By tradition any member of the British House of Commons who accepts an 'office or place of profit under the crown' is thereby disqualified from sitting in the House, and it is generally regarded as being the accepted practice that any member of the House of Commons who wishes to resign their seat must apply for the Chiltern Hundreds, being an office of profit under the crown specially kept aside for this purpose.
It was long regarded that sitting as an elected representative in the House of Commons was incompatible with the holding of certain offices, and as far as the common law was concerned it was recognised for example, that sheriffs couldn't sit for their counties and that recorders couldn't sit for their towns, whilst it was also decided that judges, including what were known as police magistrates, were similarly barred from becoming members of the House of Commons, although the prohibition didn't apply to ordinary unpaid justices of the peace, whilst judges could indeed be members of the House of Lords and frequently were.
However during the seventeenth century, at a time when Parliament began to see itself as responsible for overseeing the executive, that is the crown, it was also feared that the crown was able to exercise undue influence over the House of Commons due to the presence of so-called 'place-men' in the House, that is individuals who were in receipt of remuneration from a crown appointment. Various attempts were made to control this practice by legislation; a Place Bill was passed by the House of Commons in 1692 and narrowly failed in the House of Lords, whilst a similar Place Bill was passed by both Houses in 1694, only for William III to refuse his assent to the bill.
The first successful attempt to place these restrictions on a statutory footing was the Act of Settlement 1701 which specified that, "That no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons", a measure that was intended to come into effect once the first Hanoverian ascended the throne. The constitutional history of England or indeed its successor state of Great Britain would have been quite different had this clause remained in effect, although as it was the clause was repealed in 1705 by the passage of 'An act for the better security of her majesty's person and government, and of the succession to the crown of England in the Protestant line' (4 Anne c.8) more commonly known as the Succession to the Crown Act 1705. Naturally this piece of legislation had to be revised following the union with Scotland in 1707, and was therefore duly replaced with 'An act for the better security of her majesty's person and government, and of the succession to the crown of Great Britain in the Protestant line' (6 Anne c.7), otherwise known as the Succession to the Crown Act 1707.
As it was, the limits put in place by this piece of legislation differed from the blanket restriction originally envisaged by the Act of Settlement. Clause 24 of the Act of 1707 specified "that no person who shall have in his own name, or in the name of any person or persons in trust for him, or for his benefit, any new office or place of profit whatsoever under the crown, which at any time since the five and twentieth day of October in the year of our lord one thousand seven hundred and five have been created or erected ... shall be capable of being elected, or sitting and voting in the House of Commons in any Parliament which shall he hereafter summoned and holden." This led to a distinction between 'old offices' and 'new offices', since the restriction only applied to the latter, much confused by the fact that subsequent acts of Parliament frequently redefined certain 'new offices as 'old'. Furthermore this was subject to two important qualifications. Firstly clause 26 stated that this restriction didn't apply to any "officer in her Majesty's navy or army", which explains why so many individuals could later pursue both military or naval careers whilst simultaneously sitting in the House of Commons. Secondly, and more significantly, clause 25 specified that "nevertheless that such person shall be capable of being again elected as if his place had not become void as aforesaid".
The important point to note is that had the original restriction included in the Act of Settlement remained in force, then no member of the House of Commons would have been able to have accepted office as a Minister of the Crown, which would have enforced a strict separation of the executive from the legislature. As it was the effect of Clause 25 in the Succession to the Crown Act was that any member of the House of Commons who accepted government office was simply obliged to step down from the House and contest a by-election; if victorious at the by-election the individual in question could then continue to serve both as a member of the House and as a minister in compliance with the law. As a result there was a regular succession of by-elections triggered by the requirement for newly appointed ministers to submit themselves for re-election, and indeed between the years 1832 and 1926 there were 677 such by-elections at an average of about seven a year. Eventually the Reform Act 1867 removed the necessity of re-election when a member moved from one office to another, whilst the Re-Election of Ministers Act 1919 made re-election unnecessary within nine months of a general election, and the Re-Election of Ministers Act (1919) Amendment Act 1926 finally abolished the requirement altogether.
It nevertheless remained the case that any member who accepted any other crown office was obliged to comply with the law and indeed vacate their office, a state of affairs which persisted beyond 1926. There was however a certain amount of confusion and uncertainty as to what precisely constituted an 'office or place of profit under the crown'. For one thing, the idea that certain crown stewardships fell under this definition doesn't appear to have occurred to anybody until 1740, and the device of using such appointments to trigger a resignation from the House only began in 1750. However the general uncertainty persisted and later led to the unfortunate case of Niall Macpherson (later the Baron Drumalbyn) the member for Dumfriesshire, who was found to have disqualified himself by holding the office of member of the London agency of the Dried Fruits Control Board of the Commonwealth of Australia. In Macpherson's case the problem was solved by the passing of the Niall Macpherson Indemnity Act 1954, although it also spurred the House to revisit the law. In fact the Herbert Committee had been considering the issue since 1949 without much success, but the eventual result was the House of Commons Disqualification Act 1957 which was later replaced by the House of Commons Disqualification Act 1975, which replaced the provisions contained in the Succession to the Crown Act 1707.
It is now therefore no longer the case that acceptance of an 'office or place of profit under the crown' disqualifies someone from sitting in the Commons, as the House of Commons Disqualification Act 1975 specifically states; "Except as provided by this Act, a person shall not be disqualified for membership of the House of Commons by reason of his holding an office or place of profit under the Crown or any other office or place; and a person shall not be disqualified for appointment to or for holding any office or place by reason of his being a member of that House." Rather it is a case that the Disqualification Act specifies a very long list of offices which disqualify someone from membership of the House of Commons which are listed in Schedule 1 of that Act, as amended at frequent intervals since that time.
As far as the question of a member of the House of Commons resigning his seat his concerned, the appointment of a member to the "office of steward or bailiff of Her Majesty's three Chiltern Hundreds of Stoke, Desborough and Burnham, or of the Manor of Northstead", does not disqualify them from the House because these are both an 'office or place of profit under the crown', but rather because section 4 of the House of Commons Disqualification Act 1975 states that they "shall be treated as included among the offices described" in Schedule 1.
SOURCES
- Oonagh Gay, Disqualification for membership of the House of Commons, Standard Note: SN/PC/3221, 13 October 2004
www.parliament.uk/commons/lib/research/notes/snpc-03221.pdf
- The Chiltern Hundreds, House of Commons Information Office, Factsheet P11, Procedure Series, Revised June 2008
http://www.parliament.uk/parliamentary_publications_and_archives/factsheets.cfm
- Causes of Byelections since the ‘Reform Act’
http://www.election.demon.co.uk/causes.html
- The Statute Law Database at www.statutelaw.gov.uk/
- Frederic William Maitland, The Constitutional History of England. A Course of Lectures Delivered, (Cambridge University Press, 1908)
- Andrew Browning, editor, English Historical Documents, Volume 6 1660-1714, 2nd Edition, (Routledge, 1995)