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Commons) was maturing a standing order for the same
purpose. Earl Granville said that he found, on enquiry,
that a Bill could not be formally referred to a joint
committee unless it had been before both Houses. But
he had no doubt such committee (if appointed) would
consider the measure as carefully as though it had been
formally referred to them. 6

On March 14 and 15, a joint committee of both
Houses was appointed ' to consider whether any facili-



Hans. D. v. 104, pp. 588-G20. e Ib. v. 104, p. 7i>9.



AND DESPATCH OF BUSINESS. 309

ties can be given for the despatch of business in Parlia- Proceed-
ment, especially in regard to the relations of the two between
Houses.' f both

, . Houses.

This committee made their report on August z.
Adverting to the Bill to facilitate Proceedings on Bills
in Parliament, ' the committee admit, with some qualifi-
cation, the existence of the evil which it is proposed to
correct, but are of opinion that it can only be remedied
by general consent,' and believe that the House of
Commons would be unlikely now to take a different
view from that which they took in 1848 on the subject.
They consider ' that considerable expedition might be
made in the progress of legislation, if more Bills, espe-
cially those of a legal or ecclesiastical character, were
to originate in the House of Lords.'

A difficulty attending the first introduction of important public
Bills, involving disputed points of public policy in the House of
Lords, may be illustrated by the proceedings upon the Parochial
Schools (Scotland) Bill, in the session of 1869. This Bill was first
introduced by ministers into the House of Lords, but as they were
in a minority in that chamber, the Opposition were enabled to re-
model the Bill during its passage through the Lords to such an
extent that it became the Bill of the Opposition. When it reached
the House of Commons the Lord Advocate was unable to recom-
mend it as a government measure. So he got the House to allow it
to be committed pro forma, in order that he might introduce such
amendments as were needful to restore the Bill to somewhat like its
original form. He then took the discussion on the re-committal of
the Bill, which, in the ordinary course, would have taken place on
its second reading. This involved an apparent discourtesy to the
House of Lords, and the setting aside, without adequate discussion,
of their important and carefully prepared amendments. % It was
not until August 9 that the Bill was returned to the Lords, with
amendments which completely altered its character. Accordingly,
upon decision, the consideration of the amendments was put off for
three months ; and the Bill, as amended by the Commons, was
ordered to be reprinted, with a view to preserve a record of this
transaction. 11



f Hans. D. v. 194 pp. 1309, 1560. h Ib. pp. 1470-1484, 1524 ; v. 200,
Ib. v. 198, pp. 802-816. p. 304.



400 THE ROYAL PREROGATIVE

Proceed- But that ' the arrangement of public business between

in firs

between the two Houses can only be left to the discretion of her
Houses Majesty's ministers.' Moreover, it is evident that the
excessive pressure of business in the House of Com-
mons, while it occasions inconvenient delay in sending up
Bills to the Lords, likewise obstructs the passage through
that House of Bills which have originated in the Lords.
The committee, however, submit copies of new standing
orders, framed by Lords Eversley and Eedesdale, and
substantially approved by Sir E. May, to provide for
the postponement of Bills sent up to the Lords too
late for their due consideration until the next session ;
and for the resumption of proceedings thereon at that
time by passing them rapidly through the stages prior
to that at which it had been laid aside. Likewise pro-
viding for the re-introduction and summary passing of
Bills which had passed one House in the preceding
session and been dropped in the other (without having
been actually rejected), so as to enable them to
be re-considered in that House ; but securing to the
originating House an opportunity for the re-consid-
eration of their own Bill, after it shall have been
passed by the other House, either with or without
amendment. 1

On July 4, 1871, in view of the continued delays in
sending up important Bills for the consideration of the
Lords, Earl Grey again urged the adoption of some
plan of the sort. j

In 1875, the Commons committee on Acts of Par-
liament recommended that where all the clauses of
a consolidation Bill cannot be got through before
the prorogation, the Bill should be suspended till the
ensuing session, and resumed where it had been left
off. But beyond the case of such Bills, Parliament still



1 Coin. Pap. 18G8-9, v. 7, p. 173. Rep. Com , on Despatch of business,
pp. iii. iv. 21, 23. > Jlans. D. v. 207, p. 1079.



AND PRIVATE BILL LEGISLATION. 401

regards this project unfavourably, so far as public Bills
are concerned. 1 "

Furthermore, the committee made certain recom-
mendations further to facilitate private Bill legislation :

l^riVili

1. That the House of Commons should not insist on Bills
its privileges in regard to local rates, in the case of
private Bills, or in the case of public Bills confirming
provisional orders. 1 In 1858, the Commons relaxed
their privileges as regards local tolls and charges, but
not as regards Bills imposing or authorising the imposi-
tion of rates. A committee of the House did, indeed,
agree in 1848 to advise that the privilege should be
abandoned, in the case of local rates or duties ; but the
resolution for the same was rescinded a week after-
wards. While in the practice of the House itself there
is a material difference of procedure between imperial
and local taxes, yet the one class is so closely related
to the other, and an increase of the latter frequently
has such a marked effect upon the former, that the
Commons have been unwilling to yield to the Lords
in such matters. Sir E. May thinks, however, that in
. the case of Bills which are permissive ' which enable
local authorities to impose taxes, without actually
imposing them, the privileges of the Commons might
readily be surrendered.' And if the House were dis-
posed to relax their privileges further, it might do so
in the words used by the committee in 1848, which
exactly indicate the material distinction between the
two classes of taxes ' provided such taxes shall be as-
sessed and levied by local authorities for local purposes,
and shall not be applied to the public service.' He
would clearly advise such a concession in the case of
private Bills, because in that case l the parties who are



k Rep. Coin, on Acta of Parl. sion on this subject see Social Science

1875, v. 8, p. 21:3; Evid. pp. 11, Trans. 1875, p. 185.
112, 114. For papers and a discus- ' Com. Pap. 1868-9, v. 7, p. 174.

VOL. I. D D



402 THE ROYAL PREROGATIVE

to be taxed petition Parliament for permission to tax
themselves.' It is otherwise in the case of local rates
imposed by public Bills. m

2. The committee recommended the adoption of a
series of resolutions reported by them, for referring
opposed private Bills to a joint committee of both
Houses, a method which they consider would introduce
greater simplicity, and rapidity of proceeding, and a
corresponding economy. This plan was considered in
1854, but was then deemed to be impracticable, be-
cause ' it was supposed to be one of the privileges of
the House of Commons that on joint committees the
members of that House must be double the number of
the Lords.' 'It is now well understood that the num-
bers from each House serving on joint committees
should be equal.' ' The committee believe that the ap-
pointment of a joint standing order committee would
remove the inconvenience arising from a difference of
opinion between the two Houses, which sometimes leads
one House to reject a Bill, after a decision in the other
House allowing the same to proceed. This scheme is
very much facilitated by the fact that the standing
orders of the two Houses are now practically identical."
This report, however, has not yet been considered by
either House of Parliament.

Sir Erskine May, in his evidence before this com-
mittee, warmly advocated this novel procedure of a
joint committee on opposed private Bills. He said it
was considered by a committee of the Commons in 1854,
and had it been then introduced, ' would have saved the
promoters and opponents of private Bills many millions
in costs.' If this plan should be approved, it would be
necessary, at the outset, to relax the privileges of the
Commons, ' so that all private Bills could be introduced



Com. Pap. 18H8-9. v. 7, pp. 184-180. If), p. 174.
- Hans. 1). v. 207, p. 093.



AXD PRIVATE BILL LEGISLATION. 403

indifferently into either House, according to the desire
of the parties who petition.' He then proceeded to
show, with great minuteness of detail, the probable
advantages of this new machinery, and the mode of
giving effect thereto, in both Houses. 1 *

In 1872, Mr. Gladstone expressed a strong opinion
in favour of joint committees of both Houses on private
Bills. But Mr. Disraeli doubted the expediency of the
proposal/ 1

In 1873 Bills for railway amalgamations of great magnitude
were to come before Parliament, and it was agreed, between both
Houses, that such Bills should be referred to a joint committee.
This arrangement did not at all involve the principle of referring
ordinary railway or other Bills to a joint committee. 1 " In 1876 a
joint committee of both Houses was appointed to report on the
expediency of making further regulations concerning the admis-
sion and practice of parliamentary agents. 8

Adverting to the rule of the House of Lords that
private Bills shall not be read a second time after a
certain day, Sir Erskine May observed that * it has
certainly prevented any Idches on the part of the agents ;
they are very anxious to advance their Bills, but some-
times they are obliged to claim the indulgence of the
House of Lords.' He very much questioned, however,
whether it would be possible to introduce a similar
system into both Houses with regard to public measures.
4 Certainly it would not be possible as regards Govern-
ment Bills : otherwise a Government Bill could be readily
defeated by delay, and there are already more than
sufficient obstacles to the progress of any Bill.' *



p Com. Pap. 1868-9, v. 7, pp. 189, House of Commons, though the

199. House of Lords had no such rules

" Hans. D. v. 209, pp. 155, 156. (Com. Pap. 1876, v. 12, p. Ml) until

T F>. v. 214, p. 88(>. 1876, Hans. T). v. 231, pp. 3, 319.

8 Ib. v. 230, pp. 316, 1767. Cer- 1061. For an able criticism of these

tain rules, the most recent of which rules, see L. T. v. 62, p. 295.
were sanctioned by the Speaker in ' Com. Pap. 1868-9, v. 7, p. 199.
March 1873, were in force in the

1) D 2



404



THE ROYAL PREROGATIVE



Utility of
C( m-
mittees
for legis-
lation.



In view of the facts that the House of Commons in
1868 parted with its jurisdiction in election matters,
that ' the number of private Bills has lately very much
diminished,' and that if this scheme of joint committees
should be entertained, the labour of private legislation
will be further diminished, it has occurred to SirErskine
M;iy that an attempt might be made ' to utilise com-
mittees for the purpose of legislation.' It would be a
pity that a very large body of members of botli Houses,
and especially of the Commons, ' should not be utilised
in maturing public Bills,' and thus spare the whole
House a considerable amount of labour, in discussing
and amending or proposing to amend the wording of
clauses. So far as this has already been done, it has
proved advantageous, and the practice might be usefully
extended. But he would only apply it to Bills of
secondary importance, and with numerous details not
involving important principles ; and he would still retain
the practice of passing all Bills through a committee of
the whole House/

On February 17, 1870, an informal discussion took
place in the House of Lords in regard to the origination
of public business in that House, and ministers promised
that certain measures of law reform should be introduced
therein, at an early date. w

On March 4, 1872, a similar informal debate arose
in the Lords, but without any practical result/ The
fact that for many years every ' liberal ' government has
been in a minority in the House of Lords is one special
reason why they have refrained from initiating impor-
tant legislation in that Chamber.

On April 24, 1871, it was proposed on behalf of
government to bring in a Bill (for the suppression of
crimes in Ireland) into the House of Lords, founded



T Con:. Tap. 18(58-!), v. 7, pp. 200,
201.



w Hans. P. v. 190, p. 4l3-4-'o.
" 11. v. 1>09, p. ll>U8.



IX RELATION TO PARLIAMENT. 406

upon evidence taken before a select committee of the
House of Commons, a copy of which was obtained by
message. This was agreed to by the Lords/



The statutable provision in regard to the meeting of
Parliament now in force merely requires that no longer
a period than three ) T ears shall elapse between the de- meat -
termination of one Parliament and the issue of writs for
another. 2 Nevertheless, by constitutional practice, the
annual assembly of Parliament has become necessary.
Supplies for the public service are voted annually,
and the Acts for the control of the army and navy are
limited in their duration to one year, and must be
renewed before the expiration of that time. a

In order to give life and existence to a Parliament, Opening
and to enable it to proceed to the execution of its func-
tions, the personal presence or delegated authority of
the crown is required for the formal opening of the ses-
sion. At the beginning of every new Parliament, and
of every session after a prorogation, the cause of sum-
mons must be declared to both Houses, either by the
sovereign in person, or by commissioners appointed to
represent him, in a speech from the throne : until this
has been done neither House can enter upon any busi-
ness. The act of the Commons in choosing a Speaker is
no exception to this rule, for they are specially em-
powered to make choice of a presiding officer by com-
mand of the sovereign, who refrains from making known
the purpose for which Parliament has been convened
until the Commons are completely organised, by the
election of their Speaker. b



> Hans. D. v. 205. p. 1548. May, Pail. Prac. ed. 1883, p;

* 16 Chas. II. c. 1 ; 6 and 7 W. 050.

and M. c 2. Hats. Pree. v. 2, p. 292. h 2 Hats. pp. 308, 327. And see

And see post, v. 2. Mir. of Parl. 1833, p. 1.



400 THE ROYAL PREROGATIVE

In 1874, a change of ministry having taken place after the
general election, and before the meeting of Parliament, the House
of Lords and the House of Commons (after their Speaker was
chosen) adjourned, from March 9 to 19, before the delivery of the
speech from the throne, the Lords Commissioners having declared
' Her Majesty's pleasure that an opportunity -may now be given to
issue writs for supplying the vacancies so occasioned, and that after
a suitable recess, [both Houses might] proceed to the consideration
of such matters as [would] then be laid before ' them. c

But when once Parliament has been formally opened,
by the declaration of the causes of summons, each
iiainent. branch of the legislature has a separate and distinct
jurisdiction ; and business may be entered upon by either
House, in conformity with its recognised rules, usages,
and customs, irrespective of the royal will and pleasure.
It is an ancient and undoubted privilege of the two
Houses of Parliament, after the speech from the throne
has been delivered, to proceed upon any matter, at their
discretion or convenience, without giving priority to the
discussion of the topics included in the royal speech.
As a deliberate assertion of this right, both Houses
invariably read a Bill a first time, pro form a, before they
enter upon the consideration of the speech ; and there
are many instances of their postponing the consideration
of the same in favour of other business for one or more
days. d

Communi- Formal communications between the sovereign and
between Parliament, in the shape of royal speeches or messages,
the crown an j the interposition of the authority of the crown to

and Par- " i -i -i i /

liament. enect the adjournment, prorogation, or dissolution 01
Parliament which heretofore emanated from the mere
personal will of the reigning monarch are, under our
present constitutional system, considered as the acts of
the sovereign's responsible advisers. Ever since the in-
troduction of ministers into Parliament, they have been



Hans. I), v. 218, pp. 15-22.

d -2 Hats. pp. 309. May, Parl. Prac. ed. 1883, p. 48.



IN RELATION TO PARLIAMENT. 407

held directly responsible for every exercise of the royal
authority. The recognition of this principle has pro-
duced important changes in the relations between crown
and Parliament. While the outward ceremonial remains
unaltered, a greater harmony and freedom both of action
and intercourse has been brought about between the
executive and the legislature. The sovereign is no
longer called upon to perform ungracious acts towards
his Parliament, or held individually accountable for a
policy which is distasteful to that august body. If Bills
are introduced into either House that are disapproved
of by the crown, the royal veto need not be invoked for
their rejection ; but after they have undergone the fullest
and freest discussion, the constitutional influence of
ministers generally suffices to control their fate.

The royal veto upon bills in Parliament has not been exercised
for upwards of 150 years ; nevertheless, its continued existence is
undoubted, arid circumstances might at any time arise that would
justify the crown in resorting thereto. 6

If it be necessary, on the other hand, to propose for
the acceptance of Parliament the adoption of unpopular
measures, ministers are at hand to explain and defend
them, upon their personal responsibility. And if it be
impossible to continue to carry on the government suc-
cessfully without appealing from the House of Commons
to the constituent body, ministers of the crown are
themselves responsible for the act of dissolution.

The opinions of either House of Parliament are Reso-
constitutionaUy expressed either by means of an address p^iia-
of advice or remonstrance to the crown, or by their ment -
agreement to a Bill to add to, alter, or repeal an existing
law. But no mere resolution of either House has any
legal validity, except in so far as it records the opinion
of the House upon some matter which comes within the

See post f v. 2,



408



THE LOYAL PREROGATIVE



sphere of its acknowledged authority, as a component
branch of the legislature, to determine.

For example, either House of Parliament may resolve
that its privileges have been infringed in a particular
instance. But it cannot enforce a claim of privilege
beyond the limits of acknowledged precedent, or by
any assumption of privilege exercise unconstitutional
powers ; or alter, suspend, or supersede the established
laws of the land, so as to deprive the subject of any
remedy or right provided for or conferred on him by
law.

See the decisions of the Judges cited/ and the proceedings in the
case of Stockdale v. Hansard, wherein the House of Commons laid
claim to a privilege which the courts of law denied. s The matter
was finally settled by the passing of an Act (3 & 4 Viet. c. 9),
legalising the action of either House of Parliament in regard to the
main question at issue. See also Sir Erskine May's evidence before
a Committee of the House of Commons in 1869 on the mode of
examining witnesses which treats of the ' well established rule of
Parliamentary law that neither House of Parliament has power to
claim any new privilege,' or to revive a power which has been long
disused. 11

Either House may declare the expediency of an alter-
ation of the law in a given direction, but it can only
give effect to its opinions by the regular method of par-
liamentary procedure that is to say, by the introduc-
tion and passing of a Bill, which is assented to by the
other branches of the legislature. No mere resolution
of either House, or joint resolution of the two Houses,
can override an Act of Parliament, 1 or dispense with its



f Thomas's Const. Law, p. 34.
May, Parl. Prac. ed. 1883, c. vi.

See 9 Ad. and Ell. p. 134. Ar-
nould's Life of Denman, c. 26.

h Com. Pap. 1809, v. 7, p. 707.
Hans. D. v. 196, p. 620 ; Mr. Dis-
raeli, Hans. 1). v. 217, p. 372.

1 Hans. 1). v. 203, p. 1115. And
see debates upon a proposed new
standing order, which was errone-
ously assumed to be iu contravention
of the provisions of au Act of Parlia-



ment, ib. v. 233, pp. 693, 1527. And
see objection taken to a proposed
resolution of the House of Lords, in
a Scotch peerage case, that it was an
infringement of the provisions of an
Act of Parliament, Hans. D. v. 235.
p. 957. And so the Board of Trade
will not sanction a provisional order
in Avhicb. it is proposed to repeal any
part of a general statute. See Com.
Pap. 1877, v. 16, p. 605.



IN RELATION TO PABLIAMENT. 400

requirements, even although it may relate to something
which directly concerns but one chamber of the legisla-
ture. Although provision is sometimes made by statute
to declare a ' resolution of the House of Commons,' j or,
a resolution of * both Houses of Parliament,' 1 " to be valid
and effectual for confirming or allowing some act of
government, which would not otherwise be legal. The
effect of a parliamentary resolution in a matter of ad-
ministration will be presently considered. 1 But, first, it
will be expedient to notice certain cases explanatory of
the principle above mentioned.

The House of Lords having repeatedly refused to agree to cer- Jews in
tain bills passed by the Commons for the admission of Jews to a .
seat in Parliament, in the year 1857 a select committee was ap-
pointed by the House of Commons, to consider whether the House
had not the power of itself, under the Act 5 & 6 Will. IV., c. 62, to
admit Jews to the privilege of membership, by substituting a decla-
ration in lieu of the oath prescribed by law, which oath contained
words ('upon the true faith of a Christian') that rendered it unsuit-
able to, and impossible to be taken by, a Jew. The committee was
presided over by Lord John Russell, who, together with the attorney-
general (Sir R. Bethell), was inclined to the opinion that the legal
power to administer a declaration to a person objecting to take the
oath was possessed by the House of Commons, although it was
confessedly undesirable to use that power until all other constitu-
tional remedies had been tried. Thus, in 1833, Mr. Pease, a Quaker,
was admitted by the House to sit and vote, upon making affirmation
instead of the oaths directed to be taken by law. This course was
adopted upon a general construction of the statutes permitting
Quakers to make affirmation in lieu of being sworn. m But the
introduction of Jews into Parliament in a similar way would have
been a violation of the principle of Christianity, as recognised in
the statutes upon the subject of oaths. But the majority of the
committee was against this opinion, whereupon the committee
agreed to report to the House as follows : ' The following resolu-
tion was proposed by a member of the committee : That, in the
opinion of this committee, the House of Commons is included



J As by Act 25 & 26 Viet. c. 78, of Indian troops out of India. See

sec. regarding contracts ; see past, po*t, p. 523.

p. 49.J. > See post, -p. 419.

k As by Act, 21 & 22 Viet. c. 106, m May, Parl. Prac. ed. 1883. p.

see. 55, concerning the employment 209.



410 THE ROYAL PREROGATIVE

within the following words of the 8th section of 5 & 6 Will. IV., c.
62, that is to say, " All bodies now by law, or statute, or by any
valid usage, authorised to administer or receive any oath" [may
make order, <fec., authorising and directing the substitution of a
declaration in lieu of any oath]. Upon deliberation, the resolution
passed in the negative.' n Notwithstanding the able arguments
made use of to induce the House to assert a claim to settle this
controversy by its own act, and the eminent men by whom this
claim was advocated, the House of Commons refrained from the
attempt. But the probability that a continued resistance on this



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