to debate any subject they pleased without interference from the King
on the ground that it was a high matter of state appertaining to the Prerogative;
and it was as a sanction for this great fundamental privilege that the Commons
claimed also the exclusive right to judge and punish any abuse of their freedom
by individual Members. It was only very slowly and reluctantly that the King
acquiesced in this claim, and, until he had formally sanctioned it, the Commons
were open to forms of pressure and intimidation which were not patently illegal.
It is not difficult to see why the House of Commons in this period regarded its
constitutional status and particularly itsrelations with, the King almost solely in
the light of the governing confieption of Privilege.
5. It has been necessary, in order to appreciate the spirit in which the Commons
first approached the problem of the holding of office, to dwell upon the pre-
eminence in this period of the conception of Privilege. In order to see how the
House of Commons applied this conception to the problem, it is necessary to
consider the working of a particular group of privileges, little less essential than

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 ON OFFrCES OR PLACES OF PROFIT UNDER THE GROWN 139

freedom of speech tP the efficiency and independence of the House of Commons.

This group includes the right of the House to decide disputed elections, to
deterniine the qualifiations of membership, fo declare seats vacated and to control,
punish and expel its members. (The last^povver to expel^is a power which
should now be carefully distinguished from the power of disqualification, but it
is doubtful if they were at that time distinguished. It was not till the Commons
had to deal with Wilkes, that they realised that expulsion did not prevent the
re-election of a Member.)
6. Some of these rights were- exercised in Elizabeth's reign without serious
challenge from the Crown or Chancery. But before issuing writs for the election
of his first Parliament in 1604 James issued a proclamation, which gave directions
to the electors as to the sort of persons they should choose to represent them,
and incidentally disqualified bankrupts and outlaws. This was in itself a challenge
to the growing claims of Privilege and would, if submitted to, have encouraged
the King to multiply disqualifications in order to control the membership of the
House. When the Commons met, they found that^ the election for Bucks had
been quashed, and writs issued for a second election, on the ground that the
Member returned, Sir Francis Goodwin, was disqualified as an outlaw. As the
House had previously decided in Smyths case (1559) that an outlaw could sit,
they i^ored the new election and admitted Goodwin to his seat. A long dispute
followed which was settled by a compromise; but the right of the Commons to
decide the validity of elections was never afterwards challenged. Both before
and after this case the Commons were busy in settling the law upon a number
of questions of disqualification. In doing so they were guided principally by the
answer common sense returned to the question, Does the presence of such a
person as a Member conduce to the efficiency of the House of Commons? In
the light of this answer they ignored the statute of 1413 against the election of
non-residents, and allowed outlaws and the' eldest sons of peers to sit. On the
other hand they vacated the seat of a Member because he was reported to be a
lunatic , and avoided the Cambridge election in 1621 because the mayor had
returned himself. Similarly, in James first Parliament half a dozen seats were
vacated on the ground of the chronic infirmity of their holders. (Returns of
Members of Parliament 1878, p. 44 et seq.) By the exercise of an analogous but
distinct power they expelled Floyde because he was a monopolist, and Shepherd
because he had spoken disparagingly of the Puritan Sabbath.
7. It was with considerations like these in their minds that the Commons
approached the question of the holding of office l)y their Members. They do not
seem to have felt any objection to the holding of office in itself, provided the
office-holder was not thereby prevented from discharging his service to the
House. The Kings secretaries and Chancellors of the Exchequer, and also Privy
Councillors, had sat in the Commons since the reign of Henry VIII without
question. But doubts had arisen' about the position of councillors, who were
assistants of the Lords like the Attorney-General, and of the sheriff whose duties
kept him in residence in his county during his period of office. A set of cases,
involving a number of offices and evidently put forward as a test case, which is
recorded in the Journals and commented on in Hatsells Precedents, shows so
clearly the principles which the House of Commons was applying to questions
of this kind that it is worth briefly summarizing here. In 1606 at the beginning
of the third session of the first Parliament of James I the Lord Chancellor (no
doubt on the instructions of the King) sent the Speaker a list of certain members
of the House who had been appointed to office by the King since the last session
of Parliament " with direction to know the pleasure of the House whether the
same Members were to be continued or their places supplied with others . The
offices in question were those of the Chief Baron of the Exchequer and the
Treasurer at "Wars in Ireland, the Ambassadors Legier in France and in Spain
and His Majestys Attorney-General. The House responded by referring the
matter to a select committee and added certain other cases of a similar nature
which had not been mentioned in the Chancellors note. Upon the report of this
committee the seats of certain holders of office in Ireland, who were presumed
to hold their patents for life, were declared void, and new writs were ordered;

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 I4P APPENDICES TO XHE REPORT OF, THE SELECT CbMMITTEE
but the Ambassadors were permitted to retain their seats. The reason for this
decision was evidently that the vacated offices inevitably entailed absence from
the House of Commons, whereas an embassy was in the nature of a temporary
mission. (Hatsell i8i8 edition, Vol. II, 22 and 42; i C.J. 323.) This decision so
far as it affected Ambassadors was generally adhered to by ihe House, though
not without contrary decisions, and is accepted as daw to the present day.
(Hafsell op. dt. 22 and 23, May, 43.) The position of this oflSce, however, is not
free from obscurity in some particulars, especially if it is asked how it escaped
from the provisions of subsequent legislation such as the Act of 1707.
8. A similar consideration, which is really based on an exclusive claim to the
service of its own Members, determined during this period the House of Commons
attitude to offices which entailed attendance on .the House of Lords (as in the
case of the Judges, and for a time of the Attorney-General and-Kings Serjeants-
at-Law, and of the Clerk of the Parliaments). It also provided the ground at that
time for the exclusion of the clergy who were represented in Convocation and
who taxed themselves in Convocation until 1663. In spite of inconsistent
decisions, Hie House established the exclusion of the judges on this ground;
and this disqualification remained on the basis of the common law of Parliament
until 1873 . when it was made statutory under the Supreme Court of Judicature Act.
The disqualification of the Attoniey-General was enforced on several occasions in
the first half of the seventeenth century but was afterwards tacitly discontinued.
(Hatsell op. cit. 26-29.)
9. The question has been asked whether the Commons employed the formal
call of the House as a method for initiating action against Members who were
known or suspected to be unable to attend for reasons which entailed vacation of
their seats, such as permanent employment abroad in the Kings service or .
attendance on the House of Lords. This form might well seem to have been
a suitable one, but it does not in fact appear to have been usually
employed for this purpose. An examination of the precedents,* such as
those collected by Hatsell (op. cit. pp. 96-99), shows that the call of the House
was used generally to prevent slackness of attendance without any ulterior pur-
pose against individuals. The Kings service was sometimes accepted as an
excuse for absence. There is, however, one case where a Member was suspended
from his privilege for being absent in Ireland on the Kings service. On the
whole, it seems that the call of the House was connected with the penal juris-
diction of the House over its membersthey could be committed for contempt on
account of non-attendance. Questions of disqualification were dealt with by the
House either directly r>r on the report of select committees appointed to inquire
into them.
10. The Privilege phase of the Commons attitude to offices of profit under
the Crown has left a permanent mark on the law in the shape of the common law
disqualification of judges and clergy, and also on the position of sheriffs and
ambassadors. The existing position of those offices as later affected by statutory
law is examined below (paras. 33-43). In summing up the contribution to the
law made by this period one is struck by the inconsistency of the Commons
attitude. Why were judges, the Attorney-General, sheriffs, sometimes admitted
and sometimes excluded? Why was attendance on the House of Lords a bar in
itself while attendance oh the Kings service was only a bar if it meant employ-
ment physically inconsistent with attendance in the House? A reply (which
goes some way to answer the first of these questions), commonly given is that
the Commons could not be too definite in their decisions without playing into
the Kings hands. For he would use appointment to the excluded offices as a
means of ridding himself of inconvenient Members, since the medieval doctrine
of the Kings right to enforce service upon his subjects, however unwilling, stili
persisted. (See itatsells observations on this point, cp. cit. 24. 33. 60.) In
answer to the second question it may be that the Commons were feeling their
way to the sound constitutional doctrine that justice should be kept aloof
from politics, but could only express itrather imperfectlyin the language of
Privilege. Whatever the reason given the exclusion of judges was sound in
principle. With regard to the Attorney-General, and some of the other assistants

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN 141

oTthe Lords, the Commons found that the test produced' inconvenient results and
withdrew from it. With regard to the genferal body of the King's servants, whose
functions were executive, -&e question, which became acute in the next period,
whether their presence in the Commons was constitutionally desirable or not,
had hardly yet emerged; and the test which the Commons applied in this period
that of physical attendance^proved a makeshift which was soon discarded and
has had comparatively insignificant effects on the law as far as executive offices
are concerned.
2. THE " CORRUPTION " PHASE.

11. The title given to the second distinguishable phase in the attitude of the
House of t3ommons to the holding of of&ce under Hie Crown may, perhaps, be
excused as a convenient label since it indicates the mischief which the legislation
of this period was designed to provide against. This period runs from the
Restoration of 1660 to the establishment of Cabinet government, wherever that
date may be placed, somewhere in the first half of the i8th century. It is linked
with the former period, which has just been described, since it carried to its
logical conclusion, though by new methods, the ideal which had become possible
through the success of Privilege in that perioda constitutional balance between
an independent legislature and an independent executive. This was the ideal
which inspired its legislation about offices of profit. But it is also linked with
the third period. For it proved impossible in practice for Parliament and the
Crown to perform their allotted functions without interfering with each other;
and it soon appeared that a new issue would have to be fought out, namely
whether Parliament should be'dependent on the Crown, or the Crown on
Parliament.
12. It is interesting to observe that'in approaching this' problem, the House of
Commons in this period no longer relied on the machinery of decisions by the
House in mdividual cases, forming precedents to be generalized later into rules.
It relied upon statutes, that is, upon the concurrence of the Lords and the Crown,
even in defining the qualifications of its own membersa course which was
repugnant to the notion of Privilege. No doubt this was because Privilege had
failed to deal with the Holding of office under the Crown as such. New law was
required, and Privilege like the common law of which it wa^ part, purported only
to declare the existing law.
13. Soon after the Restoration the House adopted and repeatedly expressed a
new attitude towards the holding of office by its Members. As stated above,
under the Tudors, no objection had been taken to the presence of ministers and -
Privy Counsellors in the House of Commons. But in the light of the now firmly
established conception of themselves as an organ of criticism and opposition to
the royal governrnent, a large number of the Commons had come to regard the
acceptance of office by any of their Members as compromising their independence.
For, since the House of Commons had become too powerful to be ruled by
repressive methods, the arts of management were tried in their turn; and at
the beginning of the administration of Danby a comprehensive system was insti-
tuted of winning over individual Members to the- King's interest by the
distribution of offices and places of profit under the Crown. Offices, man/of
them sinecures, were continually created for this purposea development which
a section of the House watched jealously.
14. This attitude was responsible for a series of attempts to make the holding
of office incompatible with membership of the Commons. In 1675 a Bill for
declaring vacant the seats of any Members who accepted "any offices of benefit,
but permitting their re-election," was debated in the House of Commons and
defeated by a narrow majority (Greys Debates III, 53 and 58). In 1680 the
Commons resolved that no Member should accept a place or pension without
leave of the House (Parliamentary History, Vol. IV, p. 1270; Todd " Parlia-^
mentary Government in England," Vol. II, p. 70). This resolution was no more
than an interesting indication of the trend of opinion, as by this time the House
of Commons had ceased to be capable of extending its privileges, and was conse-
quently not by itself constitutionally competent to create a new disqualification

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 142 APPENDICES TO THE REPORT OF THE SELECT COMMITTEE
(Todd op. cit. 115). In 1692 a Place Bill " touching free and impartial proceed-
ings in the Commons " was passed by the House of Commons without a division
but rejected by the Lords. In the following year this Bill was reproduced in
substantially tiie same form and passed by both Housesr Its object appears
to have been to disqualify all oiSice holders under the Crown from a seat in the
House of Commons, but its effect was softened by the introduction of a proviso
in the Lords that all ofiBice holders whose seats should be vacated under this
Act might be afterwards chosen again to serve in the same Parliament. The
Commons concurred in this amendment; but the King, who regarded the whole
measure as an encroachment upon his prerogative, refused to give it the royal
assent.
15, These two expedients, (i) complete exclusion of office 'holders, and,
(2) vacation of seats without bar to re-election, were canvassed by the House of
Commons separately or together in a series of Bills during the last decade of the
seventeenth century. Eventually the expedient of complete exclusion was given
statutory effect in the Act of Settlement, 1701. But before this Act came into
operation the House altered its mind and embodied both expedients in the
Succession to the Crown Act, 1705, re-enacted after the union with Scotland
in 1707. This Act which is the basis of the greater part of the existing law on
the subject, applied the two expedients to different classes of offices, (i) absolute
exclusion, to new offices (offices created since 25th October, 1705), and certain
existing specified offices, and (2) vacation of seats with re-election, to old offices
(i.e.- those ih existence before that date). This Act contains certain other
provisions which are set out' in Mr. Attorney-Generals Memorandum.*
*.

3. THE MINISTERIAL RESPONSIBILITY PHASE..

16. The provisions of the Act of Settlement of 1701 (12 and 13 "Will. 3 c. 2),
may be regarded as the culmination and final expression of the conception prevail-
ing at this period of the relations between the Housg of Coni.mons and the Crown.
This was the conception of a balance of power and a division of functions, involv-
ing a distinction of personnel (not unlike that of the American constitution)
between the Executive and the Legislature. It was a conception which was
already growing out of date. The Commons were already ceasing to be exclusively
the focus of criticism and opposition to the royal government. The government
was ceasing to be something entirely external to the House of Commons. A
process had in fact begun which was destined to bring the government on to the
floor of the House of Commons; and to change the House of Commons from being
a body united, or almost united, in opposition to the Crown into a body, only
the minority of which- are opponents, while the majority are supporters, of a
ministry the chief members of which are necessarily also members of the House
of Commons. . ,
17. It is permissible to detect a dawning realization of this new constitutional
position, which required the presence of ministerial officers in the House of
Commons, in the Succession to the Crown Act, section 25 of which permitted the
re-election of Members accepting offices of profit jrom the Crown which were
already in existence. It is true that, in form, this section did not express any
constitutional distinction between ministerial and other offices. But it soon
became the model of subsequent provisions, such as section 3 of the Act of 1741
(15 Geo. 2 c. 22) which taken together, legitimize the presence in the House of
Commons of the holders of ministerial offices, whether created before or after 1705.
Yet, with all its exceptions it is, in the main, the old attitude of jealousy of the
power of the Crown to undermine the independence of the House of Commons,
the old suspicion of corruption, which underlies the basic statute of 1707, and
which still governs the interpretation of the law, whenever the House finds itself
called upon to decide doubtful cases of the holding or acceptance of offices of
profit under the Crown. A review of these cases (see paragraph 44 et seq.) will
show that most of them are unimportant and often of a merely technical character
and do not affect the constitutional position which is clear and simple.
* Appendix i, above. First Memorandum.

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 ON OFFICES OR PLACES OF PROFIT UNDER THE CROWN

The Succession to the Crown Act, 1707.

18. The intention of the Commons to make an exception to their general policy
of the exclusion of office holders in favour of the-holders of ministerial office
(which inspired most of their subsequent legislation on the subject) seems to be
clearly revealed in the proceedings between the two Houses which led up to the
Succession to the Crown Act. These proceedings are worth a brief description.
It may be pointed out that the Act of 1707 was a re-enactment of an Act of 1705,
made necessary in order that the provisions of. that Act might apply to the
succession to the throne as settled by, and to the Parliament created by, the Act*
of Union with Scotland. References are usually made to the Act, in its "re-enacted
form, |:hough the proceedings between the two Houses which resulted in the pro-
visions about office holders took place on the earher Act..
These proceedings may be summarized as follows:
Proceedings on the Act of 1705.
ig.(i) The Bill for this Act* which was introduced in the Lords purely as a
Regency Bill contained a provision enabling any Parliament in existence at the
Queens death to continue sitting.
(2) The Commons (considering this contrary to the provision of the Act ol
Settlement excluding from the House of Commons any person holding an office
or place of profit under the Crown after the succession of the House of Hanover;
inserted as an amendment a long clause excluding all placemen and office
' holders from the House of Commons except (among others) the principal officers
of state, certain officers of the household, the Commissioners and Secretary of the
Treasury, and the Commissioners of the Admiralty and the Treasurer and Comp-
troller of the Navy. ,
(3) On consideration of the Commons' amendments to the Bill, the Lords
repealed the disqualifying section of the Act of Settlement, disagreed with all the
effective words of the clause proposed by the Commons and made an amendment
limiting the disability to sitin the House of Commons to any person holding a
new office or place of profit under the Crown.
(4) The Commons disagreed to the Lords Amendments to the Commons
Amendments and desired a conference with the Lords.
(5) At the Conference the managers of the Commons gave reasons for their
disagreement to the effect that a total repeal of their clause would admit such an
unlimited number of officers to sit in their House as might destroy the free and
impartial proceedings in Parliament and endanger the liberties- of the Commons
of England.
The managers of the Lords insisted on their amendment repealing the dis-
qualifying section oT the Act of Settlement for a number of reasons of whicji the
first is the most significant, Because they conceive the said general disabling
clause ought to be repealed, as inconsistent with the nature and constitution of
the English .Government. For to enact, that all persons employed and trusted
by the Crown shall, for that reason alone, become incapable of being trusted by
the People, is in effect to declare, that the interests of the Crown and of the
People must be always contrary to each other: which is a notion no good
Englishman ought to entertain.
(6) The Lords also insisted, with lengthy reasons, on their amendment limiting
the disability to sit in the House of Commons to any person holding a new office
or place of profit under the Crown which at any time hereafter shall be created
or erected.
(7) Eventually the Commons agreed to the Lords amendments with an extension
of the disqualifications to certain other classes and added three new clauses
enabling members accepting offices of profit from the Crown to be re-elected,
limiting the number of Commissioners for executing offices, and excepting officers
of the Navy and Army who accepted new commissions from the scope of the
bill..
The Lords agreed to these Amendments and the Act received the royal assent
on igth March, 1705-6.
* 4 A 5 Anne, c. 20 (Statutes of the Realm); 4 Anne, c. 8 (Ruffhead's edition).

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.
 144 APPENDICES TO THE REPORT OF**THE SELECT COMMITTEE
20. This summaiy of the proceedings between the two Houses is compiled from
the Lords and Commons Journals. I propose to add, as an Appendix to this
^Memorandum,* a full narrative of the relevant proceedings extracted from the
Journals of the two Houses. This shows fairly clearly what the divergent points
of view of the two Houses were. The Lords had no sympathy with the Commons
sjispicion of office holders, and went so far as to say their exclusion ..was " incon-
sistent with the nature, and constitution of the English government; It. is
worth recalling that the Lords were Councillors bom, and that the great
officers of state and. of, the household had been summoned to sit in their ^House
from'the beginning of Parhament, and that.the judges and some other officers
were still summoned, though now as their assistants. But they were prepared,
as a concession to the prejudices of the Commons, to exclude from the House of
Commons the holders of any offices which should be created in the future. The
Lords are thus the authors of section 24 of the Act of 1707. For their part, the
Commons (or their majoritythey were very equally divided) began with the
simple plan of excluding all office holders with the exception 01 specified officers
who held what would now be called ministerial offices. Baulked of this
they fall back on their old expedient, which dated back tp their first legislatipn
on place-holdingin 1675, and inserted the provision about re-election, limiting it,
however, to persons accepting offices from the Crown. Section 25 is thus the
work of the Commons.
21. It is not surprising that two sections, inserted by different parties with
different points of view and divergent purposes, are not very coherent. They
are, indeed, formally inconsistent, and it has generally been accepted as necessary
to go outside the text of the statute in order to make sense of these sections.
The usual method is that adopted in Rogers on Elections, Nineteenth Edition,
Vol. II, pp. II and 49, namely to take section 25 as applying only to old offices.
It, is very doubtful whether this was the meaning intended by the Commons when
they drafted their section to apply generally. Another mettiod of reconciling the
sections seems possible. When it is recalled that .the original intention of the
Commons was to exclude all but specified office holders, who were mainly the'
principal officers of state, it is probabld that the distinction they wished to
express was that between offices from the Crown and offices under the
Crown. The principal officers of state and of the household, who accept their
offices direct from the Crown, would be the principal category falling into the
former class. This is a comparatively^^small sub-division of the whole class of
offices under the Crown. It may bl; then, that the Commons wished to give
exceptional treatment to this sub-division of offices, whether old or hew. They
were, on this hypothesis, more restrictive than the Lords in making the acceptance
of old offices froni the Crown subject ta vacation of seat and re-election. But
they were more liberal than the Lords in making the acceptance of new offices
from the Crown not a complete disqualification but subject to the same con-
dition. On this construction, there would' be four categories of offices with
different conditions as to qualification, namely:
(1) Old offices from the Crownsubject to vacation of seat and re-election.
(2) Old offices under the Crownentirely free from disqualification.
(3) New offices from the Crownsubject to vacation of seat and re-election.
(4) New offices under the Crownentirely disqualified.
22. The ordinarily accepted construction of the statute makes no distinction
between new offices from the Crown and new offices under the Crown. A test
of the Commons original intention would be a case occurring soon after 1707 of
the re-election of a Member after the vacation of his seat on the acceptance of a
new office of profit from the Crown. So far I have not been able to find such a
case. The fact that, when new offices from the Crown were subsequently created,
provision was made for their acceptance subject to vacation of seat and re-
election, is not conclusive. Provision was made as early as 1741 for the holders
of old offices under the Crown to be qualified to sit in the House of Commons,
when they were already, unde^ either construction of the statute, qualified. The
* See First Appendix below.

House of Commons Parliamentary Papers Online.

Copyright (c) 2006 ProQuest Information and Learning Company. All rights reserved.