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The Pamphlet Collection of Sir Robert Stout: Personal Volume

Appendix No. 8

Appendix No. 8.

Mr. Speaker.—I think if the Premier had known the view I entertain on this point he would scarcely have appealed to me on the subject; but, an appeal page 96 having been made, I may state at once that I hold a counter-opinion to that entertained by the honourable gentleman. I had occasion to look into a matter of this nature yesterday. Being desirous of supporting views taken by the honourable member for Wanganui (Mr. Ballance) in reference to the Bill that was before the House for the consolidation of the law relating to the privileges of Parliament, I referred to the latest work on the subject. I am quite aware that there are numerous references to the point in May, but I will not allude to them in the first instance, but will read to the House a few extracts from the latest work on Parliamentary Government in the British Colonies, by Mr. Todd, published last year. Alluding to the fact that in the Colonies of Canada and New Zealand certain Acts were passed respecting the powers and privileges of the two branches of their Legislatures, he says, speaking of the general powers of the two Houses of Parliament, the constitutional powers of the Upper House are defined as "established for the sole purpose of fulfilling therein 'the legislative functions of the House of Lords,' whilst the Lower House exercises within the same sphere 'the rights and powers of the House of Commons.'" (P. 475.) Alluding, then, to the circumstance that the Imperial Parliament in the British North America Act pointed to the House of Commons "as being equally the example to the Senate or Legislative Council, as well as to the Representative Assembly, of the proper extent and limitation of the privileges, immunities, and powers to be defined on behalf of each House by a statute to be locally passed for that purpose," he says,—

But neither the New Zealand nor the Canadian laws can be so construed as to warrant a claim by the Upper Chambers of eithor Parliament to "equal rights in matters of aid and supply to those which are enjoyed and exercised by the Commons' Houso of Parliament of the United Kingdom;" for such a claim, if insisted upon, would, to a great extent, derogate from and diminish the constitutional rights of the representative Chamber." (Pp. 476-7.)

And, then, remarking upon the relative powers of the two branches of the Legislature, he says constitutional practice—

.... justifies the claim of the Imperial House of Commons (and, by parity of reasoning, of all representative Chambers framed after the model of that House) to a page 97 general control over public revenue and expenditure—a control which has been authoritatively defined in the following words: "All aids and supplies, and aids to his Majesty in Parliament, are the sole gift of the Commons; and it is the undoubted and 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." This parliamentary principle, moreover, has been generally, if not universally, admitted in all self-governing British colonies by the adoption in both Legislative Chambers of Standing Orders which refer to the rules, forms, usages, and practices of the Imperial Parliament as the guide to each House in cases unprovided for by local regulations.

Then, referring to the dispute that occurred in 1871 between this House and the Legislative Council as to the statutory right of the Legislative Council to amend Bills of Supply, he quotes the opinion of the Law Officers of the Crown, Coleridge and Jessel, given upon a case stated, as follows:—
(1.)We are of opinion that, independently of "The Parliamentary Privileges Act, 1865," the Legislative Council was not constitutionally justified in amending "The Payments to Provinces Bill, 1871," by striking out the disputed clause 28. We think the Bill was a money Bill, and such a Bill as the House of Commons in this country would not have allowed to be amended by the House of Lords; and that the limitation proposed to be placed by the Legislative Council on Bills of aid or supply is too narrow, and would not be recognized by the House of Commons in England.
(2.)We are of opinion that "the Parliamentary Privileges Act, 1865," does not confer on the Legislative Council any larger powers in this respect than it would otherwise have possessed. We think that this Act was not intended to affect, and did not affect, the legislative powers of either House of the Legislature in New Zealand.
(3.)We think that the claims of the House of Representatives contained in the message to the Legislative Council are well founded, subject, of course, to the limitation that the Legislative Council have a perfect right to reject any Bill passed by the House of Representatives having for its object to vary the management or appropriation of money prescribed by an Act of the previous session. (Pp. 478-9.)
Which opinion is characterized by Todd in these words:—

This opinion is a direct and unimpeachable settlement of the point at issue. . . . The relative rights of both Houses in matters of aid and supply must be determined in every British colony by the ascertained rules of British constitutional practice. The local Acts upon the subject must be construed in conformity with that practice wherever the Imperial policy is the accepted guide. A claim on the part of a colonial Upper Chamber to the possession of equal rights with the Assembly to amend a money Bill would be inconsistent with the ancient and undeniable control which page 98 is exorcised by the Imperial House of Commons over nil financial measures. It is therefore impossible to concede to an Upper Chamber the right of amending a money Bill upon the mere authority of a local statute, when such Act admits of being construed in accordance with the well-understood laws and usages of the Imperial Parliament.

The point has been suggested to me whether this Bill comes within what is understood to be a money Bill. To my mind this Bill deals with nothing but money, and therefore I am of opinion that, as a whole, it is a money Bill. In the 2nd clause it says that, after the passing of this Bill, pensions are not to be paid except in accordance with provisions therein contained, one provision being that contained in the clause which has been struck out. I hold that the clause in this Bill relating to the limitation of pensions is wholly in accordance with the other portions of the Bill referring to pensions. There are some references in May to the subject, which I shall quote, as his authority is more familiar to the House than Mr. Todd's:—

On the 3rd of July, 1678, the Commons resolved, "That all aids and supplies and aids to His Majesty in Parliament are the solo gift of the Commons; and all Bills for the granting of any such aids and supplies ought to begin with the Commons; and that it is the undoubted and 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."

This is the same resolution that is quoted by Todd; and May's comments on it are as follow:—

It is upon this latter resolution that all proceedings between the two Houses, in matters of supply, are now founded. The principle is acquiesced in by the Lords; and, except in cases where it is difficult to determine whether a matter be strictly one of supply or not, no serious difference can well arise the Lords rarely attempt to make any but verbal alterations, in which the sense or intention is not affected.

Here, it will be observed how the emphatic words "to limit" and "limitations" are used—which is exactly what the clause rejected by the Legislative Council proposed to effect—namely, that the enjoyment of pensions should be subject to the limitation that deduction should be made from the pension if the pension and salary of office combined exceeded the salary received prior to the pension being obtained. Reliance is then placed by the Hon. the Premier on the following dictum in May:— page 99

On the 30th July, 1867, it was very clearly put by Earl Grey and Viscount Eversley that the right of the Lords to omit a clause which they were unable to amend, relating to a separate subject, was equivalent to their right to reject a Bill which they could not amend without an infraction of the privileges of the Commons.

Now, what are the circumstances of this case? In the Parliamentary Reform Bill of 1867—the Bill for the representation of the people—there was a clause—and it was retained in the Act as clause 7—to the effect that the occupiers were to be rated in boroughs, instead of the owners of the properties—a subject, as it appears, rather foreign to the subject-matter of the Bill; and Viscount Eversley, so well known as Sir. Shaw-Lefevre, for eighteen years Speaker of the House of Commons, gave it as his opinion that the omission of this clause could not be objected to by the Commons, as it related to a subject separate from the main object of the Bill. But in our Bill regulating the mode of granting pensions the rejected clause did not relate to a subject distinct from pensions, but embraced a specific limitation and qualification of the enjoyment of such pensions. Lord Cairns's opinion was, that it was within the competency of the House of Lords to deal with the clause as they thought proper; but he adds,—

No doubt the other House might raise a question of privilege on their part; hut with that their Lordships had nothing to do. If their Lordships rejected this clause they would interfere in the question of the incidence of taxation; but their Lordships were not the judges of the privileges of the other House or what they would do in such a case.

That is, as I understand it, the Lords had the indisputable right to reject the clause as they might reject a money Bill, but subject to encountering the resistance of the Commons on the score of the violation of their privileges. I have now 'given my opinion frankly, and I have only to say that, if the House of Representatives were to waive its privileges in this instance, I cannot see how it can refuse to waive them in all others whenever the Legislative Council chooses to encroach upon the special functions of this House in regard to money Bills.