PREROGATIVE OF MERCY (Hansard, 1 May 1947)

§ Mr. Sydney Silverman
May I, with your leave, Mr. Speaker, ask, having regard to the doubts, difficulties and ambiguities which have arisen regarding Ministerial responsibility to Parliament in the exercise of the Royal Prerogative of mercy, whether you will expand and develop the Ruling which you were good enough to give the House on 10th March last? On 10th March last, at the beginning of your Ruling, you said that this was a complicated question of Order on which no direct guidance could be obtained from precedents. I hope, in view of that, that I may be allowed for a moment to point out the difficulties I had in mind when you gave your Ruling. In the course of your Ruling you said that the Minister was, of course, responsible to the House at some stage, but not until after he had given his advice; and in answer to a supplementary question you said he became responsible to the House only after a sentence had been, in fact, executed.
This does seem to substitute the right of censure for the right of control. But it would seem to involve other difficulties of a more serious nature, when it is remembered that the Prerogative of mercy applies to all cases, and not only to capital cases. If, therefore, one were to apply your Ruling literally to a case, say, of imprisonment for 20 or 30 years, and the Minister became responsible to the House, 2180 for a failure to advise in such a case, only after that sentence had been executed, it would, of course, render the right of the House of control completely nugatory, because after that time there would be nobody left in the House of Commons with any interest in the matter of any kind. If, in order to get out of that difficulty, one were to say that there was no need to wait until the end of the imprisonment, but that the sentence had, in fact, been executed, why a person, having been handed over to the governor of the prison, with instructions to imprison him for a stated period, we should be in the anomaly that the House would have a greater right to interfere in a minor case than, ex hypothesi, it has in a capital case.
The only other thing I should like to say is, that although there are very obvious dangers and embarrassments in mixing up the Prerogative of mercy with debate in this House, it is clear that such embarrassments and such dangers have to be run at some time; and since it is now clear that the Royal Prerogative of mercy is really only a constitutional fiction, and is no longer exercised by the Crown, but only by a responsible Minister, then it follows that, at some stage, this House must be in a position to exercise effective control. I have said so much only in order to point the difficulties which seem to be involved in rather doubtful and vague statements of the matter, and I think the House would be grateful, Sir, if you could expand the Ruling which you gave previously.

§ Mr. Speaker
The hon. Member has made a somewhat long statement, and I am afraid that I cannot answer it at such length myself. I would point out that in my Ruling of 10th March I was dealing with the particular case of persons under sentence of death on the Gold Coast. My remarks were, therefore, directed to the question of the Prerogative of mercy in the case of persons under sentence of death. It was the sentence of death that I had in mind when I said, by way of supplement to my Ruling, that the Home Secretary could not be challenged on the advice he had given to His Majesty until after the sentence had been executed. This rule, is, of course, not applicable to sentences of imprisonment. The practice of the House makes a complete distinction between capital sentences and other forms 2181 of punishment, so far as the Prerogative of mercy is concerned. Whereas the remission of a sentence of imprisonment, for example, can be urged upon a Minister at any time after its imposition, a capital sentence cannot be raised in Question or Debate while the sentence is pending. After it has been executed, the Minister responsible may be criticised on the relevant Vote in Supply, or on the Adjournment. I have stated that that is the practice of this House, and I cannot alter the practice of the House, and I do not propose to argue it in any way.

§ Mr. Silverman
Is it not a little anomalous that this House should have a very much wider power in the smaller case than in the bigger case; is it not also the fact that these Rulings are founded upon very old cases, which antedate the creation of the Court of Criminal Appeal; and, in those circumstances, might it not be advisable that a small Committee of this House should review all these precedents and report to you, Sir?

§ Mr. Speaker
I do not think it is for me to justify the practice of the House of Commons in this matter. It is enough for me to observe that, for a long period, it has been enforced by my predecessors, with the general concurrence of the House. It seems to me to be founded upon strong reasons of expediency, while maintaining the responsibility of the Minister in the 2182 House. So far as concerns the Committee which, it has been suggested, should be set up, it is entirely a matter for the House.

§ Mr. Leslie Hale
Would it be proper to submit one other important point affecting this matter? That is, that this House has always claimed the inherent right to discuss any matter which derives its authority from this House, and that a reference back to the history of this Prerogative shows that it is derived from an Act passed by this House in 1535, and that right is expressly given by Section i of the Act of that year dealing with judicial prerogative. May I call attention to that matter, Mr. Speaker, because you will recollect that the Prerogative of mercy was originally an ecclesiastical power which was derived by His Majesty from His Holiness the Pope, and, by that Act, which was passed by this Parliament immediately after the Protestant Reformation, that power was vested in this House? In those circumstances, is it not desirable that, in this extremely difficult matter, a Committee should be appointed?

§ Mr. Speaker
It is no good hon. Members drawing my attention to this It is for me to obey the practice of the House which has been carried on for a very long time. If hon. Members want the practice of the House changed, they must put down a Motion to get it changed, but it is not within my power.