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. 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.
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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. 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 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 7 QB 38; Bradlaugh v. Clarke 8 Ap. 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. 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. They pleaded to the Jurisdiction that these matters should be inquired into in Parliament and not elsewhere, and their plea was overruled. Hence there should have been two separate judgments. 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 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. This selection c Oxford University Press, Copyright in the individual extracts as listed in the acknowledgments.
Loveland: Constitutional Law, Administrative Law and Human Rights 8e: Online Casebook
It was the importance of this case as to the issues which it raised, and the great dignity of the House of Commons, whose action is in fact questioned in the person of the Serjeant-at-Arms, rather than any difficulty in the legal questions involved, which led me to desire that the judgments pronounced on it should be deliberate. The same reasons lead me to think it fit to express my own judgment separately, though, after reading the judgment of my learned Brother, I feel that the subject is exhausted. The facts and the pleadings which state them have been so fully detailed by my Brother Stephen that I content myself with referring to and adopting as my own that portion of his judgment which details them. These statements raise the question whether, on the assumption that the resolution of the House of Commons forbade a member of the House within the walls of the House itself to do something which by the law of the land he had a right to do, such a resolution is one which the House of Commons has a right to pass; and whether, if it has not, this Court can inquire into the right, and allow an action to be maintained by a member of the House against the officer of the House charged by resolution of the House itself with the execution of its order.
Parliamentary privilege in the United Kingdom
If they misunderstand it, or I apologize for the supposition wilfully disregard it, they resemble mistaken bradlaugj unjust judges; but in either case, there is in my judgment no appeal from their decision. Gossett Related Entries of Bradlaugh V. Bradlaugh V. Gossett Abbott14 East,and, but by an appeal gosdett the constituencies whom the House of Commons represents. Compagnie De Mocambique  A. We should have said that, for the purpose of determining on a right to be exercised within 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 rights to be exercised out of and independently of the House, such as the right of suing for a gossftt for having sat and voted, the statute must be interpreted by this Court independently of the House. What is said or done within the walls of Parliament cannot be inquired into in a court bradlsugh law.
Bradlaugh v Gossett