Political Commentary: Official: when a Tory MP is allowed adultery

From the Office of the Privy Council

LAST week, following the case of Mr Hartley Booth, the Judicial Committee of the Privy Council were asked for an opinion. This, after hearing argument in Downing Street, we now give.

The circumstances of the request were somewhat unusual and may require further explanation. It is well-known that any member of the public may apply to the Privy Council for a declaration that an MP is disqualified. The matter is then referred to the Judicial Committee. The House itself may also petition the Crown to have the matter referred to us.

This matter is not precisely of this nature. What happened was that we received a request from Sir Marcus Fox, the Chairman of the 1992 Committee. This body is invariably described by the newspapers as 'influential' or 'powerful'. It is also erroneously believed to have been named after the meeting of backbenchers in 1922 which ended Conservative membership of the coalition government.

It makes no odds in this connection. Sir Marcus, with whom no member of the committee is personally acquainted, asked us, in view of Mr Booth's resignation from his post of parliamentary private secretary, what 'Conservative MPs are now allowed to get away with'.

The phrasing is not, we confess, such as we should have chosen for ourselves. Still, the general drift is clear. We feel justified in complying with Sir Marcus's request analogically, from the advisory functions we already possess and have set out above, and also because we consider that the question is of public importance.

Although Booth's Case is the last chronologically, we start with it for convenience's sake. We were informed by counsel that, although Mr Booth was christened 'Edward Hartley', he prefers to be known as 'Hartley', as if he were an Edwardian journalist. We were further informed that he was known as 'the Finchley McGonagall'.

None of this is relevant to the principles which must be applied in this case, except that the respondent sent pieces of light verse of an affectionate nature to the complainant, a Miss Emily Barr. She has been described as a researcher, a student, an artist's model and the winner of a Guardian award. These descriptions are relevant to the extent that, as a young woman who (as we understand it) was ambitious of a career in journalism, she complained to the Sunday Mirror about the respondent's conduct or, at least, informed the paper of its nature.

In addition to composing verse, Mr Booth engaged in what is described as 'kissing and cuddling' with Miss Barr. The crime of rape is different from the matrimonial offence of adultery. For rape to have been committed, vaginal penetration must have been achieved, although it may be worth noting that, with non-consummation of marriage, more stringent tests regarding penetration are applied. But this by the way. For adultery to have been committed, indecent familiarities must have taken place.

Whether such activities, on which there is a wealth of incredibly filthy case law, occurred in Booth must remain open to doubt. However, Mrs Booth is not asking for our opinion on whether she could successfully sue for divorce. Our clear view is that Conservative members should not (i) write poetry or (ii) employ young women with journalistic ambitions, the more so if they have received awards from the Guardian.

We do not find it helpful to cite older precedents, certainly not those of before 1945. In fact there were no worthwhile political scandals of a sexual character before Profumo's Case. We must jump backwards to Dilke's Case and Parnell's Case, both 19th-century precedents, to find anything comparable. This gap we attribute to the more reticent character of the press during the period in question. We are reluctant to believe that the quantum of sexual activity on the part of members of the Commons (whether Conservative or not) has increased significantly over the years.

Likewise, the recent plethora of cases may be ascribed to the increased boldness of the newspapers. This lack of inhibition has been brought about partly by dislike of the present Prime Minister (chiefly because he is not the previous Prime Minister) and partly by a desire to thwart the projected law of privacy through the argument that, in introducing the law, the politicians are only trying to protect themselves.

After Profumo, the principal authority was Parkinson. Lord Parkinson refused to marry his mistress Miss Sara Keays, who had had a child by him. Instead he returned to his wife and family. For this he was compelled to resign his position in the Cabinet, although he returned to a different and more junior post after four years.

It is said that in Parkinson the crucial element was that he had persistently and over a long period promised to marry Miss Keays. In Lawson's Case, which preceded Parkinson by a few years - and, it may be worth remarking, was never publicised in the newspapers - Lord Lawson left his then wife, set up home with Mrs Therese Medawar, fathered a child with her, married her, fathered another child and prospered greatly.

Mr Tim Yeo, by contrast, fathered a child with Miss Julia Stent but remained with his wife and children. In his case there was, according to the information we have before us, no promise to marry Miss Stent. Hence we conclude that in Parkinson the promise of marriage was not of the essence, and that it is the duty of a Conservative minister (or, for that matter, member) to desert his wife and children and live with his mistress. This is the course which was successfully followed in Lawson, although we have no information as to whether Mrs Medawar (as she then was) was pregnant with her first child by Mr Lawson when he left the first Mrs Lawson.

Just as in Yeo the promise of marriage was not crucial, so in Mellor there was a clear obligation on Mr David Mellor to leave his spouse and children and set up house with Miss Antonia de Sancha. The fact that, as far as is known, there were no children of their brief union makes no difference to the clear legal principle which may be deduced from the cases.

We do not consider the sad cases of Caithness and Milligan to be directly relevant, for the one politician resigned voluntarily, while the other died involuntarily. Norris's Case is, however, directly in point. Mr Steve Norris possessed numerous mistresses, confessed all and retained his post in the Government. However, he did not make the crucial mistake of staying with his wife. Sometimes he was reported to be living with one mistress, sometimes with another; it was not always easy to tell. But if Mr Booth were to divorce and to marry Miss Barr, we feel confident that he would satisfy prevailing ideas of morality. In the meantime we must agree with Mr Julian Critchley, whose works have been drawn to our attention, that the only safe pleasure for a Conservative MP is a bag of boiled sweets.