GOVERNMENT OF IRELAND BILL. (Hansard, 13 November 1912)

§ Mr. BONAR LAW
In regard to the business which we are to take to-day, Sir, may I ask you a question of which I have given private notice—namely, whether there is any precedent for the course the Government are pursuing in proposing this Resolution; whether it is in order; and whether, if it is technically in order, it does not set up a precedent which destroys all those safeguards which have been accumulated to preserve the regularity of our procedure?

§ Mr. SPEAKER
In reply to the question of the right hon. Gentleman, I have to say that I have searched, as far as I could, the records, and I find no precedent for rescinding a decision of the House come to during the passage of a Bill on a matter relating to such Bill. There are, of course, as the right hon. Gentleman is aware, precedents for rescinding Resolutions and other matters, but I have found none for rescinding a Resolution of the House necessary to the passage of a Bill upon a matter connected with that Bill. In my opinion, the Resolution as it stands now is in order. Whether it sets up a precedent destroying all the safeguards which have been accumulated to protect the regularity of our procedure, I can only say that that is a matter upon which every Member of the House must form his own opinion.

§ Lord ROBERT CECIL
I desire to ask a question about the form in which this Resolution stands, and to submit that it ought to be put in three parts as three Resolutions, and not as one Resolution. If I read it rightly, the Resolution provides for three entirely distinct things. It provides for the rescinding of the Amendment moved by my hon. Friend the Member for the City of London; it provides for the suspension of the Standing Orders of this House generally; and it provides for the re-casting of the guillotine Resolution on the Home Rule Bill. I submit that the rescinding of the Amendment moved by my hon. Friend and the re-casting of the guillotine Resolution are two entirely distinct matters about which very different opinions might be held, and therefore those two, at any rate, should be put separately. I respectfully submit that it is even more impor- 1994 tant that the question whether we should or should not suspend the Standing Orders should be put separately. I submit that unless it is put separately we shall be in this position, that the whole of the Rules of Order of this House, so far as the admissibility of Resolutions are concerned, will be absolutely destroyed. Any Member of this House may give notice of any Resolution, however out of order, merely by prefixing the words, "Notwithstanding anything in any Standing Order of this House," which may make it in order. For instance, it would be possible to move a Resolution precisely the same as one which was moved and rejected a week ago. It would be possible to bring forward a very serious matter involving the question of the decision of a judge—a case which is out of order, as the House knows, unless the hon. Member is prepared to take the responsibility of moving an Address to the Crown asking for the dismissal of the judge. If that be so, it might be possible—though I hope and think it would not occur—to move a Resolution attacking the Crown. All or any of these things might be done unless it is necessary first to move a Resolution suspending the Standing Orders of the House, and then to proceed to the Resolution, which otherwise would be out of order. I may remind you, Sir, very respectfully, when it is desired in private Bill legislation to do anything inconsistent with the Standing Orders of the House, there is always first a Resolution for the suspension of the Standing Orders, then follows the Motion for the particular thing that it is desired to do to be done. I very respectfully ask you to divide this Resolution into three parts, and not allow it to be put an one.

§ Mr. WATSON RUTHERFORD
On the same point of Order. Sir—

§ Mr. SPEAKER
The same point?

§ Mr. WATSON RUTHERFORD
Practically the same point of Order. I desire to submit that if the first part of this Resolution is moved at all, it can only be moved when Order No. 3 on the Order Paper is reached. It cannot, I submit, be dealt with in this House.

§ Mr. SPEAKER
In reply to the Noble Lord, the Rule, of course, is that if any hon. Member feels embarrassed in voting upon a Resolution, that the Chair shall divide the Resolution, in order that the Member may, if he wishes to vote "Aye" on the one part and "No" on the other, 1995 not be embarrassed by having to vote "Aye" or "No" on the whole of it. I cannot conceive that any hon. Member will wish on this Resolution to vote "Aye" on the first part and "No" on the second, or the other way about. But I am quite prepared to divide the Resolution into two parts: I do not think I should divide it into three; because it seems to me that a Motion to suspend Standing Order 67 is really incidental to and necessary to the first part of the Resolution to rescind the conclusion arrived at on Monday last. I have therefore cut the question into two parts. First of all, we will take the question of the rescission of the Amendment; then the question of the Amendment of the guillotine Resolution.

§ Lord ROBERT CECIL
I should like, if I may, for the guidance of the House in the future, to ask whether it would be possible to move any Resolution, however inconsistent with the Standing Orders and Rules of this House, provided there is prefixed to that Resolution the words, "Notwithstanding anything in any Standing Order of this House"?

§ Mr. SPEAKER
I do not really see that that makes any difference. Assuming that the hon. Member obtains a day, and he wishes, as he says, to impinge the decision of a judge, all he has to do is to put down his Motion to suspend the Standing Orders; then, after that has been disposed of, he goes on to the second point.

§ Lord ROBERT CECIL
The House may decline?

§ Mr. SPEAKER
Whether the two are down together or put into one it does not seem to me to be a very material matter. Even if it were I would ask the Noble Lord to remember that it is constantly the procedure of this House to suspend the Standing Orders on a Motion which does something else.

§ Sir HILDRED CARLILE
Why cannot we suspend all this matter?

Mr. BALFOUR
The point, it seems to me, is of so much importance—apart from the immediate subject of Debate—that I wish, Mr. Speaker, to ask you a question in connection with what has just fallen from you. The illustration, Sir, that my Noble Friend put, and which you dealt with, was that of a private Member, or for the matter of that, a Member of the Government, moving a Resolution impugning the decision of the judge. I gather 1996 that you are of opinion, at least I gather that you suggest that your opinion would be, that such a Motion would be in order provided it was preceded by the words "Notwithstanding anything in any Standing Order of this House." If such a combined Motion was in order and was put down, evidently the Member moving it would have a right to do exactly what the Standing Order says he may not do, namely, discuss the whole conduct of the judge before the Motion was put to the House, and so the whole thing might be traversed. That seems to me to be a matter of such vital importance to the procedure of this House that I hope you will forgive me if I press again the point which I understand has been raised by my Noble Friend.

§ Mr. SPEAKER
I am afraid there is nothing in the Standing Orders which prevents such a Motion, or which says that such a Motion shall not be made. The ordinary custom and the common law of this House prescribes that it is desirable, if it is wished to attack a judge in his official capacity, that it must be done in a particular way. The question of the suspension of the Standing Orders does not really arise here. I was rather misled for the moment by the illustration which was given by the Noble Lord.

§ Lord ROBERT CECIL
May I ask whether there is any distinction between the suspension of the Standing Orders and the suspension of the general rules and practice of this House, and whether if it is possible to put a Motion in order by prefixing the words "Notwithstanding anything in any Standing Order in this House," it would not be quite possible to make it in order by prefixing the words "Notwithstanding anything in the customs, rules, or practice of this House." I very respectfully put to you that since there is evidently some feeling in the House that these questions should be put separately, that in that case they should be put separately.

§ Mr. BUTCHER
On the same point of Order, and before you answer that question, may I ask you, Sir, whether your attention has been called to a decision of Mr. Speaker in this House on 12th April, 1842, the effect of which was as follows: the Resolution as proposed would in effect alter the Standing Order, and that that Order must be rescinded before the Resolution was moved. The way in which that question arose was this: that Mr. Wason 1997 moved two Resolutions which, if carried, would have had the effect of disturbing or running counter to the Standing Orders of the House, whereupon the Standing Order relating to the matter was read, and Sir James Graham asked the Speaker whether it was competent for an hon. Member to proceed with his two Resolutions before the Standing Order which has just been read was formally rescinded. Mr. Speaker said: "I think it is necessary, first, to rescind the Resolution of the House before the Motion can be put from the Chair." Applying that here, I would ask you, Mr. Speaker, inasmuch as this Resolution, if carried, would violate, not only the Standing Orders of this House, but also certain rules of this House which have existed for 300 years, whether it would not be first necessary for the Government to submit a Motion rescinding the Standing Order and abrogating the rules or practice which have lasted during that period. If they can succeed in getting the House to adopt that course, then it would be in order, and not until then, to submit the Resolution which stands in the name of the right hon. Gentleman the Prime Minister?

§ Mr. SPEAKER
This sentence, "Notwithstanding anything in any Standing Order in this House," is put in, ex majori caūtēlâ, to make it right. It might possibly be argued—I cannot say whether there is anything in it or not—that by rescinding any decision to which the House came on Monday the House was increasing a charge. It is to my mind rather obscure, but it might be so argued. If it is so argued, if there is anything in that point, it would be necessary that a decision should be taken in Committee and not in the Whole House. In order that the House may deal with the matter as a whole, the suggestion was made and appears in the Resolution that, whilst rescinding the Amendment, it would be necessary that the suspension of that Standing Order should also take place. One seems to me to be possibly closely associated with the other, although I do not know that it is absolutely necessary—it is not perfectly clear to my mind now that it is necessary—to suspend the Standing Order before you can rescind the Resolution, but it seems to me to be advisable, and that is why I think the two propositions should hang together.

§ Mr. BONAR LAW
Arising out of the question put by my hon. and learned Friend, as I understand what you have just said, is this: That if the Government had 1998 put down the Resolution without putting in the phrase about the Standing Order, it is quite possible you might have allowed it to be put. That is not done. The point raised by my hon. and learned Friend is this: That the decision of a previous Speaker has been that if a Resolution requires that the Standing Order should be rescinded, then the rescinding should take place first. I submit to you it is not fair to ask you what your action would have been in circumstances not before us. The whole question is whether or not, if a Standing Order is to be rescinded, a Motion to that effect must not take precedence of the Resolution.

§ The PRIME MINISTER
On that point of Order raised by the right hon. Gentleman, may I call your attention to the Allocation-of-Time Resolution, under which the proceedings of the Government of Ireland Bill are conducted? It follows, in this respect, all Allocation-of-Time Resolutions which have ever been proposed. May I point out that the paragraph which suspends the number of Standing Orders is in the following terms:— Any Private Business which is set down for consideration at 8.15 p.m., and any Motion for Adjournment under Standing Order No. 10, on an allotted day shall on that day, instead of being taken as provided by the Standing Orders, be taken after the conclusion of the proceedings on the Bill or under this Order for that day, and any Private Business so taken may be proceeded with, though opposed, notwithstanding any Standing Order relating to the Sittings of the House, and shall be treated as Government Business. We have designedly followed the universal practice of inserting that Clause in the Resolution.

§ Mr. SPEAKER
I do not quite know how that may be, but I am of opinion that the suspension of the Standing Orders is a subsidiary and incidental matter which may or may not become necessary, and, as I have said, by way of precaution it has to be put in. I am quite prepared to follow the suggestion of the Noble Lord to divide the Resolution into two parts.

§ Mr. BUTCHER
As you have given a ruling on the first point I raised, which was that before proceeding with this Resolution the Standing Order which is about to be infringed upon need not be formally rescinded, I beg to call attention to the 1999 second point. What I suggested was that inasmuch as this Resolution, if entertained by the House, would violate the Rules of Procedure which have governed this House for something like 300 years, therefore it would be necessary before the House could even entertain this Resolution that they should alter this Rule of Procedure. The Rule of Procedure I have referred to is embodied in the Manual of Procedure of Public Business which is prepared by the Clerk of the House for the use of Members and laid upon the Table by Mr. Speaker. It is the third edition of that manual published this year. The Rule is Rule 104—it is not a Standing Order, but a Rule of Procedure:— A Motion must not raise a question substantially identical with one on which the House has given a decision in the same Session. That is not a new Rule of Procedure; it followed from a decision of the House that was come to in 1606, and it has been invariably followed ever since, and this Rule, substantially in the form in which it appears in this manual, was laid down by Sir Erskine May many years ago, and appears in this and similar manuals published since 1854. The point I put is this: If this Resolution is entertained by the House at all, would it not involve a breach of this Rule which has been observed for all that period? Would it not involve putting precisely the same question which was decided by this House in the affirmative on Monday last; and would it not be asking this House to decide the same question in the negative; and, if that be so, I ask you whether it would not be proper, inasmuch as we are asked to make this serious breach of the observances of the Rules of the House, to ask the House by a general Resolution in the first instance to rescind that Rule, and if the House should so decide, then we might proceed with the Resolution.

§ Mr. SPEAKER
I do not quite follow the example given by the hon. and learned Gentleman. If the House adopts the Resolution which is now about to be proposed by the Prime Minister, it will rescind that Rule. It is quite clear there are a certain number of Rules which form the common law of the House, with which the House is well acquainted, and which form a body of precedents. I stated at the commencement I could find no precedent for this—

§ Mr. MOORE
There never was a Government like this.

§ Mr. SPEAKER
It is for the House itself to decide whether it will form a new precedent, after due consideration of what the results would be of forming that new precedent. It is not for me to say that under no circumstances shall this House ever form any new precedent. I have no power to enforce my judgment on that matter even if I had such judgment, and therefore the hon. Gentleman will see—to come back to where I started—that if the House passes this Resolution it will be making a new precedent, and so far pro tarito it will be driving a hole through that Rule to which the hon. Member has called attention.

Mr. BALFOUR
May I ask whether, in consequence of your ruling, it will not from henceforth be necessary for the Clerks at the Table, acting under your directions, to accept a Resolution, however contrary to our Standing Orders, and however altering our Rules, provided words were put into the substance and texture of the Resolution saying that the Rules or customs were not to be observed. Henceforth the Clerks will be bound to accept any Motion, whatever its character, provided these saving words are put in.

§ Mr. SPEAKER
I do not like to commit myself to pronouncing a judgment upon a Resolution which I have not seen, and therefore I think I had better say nothing about that point. All I can say is that it rests with the House, and the House must decide. The Standing Orders are made by the House, and the House can alter those Standing Orders if it chooses. The House has formed, through the wisdom of our ancestors, what I call common law, and if the House chooses to alter that, of course, that must rest with the House.

§ Colonel GREIG
In his "Parliamentary Practice," Sir Erskine May, after stating that— It is a rule, in both Houses, which is essential to the due performance of their duties, that no Question or Bill shall be offered that is substantially the same as one on which their judgment has already been expressed in the current Session. The learned author proceeds:— A Resolution may, however, be rescinded and an Order of the House discharged, notwithstanding a Rule urged (2ndApril, 1604), 'that a Question being once made and carried in the affirmative or negative, cannot be questioned again, but must stand as a judgment of the House.' Technically, indeed, the rescinding of a Vote is the matter of a new Question; the form being to read the Resolution of the House, and to move that it be rescinded; and thus the same Question which had been resolved in the affirmative is not again offered, although its effect is annulled.

§ Mr. SPEAKER
Everybody who takes any interest in this matter knows that quotation. I began by saying, that although there were precedents for rescinding Resolutions, I was not aware of any precedent for rescinding a decision of the House come to during the passage of a Bill.

§ Mr. AUSTEN CHAMBERLAIN
May I ask whether, if the House decides to entertain this Resolution, it will not on the analogy of this Resolution henceforth be in order for any private Member to move a Resolution imposing a charge on the subject, and without the assent of the Crown being signified, provided he commences the Resolution with the words "Notwithstanding any Standing Order to the contrary"; and whether equally on the analogy of this Resolution, it would not be in the power of the Chancellor of the Exchequer, abandoning all the safeguards of financial procedure which the wisdom of our ancestors—to use your phrase, Mr. Speaker—has established, to move the Budget without any preliminary Resolutions in Committee provided he made his Motion "Notwithstanding any Standing Orders to the contrary this Bill be now read a first time."

§ Mr. SPEAKER
I should certainly not accept any such proposal. [HON. MEMBERS: "Why not?"] The question of the suspension of the Standing Order in this case seems to me to be a subsidiary one, and far less important than the question of rescission.

§ Mr. JAMES HOPE
There are really two questions involved here. The first is the suspension of the Standing Order, and the second the rescission of the previous decision of the House. These are two different questions—

§ Mr. JAMES HOPE
May I not conclude my point?

§ Mr. SPEAKER
I have given my decision. I have come to the best decision I can on the point, and I have done my test to answer the points which have been raised.

§ Mr. WATSON RUTHERFORD
I desire to put to you an entirely different point of Order. You have been good enough to divide this question into two parts. The first part of the question is in the form of a Motion that the Resolution passed 2002 last Monday be rescinded. You have pointed out that there are precedents for rescinding the Resolution, although there are no precedents for altering something that has taken place during the passage of a Bill. If this may be taken as rescinding a Resolution, I submit that that Resolution last Monday was passed when the House was in order in considering the further consideration of a Money Resolution. Now, Sir, I submit that the Amendment of the hon. Baronet the Member for the City of London could not have been passed on Monday unless the House had been sitting on Report to consider the Money Resolution, and I respectfully submit to you that it cannot rescind that Resolution unless and until the House is sitting to consider on Report the Money Resolution to which it refers. It is obvious that the House must be constituted exactly in the same manner to deal with the same subject, and I desire to point out that No. 3 on the Order Paper to-day is that the House proceeds to consider on Report the Money-Resolution of the Government of Ireland Bill. When we reach that stage it would probably be in order for the Prime Minister to move, "That the Resolution passed last Monday be rescinded," but unless and until we reach No. 3 on the Order Paper I submit that would not be in order. What is in order is that at the sitting of the House the House can deal with it by a Resolution on the subject of allocation of time, because that is a proper subject to be taken at a sitting of the House, but the House cannot deal with the subject-matter of any Bill or Motion before it unless that Bill or Motion is actually before us. For these reasons I submit it would be out of order to proceed with the first portion of the Resolution until No. 3 Order is reached. Perhaps I may be allowed to give an illustration of the serious difficulty that would ensue. Supposing a Government were in power by a very narrow majority, they might be defeated three or four times in the course of a week, and then they might get their majority together on a Friday and reverse all those decisions. I think it must be obvious that the House must truly be constituted and in order in considering any given subject before we can deal with the subject-matter of that subject, and I do not think it is in order to deal with the first portion of the Prime Minister's Resolution.

§ Mr. SPEAKER
I cannot accept the view of the hon. Member. I think, on the contrary, if the Prime Minister had 2003 attempted to ask the House to reverse the decision which had been come to on the Report stage of the Resolution in Committee, the would have been ruled out of order. He could not go back on that decision. It is because he could not do that on the Report stage of the Resolution that the matter has to be taken up outside that Order. This is the proper time for taking it up. The hon. Member will see that if the Amendment of the hon. Baronet the Member for the City of London stood as part of the proceedings on the Report stage, it would be impossible to go back. The Prime Minister would have no locus to move to rescind that which the House had passed. It can only be done outside that Standing Order and outside the time the House is occupied in that way.

§ Mr. WATSON RUTHERFORD
I am much obliged to you, Mr. Speaker, and it is obvious that your ruling is perfectly correct. I respectfully submit that my contention is also correct, and therefore the Prime Minister would not be in order in moving that Resolution at all.

§ Mr. ARNOLD WARD
With regard to your ruling, Mr. Speaker, that this Resolution is in order, may I ask if I shall be in order in moving, "Notwithstanding anything in any Standing Order of this House, your ruling be rescinded by this House"? [HON. MEMBERS: "Oh, oh!"]

§ Mr. SPEAKER
The hon. Member must give notice of that, and if the House thinks I am wrong I shall bow to its decision.