The Government of England (Vol. I)

by A. Lawrence Lowell

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.