THE PRIVILEGE QUESTION.

New Zealand Times, Volume XXXII, Issue 5196, 16 November 1877, Page 6

THE PRIVILEGE QUESTION.

The following correspondence in - relation to the above question was laid on the table of the House on Thursday evening, Nov. Bth : MESSAGE. The Governor regrets that he is unable to give a definite reply to the address presented to him by the House of Representatives announcing the concurrence of the House in the report of a select committee appointed to search for precedents, and to report to the House in relation to the question of privilege raised by Mr. Stout, “ That the action of his Excellency the Governor, in noticing a matter in agitation or debate in the House as a reason for refusing to accede to advice tendered by his Ministers, was an infringement of the privileges of the House,” because, in the course of a correspon-, deuce which has taken place between himself and the Government, which correspondence he now presents to Parliament, a question of constitutional law has arisen, which the Governor considers it is absolutely necessary should be submitted for the consideration of the Secretary of State for the Colonies before he can take upon himself to accept the resolution passed by the House of Representatives. The Governor begs to assure the House that he does this out of no disrespect to their decision, but simply iu defence of what he believes to be a most important constitutional principle. If the Governor should be wrong in the conclusion he has formed, he can assure the House that nothing was farther from his intention than in anyway to trenchupoa their privileges. Wellington, Sth November, 1577. His Excellency the Governor to the Hon. Sir George Grey, K.C.B. The Governor presents his compliments to Sir George Grey, and requests that he will have the goodness to lay the accompanying message before the House at the earliest opportunity. Sth November, 1877. MESSAGE. The Governor acknowledges the receipt of an address from the House of Representatives announcing the concurrence of the House in the report of a select committee appointed to search for precedents, and to report the House ,in relation to the question of privilege raised by Mr. Stout, 41 That the action of his Excellency the Governor, iu noticing a matter iu agitation iu debate in the House as a reason for refusing to accede to advice tendered by his Ministers, was an infringement of the privileges of the House.” The Governor begs to inform the House that he has forwarded the same to his constitutional advisers, and that as soon as he has received the advice of his Ministers he will forward his reply to the House of Representatives. Government House, Wellington, sth November, 1877. His Excellency the Governor to the Hon. Sir Geoege Grey, X.C.B. The Governor requests that Ministers will forward to him their advice as to the answer which he should return to the enclosed address from the House of Representatives. The Governor is sure that he need not point out to the Government that it is desirable that the reply should be given with as little delay as possible. Government House, Wellington, sth November, 1877. Address from the House of Representatives to ' his Excellency the Most Honorable the Marquis of Normanby, a member of her Majesty’s Most Honorable Privy Council, Knight Commander of the Most Distinguished Order "of Saint Michael and Saint George, Governor of New Zealand, &c., &c., &c. May it please your Excellency,—The House of Representatives of New Zealand, in Parliament assembled, desire respectfully to acquaint your Excellency that, having taken into their consideration a memorandum of your Excellency, dated the 27th day of October ultimo, in reference to the appointment of Mr. J. N. Wilson to the Legislative Council, and which memorandum was communicated to the House on the 31st day of October ultimo, by your Excellency’s command, they have agreed to the following resolution, which they desire may be communicated to your Excellency 44 That the action of his Excellency the Governor, iu noticing a matter in agitation or debate in the House as the reason for refusing to accede to advice tendered by his Ministers, was an infringement of the privileges of the House.” William Eitzherbert, Sth November, 1877. Speaker. The Hon. Sir Geobge Grey, K.C.8., to his Excellency the Governor. Ministers respectfully advise his Excellency the Governor to return the following answer to the address from the House o'f Representatives : 44 The Governor, from a resolution transmitted to him in an address from the House of Representatives, learns that he has infringed the privileges of that branch of the Legislature. The Governor trusts that, from his unintentional act, and his proceedings in relation thereto, the benefit may result that a precedent will have been established which may be useful in future.” G. Grey. sth November, 1877. His Excellency the Governor to the Hon. Sir George Grey, K.C.B. The Governor has received the memorandum in which Sir George Grey, on the part of the Government, tenders to him their advice as to the answer which he should give to the address from the House of Representatives; and the Governor must request that the Government will reconsider that advice, for the following reasons, viz.— 1. That constitutionally it is the Government, and not the Governor, who are solely responsible to Parliament for the acts of the Governor. 2. That, if the memorandum of the Governor to his Ministers on the subject of the appointment of Mr. Wilson to the Legislative Council did contain any breach of privilege, it was iu the first instance a strictly secret and confidential communication between the Governor and his constitutional advisers, and, if they saw that the Governor had unintentionally in any way infringed upon the privilege of the House, it was their duty, under the oath which they took as Executive Councillors, to have pointed out the fact to the Governor, when he would most readily have reconsidered the answer which he had given. 3. That-the presentation of the paper was done solely on the advice in writing of Sir George Grey, and that therefore Ministers are solely responsible. Normanby. Government House, Wellington, Nov. 5, 1877. ' Memorandum from the Hon. Sir George Grey, K.C.8., to his Excellency the Governor. . ■ Ministers respectfully acknowledge tho receipt of his Excellency’s memorandum of last night. The points raised in it are of such impirtance as to require the most careful consideration upon their part, and they are, therefore, unable immediately to tender advice to his Excellency upon the subject! Ministers will, however, take care that no unnecessary delay occurs in bestowing that attention. upon the Governor’s memorandum which its importance demands. 6. Grey. Wellington, Nov. 6, 1877. Memorandum from the Hon, Sir George Grey, K. 0.8., to his Excellency the Governor. His Excellency having asked Ministers for a reply to his memorandum relative to the advice they offered to him, as to his answer to. the resolution of tho House of Representatives, Ministers beg respectfully to state, — 1. That they admit their responsibility for his Excellency’s acts when done on their advice. 2. That out of respect for his Excellency they refrained from offering him any. further advice when he had twice rejected that which they had given him ; but they do not think that in refraining from doing so they com-'

mitted any breach of the oath which they took on entering office as Executive Councillors ; and they feel sure that on a re-perusal of that oath his Excellency will modify his opinion on that point. 3. They admit and accept the responsibility of laying the papers before Parliament, but beo- respectfully to point out that the resolution of the House does not t-ay that that proceeding was a breach of its privileges. Ministers are however unwilling to press his Excellency to accept advice upon a matter of this kind with which he does not fully concur; and therefore they respectfully beg to advise that the enclosed message be substituted for that previously sent to him. G. Grey. Wellington, Nov. 7, 1877. ENCLOSURE. The Governor has received the resolution of the House of Representatives, by which lie is informed that he has inadvertently committed a breach of the privileges of that House. The House is constitutionally the guardian of its own privileges. The Governor having now called-Mr. Wilson to the Legislative Council, in accordance with his promise to his advisers, he does not think it will answer any useful purpose to discuss the question any further, but he will transmit the papers to the Secretary of State for the Colonies. Memorandum from His Excellency the Governor to the Hon. Sir George Grey, K. 0.8. The Governor acknowledges the receipt of Sir George Grey’s further memorandum of this day’s date, and he is glad to learn that the Government agree with him, and admit their constitutional responsibility to Parliament for the acts of the Governor when done on their advice. The Governor, however, cannot admit that their - responsibility should be so limited, because, if the act of the Governor is such that the Government cannot accept or defend it, it is their duty to resign, iu order that the Governor may be able, if he can, to form a Government who would support ins views, in which case he would have of course to justify his conduct to the Secretary of State, to whom he is aloue responsible. In this present instance the Government, and the Governor thinks rightly, did not consider that his refusal to appoint Mr. Wilson to the Legislative Council was a matter of sufficient importance to induce them to resign, and thereby they accepted his decision, and became responsible for his act, and the whole question should have then ended, or they should have further pressed their advice upon him. Neither can the Governor modify the view which he has expressed-—-that the Government were, by the oath which they took as Executive Councillors, bound, when they saw that he had unintentionally given reasons which might he construed into a breach of privilege, to have pointed out the facts to him. The appointment or non-appointment of Mr. Wilson was one thing, and totally different to the question as to whether the Governorhad unintentionally infringed the privileges of the House.

The Governor has for too many years held a seat in one branch or other of the British Parliament to wish for one moment to infringe upon the privileges of the House of Representatives ; and, could he admit that he is the person responsible to Parliament, he would not for one moment hesitate to express his regret that most unintentionally he had infringed their privileges. The Governor, however, considers that the constitutional principle for which he con tends—viz., 44 That Ministers, so long as they retain office, are alone responsible to Parliament for the acts of the Governor”—is of such vital importance to the future good government of the colony, and for the position held by her Majesty’s representative, that he feels that he would be recreant to his duty, and utterly unworthy of the position which he holds, if he permitted the question to drop, and did not try, to the utmost of his power, to have the matter finally and definitely settled. The question of privilege is now no longer a matter 44 in agitation or debate” in the Hou-e. The Governor has been informed officially by the Hon. the Speaker of the decision of the House, and the official reports of the House are officially before him. He can therefore now refer to the matter in his communications with bis Ministers, without any fear of committing a breach of privilege. The absolute responsibility of Ministers to Parliament for the acts of a Governor is a, question which has so often been decided, and is so well understood in England, that the Governor did not expect to find it. disputed. The necessity and justice of this rule is obvious. In working out mathematical problems it is not unusual to demonstrate the point by showing the absurdity of any other conclusion, and the Governor -would venture in this case to prove- his point in that way. As an illustration he will take the case which has just occurred. The Governor refused the advice of Ministers to appoint Mr. Wilson to the Legislative Council. By his instructions, and according to numerous precedents, he had a perfect right to take that course. The Government, as he thinks rightly, did not consider it a case of sufficient importance to necessitate their resignation, and there the matter would have ended. The Governor was not obliged to give any reasons to his Ministers for the course he had taken, but he thought it more honest and more respectful to them to do so. Unfortunately, in so doing, he used expressions which were afterwards construed into a breach of privilege. The Government either did or did not see this. The Governor is perfectly ready to assume that they did not, as he should be very sorry indeed to impute to them auy intention of entrapping him; at the same time the Government must have had some reasons for wishing for the production of the papers, and so little did the Governor see any public necessity for it, that he was on the point of refusing his consent, and only refrained from doing so because he did not like for the second time to refuse their advice. The papers were laid on the table of the House, and immediately the question of privilege was raised.

The Governor, by the privilege of the House, was not supposed to knew what was going on. He had no voice in . the House. He was not in any way allowed to explain his conduct, or to produce evidence or precedent in his favor. He could not employ counsel ; and the Government, by whose advice the papers were published, and who are his constitutional defenders in tho House, either took’ part against him, or remained in silence and refused him their assistance.

The Governor was condemned unheard, and an address was presented to him by tho House expressing its disapproval of what he had done. A criminal, on the other hand, no matter what crimes he may have committed, is, in tho first place, by the English law presumed to be innocent. He is brought face, to face with his accusers. He is present at his trial. He may produce evidence of his innocence, and employ counsel ; and even before sentence is passed he is permitted to urge any reasons that he may think fit in mitigation of his sentence.

The Governor would ask whether these two cases do not prove incontestably the absolute necessity for the constitutional rule which the Governor contends does exist, viz., 44 That it is the Government, and not the Governor, who must, so long as they remain his advisers, be solely responsible to Parliament for his acts.” Is it not absurd to contend that her Majesty’s representative should be condemned unheard, and that he should be put, as to his defence, in a more unfavorable position than that in which the,worst criminal in the colony could possibly be placed? This question as to , tho extent to which Government are responsible to Parliament for the acts of; the Governor is one which cannot possibly be decided in the, colony. The Governor has, therefore, decided to forward, the whole case for the consideration and decision of the Secretary of State for the Colonies, by whose decision he is bound to abide; and he will have much pleasure in forwarding, at tho same time, any representations that the Government may wish to make. If tho Governor has urged his caso s6mewhat strongly, he begs that Sir George Grey will clearly understand that he looks upon it simply as a political and not a personal question, which he is bound to press to tho best of

hi* ability, though, he trusts, without the slightest exaggeration. As regards the answer to the House of Representatives, the Governor proposes to send a message something to the effect of the one he encloses. In conclusion, the Governor would wish to state that, in reply to a telegram from himself, : he has heard from Sir Hercules Robinson that a precedent, which appears very nearly similar, did occur to Lord Belmore, and that his action was approved of by the Secretary of State. The Governor wishes to place no stress upon this information, as he lias not been able to find the case, and does not know how far it may be parallel; but it is his intention, if the case has been published, to request Sir Hercules Robinson to furnish him with a copy as soon as possible. Normanby. P.S. —Unless the Governor hears that Sir George Grey wishes to make any further remarks, the Governor proposes to send his message to the House of Representatives this evening. N. Government House, Wellington, November S, 1877. Memorandum for his Excellency. Ministers respectfully represent to the Governor that the questions which they have had to consider were—Can the Governor, finding that a notice of a vote of want of confidence in the Government has been given, decline to take the advice of his responsible advisers on the ground that such a vote is pending ; and was he justified in holding that he could not accept their advice until the decision of the Assembly on that vote had been given ? If such is the constitutional law, nothing is necessary but to raise successive votes of want of confidence in the Government to enable the Governor to act for long periods of time without responsible advisers. , Ministers respectfully state that they cannot admit that the Governor is responsible to the Secretary of State in this matter ; nor can they admit that the question, as to the extent to which Government are responsible to the Assembly for the acts of the Governor, is one which cannot be decided in Now Zealand. On the contrary, they feel it to be their duty respectfully to protest against the points at issue being decided anywhere else. Unless the consent of the General Assembly is obtained to the referenceof those points to some external authority, the Secretary of State for the Colonies is also, in their opinion, for such a purpose, an authority unknown to the Constitution of New Zealand,.

Ministers would respectfully solicit the attention of the Governor to the 32nd section of the Constitution Act, from which it will be found that the words 44 General Assembly ” comprise his Excellency the Governor himself, who is by law a constitutional part of that body. Ministers respectfully add that they have already advised his Excellency regarding the -message they think he should return to the address of the House of Representatives, and they have nothing to add to that advice. G. Grey. Wellington, Sth November, 1877.

Memorandum from His Excellency the Governor to the Hon. Sir George Grey, K. 0.8.

The Governor acknowledges the receipt of Sir George Grey’s further memorandum of this day’s date, and he would point out that the Secretary of State is the only constitutional channel though whom the commands of the Crown are conveyed, and who is responsible to the British Parliament for the advice hei may give to her Majesty ; and as the Governor, at any rate, feels bound to obey the command of her Majesty, whom he has the honor to represent in this colony, he still maintains that it is his duty to submit this case for the consideration of the Secretary of State. The Governor has referred to the 32nd section of the Constitution Act, to which Sir George Grey has called his attention, and he would point out that it simply places the Governor, as her Majesty’s representative, in exactly the same position as regards the Parliament of New Zealand, as that which is held by the Queen as regards the Parliament of England. The Governor must adhere to the determination which he has announced to the Government, and will lay the whole correspondence before Parliament this evening ; and by next mail he will forward the whole case for the consideration of the Secretary of State for the Colonies.

Normanby, Government House, Wellington, Sth November, 1877.

In an admirable article upon this question the Canterbury Press says;— 44 The right conclusion was that suggested by Mr. Harper. There is ground for maintaining that the public notification of his Excellency’s reference to the pending motion was a breach of privilege. The fact that the Governor had declined to call Mr. Wilson to the Council till the no-confidence motion was disposed of, might be construed as an indication of his Excellency's opinion, which might pos.ibly have some political influence. So far it must be allowed that tho publication of the memoranda was at all events inexpedient. But on this point the Governor is quite clear from blame. Eor the papers show that the memoranda were laid before the Assembly in compliance with the express advice of Ministers themselves. 4 His Excellency the Governor,’ writes Sir G. Grey, 4 is respectfully advised to command that the enclosed memoranda [the three subsequently sent down] may be laid before both Houses of the General Assembly.’ Eor the only part in tho whole transaction, then, which may be thought to infringe on the privileges of Parliament, Ministers are responsible. If any broach of privilege was committed at all, it was committed by Sir G. Grey. 14 The resolution adopted by tho House overlooks the one essential consideration. It needs no select committee of the Hou-e of Representatives, headed by the Speaker, to tell us that tho Sovereign is not constitutionally free to take notice of any matter under debate in Parliament. Everyone knows that. But what everyone, except Mr. Speaker and the committee —or tho majority of them—also knows is, that tho rule does not apply to communications between the Sovereign and his responsible advisers. The committee’s own report shows that they were unable to discover any precedent or maxim which can by any straining be made in the slightest degree capable of bearing out their conclusion. They quote but two instances since the system of responsible government was established, and neither of them is nt all in point, One occurred in 1757, when the King, iu a message to the House of Commons, took notice of what was said the clay before by a member in his place ; which 4 was much excepted to in the House, being conceived that it might affect (although not so intended) the . privilege of ' the House with regard to freedom of speech in their debates and proceedings.’ The other instance is a resolution of the House of Commons in 1783, 4 that to report any opinion or pretended opinion, of his Majesty upon any Bill or other proceeding depending in either House of Parliament, with a view to influence the votes of members, is a high crime and a misdemeanor.’ The committee also quote from 1 Hatsell on Precedents ’ that 4 of the separate branches of the Legislature neither should encroach upon the other or interfere in any matter depending before them,' so as toi preclude, or even influence, that freedom of debate, or of action, which is essential to n free Council.’ But what has all this to do with the matter in hand ? The Governor'has committed none of these offences. : He has not sent down a message reflecting on a member’s speech; nor has any opinion or pretended opinion of his been reported with a view, to influence votes ; nor has he interfered with either branch of the Legislature so ns to'preclude its freedom of. debate or action. Tho 4 precedents, records of Parliament, and writers on constitutional history, passim,’ bn which the committee rely, have no bearing whatever on the case before them. They show that the Crown cannot constitutionally interfere with the debates or proceeding in Parliament; but there is! nothing whatever in them to for--bid the Sovereign from referring to its debates

or proceedings when iu consultation with his responsible advisers. • 44 In what possible way could the Governor’s refusal to make a certain appointment pending the motion of no confidence affect the privileges of the House ? He did not in any respect interfere with its freedom of debate or influence its decision! The House knew nothing of what had passed, and would never have known anything, had not Ministers themselves chosen to make it public. And as between the Governor and Ministers, he has an unquestionable right both to know and to act on what is taking place in Parliament. Everyone of common sense will see that Ministers must be in continual communication with the Crown upon what is being done in Parliament, and that the Ministerial advice, and consequently the action of the Sovereign, must be as continually guided by a foreknowledge of the intention or wish of the Legislature. It •is a thing that happens constantly. How often in the House of Commons a member gives notice that on such-and-such a day be shall move for the production of certain papers. The day comes, and, before the motion is moved, the papers are. laid on the table by command. Will any one say that the Crown’s permission to produce the papers, given with direct reference to a pending motion, is a breach of privilege ? It would be easy to quote many instances in which action has been taken by the Crown, under the advice of Ministers, in consequence of something pending in the House of Commons. The notion that the Sovereign is, or must appear, literally ignorant of all Parliamentary proceedings, until officially informed by address or otherwise, is in these days quite given up. A remarkable instance occurred not long ago. In the course of tho debate on the Imperial Titles Bill, Mr. Lowe, attacking Mr. Disraeli, referred to the very different advice upon the subject which he said the Queen had received from former Ministers. Mr. Disraeli,' in his reply, informed the House that be had been furnished by her Majesty with a statement which she desired him to make upon the matter referred to. He did so, her Majesty’s statement completely refuting Mr. Lowe, who thereupon withdrew and apologised for his remarks. No one affected to bo shocked by this proceeding. A question was raised whether Mr. Disraeli could be allowed thus to introduce the Queen into the discussion, and on tills point the Speaker ruled him in order. But no one dreamt that the cognisance thus displayed by the Crown of what passed in debate was a breach of privilege. The House of Commons of course understood that her Majesty had received the information from her Ministers, and recognised the constitutional propriety of her being informed by them of whatever it was desirable that she should know. ■ 44 The whole affair is not worth the time that has been spent upondt. It was evidently got up by Sir G. Grey for a party purpose. On receiving the first intimation (which appears to have been given privately) of the Governor's views, be saw how they might be worked into a means of eluding the no-confidence motion. He accordingly first forced his Excellency into a correspondence, and then brought it before the House in such a manner as would enable his friends to raise a question of privilege. His object evidently was to draw the attention of the House to a new issue, under cover of which he might quit office, apparently of, his own will, and in circumstances that would add to his prestige, rather than be turned out by a vote of want of confidence. However, as it happens, the privilege question is . not needed ’ for this end. The expected defeat has been: eluded by other means. Unless, therefore, their personal animosity against the Governor induces Sir G. Grey or Mr. Stout to keep it alive, the House will probably hear no more of the alleged infringement of its privileges. The agitation has served its turn, and, as its promoters have nothing now to gain by it, they will be very willing to let it drop.”

The following additional information is from the same source :— 44 1 f, for instance, during a discussion in Parliament the Governor were to send down a message referring to it, or if upon any public occasion he took, the opportunity of expressing bis sentiments upon some matter then before the House, he would infringe upon the freedom of, debate, and therefore be guilty of a breach of the privilege of Parliament. But the present case is quite different. It is not a matter between tho Governor and the House, directly or indirectly. He has made no communication to the House itself, nor has he made use of any public occasion to influence it indirectly by bis remarks. It is a matter solely and simply between the Governor and his responsible advisers. And as far as his communications with them are concerned, it is a recognised fact that he knows all about the proceedings of the House. It is part of their official duty to keep him punctually informed of all that goes on. In England the Prime .Minister is personally charged with the responsibility of laying before her Majesty a precis of all that takes place in Parliament from day to day, and to maintain a constant correspondence with her as to the bearing of the events which are thus narrated. Less than this, it will easily be seen, would not suffice to enable the Crown to take the part which all constitutional writers are agreed to assign to it in carrying on the government of the country. We do not know exactly how things are managed in New Zealand. But as .the same necessity exists, we presume that some similar means are resorted to here also. Anyhow it cannot be doubted that Ministers take sufficient care to keep the Governor thoroughly aware of all that is going forward in both Houses of the Assembly. Eor what purpose then is all this done ? Is it not an obvious conclusion that when the 'Governor and his Ministers are discussing public affa'rs together, the Governor is to make use of his knowledge just in the same way that they do ? Is he not fully at liberty to know and act upon the daily facts of which it is their duty to keep him advised ? 44 Let us put the case another way. Suppose a member of the House of Representatives to be guilty of some notoriously disgraceful conduct —say, accepting bribes—and a motion for his expulsion to have been brought forward and' to be on the eve of being carried. Suppose him to he a partizan of the Government, and that the Premier,' anxious to save his friend, recommends him for some important promotion. Will it be really contended that it is tho Governor’s duty, upon receiving the recommendation, to ignore tho culprit's antecedents, and to give him the appointment asked for? Or is it his duty to act upon bis knowledge, only being careful to keep to himself the grounds upon which he acta ? May ho know what is going on, provided that ho takes care not to say that he knows it ? Certainly this is not a refinement which the public would be apt to . understand. . They Would declare the Governpr perfectly right in refusing to lend himself, to such a transaction. Would it not be the height of absurdity to'object to such' a refusal on the ground that it betrayed an improper cognisance of what was passing in the House, and involved a breach of the privileges of Parliament ?

41 Tho truth is, a very unnecessary fuss lias been made about a very trifling matter. It is impossible to say seriously that the Governor has interfered with the privileges of tbe Legislature. , All that he has done is to decline to do something until it was certain that they would approve of it. Mi 4 ,'Wilson would have been, appointed directly if it 'had appeared that thpse who recommended him ' ’po3scSsed| the confidence of the House.’ How the mere expression of the Governor’s wish to wait until he had ascertained that fact could be construed into even an inadvertent violation of Parliamentary privilege is ! a question which, when our .legislators come to'look at it coolly, they will bt at a loss themselves to understand.”