Mr. Cube and the Law
By QUINTIN HOGG, M.P.
REAT weight has always been attached to the pronounce- ments of distinguished lawyers in public life on matters which, although in themselves of political significance, have a juridical aspect which will ultimately require to be the subject of judicial decision. In some cases such pronouncements, like that of Sir John Simon (as he then was) on the subject of the General Strike of 1926, have been accepted fairly generally as authoritative and have produced an immediate, and decisive, result on political affairs. The recent statements bra the Attorney-General on the subject of the electoral law were evidently designed for the same purpose, and indeed formed part of a-purely political campaign inaugurated by Mr. Morrison designed to deter the owners of businesses proposed to be nationalised from continuing their cam- paigns in opposition to the proposals to expropriate them.
These statements raise political and juridical questions of con- siderable interest. It must have come as a surprise to most people not intimately acquainted with the terms of our electoral law that it was even arguable that persons or firms who campaigned against a proposal to deprive them of their entire livelihood could by any stretch of the imagination be prevented from defending themselves from attack simply because an election campaign was thought to be imminent, and, quite apart from the technical legal aspects of the matter, one would have thought that if, by some accident, the election law had been so framed as to bring about such an un- expected result, it was the manifest duty of the Attorney-General to introduce amending legislation. So far from that, however, the Attorney-General's statements were both calculated and, one might suppose, intended, to create the impression that the industries concerned must, to use his own phrase, " keep out of the ring " on pain of incurring the pains and penalties attaching to the com- mission of a corrupt practice within the meaning of the electoral law.
The particular section of electoral law invoked, section 63 of the Representation of the People Act, 1949, has an interest- ing pedigree. Our present election law is largely founded on the limitation of expenses by candidates. Practices mani- festly corrupt such as personation or bribing have, of course, always been illegal and are still specifically prohibited. But, in practice, the really effective sanction lies in the limitation to a stated maximum of any expenditure which may be incurred by the candidate or his agent in connection with the election, and the restriction or complete prohibition of certain types of morally quite innocent expenditure. If a candidate exceeds the set bounds he is normally guilty of an illegal practice, which not merely subjects him to criminal penalties but may invalidate his election, subject to the right of the Courts to remit the whole or any part of the con- sequences which would otherwise attach.
In the early years of the century these salutary provisions began to be widely evadid by the formation on a large scale of powerful bodies like the Free Trade League or Tariff Reform League, created for the purpose of promoting or attacking the very principles of policy which, in fact, formed the main issues between the two main political parties, but remaining, none the less outside the formal party organisations. At a by-election or a General Election these bodies would come into play, and placard the constituencies, question the candidates, circulate their answers and, within their special terms of reference, generally carry on the ordinary business of propaganda. The effect was that a candidate who had at his dis- posal the resources of one of these outside bodies could enjoy the advantage of substantial expenditure upon certain aspects of his election campaign without returning them as part of his expenses, the argument being that the expense was incurred by the organisation and for the purpose of promoting, a crusade for Free Trade or Tariff Reform and not directly in support of the candidate.
This was recognised by all parties to be an undesirable practice and the Report of the Speaker's Conference of 1917 contained a recommendation which was in fact embodied in Section 34 of the
Representation of the People Act, 1918. This section provided that " A person other than the election agent of a candidate shall not incur any expenses on account of holding public meetings, or issuing advertisements, circulars or publications for the purpose of promoting or *procuring the election of any candidate at a Parlia- mentary election unless he is authorised in writing by the election agent." A breach of this provision was stated to be a corrupt practice. The whole basis of the offence created by this section, which stood until the Act of 1944, was the purpose for which the expense was incurred. This was in accordance with tradition. From the first it has been the law that a guilty intent must be proved before a corrupt practice could be established.
The present provisions were designed to give effect to the spirit of the recommendation of that Conference without the dis- advantages involved in its actual terms. In place of the straight- forward language of the Act of 1918 there were substituted approximately two pages of parliamentary draftsmanship. Neverthe- less, the essential requirement, that there must be guilty intent before a corrupt practice could be committed, was expressly retained• in the words of the section, the only difference being that in place of the words " for the purpose of promoting or procuring the election of a candidate," the phrase " with a view to promoting or procuring the election of a candidate " was substituted. The effect of the alteration is not to remove the requirement of intention, but, it would seem, simply to ensure that the intention, although it must be present, need not necessarily be the only, or dominant, motive.
In this state of the law the Government issued their provisional policy entitled Labour Believes in Britain in which it was suggested that amongst other industries Sugar Refining, Wholesale Meat Dis- tribution, Cement Production and Insurance should be placed under public ownership. The recent Government statements have all obviously been designed to create the impression that the campaigns which the publication of Labour Believes in Britain have aroused among the industries concerned are all, or some of them, breaches of the provisions of section 42 of the Act of 1948 and section 63 of the Act of 1949. In each case the campaigns concerned have taken vastly different forms, but so far as one can judge from the propaganda distributed, the object of each has been to make the nationalisation of the particular industry unpopular, and to promote the idea that it would be better run by its existing owners, rather than to make a definite contribution to election propaganda, and although .all were in full swing at the time of the South Bradford By-Election, no proceedings under the 1948 Act have, in fact, been taken, despite the fact that, in order to launch a prosecution for corrupt' practices, it is not necessary that the candidate favoured should have been successful.
Instead of a prosecution, which would surely have given some indication before the General Election as to what the law really means, a series of vague and somewhat minatory statements were made, culminating in two considered statements by the Attorney- General in the House of Commons on December 5th and 7th, 1949. In these statements Sir Hartley Shawcross enunciated the following propositions of law and fact: (1) He was speaking as Attorney-General and after consultation with the Director of Public Prosecutions. (2) " The question of the legality of any expenditure incurred now would have to be considered in the light of the effect it is calculated to produce if and when an election occurs." (3) It was his view that " the prohibition of certain expenditure on propa- ganda calculated to influence an election is not necessarily restricted to propaganda in which any particular candidate is expressly referred to, nor is it necessarily confined to expenditure incurred only after the dissolution of Parliament or the issue of a writ." On December 7th he went even further, and after complaining bitterly of attacks upon himself and his conduct of his office by certain newspapers he went onto say: (4) " If the propaganda is such as to support the policy to which that candidate adheres, it would be open to a court to say, within the wording of section 42 of the Representation of the People Act, that it was calculated to promote the return of that candidate or to disparage the other candidate," and (5) " I think the words are ' likely to promote,' but I am speaking off the book ; I
think that is the wording of section 42." For readers not familiar with legal jargon it should be stated that the expression " calculated," as judicially construed, is, as the Attorney-General implied, synony- mous with " likely."
Now it must be considered at least surprising that in two con- sidered statements of this importance the Attorney-General should have omitted to tell the House of Commons that intention was the whole basis of the offence, and should have stated on the contrary that according to his recollection the wording of the section was " likely to " and not " with a view to," and it really is a little too much to try to ride off this elementary blunder, as his defenders have sought to do, by reminding us that according to the old doc- trine of the law a man is presumed to intend the natural consequences of his acts. The real position is plainly this. A person who cam- paigns wholeheartedly in order to defend his own interests and to move the minds of all his hearers, whatever their political allegiance, in favour of or against a particular policy, has not necessarily com- mitted an offence even when an election is in progress, and still less when an election may take place at a date as yet unannounced. His act becomes illegal only if it is done " with a view to promoting or procuring the election of a candidate at an election," and no jury will find him guilty of this intention, whatever may be the natural consequences of his actions, unless they consider, taking all relevant circumstances into account, that it is proved as a fact and beyond reasonable doubt that such was in fact his intention in doing what he did. In this connection it is well to remember that even before the election campaign the propaganda of the insurance companies has already met with a considerable, if limited, measure of success.
The last chapter of this somewhat peculiar story is to be found in the Hansard of December 15th. Whoever else may have been misled by the Attorney-General, Mr. Crossman was obviously amongst them, since on this date he asked the Attorney-General " if, in view of the uncertainty as to the law, he will undertake not to institute proceedings in connection with political propaganda except where it is alternatively shown that the expenditure was incurred with the intention of promoting the election of parliamentary candidates or disparaging such candidates." This question clearly shows that at least on Mr. Crossman the Attorney-General's statement had had the effect of making him think that intent was no part of the offence. It was only then, and in his written answer which could not be further debated, that, without making any reference at all to the misleading character of his former utterances, the Attorney-General corrected Mr. Crossman's misapprehension with the words " An intention to promote or procure the election of a candidate is a necessary ingredient of this offence."
In the circumstances, it is surely not too much to ask that a little more clarity and guidance should be available to the public before the election comes upon us, since the consequences of a widespread commission of what, at least technically, are corrupt practices may be extremely serious. Although by section 63 of the Act of 1949 it is provided expressly that " a candidate shall not be liable, nor shall his election be avoided, for a corrupt or illegal practice under this subsection committed by an agent without his consent or con- nivance," section 142 provides that " Where on an election petition it is shown that corrupt or illegal practices ... committed in reference to the election for the purpose of promoting or procuring the elec- tion of any person thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, his election, if he has been elected, shall be void and he shall be incapable of being elected to fill the vacancy or any of the vacancies for which the election was held." The campaigns of the industries are obviously, to say the least of it, widespread. It is hardly tolerable that we should not be told in advance whether it is proposed to avoid the election of every successful Conservative candidate not- withstanding his complete innocence in the matter, and to declare him incapable of sitting for his constituency simply because certain commercial firms have exercised what most people would regard to be an elementary constitutional right of defending their interests against the direct attack by a political party. Of course, it may be that the whole thing is simply bluff by the Government. If it is, the bluff is obviously going to be called.
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