Order of the Day for the consideration of the Second Report of the Select Committee, read: Moved That the said Report be considered (the Chairman of Committees); agreed to: On consideration of the following paragraphs, viz.:—
1. The Sub-Committee have met, and have had the advantage of hearing a statement tendered to them by the Lord Great Chamberlain, and have adopted the following Report:
2. The Resolutions of the House of 1888 and 1890, transferring the custody of the House and the appointment and control of its doorkeepers and messengers from the Gentleman Usher of the Black Rod to the Lord Great Chamberlain, should be adhered to:
The Committee, having considered the Report of the Sub-Committee, are of opinion that paragraph 2 should be adopted, and that the Resolutions of the House of 1888 and 1890 should be adhered to.
LORD HERSCHELL moved to disagree to the above recommendation on the following grounds:—
''That it is at the least open to grave doubt whether this House has any power to transfer a right of appointment and an authority which have never been vested in this House, and which from time immemorial have been vested in and exercised by the Gentleman Usher of the Black Rod, either by virtue of his patent or otherwise, and to vest that right of appointment and authority in another person; and that it is moreover inexpedient to vest that right of appointment and authority in an hereditary officer who is not under the control either of the Crown or of this House.
The noble and learned Lord said he need not disclaim any personal feeling in the matter, or any desire to cast reflection upon the Lord Great Chamberlain for whom he entertained respect and regard,
but the question raised was one of considerable importance affecting the dignity of the House, and involving possible difficulties in the future. The Resolution passed in 1888 was that the service and custody of the house should be placed entirely under the jurisdiction of one authority and that it should be the Lord Great Chamberlain for the time being. Public palaces had always been vested in the Hereditary Great Chamberlain by order of his office and the fabric of this House and of the other House and the whole belongings were vested in the Great Chamberlain as well as other palaces. About that there could not be the slightest question, and he thought it was equally clear that beyond the fact that the buildings were vested in him, he had no authority in those portions or buildings that were set aside for the use of the two Houses. In 1890 a further Resolution was passed that, on a vacancy occurring in the office of Black Rod, the power of appointing door-keepers and messengers should also be transferred to the Lord Great Chamberlain. The effect of that Resolution would be not only to take all the appointments which had hitherto been made by Black Rod out of his hands, but to place them in the hands of the Lord Great Chamberlain; and to take from Black Rod the jurisdiction and authority over those who have hitherto been his subordinate officers, appointed and upheld by him. The first question which arose was whether there was any power in the House to take from him the patronage which from time immemorial had been vested in him and to transfer it to the Lord Great Chamberlain; and his first proposition was that there was no authority. The patronage had never been vested in or exercised by the House, and the House had no power to take it from Black Rod. In 1701 the question arose whether Black Rod had the power to appoint his next immediate subordinate, the Yoeman Usher of the Black Rod. It was reported to the House that the Gentleman Usher, Sir David Mitchell, intended to appoint a Yeoman Usher. It was proposed to refer the matter to the Committee of Privileges of the House, but it was thought not right that the House should pronounce an opinion on a matter which it was informed was about to be
contested in a court of law. There was a trial, and a verdict was given for Sir David Mitchell. It was thus decided that the Gentleman Usher had the power to appoint his chief subordinate. In 1824 a Committee reported that the Journals of the House clearly showed that the authority of Black Rod to appoint his inferior officers was distinctly recognised by the House, and, more than that, it had been regarded as among the perquisites and privileges of Black Rod. The Committee expressed their approval of the manner in which the duties had been discharged by the gentleman holding the office, and they remarked upon his disinterested conduct in the exercise of patronage in forbearing to sell, according to antecedent usage, the situations of the several inferior officers employed under him. Therefore down to the appointment of the gentleman in office in 1824, not only had he the appointment of his inferior officers, but the appointment was one of the perquisites of the office, for he had sold the appointment and benefited by the price obtained. A clearer recognition of the power of appointment and right of patronage it would be impossible to conceive. Down to the present day the Gentleman Usher of the Black Rod had always appointed his subordinate officers, and the patent of the present Black Rod and his predecessors gave him the office "with all the privileges, perquisites, and rights now or hereafter belonging to or appertaining to the Gentleman Usher of the Black Rod." There seemed to be no doubt he had the right of patronage. In MacQueen's ''Practice of the House of Lords,'' it was said he was also vested with the appointment and control of the doorkeepers of the House. So he believed he had established a case for contending that from time immemorial the Gentleman Usher of the Black Rod had had the appointment and control of doorkeepers and messengers. It seemed only natural that he should have these appointments, because he was responsible for order being kept at the door and, more than that, he had other duties in connection with the House. When an order for commitment was made he had to see that it was carried out. If a witness did not attend, the Gentleman Usher of the Black Rod was
required to take charge of the person in contempt. Yet it was proposed to leave him all the duties he had before, but to take from him not only the appointment of subordinate officers, but the control of those officers through whom alone he was able to discharge these duties. It was inexpedient that the House should transfer appointments by the Gentleman Usher of the Black Rod to the Lord Great Chamberlain because the House was incompetent to do it. If there was a vacancy in the office of messenger or doorkeeper, and an appointment were made by the Lord Great Chamberlain and another by the Gentleman Usher of the Black Rod, the Courts of Law would have, as in 1701, to decide which was the good appointment. It seemed to him that they would be obliged to hold that the Gentleman Usher of the Black Rod had the appointment, and it would put the House in an undignified position if it authorised appointments which Courts of Law held it could not make That was a grave objection to the House undertaking to assert a power of transfer when it was, to say the least, open to grave doubt whether it had any such power. It had been said that the officers of the House, of Lords were on the House of Lords' Estimates, therefore the House of Lords had power to deal with their appointment. But the Lord Chancellor (about whose power of appointment there could be no doubt) as Speaker of the House was on the House of Lords' Estimates. But he could see no power to transfer from the Gentleman Usher of the Black Rod the power of appointing his subordinates merely because their salaries were on the House of Lords' Estimates. It was said that if, notwithstanding the Resolution before the House, Black Rod made an appointment and it was held valid, the House of Commons might refuse to vote the salary. True; but then the only result would be that the House would have to go without its messenger and doorkeeper. But he did not think the House of Commons would be any more willing to vote the salary if the patronage were transferred to the Lord Great Chamberlain, an officer over whom the House had no control. He was not an officer of the House, nor was he put, as the Gentleman Usher of the Black Rod was, under the command of the House
by Her Majesty. The Gentleman Usher of the Black Rod was put in a very undignified situation. He was put into the office, but told he was to do nothing; the control even of the doorkeeper was taken from him; he had nothing to do with any part of the House or its officers. He was simply Gentleman Usher of the Black Rod. It would be better to abolish the office altogether than have it in that position. ["Hear, hear!"] It should be remembered that the Lord Chamberlain was an hereditary officer. No doubt they had the utmost confidence in the present Lord Chamberlain, but his successor would not be determined by the House, nor even by the Crown, because it was an hereditary office. It might be said that if a Lord Chamberlain came into office in whom the House had not confidence the House that gave the patronage could take it away, but obviously that would be invidious, and a grave objection to transferring any of the patronage to the holder of an hereditary office. Because the House might be involved in difficulty, and, perhaps, also some loss of dignity, he had thought it right to bring the matter before their Lordships, and to move to disagree from the recommendation.
§ THE PRIME MINISTER (The MARQUESS of SALISBURY)
said, they often heard of identity of policy, and various practical interpretations were given to that phrase. But the noble and learned Lord had shown by his action on that occasion the oddest view of a continuity of policy. The Resolution to which he objected was passed by the Committee in 1888. The noble Lord was then, as now, a Member of the House, and a very authoritative Member of the House. Since that time he had sat on the Woolsack and had been a colleague of the Leader of the House. During all that time he saw no reason for calling forth the stores of valuable learning he had just exhibited.
§ LORD HERSCHELL
said, that when he was in office and Lord Chancellor, the first time he was ever on the Black Rod Committee—in 1892, he believed—he brought the matter before the Committee, and moved for a Sub-committee, on the ground that he thought the position of Black Rod had not been fully 852 entered into at the time the Resolution of 1888 was passed.
§ THE PRIME MINISTER
But the noble and learned Lord never brought it before the House, and the result was they had passed over a vacancy. Now Black Rod had been appointed subject be conditions laid down by a Committee of the House of Lords, and when this was done the noble Lord came forward, eight years afterwards, and wanted to upset the arrangement.
§ LORD HERSCHELL
said, that during the life of the late Black Rod he moved expressly in view of its being inexpedient to determine it at the time, when there was no vacancy, and a Subcommittee was appointed which drafted a Report, but it was not considered because there was a Dissolution. After the Dissolution came the death of Black Rod, and he had no opportunity of bringing the subject before the House.
§ THE PRIME MINISTER
said, it seemed odd that in eight years the noble Lord could not move faster in his reforming operations. Turning to the essence of the proposal he did not think the noble and learned Lord had rightly brought before the House what Black Rod was. He was not essentially an officer of the House, having nothing to do with Parliament. He was an officer of the Order of the Garter. How he got into his present position he could not possibly conceive. The noble Lord laid much stress on the House having no authority over the Lord Great Chamberlain. The House had not an ounce more authority over the Gentleman Usher of the Black Rod. The Lord Chamberlain was appointed by the action of hereditary right; the Gentleman Usher of the Black Rod was appointed by the Crown, not as a political office, but he was appointed in the way in which permanent officials of the Household were, and the House had no more share in that appointment than in that of the Lord Chamberlain. The noble Lord appealed to antiquity, and talked of immemorial right to exercise the patronage of Black Rod. What was this immemorial right to exercise the patronage of messengers, housemaids, and doorkeepers? No doubt it was a valuable right in the past, because Black Rod was in the habit of selling permission to appoint 853 these officers. It was a very old argument for proving the inalienable right of Black Rod, to quote the practice of selling the patronage which had been abolished since that time. There was nothing in the nature of an inalienable right in the right of Black Rod to appoint the messengers and housemaids of the House. It was a right that had grown up accidentally, and, like many other things, had been made the subject of great abuse. The noble Lord did not explain how great that abuse was. In the lifetime of men now in the House the housemaids had this immemorial right to sell their patronage. They did not come near the House, but used to enjoy the salary (which was considerable) and paid charwomen to do a portion of the duty which fell upon themselves. That was the kind of immemorial right the noble Lord wished the House to look upon with so much respect. No doubt there was a great abuse. But they could not have a patent right to appoint housemaids and messengers unless there was a fixed number of messengers and housemaids to be appointed. There had never been any such thing. They had been appointed from time to time as need might arise. The real person who determined what housemaids and messengers there should be, and who should appoint them, was the person who paid their salaries. That was under the present arrangement of the House of Commons. But in past times the House of Lords relied upon its fees for the purpose of discharging expenses, and the fees in those days were adequate to the purpose. A temporary arrangement had been made, which could be cancelled at any time, by which all the fees were paid into the Exchequer and the House of Commons passed in the Estimates the Votes necessary for maintaining the services requisite for the House of Lords. There had never yet been inalienable messengers, inalienable housemaids, and patents to appoint them. The Usher of the Black Rod never had had that power, because he never could have it. It was a power which, in the nature of things, could not exist. Eight years ago attention was drawn to the fact that two or three authorities controlled the internal and domestic organisation of the House, and great inconvenience was seen to 854 arise from that circumstance. And they asked not what was done in Henry VIII's reign or what were the inherent rights necessarily attaching to an officer of the Garter, but they asked what was the convenient thing to do in appointing housemaids, messengers, and so forth in the House, and they thought the person who had the control and guardianship of the building was also the person who should have the control and guardianship of these important officials. The noble Lord spoke as if the Lord Great Chamberlain had no control over any part of this building which was used by the Houses of Parliament. His belief was that the Lord Great Chamberlain had a right to one of the most important articles in that House, and that was the key of all the doors, and unless he gave up the keys the doors could not be opened, and unless the doors could be opened naturally the House would be closed. The Lord Great Chamberlain had the determination, in company with other officers, of the use the rooms should be put to. Under these circumstances it seemed to him, on the whole, that among the various authorities among whom they had to choose, it would more tend to unity and convenience that the Lord Great Chamberlain should appoint the housemaids and messengers. That there should be a rebellion among them, and that they should declare there was no right that their appointment should be exercised by any person except the Gentleman Usher of the Black Rod was, he thought, a contingency which they need not seriously apprehend, because the power of the purse would indicate who was to be appointed, who was to be paid, and how much he was to be paid. That power lay with the House of Commons, and, failing its exercise by them, with the House of Lords, but they had no more authority over the action of the Black Rod than they had over that of the Lord Great Chamberlain. He did not say these were ideal arrangements. They had come down to them marked with indications of considerable antiquity. They must make as much use of them as seemed, under the circumstances, most convenient, and he thought the officer who had charge of the buildings and keys, had much better have charge of appointing the housemaids and messengers. It did not seem to him a large question, 855 and he was sorry so great a constitutional discussion should have been raised on the point. The decision having been come to eight years ago, and—in spite of the protest of the noble and learned Lord—not having been contested in any serious spirit during the time that had intervened, he thought the House of Lords would do better to adhere to that decision and cultivate in the management of their internal arrangements that unity which was most likely to avoid confusion.
THE EARL OF ROSEBERY
stood at some disadvantage in answering the noble Marquess, because he had not habitually attended, nor long been a Member of the Black Rod Committee, therefore he was not so versed in the history to which he alluded as the noble Marquess professed to be. But he was bound to say that the accuracy of the noble Marquess' memory on these transactions and with regard to the facts was not so complete as to dismay him from saying a few words on this point. If he said anything, he begged to disclaim any personal hostility to his noble Friend the Lord Great Chamberlain, who, if he was Usher of the Black Rod and appointed for that purpose would, he was sure, discharge his duties to the satisfaction of the House. This seemed to him a point of somewhat wider importance, and the noble Marquess' argument was one which he was not altogether able to follow. He went at large into the transactions relating to the housemaids and charwomen; he showed he was not liable to ancillœ pudor, and was prepared to grapple with that question in its minutest details. But as a matter of fact the noble Marquis was wrong in his facts. Whatever transactions there might have been of an unfortunate character between the housemaids and charwomen, related always and entirely to the Lord Great Chamberlain, under whose control these maidens had been within, at any rate, the memory of those now sitting in that House. The noble Marquess asked who paid the officials; he said they were paid in the long run by the House of Commons, and therefore the control of this matter rested with the body that paid, which was the House of Commons.
§ THE PRIME MINISTER
I said as at present arranged with the House 856 of Commons, and if the House of Commons did not pursue the present arrangement of putting Votes on the Estimates, the paying of fees, which would place the control in this House would be the resource to which we should naturally be driven.
THE EARL OF ROSEBERY
replied that the fees were not an absolutely certain source of income. He took it the private Bill system might be changed, and the fees would disappear. He did not see that that affected the point of whether the Usher of the Black Rod or the Lord Great Chamberlain was to appoint to these offices. Whoever paid the money must nominate, and if the paying body always nominated it was clear that the House of Commons ought to appoint to every office for which it paid. He thought the noble Marquess had made no case whatever to the argument put forward by his noble and learned Friend, who had pointed out that from time immemorial the appointment of messengers and doorkeepers had been in the hands of the Usher of the Black Rod; that so complete was that control that he actually had the power of the sale of offices, the Committee from which quotation had been made not merely not denying that power, but thanking him for not exercising it, and hoping he would not exercise it in the future. He took it that no office more freehold could possibly be conceived or patronage more secure, as far as prescription went, than, the patronage hitherto exercised by the Black Rod. The noble Marquess attempted to confound the case of housemaids under the Lord Great Chamberlain and the doorkeepers who were under the Usher of the Black Rod. But there was absolutely no connection between them. If that House wanted to keep out any offending Member, if it wanted to eject any offending Member, the only power it had was to order the Usher of the Black Rod, who then, under the system that they should approve, would give directions to his officials to carry out their Lordships' orders. What would the result be now? The result now would be that they would give orders to the Usher of the Black Rod, who would have to go to the Lord Great Chamberlain and ask him for his sanction to employ doorkeepers! That was what the noble Marquess described 857 as a perfectly ideal and satisfactory arrangement. He said, among the many strange parts of his argument, that they had no control over the Usher of the Black Rod. He looked at the introduction of the Usher of the Black Rod as recorded in the Journals of their Lordships' House, and he saw that—The Lord Great Chamberlain acquainted the House that Her Majesty had appointed General Biddulph to he Gentleman Usher of the Black Rod, and he was at the door ready to receive their Lordships' commands.The noble Marquess said they could not command him. Of course, if the noble Marquess, as Leader of the House, confessed his own impotence in that respect—
§ THE PRIME MINISTER
We have no more control over him in respect to the appointment than we have over the Lord Great Chamberlain.
THE EARL OF ROSEBERY
said, the point was not whether they had control over the Usher of the Black Rod's appointment, but whether the Usher of the Black Rod had any control over his own staff. Their Lordships had determined to remove the control from the Usher of the Black Rod, the officer whom they had to command to carry out their orders, and transfer it to the Lord Great Chamberlain, whom they had no control over whatever. The Lord Great Chamberlain was not appointed for any purpose whatever. He succeeded to the office and the control of the housemaids by hereditary birth. They had there no test of fitness. But the Usher of the Black Rod, having been appointed by the Crown, under the advice of the Prime Minister, was a person appointed with these special objects in view, and, therefore, as between the two officers, was the one more fitted to discharge these functions. He did not want to enter into this matter in a contentious spirit, and he was afraid that if they debated too long about it, wholesale and retail, they might expose themselves to the risk of becoming ridiculous. He wished to make a conciliatory suggestion. He thought the noble Marquess would admit there was considerable legal doubt as to their position in this matter, into which they would be wise to look before they leaped, and ascertain what right they had to do what they proposed to do 858 before they actually did it. His suggestion was that it should be referred to a legal Committee of their Lordships to consider the precedents and determine exactly what their position was in the matter. He could not conceive there could be any objection to such a course. It would not delay, by any long time, the appointment that it was desired to make, and at any rate whenever that appointment was made they should stand on the Report of their lawyers as well as that of their Black Rod Committee, and he thought, to put it on the mildest ground, they should occupy a much stronger position than they did now.
* THE EARL OF CAMPERDOWN,
who spoke as a Member for many years of the Black Rod Committee, said it had been stated with perfect truth that Black Rod was not an officer of their Lordships' House in any sense. He was the Gentleman Usher appointed by the Crown under patent, and he was an officer of the Garter. His patent gave him the rights and privileges of the office of the Garter, whatever those rights and privileges might be. They had had the patent read, and from beginning to end there was not a word about appointing any of the officials of that House. How did Black Rod come to be present here? Black Rod was only present here because he was commanded by the Crown to be present here. He had no duties in connection with this House, and with regard to these officials, if he had the right to appoint the doorkeepers of the House he had an equal right to appoint the housemaids. Black Rod did appoint the housemaids until a few years ago, but they were appointed in such a manner that this House was a perfect disgrace. Robberies took place, and for that reason the Committee recommended their Lordships to remove the appointments from Black Rod and to give them to the Lord Great Chamberlain, since which time the robberies had not been renewed. If this was a frightful invasion of the right of Black Rod which they were now going to sanction, why did the noble Lord not resent the invasion that took place on that occasion? Were the doorkeepers the officials of the House or of Black Rod, because if they were merely the officials of Black Rod then he would recommend their Lordships not to go 859 through the farce of annually appointing a Committee to inquire into the office of an official with whom they had no right to deal in any sort of way. Not only that, but this Committee had given directions to Black Rod over and over again within his recollection. He transgressed one of those directions, and he was immediately called to account, and that discussion did not come to an end during the tenure of the late officer. What were they prepared to do now? They were not, as the noble Lord said in his Motion, going to vest that appointment in the Lord Great Chamberlain. This House, he presumed, which paid the salaries of the officials, had surely some right to control the officials, and to retain within its own hands the right of appointment. The question, it seemed to him, was a very small one. They had debated it several times, and the noble Lord who had just made this Motion had never secured a majority upon it. He hoped their Lordships would adopt the Resolutions proposed by the Committee, perfectly understanding that the proposal of the Committee was not to vest an appointment in any official or officials whatever, but to retain the right of control of such appointments within the hands of the House. He hoped their Lordships would think it desirable to retain that right of control in their own hands, and that was the only purpose for which the Committee made the recommendation.
* THE CHAIRMAN OF COMMITTEES (The EARL OF MORLEY)
said, the noble Marquess appealed to the argument of continuity of policy in support of the Resolutions passed by the Committee, and he was bound to admit that so far as he was concerned he might charge him with some inconsistency in opposing these Resolutions. Though he was not a Member of the Committee in 1888, when the original Resolution transferring the Duties of Black Rod to the Lord Great Chamberlain was passed, he had had the honour of being on the Committee since 1889, and therefore he must admit that during that time he had slept upon these Resolutions. But when, on the first occasion on which it became possible to give full effect to the change, then he confessed it seemed to him that the arguments used by the noble and learned Lord opposite were 860 incontrovertible. He did not wish for a moment to tire the patience of the House by going into the question of the competency of the House in this matter, which had already been dealt with by Lord Herschell, but he would ask their Lordships to consider what was really expedient. They had two distinct officers. One officer, of whom he wished to speak with the greatest respect, was the Lord Great Chamberlain, but they were, by these Resolutions placing upon him functions and duties wholly foreign to the high office which he held. His office was to have charge over the Palace of Westminster, including the House of Lords no less than the House of Commons. Beyond that he ventured to think that he had no control whatever over this House during its sittings. Their respective portions of the Palace were allotted to the two Houses for their occupation, and when the Houses were sitting it was an officer appointed by the Queen, and lent to each House, who, up to 1888, performed their commands and had control over the doors and the order of the two Houses. This officer in the House of Lords was Black Rod; in the House of Commons the Sergeant-at-Arms. He would point out to the House that this very remarkable effect was the result of the Resolution of 1888. They rarely had the pleasure of seeing the Lord Great Chamberlain in the House, so that practically there had been since 1888 no one present during the sittings of their Lordships' House to control the doorkeepers and the entrance to the House. Unfortunately, the late Black Rod, in consequence of ill-health during the last two years of his office, was seldom here, though his deputy always was. But he had no function and no control whatever over the doorkeepers, who were under the control of the Lord Great Chamberlain. He admitted that that was past, and that the Lord Great Chamberlain, by appointing the Deputy Usher of the Black Rod as his secretary, now had always a representative present in the House to control the doorkeepers. But would their Lordships consider that a position to place Black Rod in at this juncture? Black Rod, he said without fear of contradiction, was an officer appointed by the Crown to obey the commands of this House and to keep 861 order. They had taken away from him the function which he was especially appointed and lent to the House to perform, and they were placing his own deputy in the position which controlled the officers whom he had hitherto appointed. He thought that was not a fitting position to place Black Rod in, and he thought it was hardly expedient, and, he would almost say, hardly consonant with the dignity of the House, that they should place the control and the custody of the House in an hereditary officer over whom neither themselves nor the Crown had the slightest power. For these reasons, and without the slightest personal feeling in the matter, he could not support the paragraphs of the Report of the Select Committee to which the noble Lord had moved an Amendment.
§ THE DUKE OF RUTLAND
thought the uninformed Members of the House might have some right to complain of the way in which this question had been brought before them. The paper stated that the Committee had had the privilege of hearing a statement from the Lord Great Chamberlain, but they were not informed what that statement was, and he was unaware how he could get possession of it so that his mind might be informed on the subject. It seemed to him that, if they persevered in their contest and came to a Division, they would expose themselves to some possible very great ulterior difficulty. He hailed the suggestion of the noble Earl opposite as a way out of the difficulty, and as a means of arriving at further knowledge on the important point raised. That point was the legality or illegality of the proposed change. That was the essential and most important point, and he thought the suggestion of the noble Earl was an extremely wise and conciliatory one, and he hoped their Lordships would accept that solution of the question.
§ THE PRIME MINISTER
said, that after that expression of opinion and the expression of opinion of the noble Earl opposite, and in view of the reluctance which he thought they would all feel in making the Debate much longer than it had been, he thought it would be expedient to accept the suggestion of the noble Earl. There was only one point in which he would like to amend it. The noble Earl suggested a Committee 862 entirely composed of lawyers. He had the greatest faith in lawyers, but he thought he should like an equal number of laymen to sit on the Committee.
THE EARL OF ROSEBERY
said, he had the greatest respect for laymen, but surely on a legal question lawyers were almost better.
§ THE PRIME MINISTER
said, there were some constitutional aspects of this important question which would justify some laymen being on the Committee. Perhaps the noble Earl would submit a list of the Committee.
§ Further Debate adjourned sine die.