LECTURES ON THE ENGLISH CONSTITUTION
_____________________________________________
In the Government Law College Magazine, following observations are made in the ' College Notes, 8th January 1936 issue:—
"We however note with satisfaction that Mr. Fyzee
has handed over charge to no less a person than Dr. Ambedkar. A lawyer of
repute, he is a close student of Economics, an authority on Constitutional Law
and a personality known throughout India and elsewhere. To write more about him
would be otiose. Expecting much from our Principal we shall not embarrass him now. We prefer to wait and see. "
__________________________________________________________________
LECTURES ON THE ENGLISH
CONSTITUTION
Preface
I.
Principles underlying the English
Constitution.
II.
What is Parliament ?
III.
The Crown.
IV. The House
of Lords.
V. The Powers
and Privileges of the Lords and the Commons.
These are lectures on the English Constitution which I delivered to the
students of the Government Law College, Bombay, in 1934-35. In publishing these
lectures I have not forgotten how presumptuous it may be deemed for an Indian
to attempt to expound the principles of the English Constitution. Sir Austen
Chamberlain in the course of his cross-examination of a certain Indian witness
who appeared before the Joint Committee on Indian Constitutional Reform
observed : I listen to the witness with great respect when he talks of Indian
conditions, but when he expounds the British Constitution he must permit me to
remain of my own opinion (Minutes of Evidence, Vol. l1c, Q. 9812). There is
undoubtedly a great deal of truth in this remark and it should make every
Indian who wishes to write on the English Constitution pause. An Indian,
however, who wishes to enter into the field may well take courage from the fact
that much of the English Constitution have been expounded by foreigners who
have not only been heard with respect by Englishmen but whose writings have
compelled a change of opinion. Be that as it may the remark made by Sir Austen
Chamberlain need not come in my way. I am not expounding anything of my own. I
am not expounding it to Englishmen. I am merely trying to make Dicey's English
Constitution easier for Indian students to follow and to understand. From the
stand-point of Indian students Dicey's treatise suffers from two defects. It
presupposes a knowledge of certain parts of the English Constitution. For
instance it presupposes a knowledge of what is Parliament, how it is
constituted and how it functions. This presupposition, howsoever justifiable it
may be in the case of English students, would be without warrant in the case of
Indian students who are called upon to take up the study of Dicey for the first
time. Without a complete knowledge of this part of the English Constitution
Indian student feels completely bewildered and fails to grasp the full import
of such fundamental principles as supremacy of the rule of law or the role of
conventions in the working of the Constitution. In order that the Indian
student may follow in an intelligent way the exposition of Dicey regarding the operation of these principles the
teacher is forced at every turn to present to the student the framework of the
English Constitution which finds no place in Dicey 's treatise. Secondly, the English Constitution has
grown enormously both as regards rules of law and also as regards conventions
since the last edition of Dicey 's English Constitution was published. The
result of this growth has been felt in two different ways. It has rendered some
of the illustrations given by Dicey quite inappropriate. Secondly, it has
altered the character of the English Constitution especially the relations of the Crown and the British Parliament
to the Dominions to such an extent that an Indian student who depends upon
Dicey alone will not be up-to-date but will be missing a great deal that is
vital in it. Except for additions of matter and
changes of form there is nothing new in these lectures. They constitute
a revision of Dicey's treatise on the English
Constitution with a view to remove its defects and to adapt it to the needs of
Indian students.
PRINCIPLES UNDERLYING THE ENGLISH CONSTITUTION
According to Dicey there are three principles which distinguish the English Constitution from the Constitution of other countries. These principles are :—
(1) The legislative supremacy of Parliament.
(2) The prevalence of the rule of law.
(3) The dependence of the Constitution on the
conventions.
Two comments may be legitimately made on the assertion that these
principles form distinguishing characteristics of the English Constitution. In
the sense that they are not to be found in other Constitutions. One is this.
That some of these characteristics have ceased to be true at any rate, to the
extent they were true when Dicey wrote. For instance the legislative supremacy
of Parliament is to some extent modified and circumscribed by the Statute of
Westminster passed in the year 1930. The second comment that must be made that
these characteristics, especially the prevalence of the rule of law and the
dependence of the Constitution on conventions are not special to the English
Constitution. Conventions are a feature of all Constitutions and the rule of
law, in one of its senses at any rate, obtains in the United States. All the
same it is Constitution in principles form a feature of the English
Constitution in a manner and to an extent unknown in other Constitutions. And
understood in that sense they no doubt serve to distinguish the English
Constitution from other Constitutions.
(1) LEGISLATIVE SUPREMACY OF PARLIAMENT
One of the first and foremost of foreign Commentators on the English
Constitution Hontessquie came to the conclusion as a result of his study that
the English Constitution exhibited a feature which was absent from the
Constitution of France as it existed at the time when he wrote. He found that
under the English Constitution the three organs of the State, namely, the
legislative, the executive and the judiciary were distinct and were separated
from one another in their composition as well as their functions. Each was
limited to its own sphere of activity and was not permitted to invade the
dominion of another. Whatever liberty the Englishman had in the days when he
was writing and which his countrymen did not possess, was attributed by him to
this feature of the English Constitution. So convinced was he of the virtue of
this principle of the English Constitution that he propounded it as a vital
principle of political Organisation and recommended it to his countrymen for
adoption in their own Constitution. This doctrine of separation of powers of
Hontessquie has been laid at the base of every new Constitution made
thereafter. This is an interesting illustration of how countries have been
misled by the wrong conclusions of a student of politics, for there is no doubt
about it that Hontessquie misunderstood the English Constitution. The English
Constitution certainly does not recognise the principle of the separation of
powers. The King is a part of the legislature, the head of the judiciary and
the supreme executive authority in the land. The Ministry which carries on the
executive Government of the country in the name of the King are members of
Parliament. There is, therefore, no separation between the executive and the
legislature. The Lord Chancellor is the working head of the Judicature. He is
also a member of the Cabinet. There is, therefore, no separation between the
executive and the judiciary. Not only is there no separation between the three
organs of the State, but there is no foundation for the statement that their
authority is limited by the Constitution for the simple fact that there is no
Constitution in the American sense of the word which allocates the functions of
the different organs of the State and delimits their authority. Under the
English Constitution there is one supreme authority under the law, and that is
Parliament. If the functions of the
executive and the judiciary are limited, it does not follow that the functions
of Parliament are limited. It only means that Parliament has for the time being
allotted certain functions to be discharged by certain bodies, in a certain
manner. The limitations of the judiciary and the executive do not result in
putting consequential limitation. On the other hand as the limitations proceed
from the authority of Parliament, Parliament retains the authority to widen
them or to curtail them.
MEANING OF THE LEGISLATIVE SUPREMACY OF PARLIAMENT
A complete idea of the legislative supremacy of
Parliament must involve a grasp of the two parts which it must include. The
first is that Parliament has, under the English Constitution, the right to make
or unmake any law whatsoever. Secondly, no person or a body of persons is
recognised by the law of England as having a right to override or set aside the
law made by Parliament. It is unnecessary to recall that the words Parliament
and law must be understood in their strictly legal sense. Parliament means as
has been already explained, the King, the Lords and the Commons, and that none
of them individually exercised the authority, belonged to them jointly so as to
make it an Act of Parliament. The term law again must be understood in the
strictly legal sense. It means only such rules as are enforced by the Courts.
Having stated what is involved in the notion of the legislative supremacy of
Parliament, we may next ask what is the proof of this legislative supremacy of
Parliament ?
The doctrine of legislative supremacy is accepted by
all the lawyers who have written about the English Constitution. Sir Edward
Coke, speaking of the power and jurisdiction of Parliament, agreed that it was
so transcendent and absolute that it cannot be confined either for causes or
persons, within any bounds.
Blackstone the author of the celebrated commentaries
agrees that, "Parliament has sovereign and uncontrollable authority in the
making, confirming, enlarging, restraining, abrogating, repealing, reviving and
expounding of laws concerning matters of all possible denominations ecclesiastical
or temporal, civil, military, maritime or criminal. This being the place where
that absolute despotic power, which must in all Governments must reside
somewhere, is entrusted by the Constitution of those Kingdoms. All mischiefs
and grievances, operations and remedies that transcend the ordinary course of
laws are within the reach of this extra-ordinary tribunal. It can regulate the
succession to the crown, as was done in the reign of Henry VIII and William
III. It can alter the established religion of the land, as was done in a
variety of instances in the reigns of Henry VIII
and his three children. True it is that "what the Parliament doth no
authority upon earth can do. "
Delome, a French lawyer agrees with Coke and with Blackstone. He
observes, " that Parliament can do everything but make a woman a man and a
man a woman ". a woman a man and a man a woman ".
This legislative supremacy of Parliament which is
acknowledged by all lawyers can be proved by reference to a large number of
instances drawn from the history of the British Parliament. But the following
may suffice.
(1) Parliamentary
sovereignty and the Acts of Union.—The Acts of Union with Scotland and
Ireland are in the nature of treaties and contain certain clauses which were
then regarded as fundamental and essential conditions of Union and which were
understood as not being liable to abrogation by the Parliament of Great
Britain. The Act of Union with Scotland stipulated that every professor of a
Scotch University shall acknowledge and confess and subscribe the confession of
faith as his profession of faith. This was regarded as a fundamental condition
of the treaty of Union with Scotland. But this very provision has been repeated
by the Universities Scotland Act, 1853, which relieves most professors in
Scotch Universities from the necessity of subscribing the confession of faith.
The Act of Union with Ireland stipulated " that the Churches of England
and Ireland as now by law established, be united into one Protestant Episcopal
Church, to be called the United Church of England and Ireland, and that the
doctrine, worship, discipline and the Government of the said United Church
shall be and shall remain in full force forever as the same are now by law
established for the Church of England and that the continuance and preservation
of the said United Church, as the established Church of England and Ireland
shall be deemed and be taken to be an essential and fundamental part of the
Union ". There is no doubt that from the language of the clause that it
was intended to limit the legislative supremacy of Parliament and yet
Parliament by the Irish Church Act of 1869 disestablished the Church in Ireland
and its legislative competency to enact such a measure was not questioned.
II
The Septenial Act of 1707 is another illustration of the legislative
supremacy of Parliament. Under the Act of 1694, the duration of Parliament was
limited to 3 years. In the year 1716 a new election was due. But both the King
and the Ministry were convinced that under the political circumstances of the
day, a new election would be disastrous to the ministry and to the state and
ministry of the day persuaded Parliament to pass an Act extending the duration
of Parliament from 3 years to 7 years. The House of Commons was accused by the
critics of a breach of trust, as representatives of the electors and even the
peers joined in the protest on the ground that this Act deprived the people of
their remedy against their M.P's, who had failed to do their duty. In the wake
of political criticism against the Act, the legal connotation was missed
altogether. Whether such an Act was proper or improper was one thing. Whether
Parliament could alter the law governing its life was another question. It
should be noted that while the Act was attacked from the first point of view it
was never questioned from the second. Indeed it was taken for granted that the
Septenial Act was within the legislative competence of Parliament.
There is another feature of the Septenial Act which should be noted
because it helps to explain the extent of the legislative supremacy of
Parliament. Parliament could have passed a law extending the life of Parliament
and probably no question would have been raised if the Act was made applicable
to future Parliaments. But the Septenial Act not only extended the life of all
future Parliaments, but it also enlarged the terms of the very Parliament which
passed the Act. It was undoubtedly an Act of usurpation of political power not
contemplated and not given by law to the Parliament which passed the Act and
yet such an Act of usurpation was a legal Act. It is unnecessary to go back so
far in the past to cite an authority of the Legislative supremacy of
Parliament, as the Septenial Act. A similar exercise of the legislative
supremacy was resorted to by Parliament during the late war when the sitting
Parliament in 1914 instead of dissolving itself passed an Act extending its own
life.
Acts of Indemnity are examples which constantly occur and which serve as sharp reminders
of the legislative supremacy of Parliament An Act of Indemnity is a statute the
object of which is to free individuals from penalties imposed upon them by law.
This is the highest proof of the legislative supremacy of Parliament, for it
imports the legalisation of an illegality. legalisation of an illegality.
INTERFERENCE WITH
PRIVATE RIGHTS
Most legislative assemblies confine their legislative powers to the
regulation of the rights of the public in general. Private rights and domestic rights
are deemed either to be too particular and too sacred to be interfered with by
Parliament. But the British Parliament has never accepted these limitations
upon its legislative authority. In the case of the lives of the Duke of
Clarence and Clocester, Parliament passed an Act declaring that their daughters
and wives should inherit their property although they were alive. In the case
of the Duke of Buckingham, he was an infant but Parliament passed an Act
declaring that he should be treated as a major for all legal purposes. Sir
Robert Playfinston was dead yet long after his death. Parliament passed an Act
holding him guilty of treason. The case of the Marquis of Winchester is an illustration in which Parliament by law
declared a legitimate child to be illegitimate. A contrary illustration in
which illegitimate children born before marriage were declared legitimate, is
supplied by the law passed by Parliament in respect of the issues born to
Catherine Swinfoid by John of Gaunt, the Duke of Lancaster. Catherine had,
before marriage from the Duke four illegitimate children, Henry, John, Thomas
and a daughter, Joan. The King by an Act of Parliament in the form of charter
legitimised these children. These illustrations that Parliament cannot only
regulate by law the affairs of a single individual but it may also alter the
course of general law.
II
CHAPTER I
WHAT IS
PARLIAMENT ?
1. With a large, mass of the people Parliament in these days means the
House of Commons. It does not include in it the House of Lords, and certainly
not the King. This popular notion is due largely to the fact that the House of
Commons has become the most dominant element in the working of the English
Constitution. But however justifiable such a notion may be, speaking in terms
of law it is a wrong notion. Legally Parliament consists of three constituent
elements, the King, the House of Lords and the House of Commons. All
legislative power belongs to the King, the House of Lords and the House of
Commons jointly. It is vested in the King in Parliament, i.e., in the King acting in consent with the two Houses of
Parliament. Legally, every Act before it can become the law of the land,
requires the King's assent. How important element the King is in the
Constitution of Parliament will be evident, if it is borne in mind that the two
Houses of Parliament can transact their business only if they are summoned by
the King. They cannot meet on their own initiative and authority and transact
business. How important place the King occupies will also be obvious if it is
remembered that the power to summon, prorogue and to dissolve the Houses of
Parliament vests in the King and is exercisable at any time according to his
pleasure. On the other hand, it is usually true that without the consent of the
two Houses of Parliament, the King has no inherent power of legislation
whatever within the United Kingdom. Every act of the King to be law must have
the assent of the House of Commons and the House of Lords, unless it is
otherwise provided by Statute.
2. The proposition, that all legislative power is vested in the King in
Parliament and that no law could be passed without the concurrence of the King,
the House of Lords and the House of Commons's subject to two
qualifications.
(1) The King's veto :—Although in law the King's assent is necessary to
every measure before it can become law, his power to refuse assent, i.e., his power to veto has become
absolute by misuse. The right of veto has not been exercised since the days of
Queen Anne, who refused her assent to the Scotch Militia Bill of 1707. The
impairment of this power of veto by the King is not a legal impairment. In law
his power of veto exists in all its amplitude without any qualifications. This
is due to forbearance founded on a convention whereby it is settled that when
the two Houses agree, the King should not refuse his assent. It's disuse does
not mean that it is buried beyond revival. Suppose a ministry resigns after a
bill is passed by the House of Commons. The House of Lords insists upon passing
the bill in spite of the opposition of the new ministry. It would be rash to
assert that in such a case the Royal assent would not be withheld even though
both the Houses have concurred in the legislation.
(2) The veto of the House of
Lords:—The House of Lord was once a co-ordinate and co-equal branch of the
legislation, and every measure before it could become an Act of Parliament
depended upon it's assent, as much as upon that of the House of Commons.
Although this was the position in law, the House of Commons had claimed in
practice exclusive authority for themselves in finance and an overriding
authority in other legislation.
In 1671, the House of Commons passed the following resolution :
"That in all aids given to the King by the Commons, the rate of tax ought
not to be altered by the Lords. "
In 1676, the Commons adapted another resolution as follows : "That all bills granting supplies ought to
begin with the Commons, and it is the undoubted and the sole right of the
Commons, to direct limit and appoint in such bills the ends, purposes, considerations, conditions, limitations and
qualifications of such grants which ought not to be changed or altered by the
House of Lords. "
In ordinary legislation of a non-fiscal character, the Commons claimed that although the House of Lords
might differ from the House of Commons, yet when a conflict arose between the
two Houses the Lords should at some stage wield to the views of the Houses, the
Lords should, at some stage, wield to the views of the claim. Ever since the Lords had never expressly admitted them,
although in practice the Lords conformed to them, the practice was a mere
matter of political understanding, a convention and was not reduced to law. The
House of Lords was possessed in law of the power of veto, i.e., the right to refuse assent to any measure fiscal or
non-fiscal. Here again the case was not one of legal impairment of power. It
was a case of forbearance in the exercise of it. In 1910, the House of Lords,
contrary to established practice,
insisted in asserting their right to refuse assent to the financial proposals
in the budget of Mr. Lloyd George. A conflict between the House of Commons and
the House of Lords arose. It was settled by the Parliament Act of 1911. The Act
is a most important piece of legislation relating to the English Constitution
inasmuch as it has affected the veto power of the House of Lords in certain
matters in a vital manner.
The Parliament Act of 1911 applies to Public Bills only. It does not
apply to Private Bills. In regard to Private Bills, the veto power of the House
of Lords remains in tact. Even though this applies to Public Bills it does not
apply to all of them. It does not apply to a Public Bill which affects the
duration or life of Parliament. Under the Parliament Act the House of Commons
retains the power of veto in respect of such bills. In the case of these Public
Bills to which it does apply, its effect on the veto power of the House of
Lords is not the same. It varies. The Parliament Act divides Public Bills into
two classes. (1) Public Bills which are money bills and (2) Public Bills which
are not money bills. A money bill is
defined as a Public Bill which in the opinion of the Speaker of the House of
Commons contains only provisions dealing with all or any of the following
subjects, namely; imposition, repeal, remission, alteration or regulation of
taxation, the imposition for the payment of debt or other financial purposes of
charges on the Consolidated Fund or on money provided by Parliament or the
variation or repeal of any such charges, supply, the appropriation, receipt,
custody, issue or audit of accounts of public money, the raising or guarantee
of any loan or repayment thereof or subordinate matters incidental to those
subjects of any of them. The Act lays down that if a Money Bill having been
passed by the House of Commons and sent up to the House of Lords at least one
month before the end of the Session, is not passed by the House of Lords
without amendment within one month after it is so sent up to that House, the
bill shall, unless the House of Commons direct to the contrary, be presented to
His Majesty and become an Act of Parliament on the Royal assent being
signified, notwithstanding that the House of Lords have not consented to the
Bill.
With regard to other Public Bills, the Parliament Act of 1911 provides
that if it is passed by the House of Commons in three successive sessions
(whether of the same Parliament or not) and having been sent up to the House of
Lords at least one month before the end of the session, is rejected by the
House of Lords in each of these sessions, that bill shall, on its rejection for
the third time by the House of Lords, unless the House of Commons direct to the
contrary, be presented to His Majesty and become an Act of Parliament on the
Royal assent being signified thereto, notwithstanding that the House of Lords
have not consented to the Bill, provided that this provision shall not take
effect unless two years have elapsed between the date of the second reading in
the first of these Sessions of the Bill in the House of Commons and the date on
which it is passed by the House of Commons in the third of those Sessions.
House of Commons in the third of those sessions.
These are the main provisions of the Parliament Act of 1911. It has
altered the character of that veto with regard to a Public Bill other than a
money bill by making it a merely suspensory veto which has the effect of merely
holding up the legislation passed by the House of Commons during the prescribed
period. The power to block legislation, which the House of Lords once possessed
as a co-equal member of Parliament, has now been taken away by the Act.
Subject to these deductions, conventional and legal, regarding the
authority of the King and the Lords, the proposition that Parliament consists
of King, Lords and the Commons and that without their consent a bill cannot
become law, remains as true today as it was before the Act of 1911.
Ill
CHAPTER II
THE CROWN
(1) The King's title to the Crown.—Before
the Resolution of 1688 when James II fled from the country, it was not certain
by what right the King claimed the Crown, whether it was hereditary or
elective. But there can be no doubt that thereafter the title to the Crown has
become a Parliamentary title, in the sense that Parliament can alter the
succession to the Crown. The title to the Crown is at present regulated by the
provisions of the Act of Settlement passed in the year 1701. By that Act, the
title to the Crown was conferred upon William and Mary and the heirs of their
body. The title stipulates two conditions : One, the Successor must be an heir,
male or female and two, the Successor must be a Protestant Christian by faith.
(2) Rights and duties of the
Crown.—The rights of the King are either Statutory or Prerogative.
Statutory rights are those which are conferred upon the King by an Act of
Parliament. The prerogative rights are the Customary or Common Law Rights of
the King which he has been exercising and which have not been taken away by law.
It is unnecessary... with those rights and duties of the King which are
statutory because they are capable of exact definition and ascertainment by
reference to the Statute from which they are derived. The prerogative rights on
the other hand are not capable of such ascertainment by reference to any
statute because it is of the essence of a prerogative right that is not derived
from Statute. Prerogative rights of the King are customary rights and are
independent of Statute, and like all customary rights the nature and extent
have to be investigated by a Court of Law whenever they are asserted. The
King's prerogatives may be conveniently discussed under the following heads :
(A) Personal
Prerogatives
(1) The King can do no wrong.—All
acts are done in the name of the King, but by virtue of this Prerogative, the
King is not responsible for any of his acts. The person responsible for his
royal acts are his Ministers. The King, therefore, cannot be sued or otherwise
held responsible for his executive acts. When a subject is aggrieved by a
breach of contract, he cannot sue the King, nor can he sue the King in respect
of a tort. A special provision is made to soften the rigour of the rule which
is known as the Petition of Right procedure. Under it, a subject aggrieved may
petition the Crown for redress and that petition will become justiciable only
if the Attorney-General, who is the Law-Officer of the Crown, issues his fiat
permitting justice to be done in which case alone, the Courts can proceed with
the petition as though it was a plaint in a suit. Even then there are certain
rules which though they are binding between private parties, would not be
binding upon the Crown, for instance it is a rule that the Crown cannot by
contract hamper its future executive actions. As a result, the Crown can always
dismiss a servant of the Crown at any time, no matter what the period of
contract was, because such a contract would hamper the future executive action
of the Crown. Consequently a servant of the Crown cannot sue the Crown for
damages for wrongful dismissal even by a Petition of Rights.
(2) The King never dies.—The
King has the attributing immortality. A particular person wearing the Crown may
die. But the King survives. Immediately upon the decease of a reigning King,
his Kingship, without any interregnum or interval, vests in his heirs. That is
the law, and the popular cry—The King is dead ; Long live the King—is in
conformity with the Law. The Coronation ceremony is not necessary to invest the
King with Kingly power. A King can act as a King although he has not been
coronated, provided he is the next heir of the last King. The Coronation
ceremony has no other effect than to proclaim to the subjects and to the world at large, who the King
is.
(3) Lapse of time
will not as a rule bar the right of the Crown to sue or to prosecute.—To
put it in a different way, the law of limitation does not apply to the Crown,
as it does to a private individual. The private individual must sue or
prosecute within a stated period fixed by the law of limitation. The Crown is
free from the time-bar. The statement of this prerogative right must now be
qualified so far as the right to sue is concerned. The law of limitation has
made the time-bar applicable to the Crown although the period of limitation is
sixty years. The Prerogative of the Crown's right to prosecute remains in tact.
(4) When the right of the King and the right of the subject come in
conflict, a subject's right must give way to the King's.
(5) The King is not bound by statutes unless expressly named in it.
(II)
Political
Prerogatives
Now these may be divided into two categories into which they naturally
fall '.those which relate to the internal Government of the country and those
which relate to foreign affairs. As to the King's Political Prerogatives which
relate to the internal Government of the country,
they may be considered in relation to the three divisions of State activity,
e.g., the executive, the judicial and the
legislative. According to the English Constitutional law, the executive
Government vests in the King. It is his Prerogative to be the supreme head of
the executive. As such, he has the authority to appoint Ministers and other
officers of the state, political as well as permanent. It is his prerogative to
dismiss them. He is also the head of the Army, the Navy, the Air-force and the
Civil Service. Every one appointed to discharge the service of the State, no
matter how he is appointed, is in law the servant of the Crown. Turning to his
Judicial Prerogative, the King at one time actually sat in Court to dispense
justice but this Prerogative the King has now lost. The King at one time could
create any Court and invest it with jurisdiction to try any matter or any cause
he chose to prescribe. The establishment of the Star Chamber and the Court of
High Commission by Charles I is an illustration of how wide was the King's
judicial Prerogative. But this Prerogative also, the King has now lost. The
King can now only create by Prerogative, i.e.,
without the Sanction of Parliament, Court to administer the Common law. Even
this remnant of a Prerogative he cannot exercise, because of the necessity of
financial legislation which such a course would involve, which would make it
necessary for him to obtain the sanction of Parliament. Only four bits of his
Judicial Prerogatives now remain. (1) He can grant leave to appeal to the Privy
Council. (2) He can appoint judges. (3) He can pardon a criminal. (4) He can
stifle the prosecution of a criminal, either by declining to offer evidence or
by entering a formal Grote Praseu.
Coming to the legislative Prerogatives of the King, they extended at one
time to vast proportions. The King at one time claimed the power to make laws
independently of Parliament, to suspend laws in particular cases and to
dispense with them generally. All this has now been altered. The right to
suspend and dispense with laws made by Parliament is now completely lost. The
right to legislate is also lost, except in so far as it relates to Crown
Colonies. The only legislative Prerogatives that remains to the King are the
Prerogatives right (1) to summon Parliament, (2) to prorogue Parliament, (3) to
dissolve Parliament.
There are two other classes of Prerogatives which relate to the internal
administration of the Country which must be referred to before considering the
other classes of Prerogatives which relate to foreign affairs. They are
Ecclesiastical Prerogatives and Revenue Prerogatives.
Ecclesiastical Prerogatives.—The King is the supreme head of the Church of England as
established by law. As the head of the Church, he appoints on the
recommendation of the Prime Minister, Archbishops, Bishops and certain other
dignitaries of the Church. In his Prerogative right, the King convokes,
prorogues and dissolves two Houses of the convocation and it is in his
Prerogative right that the King can grant leave of appeal to the Privy Council
from the decisions of the ecclesiastical Courts.
Revenue Prerogatives.—The revenues of the British Government fall into two classes, (1) the
ordinary revenues and (2) the extraordinary revenues. The ordinary revenues are
called the Prerogative revenues and they are derived from the following
sources, (1) The custody of a Bishop's temporalities, i.e., the right of the King to take the profits which the episcopal
sea is vacant, though these are held in trust for his successor. (2) The rights
to annates and tenths. Annates were the first year's profits of church's
benefits formerly paid to the Pope and afterwards to the Crown. Tenths were the
tenth part of the annual profits of a church's
benefit formerly paid to the Pope. These are now paid to the Governor of
the Queen Anne's Bounty. (3) Profits derived from the Crown lands. (4) The
right to Royal fish wreck, treasure-trove, waifs and cotrays, royal mines and
escheats.
The foregoing items constituting the ordinary revenues of the Crown were
collected by Prerogative and paid to the King until 1715 when the first Civil
Lists Act was passed whereby an arrangement was made between the King and
Parliament whereby the King surrendered his Prerogative revenues to the state
which are since then paid into the Consolidated Fund and Parliament in
consideration of this assignment granted to the Royal family for its
maintenance a fixed sum, which is made an annual charge upon the Consolidated
Fund and is called the Civil List. The Civil List is not a permanent
arrangement but is a temporary agreement made between the reigning King and the
Parliament and lasts during the life-time of that King. When a new King
succeeds, a new agreement is made with him which again is to last during his
life-time. If no agreement is made, the Prerogative of the King in respect of
the ordinary revenue will revive. The Civil List arrangement does not abrogate
it in any way. It merely affects the appropriation of the revenue. It does not
affect the right to raise that revenue.
II. The
King's Prerogatives in relation to the foreign relations of the Country.
The King possesses the right and the power to receive Ambassadors of
foreign Countries and to send his Ambassadors to them. This is his Prerogative
right. The right is important because of the immunity from Civil and Criminal
process which Ambassadors, who are recognised as such by the King, enjoy. What
those immunities are will be discussed at a later stage. It is enough here to
note that they depend upon the recognition by the King of a person as an
Ambassador and that recognition is a Prerogative Right of the King.
The King has also the right to make war and peace
whenever he thinks fit to do so. This also is his Prerogative right.
The King possesses the power to make a treaty with any foreign nation.
The treaty may be a political treaty or a commercial treaty. It is his
Prerogative. The only limitation upon the King's Prerogative to make a treaty
is that he must not in any manner affect the rights of his subjects given to
them by law.
There are some questions that arise in connection with the question of the
King's Prerogatives and which it would not be desirable to pass over without
some consideration being bestowed upon them. The first question is this. What
is the exact relation of the King's Prerogative to the authority of Parliament
? The second question is what happens if the King becomes incapable of
exercising his Prerogative or other Statutory rights ?
Taking the first inquiry for consideration it is necessary to get a clear
idea of what is exactly meant when it is said that it is the King's Prerogative
to do this, that or other act. What is meant by this expression, that when the
King acts on the authority of his Prerogative, he does not need the sanction of
Parliament. His authority is inherent in him and is independent of Parliament.
But while it is true that the Prerogative power of the King is inherent and
independent of Parliament, it must not be supposed that it is on that account
beyond the control of Parliament. On the other hand the Prerogative power of
the King can be regulated, amended or abrogated by Parliament, so that the
correct position would be that the King possesses Prerogative power so long as
Parliament has not by law trenched upon it. A matter which was once a matter of
Prerogative if subsequently regulated by law made by Parliament, then the King
cannot resort to his Prerogative power, but must act within the law which has
superseded the Prerogative. Therefore, so far as the first inquiry is
concerned, the conclusion is that the King's Prerogative is a source of
independent power to him so long as Parliament has not interfered with its
existence.
What happens if the King becomes incapable of exercising
his Prerogative and other Statutory rights. Now this is no idle inquiry because
there are certain important duties which are attached to the Kingly office and
the King may become incapable of discharging them. Four contingencies of
incapacity may be visualised. (1) The
King may be absent from his Kingdom. (2) The King may be a minor. (3) The King
may be insane. (4) The King may be morally incapable.
The absence of the King from the Kingdom cannot raise any very great
difficulty. Modern means of communication have annihilated distance and have
facilitated quick dispatch. The King, therefore, could discharge his Kingly
duties from a distance with expedition at any rate without delay. There is also
the other possibility of the King delegating his powers to somebody who could
exercise them on his behalf when he is away.
Minority of the King cannot create any difficulty so far as the law is
concerned. The law holds that the King is never an infant and is capable of
transacting business even though he is a minor. A minor King, therefore, can
exercise all his powers and discharge all his duties lawfully. Ordinarily if
the reigning King is expected to die leaving an infant as his heir, Parliament
always takes the precaution of appointing by law a regent. But this is by way
of prudence and not by way of any requirement by law.
Insanity makes a hard case. The King cannot delegate his powers if he is
insane. Parliament cannot pass a law, appointing a regent because the King
being insane cannot give his assent to the Bill. There are two cases of English
Monarchs having gone insane, while on the throne, Henry VI (1454) and George
111(1788). The procedure then adopted was a very crude one and certainly could
be deemed to be strictly in conformity with the law of the Constitution, which
requires the assent of all three elements which constitute Parliament.
The moral incapacity of the King is another hard case. Can the King
resign supposing people do not want him ? Can the King be deposed if he does
not resign ? There is no legal provision regulating the insanity or the moral
incapacity of the King. Question of moral incapacity may not perhaps arise under
the English Constitution owing to the development of responsible Government.
But the question of insanity might.
1. On
Parliament
The original rule was that Parliament was automatically dissolved by the
death of the King. The Constitution and theory of which this was a consequence
regarded members of Parliament as councillors of the King who summoned them.
The tie of summons was regarded as a personal tie between the King who summoned
and the members who assembled in return and that tie was broken by the death of
the King. The members called by deceased King could not be on this account be
called the councillors of the new King, and the King was entitled to call new
councillors, which could happen only when the old Parliament was dissolved and
the new King obtained an opportunity to call a new Parliament. This rule was
first amended in [f2]* by 7-8 William
III Chapter XV whereby it was provided that the existing Parliament was to work
for six months after the death of the King if not sooner dissolved by his
successor. Subsequently in the year 1867, ( 30, 31 Victoria, Chapter II 102),
the rule was altogether abrogated and the life of Parliament was made
independent of the death of the king.
The original rule was that all executive officers were to vacate their
offices on the death of the King, and for the same reasons whereby the death of
the King resulted in the dissolution of Parliament. Here again the law has gradually
altered the theory. The Succession to the Crown Act of 1707 extended the tenure
of executive Officers to six months after the death of the King. By another Act
passed in the year * the period was again extended and finally the Demise of
the Crown Act of 1901 made the tenure of office independent of the death of the
King.
CHAPTER III
THE HOUSE
OF LORDS
The House of Lords consists of three different classes
of Peers. (1) Hereditary Peers of England and United Kingdom, (2)
Representative Peers and (3) Peers by virtue of Office.
The first question that must be raised and answered in order to
understand the Constitution of the House of Lords is this. What is the title of
the Peers to sit in the House of Lords ?
Peers of
England and the United Kingdom
The title of the English Peers and the Peers of the United Kingdom is
founded on the King's writ of summons addressed to each Peer individually to
come and to attend Parliament. The English Peerage is created by the King by
Letters Patent. No difficulty arises, therefore, with regard to persons holding
Peerage by Letters Patent. The only question that arises is whether the King
could create a Peerage for life. This was at one time a matter of controversy
and the controversy was whether a life-Peer created by the King entitles the
Peer to sit in the House of Lords. But the issue was decided finally in the
Weynesdale Peerage case in 1856 in which two things were decided. ( 1 ) That
the King had the right to create any class of life-peer or hereditary but (2) the
life-Peer cannot sit as a member of the House of the Lords and the King could
not send such a Peer a writ of summons. The reason assigned was that the
hereditary character of the Peerage was by custom, if not by law, an integral
feature of the Peerage and the King while entitled to exercise his right to
create a Peerage was not entitled to abrogate the custom.
What about the right of the Peers whose Peerage was not created by
Letters Patent ? Their right also was founded upon the King's writ of summons.
Two questions, however, were long agitated with
regard to the writ of summons to such Peers. Could every Peer claim the writ of
Summons ? Was the King free to address or not to address the summons to any
Peer? On behalf of the Peers it was contended that only Peers who held their
Peerage by what is called tenure by Barony were entitled to summons and that no
other Peer was entitled to summons, nor was the King free to address the
summons to a Peer who fell outside that class. On the other hand it was contended
on behalf of the King that the writ was not a special privilege confined to
Peers by Barony nor was there any limitation upon the King's right to address
the summons to the Peers. The controversy was in the long run settled and two
rules can now be laid down as rules governing the right to writ by Peers whose
Peerage is not evidenced by Letters Patent.
( 1 ) Tenure by Barony is no ground for a claim to a writ from the King.
(2) The King was bound to summon by a writ to sit in the House of Lords a
descendant of a person, who had received a writ and taken his seat in that
House in. accordance therewith. In other words the descendant of a person,
however distant and whatever the break in the interval, who can be proved to
have received a writ from the King can claim a similar writ by a hereditary
right. The English Peerage, therefore, is a hereditary Peerage and all
hereditary English Peers are, therefore, entitled by their hereditary right to
a writ of summons from the king and be members of the House of Lords.
(3) Although the right is a hereditary right it is subject to two rules,
(1) The rule of Primogeniture and (2) The rule of male descendant.
Representative
Peers
The representative peers fall into two classes. Representative Peers of
Scotland and representative Peers of Ireland. The title of the representative
Peers of Scotland is founded on the treaty of Union between England and
Scotland which took place in 1707 and which made them into a Common Kingdom
under a Common King and was called the United Kingdom of Great Britain. Prior
to its Union with England, Scotland had its own Peerage with its hereditary
right to sit. The Union of Ireland with Great Britain took place in 1800. As in
the case of Scotland, Ireland has also its own Peerage with hereditary right to
sit in the old Irish Parliament. On the amalgamation of Ireland and Scotland by
their respective treaties of Union with England, the question arose as to how
much representation was to be allowed to the old Scottish and Irish Peers in
the new Parliament of Great Britain and Ireland. The English Peers claimed for
every one of themselves the right to sit in the new Parliament. The Scottish
and the Irish Peers claimed similar right for every member of their own class.
In the settlement that was arrived at, it was agreed (1) that the English
Peers should be allowed each to sit in the new Parliament. (2) The Scottish
Peers were allowed to elect sixteen (16) out of their number as their
representatives in the new Parliament. (3) The Irish Peers were allowed to
elect 28 out of their number. The Scottish Peers are elected for the duration
of a single Parliament., When Parliament is dissolved, there takes place a new
election of the 16 representative Scottish Peers by the Peers of Scotland. The
Irish representative Peers on the other hand are elected for their lives, and
there is no new election of Irish Peers when Parliament is dissolved. A new
election takes place only when a vacancy takes place in the representative
Irish Peers by death or by any other disqualifying cause.
In addition to these three ancient territorial Peerages existing from
before the time of the Union, there has been created a fourth category of
Peerage known as the Peers of the United Kingdom with a right to sit in the
House of Lords. Such a Peerage could be conferred by the King even on a
Scottish Peer or an Irish Peer in which case if the Peerage is hereditary, the
holder would be entitled to sit in the House of Lords notwithstanding of the
treaties of Union with Ireland and Scotland.
Peers by
virtue of Office
The Peers who sit in the House of Lords by virtue of office fell into two
divisions (1) The Lords spiritual and (2) the Lords of appeal in ordinary. By
law twenty-six, officials of the Church are entitled to sit in the house of
Lords. Of these, the Archbishops of Canterbury and York and the Bishops of
London, Durham and Winchester have the right to sit in the House of Lords as
Lords Spiritual. Of the remaining 21 spiritual Peers, 21 diocesan Bishops in
order of seniority of appointment have a right to sit in the House of Lords. So
when one of the 21 Bishops dies or resigns, his place in the House of Lords is
taken not by his successor but by the next senior diocesan Bishop.
The Lords
of Appeal in ordinary
The House of Lords, besides being a Legislative Assembly, is also a Court
of Judicature. It is for most purposes, the final and the highest Court of
Appeal from the King's Courts in England,
Scotland and Ireland. This judicial function being the function of the
House of Lords as such, there is nothing to prevent any Peer of Parliament from
taking part in the decisions of any appeal that would be brought before the
House in its judicial capacity. The House of Lords in the main is a body of lay
Peers not versed in the intricacies of law and not possessing any legal
training. To allow such a body to permit to discharge the functions of the
highest Judiciary involved a great danger to the cause of justice. It was,
however, not possible to take away this jurisdiction from the House of Lords
altogether. As a compromise, the Act of 1876 called the Appellate Jurisdiction
Act was passed. It retained the Jurisdiction of the House of Lords as the final
Court of Appeal but provided that no appeal should be heard and determined by
the House of Lords unless there were present at such hearing and determination
at least three Lords of Appeal. The Lords of Appeal consist of (1) The Lord
Chancellor for the time being, (2) such sitting Lords in the House as have held
high judicial office and (3) the Lords of Appeal inordinary, appointed by the
King.
The Appellate Jurisdiction Act of 1876 which gave the power to the Crown
to appoint Lords of Appeal inordinary to sit in the House of Lords, made the
tenure of those Lords of Appeal as Peers dependent on the continuance of his
discharge of his judicial functions as a Lord of Appeal. In 1887, however, this
was altered and the tenure of a Lord of Appeal in ordinary is now a life
tenure.
Having stated the composition of the House of Lords, we
may next proceed to consider certain questions that arrive in connection
therewith. The first is this. What is the title of the Peers to sit in the
House of Lords ? The title of the Peers to sit in the House of Lords is not
founded upon election by a Constituency as is the case with the members of the
House of Commons. Their title is founded by a writ of summons addressed to each
Peer individually to come and attend Parliament. It is a kind of nomination by
the King although the power to nominate is strictly regulated and does not
leave any discretion in the King to revoke and alter the course of nominations
from Parliament to Parliament
While the right of the Peer is founded on the writ of summons issued by
the King, there are certain restrictions on the King's right to summon Peers.
An Alien Peer that is a Peer who is not a British subject cannot be summoned to
sit in Parliament.
A second question that must also be considered relates to the
admissibility and divesting by the Peer of his title. A Peerage is a
non-transferrable dignity and the title to it cannot be transferred by sale or
by gift to another. It can be claimed by another only by inheritance in
accordance with the rules of heritage. Similarly a Peer cannot surrender his
title and cease to be a Peer. The principle which govern
the Peerage is, once a Peer always a Peer.
A third question must relate to the difference between Peerage and the House of Lords. Popularly the expression Peers of the
Realm and the House of Lords are used synonymously. Legally speaking there is a
difference between the two. A person may be a Peer of the Realm and yet not be
a member of the House of Lords. The case of a life-Peer
is an illustration in point. A life-Peer is a Peer of the Realm and yet he
cannot be a member of the House of Lords, because of the rule that the Peer who
is a Peer otherwise than by virtue of
office must be a hereditary Peer in order that he may get a right to sit in the
House of Lords. Contrariwise, a person may be a member of the House of Lords,
although he is not a hereditary Peer. The case of the spiritual Lords and the
Lords of Appeal inordinary is an illustration in point. The Archbishops and
Bishops as also the Lords of Appeal inordinary are entitled to writ of summons
from the King to the House of Lords, the former while they hold their offices
and the latter during their life-time. Yet they are not Peers in the legal
sense of the term inasmuch as Peerage connotes a hereditary right.
V
THE POWERS AND
PRIVILEGES OF THE LORDS AND THE COMMONS
Both Houses of Parliament enjoy certain privileges in their collective
capacity as constituent parts of Parliament and which are necessary for the
support of their authority and for the proper exercise of their functions.
Besides the privileges enjoyed collectively as members of the two Houses of
Parliament, there are other privileges enjoyed by members in their individual
capacity and which are intended to protect their person and secure their
independence and dignity.
SECTION I
(1) PRIVILEGES
OF PARLIAMENT
(1) Privileges of the House of Commons.—The right to exclude strangers
and to debate within closed doors is one of the privileges claimed by the House
of Commons. The origin of this privilege lies in the existence of two different
circumstances. One circumstance related
to the seating arrangements for members in the House of Commons, which was so
defective that strangers and members of Parliament were often mixed together.
The result was that the strangers were often counted along with the members in
divisions. To prevent this, the House claimed the right to exclude strangers.
The second circumstance related to the system of espionage practised by the
King over members of the House of Commons. In those days, as reporting of the
speeches by the members in the House had not become systematic the King was
anxious to know who were his friends and who were his enemies, employed spies,
whose duty it was to report to the King the speeches made by members on the
floor of the House. This was followed by intimidation of the members by the
King or by other acts of displeasure, which had the effect of curtailing the
independence of the members. And the only way by which the House could protect
itself against the system of espionage practised by the King was to claim the
right to exclude strangers.
Under this privilege it did not follow that strangers could not enter the
House and listen to the debates. As a matter of fact, they did enter and listen
to the debates. The effect of the privilege was that if a member took notice of
their presence, the Speaker was obliged to order them to withdraw. This worked
inconveniently because the objection of one member to the presence of strangers
was enough to compel the Speaker to order them to withdraw. In 1875, therefore,
the rule was altered by are solution of the House, which prescribed that if any
member took notice of the presence of the strangers or to use technical
language rose to address the Speaker "Sir, I spy strangers", the
Speaker shall forthwith put the question that strangers be ordered to withdraw
without permitting debate or amendment and take the sense of the House and act
accordingly. This resolution while retaining the privilege of excluding
strangers, makes its exercise subject to the wishes of the majority of the
House, and not to the caprice of an individual member. The rule, however, gives
the Speaker the power to order the withdrawal of strangers at any time on his
own initiative and without a motion from any member of the House.
The House of Commons claims the privilege of secrecy of debates and have
the right to prohibit the publication of their debates and their proceedings.
In 1771, an incident occurred which put the privilege beyond debate. A certain
printer who resided in the city of London printed the debates of the Commons
without their permit. The Commons, having taken offence at this breach of their
privilege, sent a messenger under the authority of the Speaker to arrest the
printer. The printer in his turn handed over the messenger of the House of
Commons to the custody of a constable for assaulting him in his own house. In
the criminal proceedings that took place, the Mayor and the two aldermen of the
city of London who constituted the bench held that the warrant of arrest issued
by the House of Commons was not operative within the city on account of its
charter and committed the messenger of the Commons though they left him out
on bail. The Commons sent for the
Mayor and the aldermen who constituted the bench and their clerk who recorded
the recognisance of the messenger in his book. They erased from the book the
entry relating to the messenger's recognisance by tearing the page and
committed the Mayor and the aldermen to the Tower of London for challenging the
authority of the Warrant. Since then no one has ventured to offend against the
privilege of the Commons relating to the secrecy of debates. The reports of the
debates which one sees today are made on sufferance and published on
sufferance, and they could be prohibited any time by the order of the House in
that behalf. This was done on some occasions during the last war when many
subjects were discussed on the floor of the House in secrecy without any
reports being published of the debates.
Another privilege which the House of Commons claims is the right to
provide for the proper Constitution of the House. Under this privilege, falls
the consideration of three distinct questions.
(1) Filling of Vacancies.—While
the holding of a general election for the summoning of a new Parliament is a
Prerogative of the King, the filling up of vacancies during the continuance of
a Parliament is a privilege of the House of Commons. Consequently, when a
vacancy occurs, the writ for the return of a member to supply the vacancy is
issued on a warrant by the Speaker in pursuance of an order by the House and
not in pursuance of an order from the King. If Parliament is not sitting when
the vacancy occurs, the Speaker is authorised to issue the writ subject to
certain conditions.
The second question that falls within this privilege is the determination
of disputed elections. This question formed for a long time a bone of
contention between the King on the one hand and the Commons on the other. Each
party claimed the right for itself to the exclusion of the other. Originally
the writ issued to a constituency for an election was returned to Parliament,
thereby recognizing the right of the Commons to fill a vacancy in that
particular constituency. Since the reign of Henry IV, it was returned to
Chancery, thereby recognizing the right of the King to fill the vacancy. The
matter thus alternated till 1604 when the Commons insisted that the right was
theirs and a quarrel arose between them and James 1. In that year, the King
James I issued a proclamation directing that no bankrupt or out-law be elected
to Parliament. The County of Bucks elected one Mr. Goodwin. He was an outlaw
and the King declared his election void and issued another writ. And Mr.
Fortesque was returned. The Commons on their own motion resolved that
notwithstanding the avoidance of his election by the King, Mr. Goodwin was duly
elected a member of the House. The King on the other hand claimed the right to
determine the issue. At a conference held between the King, the Lords and the
Commons, the Lords advised the King to accept defeat and recognise the right of
the Commons. The trial of disputed elections by the House became a source of
trouble to the House and anxiety to the candidates because all such trials
became matters of party politics and in 1868 the House was pleased by law to
leave the adjudication of disputed elections to the Court of Law.
The third right which falls within the purview of this privilege is the
right of the House to expel a member who has behaved in a manner which would
render him unfit to sit in the House. Expulsion is not a disqualification and
the member expelled may be again elected. It must be borne in mind that the
right to be elected does not carry with it the right to sit. To be elected is a
favour derived from the electors. To be allowed to sit is a favour within the
competence of the House and cases have occurred in which persons have been duly
elected to the House of Commons but who have not been able to take their seats
in the House. The case of Wilkes is an illustration in point. Wilkes was
elected four times in succession by the County of Middlesex and on all the four
times, he was refused by the House a seat. The next important privilege claimed
by the House of Commons is the right to exclusive cognisance of matters arising
within the House. Under this privilege, the House has the exclusive right to
regulate its internal proceedings and concerns and the mode and manner of
carrying on its business and that no Court could take cognisance of that, which
passes within its walls. The nature and extent of this privilege are
well-illustrated by the case of Bradlaugh
vs. Gosset. The facts of this case
are simple. On the 3rd of May 1880, Mr. Bradlaugh, who was elected a member
from Northampton claimed to make the affirmation instead of the oath as he was
an atheist. A Committee of the House of Commons reported that affirmation was
confined to proceedings in a Court of Law and that the members of Parliament
could not resort to it. Oath was the only thing that was open to them. After
this report, Mr. Bradlaugh came to the Speaker's table to take the oath. The
house, however, objected on the ground that it would not be binding upon his
conscience, and that it would be a mere formality. Another Committee was
appointed to report whether Mr. Bradlaugh should be permitted to take the Oath.
The Committee reported that he should not be permitted to take the oath but
recommended that he should be allowed to affirm subject to its legality being
tested in a Court of Law. In accordance with this, a motion was made to allow
Mr. Bradlaugh to affirm to which an amendment was made disallowing him either
to affirm or to take oath. Bradlaugh, however, insisted upon his right to take
the oath, but the Speaker asked him to withdraw. He refused and the sergeant
was asked to remove Mr. Bradlaugh. A scuffle ensued between Mr. Cosset, the
sergeant and Mr. Bradlaugh in which Mr. Bradlaugh was very badly injured. A
standing order was passed allowing affirmation. Mr. Bradlaugh affirmed but the
Court declared that affirmation was not permissible to a member of Parliament.
His seat was thereafter vacated. Re-elected again in 1881, the same scene was
repeated. Whenever he came to the table to take the oath, the House resolved
that he be not allowed to do so. On one occasion by the direction of the
Speaker, Mr. Bradlaugh was conducted by Sergeant Gosset beyond the precise of
the House and subsequently expelled. Bradlaugh brought an action against Gosset
in the Queen's bench division for an injunction to restrain Gosset from using
force to prevent his taking the oath.. The House made the usual order for the
defence of the sergeant. The Queen's bench division refused relief to Mr.
Bradlaugh on the ground that the order under which Gosset acted related to the procedure
of the House and that the Court had no power to interfere in such a matter.
The House of Commons claims the privilege to protect its dignity and
authority. It would be in vain to attempt any enumeration of the acts which
might be construed by the House as an insult or an affront to its dignity. But
certain principles may be laid down:
(1) Disobedience of any of the orders or rules which
regulate the proceedings of the House is a breach of the privilege. Publication
of debates contrary to the resolution of the House, wilful misrepresentation of
the debates, publication of evidence taken before a select Committee until it
has been reported to the House are examples of the breach of this rule.
(2) Disobedience to particular orders. Resolutions are
agreed to at the beginning of each session which declare that the House will
proceed with the utmost severity against persons who tamper with. witnesses in
respect of evidence to be given to the House or to any Committee thereof, who
endeavour to deter or hinder persons from appearing or giving evidence and who
give false evidence before the House on any Committee thereof, would be guilty
of breach of privilege by reason of disobedience to particular orders.
(3) Indignities offered to the character or proceedings
of Parliament or upon the honour of the House by libellous reflections would be
a breach of the privilege. It is not to be supposed that only members of the
public can be held guilty for a breach of privilege under this rule. Even
members of Parliament could be made punishable if they commit the breach of
this rule. In 1819, Mr. Hobhouse, who was an M. P., denounced the resistance
offered by the House of Parliamentary Reforms, in a pamphlet which he published
anonymously. After his having acknowledged himself as the author of the
pamphlet, the House held him guilty of the breach of privilege. In 1838,
another instance occurred when Mr. Ocomed an M.P. at a public meeting laid a
charge of foul perjury against members of the House in the discharge of their judicial
duties in election committees.
(4) Interference with the members of the House in the
discharge of their duties as members of the House.
It is an infringement of the privilege of the House to assault, insult or menace any member of the House in his coming or going from the House or on account of his behaviour in Parliament or to endeavour to compel members by force to declare themselves in favour of or against any proposition then pending or expected to be before the House or bribing members of parliament to vote in a particular manner.
SECTION II
PRIVILEGES
OF INDIVIDUAL MEMBERS
(1) Freedom from arrest.—This
privilege guarantees freedom from arrest for members during the continuance of the
session and 40 days before the commencement and after its conclusion.
Originally this privilege was not only enjoyed by members but also extended to
their servants and their estates. It is now restricted to members only and that
too to their persons.
(2) Freedom of speech.—The
statute of William and Mary S2 C2 enacts that members shall enjoy complete
freedom of speech in Parliamentary debates and proceedings and that nothing
said by them shall be questioned or impeached in any Court or place out of Parliament.
METHODS OF
PUNISHING BREACHES OF PRIVILEGE
There are five different ways in which the House can punish persons who
are guilty of a breach of privilege. Incases of breach of privilege which are
not grave, the House may release a person arrested for breach of privilege on
mere admonition if he is prepared to tender apology. Or secondly, may release
him on a reprimand. In cases of a grave character, the House can commit him to
prison or inflict a fine or expel him. It is obvious that the last form of
punishment namely, expulsion, can apply only to members of parliament who are
guilty of a breach of privilege.
The privileges of the House of Lords are more or
less the same as those of the Commons. It is, therefore, unnecessary to discuss
them separately in detail. There is only one point of difference between the
privileges of the Lords and the Commons which need to be mentioned and which
relates to the source of their privileges. The privileges of the Commons are a
gift from the King. They have to be
claimed by the Speaker in the name of the Commons in the beginning of every
newly elected Parliament. The privileges of the Lords belong to them in their
own right. They are not derived from the King.
[f3]SECTION V
OFFICERS OF
THE HOUSE
The House of Lords and the House of Commons possess
certain Officers for the general conduct of their business and for the
enforcement of their privileges. For the sake of clarity it might be desirable
to discuss the status and the functions of the Officers of the two Houses
separately.
[f4]SECTION VI
(1)
The Speaker.—The Speaker is now elected by the House of Commons at its first meeting
after the general election and continues to hold the place till the life-time
of the Parliament unless removed from Office by a resolution. Originally the
King claimed and exercised a virtual right of selection. In 1679, there arose a
conflict between the Charles II and the newly elected House of Commons on the
right to choose the Speaker. The Commons chose Sir Edward Sey Mour and the King
declined to accept him. The King suggested his own nominee to the Commons and
the Commons in their turn refused to have him. Eventually a compromise was
arrived at, and another person who was an independent choice of the Commons was
adopted by them as their Speaker. To him the King raised no objection. From
this time onward, the right of the Commons to chose their own Speaker was not contested
by the Crown.
SECTION VII
The Speaker of the House of Commons functions in
three distinct capacities. As the Spokesman and representative of the House he
performs the following duties.—
(1) He demands its privileges and communicates its
resolutions of thanks, ensures admonitions and reprimands.
(2) He issues
warrants of commitments whenever a person is punished for
breach of privilege. He issues warrants for attendance at the bar for being rebuked or sentenced by the House or for any other
purpose as provided for in the order of the House.
(3) He issues writs for filling up vacancies.—The
Parliament Act of 1911 has imposed upon the Speaker a new function which did
not belong to him before. Under the Act, he the functions as ajudicial officer
and in that capacity he has to certify whether any particular bill is a
money-bill or not.
The Speaker is also the Chairman of the House whenever the House meets to
carry on its business. In his capacity as a Chairman he is required:
(1) To maintain order in debates.
(2) To decide questions upon points of order.
(3) To put the question under discussion to the House.
(4) To declare the determination of the House on the
question.
SECTION
VIII
There are two Officers under the Speaker of the House of Commons. One is
called the clerk of the House of Commons and the other is called the Sergeant at arms. The duty of the clerk of the
Commons is to maintain a record of the proceedings of the House. He maintains
what is called the journal of the House of Commons in which are noted all
matters brought before the House and discusses by it in their order from
day-to-day.
The Sergeant at arms is a sort of a Police Officer whose duty is to
enforce the orders of the House and the Speaker in relation to internal order
and to breach of privilege.
The Speaker.—The Speaker of the House of Lords is not an elected person and the House
of Lords has no right to elect its own Speaker. The Speaker of the House of
Lords is by prescription the Lord Chancellor or the Lord Keeper of the Great
Seal, who can act as Speaker in the absence of the Lord Chancellor. In their
absence the place is taken by any one of the Deputy-Speakers of whom there are
always several appointed by the King's Commission and if they should all be
absent, the Lords elect a Speaker for the time being. The Speaker of the House
of Lords need not necessarily be a Peer, and that office may be discharged by a
commoner and has been so discharged when a commoner happened to be the Lord
Keeper of the Great Seal or when the Great Seal was in commission. It is
singular that the President of this deliberative body is not necessarily a
member of it, and the Woolsack on which the Speaker sits is treated as being
outside the limits of the House of Lords, so as to permit the office being
discharged by a person who is not a member of the House.
THE DUTIES
OF THE SPEAKER IN THE LORDS
The position of the Speaker of the House of Lords is
totally different from the position of the Speaker of the House of Commons.
There is nothing common between them as far as their authority and function is
concerned except that both are Chairmen of a deliberative assembly. But so far
as their function and authority is concerned, their position is fundamentally
different. This is clear from standing order No. 20 which defines the duties of
the Lord Chancellor as a Speaker of the House of Lords. The standing order says
: "The Lord Chancellor when he speaks to the House is always to speak
uncovered and is not to adjourn the House or to do anything else as mouth of
the House, without the consent of the Lords first had, except the ordinary
thing about bills which are of course wherein the Lords may likewise overrule,
as for preferring one bill before another and such like, and in case of
difference among the Lords, it is to be put to the question, and if the Lord
Chancellor speak to anything particularly, he is to go to his own place as a
Peer" and be it noted that the place of the Lord Chancellor if he is a
Peer is to the left of the Chamber. It is clear from the standing order how
limited is the authority of the Speaker in the Lords.
(1) In the enforcement of rules for maintaining order the Speaker of the
House of Lords has no more authority than any other Peer.
(2) He cannot
decide points of order as is done by the Speaker of the House of Commons. If he
is a Peer he may address the House on any point of order raised. But the
decision on it is the decision of the Majority of the House.
(3) Owing to the limited authority of the Speaker in the Lords in directing the proceedings of the
House, the right of a Peer to address the House depends not upon him as it does
in the House of Commons but depends solely upon the will of the House. When two
Peers rise at the same time, unless one immediately gives way to the other, the
House calls upon one of them to speak and if each is supported by a party,
there is no alternative but division. The issue is not decided by the Speaker,
as is done in the House of Commons.
The result of his imperfect powers is that a Peer who is
disorderly is called to order by another Peer perhaps of an opposite party and
that an irregular argument is liable to ensue in which case, each last Speaker
imputes disorder to his predecessor and recrimination takes the place of an
orderly debate with the Lord Chancellor sitting but powerless to intervene, as
his power is limited to the putting of questions and carrying on other formal
business.
OTHER
OFFICERS
There are three other officers under the Lord Chancellor as Speaker of
the House of Lords.
(1) The clerk of
the Parliament.—His duties are similar to those of the clerk of the House
of Commons, namely, to keep the record of the proceedings and judgements of the
House, of Lords in a journal.
(2) The Gentleman
Usher of the Black rod, whose duties are analogous to those of the Sergeant
at arms in the House of Commons. He does the policing of the House.
(3) The Sergeant at arms is
the attendant on the Lord Chancellor.