Privilege with respect to membership of the House
12.8It is a privilege of the House of Commons to provide for its own proper constitution, such as entitlements to sit in the House, or the issue of writs, although in practice this privilege has been significantly constrained by the encroachments of statute law, as described below.
The origins of this privilege are to be found in the sixteenth century. In 1515, Henry VIII transferred to the Speaker, acting for the House, the authority to license Members to depart before the end of the session.1 Though much was to flow from the elaboration of this principle, the transfer of substantial authority was delayed. In 1536, the King authorised Thomas Cromwell to continue to sit in the Commons though he had been elevated to the peerage before the session began.2 Thereafter, however, the House steadily advanced its claims to consider qualifications for membership. In 1571, a select committee approved returns from boroughs which had not elected Members to the previous Parliament, though only eight years previously such action had required the agreement of the Lord Steward.3 In 1576, the House determined the vexed questions of whether a Member who was also Queen's Serjeant should take his seat in the Commons or act as an official assistant in the Lords and similar issues concerning those ill, or abroad on official duty, or peers' sons.4 At the same period, general rules were laid down by the House on the right to continue to sit of those who were arrested for debt, indicted for felony or even outlawed.5 In the 1580s, Chancery began to issue writs for new elections only when notified by the House of a vacancy,6 and for the first time the House decided the outcome of a disputed election.7 In 1593, the scrutiny of elections and returns was entrusted to the Committee of Privileges which (leaving aside the appointment of ad hoc bodies in previous sessions) had first been set up in 1584–85.8
In the following reign, however, events were to show that much disputed ground remained, particularly as the Buckinghamshire election dispute of 1604, in which an attempt was made by Chancery to unseat a Member because of his technical outlawry, ended in a compromise. The exclusive right of the Commons to determine the legality of returns and the conduct of returning officers was not recognised by the courts until the case of Barnardiston v Soame in 16749 upheld by the House of Lords in 168910 and by other contemporary cases.11 The Commons' jurisdiction in determining the right of election was further acknowledged by the Parliamentary Elections (Returns) Act 1695.12 But in regard to the right of electors, the cases of Ashby v White and R v Paty13 led the House of Lords to draw a distinction between the right of electors and the right of the elected, the one being a freehold by common law, and the other a temporary right to a place in Parliament.14 In the eighteenth century, however, the Commons continued to exercise the sole right of determining whether electors had the right to vote,15 while inquiring into the conflicting claims of candidates for seats in Parliament; until, in 1868, the House delegated its judicature in controverted elections to the courts of law, retaining its jurisdiction over cases not otherwise provided for by statute.
Whenever a doubt arises as to the qualification of any of its Members, the House also has the right to inquire into the matter and decide whether a new writ ought to be issued.16
- 1. 6 Hen 8, c 16.
- 2. G R Elton The Tudor Constitution (1982), p 264.
- 3. CJ (1547–1628) 63, 83 and G R Elton The Parliament of England, 1559–81 (1986), pp 338–40.
- 4. CJ (1547–1628) 106; see also ibid 15, 104.
- 5. CJ (1547–1628) 104, 118, 122, 124.
- 6. CJ (1547–1628) 118; D'Ewes 283.
- 7. D'Ewes 244, 395–400. See also D Hirst ‘Elections and Privileges of the House of Commons’ in Historical Journal (1975) vol 18, p 851.
- 8. M F Keeler ‘The Emergence of Standing Committees for Privileges and Returns’ in Parliamentary History (1982) vol 1, pp 25–46; D'Ewes 349, 471.
- 9. See para 16.2 for a description of the case.
- 10. 6 State Tr 1092; Barnardiston v Soame (1674) 86 ER 615; and LJ (1685–90) 253.
- 11. Onslow's case (1680) 86 ER 294 and Prideaux v Morris (1661) 87 ER 1065.
- 12. 7 & 8 Will 3, c 7.
- 13. For description, see para 16.2.
- 14. See 3 Hatsell, App 1, a report of the Conferences between the Houses in Ashby v White.
- 15. For example, CJ (1766–68) 211, 229, 279, 293.
- 16. Particularly in the eighteenth century, Members who held or had accepted offices of profit under the Crown which might possibly involve the vacation of their seats used to bring their cases before the House itself with a view to securing its decision, and in more recent times the matter was usually referred to a select committee. Since the passing of the House of Commons Disqualification Act 1957 (since replaced by the 1975 Act), no case has arisen, though the House has used its statutory power to direct that a particular disqualification should be disregarded (see para 3.23 ). Whichever way the House might proceed, the decision would be entirely within its hands, and there would, of course, be no question of an appeal to a court of law.