THE UPPER HOUSE AND THE MINISTRY.

New Zealand Herald, Volume XXIX, Issue 8814, 1 March 1892, Page 6

THE UPPER HOUSE AND THE MINISTRY.

3 1 ♦ ' 1 I [BY J. P. CAMPBELL, BARRISTER AND I SOLICITOR.) 5 Considerable discussion has taken place as to tho practice when a conflict occurs ■ between the will of tho House of Commons i and that of the House of Lords. It has been authoritatively stated that English Ministers have repeatedly threatened to swamp the Houso of Lords by tho creation of new peers, and that in a few instances I this ha si been done. If it is meant by this statement thab an English Ministry has at any time prevailed upon the Crown to create a number of peers for the purpose of securing the passage of a particular measure or measures through the House of Lords, the (statement is inaccurate, and can not bo supported by any reference to English history. About one hundred and forty peers wero created or promoted by George 111. during the seventeen years of Pitt's administration, but according to Mr. Pitt, the Crown's prerogative was exercised " for tho reward of merit, to recruit the peerage from tho great landowners and other opulent classes, and to render tho Crown independent of factious combination among existing peers," though doubtless some of them owed their elevation to the parliamentary support which they had given to the Minister, or to their interest in returning members to the House of Commons. So far as I can ascertain twelve is tho greatest number of peers ever created in one day. This was the number made by Queen Anne in one day in the year 1711. Tho object of their creation was to securo a majority in tho Houso of Lords in favour of the Court. In no instance has tho House of Lords been swamped for the purpose of securing the passage of ' certain Bills through the House. This course was threatened in 1832, and during that year 16 i peers were created to assist the progress of i the Reform Bill through the Houso of i Lords, but these were numerically power- ( less to secure its acceptance. Tho threat itself was only made in regard to a groat | measure affecting tho constitution of the , Lower House after the Bill hail been re- (

peatedly passed by the House of Commons, and the will of the nation had been ascertained by a direct reference to the people upon the question in dispute. The history of the measure referred to is shortly as follows :— The Reform Bill was introduced in the

House of Commons on the Ist of March

1831, and was finally agreed to on the 22nd of September by a majority of 109. The debate on the second reading in the House, of Lords commenced on the 4th October, and continued for five evenings, when it was rejected by a majority of 41. On the 20th Parliament was prorogued with a view to its dissolution. Parliament, after a general election, reassembled on the 6th

December, 1831 ; and the Reform Bill was

again introduced on the 12th December, and it passed through the House of Com mons on the 22nd March, 1832. The Bill

was carried to the Houso of Lords, and went into Committee, the second reading having been carried by a majority of nine. On an amendment in i ommittee Ministers were left in a minority of 35, and they thereupon resigned. The Duke of Wellington having unsuccessfully attempted to form an administration the Liberal Government again accepted office after receiving assurance from the Sovereign that power would be placed in their hands to secure the passing of the Reform Bill unmutilated. The Bill was again introduced, passed both Houses, and the Royal assent was given on the 7th of June, 1832.

It has been attempted to bo contended on the ground of this solitary occurrence in English history that the Ministry of the day in this colony isentitlod, if the Legislative Council decline to pass any measures which the Ministry considers of importance, to call upon the Governor to appoint a sufficient number of members to swamp the Council, and render it subservient to the views of the party for the time being in power. As has been pointed out, one result of such a policy would be to create an Upper House with an excessive number of members, each succeeding Ministry holding different views from the preceding one having the privilege of creating a sufficient number of councillors to restore the balance in its own favour.

In the British Constitution, it may be admitted, in the words of Professor Dicey, that there is "a vague understanding" that in case of a permanent conflict between the will of the House of Commons and the will of the House of Lords, the

Peers must at some point give way to the House of Commons. The understanding is vague, and is frequently disregarded because the will of the nation is often not clearly expressed, and further is liable to variation. When such an understanding has been observed, the conflict has been one of a permanent nature, and the measure which has been ultimately passed has been prominently prought before the country and approved by a large majority of the constituencies. The House of Lords, between the years 1834 and 1840, repeatedly and successfully opposed Ministerial measures which had passed the House of Commons. In 1835 and 1836 the Commons maintained that the principle of appropriating surplus revenues of the Irish Church was essential to the settlement of the question of Irish tithes. The Lords, by determined resistance, obliged the Ministry and the Commons definitely to abandon the principle. Further, the Lords made amendments in the English Municipal Reform Bill, which the Commons were reluctantly compelled to accept. They dealt with Bills for the reform of the Irish Corporations with the like freedom and success. For four sessions the amendments of the Lords, wholly inconsistent as they were with the principles of legislation asserted by the Commons, forced the latter to accept amendments repugnant to the policy for which they had been contending.

The whole scope and tenor of parliamentary history shows that there is no ground for the contention that the Ministry of the day is constitutionally entitled to call upon the Governor to appoint members to the legislative Council to carry particular Ministerial measures through the Upper House. In the debates which have taken place on this subject in the House of Lords, Lord Lynrlhurst came nearest the expression of such a principle, but he states it with certain reservations and limitations which largely nullify its efTect. In the deI bate on the second reading of the Oaths Bill, in 1858, he said, in his place in the House of Lords:—"lt is part of our duty to originate legislation ; but it is also a most important part of our duty to check the inconsiderate, rash, hasty, and undigested legislation of the j other House, and to f/ire time for con-

Moderation and for convdtiny or perhaps modi

fyin'j the opinion* of the. constituencies ; but I nevor understood, nor could such a prinI ciplo bo acted upon, that we were to make I a firm, determined, persevering stand I against the opinion of the other House of Parliament when that, opinion i* bucked by the opin.on of the people, and least of all on questions affecting in a certain degree the constitution of that House and popular rights." Limited to the above effect, Lord Lyndhurst's enunciation of the principle corresponds with " the vague under standing "of l'rofe3Sor Dicey. Without such it would be better altogether to abolish the Upper House than to reduce its position to that of an expensive and cumbersome machine for recording the decrees of the House of Representatives. Auckland, February 29, 1892.