CHAPTER XI
THE HOUSE OF COMMONS
Disqualifications, Privilege, Sessions
Disqualifications for Parliament.
No property qualification is now required for sitting in the House of Commons, and any male British subject may be elected, who is not specially debarred.[239:1]
Infants are excluded both at Common Law, and by statute, although this rule has been disregarded in several notable instances, the best known cases being those of Charles James Fox and Lord John Russell who entered Parliament before they came of age. Incurable insanity was a disqualification at Common Law, and so by statute is confinement in a lunatic hospital. But it would seem that a temporary lunatic, if at large, is not incompetent to sit and vote.
Peers are also excluded; and this is true even of those Scotch peers who, not having been chosen among the sixteen representatives of the peerage of Scotland, have no right to sit in the House of Lords. There is one exception, however, to the rule that peers are ineligible to the House of Commons, for a peer of Ireland, who is not selected to represent that kingdom in the House of Lords, may sit for any county or borough in Great Britain, but not for an Irish constituency. The rule excluding peers is sometimes a hardship on a rising young man transferred by the death of his father from the active battlefield of politics in the House of Commons to the dignified seclusion of the House of Lords. But it has had, on the other hand, some effect in preventing the House of Commons from absorbing all the political life of the country, and has thus helped to maintain the vitality of the House of Lords. Among the peers there have always been men of great national authority who would have preferred to sit in the other House. It is safe to say that in the year 1900 two of the statesmen who possessed the greatest influence with the people—Lord Salisbury and Lord Rosebery—would have been in the House of Commons had it not been for the rule excluding peers.
The clergy of the Roman Catholic Church and the Church of England, and ministers of the Church of Scotland, are disqualified by statute;[240:1] but these provisions do not include dissenting ministers; and it may be added that at the present day a clergyman of the Church of England may by unfrocking himself remove his disqualification.[240:2]
As in most other countries, there are in England rules disqualifying persons who, by assuming certain relations with the government, or by misconduct, have rendered themselves unfit to serve; such are government contractors, and holders of pensions not granted for civil or diplomatic services; bankrupts,[240:3] and persons convicted of treason or of felony, or guilty of corrupt practices.
Office-holders.
The exclusion of permanent officials has already been discussed; and it will be remembered that by the compromise effected in the reign of Queen Anne the holders of certain specified offices, or of any offices created after Oct. 25, 1705, are absolutely disqualified; while a member accepting any other office from the Crown loses his seat, but can be reëlected.[240:4] It will be remembered, also, that by later statutes or by custom all holders of civil offices not distinctly political are now excluded from the House of Commons; and so are the judges of the higher courts, and most of those in the lower ones.
Now the offices held by ministers are either old offices within the meaning of the Act of Anne, and therefore compatible with a seat in Parliament, or new offices that have been taken out of the rule by special statutes passed usually when the office was created. This is not, indeed, universally true; for by special provision of statute only four of the five secretaries of state, and four of their under-secretaries, can sit in the House of Commons at one time. With that limitation every minister is capable of sitting; but on his appointment he loses his seat, and must go back to his constituents for a new election. The last rule, however, like every other, has its exceptions. The under-secretaries of state occupy old offices, but as they do not accept them from the Crown they are not obliged to undergo a fresh election on their appointment; and they are not, in fact, in the habit of doing so.[241:1] The same privilege has been extended by statute to the Financial Secretary of the War Office. There is, indeed, no self-evident reason to-day why it should not be extended to all the ministers. The original fear of influence on the part of the Crown no longer applies; and the only important effect of the rule is that if a new cabinet comes into power when Parliament is in session, all business there has to be suspended while the ministers are seeking reëlection. A number of attempts have been made to do away with the rule, and they have been supported by very eminent statesmen, but they have been constantly defeated, mainly on the ground that a constituency, having elected a man while he was in an independent position, has a right to reconsider its choice when he assumes the burden of public office.[241:2] Such reasoning is characteristic of English political life. It either proves nothing or it proves too much, for if it is sound, the same principle applies with quite as much force to the under-secretaries, and with a great deal more force to the Speaker. This objection to a change was avoided, while a part of the practical inconvenience was removed, by a provision in the Reform Act of 1867 that a person who has been elected to Parliament since he became a minister shall not vacate his seat on account of accepting a different office in the ministry.[242:1]
Extinct Disqualifications.
Formerly there were a number of other qualifications and disqualifications that have now been swept away, such as the requirement of ownership of land, and of residence in the constituency,[242:2] and the provision for oaths and declarations intended mainly to exclude Roman Catholics. It is curious that after the disabilities of the Roman Catholics were removed in 1829 the oath continued to be an impediment to the admission of Jews and atheists, although it had never been aimed at them. In each case the law was changed, but only after the matter had been brought somewhat violently to the attention of the House. The last religious impediment was taken away in 1888 at the conclusion of the unseemly wrangle with Mr. Bradlaugh.
Resignation.
A disqualification not only prevents a person from sitting in the House, but is also the only way in which he can voluntarily get out of it. A man cannot resign his seat, and hence the regular method of accomplishing the same result is the acceptance of a disqualifying office. Two or three sinecures are retained for that purpose, the best known being the stewardship of the Chiltern Hundreds, a position which the member desiring to leave Parliament applies for, accepts, and immediately gives up. The place is, in fact, not an office, but an exit. It may be added that the House has power, for reasons satisfactory to itself, to declare a seat vacant, and to expel a member.
Privileges of the House.
Freedom from Arrest.
It is unnecessary to say much here about the privileges of the House of Commons. Most of them are matters of historical rather than present political significance. At the opening of each new Parliament, the Speaker, after being confirmed by the Crown, demands the ancient and undoubted rights and privileges of the Commons, the most important of which are freedom from arrest and liberty of speech. The freedom from arrest, which is enjoyed by members during the session and forty days before and after it, does not protect a member from the consequences of any indictable offence, or of contempt of court; nor in civil actions does it now prevent any process against him except arrest.
Liberty of Speech.
Freedom of speech was not acquired without a long struggle; but since the Bill of Rights of 1689 it has been a settled principle that "the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament." A man cannot, therefore, be prosecuted criminally, or made civilly responsible, for anything he has said in the House; although the House itself may punish what it deems an abuse of the forms of debate.
Publication of Debates.
Curiously enough the privilege of free speech in the House does not necessarily include the right to publish that speech outside. This matter has had an eventful history. Until about one hundred years ago the House attempted to prevent the report of its debates in the public press, and in the course of the struggle became entangled in the memorable controversy with Wilkes. The question has never been dealt with by legislation, and it is still assumed that the House might declare the publication of its debates a breach of privilege, and put a stop to it. But the struggle came to an end because the House changed its mind. Instead of objecting to the publication of the debates it came, in time, to desire it; and whereas it had attempted earlier to keep out reporters, it now strove to protect them.
The privilege of free speech covered only words uttered in the House and matter printed for circulation among the members alone. It did not extend to the printing of a speech, or to documents intended for general distribution even though issued by order of the House itself; and in its later attempt to insist upon its right of publication, as in its earlier effort to insist upon its right to prevent publication, the House came into conflict with the judiciary. In the case of Stockdale v. Hansard[244:1] the Queen's Bench held that a publisher might be liable in damages to a person injured by defamatory matter contained in a report made to the House of Commons, although the printing was ordered by the House itself. The question was then set at rest by a statute[244:2] providing that publication by order of either House should be a defence to any civil or criminal proceedings. But this has no effect upon the newspapers, and although a fair account of a debate published in the ordinary course of reporting is not in itself libellous, even if it contain defamatory matter, yet a faithful report of a speech published with a malicious intent is still libellous, and it is never safe to go to a jury on a question of intent.
If the attitude of the House of Commons toward the publication of its debates has changed entirely, it is because its relation to the public has undergone a complete transformation. Every member of Parliament to-day is seeking for the approbation of his constituents, and far from dreading publication of what he says in the House, his effort is rather to attract attention to himself by the reports in the local press of his remarks in Parliament. Moreover, the House as a whole depends more than ever upon popular support; and one may find a striking illustration of the way the same thing produces different political effects under different conditions by observing that while the cabinet would lose authority if its discussions were not secret, Parliament would suffer if its debates were not public.
Privilege in the Courts of Law.
Sir William Anson remarks that "The Privileges of Parliament, like the Prerogative of the Crown, are rights conferred by Law, and as such their limits are ascertainable and determinable, like the limits of other rights, by the Courts of Law."[245:1] This principle has not always been accepted by the House, which has on several occasions come into collision with the courts; but the latter have always maintained, and maintained successfully, that when a question involving a privilege of the House comes before them for decision, it is their duty to ascertain whether the privilege exists or not, and to determine its effect upon the case before them. They have further maintained that they must decide the question for themselves, and that a claim to the privilege on the part of the House is not conclusive.
In one respect the authority of the courts is incomplete; for the House has a right to order a man committed to prison for contempt, and the question what constitutes a contempt is so far within the discretion of the House that the court will not order the prisoner set at liberty on habeas corpus where the return to the writ simply states that he is committed for contempt by order of the House. Referring to this subject, Professor Dicey says: "The powers exercised by the Houses, and especially in practice by the House of Commons, make a near approach to an authority above that of the ordinary law of the land."[245:2] Such a power, however, is exceedingly unlikely to be used in any dissension with the courts to-day; and if it were used, the courts would be almost certain to win, because the commitment by the House terminates with the session.
Summons and Dissolution.
There remain to be considered only the methods of calling Parliament together, and of putting an end to its labours.
Parliament can be summoned and dissolved, and its sessions can be opened and closed by the Crown alone, the only legal restraint upon the arbitrary power of the sovereign in the matter being the Act of William and Mary, which provides that a new Parliament shall be summoned within three years after a dissolution.[245:3] This statute is now, of course, unnecessary; and, in fact, the same proclamation which dissolves one Parliament always announces the issue of writs for the election of another. If Parliament is not dissolved by the Crown, its term expires at the end of the seven years prescribed by the Septennial Act of 1716; but, as a matter of fact, Parliament never dies a natural death, and if its life is not cut off earlier, a dissolution takes place shortly before the end of the seven years.
Until 1867 the death of a sovereign always wrought a dissolution of Parliament; but this rule, which depended more on ancient theory than on modern convenience, was abolished by the Reform Act of that year.
Prorogation and Adjournment.
Effect on Unfinished Business.
While a session can be brought to a close only by prorogation, either house may adjourn for any period at its pleasure, subject only to the right of the Crown to terminate an adjournment of more than fourteen days. Although a prorogation is made by the Crown, and adjournment by the House itself, practically both are virtually in the hands of the ministry to-day, and the really important difference between them is that a prorogation terminates all unfinished business, while an adjournment does not. For that reason a government which has business that it cannot put through during the regular session, and does not want to abandon, will sometimes resort to an adjournment instead of a prorogation. This was done, for example, in 1902 in order to complete the stages of the Education Bill in the autumn, and again in 1906 chiefly in order that the House of Lords might consider the pending government measures. The wisdom of the rule that the close of the session puts an end to all measures that have not finished their course in both Houses is not so clear in the case of Parliament, as in that of legislative bodies where a vast number of measures are brought in by irresponsible members. In such bodies the rule may result in killing a great many bills that had better die, but in Parliament this is far less true. Almost all important legislation relating to public affairs is now introduced by the ministers; and every year measures to which both they and the House have devoted much time and thought are killed by the close of the session. A day comes when the leader of the House arises and states what bills he is obliged by lack of time to drop, a process commonly known as the slaughter of the innocents. The necessity would seem to be unfortunate.
In fact the House of Commons spends so much time in debating each bill that it gets through its work slowly; and whereas many other popular chambers are reproached with legislating too much, Parliament is accused of legislating too little. Moreover the House of Commons suffers less from an excess of the easy good nature, which, in America at least, is the parent of many ill-considered and unwise laws; yet the present rule does act as a serious check upon the persistent member with a mission, and perhaps it kills off, on the whole, more bad bills than good ones.
Suspending Private Bills.
There is, however, a class of measures on which the rule, if carried out strictly, would have a distinctly injurious effect. These are the private bills—a term applied to projects which relate to private or local interests, such as bills for the extension of a railway, or for authority to supply water, gas, tramways and the like. Legislation of that kind is, as we shall see, conducted in Parliament by a semi-judicial process, and as it is highly expensive for both sides, it would be unreasonable that the closing of the session, for reasons quite unconnected with these matters, should oblige the promoters and objectors to incur the cost of beginning proceedings all over again. In practice this seldom happens, for in the few cases where such a bill cannot be completed before the end of the session it is usually suspended by a special order providing that the stages it has already passed shall be formally taken at the opening of the next session, so that the bill really begins its progress again at the point it had already reached. When, as in 1895, Parliament comes to an untimely end in the midst of a session, a general provision of this kind is made suspending all unfinished private bills, and thus a great deal of unnecessary hardship is avoided.
FOOTNOTES:
[239:1] In a couple of instances natives of India have been elected.
[240:1] The question was raised in 1801 in the famous case of Horne Tooke, and set at rest for the future by an Act of that year: 41 Geo. III., c. 63. The provision in regard to the Roman Catholic clergy was made in 1829: 10 Geo. IV., c. 7, § 9.
[240:2] 33-34 Vic., c. 91.
[240:3] A cause that disqualifies will not always unseat. For the latter purpose bankruptcy and lunacy must have continued six months. Rogers, II., 43, 44.
[240:4] 6 Anne, c. 7, §§ 25, 26. Referred to in the Revised Statutes as 6 Anne, c. 41.
[241:1] Statement by the Attorney General, Hans. 3 Ser., CLXXIV., 1236-37.
[241:2] Todd, "Parl. Govt. in England," 2 Ed., II., 331-39.
[242:1] 30-31 Vic., c. 102, § 52, and Sched. H.
[242:2] This became obsolete by long-continued disregard. It is said to be the only case of a statute which is deemed to have been annulled by "contrarius usus." It was afterwards expressly repealed by statute. Rogers, II., 38.
[244:1] 9 A. & E., 1.
[244:2] 3-4 Vic., c. 9.
[245:1] "Law and Custom of the Constitution," I., 175.
[245:2] "Law of the Constitution," 5 Ed., 56, note.
[245:3] Anson, I., 287-88.
