HL Deb 08 August 1871 vol 208 cc1070-5

Order of the Day for resuming the adjourned debate [August 3] on the Motion for the Second Reading, read; debate resumed accordingly.


said, that the withdrawal of the threatened opposition to the measure, made it unnecessary for him to explain it at great length. This House had always possessed the power of administering an oath to persons examined, whether by the Whole House or by Committees, though in the latter case it was long necessary to administer it at the Bar of the House. The House of Commons, feeling the want of this power very inconvenient, claimed it on more than one occasion; but after much controversy it was abandoned, if it had ever existed, and was not exercised for a considerable time, till, on Controverted Elections being referred by the Grenville Act to Committees of the House, power was given to them to administer an oath. Now on local Bills, discrepancies were found to arise between the evidence of witnesses given before the House of Commons' Committees without an oath, and that given before Committees of this House on oath. A Bill was accordingly passed not long since, enabling House of Commons' Committees to administer an oath in such cases, as also to enable witnesses before the Lords' Committees to swear witnesses themselves, instead of at the Bar of the House. In 1869 an Act of Pains and Penalties, introduced into the other House, raised the question whether it was right to take unsworn evidence in support of it. It was consequently referred to a Committee, including Mr. Disraeli, Mr. Henley, Mr. Walpole, Mr. Hardy, Mr. Bouverie, the Lord Advocate, the Attorney General for Ireland, Colonel Wilson-Patten, Mr. Kinglake, and others. Persons better acquainted with constitutional usages could hardly have been selected. Sir Erskine May, Colonel Wilson-Patten, the Speaker, and Viscount Eversley were examined, and the Committee unanimously recommended the introduction of a Bill of this kind, pointing out in their Report that, in cases of personal liberty or privilege, and of charges against Corporations, Judges, and Members of Parliament it was not expedient that the House of Commons should receive evidence not on oath. The opposition to the Bill in this House was founded on an apprehension that the jurisdiction of the other House might thereby be extended to other subjects, and to meet any such misgivings he proposed to add in Committee a clause in these words— Nothing in this Act contained shall be held to confer any additional power or privilege on the Commons House of Parliament with reference to impeachment or other criminal jurisdiction or otherwise howsoever than is herein expressly enacted.


justified his original opposition to the Bill on the ground that had it been urgent it would not have been delayed two years or laid six weeks on the Table without any intimation that the Government intended to adopt it, and that the usual course of communicating to their Lordships the evidence on which it was founded not having been taken, he had not been aware of the existence of any grievance. He should have been satisfied with moving an Amendment in Committee, but for the fact that Amendments in this House, not made at the instance of the Government, were generally rejected by the other House, and not insisted upon by the few Peers who attended at the close of the Session. The House of Commons had for many years carefully kept within the limits of constitutional usage; but he had feared that the wide phraseology of the Bill might, under different circumstances and in different times, be made the basis of a new power or Prerogative, and a claim to criminal jurisdiction. There could be no objection to removing any impediment in the way of the numerous and onerous duties of that House; but he complained of the Bill having been pressed at this period of the Session, and without information. The clause proposed by the Government would not be of much value as an operative one, nor, indeed, would any enactment if ever the House of Commons were inclined to exceed its jurisdiction; but it would be a protest against any misuser of this new privilege, and he should therefore not persevere in his opposition to the measure.


remarked that the noble Marquess's Motion for the rejection of a Bill founded on the unanimous recommendation of leading men of both sides of the House of Commons, and designed to give that House a power already possessed by their Lordships, was a somewhat unlucky sequence to the eloquent, and, doubtless, sincere eulogium passed, on that House by the noble and learned Lord (Lord Cairns) who, perhaps, with a view of remedying some observations of a different character recently made in this House, took great care to explain that their Lordships' opposition was directed against the Government and not against the Commons. Whether or not an oath was the best way of eliciting the truth, it was obviously unjust for their Lordships to continue to exercise the privilege and to deny it to the Commons, who had 20 times as many Committees, on the Reports of which legislation constantly proceeded. Such a course would have shown extraordinary jealousy, and he was therefore glad that the Bill was to pass with an Amendment which appeared to him to be worth very little one way or the other, but meant, if anything, that the noble Marquess could not let it pass without some superficial show of jealousy lest the power should be misused. The delay, of which the noble Marquess complained, arose from one of the most occupied men in the House of Commons forgetting to send a message to the most occupied man in this House, the noble Earl expressed surprise at the noble Marquess considering their Lordships unable to carry any Amendment they thought necessary in Committee. On a recent occasion, 162 Members of the Conservative majority presented themselves, a considerable portion of whom had not voted in the House twice, while a still larger proportion had not done a stitch of Parliamentary work. Considering what power their Lordships had to defeat the Government or obstruct legislation, it was strange that the noble Marquess should think them so impotent.


said, that the noble Earl had remarked that a large majority of the Peers who voted against the Government the other night never came to the House. He hoped the noble Earl would allow him to say that the majority was composed to a considerable extent of noble Lords who sat on the Liberal side, and who usually supported the Government, and that its largeness was owing not so much to the number of the Conservative Peers as to the number of Liberal Peers who declined to vote.


said, this was not a small matter, and if the proposition had been made 20 years ago it would have been rejected. The Constitution had gone on hitherto without the Commons possessing the powers proposed to be granted, and they did not seem to have suffered much. Under these circumstances, he thought it could not have been expected that the Bill should pass without comment.


observed that there had been mutual concessions in regard to this power. He had abstained from saying anything about the value of oaths in obtaining testimony, for that was a subject on which there might be differences of opinion; but he thought the House of Commons would do well to exercise this power rarely in the examination of witnesses before Committees on Local Bills, and that this House should also pursue a like policy.


said, it should be remembered in justification of the course taken by the noble Marquess (the Marquess of Salisbury) that at the time he gave Notice of his Motion their Lordships had received no evidence of the necessity of this power being given at this particular time to the House of Commons. That House had endeavoured to obtain such a power in an indirect way for a considerable time. They used to get the oath administered by any Member of the House who was a Justice of the Peace, but that was an irregular proceeding. Then they tried to get the oath administered by one of the Judges; and next they wished to have their witnesses sworn before their Lordships' House. That proposal was not consented to, and from 1757 down to the present time there had been no attempt made to obtain the power of examining witnesses on oath. He was very much disposed, until he saw the Report of the Committee on the evidence on which it was founded, to follow the noble Marquess in the course he proceeded to adopt; but he was now perfectly satisfied, that this was a proper power for the House of Commons to possess, and he was glad to consent to the second reading.


regarded the noble Marquess's (the Marquess of Salisbury's) notice to throw out the Bill as an interference with the House of Commons in the management of its own concerns, and was glad the question had been amicably settled. As to what had passed between the Leaders of both sides of the House, he presumed it was a preliminary skirmish to the engagement of Thursday next, when it would be seen whether the Conservative Peers again mustered.


said, he thought noble Lords on the back benches, as well as those on the front benches, should protest against the observations of the noble Earl (Earl Granville), who seemed to think their Lordships ought not to vote against him. He knew it was assumed in some quarters that all public virtue and political sagacity rested with the Government side of the House; he could not hold out hopes that those who differed would withdraw their opposition; in fact, he rather thought that the noble Earl would have an early opportunity of seeing that the Conservative Peers were prepared to support their opinions.

Motion agreed, to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.