HC Deb 10 December 1964 vol 703 cc1839-98
Mr. Nigel Birch (Flint, West)

I beg to move Amendment No. 8, in page 2, line 34, to leave out subsection (2).

The Chairman

I think that it would be for the convenience of the Committee if, with this Amendment, we discussed the Amendments No. 15, 17, 24, 25, 26 and 30.

Mr. Birch

As we have maintained throughout, this Bill is one of very considerable constitutional importance and I think that Clause 3 is perhaps the most important of the Clauses. It has become known as the "Placemen Clause". The question of placemen in the House of Commons is something which has exercised this House for a number of centuries. The first agitation was in the first part of the seventeenth century. It was not, I think, until Danby, towards the end of the seventeenth century, that the system of placemen was really highly developed.

Under this system the idea was to get into Parliament as many men as you could who were in the pay of the Government and who held real or sinecure offices and were paid for them. Then it was made perfectly clear to these men that unless they voted the straight ticket they lost their jobs. It was, of course, an effective way of managing Parliament. In the reign of Queen Anne there was some reform, but as late as 1741 there were still 200 placemen in the House—so that, in fact, the Prime Minister has not got quite as far as did Walpole. One remark was made by Walpole to which I shall advert later. He said that he only used his pecuniary powers over place-men to induce them to vote in accordance with their consciences.

There was a further reform under Rockingham and then the whole matter of placemen was cleared up and has not seriously arisen in this House for many years. But the thing has been at the back of everyone's mind, as was clearly shown by the Report of the Herbert Committee which has been so often referred to. The Herbert Committee was acutely conscious of the danger of too many placemen in the House and made that position perfectly clear.

In the Bill there is a change which is really a very startling one because the number of placemen rises from 70 to 91. As The Timesjustly pointed out, if we add the P.P.S.s and the hangers-on we have a situation in which there are between 130 and 140 people attached to the Government, making very nearly half the voting strength of the Government. As I say, that is a very startling change. When the right hon. Gentleman the Chancellor of the Duchy of Lancaster murmured "Four and a half per cent." at one stage, he was using statistics a little roughly. It is a very startling change.

I was rather rattled by the words of the Attorney-General during the Second Reading of the Bill. The right hon. and learned Gentleman said: The figure of 91 … is … the number of Ministers whom the Prime Minister wishes to sit in the House of Commons today. That is the beginning and end of the matter."—[OFFICIAL REPORT, 19th November, 1964; Vol. 702, c. 649.] This seems to be a claim that, contrary to precedent and contrary to parliamentary practice, a Prime Minister has the right to have any number of Ministers in the Commons that he likes and to increase the number of 91 today. That is a very bold and distressing claim. What a masterful little thing the Prime Minister is! What we have to decide in the House of Commons is whether the Prime Minister is acting rightly, or seeking to be a sort of utility Danby.

There are certain things which ought to give us pause. The first is the size of the Cabinet. The Prime Minister denounced my right hon. Friend the Leader of the Opposition for having a Cabinet of the exact size which he then produced. The Cabinet was clearly inflated by the Prime Minister above the number he thought suitable in order to bring in more people for more offices, to balance all the various claims and to make his own position more secure.

The next worrying thing is the subject of the new Ministries. It would have been just possible, before last night, to think that there was something in these new Ministries, but after the performance of the Chancellor of the Duchy of Lancaster, one hardly knows what to think. He must have had a brief, I suppose, and if he had a brief, I presume that he could read it, and if he could read it, he could speak to it. But we had no clear explanation at all of the functions or division of powers, or how the new Ministries are to work. For that reason, these new Ministries cannot be taken very seriously.

We did not even discuss all the new Ministers last night. Except very cursorily, we did not discuss the Secretary of State for Wales and his two minions, both sitting in the House of Commons. I hope that we shall have a debate on that subject. These appointments are most damaging to the administration of Wales and quite unnecessary, and the new system will work far less well than the previous system. One of the oddest appointments of the lot is the Minister without Portfolio, a sort of modern Groom of the Stole. He may have been put there to protect the police; I do not know.

Looking down the list of Ministers, thoughtfully produced separately from HANSARD, one gasps every now and again as one goes through the names. The aged Parliamentary Secretaries and the extremely Left-wing types are put in simply to maintain the balance. Of course, there are many C.N.D. or ex-C.N.D. members who are put in. One flattering unction which the Prime Minister will not be able to lay to his conscience, to his soul, is that he put in these people in order to persuade them to vote according to their consciences. The situation must be very slightly different.

The Prime Minister has attached to his Ministry very many people to whom he would not have been able to give office without increasing the number of offices. If we are to take the Attorney-General seriously, the Prime Minister reserves the right to create more and may well soon need to create a few more. What about the hon. Member for Penistone (Mr. Mendelson)? He may be given the job of assisting the Paymaster-General in his arduous duties. I think that he could tell the Paymaster-General a thing or two about security. Then there is the hon. Member for Poplar (Mr. Mikardo). He may have a job. He may choose the acid test of the sincerity of hon. Members opposite and be given the job of assisting coloured settlement in Hampstead Garden Suburb. I suggest that the Bishop of Southwark would be only too willing to leave his own "Dead See" to assist him.

There is an almost infinite variety of things which can be done at public expense to hold together a party which is disintegrating. It is already being done in this Clause. I believe that to be wrong. From the way the Bill was introduced by the Attorney-General, I believe that the Prime Minister clearly reserves the right to go further in this way. He has already gone too far. I believe it is wrong and evil to go further and I therefore hope that the Committee will accept the Amendment.

Mr. Michael Foot (Ebbw Vale)

I was taunted by the hon. Member for Ormskirk (Sir D. Glover) last night for not having participated in the discussion on the Bill, although having listened to most of the debate. It is an extremely odd situation in which I find myself that when I speak I am rebuked and when I do not speak I am rebuked. I must, therefore, choose the best course to follow in order to win the favour of the Committee, which, of course, is always my pursuit.

To enlighten the hon. Member for Ormskirk, I did not speak on the three propositions which we were discussing yesterday—whether there should be a separate Minister for land and natural resources, whether there should be a separate Minister for overseas development and whether there should be a separate Minister for technology—because I happened to agree with all three propositions, and it seemed to me that it would be trespassing too much on the indulgence of the Committee if I spoke on a matter about which I entirely agreed with the Government.

I am not in entire agreement with the Government on this Clause, which is why I am exercising this opportunity to speak. I hope that that will relieve the hon. Gentleman of his anxieties on this score.

Sir Douglas Glover (Ormskirk)

The hon. Gentleman has returned to the path of virtue.

Mr. Foot

I was in the path of virtue yesterday and again today. Sometimes the path of virtue leads us to support the Government, occasionally to make constructive criticisms, but always the narrow path of virtue is where I seek to tread.

It is extremely difficult to do so after having been provoked by the right hon. Member for Flint, West (Mr. Birch). He is a very strange person to lecture Prime Ministers on whom they should choose and whom they should not choose to have in their administrations. He made some reference to those excluded from the present Administration. I agree that it is a lonely privilege in a sense, but I do not mind the rebuke from those quarters. If I am excluded from an Administration, it is because of a hypothetical assessment of my abilities which may be made by the Government, but when the right hon. Gentleman is excluded from Administrations it is because of soundly based and broad experience.

The right hon. Gentleman was excluded from the Government, or he excluded himself, and every subsequent Conservative Prime Minister took great care not to have the right hon. Gentleman in his Administration again. He is not the best person to lecture us on these matters. If I can give any advice to the present Leader of the Opposition —and I do not have any particular eagerness to assist him—it is, when I see the right hon. Gentleman sneaking back to the Front Bench, not to take that viper to his bosom, because he may be treated by the right hon. Gentleman with the same degree of loyalty which the right hon. Gentleman showed towards the previous right hon. Member for Bromley.

We do not need lectures from the right hon. Gentleman about how Prime Ministers should select Governments, particularly when we know of the circumstances in which he was excluded. The right hon. Member for Monmouth (Mr. Thorneycroft), when he was excluded from the Government in 1957, during a previous balance of payments crisis, was described as "a local difficulty". How immeasurable must be the insignificance of the right hon. Member for Flint, West, if his leader was a local difficulty. The right hon. Gentleman does not speak with quite the authority in the House of Commons that he pretends.

The right hon. Gentleman gave us a rather selective lecture on the history of these matters, going back to Queen Anne. I do not mind the Government sweeping away Measures operating, introduced or embellished in the days of Queen Anne, but, looking over the history, as I did somewhat to equip myself for this debate. I found one Measure which existed in the days of Queen Anne which I would like my right hon. Friends to reintroduce. In the days of Queen Anne, there was the very agreeable system by which, in order to deal with the delinquencies of their predecessors, incoming Administrations impeached. It would be very agreeable to have that.

Knowing that my right hon. Friends have many other things on their minds, it would be a very good thing if they resurrected the idea of a full-scale impeachment, when we could deal with this situation even more skilfully than we have. I say that especially to show right hon. Gentlemen opposite that I am not in any way prejudiced against Measures introduced or modified in the days of Queen Anne, because that was certainly a Measure which would have come in very handy in October, 1964.

4.30 p.m.

Having said that, there are, in my own opinion, some defects in the Bill. The setting up of the new Ministries is, I think, a perfectly reasonable thing to do. Despite all that was said so tediously yesterday—and it was repeated so that we got the point of what they were trying to say—I seem to recall some important occasions in history when a new Ministry was set up, even though it caused difficulties in enlarging the numbers that had to be brought in to the Government, and even though it caused difficulties with the Civil Service. We were told by the right hon. Gentleman yesterday that the Civil Service was aghast at the consequences of the Bill before us, although, when I interrupted him and asked him to give one single instance of how they were aghast, he said that it was his opinion and that he had no evidence.

There have been cases when the Civil Service has been aghast at what has been done—when all the orthodox people have thought that it should be done in a different way, when everyone has said, "You must not set up a new Ministry", because that would upset the whole patern and mosaic which they like to preserve in Whitehall—but when, in fact, the setting up of such a new Ministry has had beneficial consequences for the nation.

Such an example was the establishment in 1940 of the Ministry of Aircraft Production. Of course, the rest of Whitehall was up in arms. They said that it was outrageous to set up a new Ministry; that it had to be defined carefully. But when that Ministry was set up, there were no explanations given to the House of Commons such as hon. and right hon. Gentlemen were asking for throughout yesterday. They set up that Ministry to get on with the job.

The Chairman

I think that the hon. Member is getting a little wide of the Amendment 'that we are discussing. He cannot cover the whole traverse of the policies of various Governments.

Mr. Foot

I quite understand, Dr. King. I was amazed at your moderation. I thought that you might have interrupted me much earlier. I just wanted to put the argument I wish to present exactly in its proper perspective. I find that when one is to criticise one's own Government, it is always a good thing to say something nice about them at the start—it puts them in an unsuspecting mood.

The main propositions for the Bill are perfectly legitimate. Some of us had the good fortune to listen to the right hon. Gentleman the previous Patronage Secretary yesterday. He made a very large hole in the Bill. I think that his criticism of the payment of Whips and the scale of payment of Whips is perfectly correct—not because I have anything against Whips. I think that they are perfectly well in their place. They perform a reasonable function and we all know that the House of Commons could not function without them.

Therefore, I am not making a gibe at them, but I think that the Government should have been more careful in considering the extension of the number of Whips who were to be paid. I agree with the right hon. Gentleman that there is a strong case for saying that although it would be proper for the Government to extend the number of Whips who were to be paid, it also would be proper to combine that with a system of a number of Whips who were not paid. That is a question that I should like the Government to consider further. There again, Dr. King, I was merely setting the question in its proper perspective.

I come to the question of the so-called numbers of placemen. The right hon. Gentleman said in his speech, quite truthfully, that there had been cases when there were many more Members of the House of Commons who were subservient to the Executive because of the payments they received, or were supposedly subservient on that account. There have been occasions when the proportionate numbers were much greater than they will be under this Bill, and the right hon. Gentleman was fair enough to say that that had happened in the latter days of Sir Robert Walpole. But, of course, there have been many more recent occasions when the numbers of Members of the House of Commons who were receiving incomes, or who were in other ways subordinate to the Executive, were much greater than is proposed under this Bill.

When we examine the situation that occurred in the wartime Parliament, when we had a Coalition Government after 1940, and when we had representatives from all three parties in the Government and add together all those in the House of Commons who were, in one way or another, attached or beholdened to the Executive, the numbers were very much bigger. All this was tolerated with very little protest from hon. Members opposite. The right hon. Member for Carlton (Sir K. Pickthorn), I think, protested sometimes, and a few others, but in the wartime Parliament there were only a very small number of Members on either side who protested against the exorbitant growth of the Executive control over the House of Commons as a whole. Therefore, it makes me a bit sceptical about accepting at their face value some of the protests that hon. and right hon. Members opposite make, because when the power of the Executive was allowed to grow much greater they made no protest at all.

Of course, they could argue that that was all due to the war and that was the reason why it was tolerated. But I think that it is as necessary to maintain the rights of Parliament in war time as it is in peace time. Indeed, the powers of Parliament and of the House of Commons that were retained in war time had, I think, an extremely beneficial effect on the conduct of the war, on the surveyance of the Executive generally, and in the preparation for the peace.

Therefore, right hon. Gentlemen opposite, particularly the right hon. and learned Member for St. Marylebone (Mr. Hogg), who have been participating in the debates on this Bill, did not make any protest on this score during the wartime Parliament. Indeed, the right hon. and learned Gentleman supported, during that period, the Measures taken by the Executive to enlarge its authority. The right hon. and learned Gentleman and several others who were supporters of the Government at that time, not merely supported the proposition that many more Members of the House of Commons should be subordinate to the Executive—which is what they are criticising today—but they even passed the House of Commons Disqualification Act, which enabled the Prime Minister of that time to give a certificate to anybody he wanted, who was a Member of the House of Commons, to serve the Government somewhere else and cease to represent his constituents.

Mr. Quintin Hogg (St. Marylebone)

I am sorry to interrupt the hon. Member's excellent speech. I am not fundamentally quarrelling with his description of my support for the Government during the war, but he will bear in mind that for two years and, in particular, the two years to which he was referring, I was a serving officer in the Middle East.

Mr. Foot

I was not referring to the period when the right hon. and learned Gentleman was serving, I am sure with extreme gallantry, in the Middle East. I was referring to speeches which he made in this House, and I assure him that, however notable his services to our military victory, he was hardly making a military contribution when he made those speeches in the House.

I read the speeches which the right hon. and learned Gentleman made on this subject, when strong protests were made by a tiny minority in the House against the enlargement of the power of the Executive. All I am saying is that the influence, the power and the oratory of the right hon. and learned Gentleman were thrown in the opposite scales in the debate yesterday.

The right hon. Baronet, to whom I will give way in a minute, has a very long record in this matter, but, as far as I recall and from what I have read of the debates, his influence was thrown in a different direction. He was almost as critical of the Executive extending its power then as he is today, but if he wishes to correct that statement I will be glad to give way to him.

Sir Kenneth Pickthorn (Carlton)

I am glad to have that testimonial. I was not the only righteous person. It is fair to remember the immense difficulty in conscience as well as in practical application of opposing a wartime Government, especially when, plainly, we were not winning the war. There was opposition, and there were modifications. The Bill to which we are referring, the "Winston" Bill, was opposed. A considerable number of people—almost all Tories, I think—opposed it. There are other instances, including the instance of Yalta. It is an unfair history of the war which has been given.

Mr. Foot

I cannot give the whole history of the Second World War in a single sentence. However, anyone who listened to what I said will, I think, agree that I did not misrepresent the attitude of the right hon. Gentleman. I went out of my way to be fair to him. I did not say that he was the only righteous member of the House. I do not mind an occasional barbed compliment to him, but I will not talk such nonsense as that. He played his part, but there were several others, who did the same.

It is not the case that it was only Conservative Members who played a part. The leading part taken in opposing the exorbitant power of the Executive in those days was taken by the previous Member for Ebbw Vale. The right hon. Gentleman, if he looks it up, will see that more persistently, although not more garrulously than himself, the former right hon. Member for Ebbw Vale opposed the Government on these matters.

As it was not mentioned by the right hon. and learned Member for St. Marylebone, or even hinted at by the right hon. Member for Flint, West, in his attempt at a historical survey of the situation, it was perfectly proper for me to recall that there has been an occasion in recent history when the Executive enlarged its control over the House of Commons much more extensively than is being proposed by this Government; and it did it without a squeak of opposition from those who were so raucous yesterday. That is one argument.

It does not mean, however, that because a previous House of Commons approved a larger number of people being subordinate to the Executive in the war-time Government we should approve the figures proposed today. Personally, I do not like this enlargement. I understand the reasons why it has been done. If one goes through the different Ministries which have been established, one can see why they have been set up. As I have said, although I cannot elaborate this matter on this new Clause, there is a very good case for the establishment of all the individual Ministries and for their being provided with Parliamentary Secretaries and Ministers of State.

However, I think that the Government, although they will get the Bill, and although they have increased the numbers, should apply themselves to the problem of how they can reduce the numbers. They should not imagine that the extension in numbers is accepted readily on both sides of the Committee. This is something which should be conceded only to deal with the emergency situation which the Government came to power to deal with. Personally, I hope that steps will be taken over the months and years ahead to reduce the number of Ministers, to overhaul the whole position of Parliamentary Secretaries and to ensure that we do not have the vast proliferation of Parliamentary Private Secretaries, which is also unnecessary for the conduct of the affairs of the House of Commons.

4.45 p.m.

The reason why I object to this is the same as that which the right hon. Gentleman stated, although he has not a very good record in the matter. It is necessary that the independence of back-bench Members of the House of Commons should be protected. I want to see it done, but I am very doubtful whether right hon. and hon. Members opposite want to see it done, not only because in recent history they took no steps to sustain the case which they have been advancing in the past two days, but because the Government's proposal in the Bill, although it enlarges the number of Ministers as against back bench Members in the House of Commons—and I regard that as reprehensible—is coupled with a reform which should be accepted, approved and welcomed by those who wish to sustain the authority of the House of Commons.

The Bill also restores to the House of Commons some of the authority which, by previous Measures, was, in my opinion, improperly transferred to the House of Lords. Previous Bills of this kind have insisted that a certain number of members of the Government shall be members of the House of Lords. Hon. Members opposite who pretend that they are so enthusiastic about protecting the rights of the House of Commons have never raised any squeal about this. They do not mind Clauses being put in a Bill which insist that there must be a certain number of Ministers in the House of Lords, however dunderheaded they may be. They never raise their voice on behalf of the House of Commons against the House of Lords. They are quite prepared to tolerate that. They never objected to the appointment of a Foreign Secretary in the House of Lords. They have never objected to the lack of balance in our Constitution whereby more powers were left in the House of Lords.

Therefore, although I have criticisms of the Bill, which I have stated, I hope that the Government, over the next year or two—they will be in power for many years, so they can look to the future; I do not say that they can do everything in their first Parliament, but they must consider this in their second Parliament—will take steps to reduce the number of Ministers and the number of subordinate Ministers in different Departments. It would be good for the House of Commons and for the health of the country that they should do it. But I will not support those who, under cover of protecting the rights of the House of Commons, are seeking to protect the privileges of the House of Lords. If the right hon. Member for Flint, West had said one word in criticism of previous Measures which insisted that a certain number of members of the Government must be members of the House of Lords—if he had said one word in condemnation of that system—his argument would have been more powerful.

Mr. Birch

The hon. Gentleman must have noticed that his own Prime Minister has just sent a number of his most priceless pearls to another place.

Mr. Foot

I understand that. Because, like previous Prime Ministers, my right hon. Friend uses the House of Lords as a political convenience, it does not mean that I have to support him. I am opposed to that. What I am trying to unravel is the political principles on which right hon. and hon. Gentlemen opposite oppose the Bill. I have stated the political principles on which I oppose it; they are quite clear.

I want to sustain the authority of the House of Commons. But right hon. and hon. Members opposite do not want to do that. The right hon. Gentleman talks about the Prime Minister sending people to the House of Lords. Why does not he pluck up his courage and say one word in criticism of the provisions in previous Statutes which insist that a Prime Minister must have a certain proportion of Ministers in the House of Lords?

Mr. Hogg

Will the hon. Member cite those Statutes in detail?

Mr. Foot

I shall not be caught out on a silly old lawyer's trick like that.

Mr. Hogg

I may be a silly old lawyer, although whether that is an exactly Parliamentary description the Attorney-General and the Solicitor-General are better qualified to judge than I. The point is that I was not aware of that particular statute. As I understand, the whole of this series of Measures are designed to specify not which Ministers, or what number of Ministers, should be in the House of Lords, but only that no more than so many should be in the House of Commons.

Mr. Foot

I hope that if I were indulging in direct abuse of the right hon. and learned Gentleman, which is often very tempting, I would call him something more apt than merely a silly old lawyer. I did not call him a silly old lawyer. I said that it was a silly old lawyer's trick, which is a very different matter. It applies to all lawyers. William Hazlitt, the greatest journalist ever to sit in the Press Gallery of the House, said that the one thing that gave him respect for the House of Commons was its contempt for lawyers here. The right hon. and learned Gentleman's intervention fortifies me in that view.

Everyone knows that one of the main reasons why the Government had to go ahead with this Measure was because, as the practice operated—I do not care about the language or which Statute it happened to be in—it insisted that a certain number or proportion of members of the Government had to be in the House of Lords. That was the practical effect of the Measure which is being partly altered by the Bill.

If right hon. Members opposite had had the slightest interest in genuinely protecting the rights of the House of Commons, they would at least have welcomed that part of the Bill. Therefore, their opposition on this Clause is as hypocritical as was their opposition on the previous Clauses. It may be a sad disillusionment to them that they can expect no support in the Division Lobby from me in this matter. They must make much a better case than they have done so far to win such a prize as that. I hope that this relieves their minds, because we all know that the last thing they want is a General Election. I have, therefore, put them out of their misery by the same stroke as I put the Government out of theirs. I have delighted the whole Committee.

I hope, however, that despite the utterly frivolous and incompetent manner in which hon. Members opposite have conducted their opposition to the Bill, despite their blundering from one mare's nest to another, despite their utterly contemptible attacks upon my right hon. Friend the Chancellor of the Duchy of Lancaster, who yesterday put the case brilliantly and skilfully and who gave right hon. Members opposite exactly the retorts they deserved—despite all this, I hope the Government will not be distracted from listening to the still, small voice of reason which urges them to understand that the enlargement of the numbers of the Government is something which they should watch carefully and that, as soon as they have been able to put our balance of payments crisis in order and deal with all the other disasters that were left on their doorstep, they will turn their minds to this matter, look up the speech which I am now making, remove the parts of it which I had to interpolate to squash the Opposition, but recognise the wisdom of what I say.

Mr. J. Grimond (Orkney and Shetland)

I can only presume that the hon. Member for Ebbw Vale (Mr. Michael Foot) is looking forward to being a Minister of State in the Duchy when new Ministers of State are appointed. If he does not want the company of his own side of the House of Commons or, I gather, of the Tories, we will be delighted to have him. It was unwise for the Prime Minister not to have found a nook or cranny in the Administration for the hon. Member. There must still be jobs to be given away. I can only think it must be because the Prime Minister desires to have one member of the ruling Labour family on the back benches. Or it may be that the hon. Member will find himself in the other place. There have been some remarkable appointments there, including members of the hon. Member's family and, indeed, of mine who have lately arrived there.

The Chancellor of the Duchy of Lancaster has put us in great difficulty over the Bill. For my part, I am more than willing to consider changes in the machinery of government, I am more than willing to consider an overall increase in the number of members of the Government, but I am terrified by the reasons given by the right hon. Gentleman. Yesterday, many of us came here very much in favour of the Ministry of Overseas Development, but by the time that the Chancellor finished with it, it was extremely difficult for even the most passionate upholder of it to vote for it. Today, therefore, I hope that the right hon. Gentleman is in better form after a long night's rest and will return to his usual precision and general attitude that any Government should be examined when they are in any way paving the way for vast expenditure of public money and a considerable increase in personnel.

I must return again to the justifications as given on Second Reading for this increase in the number of Ministers. The right hon. Gentleman said that it was to provide concentrations of activity and responsibility". Many of us think that the result may be to do exactly the opposite, that so far from concentrating activity and responsibility it may actually dissipate it. Secondly, the right hon. Gentleman said that it was directed to the objective of providing modern government to deal with the complexities of modern life … As I remarked the other day, we are the Government now. The frame-work of Government and the reorganisation of the machinery of government, subject to the approval of this House, must meet the desires of the Government of the day."—[OFFICIAL REPORT, 19th November. 1964; Vol. 702, c. 751.] With all respect to the Chancellor of the Duchy of Lancaster, that is not the only criterion. Certainly, the desires of the Government of the day and what they want to do are one criterion, but it is also important to realise that any changes of this sort affect the relationship of the Legislature to the Executive and have effects throughout the structure of Government. Therefore, it is not enough for the Government simply to say that they want jobs for these people and that they will create them. They must take into account the effect upon the House of Commons and upon the whole structure of our political life.

Furthermore, I am sure that the right hon. Gentleman will agree that it is a bad principle of administration first to find the people whom they want to employ and then to discuss the jobs for them. There needs to be first some sort of job specification as to what these people will do. In fact, however, the Government have set about it the other way round. They have made these appointments under the Prerogative and, even now, we are told that only at a future date, when Orders are laid, will we have any opportunity of discussion.

The effect upon the House of Commons has been touched upon. The objection is not the old one that the Crown would send people to the House to exert direct influence upon it. That is not the objection which weighs with us today. The objection is that 130 Members on the Government side are now subject to Government control, that this upsets the balance within the House of Commons as a whole and, saving the presence of many distinguished Members opposite who are not in the Government, that a great concentration of talent on the Government side is muzzled. We saw that clearly yesterday. The hon. Member for Ebbw Vale is the first Member from the Government side who has spoken in the whole of this debate upon the substance of this important Bill, which is important not only to the Opposition, but to every hon. Member.

I agree that this is a serious matter. On previous occasions when there has been a big increase of this nature, it has been customary often to set up a committee to discuss either particular aspects of the machinery of government or the whole matter. It is time again for further consideration of the whole relationship of the House of Commons to the Government and of the machinery of government in general.

At the moment, however, all we can do is to look at the list of offices and make up our minds whether the increase is justified. Glancing down the list quickly, we have a Secretary of State for Wales. My party advocated such an appointment and we are pleased to see it, but the holder of this office seems to have extremely little to do and it is difficult to ascertain his functions.

There is a Minister without Portfolio, who is to do something about legal matters. Again, I am wholly in favour of legal reform, but we have four Law Officers already in the Government. Over the page of this document concerning the Government we still have a Secretary of State for the Colonies and one for Commonwealth Relations as well as the new Department of Overseas Development.

5.0 p.m.

I would feel now that these Departments might well have been reduced to two, if not one. Further, there might be some Departments of Government which could be abolished. The Chancellor of the Duchy, in his Second Reading speech, drew my attention to remarks made by the Prime Minister over the air. I thought that there was something familiar about this, and then realised that I had taken part in this discussion.

The Prime Minister, who was then Leader of the Opposition, at one point said: We should, of course, be saving in one or two Ministers— and the interviewer. Mr. Norman Hunt, said, "Such as?". The Leader of the Opposition said: I do not think that a Labour Prime Minister would want to have a Chancellor of the Duchy of Lancaster. No wonder the right hon. Gentleman has been fighting so hard.

This is not quite the whole story. He described the Chancellor of the Duchy as … doing nothing at the taxpayer's expense but looking after the Conservative Party, or even the Labour Party, in a Labour Government. Then he went on to deal with Cabinet Ministers dealing with information and said: You would save two Cabinet Ministers right away on that. The Chancellor has drawn our attention to this statement. He described it as constructive and sober. I wonder how it appears to him now.

I should have thought that there may be some saving to be made. There seems to be a sudden inflation in the offices of Government. The Office of Minister of State was, until lately, very little used at all. There were 11 in the last Government and there are now 19. For a time, I understand that the Government thought that there were 18, but they discovered another one, so there are now 19. This seems to be very much like upgrading upgrading of members of the Diplomatic Service to be ambassadors. It will probably continue until practically the whole Government are Secretaries of State. I should have thought that this, too, is something the House of Commons should watch.

Again, during the Second Reading debate, the Chancellor of the Duchy said that it did not very much matter that the Herbert Committee had said that if only 10 per cent. of Members of the House were members of the Government this was all right. The Government were only proposing 14½ per cent. It is the effect upon the Government side of the House which matters and it is, as has been pointed out, the number of private secretaries and the other people who, today, even if they are not active Members of the Government are closely associated with it, they cannot bring independent criticism upon its doings.

The Attorney-General was described late last night as a "would-be dictator". I have never taken that view of the Attorney-General. I do not think that it is strictly true. In their treatment of the House, however, over the Bill, the Government have certainly given me the impression that they did not think that the House of Commons should be informed. I am not talking about details of policies of Ministries, but I do not believe that either the Attorney-General or the Chancellor of the Duchy have gone out of their way to inform the House of Commons why these Ministeries are necessary. Not even a reasonable case has been made out.

I certainly came to these debates agreeing that some reform of government was necessary, agreeing that there were new functions to be proposed, but feeling that there may be old functions which are no longer so important, and feeling, too, that while we are creating new Ministers we might well streamline the whole process of Government. It might well be that, so far from creating new Ministries, we might bring some old ones under a common umbrella. I do not think that this has been dealt with by the Government at all. I hope that today we are to get from the Chancellor rather more than he told us in the debate on Second Reading. I do not believe that the House of Commons should accept the steady increase from 47 Members of the Government at the time of the Herbert Committee's Report—60 were said to be permissible, but there were only 47—to 70 to 91. If it is to be 91, I do not accept the Chancellor's view that the House must accept 91, merely because the Prime Minister has 91 people for whom he wants to find jobs. What the House should be concerned about is that there are 91 jobs to be done, not that this Administration is creating jobs and then finding people to do them.

We are coming to the end of the Bill. The whole argument has run right through it that the House has no desire to thwart the Government in any legitimate job, but the Government have to explain to the House of Commons that there is a job to be done. If they say that there is a job to be done in this way, they must take not only the wishes of the Government into account but their effect on the House and, finally, that it is the job, and not the people for the job, which is the first consideration.

Mr. Ian Percival (Southport)

I want to invite the Committee into some rather narrower fields than those through which the hon. Member for Ebbw Vale (Mr. Michael Foot) so entertainingly cantered a short while ago. They are, none the less, directly—I would say even more directly—connected with the limit which we are discussing. I am afraid that in view of the hon. Member's contempt for lawyers he may find it hard to bear, but I hope that he will suffer it with fortitude.

On a number of occasions the right hon. and learned Gentleman the Attorney-General has assured the House and the Committee that all that has been done has been done lawfully. Of course, I do not doubt for a moment that that is his view, but, equally, I do not doubt that he would readily agree that there are some difficult questions of law involved in this Bill.

I want to seek some information and guidance on some of the points which, I suggest, are relevant to the question of the limit with which we are now dealing. As these points are technical and time is short, I hope that the Committee will forgive me if I make frequent reference to notes in the interests both of precision and speed. The starting point is this. The Attorney-General told the House on Second Reading that there are 87 Ministers now sitting in this House, whereas the limit as previously understood was 70. He explained that, of these, 22 did not count, leaving 65 who did. Of these 65, 26 were in part I and 39 in part II of the Schedule to the Act of 1957.

As to the 22, the Attorney-General said on Second Reading: At present there as 87 Members of this House holding office in the Government, but I shall endeavour to explain why it is not an infringement of the limit of the 70 prescribed by the Act. It is because 22 of them hold offices which are not specified in the Schedule and 18, including the Assistant Whips, have agreed to serve without remuneration."—[OFFICIAL REPORT, 19th November, 1964; Vol. 702, c. 647–8.] As I understand, those two points are directly related. The Attorney-General is saying that there are 18 who, if they were paid, would come within the definition of Ministers of State and would be included in the Schedule, but, because they are not paid, those 18 are not included. As to the other four, he merely says that they are not specified in the Schedule and the question of payment is not relevant to them. We hope that he will answer questions asked about these four. The Attorney-General has been kind enough to answer in full a very detailed request for particulars which I delivered to him. He sent me an answer in a document which looks very much like a football pool, though I mean no disrespect to him in saying that.

The Attorney-General

I think that that is how I described it in my letter to the hon. and learned Gentleman.

Mr. Percival

That is how the Attorney-General described it and I can think of no document so like a football pool which I have understood so well. I am obliged to him for it, because it is very clear and I will base what I have to say upon it, but, for the sake of brevity, I will not refer to it in detail.

I should like to draw attention, first of all, to the position of the four Ministers in respect of whom no point is taken on the question of remuneration. These are the Minister of Overseas Development and the Parliamentary Secretary to that Ministry and the Minister of Land and Natural Resources and the Parliamentary Secretary to that Ministry. I take these from the Schedule given to me by the Attorney-General.

First, may I say a word about the Minister of Overseas Development. We learned last night that functions have in fact been transferred to this Minister. This has been done under the Ministers of the Crown (Transfer of Functions) Act, 1946, which provides for such transfers to be by Order in Council. The Act also provides that the Order in Council may provide for the modification of Schedule 2 to the Act of 1957 to allow for the change which has been brought about by the Order.

In every other similar case in which I can find that this has been done, in the Order in Council transferring the functions there is a common form provision which makes sure that on the change of name which usually results, that name is added to the Schedule. I therefore looked at the Minister of Overseas Development Order (No. 1) expecting to find that common form provision or similar in it. Of course, if that common form or similar provision had been in it, adding the Minister of Overseas Development and the Parliamentary Secretary to the Schedule, that would have increased the numbers to whom these limits applied to 27 in the case of part I and 66 in total. It is, therefore, surprising to find no such provision whatever included in the Minister of Overseas Development Order (No. 1)—and this is the only Order of this kind which I can find where such a provision has not been included.

I should like to ask the Attorney-General these questions: was that an oversight or was it deliberate? If it were an oversight, how did it come to be left out in this one case when it is so plain that the very subject is under discussion in the House and is of such importance? If it were deliberate, was it done so that these two Ministers should not be added to the numbers to which the limit applies? If it were not for that reason, what was the reason? Is it intended that this should be only temporary and that, as soon as the Bill has been passed, an Order will be laid bringing these two Ministers into the Schedule? Unless such an Order is made they will never be brought into the Schedule.

Finally, would the Chancellor of the Duchy and the Attorney-General not think that the most appropriate form would be for an Order in the common form, as adapted to this case, to be laid immediately so that these people who are Ministers, and who are exercising functions which have been transferred to them, are in the Schedule?

Sir D. Glover

Ought it not to be done before Report?

Mr. Percival

I have not asked for it to be done for Report. I asked the Attorney-General to consider laying such an Order immediately. If that can be done before Report, so much the better. It would be a short Order. I am suggesting for the consideration of the Government that it should be laid as speedily as possible. I agree with my hon. Friend. If that cannot be done in time to have it before us on Report, at least the Government ought to consider whether the Report stage ought to be deferred just long enough for them to take this step.

Next, I want to say a word about the Parliamentary Secretary to the Ministry of Overseas Development and the Parliamentary Secretary to the Ministry of Land and Natural Resources. Here, again, the Attorney-General does not seek to exclude them on the ground of non-payment. They are excluded on the ground that they are not specified in the Schedule. No point has been taken on remuneration so far. If we are seeking to exclude these people on the narrower ground that they are not specified in the Schedule, it is necessary to have a better look at the position.

I suggest to the Attorney-General and to the Chancellor of the Duchy that if one excludes the question of payment it is plain that both these gentleman are within the definiton of Minister of State; neither is in charge of a Department and neither holds an office specified in the Schedule. One therefore cannot exclude them, as the Government have attempted to do, simply on the ground that they are not specified in the Schedule, because they are in fact specified by definition. This brings the numbers up to a total of 67 and 28 in Part I, which is over the limit of Part or, if the Minister of Overseas Development were brought in, to a total of 67 and 29 in Part I.

May I next invite the Committee's attention to the question of the 18 who are said to be excluded because they are not paid? I suggest to the Government that in respect of these 18 they have their figures wrong and should look at them again. First, I draw attention to the fact that the Minister of Defence for the Royal Navy has been excluded. I dare say that is because in the House we regard him more as a Minister of State, but the line which has been taken on the Bill by the Government is that it does not matter what one thinks a Minister is; one must look simply at the Schedule and at the precise wording of it. If a person is within those precise words, he counts, and if he is not, then he does not count.

5.15 p.m.

Further to that consideration, I suggest that the Government cannot have it both ways. I submit that the Minister of Defence is plainly within the terms of the Schedule. All it says is "Minister of Defence"; it does not say "The Minister of Defence". It is clear that if I appoint a Minister of State and call him Minister of State "for Foreign Affairs", the fact that I include the words "for Foreign Affairs" does not have the result that he ceases to be a Minister of State. If I appoint a Minister of Defence, the fact that I add the words "for the Royal Navy" makes no difference; for the purpose of the Act he does not cease to be a Minister of Defence.

In any of these references to Ministers one could, of course, have any number of Ministers. One could have two Ministers of Science and two Ministers of Agriculture, if the Prime Minister saw fit to appoint them. If there were two Ministers of Science or two Ministers of Agriculture they would both count, because those are generic terms. There is no "the" or "a" in front of them.

Here, the short fact is that the Minister of Defence for the Army and the Minister of Defence for the Royal Navy come clearly within the wording of "Minister of Defence". If this addition is made the total becomes 69, and 29 in Part I of the Schedule; or 70 and 30 in Part I, if we include the Minister of Overseas Development.

Finally, I want to ask one or two questions about the position of the Minister of State. Here, again, if the Committee forgives me, I will refer frequently to my notes. Precision is required here, and I am trying to be both quick and clear on the points on which I am seeking guidance. It has been said from time to time that Section 13(1) of the Act of 1957 is the statutory authority for paying a Minister of State. It has been said that this authorises payment of an unlimited number and an unspecified and unlimited salary. It has been said many times, and I need not refer to the occasions on which it has been said.

I do not challenge what the Attorney-General said at 3 a.m. or thereabouts this morning—that this is how it has always been regarded by Parliament. But one can only assert, and accept that by putting upon Section 13(1) and the references to Minister of State a construction which leads to that result. In saying that Section 13(1) is the authority for payment, does it not follow of necessity that the Government are saying that these provisions are to be construed as meaningless and that if a person has been appointed Minister of State he has by definition been appointed at a salary, and that that is the Parliamentary authority for the payment of that salary?

I am interested to know what other construction leads to the suggested result. I tried early this morning to have the opportunity to listen to another construction which would produce the result. I am suggesting that if Section 13(1) is to be treated as the statutory authority one must put that construction upon it. I say again, is that not the only way of construing this definition for payment as the authority for payment, that is to say, by construing it as meaning that the appointment as a Minister of State is automatically an appointment at a salary, in fact that an appointment at a salary is mandatory? There is nothing surprising about that, because Clause 2(1,b) of the Bill itself makes the payment of the salary mandatory, in more specific terms it is true, but the only way that I can see at the moment of construing Section 13(1) as being the authority for payment is by construing it in that same way.

It is to be observed that in most cases one might perhaps ask, "How could you have a mandatory payment of a salary the amount of which is left to the discretion of someone else?" That is not my problem but the Government's problem. That is exactly what Clause 2(1,b) of this Bill does. It makes the payment of salary mandatory and leaves someone else to fix it. I suggest that the only way that one can construe Section 13(1) as authority for paying Ministers of State—and paying an unlimited number an unlimited amount—is by placing that construction on it.

If that is so, will not the right hon. and learned Attorney-General agree that a Minister of State cannot cease to be a Minister of State merely because he agrees to serve without remuneration? Is that not trying to balance the coin on both sides at the same time? I respectfully suggest to the Government that this matter needs to have another careful look taken at it, and it may be that if the Government were inclined to lay the Order for which I have asked either before Report that would give the opportunity to consider these points as well.

Even that, however, is not the only point which arises on Ministers of State in the context in which we are discussing them, because, even if that were wrong, it would still be necessary to know the precise terms on which each Minister of State was appointed before one could form an opinion as to whether they exclude him from the Schedule or not. There are no documents available to give us guidance on the matter. I understand that the only documents referring to appointments are HANSARD and the records kept at No. 10 Downing Street. There is no record available to Members of the House. Therefore, I think that the Committee should be given a little more information on the point, and I will endeavour to assist in that by defining the information which I have in mind.

First of all, it has often been said in the course of our debates that Ministers of State can be and are to be appointed at different rates of pay. Therefore, I would like to ask one of the Government spokesmen whether those Ministers of State who are said to be excluded were informed at the time of their appointment what would be the rate of pay applicable to them and for how long they agreed to serve without receiving it. Were they told, in effect, "You will have to serve without that pay until we can authorise it, but we will put through a Bill as quickly as we can to authorise it."? If they were not told that, what were they told?

The Chancellor a the Duchy of Lancaster (Mr. Douglas Houghton)

What the hon. and learned Gentleman says seems to be the common sense of the matter.

Mr. Percival

I rather think that they must have been told the rate which was to be applicable to them and that it would be paid to them as soon as it could be authorised.

Mr. Houghton

indicated assent.

Mr. Percival

The right hon. Gentleman says that that is what happened, that they were told the rate which they were to be paid and that it would be paid to them as soon as it could be authorised. Perhaps when the right hon. and learned Gentleman the Attorney-General replies he will say whether he considers that that is not an appointment at a salary, because, I suggest to him, that if a person is told that the rate of pay applicable to him is, say, £4,500 and that he cannot have it for the moment because the Statute does not authorise it, hut that as soon as a Bill has been put through he will, that is an appointment at a salary.

I should be interested to hear why that is not an appointment at a salary, because if those were the terms of appointment then the Government really may be in trouble. If they were—and I have recited the terms as indicated to me by the right hon. Gentleman the Chancellor of the Duchy of Lancaster, and he has not indicated any dissent from my summary of them—then these people, I suggest, were plainly appointed at a salary. If so they are all within the Schedule and the "excess" of Ministers appears to run into double figures.

I would only add that even if they had not been appointed on those terms and even if there had not been any reference to salaries, it would only be if we could be assured that there was not even an implied obligation to pay them that one could seek to exclude these persons by saying that they were not appointed at a salary.

In view of the understanding as to time, I have endeavoured to put these points as briefly as possible. I hope and believe that it will be plain, from the attention which the Chancellor of the Duchy and the Attorney-General have both kindly and courteously given to them, that these points were put forward only after prolonged consideration of the statutes in question. I hope that I have done justice to them, although I have tried to run through them far more quickly than I should like to have done, because I think it of great importance to the Committee and the House that when we are considering a new limit we should have some idea of how the present limit has worked in practice so that we can form some assessment of the effect of the new limit which is proposed.

Also, I respectfully suggest to right hon. Gentlemen on the Government Front Bench that this point raises some very serious questions as to the qualifications of a substantial number of Ministers who sit and vote in the House. We all accept that anyone can make mistakes. Let us accept for a moment that this was done in good faith—I do not question that—but I would suggest that if it appears at any stage that there is some doubt whether some Ministers are entitled to sit and vote in the House that is a matter which the Government should take time to consider carefully rather than simply try to hustle the Bill through.

I hope that we shall receive today some answers on these points. The right hon. Gentleman has kindly given me the answer to one of the questions, but even now the Government might think it right to take time to consider these questions and whether there are not, in fact, a substantial number of Ministers in the House who are not entitled to be here.

5.30 p.m.

The Attorney-General

I will first deal with some of the matters of law which were referred to by the hon. and learned Member for Southport (Mr. Percival). The point which must be emphasised in the approach to this problem is that the numerical limits which are imposed by the 1957 Act apply only to holders of the Ministerial offices listed in the Second Schedule of that Act. Consequently, any appointment to a Ministerial post not listed in the Schedule does not count against the statutory limits.

That means that the Government do not exceed the statutory limits if they appoint, firstly, Ministers in charge of Departments which are not specifically named in the Schedule—that is, the new Ministries in this case—and secondly, Ministers who are not in charge of, or in, Departments named in the Schedule, so long as they are not appointed at a salary. Of the Ministers with whom we are concerned, it is not correct to say, as the hon. and learned Member for Southport said, that there are 18 Ministers of State who are unpaid. The total number of Ministers not being paid, and if they were paid would be Ministers of State, is 20. These 20 Ministers were appointed without salary. They were not appointed at a salary. They have drawn no salary. They are today drawing no salary. Therefore, they are not Ministers of State within the definition of that term in Section 13, which in turn governs the reference to the words "Minister of State" in the Schedule. I am satisfied that no illegality has been committed by the Government in this matter.

On the question of the Statutory Instrument, the Transfer of Functions Order only amends Schedule 2 of the 1957 Act when it is a necessary consequence of the other provisions of that Order. The Minister of Overseas Development (No. 1) Order, to which reference has been made, does not transfer all the functions of the Secretary for Technical Co-operation to the new Ministry. His office continues to exist and, therefore, there is no need or justification for substituting a reference to the Minister of Overseas Development for references to him in Schedule 2 of the 1957 Act. In my submission, there is no question of illegality in regard to what the Government have done, and the statutory limits have not been exceeded.

Mr. Grimond

Would the right hon. and learned Gentleman clear up one point? I understand his contention to be that Ministers of State are not Ministers of State for the purpose of the 1957 Act because they were not paid. Can he say what they were, because I can find no other definition of "Minister of State" except as someone who draws a salary? Were they Ministers of State or were they not Ministers of State?

The Attorney-General

They were Ministers but not Ministers of State within the meaning of the 1957 Act. They are Ministers appointed under the Prerogative as Ministers. They were and are Ministers, but they are not Ministers of State within the meaning of Section 13, first, because they were not appointed at a salary and, secondly, because they are not in charge of any public Department. They are, consequently, Ministers within Departments. Therefore, these two categories of Ministers—those in charge of Departments which, because they are new, are not specifically named in the Schedule, and, secondly, Ministers not in charge of Departments and not paid—do not count against the statutory limit.

Sir Peter Rawlinson (Epsom)

If these Ministers are not Ministers of State, what has been the position in regard to their Parliamentary salaries during the past two months? Have they been paid £750 as Ministers or have they received their salaries as Members of Parliament?

The Attorney-General

I will take instructions on that because I cannot give an immediate answer. At any rate, what is certain is that they have not been drawing salaries as Ministers. Indeed, it may be that they have been drawing a lesser sum than they might be entitled to as Members of Parliament. I asked for assistance and have been told that they have been drawing their Parliamentary salaries in full as Members of Parliament. I am happy to receive that answer because there might have been some difficulties in an applied admission of a different status. I am reassured to hear it because, if I recollect aright, that is the advice I gave at an earlier stage in this matter.

In view of the time I have been asked to try to speed up my observations.

Mr. Percival

I, too, tried to speed up my observations. The trouble is that things keep emerging to change the situation. Is it not a fact that Parliament provides that a Minister shall draw only a proportion of his salary? Thus, if these Gentleman have been drawing £750, by Statute the £750 paid to them can be regarded as Members' pay while the rest must be regarded as pay for something else.

The Attorney-General

They have been drawing salaries as Members of Parliament. They have been performing their duties as Ministers without salary and they have been merely drawing the income to which they are entitled as Members of Parliament. They have in recent weeks been engaged in heavy labours on the basis of merely drawing their salaries as Members of Parliament. I should have thought that all hon. Members would be grateful to them for the sacrifices they have been making.

I will move on to what I have understood to be the points of substance. When moving the Second Reading I ventured to suggest that this was a technical Measure involving no question of constitutional principle. I adhere, without apology or withdrawal, to that view. The provision which the Opposition Amendment we are discussing seeks to delete does two things. It is a provision which removes the limit of 27 on the number of senior Ministers who may sit in the House of Commons and it raises from 70 to 91 the limit on the number of Ministers of all grades who may sit here. I submit that there is no question of principle involved in either of those operations.

As to the limit of 27, we have heard practically nothing about it in the course of either the Second Reading or Committee debates. It first appeared in our law in 1957 and nothing was said about it in the debates in the House of Commons at that time. It was not canvassed in the Herbert Committee Report and if it is a constitutional principle of importance, it has indeed come into being in a very strange way.

It has been said that the object of the provision in regard to the limit of 27 is to ensure that a certain number of senior posts shall be held by Ministers who sit in another place. As I pointed out on Second Reading, the Statutory provisions in the 1957 Act certainly do not achieve that result, and my hon. Friends and I do not recognise any constitutional principle which makes it desirable that that result should be achieved; namely, that a certain number of senior posts shall be held by Ministers in another place.

I indicated that the existing law was defective to achieve that result, if that was intended. In our view, the right constitutional principle is that, as far as possible, the heads of the great Departments of State should be members of this House, where they can be answerable for what they have done, and for their Departments, to the elected representatives of the people. We deem that to be the overriding principle.

The right hon. Member for Flint, West (Mr. Birch) engaged in some curious arithmetic over the limit of 91. He contended that about half the members of the Labour Party in the House of Commons are now members of the Administration. His intellectual brilliance is known to and admired by us all, but it does not extend to simple arithmetic. There are 317 Members on this side of the Chamber, and the totality of members of the Government, paid or unpaid, Ministers or P.P.S.'s is 116. How 116 is made a half of 317, I do not quite follow.

The fact is that if we approach the matter from the point of constitutional principle we are confronted with two of the three principles dealt with by the Herbert Committee. The first is undoubtedly the principle that there is need to limit, by preventing an undue proportion of office holders from being members of this House, the control that the Executive may have over the House of Commons. We accept that, which is why, instead of simply abolishing altogether the statutory limit of 70 in the 1957 Act, as we might have done, we have altered it to 91.

We have, however, to balance against that principle the other emphasised by the Herbert Committee, namely, the provision that a certain number of Ministers should be members of this House so as to ensure the control of the Executive by Parliament. When one looks at all the facts and realities of the matter one finds that, in practice, the situation we have in the new Administration differs very little from that which existed in the previous Administration.

The right hon. and learned Member for St. Marylebone (Mr. Hogg) is with us merely in the body but not in the mind at the moment, enjoying a no doubt well-earned repose on the Opposition Front Bench, and I find it really a cruel act to disturb him—I do now apologise to the right hon. and learned Gentleman, but as I was about to refer to some of his weekend observations upon this matter, I thought it as well that he should hear me.

The right hon. and learned Member is an occasional contributor to the Sunday newspapers, writing articles no doubt intended to make the flesh of the public creep. He made the point in a weekend article recently that the control exercised by the Executive by virtue of its patronage is also effective over those who hold unpaid office. Indeed, he put it almost on a parity of potential control and influence; that unpaid hangers-on, or whatever other elegant language he used, are just as susceptible to influence and control as the paid ones. If that is so it strengthens my point, because the following is the factual numerical position.

The number of members of the previous Tory Administration in the House of Commons holding paid and unpaid offices—and I include in the number the Parliamentary Private Secretaries—was 110. The number now is 116. So the area of great constitutional principle that we have been debating all night is the difference btween 110 and 116. It is, of course, 116 out of 317 as long as this Parliament lasts but, of course, that proportion will be rectified in the next General Election. In any case, is it really to be said that the size of an Administration should depend on the numerical strength of the Government party in the House of Commons? That is a very remarkable constitutional doctrine.

5.45 p.m.

I submit that the true basis of the whole constitutional approach should be for the Government to decide what Ministers they require for the machinery of Government to be properly operated—for the Government to work efficiently—and then to ask for full Parliamentary authority for any changes in the machinery of Government.

While we are dealing with this matter, I should like to make a further factual point. The overall totality of office holders in the present Administration—Ministers and Parliamentary Secretaries in this House and in another place—is 137. The total in the Tory Administration was 133. The country has therefore been treated to massive humbug in the approach that there is some tremendous departure from a basic democratic principle. There is nothing of the kind.

This is nothing more than a piece of machinery. This Bill is no more than a piece of machinery, and it has never even begun to be anything else in spite of attempts by right hon. and hon. Members opposite to make a great constitutional issue of it—

Mr. Ian Gilmour (Norfolk, Central)

Can the Attorney-General say definitely, in relation to his figure of 116 in this House, that all Parliamentary Private Secretaries have been appointed, or do a good many more remain to be appointed?

The Attorney-General

I am told that all have been appointed. As I speak for the Government in this matter I do not need to say by whom, but I am told that particular care has been taken to avoid enlargement of the numbers of Parliamentary Private Secretaries in order to avoid any realistic basis for a complaint that something different is being done in this Administration as compared with the last one.

I submit that there is a certain element of insult in the Opposition's approach to the matter. The suggestion of the corruptibility of Members of this House in this year of 1964 that is implicit in the criticisms that have been made is an unwarrantable one but, in any event, the Government accept the principle that there should be a limit on the numbers of Ministers in this House, and that limit has been placed at 91 in this Bill. The difference between 91 and 70 constitutes no difference of principle. I submit that the Government have throughout acted in this matter both lawfully and constitutionally, and I accordingly invite the Government to reject the Amendment.

Sir K. Pickthorn

I think what we have just heard must at least suffice to persuade the Committee— I could have wished that it were a more numerous Committee—to persuade the Committee that it would be very wrong to part with this Bill this day. The right hon. and learned Gentleman and his right hon. Friend were given ample warning of these points on Second Reading. At that time they waved them away as inconsiderable. They have been reminded of them since. They made no attempt whatever to answer them.

The right hon. and learned Gentleman simply begged the question about whether the use of a name not appearing in the old Schedule sufficed and had nothing whatever to say about these other categories which my hon. and learned Friend the Member for Southport (Mr. Percival) said ought to have been deducted from the legitimate Ministerial strength in this House. If I may say so without appearing to patronise my betters, my hon. and learned Friend's speech was a model of succinct completeness and of continuous clarity. It deserved a continuous argument in answer. It has had nothing of the sort.

If I were to criticise my hon. and learned Friend, it would be for being over moderate, because even if it were provable that none of these Ministers—the Ministers of State is the point I am on now—enjoyed as a result of appointment any emolument direct or indirect, or any hope of emolument, even if all that were proved, it would be a very long way—the right hon. and learned Gentleman knows this perfectly well—from showing that they were not holding offices of profit. This is an enormously difficult, Byzantine and metaphysical question. What is an office of profit at the moment? I would not explain it to the Committee. I have heard it explained by experts, incidentally before both Select Committees referred to today, but I would not dare without special briefing to explain it. It is a very difficult question indeed, and to enter upon this Bill without having found out absolutely certainly about this seems to be a constitutional outrage which is almost unprecedented.

The Attorney-General

Will the right hon. Member allow me to remind him of the fact that the 1957 Act substituted for the conception of an office of profit a list embodied in the Schedule of Ministers who were described, described pre- cisely and clearly, so as to eliminate this agonising appraisal—which, I entirely agree, was a difficult one—of what constituted an office of profit. That exercise has been done, and what has been done by the Government is in full accord with consideration of the Ministries listed in the Schedule.

Sir K. Pickthorn

I fully understand that. I fully understood it at the time of the Select Committee and when we passed the Bill. I have fully understood it throughout, but it does not meet my point. Why does the right hon. and learned Gentleman think it necessary to persuade the Committee that Ministers of State have received no payment? Unless it is in some sense some vestige of the old verbiage, it means nothing at all. Why are they not being paid?

The Attorney-General

Because if they had been paid they would be holding an office listed in the Schedule and would count against the limit. That is the simple answer. I have given it many times.

Sir K. Pickthorn

Exactly, and that is what I am saying. Whether they have been paid for that purpose is as difficult a question and a closely similar and connected question as I would be willing almost to argue, if I had provided myself, with time and reference as nearly identical with that question which the right hon. and learned Gentleman rebuked me for getting wrong. Either they are paid or they are not paid. Either they are Ministers of State or they are not. We were told that they were Ministers of State. When did they cease to be Ministers of State? Why did they take oaths? How do they perform their duties if they are not Ministers?

The Attorney-General

If the hon. baronet is seeking assistance such as I can give, they are not Ministers of State within the meaning of the phrase, "Ministers of State" in the 1957 Act. That is the simple and clear position.

Sir K. Pickthorn

The simpler and clearer position is that the Statute of 1957 said that if one wanted to be a Minister of State one had to fulfil three conditions—two of them negative and irrelevant at this moment—one positive, which was to be paid. That is what the Statute tells us about what makes a Minister of State—he has to be paid. And I say that I guess a man who is appointed by a Prime Minister to be Minister of State is a paid Minister whether or not he is taking the money at that moment or not.

The only point on which I criticise my hon. and learned Friend the Member for Southport—the only other point—is that he very kindly did not emphasise the effects if he is right. I do not promise that he is. Throughout this matter I have been interrogative. I have known that these are very difficult things to understand, but if my hon. and learned Friend is anything like right the Government have not anything like a majority in this House. If that is so, what happens next? I do not know which hon. Members have looked at this. It is such a pity that we have abolished the common informer. Would the right hon. and learned Gentleman who is so much amused have been so sure and confident in his law if there were a common informer in the bar downstairs?

The Attorney-General

indicated assent.

Sir K. Pickthorn

I hope so. I am not sure whether it will be outside the bounds of Parliamentary order if I were to say, I hope so with difficulty.

There was some slight consolation given to those of us who had a tender feeling for the common informer in the provision for consultation with the Privy Council. I mentioned this on Second Reading. I can see that it would be difficult for a Government to do it, but I cannot believe that legal ingenuity would make it difficult for a Government to do it. I still do not feel that the Committee could possibly with decency accept the argument we have heard this afternoon as making it clear that those Ministers above the number that the old Statute prescribes for sitting in this House are doing so not improperly and are capable of voting and have not in effect have strictly speaking, not voted yet and cannot until something more is done. This seems to be the situation into which we have got ourselves.

Admitting that I—and, what is far more important, that my hon. and learned Friend the Member for Southport who understands the law better than I do and has taken infinite trouble over this—admitting for argument sake that we may be wholly wrong and admitting that legally speaking, or legalistically speaking as he prefers, the right hon. and learned Gentleman the Attorney-General is wholly right, who could have listened to these debates, who could have read the Bill and heard the whole debate and then doubt that this was carrying legal chicanery far beyond the bounds of what one with the most ingenious vocabulary could utter in public?

There are two Select Committees' Reports to be read. The assumption is that the object is to make a limit, and a limit which a ministerial sie volo cannot get round, to the number of placemen sitting in this House; there is that assumption over and over again. I could give lots of Socialist quotations to this effect. Over and over again that was admitted to be the purpose. When it comes to construing not only the Bill but the law as it was, and is, before the Bill, the right hon. and learned Gentleman's picture on Second Reading of what the law then was I will undertake to say bore no relation whatever to anything which anyone, including the present Home Secretary, had previously thought was the law.

I need not remind the right hon. and learned Gentleman of Heydon's case in 1584. It is a very old and settled principle of the law that, if it is desired to make up one's mind what an Act means, one begins by seeing what the law was before, what was the mischief or defect for which remedy was sought, and then examine the remedy provided by Parliament. According to the right hon. and learned Gentleman, the law as it stood before Second Reading was nothing whatever like we thought it was. According to him, the law is now going to be nothing whatever like we think it ought to be, because, according to his argument, there is no reason whatever why this Prime Minister or any other Prime Minister should not under their Bill's direction, whenever he chooses, appoint as many Ministers as he chooses.

6.0 p.m.

Sir Martin Redmayne (Rushcliffe)

I am sure that the Committee is ready to come to a decision on the Amendment. Nothing that the learned Attorney-General said will keep my right hon. and hon. Friends out of the Lobby. What I want to concern myself with for a few moments is the position of the hon. Member for Ebbw Vale (Mr. Michael Foot). He made an entertaining and cogent speech largely in support of the Amendment. Since at the same time he is falling over backwards to support the Government, I feel that he must still be firmly upright. I hope in a very few words to persuade him to swing that little bit more which would bring him happily into our Lobby.

The feature of the subsection which has not had enough attention is not the one which limits the total number to 91 but that which prescribes a limit of 27 under Part I. This was abandoned by the Prime Minister. As a result, it has given him a most subtle range of rank and pay throughout the whole scale of the 91 Ministers. This runs, therefore, right the way through without any sort of barrier from the Assistant Whips, through the traditional Whips, through Parliamentary Secretaries, through Ministers of State of a infinite variety, both of pay and rank, through heads of Department and Cabinet Ministers.

To illustrate what I mean by the infinite variety of Ministers of State, I return for a few seconds to the point I made last night on another Amendment about the Deputy Secretary of State for Defence. We elicited from the Attorney-General the information that this Minister of State was to be paid £5,000 a year, which is the normal rate for the head of a Department or Cabinet Minister, despite the fact that he is neither. This, to my mind, is an example of a devious placemanship in detail which should be examined.

There is only one Deputy Secretary of State now, but the way is fully open for there to be a Deputy Secretary of State for Foreign Affairs or a Deputy Secretary of State for the Home Department. These are very powerful carrots for further loyalty, both the promise of promotion in status and the promise of promotion in pay. One can foresee that there might well be a Deputy First Secretary of State. This would be a very interesting position. He could not have a higher rate than £5,000 a year, but I do not doubt that by some means he would have danger money.

The point so cogently made by my hon. and learned Friend the Member for Southport (Mr. Percival) has not been satisfactorily answered. I do not doubt that it will have very careful exploration before the Bill is through in another place. Indeed, I think it is a pity that exploration cannot take place now, although these subjects, as I understand it, are relevant to the next group of Amendments.

It comes back again to the point so well made by the hon. Member for Ebbw Vale. Whatever the Attorney-General may say about the relationship of the number of Ministers to the size of his party, he cannot get away from the fact that this Government will have the greatest number of Whips for the smallest back bench party in modern history, or indeed, in any history. As I said last night, one paid Whip to 16 Members is an extraordinary proportion, rivalled only, through misfortune of circumstance, in the Liberal Party.

I well recollect, when I served in a different kind of organisation from this, that one used to hear talk of a small number of men almost entirely surrounded by officers. I would describe the back benches of the Labour Party as being small numbers of Members almost entirely surrounded by Whips. This should have its effect on independent Members like the hon. Member for Ebbw Vale. The hon. Gentleman referred to the narrow path of virtue. He has always found this path very narrow. He will find it unbearably narrow under this regime. I therefore advise him to break away from it now and come and vote with us.

My next point is a very serious one, and I address it most particularly to those back-bench Members of the Labour Party who have in the past been so hot in defence of private Members' rights. The more Ministers there are, and after all Ministers are very closely under the control of the Chief Whip in any party—

An Hon. Member

Does the right hon. Gentleman speak with knowledge?

Sir M. Redmayne

Certainly with knowledge. I am sure my right hon. Friends will agree with that. They are at least far more under control than the fine independents. When we come to private Members' time, Private Members' Bills, Private Members' Motions, it will be a little too easy for the Patronage Secretary to call out these large reserves of paid men to stifle the fruitful initiative of his own back benchers.

The Parliamentary Secretary to the Treasury (Mr. Edward Short)

Is the right hon. Gentleman teaching me a lesson?

Sir M. Redmayne

I shall be happy to teach the right hon. Gentleman many more lessons during the short time he will hold his office. I shall watch with slightly malicious joy the Patronage Secretary, who has in his time been such

a healthy champion of the rights of back benchers, stimulating all 14 of his paid hands to shout, "Object".

I will not waste the time of the Committee any longer. My right hon. and hon. Friends will certainly divide the Committee. I call on the workers below the Gangway opposite to unite with us. They have nothing to lose but their chains so deviously forged by their Leader.

Question put, That the words proposed to be left out stand part of the Clause:—

The Committee divided: Ayes 222, Noes 175.

Division No. 42.] AYES [6.9 p.m.
Albu, Austen Foot, Michael (Ebbw Vale) Mclnnes, James
Allaun, Frank (Salford, E.) Ford, Ben McKay, Mrs. Margaret
Alldritt, W. H. Freeson, Reginald Mackenzie, Gregor (Rutherglen)
Allen, Scholefield (Crewe) Garrett, W. E. McLeavy, Frank
Armstrong, Ernest Garrow, A. MacMillan, Malcolm
Atkinson, Norman George, Lady Megan Lloyd MacPherson, Malcolm
Bacon, Miss Alice Ginsburg, David Mallalieu, E. L. (Brigg)
Beaney, Alan Gourlay, Harry Mallalieu, J. P.W. (Huddersfield, E.)
Binns, John Greenwood, Rt. Hn. Anthony Manuel, Archie
Bishop, E. S. Gregory, Arnold Mapp, Charles
Blenkinsop, Arthur Grey, Charles Marsh, Richard
Boardman, H. Griffiths, David (Rother Valley) Mason, Roy
Boston, T. G. Griffiths, Rt. Hn. James (Llanelly) Maxwell, Robert
Bowden, Rt. Hn. H. W. (Leics S. W.) Hamilton, James (Bothwell) Mayhew, Christopher
Boyden, James Hannan, William Mellish, Robert
Boyle, Rt. Hn. Sir Edward Harrison, Walter (Wakefield) Mendelson, J. J.
Bray, Dr. Jeremy Hart, Mrs. Judith Millan, Bruce
Brown, Rt. Hn. George (Belper) Hayman, F. H. Miller, Dr. M. S.
Brown, Hugh D. (Glasgow, Provan) Hazell, Bert Molloy, William
Brown, R. W. (Shoreditch & Fbury) Heffer, Eric S. Monslow, Walter
Buchanan, Richard Henderson, Rt. Hn. Arthur Morris, Alfred (Wythenshawe)
Butler, Herbert (Hackney, C.) Hobden, Dennis (Brighton, K'town) Morris, Charles (Openshaw)
Carmichael, Neil Holman, Percy Mulley, Rt. Hn. Frederick (SheffieldPk)
Carter-Jones, Lewis Horner, John Murray, Albert
Chapman, Donald Houghton, Rt. Hn. Douglas Newens, Stan
Coleman, Donald Howarth, Harry (Wellingborough) Noel-Baker, Francis (Swindon)
Conlan, Bernard Howarth, Robert L. (Bolton, E.) Noel-Baker, Rt. Hn. Philip (Derby, S.)
Corbet, Mrs. Freda Hughes, Emrys (S. Ayrshire) Norwood, Christopher
Craddock, George (Bradford, S.) Hughes, Hector (Aberdeen, N.) Oakes, Gordon
Crawshaw, Richard Hunter, Adam (Dunfermline) Ogden, Eric
Grossman, Rt. Hn. R. H. S. Hunter, A. E. (Feltham) O'Malley, Brian
Cullen, Mrs. Alice Irvine, A. J. (Edge Hill) Oram, Albert E. (E. Ham, S.)
Dalyell, Tam Irving, Sydney (Dartford) Orme, Stanley
Darling, George Janner, Sir Barnett Oswald, Thomas
Davies, G. Elfed (Rhondda, E.) Jeger, George (Goole) Owen, Will
Davies, Ifor (Gower) Jeger, Mrs. Lena (H'b'n&st.P'cras,S.) Page, Derek (King's Lynn)
Dell, Edmund Jenkins, Hugh (Putney) Paget, R. T.
Dempsey, James Johnson, Carol (Lewisham, S.) Palmer, Arthur
Dodds, Norman Jones, Dan (Burnley) Pargiter, G. A.
Doig, Peter Jones, Rt. Hn. Sir Elwyn (W. Ham, S.) Park, Trevor (Derbyshire, S. E.)
Donnelly Desmond Jones, J. Idwal (Wrexham) Parkin, B. T.
Driberg, Tom Jones, T. W. (Merioneth) Pavitt, Laurence
Duffy, Dr. A. E. P. Kelley, Richard Pentland, Norman
Dunn, James A. Kenyon, Clifford Perry, Ernest G.
Dunnett, Jack Kerr, Mrs. Anne (R'ter & Chatham) Popplewell, Ernest
Edelman, Maurice Kerr, Dr. David (W'worth, Central) Prentice, R. E.
Edwards, Robert (Bilston) Lawson, George Pursey, Cmdr. Harry
English, Michael Leadbitter, Ted Redhead, Edward
Ennals, David Ledger, Ron Rees, Merlyn
Ensor, David Lee, Miss Jennie (Cannock) Reynolds, G. W.
Evans, Albert (Islington, S. W.) Lever, Harold (Cheetham) Rhodes, Geoffrey
Fernyhough, E. Lewis, Arthur (West Ham, N.) Richard, Ivor
Fitch, Alan (Wigan) Lipton, Marcus Roberts, Goronwy (Caernarvon)
Fletcher, Sir Eric (Islington, E.) McBride, Neil Robertson, John (Paisley)
Fletcher, Ted (Darlington) McCann, J. Robinson, Rt. Hn. K. (St. Pancras, N.)
Fletcher, Raymond (Ilkeston) MacColl, James Rogers, George (Kensington, N.)
Foley, Maurice MacDermot, Niall Rose, Paul B.
Foot, Sir Dingle (Ipswich) McGuire, Michael Ross, Rt. Hn. William
Rowland, Christopher Storehouse, John Wainwright, Edwin
Sheldon, Robert Stones, William Walden, Brian (All Saints)
Shore, Peter (Stepney) Strauss, Rt. Hn. G. R. (Vauxhall) Walker, Harold (Doncaster)
Short, Rt. Hn. E. (N'c'tle-on-Tyne, C.) Stross, SirBarnett (Stoke-on-Trent, C.) Wallace, George
Short, Mrs. Renée (W'hampton, N. E.) Summerskill, Dr. Shirley Warbey, William
Silkin, John (Deptford) Swain, Thomas Watkins, Tudor
Silkin, S. C. (Camberwell, Dulwich) Symonds, J. B. Wells, William (Walsall, N.)
Silverman, Julius (Aston) Taverne, Dick Willey, Rt. Hn. Frederick
Silverman, Sydney (Nelson) Taylor, Bernard (Mansfield) Williams, Mrs. Shirley (Hitchin)
Skeffington, Arthur Thomas, George(Cardiff, W.) Williams, W. T. (Warrington)
Slater, Mrs. Harriet (Stoke, N.) Thomson, George (Dundee, E.) Willis, George (Edinburgh, E.)
Small, William Thornton, Ernest Winterbottom, R. E.
Smith, Ellis (Stoke, S.) Tinn, James Woof, Robert
Solomons, Henry Tomney, Frank Wyatt, Woodrow
Soskice, Rt. Hn. Sir Frank Tuck, Raphael
Spriggs, Leslie Urwin, T. W. TELLERS FOR THE AYES:
Steele, Thomas Varley, Eric G. Mr. Howie and Mr. Harper.
Agnew, Commander Sir Peter Farr, John Mawby, Ray
Allason, James (Hemel Hempstead) Fell, Anthony Maxwell-Hyslop, R. J.
Amery, Rt. Hn. Julian Fisher, Nigel Meyer, Sir Anthony
Anstruther-Gray, Rt. Hn. Sir W. Fletcher-Cooke, Charles (Darwen) Mills, Peter (Torrington)
Astor, John Fraser, Rt. Hn. Hugh (St'ford & Stone) Mills, Stratton (Belfast, N.)
Balniel, Lord Gardner, Edward Miscampbell, Norman
Barlow, Sir John Gilmour, Ian (Norfolk, Central) Monro, Hector
Batsford, Brian Glover, Sir Douglas Morrison, Charles (Devizes)
Bell, Ronald Glyn Sir Richard Mott-Radclyfle, Sir Charles
Bennett, Sir Frederic (Torquay) Goodhart, Philip Murton, Oscar
Bennett, Dr, Reginald (Gos & Fhm) Grant, Anthony Neave, Airey
Berkeley, Humphry Gresham-Cooke, R. Noble, Rt. Hn. Michael
Berry, Hn. Anthony Griffiths, Eldon (Bury St. Edmunds) Nugent, Rt. Hn. Sir Richard
Biffen, John Griffiths, Peter (Smethwick) Onslow, Cranley
Biggs-Davison, John Grimond, Rt. Hn. J. Page, R. Graham (Crosby)
Bingham, R. M. Gurden, Harold Pearson, Sir Frank (Clitheroe)
Birch, Rt. Hn. Nigel Hall, John (Wycombe) Peel, John
Black, Sir Cyril Hall-Davis, A. G. F. Percival, Ian
Blaker, Peter Harris, Frederic (Croydon, N. W.) Peyton, John
Bossom, Hn. Clive Harris, Reader (Heston) Pickthorn, Rt, Hn. Sir Kenneth
Box, Donald Harrison, Brian (Maldon) Pitt, Dame Edith
Boyd-Carpenter, Rt. Hn. J. Harrison, Col. Sir Harwood (Eye) Price, David (Eastleigh)
Boyle, Rt. Hn. Sir Edward Harvey, Sir Arthur Vere (Maccles'd) Prior, J. M. L.
Braine, Bernard Harvey, John (Walthamstow, E.) Quennell, Miss J. M.
Brinton, Sir Tatton Hastings, Stephen Rawlinson, Rt. Hn. Sir Peter
Brooke, Rt. Hn. Henry Hawkins, Paul Redmayne, Rt. Hn. Sir Martin
Brown, Sir Edward (Bath) Hay, John Renton, Rt. Hn. Sir David
Buck, Antony Heald, Rt. Hn. Sir Lionel Ridley, Hn. Nicholas
Bullus, sir Eric Heath, Rt. Hn. Edward Robson Brown, Sir William
Burden, F. A. Higgins, Terence L. Rodgers, Sir John (Sevenoaks)
Butcher, Sir Herbert Hiley, Joseph Roots, William
Carlisle, Mark Hill, J. E. B. (S. Norfolk) Russell, Sir Ronald
Carr, Rt. Hn. Robert Hirst, Geoffrey Sharples, Richard
Chataway, Christopher Hobson, Rt. Hn. Sir John Sinclair, Sir George
Chichester-Clark, R. Hogg, Rt. Hn. Quintin Smith, Dudley (Br'ntf'd & Chiswick)
Clark, William (Nottingham, S.) Hooson, H. E. Smyth, Rt. Hn. Brig. Sir John
Clarke, Brig. Terence (Portsmth, W.) Hornby, Richard Spearman, Sir Alexander
Cole, Norman Hornsby-Smith, nt. Hn. Dame P. Taylor, Edward M. (G'gow, Cathcart)
Cooper, A. E. Howe, Geoffrey (Bebington) Temple, John M.
Cooper-Key, Sir Neill Hutchison, Michael Clark Thomas, Sir Leslie (Canterbury)
Contain, A. P. Irvine, Bryant Godman (Rye) Thompson, Sir Richard (Croydon,S.)
Courtney, Cdr. Anthony Jenkin, Patrick (Woodford) Thorneycroft, Rt. Hn. Peter
Craddock, Sir Beresford (Spelthorne) Kaberry, Sir Donald Thorpe, Jeremy
Crawley, Aidan Lagden, Godfrey Turton, Rt. Hn. R. H.
Crosthwaite-Eyre, Col. Sir Oliver Legge-Bourke, Sir Harry van Straubenzee, W. R.
Crowder, F. P. Litchfield, Capt. John Vickers, Dame Joan
Cunningham, Sir Knox Lloyd, Rt. Hn. Geoffrey (Sut'nC'dfield) Walder, David (High Peak)
Curran, Charles Lloyd, Rt. Hn. Selwyn (Wirral) Walker, Peter (Worcester)
Davies, Dr. Wyndham (Perry Barr) Longbottom, Charles Ward, Dame Irene
d'Avigdor-Goldsmid, Sir Henry Longden, Gilbert Weatherill, Bernard
Dean, Paul Loveys, Walter H. Webster, David
Deedes, Rt. Hn. W. F. Lubbock, Eric Whitelaw, William
Digby, Simon Wingfield McAdden, Sir Stephen Williams, Sir Rolf Dudley (Exeter)
Douglas-Home, Rt. Hn. Sir Alec Mackie, George Y. (C'ness & S'land) Wise, A. R.
Drayson, G. B. McLaren, Martin Wood, Rt. Hon. Richard
du Cann, Rt. Hn. Edward McMaster, Stanley Woodhouse, Hn. Christopher
Eden, Sir John McNair-Wilson, Patrick Younger, Hn. George
Elliott, R. W. (N'c'tle-upon-Tyne,N.) Marten, Neil
Emery, Peter Maude, Angus TELLERS FOR THE NOES:
Mr. Ian Fraser and Mr. Pym.
Deputy-Chairman (Sir Samuel Storey)

The next Amendment selected is Amendment No. 9, in page 2, line 31.

Sir K. Pickthorn

On a point of order, Sir Samuel. I wish to ask leave to move, That the Chairman do report Progress and ask leave to sit again.

The Deputy-Chairman

I am not prepared to accept that Motion at present.

I have said that the next Amendment selected is No. 9. I think that it will be for the convenience of the Committee to discuss with it the following two Amendments, Amendment No. 10, in page 2, line 41, at the end to add: (3) In section 2 of the said Act of 1957 the holders of offices referred to as Ministerial offices shall include in addition to those specified in the Second Schedule to the said Act the holder of any other office under the Crown not so specified who is a member of Her Majesty's Government in the United Kingdom whether or not appointed at or paid a salary. and Amendment No. 16, in Schedule 2, page 4, line 46, at the end to insert: In section 13, in subsection (1), the words "appointed at a salary" shall be omitted. I suggest that it will be convenient also to discuss Government Amendments Nos. 12 to 14.

Mr. Percival

I beg to move Amendment No. 9, in page 2, line 41, at the end to add: (3) In section 2 of the said Act of 1957 the words "Ministerial offices" shall be deemed to include every office specified in the Second Schedule to the said Act whether or not the holder thereof is appointed at or paid a salary. I have been in some doubt as to the choice of terms in which I should commend this Amendment to the Committee. Having, as I hope is apparent to lawyers at least, given more than a little time and consideration to the points which give rise to the Amendments which we have proposed so far, and having, I hope, advanced my arguments in moderate terms, I have had to listen to the Attorney-General depart for once from his usual courtesy and include these in the all-embracing term "humbug". The temptation to do likewise is great, but, on the whole, I think that I shall not.

The Attorney-General

I should never address such language to the hon. and learned Gentleman. What I was suggesting was that the attempt to make out of the difference between the set-up of the present Administration and that of the last one a situation giving rise to a departure from great constitutional principle was humbug. I hope that I shall never use language of that kind about the hon. and learned Gentleman.

Mr. Percival

I am much obliged to to the right hon. and learned Gentleman. In any event, I had decided in advance that I should move this Amendment in placatory terms, sincerely hoping that it and the two which go with it will be accepted.

It is plain from our last debate that the Government take the view—I state this purely as a matter of fact and not with any malice—that, as the law stands at present, the Prime Minister can make a nonsense of the figure 91 or of any other figure which might appear in Section 2 of the 1957 Act. It is equally clear now that this applies not just to the question of "payment". It is the Government's view that it can appoint a new Minister and transfer functions to him under the Transfer of Functions Act, but avoid the consequences which would otherwise arise under Section 2 of the 1957 Act by omitting from the Order in Council any provision adding the new Minister to the Schedule to the 1957 Act. This is not purely theoretical. It has been done in the case of the Minister of Overseas Development. I hope that the Government will agree that it is an opportunity which should not be allowed to remain part of the law.

As to "payment", there are many who find offensive the idea that a Minister of State can be, and is if so appointed, a Minister of State for every purpose except the one which is of interest to the House as a House of Commons matter but cease to be one for that purpose simply by agreeing to serve without remuneration.

In this instance, the Government have adopted not one or other of these methods but both to bring about the situation which we have had for the past six weeks. Plainly, it is doubly important that both should be stopped now when the limit has been increased by such a substantial amount. I need say no more about the need to do so because the Attorney-General himself, on Second Reading, was good enough to describe as a mischief the loophole which allows the creation of extra Ministers without their counting towards the Schedule provided that they are not paid. The word was his own. I adopt it. Now that it has become apparent that there is another effective way of getting round the provisions, I expect that he will probably regard this also as a mischief which ought not to be allowed to continue.

Amendment No. 9 is in clear and simple terms and I need not take the time of the Committee in reading or explaining its words. It goes to the question of payment in relation to Ministers of State and makes its purpose clear in words which are self-explanatory. This, I suggest, is an added attraction. So much of our law is not self-explanatory, and one has to look at half a dozen other provisions to find out what it means. The people who dislike this most are lawyers. Curiously enough, it is the lawyers who are the ones who so often want to put things in simple terms which mean what they say. Amendment No. 9 is designed to do just that. Its terms are simple. It would make perfectly clear that the question whether or not a Minister is appointed at, or is paid, a salary is wholly immaterial for this purpose.

Amendment No. 16 is bound up with it—that is to leave the words "appointed at a salary" out of the definition in Section 13(l)—and, of course, it follows that, if a new subsection were added by Amendment No. 9, those words would have to go from Section 13(1). It is to that extent consequential.

You indicated, Sir Samuel, that it might be convenient to consider Amendment No. 12 at the same time, and this may be the appropriate moment for me to make some observations about that. It is to be noted that its first purpose is to remove the words "appointed at a salary". My right hon. and hon. Friends and I think that this might probably deal with the question of payment with reference to Ministers of State, but what we say is that, even if it did cover that point, the way we propose is much clearer. It would appear then, in the body of the Statute, that payment is to be immaterial.

Further, the Government's Amendment is defective in that it contains no provision which would block the other loophole which has been revealed by our discussions during the past two days. Because of the possibility which occurred to us that there might be another loophole, namely, appointing new Ministers who were not heads of Departments, we felt it desirable to insert another new subsection by Amendment No. 10. At the time when we drafted the Amendment, the point was really a matter of theory, but we considered that, while trying to block loopholes, we should not necessarily limit ourselves to loopholes which we have actually seen used. Let us make a real attempt to block every possible loophole, and certainly let us block both of the loopholes which have been revealed.

As I said, at the time when Amendment No. 10 was drafted, the question of appointing new Ministers who were not heads of Departments and thus not specified in the Schedule was treated as rather theoretical, but it has emerged during the Committee stage as being very far from theoretical. We have first hand evidence now that it has been used on this occasion. We suggest, therefore, that to amend the Bill in the terms of Amendment No. 12, although it would probably deal with the question of payment of Ministers of State, would not in any way touch the other loophole which has now been shown to be not merely a theoretical possibility but a very practical one. It has been used and could be used again if it be not stopped.

6.30 p.m.

We suggest, therefore, that our solutions, or at least some similar provisions, is necessary. We are not wedded to any particular form of words. We are concerned with the object. But the Committee will observe that the wording in our second Amendment is very clear and simple and has the advantage that even a layman would appreciate that every office, whether paid or not, comes within the prohibited class. The method adopted is similar to that adopted in the Department of Technical Co-operation Act, 1961, which says: Section two of the Rouse of Commons Disqualification Act, 1957 … shall have effect as if the office of Secretary for Technical Cooperation were included among the offices specified in Part II of that Schedule. It is a "deeming" provision, and, likewise, the effect of our Amendment would be that, without one having to take any steps to add it, by Order or otherwise, every office would automatically come within the class to which the limitation applies. That would meet both the needs and the wishes of the Committee. As I say, we are not wedded to the form of words, but for the reasons I have given we do not believe that the Government's Amendment goes far enough, whereas our Amendment would close both the loopholes.

There is another point arising on Amendment No. 12 which concerns the words that the Government wish to add at the end of the definition of Minister of State, Section 13 of the Act of 1957. We presume that the intention of those words is to make sure that the five offices here referred to, usually held in another place would not come within the definition of "Minister of State". They must be added for one of two reasons—either to bring them within the definition so that the increased salaries shall apply to those offices or to exclude them from the definition so that the term "Minister of State" does not apply to them.

We find it difficult to believe that the Government could be asking to introduce a provision to increase the salaries of these offices in another place by adding these words to the definition, so we assume that the purpose is to exclude them from the definition of Minister of State. We do not quarrel with that but would suggest for consideration that it may be achieved with even more certainty by inserting the word "nor" instead of "or", this is not theoretical, in this Committee, we have heard some fine reasoning about the meaning of words, if the word "nor" is put in, there can be then no doubt.

To conclude, for the reasons given, I again suggest that the Government Amendment No. 12—indeed, there is no doubt about it—does not adequately cover the loopholes. Our Amendments are, however, appropriate to do that. We do therefore hope that the Government will see fit to accept them.

Sir P. Rawlinson

Perhaps it might be convenient if I leave it to the Solicitor-General, whom I should like to welcome, to reply on these Amendments. I cannot help thinking, in view of the objections there have been to the Bill, that, in the hearts of the Law Officers, there lurk the gravest and deepest objections to it. I have no doubt that when this decision—and one can see the reasons why it was decided upon by the Prime Minister—was taken, it was left to the Law Officers to advise on a device to meet the situation.

This Bill, although they say it is a technical Bill, is one which, in normal respects, and certainly without the Amendment we propose, would offend practically every member of the hon. and learned Gentleman's profession. It is the device of advising the Crown, by use of the Prerogative, to appoint unlimited numbers of Ministers of State provided they are not paid, and so attempting to avoid the limitation imposed in law on the number of Ministers who can sit and vote in this place.

Leaving aside the battles of party politics, there was good reason to impose a limit in law and this Bill is a device to avoid that. The Bill as presented does nothing to prevent a limitless creation but the Chancellor of the Duchy of Lancaster, in tabling a later Amendment, has at least foreshadowed the closing of this loophole.

Can we have a Minister of State who is unpaid? We know that there are persons calling themselves Ministers of State who are driving around, quite rightly, in large black automobiles, who are carrying out the duties of Ministers of State, answering for their work and carrying responsibility for it in their Departments as Ministers of State. It is said, because of this device used by the Prime Minister, that because they are unpaid they are not Ministers of State. It means that the Prime Minister could say that every single hon. Member opposite could be appointed a Minister of State and could be given a black Humber motor car and occupy an office provided he was not paid. Those who are called Ministers of State are being paid, we now know, only their Parliamentary salaries and are carrying out Ministerial duties. It may be right that they should carry out these duties but this is a shabby device that has been imposed upon us.

Is the position entirely free from doubt when one comes to consider Section 13 of the 1957 Act? If the Prime Minister appoints a Member of Parliament as a Minister of State, using the Prerogative, and that hon. Member has the style and title of Minister of State, performing the duties and carrying the responsibilities of a Minister of State, answering in the House to the House as a Minister of State, can it be said even then that he is not "appointed at a salary" if, in fact, on his appointment, he was told that he would carry out his duties of Minister of State until such time as he would receive a salary, which would be given to him shortly?

The advice offered on that, and the device worked out to achieve it, is not entirely free from doubt. What about a Minister of State who declines a salary? Supposing an hon. Gentleman enjoys a private fortune and is not interested in a salary as a Minister of State. Supposing he refuses to accept a salary but still carries out the duties of Minister of State? These are matters which may be said by some hon. Members to arouse the interest only of constitutional lawyers or historians but they are nevertheless of the greatest importance to the House of Commons. We learn that these Ministers of State receive their Parliamentary salaries with £750 more which they would be receiving as a supplementary to their salary as a Minister.

Now by what right do these Members of Parliament call themselves Ministers of State? By what right do they enjoy the transport which is provided for them? They do so because they have been appointed by means of the Prerogative, but, as right hon. and learned Gentlemen know perfectly well, when the Prerogative conflicts with Statute or is cut down in any way by Statute, it is the Statute which prevails. If there is this conflict, in some way it must be decided.

There could be the nonsensical position when the Minister of State at the Foreign Office, who is not a Minister of State, in connection with his duties has to look at and be in possession of official documents. He may be committing an offence under Section 1(2) of the Official Secrets Act, because it is a misdemeanour for a person to have possession of any official document without lawful authority. His authority for doing that he may have got from the Prime Minister who can say that anybody in the Department can look at the document, but he is able to look at the document not because he is Minister of State, but because he has been told by the head of the Department or the Prime Minister that he can do so.

The evil of this provision—and I ask the Committee to appreciate that it is an evil—is that it is a device which is a complete ignoring of the purposes and intentions of Parliament in the 1957 Act, because the principle should always be that we should change the law first and then appoint the people to the posts which have been created under that law. If this position were challenged elsewhere outside the House of Commons, it would be a misfortune not only for the Administration, but also for the House of Commons if the challenge should be successful because the right hon. and learned Gentleman's interpretation of the law was not correct. There might be a declaration or injunction or some other process, so that these gentlemen who have been carrying out these duties were found to be not entitled so to do.

The Government have listened to the Attorney-General and have accepted that there is a mischief. In respect of the complaint with which this Amendment deals. It is a mischief which we should never tolerate again. It is the mischief of the system of creating Ministers without a salary so that they have this absurd portion which is undignified for them and wrong for the Government and the country. That mischief will now be corrected, but when the Bill was brought before Parliament, it was there for everybody to see. We should do this task once and for all and with certainty, and our Amendments do it more definitely and certainly than the Government's Amendments.

This is because we fill two loopholes which should be stopped. The first is the appointment of Ministers without salary so as to avoid the purposes of the Act, and the second is the creation of new offices not specified in the Schedule. It is right that Ministers should come to Parliament to say that new Ministries should be created—as well they may—and then the House then decides whether to give leave. The legislation having been passed, the person concerned can then be appointed to the office. There is not an hon. Member who does not know that that is the right way of doing it.

I am satisfied, and I have so advised my hon. Friends, that the Government Amendment would stop the first of the two loopholes but would not deal with the second. We should make it quite clear that we prefer the system of creating the post first and then appointing the man. If that is so, I commend the acceptance of our two Amendments and suggest that there is no necessity to consider that which may subsequently be moved by the Government.

6.45 p.m.

The Solicitor-General (Sir Dingle Foot)

May I first thank the right hon. and learned Member for Epsom (Sir P. Rawlinson) for his welcome to me? I suggest that he was playing with words in the distinction which he drew. Of course it is part of the Prerogative that a Minister can be appointed at any time. It does not matter whether he is called a Minister with some particular title or a Minister of State. "Minister of State" is not a term of art. The statutory limitation is that contained in the 1957 Act, an Act for which right hon. Gentlemen opposite were responsible. It is there provided that in order to be a Minister of State within the meaning of the Act, the Minister concerned has to be appointed at a salary.

There is very little dispute between the two sides of the Committee about this group of Amendments. The Government entirely sympathise with their purpose, but I suggest that the form of words is not apt to achieve that purpose. The purpose is to have a limitation on the number of Ministers who can sit in the House of Commons.

The Ministerial offices set out in the Second Schedule of the 1957 Act fall into two categories. In the first there are the holders of Ministerial offices to which particular functions attach. For example, there are the Prime Minister, the Chancellor of the Exchequer, the Minister of Defence, and so on. The second category consists of the Ministers of State. As I pointed out earlier this morning, under the law as it stands, the number of Ministers of State who can be appointed is unlimited. That is one of the changes we propose to make. We have already proposed that the number of Ministers of State should be limited to 19.

For the purposes of the 1957 Act, it does not make any difference whether the holders of specific offices are paid. For example, if there were a Chancellor of the Exchequer appointed without a salary, he would still be one of the holders of the offices specified in the Second Schedule to the 1957 Act and he would count as one in the present maximum total of 70 and in the proposed total of 91 entitled to sit and vote in the House of Commons. It follows that the first Amendment can apply only to Ministers of State.

If this Amendment were passed by itself, without any further Amendment of the 1957 Act, there would be an obvious absurdity, because in Section 13(1) of the 1957 Act a Minister of State is defined as a member of the Government who is appointed at a salary.

Mr. Percival

It is the purpose of Amendment No. 16 to remove that absurdity. It is only to be rather legalistic that the two are taken separately.

The Solicitor-General

I was about to refer to that and to the effect of the Amendment if taken alone and then the effect when combined with Amendment No. 16. Taking the Amendment alone—and we have to deal with the Amendments seriatim—under Section 13 of the 1957 Act, a Minister of State is defined as a member of the Government who is appointed at a salary. Unless he is in receipt of a salary, he cannot be a Minister of State within the meaning of the Act. It follows that Amendment No. 9 taken by itself is, therefore, unnecessary in relation to the holders of specific offices and meaningless in relation to Ministers of State as the law now stands.

As I anticipated, the hon. and learned Gentleman says that this must be read together with Amendment No. 16. It is proposed in that Amendment simply that the words "appointed at a salary" shall be omitted from Section 13(1) of the 1957 Act. That would produce a result which I am not quite sure whether hon. Members opposite have foreseen, because the Section as it is proposed to be amended by Amendment No. 16 would not only cover the Ministers of State as we now know them, but; also the five Household Officers in the House of Lords. I think that the hon. and learned Gentleman agrees with me that in the new definition it would include the five Household Officers, but since in this Bill we are introducing a limit of 19 to the numbers of Ministers of State who may sit in either House it would follow that if we adopted the Amendment proposed by the right hon. and learned Gentleman the five Household Officers in the other place would need to be included in the total of 19. That would leave us with only 14 effective Ministers of State. That is less than the Government require and it is indeed less than the total required by the last Government. After all, the difference is not very great. What is proposed is that we should have 19 Ministers of State as compared with 17 comparable appointments under the last Government.

Therefore, I suggest that if we pass these two Amendments in the form which the hon. and learned Gentleman has proposed, we should create an absurdity. I suggest to the Committee we should do better to prefer Amendment No. 12 and we should then get rid of this complication about the Household Officers.

I come to Amendment No. 10. The question which arises is to whom, if it were passed, would this Amendment apply. The same criticisms that I have directed toward the other two Amendments, Nos. 9 and 16, would of course, apply to this Amendment. But under this Amendment we have again two categories—the specific office holders and the Ministers of State. They are already covered by the provisions that have been made. Who else would be caught if we were to pass this Amendment? I submit to the Committee that this Clause could have any effect only if a Minister were appointed to some new office—an office which had not already been created. I say at once that that may happen. It may happen under any Government. It is something which does happen from time to time. It has happened in the experience of almost every Government that I can remember.

I see in his place the right hon. and learned Member for St. Marylebone (Mr. Hogg). He and I were Members of the House before the war. I remember when the then Mr. Anthony Eden was appointed as Minister for League of Nations Affairs. The right hon. and learned Member will recollect another occasion when, after fierce controversy, in the summer of 1939, it was thought necessary to appoint a Minister of Supply to discharge functions which had never been discharged before. Even in the last Parliament we had the appointment of the right hon. Member for Ashford (Mr. Deedes) whose title was Minister without Portfolio. He was—I do not intend this as a sneer—a kind of public relations officer for the Government of the day. It would be very easy to think of other examples.

From time to time it happens that some new function has to performed and it is necessary or desirable to appoint a Minister to do it. Let us suppose that this happens in the future after this Bill becomes law. We would have 91 Ministers of this House who received salaries and it was then thought desirable to appoint a new Minister to discharge a new function. It may possibly be a matter of considerable urgency. It may even happen while this House is in recess. The effect of this Clause would be that we could not appoint a Member of this House. We could appoint anyone else. We could appoint someone outside Parliament altogether—someone who is in the position of Mr. Cousins at the present time—or, alternatively, we could appoint a Member of the other place. But the only people who would be disqualified for such an appointment would be the Members of this House of Commons. That is a disqualification which I do not believe that the House would wish to impose upon itself. It is for that reason that we, invite the Committee to reject Amendment No. 10.

Sir P. Rawlinson

Would the hon. and learned Gentleman not accept that the House should have control over the Ministers who sit in it? Is it not really more preferable that this House should first of all decide upon the office and then make the appointment rather than that there should be the appointment made before it is brought to this House?

The Solicitor-General

I think that all depends upon the circumstances of the time. It may very easily happen that a new appointment is called for. After all, the requirements of different Governments vary. The last time that I had the privilege of being appointed to serve in the Government was in 1940. I think that I am one of only three survivors in this House who was appointed by Mr. Churchill when he formed his Government in that year. After 1940 we had a very substantial increase in the number of Ministers. They went up from 68 to 81 and later there was an increase, in 1943, to 94 Ministers and there were 93 in 1944. It was a very considerable increase in the number of Ministerial posts because there were more functions which needed to be performed.

In those days the difficulty was removed by temporary war-time legislation covering the appointment of the Ministers. But supposing a situation was to arise—I repeat that it might arise during a Parliamentary recess—when it was a matter of urgency to appoint a particular Minister to a new post, then I suggest that the Government should not be inhibited from appointing a Member of the House of Commons. No doubt there would have to be legislation at a later stage—there is no possible question about that—and there would have to be legislation no doubt to create the new Department, to provide for its functions, to provide for the payment of salaries and so forth. But we do not think that the hands of the Government should be completely tied in the way that they would be—I am speaking of any future Government and not merely of this Government—as the result of this Amendment.

7.0 p.m.

We accept that there should be a limit on the number of Ministers. For the first time, we are proposing a statutory limit on the number of Ministers of State who may sit in either House. We also propose in the Bill and in Amendment No. 12 that there should be a limit to the number of paid Ministers who can sit in the House of Commons. As I say, I do not think there is any difference in principle on this group of Amendments between hon. Members opposite and the Government, but for the reasons which I have given we think that it would be better achieved in the way that we propose in Amendment No. 12.

Mr. Percival

I think that what the Solicitor-General said on Amendments Nos. 9 and 16 can be summarised in this way. The acceptance of Amendment No. 9 on its own or Amendment No. 16 without these additional words might result in the unintended consequence of bringing the five offices in another place into the Schedule. I agree with the hon. and learned Gentleman. I said so when I was proposing the Amendments. I said that we were not absolutely wedded to any particular wording. The point can be covered by accepting Amendments Nos. 9 and 12 instead of Nos. 9 and 16, subject to my suggestion that the word should be "nor" instead of "or". The Government seek to cover a dilemma by adding the words in Amendment No. 12 at the end. The difficulty of accepting Amendments Nos. 9 and 16 can be resolved very easily by accepting Nos. 9 and 12 instead. My right hon. and hon. Friends and I would be happy to accept that compromise.

However, the Solicitor-General's observations on Amendment No. 10 were rather more serious. Although he, in his usual expert way, wrapped up the matter so as to make it more attractive, what he said, in effect, was, "We cannot accept Amendment No. 10 because we want to keep a loophole open for the appointment of more Ministers without being limited in the number we can have in the House of Commons". That, in simple plain English, is the objection which he put forward in rather more legalistic terms.

I ask the Government to reconsider this matter. The limit is being increased to 91. The Government already have four in hand, even with the six paid Assistant Whips. It is true that they have bespoken two of those four vacancies—Mr. Cousins and the Secretary of State for Foreign Affairs—but there are still two left. [Interruption.] The Solicitor-General probably appreciates that I have studied the figures. I have not been here long, but in nearly six years I have never seen two Scottish Law Officers in the House of Commons. It may be that we shall have the pleasure of seeing one it is not suggested, apparently, that one of the priceless pearls", as they were called earlier, who have gone to the Lords will be replaced by a Scottish Law Officer. No indication has been given that those two places will be occupied in the immediate or near future.

The Solicitor-General has said, "We want to keep a loophole open because we never know when we will want another Minister or two". With great respect to him, that is showing disrespect, for this House in what is a House of Commons matter. When we fix a limit the number of Ministers who should sit in the House, which is a House of Commons matter, for the purpose of this House is to control the Executive it is nonsense if that limit is not adhered to. It is nonsense to fix a limit and say, "We have been clever. It does not mean that we are limited to 91. We can get round the difficulty by appointing a Minister under another name, transfer functions to him but in the Order in Council we will not add these Ministers to the Second Schedule of the 1957 Act".

The Solicitor-General wrapped it up very nicely, but I think that the word "shabby" which has been used is equally applicable in this case. When one looks at it in simple terms, it is shabby to say, "We will raise the limit to 91, but we will not agree to proposals which would have the effect of making that an effective limit. We are determined to keep a loophole." I invite the Solicitor-General and the Government to reconsider this matter and to let us have their further views on it. If my summary of what the hon. and learned Gentleman said is correct, perhaps he would care to state in terms that the reason why Amendment No. 10 is not acceptable is because the Government desire to keep a loophole open to increase the number. While he is thinking about that, may I suggest, as a compromise, to the other occupants of the Government Front Bench, that Amendments Nos. 9, 10 and 12 would avoid completely what the Solicitor-General called an absurdity whilst blocking both loopholes.

The Solicitor-General

I hope that I have made the point clear. One can always appoint a new Minister to a new post by exercising the Prerogative. If a Minister is so appointed, we do not see why Members of the House of Commons alone should be excluded from such appointment. That would be the effect of the Amendment. However, in any case, Parliamentary control would be fully secured because after the appointment of such a Minister, before a fresh Department could be set up, before it could be clothed with the necessary powers and before the necessary salaries could be paid, the approval of the House of Commons would have to be given. It may well be that this situation will never arise.

The hon. and learned Member for Southport (Mr. Percival) called this a loophole. I do not really quarrel with that. We say that it is a loophole which should be left in existence. It should not be beyond the power of any future Government in any emergency to make a fresh appointment if the circumstances require it, knowing always that that appointment would very soon come under the scrutiny of and would require the approval of the House of Commons.

Amendment negatived.

Clause ordered to stand part of the Bill.

Clause 4 ordered to stand part of the Bill.