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legal existence of this high court results altogether from



1 See po.it, \. 2. Govt. of Enr. p. 51 . Ld. Redesdu'.o

J Stubb's, v. 2, p. 572. Ilearn, in Colchester's Diary, v. 3, p. 47.



IN RELATION TO PARLIAMENT 387

the exercise of the royal prerogative. It is summoned, Pariia
by virtue of the king's writ, to meet for despatch of
business, at whatsoever time or place he may please to
direct. The necessary interval between the date of
summons by royal proclamation and the meeting of
Parliament was formerly fourteen days, but by a recent
statute, it has been reduced to six days. k

In 1858 an informal discussion arose in the House of Commons,
in which it was suggested that it would be desirable to have meet-
ings of Parliament in the autumn, so as to secure a prorogation
early in the summer. 1 Next session, an address to the crown to this
effect was proposed, and negatived, after a short debate. In 1873,
a similar address was again proposed, but after a debate, the motion
was withdrawn."

Parliament can only commence its deliberations at
the time appointed by the king, and cannot continue
them any longer than he may allow. Formerly, upon
the death of the reigning monarch a dissolution of Par-
liament immediately ensued. But after the Revolution
an existing Parliament was empowered to continue in
existence, for a period of six months and no longer from
the death of the sovereign. And by a clause in the
Reform Act of 1867, it is provided that it shall be no
longer compulsory for a dissolution of Parliament to
take place at any future demise of the crown. The
power of adjournment is discretionary with each House ;
but the crown is empowered by law to put an end to
an adjournment extending beyond fourteen days. p The
deliberations of Parliament may be cut short at any
moment by the exercise of the royal power of proroga-
tion,' 1 which quashes all proceedings pending at the



k Hans. D. v. 203, p. 1146 ; 38 & Notes on the ' Representation of the

34 Vic. c. 81. People's Act, 1867,' p. 22.

1 Ib. v. 151, pp. 1185, 1198. P May, Parl. Prac. 1883, p. 52.

m Ib. v. 155, p. 61. And see Colchester's Diary, v. 2, p.

a Ib. v. 214, p. 902. 463.

Ib. v. 189, p. 738. Act 30 & 31 ' 1 Ib. v. 2, p. 374. And see ante,

Vic. c. 102, s. 51. See Anstey's p. 189.

c c 2



388 THE ROYAL PREROGATIVE.

time, except impeachments by the Commons, and writs
of error and appeals before the House of Lords which,
being judicial proceedings, continue in statu quo from
Parliament to Parliament/

All trials in progress before election committees are
suspended by a prorogation of Parliament, but are
resumed, by statutable authority, in the ensuing session. 8
By a prorogation, all resolutions,* bills, and other pro-
ceedings, pending in either House, are naturally termi-
nated, and cease to have any further effect, except in
so far as they may be continued in operation by the
express authority of Parliament.

The only apparent exception to the rule concerning resolutions
is in the case of standing orders. By the custom of Parliament
these are accounted to be in force, in succeeding sessions, until
rescinded. They are considered as being declaratory of the law and
practice of Parliament ; and, without relying upon their absolute
validity, the House agrees to adhere to their observance."

But in the case of private bills generally, except Indian Divorce
Bills, in certain cases, v or of railway bills in particular, relief has
been repeatedly granted to the parties concerned in promoting or
opposing such measures, when a session of Parliament has been
brought to a sudden and premature close, on account of the exigen-
cies of political warfare. This was done in regard to all private
bills, in 1820, 1831, 1841, 1857, and in 1859, and as respects
railway bills only, in 1845 and 1847, by the adoption, in both
Houses, of resolutions, permitting such bills to be reintroduced in
the following session, and by means of pro forma and unopposed
motions advanced to the stages at which they severally stood when
the prorogation took place. w The orders made in 1859, for this
purpose, were peculiarly simple and effectual, and will probably be
followed hereafter, in preference to earlier precedents. x So in 1871,
the Tramways (Metropolis) Bills were suspended in a similar man-
ner. But, inasmuch as these Bills had been submitted to Parlia-



r Hats. Free. v. 4, p. 273, n. v 1 Geo. IV. c. 101.

Act 11 & 12 Vic. c. 98. w See Com. Journals, v. 75, p. 119;

* Com. Pap. 1861, v. 11, p. 439. vol. 86, pt. 2, p. 525. Mir. of Parl.
u May, Parl. Prac. ed. 1883, p. 1841, pp. 2303, 2346. Hans. D. v.

T94. Com. Pap. 1859, s. 1, v. 3, p. 144, p. 2209; ib. v. 153, pp. 1528,

.'if. <Joui c . on the Jews ' Act, Haus. 1607.

1). v. 152, p. 402. And see Hans. L). * May, Parl. Prac. ed. 1883, p.

v. 192, p. 1078 . 779.



PROCEEDINGS BETWEEN BOTH HOUSES. 339

ment under the provisions of the Tramways Act of 1870, it was
necessary to sanction this proceeding by a special Act of Parlia-
ment, in addition to the resolutions of both Houses.?

It was suggested, in the Session of 1865, that on account of the
great mass of private business before Parliament, and the desira-
bility of an early prorogation, with a view to an immediate dissolu-
tion, similar resolutions should be agreed to ; but the case was not
deemed sufficiently urgent and unexpected to warrant such a course,
which should only be resorted to when the session has been brought
to an abrupt and premature termination. 2

Parliamentary Proceedings between the Two Houses.

For nearly seventy years, it has been a frequent and
increasing cause of complaint that, owing to the late
period of the session at which it is usual for Bills to
be sent up from the Commons to the Lords for their Houses.
concurrence, sufficient time is not afforded to that
House for the adequate consideration of legislative
measures.* On April 14, 1848, Lord Stanley (after-
wards Earl of Derby) submitted to the House of Lords
a Bill for the remedy of this evil. Admitting that it
was expedient, as a general rule, that legislation should
be initiated in the Lower House inasmuch as Bills
originating with the Lords were seldom favourably re-
ceived by the other branch, b because ' the more proper
function of their lordships was to control, amend, and
revise, the legislation of the House of Commons,' he
proposed to grant to the House of Lords ' the power,
when they saw fit, upon the receipt of a Bill passed by
the other House of Parliament, to adjourn the consi-
deration thereof from the period of the session at which
they could not deliberately enter upon its consideration
to an early day to be named at the commencement of
the next session,' to be then proceeded upon at the
stage at which it had been postponed. The Bill was



y Hans. J>. v. 212, p. 582. Act 35 a Ib. v. 159, p. 2145, and v. 194,

and 36 Vic. c. 43. p. 593.

* Ib. Y. 180, pp. 6P2, 851 ; and see b Ib. v. 119, p. 250.

ib. v. 80, p. 854. c Ib. v. 98, p. 329.



390 THE ROYAL PREROGATIVE

Facility of read a second time, notwithstanding the strenuous oppo-
between sition of Lords Campbell and Eedesdale, who urged
both that it was open to ' strong constitutional objections,'

Houses. B J

and would tend to aggravate disputes between the two
Houses. With a view to obviate some of these objec-
tions, Lord Stanley moved certain amendments, to pre-
serve the prerogative of the crown intact, and to afford
to the House of Commons an opportunity of re-con-
sidering a postponed Bill, even though it should have
passed the Lords, in the following session without amend-
ment. These amendments were agreed to, and the Bill
was passed.* 1 In the House of Commons, the Bill was
read twice, and then referred to the select committee
on public business. 6 The Bill was carefully considered
by this committee, but they simply reported that they
did not think it advisable to recommend it for adoption
by the House ; f a conclusion which is said to have been
arrived at ' in order to avoid any points of controversy
between the two Houses.' g

In 1852, a Parliamentary Proceedings Facilitation
Bill, similar to that brought in by Lord Derby in 1848,
was laid upon the table of the House of Lords, by
Lord Lyndhurst. It was read a first time, but was
afterwards dropped. 11

However, in the year 1854, the project was revived
by another committee of the House of Commons on the
business of the House. In a draft report, which appears
upon their minutes, the committee state that ' they have
also considered a resolution in favour of a plan brought
into the Upper House by the Earl of Derby in 1848, for
facilitating public business by "enabling either House
of Parliament to adjourn proceedings during the pro-
rogation of Parliament, upon certain Bills passed by

d Hans. D. v. 98, pp. 981, 1255; Parl. Prac. ed. 1883, p. 338, gives a

v. 99, p. 246 summary of the attempts, from 1848

" H>. v. 100, pp. 131-137. to 1869, to pass such permissive

f Com. Pp. 1847-8, v. Hi, p. 140. Bills and of the objections thereto.
Hans. I), v. lf4, p. 619. JNJay, h Ib. v. 119, p. 317.



AND DESPATCH OF BUSINESS. 391

the other House, and to resume proceedings thereupon
after such prorogation " ; and they have considered a
proposal which will shortly be submitted to the House
of Lords to ensure an earlier termination of the session
by making a rule that no Bill shall be read a second
time after a certain day, except under special and urgent
circumstances/ l Upon these suggestions,' it is added,
' your committee is unprepared to offer any decided
opinion.' But this paragraph was omitted in the report
which was finally adopted by the committee. 1

The other proposal referred to in the draft report
above cited, was designed to apply to Public Bills, a
restrictive principle of a similar nature to that already
enforced, with the best effect, in reference to private
business. On May 2, 1854, the House of Lords upon
motion of Lord Eedesdale, agreed to a sessional order,
declaring that this House will not read any Bill a
second time after July 25, except Bills of aid or supply,
or any Bill in relation to which the House shall have
resolved, before the second reading is moved, that the
circumstances which render legislation on the subject
matter of the same expedient are either of such recent
occurrence or urgency as to render the immediate
consideration of the said Bill necessary.' j In the same
session, after a long debate, the Lords resolved, upon
division, and contrary to the opinions of Lord Eedes-
dale, to allow a Bill concerning bribery to proceed not-
withstanding this order, upon the ground of urgency. k
In the session of 1855, the Order was renewed, with
the consent of the ministry. 1 Certain Bills were never-
theless allowed to proceed, on the ground of urgency,
though not without opposition. 111 The Order was again



' Com. Pap. 1854, v. 7, pp. 31-32. k Ib. v. 135, pp. 943, 1182,

J Hans. D. v. 132, p. 118& S*e > Ib. v. 138, p. 94.

observations in the House of Com- m Ib. v. 139, pp. 1850, 1895, 1923,

nion-s concerning this Order, ib. v. 2023.

135. p. 417.



392 THE ROYAL PREROGATIVE

f n eed " renewe(1 in 1856, assurances being given as to its
between beneficial operation. 11 Likewise in 1857 ; but not with-
Houses. Ollt complaint in the House of Commons, owing to the
unusual shortness of the session. It was again renewed
in 1858 ; p but not in 1859, because, as in 1857, two
sessions were held in that year. It was renewed for
the last time in 1860. q During this session the rule
was pronounced by Mr. E. P. Bouverie, who had filled
the office of chairman of committees in the House of
Commons to be ' a great infringement of the privileges
of the Commons ' ; but it was vindicated by Mr. Disraeli,
who considered that ' the effect of the rule, has, on the
whole, been salutary.' r Several debates took place, in
the Lords, during this session, upon motions to exempt
particular Bills from the operation of the rule. 8

On August 13, 1860, the resolution of urgency was
proposed on behalf of the Savings Bank, &c., Invest-
ments Bill, a government measure affecting the financial
arrangements of the country, though not strictly a Bill
of supply, but oh division, the numbers being equal,
the motion was negatived.* On account of the import-
ance of the Bill, and an apprehension that its being laid
aside would occasion a misunderstanding between the
two Houses, ministers resolved upon again taking the
sense of the House upon this motion. Admitting the
advantages which have resulted from the use of this
order, Earl Granville (the president of the council)
declared that he had often thought ' that strictly and
in principle that resolution could not be defended, and
if its examination were passed, it would be found not
to be in accordance with our relations either with the
other House or with the crown.'" Accordingly, on

" Hans. D. v. 142, p. 245 ; v. 143, r Ib. pp. 1958, 19G1.
p. 1180. Ib. v. ICO, pp. 346, 417, G27,

Ib. v. 147, pp. 419, 557, 714, 1031.
717. t jb. v. 100, p. 1180.

" Th. v. 149, p. 1853. u Ib. pp 1347, 1445, 2145.

' Ib. v. 159, p. 550.



AND DESPATCH OF BUSINESS. 393

August 20, the resolution of urgency was again pro- Proceed-
posed on behalf of this Bill and agreed to, Lord Mont- between
eagle entering a protest against this decision/ Houses

On February 8, 1861, Lord Derby, upon motion for
the appointment of a select committee on the public
business of the House,

[A similar motion, which gave rise to a debate on the expediency of
some legislation on this question, was made in the House of Lords
by Lord Derby on July 19, 1860, but withdrawn w ]

adverted to Lord Eedesdale's annual sessional order,
fixing the day after which their lordships would decline
to proceed upon Bills unless they were of an urgent cha-
racter. He said that it had worked well, but that there
was much difficulty in determining upon the question of
urgency. He thought it would be ' perfectly easy for
the Lords to act upon a rule, which he believed they
might adopt of their own authority, of suspending Bills
at the termination of one session, and resuming them
in the next,' provided that the House of Commons
should not think it necessary when they sent Bills back
to them to put them through all their stages again.
Lord Redesdale objected to this idea, and considered
that ' there might be inconvenience, if not danger, in
such a course.' The Lord Chancellor (Campbell) would
leave these questions to the consideration of the select
committee, but while he agreed that Lord Redesdale's
resolution had worked beneficially in practice, he thought
' it encroached upon the privileges of the House of Com-
mons and the prerogative of the crown.' x Later in the
session, Lord Redesdale defended the principle of his
annual resolution, but declared that he should refrain
from moving it while the matter was under considera-
tion by committees of both Houses, now sitting on
public business. 7 Subsequently (in 1869) Lord Redes-



T Hans. D. v. 160, pp. 1551-1564. ' Ib. v. 162, p. 414. But see
w Ib. v. 159, pp. 2139-2150. ib. v. 164, p. 1358 ; v. 199, p. 424.

* Ib. v. 161, pp. 183-186. Smith, Parl. Keuiein. 1861, p. 0.



394 THE 'ROYAL PREROGATIVE

Proceed- dale stated that ' in deference to a feeling of jealousy on
between the part of the Commons, he gave up pressing for a
Houses ren ewal of the order ; but he did so on the understand-
ing that the principle of it would be adhered to by the
governments of the day. z

The select committees appointed by both Houses in
this session to consider alterations for the promotion of
the despatch of public business, having been e'mpowered
to communicate with each other, certain conclusions
arrived at therein were transmitted by letter from the
chairman of one committee to the chairman of the
other. The initiative was taken by Sir James Graham,
the chairman of the Commons committee, who wrote,
on March 14, 1861, to Lord Eversley, the chairman
of the Lords committee, upon several points, one of
which was to the effect that .the Commons committee
were ' disposed to adhere to the report of the committee
in 1848,' which declared, ' that, having considered the
provisions of the Parliamentary Proceedings Adjourn-
ment Bill, they do not think it advisable to recommend
it for adoption by the House.'

Whereupon, the Lords committee, on motion of
Earl Grey, agreed to the three following resolutions,
to be adopted by both Houses of Parliament :

1st. That it is expedient, in certain cases, to adopt
an abridged form of proceeding with reference to Bills
which shall be again brought before this House after
having been passed by it in the immediately preceding
session of the same Parliament.

2nd. That the Bills in respect to which such abridged
form of proceeding may be adopted shall be, mutatis mu-
tandis, the same Bills which the House may have passed
and sent to the other House, and as to which that House
may. have resolved that there did not remain time for
their due consideration in the session in which they
were received.

1 Hans. D. v. 108, p. 1474.



AND DESPATCH OF BUSINESS. 395

3rd. That on a resolution being moved, that it is ex- Proceed-
pedient again to pass, and to send to the other House between
for its concurrence, any such Bill, the question shall be !jL oth
put whether the House will agree to the same, and on
such resolution being agreed to, the Bill to which it
relates shall be forthwith sent to the other House for
its concurrence, without any further question being put,
or any debate allowed.

The foregoing resolutions were transmitted to the
Commons committee on April 2, with an intimation that,
if they met with the concurrence of that committee, the
Lords committee were prepared to agree to them ; and
to give due consideration to any amendment that might
be suggested therein. It was added, that the resolu-
tions ' would not, in any degree, better the discretion
of the House, or interfere with the passing of a Bill in
the ordinary manner, nor would they apply to any case
where it was introduced in an amended form.' In reply,
the Lords committee were informed that the Commons
committee would not agree to the proposed resolutions,
being of opinion that instead of furthering the prompt
transactions of public business, they would have an
opposite tendency ; ' and that, if common to both Houses,
they would afford new facilities for retarding and post-
poning legislation.'

The Lords committee on May 7, reported to their
own House the proceedings above mentioned. They
referred to the regret which had been so frequently ex-
pressed, ' that Bills have been sent up by the other
House of Parliament, at so late a period of the Session
as to render it impossible to give them that full con-
sideration which the public interests require ' ; a com-
plaint of long standing, as is ' proved by the standing
order of May 5, 1668, and the subsequent proceedings
of this House.' But as the Commons committee had
declined to agree to the plan devised by their lordships'
committee, ' for the reasons set forth in their report,'



396 THE ROYAL PREROGATIVE

Proceed- the committee deemed it useless to prolong its sittings,
between A draft report had been submitted by Earl Grey, advert-
hoth i n g to the action of the Commons committee, combating

Houses. . .

the arguments adduced in their report, and recommend-
ing to the House ' that it should steadily refuse to pro-
ceed with Bills to which it has not a fair opportunity
of giving the deliberate consideration their importance
requires, leaving to the House of Commons the respon-
sibility of adopting such measures as it may think fit,
in order to prevent the strict observance of this rule
from standing in the way of that progress in the work
of legislation which the country has a right to expect
from Parliament,' but this report was negatived. a

Meanwhile, the Commons committee made their
report. After recapitulating various improvements on
the method of transacting public business which they
recommended for adoption by the House, they referred
to the three resolutions above mentioned, which had
been communicated to them by the Lords committee,
and explained the reasons for which they had been
unable to agree to them. They also noticed the ' pro-
posal made in the other House that a power should be
given by statute to either House of Parliament of
suspending (at any stage of proceeding) Bills which
shall have been passed by the other House, and of resum-
ing such BiUs in the succeeding session at the precise
stage where they had been dropped.' They observed
that ' the objections to this proposal are grave and
numerous ' ; for that by it efficient legislation would be
retarded, and ' the opportunities for re-considering,
improving, and amply discussing, important measures
would be inconveniently abridged.'

' Moreover, this suspending power in either House
of Parliament, if exercised at its own discretion, would
be at variance with the prerogative of the crown.' b In

Com. Pap. 1861, v. 11, pp.422- b Ld. Colchester's Diary, v. 1, p.
421). 432.



AND DESPATCH OF BUSINESS. 397

the Bill introduced in the House of Lords in 1848, there Proceed-
was a provision that the consent of the crown should be befwcen
first duly signified to such suspension. This consent of ^th
the crown to the mode of dealing with the Bills not
perfected by the concurrence of the ' other branches of
the legislature, would be a novelty at variance with con-
stitutional practice, not to be defended by any necessity.
The prerogative of the crown, in all cases where the
rights, interests, and property of the crown are not
specially affected, is limited to assenting to or rejecting
Bills which have passed both Houses. It is barred from
all interference during the discussion of them in either
House of Parliament.' For these reasons, the committee
agreed with the committee in 1848, in thinking it un-
advisable to sanction any such enactment.

In 1869, the Marquis of Salisbury revived the con-
sideration of this question in the House of Lords, by the
introduction of a Bill to enable either House of Parlia-
ment to suspend proceedings on a Bill in one session
and resume the same in the next. In order to protect
the royal prerogative, the Bill provided that the assent
of the crown should be necessary to the resumption of
proceedings in any case. And to save the privileges of
the other House, it required that the House from whence
the resumed Bill emanated should have a final vote upon
it after the proceedings thereon had terminated. The
leader of the government (Earl Granville) advised the
House on March 4 to agree to the second reading of
this Bill, with an understanding that it should be after-
wards referred to a joint committee of both Houses.
Lord Kedesdale, on constitutional grounds, was opposed
to the principle of regulating parliamentary proceedings
by statute, when the desired object could be effected by
standing orders, which would more readily admit of
alteration. He also thought it was unconstitutional to



c Ld. Colchester's Diary, v. 1, pp. 439,44(X



308 THE ROYAL PREROGATIVE

Proceed- require the assent of the crown before the presentation
between of a Bill to the sovereign. Earl Derby approved of the
Houses ^^ ^ being similar to the one he had brought in, in
1848. But he objected to the consent of the crown
being required to the resumption of proceedings ; and
also to the consent of the one House being necessary to
the resumption of a Bill by the other. He preferred
that on resumed Bills going back to the originating
House, even if without amendment, that House should
be at liberty to reconsider details, and even amend
their own Bill. Earl Russell concurred in this sugges-
tion. Lord Cairns likewise agreed therein ; but would
prefer, with Lord Redesdale, that the question should be
dealt with by standing orders. He was, nevertheless,
willing to refer the matter to a joint committee. The
Marquis of Salisbury consented to amend the Bill by
omitting any reference to the royal prerogative, and by
providing that when a Bill went back to the originating
House, that House should be empowered to amend it
throughout, and not merely where it had been amended
by the other branch. The Bill was then read a second
time. 4

On March 8, Lord Redesdale communicated to the
House the draft of a standing order he had framed to
accomplish the object in question. Earl Derby stated
that Viscount Eversley (ex-Speaker of the House of



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