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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
    1. Stockdale v. Hansard (1839) 9 Ad. & E. 1; 3.St.Tr.(N.s.) 723
    2. Case of the Sheriff of Middlesex (1840) 11 Ad & E 273
    3. Bradlaugh v Gossett (1884) 12 QBD. 271
    4. Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42
    5. R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 1 All ER 195
    6. R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 All ER 93
    7. Hamilton v Al Fayed [1999] 3 All ER 317
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Bradlaugh v Gossett (1884) 12 QBD. 271

STEPHEN J: ... The legal question which this statement of the case appears to me to raise for our decision is this. Suppose that the House of Commons forbids one of its members to do that which an Act of Parliament requires him to do, and in order to enforce its prohibition directs its executive officer to exclude him from the House, by force if necessary is such an order one which we can declare to be void and restrain the executive officer of the House from carrying out? In my opinion, we have no such power. I think that the House of Commons is not subject to the control of Her Majesty's courts in its administration of that part of the statute law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable....

The Parliamentary Oaths Act prescribes the course of proceeding to be followed on the occasion of the election of a Member of Parliament. In order to raise the question now before us, it is necessary to assume that the House of Commons has come to a resolution inconsistent with the Act; for if the resolution and the Act are not inconsistent, the plaintiff has obviously no grievance. We must, of course, face this supposition, and give our decision upon the hypothesis of its truth; but it would be indecent and improper to make the further supposition that the House of Commons deliberately and intentionally defies and breaks the statute law. The more decent, and, I may add, the more natural and probable, supposition is that, for reasons which are not before us, and which we are therefore unable to judge of, the House of Commons considers that there is no inconsistency between the Act and the resolution. The may think there is some implied exception to the Act. They may think that what the plaintiff proposes to do is not in compliance with its directions. With this we have nothing to do: but whatever may be the reasons of the House of Commons for their conduct, it would be impossible for us to do justice without hearing and considering those reasons; but it would be equally impossible for the House, with any regard for its own dignity and independence, to suffer its reasons to be laid before us for that purpose, or to accept our interpretation of law in preference to its own. It seems to follow that the House of Commons has the exclusive power of interpreting the statute so far as the regulation of its own proceedings within its own walls is concerned, and that even if that interpretation should be erroneous this court has no power to interfere with it, directly or indirectly.

This view of the matter is well illustrated by another part of the Act. By section 4, certain persons are permitted to make a declaration or affirmation instead of taking an oath. The question whether this applied to persons permitted....to make a promise instead of taking an oath, arises in the case of the plaintiff himself. It was considered by the House of Commons, and the House took a course which left the interpretation of the enactment to the courts. It permitted the plaintiff to make the declaration, but declared that it did not intend to interfere with his liability to the statutory penalty if he did so. He made the declaration, took his seat accordingly, and was sued for the penalty. Though the proceedings finally terminated in his favour, they established the proposition that section 4 of the Parliamentary Oaths Act did not authorise him in making a statutory declaration in lieu of taking an oath. (See Clarke v. Bradlaugh (1881) 7 QB 38; Bradlaugh v. Clarke (1883 8 Ap. cas 354)). This case appears to me to illustrate exactly the true relation between the House of Commons and this court as regards the interpretation of statutes affecting them, and the effect of their resolutions on our proceedings.

A resolution of the House permitting Mr. Bradlaugh to take his seat on making a statutory declaration would certainly never have been interfered with by this court. lf we had been moved to declare it void and to restrain Mr. Bradlaugh from taking his seat until he had taken the oath, we should undoubtedly have refused to do so. On the other hand, if the House had resolved ever so decidedly that Mr. Bradlaugh was entitled to make the statutory declaration instead of taking the oath, and had attempted by resolution or otherwise to protect him against an action for penalties, it would have been our duty to disregard such resolution, and, if an action for penalties were brought, to hear and determine it according to our own interpretation of the statute. Suppose, again, that the House had taken the view of the statute ultimately arrived at by this court, that is did not enable Mr. Bradlaugh to make the statutory promise, we should certainly not have entertained an application to declare their resolution to be void. We should have said that for the purpose of determining on a right to be exercised in the House itself, and in particular the right of sitting and voting, the House, and the House only, could interpret the statute; but that as regarded right to be exercised out of and independently of the House, such as the right of suing for a penalty for having sat and voted, the statute must be interpreted by this court independently of the House.....

I should in any case feel a reluctance almost invincible to declaring a resolution of the House of Commons to be beyond the powers of the house...Such a declaration would in every case be unnecessary and disrespectful....

I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice. One of the leading authorities on the privilege of Parliament contains matter on this point which shows how careful Parliament has been to avoid even the appearance of countenancing such a doctrine. This is the case of Sir John Elliot, Denzil Hollis and Others, of which a complete history is given in 3 St.Tr. 294-336. In this case the defendants were convicted in 1629, on an information before the Court of King's Bench, for seditious speeches in Parliament, and also for an assault on the Speaker in the chair. They pleaded to the Jurisdiction that these matters should be inquired into in Parliament and not elsewhere, and their plea was overruled. In 1666 this judgment was reversed upon writ of error - one error assigned being that the speaking of the seditious words and the assault on the Speaker were made the subject of one judgment, whereas the seditious speech, if made in Parliament, could not be inquired into out of Parliament, even if the assault upon the Speaker could be tried in the Court of King's Bench. Hence there should have been two separate judgments. This case is the great leading authority, memorable on many grounds for the proposition that nothing said in Parliament by a member as such can be treated as an offence by the ordinary courts; but the House of Lords carefully avoided deciding the question whether the Court of King's Bench could try a member for an assault on the Speaker in the House.....

It is certainly true that a resolution of the House of Commons cannot alter the law. If it were ever necessary to do so, this court would assert this doctrine to the full extent to which it was asserted in Stockdale v Hansard. The statement that the resolution of the House of Commons was illegal must, I think, be assumed to be true, for the purposes of the present case. The demurrer for those purposes admits it. We decide nothing unless we decide that, even if it is illegal in the sense of being opposed to the Parliamentary Oaths Act, it does not entitle the plaintiff to the relief sought. This admission, however, must be regarded as being made for the purposes of argument only. It would, as I have already said, be wrong for us to suggest or assume that the House acted otherwise than in accordance with its own view of the law; and as we know not what that view is, nor by what arguments it is supported, we can give no opinion upon it. I do not say that the resolution of the House is the judgment of a court not subject to our revision, but it has much in common, with such a judgment. The House of Commons is not a court of justice, but the effect of its privilege to regulate its own internal concerns practically invests it with a judicial character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it discharges this function properly and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error by a judge whose decision is not subject to appeal. There is nothing startling in the recognition of the fact that such an error is possible....

Some ... rights are to be exercised out of Parliament, others within the walls of the House of Commons. Those which are to be exercised out of Parliament are under the protection of this court, which, as has been shown in many cases, will apply proper remedies if they are in any way invaded, and will in so doing be bound, not by resolutions of either House of Parliament, but by its own judgment as to the law of the land, of which the privileges of Parliament form a part. Others must be exercised, if at all, within the walls of the House of Commons: and it seems to me that, from the nature of the case, such rights must be dependent upon the resolutions of the House.....

It seems to me that if we were to attempt to erect ourselves into a Court of Appeal from the House of Commons, we should consult neither the public interest, nor the interests of Parliament and the constitution, nor our own dignity. We should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil; and, even upon the most improbable supposition of their acquiescence in our adverse decision, an appeal would lie from that decision to the Court of Appeal, and thence to the House of Lords, which would thus become the judge in the last resort of the powers and privileges of the House of Commons.

For these reasons I am of opinion that there must be judgment for the defendant.