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Lyttelton Times, Volume LI, Issue 5719, 25 June 1879, Page 4

A question of general importance has arisen oat of a case, Regina v. Kinross, which has been brought before the Resident Magistrate at Wellington. All that we wish at present to do is to call attention to a collateral question which it has brought to light, affecting the alleged privilege of the two Houses of our Parliament and the administration of justice. In order to make the question intelligible to our readers, we first give a short summary of its leading features. Mr Kinross, a merchant at Napier, is charged by a Native chief with having committed perjury in sworn evidence given in 1871 before a Select Committee of the Legislative Council, in reference to certain transactions in the purchase of Native lands at Hawfces’ Bay. It is necessary to prove the evidence given before that Committee, and that Mr Kinross before he gave it had been duly sworn. The Clerk of the Legislative Council was called to produce the journals of the Council and to give evidence. The Hon. Mr Mantell, M.L.0.,wh0 had been a member of the Committee, was also called for the purpose of proving the administration of the oath. Mr Stowe declined to give evidence on the ground that he had not received permission to do so, and produced the Standing Orders of the Legislative Council and the Parliamentary Privileges Act of 1865, as a justification for his refusal. Mr Mantell, who also refused to give evidence without the permission of the Council, quoted, as we understand, a passage from May’s Parliamentary Practice, showing that such permission in England, either from the House of Lords or the House of Oommons as the case may be, is necessary. The Standing Order, to which we wish to direct attention, is to the effect that no officer of the Legislative Council, nor clerk of Committee, nor shorthand reporter, shall give evidence elsewhere respecting any proceedings before a Select Committee or at the Bar without the leave of the Council. This Standing Order is made under the alleged authority of the Parliamentary Privileges Act of 1865, which gives the Legislative Council and the House of Representatives respectively the privileges of the House of Commons at that time. It is said that the House of Oommons has passed a similar resolution or Standing Order. In order that our readers may understand the nature of Standing Orders and the way in which they are made, we must explain that their general object is to preserve order and regularity in the proceedings of each House, and in the conduct of its relations towards the other House, the Governor and the public. Standing Orders in each House are made by resolution ol that House. At present, as we shall show, the practice in reference thereto is uncertain and unsatisfactory. But originally that was not the case, for the Constitution Act of 1852 specified precisely the object and effect of Standing Orders, and carefully prescribed the mode by which those Orders could be brought into force. The fifty-second section of that Act empowered each House to prepare and adopt such standing rules aud orders as it should think best adapted “ for the orderly conduct of the business ” and for the manner in which the House “ shall be presided over in case of the absence of the Speaker,” and for the mode in which the Council and the House “shall confer, correspond and communicate with each other relative to votes or Bills passed by or pending in such Council and House respectively,” and for the manner in which “ notices of Bills, resolutions, and other business intended to be submitted to such Council and House respectively, at any session thereof, may be published in the Government Gazette or otherwise, for general information, and also “ for the proper framing, entitling and numbering of the Bills to be introduced into and passed by the said Council and House of Representatives.” All these rules and orders were required to be laid before the Governor and to bo approved by him before they could come into force, and were subject to the confirmation or disallowance of Her Majesty. Another moat important proviso is in that fifty-second section, enacting “ that no such rule or order shall be of force to subject any person not being a member or officer of the Council or House to which it relates, to any pain, penalty, or forfeiture.” We see how cautious the framers of our Constitution Act were in giving authority to make Standing Orders, which differ from laws in their passing in the very important particular that the concurrence of both Houses is not essential to their validity. The purposes for

which the Orders were to bo framed were particularly specified. The approval of the Governor, that is to say under responsible government, the approval of the Ministry representing the Colony, was made necessary. And, further, no person, not a member or an officer of the House concerned could be subjected by these Orders to any pain, penalty, or forfeiture. The Parliamentary Privileges Act of 1865 repealed this fifty-second section of the Oonstition Act, and generally invested each House with the privileges of the House of Oommons. Under cover of those privileges, which, resting as they do on tradition and usage, are necessarily vague and often inapplicable to present times, the power of making Standing Orders by a mere resolution of the one House, and to any purport, is claimed aud exercised. The Privileges Act specifies no particular purposes, subjects the Standing Orders to no supervision or check, and does not confine their penal effect to parliamentary officers alone.

Wo dow come to the individual Standing Order to which we have referred. It is put forward as a bar to the power of the Law Courts in the Colony taking evidence of officers or temporary servants of the Legislative Council on matters taking, place before the Legislative Council or one of its Committees, unless the Council first gives leave, even though those matters involve a charge of perjury. The same exemption could be claimed on a charge for forgery, if forged documents were given in evidence to the Council or its Com- ' mittee*. ,We will not, at present, argue as to thU particular Standing Order. But the general matter gives rise to a serious constitutional question affecting the rights and liberties of the people at large. If one House of Parliament—we care not whether it is part of the Imperial or a Colonial Parliament—can by its own naked resolution pass a Standing Order rendering, in certain cases, prosecutions for perjury or forgery questions permissive at the discretion of a majority in that House, where is the line to be drawn ? If one House can oust the jurisdiction of Courts of Justice in matters in which its members or officers can give evidence, that House could equally, well oust the jurisdiction of Courts of justice, in which the members or officers were not witnesses, but principals. A House could, by a mere resolution—passed by a majority of one, and which nobody except the Council or the whole Parliament could abrogate—exempt all its members and officers from all civil and criminal law. We defy anyone to show us an essential difference in principle between the two cases. We totally deny the constitutional right of anyone House, or of the Sovereign, individually, by a mere resolution to alter the law of the land, or to control the powers of Courts of Justice. We deliberately say that if such a principle were generally and permanently recognised, Magna Charta and the Bill of Rights are not worth the parchment or paper on which they are written. It would be giving to each House by itself that power of dispensation, the asserted claim to which cost James the Second the English Throne. If the present law has been so framed as to give to either House a shadow of such claim, we trust that the first opportunity may be taken of rectifying the error.