HC Deb 24 May 1878 vol 240 cc643-56

said, he had to call attention to the Motion which stood in his name—namelv— That it is a high Breach of the Privileges of this House to obstruct the freedom and independence of Members of Parliament in putting questions to Ministers, upon their responsibility as representatives of the people, and in the discharge of their public duty, such questions being framed in decorous language, and having for their object to elicit information on matters of public interest. This was a matter, as it seemed to him, of the first importance, affecting, as it did, the Privileges of the Members of that House and so of their constituents, and the rights of the nation. He would briefly state the circumstances out of which his complaint arose. Some time in August, 1875, he put a Question to the right hon. Gentleman (Mr. Assheton Cross) with reference to one Mina Jury, one of the most important witnesses examined at the trial of the Tichborne Claimant. This Mina passed then as a very respectable witness, and was treated by the Judges with marked distinction. Her testimony had a powerful influence in deciding the case. After the conviction of that unfortunate man, it was discovered that Mina had been convicted of felony, under the name of Mercivina Caulfield, at Dublin, in 1847, and sentenced to be transported for seven years. She had come to this country under an entirely different name, and, after the trial at Bar, she was again tried for several felonies, and a second time sentenced to penal servitude for seven years. It was therefore thought advisable that the attention of the Crown should be drawn to the fact that one of the most important witnesses on whom the prosecution relied had been a convicted felon. He therefore asked the Home Secretary whether the Mina Jury produced at the trial was the same person who had been convicted in 1847? and the right hon. Gentleman, with much emphasis and earnestness, assured him that she was not—an answer which drew down upon him (Dr. Kenealy) at the time much laughter and many sneers, which he bore with as much, patience and philosophy as he could, as, indeed, he was obliged to bear many things. Some time afterwards, it appeared on the trial of the detectives, that special inquiries had been previously made into this matter; and that the antecedents of Mina Jury had been ascertained at Scotland Yard. In the month of September last, it was proved by Superintendent Williamson, at the Old Bailey, that it had been discovered that Mina Jury and Mercivina Caulfield were one and the same person. Under these circumstances, he should have thought that the Home Secretary would have been only too anxious to explain to the House that he had been unconsciously led to make a statement in his place in Parliament which turned out to be incorrect, and that he would have seized the first opportunity to do so when Parliament was called together. This he was bound to do, not only for his own sake, but for the sake of the Cabinet, and for that of the House of Commons itself, as it was no slight matter to mislead or misinform hon. Members upon such a question as that of the administration of justice. He (Dr. Kenealy) waited for this act during January and February and March; and, finding that the Home Secretary remained silent, in April he gave public Notice of the following Question to the Home Secretary:— Whether he will state to the House on whose authority he denied in his place in Parliament, on the 3rd of August, 1875, that Mina Jury, a witness against the defendant in the Tichborne case, and who is now in penal servitude for several robberies, was the same person as Mercivina Caulfield, who was sentenced to seven years' transportation for robbery in Dublin, in 1847; whether he does not know that it was proved at the trial of the detectives at the Old Bailey in September last, by Superintendent Williamson of Scotland Yard, that Mercivina Caulfield and Mina Jury were one and the same person, and that she had been convicted in Dublin as alleged; whether the person who gave him the false information by which Parliament was misled is still in the service of the Government, or receiving a pension; and, if he will state why he did not inform Parliament of the facts as soon as he became aware of them? Had there been any objection to the form of this Question, he would have thought that the proper time to raise that objection was when he gave Notice of it to the House, so that he might have an opportunity of amending any fault that might be shown. But that was not done. Early next morning, he received the following letter:— House of Commons, April 4th. Dear Sir,—By the Speaker's order, I have not put your Question on the Paper, as it purports rather to impugn the accuracy of certain information conveyed to the House than to seek information from the Government. The matter is, therefore, not properly the subject of a Ques- tion; but no doubt you might bring the matter forward on a Motion.—Yours faithfully, ARCHIBALD MILMAN. To Dr. Kenealy, M. P. To this he immediately replied— Stoke House, Tavistock Square, April 5th, 1878. Sir,—I have had the honour to receive an intimation from Mr. Milman, one of the assistant clerks of the House of Commons, that you have ordered my Question to Mr. Cross not to be put on the Paper. With all submission, I think that the Question ought to be there, and I shall this day put the Question to Mr. Cross, in order that the matter may be fully discussed, either as a Breach of Privilege or an Adjournment of the House, which I shall move, if requisite.—I have the honour to be, Sir, your most obedient Servant, E. V. KENEALY. He wrote also to the Home Secretary thus— April 5th, 1878. ''Sir,—The Speaker having refused to put upon the Paper the Question of which I gave you public Notice last evening in the House of Commons, relative to the false information given to the House as to Mina Jury, I have informed the Speaker that I shall put the Question to you to-day, so that the Speaker's refusal may be discussed.—I am, Sir, your obedient Servant, E. V. KENEALY. He could assure the House that in framing his Question as he did, he had no desire to violate any Rule. He thought at the time, and he thought still, that he had not done so, and that the Question was right and proper. After writing to the Speaker, he had carefully considered the Question of which he had given Notice; but, as it had been objected to by high authority, and as he had no desire for discussions, dissensions, or fights, he framed his Question anew, as follows:— On whose authority he (the Home Secretary) stated in his place in Parliament, on the 3rd of August, 1875, that Mina Jury, a witness against the defendant in the Tichborne case, and who is now in penal servitude for several robberies, was not the same person as Mercivina Caulfield, who was sentenced to seven years' transportation for robbery in Dublin in 1847; and whether the person who gave him the information is still in the service of the Government or receiving a pension; whether it was proved at the trial of the detectives at the Old Bailey in September last, by Superintendent Williamson, of Scotland Yard, that Mercivina Caulfield and Mina Jury were one and the same person, and that she had been so convicted in Dublin as alleged? This, he submitted, as a Question was wholly faultless, and he would be glad if anyone could point out to him a blot in either of the two. He challenged information and instruction upon the point, and he hoped he should receive both. He put the Question accordingly, but the right hon. Gentleman did not answer it. The Speaker, however, rose and declared that he had already intimated that the former Question was wrong, and that, in some particulars—not stated—this Question also was informal. He (Dr. Kenealy), nevertheless, considered that the Question was formal, and ought to have been answered. It contained no imputation on any Member of the Government—even if it had, it should have been replied to. He had yet to learn where it was laid down, except in Mr. Speaker's letter, that the conduct of a public officer might not be impugned even in a Question. Now, it seemed to him that this was a matter of considerable importance to every hon. Member; for, if the Speaker could prevent a Member putting a Question to a Minister, he might also prevent his entering a Motion, or a Resolution, or even an Amendment to a Bill on the Notice Paper. He did not believe that any such authority existed in the Speaker, and he should be glad if it could be shown that the Speaker's action was in accordance with the custom, law, or constitution of Parliament. The Speaker held a high and dignified Office, but he had no judicial authority whatever in that House. He was simply the mouthpiece of the Members, and he had no right or authority whatever, as far as he (Dr. Kenealy) knew, to take an independent or a judicial part in their proceedings. The Speaker possessed no right to interfere with any Question that was put by a Member to a Minister, unless it trespassed against order, decency, or decorum; and the only jurisdiction to which a Member so transgressing was amenable was to the House itself; but any Question couched in proper language ought to go into the Order Book. He had looked carefully into May's Parliamentary Practice, and he could find nothing there to justify the exclusion of Questions by the Speaker. The Speaker himself, he found, might be guilty of a Breach of Privilege, and he had been set right when he was going wrong, as in a remarkable instance, by Sir Robert Peel, on the 9th of March, 1840. [See May, 7th ed. pp. 328–9.] In 1621, the Commons, in their protestations, defined their Privileges. They affirmed— That every Member hath freedom from all impeachment, imprisonment, or molestation, other than by censure of the House itself, for or concerning any Bill, speaking, reasoning, or declaring of any matter or matters touching the Parliament, or Parliament business."—[Ibid. P. 114.] Now, he (Dr. Kenealy) contended that by the Speaker excluding his Question, a Breach of Privilege coming under the head of "molestation" had been committed. It was a direct interference with his rights and freedom as a Representative of the people; and he could not submit to it without further instruction. He found it laid down in Hatsell's Precedents, vol. ii. p. 239— On the 9th of March, 1620, there is a long debate in which the conduct of the Speaker is very much blamed. 'That he came out of the Chair without consent of the House, &c.' That Mr. Speaker is but a servant to the House, and not a master, nor a master's mate: and that he ought to respect the meanest Member as well as those about the Chair. This was the law then, and it was the law of Parliament now. Further, he found in the same work, at page 242— Speaker Lenthall, when Charles the First came into the House of Commons, and, having taken the Speaker's Chair, asked him whether any of the five Members, that he came to apprehend, were in the House; whether he saw any of them, and where they were? made this answer—'May it please your Majesty, I have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct me; whose servant I am here.' And again, as follows:— Serjeant Glanvylle, when he was presented as Speaker to the King for his approbation, on the 15th of April, 1640, says, 'The House of Commons have met together and chosen a Speaker, one of themselves, to he the mouth, indeed the servant of all the rest; to steer watchfully and prudently in all their weighty consultations and debates; to collect, faithfully and readily, the vote and genuine sense of a numerous assembly; to propound the same seasonably, and in apt questions of their final resolutions; and to represent them and their conclusions, their deliberations and petitions upon all urgent occasions with truth, with life, with lustre, and with full advantage to your most excellent Majesty. These extracts fully prove that the Speaker had certain defined and limited authority; but he was not a magistrate in that House; he was simply a Minister and Officer to carry out the will of the Members; and thus showed he had no rights that appertained to the exclusion of matters introduced by Members, so long as they did not trespass against good taste or decorum. He (Dr. Kenealy) had sought, but could not find, any direct precedent which might serve as a guide in the present discussion. None, as far as he could learn, existed in the Journals of the House of Commons; but he found, in Vol. 31 of the Parliamentary History, an account of a debate which took place in the Lords, in the year 1794; and this seemed to be in point here, for there was hardly any difference so far as regarded Parliamentary proceedings between the Speakers of the House of Lords and House of Commons. It appeared, from the Report, that in the April of that year, Lord Stanhope desired to put a Resolution on the Books of the House, but he was not allowed to do so by the Speaker, Lord Loughborough, then Chancellor. Lord Stanhope, as the House knew, was a well-known person in the last century. He was a man of considerable attainments, but as he was an advanced Reformer, and did not swim with the general current, he was regarded as an individual of considerable eccentricity—by some as a madman. He desired on that occasion to place his views on record in the House of Lords, and he accordingly collected together a number of extracts from various writers, which supported some of his political views and utterances. The Speaker prohibited an entry of this Resolution; and this Order of his was challenged by Lord Lauderdale on the 8th of April. This Nobleman was a person of great political and Parliamentary knowledge; he was the friend of Mr. Fox, and was much associated with that statesman; and he had a profound knowledge of our political usages and history. He brought this matter before the House, and he (Dr. Kenealy) hoped to be forgiven, if he quoted one or two passages from his speech on that occasion, as being especially relevant here. Lord Lauderdale (page 198) said— He should quote the Journals of both Houses indiscriminately, to prove that when the Speaker of either had taken improper liberties the circumstance had not passed unnoticed. He referred the House to the cases of 1629 and 1677; in one, the King sent his commands to the Speaker of the Commons to adjourn the House; and although Sir John Elliott was on his legs, the Speaker said "that he had a command from the King to adjourn, and to put no Question." The next Parliament was in 1640, and on its first meeting, the conduct of the Speaker on the last day of the preceding Parliament was examined, and the House declared that the Speaker having refused to put the Question, as called upon to do at the time, was guilty of a Breach of Privilege. In the case of 1677, the Speaker had been complained of for putting Questions with partiality, and leaning to one side more than another. His Lordship read the speech of Sir Thomas Clarges, who observed— That the Speaker had usurped more of the attention of the House than any other Member, by giving his opinion; but if that opinion were to be considered as the sense of Parliament, and his patter was to supply them with sentiments, there was an end to the Rights and Privileges of the House, for the Speaker could misrepresent to the public the proceedings of its Members, and thus would the idea of representation be destroyed. The noble Earl reminded their Lordships that they ought to be more particularly jealous of any invasions of their Privileges by the Speaker than the House of Commons, for this essential reason— The Speaker of the House of Commons was the creature of the House, elected by themselves, and sitting in their Chair during their own will and pleasure only; whereas the Speaker of the House of Lords was appointed by the Crown, and ought naturally to be considered as a constant object of jealousy by the House with respect to its Forms and Orders. Mr. Speaker Onslow had expressed his Opinion of the great importance of Parliamentary Forms in terms too strong and decisive to leave a doubt upon the point he was maintaining. In relation with these precedents from the past, he called attention to one or two observations of Lord Lauderdale in the same speech. Alluding to what had happened on the previous occasion, Lord Lauderdale said— He understood that on that evening a Motion of his noble Friend (Earl Stanhope) had been read to the House by his Lordship, and handed to the Lord Chancellor, who had taken upon himself to leave out a material part. Now he could not conceive upon what authority any Speaker of that House could assume the liberty of altering a Motion, unless upon a question of Amendment regularly submitted to their Lordships. The Speaker was the servant of the House, its instrument, and its organ, while officially addressing them from the Woolsack. What the nature of the Motion was, certainly was foreign to the subject of debate. It it were the most absurd that human fancy could suggest it should have been submitted to the House in the precise language of the Mover. If the Motion was unfit for the House to hear, it could have been disposed of by the Previous Question; but the House had not a right, much less had any individual Peer a right, to alter the construction or vary the words of the Motion. If any noble Lord in the heat of the debate should be led into warmth of language or offensive vehemence, the Peer so giving way to his feelings was liable to be called to Order, and to be censured if the occasion appeared to call for censure; but nothing could warrant a sacrifice of the Forms of the House as a punishment. The credit of the House, or of any assembly, depended on a strict adherence to its Forms; and, therefore, he must protest against the proceeding to which he had alluded. These observations, coming from so eminent an authority, were entitled to weight and would, he hoped, not be without effect. And he hoped he might, without offence, read what Lord Stanhope himself said in that debate—namely, that, Had a Speaker in the House of Commons acted in the manner complained of, he would have had his wig pulled over his ears, and his gown stripped off his shoulders. In conclusion, he desired to repeat that while he had thought it his duty to bring the subject before the House, he had no feeling in the matter, and he should be quite content with any decision the House might come to upon their own Rights and Privileges as a Representative Assembly of the nation at large.


Before the right hon. Gentleman answers the Question of the hon. Member, it is right that I should offer a few words of explanation to the House as to the course which I have thought it my duty to take in this matter. The hon. Gentleman has said that the Speaker of this House is merely the mouthpiece and servant of the House. That observation of the hon. Member is correct. I am merely the mouthpiece and servant of the House, and a very honourable service it is. But I am, at the same time, the Guardian of its Rules and Orders, and there are Rules and Orders laid down by this House applying specially to Questions put before the com- mencement of Public Business from day to day which I am bound to see enforced, and among those Rules and Orders there is one which declares that no Question is to be offered containing matter of argument or opinion; and the Question proposed by the hon. Member for Stoke appeared to me to be a violation of that Rule, and it was upon that ground that I objected to its being put. It appears to me that the hon. Member is in some confusion as to the distinction between a Question and a Motion. If a Motion is offered by a Member of this House to the House, I should not feel that I was entitled for one moment to oppose the offering of such a Motion to the House, or to alter a single word, provided it was properly and respectfully worded. But as to Questions put before the commencement of Public Business, if these Questions involve matter of argument or opinion, or are otherwise in opposition to the Rules and Orders of the House, I consider it my duty to object to them so proposed; and I trust that, in taking the course I have done, I have fulfilled my duty to this House. I have no desire to oppose, in any way, Questions fairly proposed and offered to the consideration of this House; but when a Question is proposed, which appears to me to be in opposition to the Rules and Orders of this House, I consider it my duty to resist that Question, and I shall continue to act in that course, believing it to be the desire of the House.


Sir, I think the occasion is one upon which, though there is no Motion to be put to the House, a few words ought to be said in order to express, as I believe I shall express, the general opinion and sense of the House, that the House reposes entire confidence in your administration of the Rules of the House, and that in this matter, as in other matters generally, we feel we have in you a proper Guardian and a proper Minister to express the sentiments of the House. As regards the question which is immediately before the House, it may be regarded from two points of view. In the first place, there is the question whether you, Sir, have acted in accordance with the feelings and wishes of the House in putting the interpretation you have done upon the Rules which exist with regard to the putting of Questions; and, secondly, there is a word which may with advantage be said upon the practice of putting Questions itself. There is no doubt in the world that the Questions which are submitted to the House are properly revised by the Chair, and that the Speaker fulfils a function it is intended by the House he should fulfil when he revises the Questions, and considers whether they are such as ought to be put in the House consistently with the Rules which the House has laid down, either in writing, or tacitly, or as decided by usage, with regard to such Questions. By one Standing Order—154—it is laid down, that in putting a Question, no argument or opinion is to be offered, nor any fact stated, except so far as may be necessary to explain the Question; and it is obvious the Rule is a necessary one, because otherwise matters might be put into Questions that would render answers necessary, and thus lead to debates. We know there are methods by which these general discussions can be brought on—as by moving the adjournment of the House—and great irregularities might in that way creep in. We therefore understand that the practice of putting Questions ought to be, and must be, limited to prevent that irregularity; and we see no way in which that practice can be properly restrained except by trusting to the judgment and discretion of the Speaker. He is able to judge, and he does so with thorough impartiality, whether a Question is of such a character as may be properly put, or whether it is one that exceeds the limits laid down, or intended to be laid down, by the House. I think in the course you have pursued with reference to the Question of the hon. Member for Stoke, you have acted entirely in accordance with the principles upon which the House would desire such a Question to be dealt with; and, although there can be no doubt whatever that the hon. Member has a perfect right to bring forward such a matter as a Motion, or to put it as a Question on the Motion that you, Sir, do leave the Chair to go into Committee of Supply, yet it would be irregular that such Questions as these should be put at the commencement of Business. The hon. Gentleman is entirely within his right, I imagine, in challenging your judgment and taking the opinion of the House upon the subject, if he pleases; but I feel perfectly certain the House will support the ruling of the Chair upon the matter. I hope the few words that have been said may prevent any misconception upon the subject; and, above all, may make it perfectly clear that, in the event of your decision upon such a point being challenged, you would have the most complete and hearty support of the House.


said, the hon. Member for Stoke semed to labour under a complete misapprehension as to the distinction between a Question and a Motion, and as to the powers and privileges of Members in relation to Questions and in relation to Motions. The right of putting a Question before the commencement of Public Business was an extremely limited one, and Questions were put rather on sufferance, than as a right of the same character as that of moving a Motion. Indeed, it was probable the oldest Member of the House could remember when Questions were first printed on the Orders, with a view to their being put before the commencement of Business. The right hon. Gentleman the Chancellor of the Exchequer had referred to a Rule which restricted the character of a Question, and he (Mr. Whitbread) would point out that the next Rule imposed corresponding restriction in answering a Question, from which, if it stood by itself, it would follow that there was no right to put a Question which must necessarily lead to debate. He accepted the statement of the hon. Member that he had no intention of imputing any wrong conduct to the Home Secretary; but still, if many Questions of such a character were to be put to Ministers, it would be difficult to find men who would consent to sit on the Ministerial Bench. It was a long Question, and it assumed as facts matters which must have led to debate. More than that, it made a charge against an officer who was not here to defend himself, and the Home Secretary could not have answered the Question without vindicating that officer. Apart from anything else, the Question was of an unusual character, and one which it seemed beyond the right of a Member to put. The hon. Member for Stoke appeared to be under the impression that any Question might be put which did not in its language infringe on order or decorum; but that was quite a misapprehension. He would point out to the hon. Member the known practice of the House, according to which it was a matter of frequent occurrence that Questions proposed to be put by hon. Members were altered, at the discretion of the Chair, before they appeared on the Notice Paper, and in some cases even rejected. Further than that, there were the unwritten rules arising from use and wont, which were even stronger. Certainly, no one could complain of the officers of the House, who always manifested the greatest anxiety to give hon. Members every information as to the Rules and practice of the House. The hon. Member for Stoke was quite right in saying that the authority of the Speaker did not rest on statute. He was the Minister and Servant of the House, and derived his power from moral influence and from the support accorded to him by the House. He trusted and believed that the result of the discussion would be that that power would continue to be exercised as temperately and firmly as before, and that the support of the House would be as cheerfully and loyally given.


entirely agreed with the hon. Member for Bedford (Mr. Whitbread). He thought the practice of putting Questions had been carried somewhat to excess. It often occupied from three-quarters of an hour to an hour, and, no doubt, impeded Public Business. Sometimes the Questions put were irrelevant, and were only intended to bring hon. Gentlemen's names under notice, by the Questions being inserted in the newspapers, and Ministers were obliged to get up their answers with great care. It was quite necessary that the Speaker should exercise his discretionary power to prevent Questions being put in a form in which they ought not to be asked.


said, he would admit, from personal experience, that Questions had been put in a form in which they ought not to have been put; but he thought it was rather unfortunate that the Question of the hon. Member for Stoke, after it had been altered, had not received a reply from the right hon. Gentleman the Secretary of State for the Home Department. He would suggest the possibility of affording the hon. Member an opportunity of obtaining an answer from the Government.


considered the practice of putting Questions useful and economical of the time of the House. Subjects were often brought forward on Supply, the discussion of which occupied considerable time, which might have been avoided by a Question being put before the commencement of Public Business. He did not believe that Questions were put for the sake of obtaining notice of the Questioners' names by the Press, for that object would be much more easily gained by bringing forward Motions. Twenty or thirty Questions were often answered in an hour, any one of which might give rise to more than an hour's debate if brought on going into Committee of Supply. The Questions to be put were quite sufficiently watched over by those whose duty it was to take care that no improper Questions were put.


said, he did not rise to take any part in the discussion, but to explain to the hon. Member for Stoke why he had not answered his Question when it was put the second time. The Question did not appear on the Paper in the form in which he could submit it to the gentleman who gave him the information; and if, after the Speaker had ruled that the Question was out of Order, and that it could not be printed in the Order Book, he had replied to it, he should have been guilty of great want of respect to the Speaker, and also to the House itself. He was still in the same position; but, as some imputation might seem to rest on the gentleman concerned in this matter, it was only due to him to state that he believed the information he gave was the only information he possibly could give. He had referred to his own papers—of the date of June, 1875—[Dr. KENEALY: No; August, 1875.] Then he was mistaken in the date; and he could only say, if the hon. Member would put down the Question on going into Supply, giving him a day's Notice to enable him to communicate with the gentleman, he would obtain for him the information required, which, he was quite sure, would turn out to be correct.

Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.