The Constitutional Crisis in England
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between constitutional and other laws that scarcely any one seems to have raised the question whether the prerogative of the popular branch with reference to money bills carries with it, by implication, the right to ex clufi've jurisdiction over constitutional meas ures dealing with fiscal matters. Those who have defended the right of the Lords to inter vene in the present case have never, to our knowledge, argued from precedent that the Lords might have something to say about money bills when important constitutional matters are involved. Some approach was made to this principle in the arguments of Unionist peers. And many have aflirmed the familiar principle, long established by a standing order of the House of Lords, that no measure of general legislation shall be tacked to a money bill. But none seems either to have aflirmed or denied the principle that a money bill itself, without “riders," canbe rejected if it involves a constitutional ques tion. Thus Lord Avebury (Sir John Lub bock) in the Nineteenth Century declares:—
concerned with the provision of the necessary funds to meet supply. A case of tacking could only arise when a measure having no connection what ever with finance was foisted upon a finance bill. in order that the latter might carry through the Lords an alien and separate proposal. It does not support a suggestion of tacking to point out that the principles of the new taxes are strange and unprecedented. or that the methods of raising them have never before been employed.
Parts of the ‘present budget-the land clauses, for instance, which are no fewer than twenty-e1 ht in number—are really a bill in themselves tac on to the budget hi I. If the contention of the government were correct, any measure could be passed over the head of the House of Lords by sim ly tackin it on to a money bill. . . . It is no dou t unusua for the House of Lords to amend a money bill. but it is unconstitutional to insert legislative proposals in a measure which ought to be confined to finance.
Further, as to the rejection of a money bill,—
Another writer observes (W. G. Howard
Gritten in the Fortnightly Review, v. 86, p. 815, Nov. 1909) :— The House of Lords would be totally within their rights in rejecting the bill, if for no other reason than that they are the guardians of that constitu tional usage which it contravenes by tacking and introducing under cover non-financial measures. In the words of Mr. Gladstone: l‘The illegitimate incorporation of elements not financial into a finan cial measure accurately describes the position today." Such observations, it will be noticed, leave
unsettled the question of the power to reject money bills as unconstitutional, when noth ing non-financial is tacked to them. Such a question is important because there is room for a reasonable doubt as to whether the bill did in fact offer an example of “tack ing." To quote awriter in the Contemporary Review (Mr. Alexander Grant, K. C., in Con temp. Rev. v. 96, p. 540, Nov. 1909) :— No doubt the bill contains novel principles of
taxation. and seeks for new methods of raising money for the needs of the state, but there is nothing in it which is not directly and immediately
Obviously if the bill was not an instance of tacking, the reason for the intervention of the Lords was by no means removed; the “strange and unprecedented" principles of the new taxes, far more than the tacking, would furnish the real justification for the Lords acting as they did. Generally speaking, the Lords have not the legal right to meddle with money bills. The barrister just quoted is doubtless right when he says (ibid, p. 539) :— No one now disputes. nor has for generations disputed, the rule that the Lords cannot amend a money bill. Thus law is ousted by convention, and the rivileges of the Lords are narrowed by their habitual acceptance of a limitation of their rights enforced upon them by the claim of the Commons to a superior and overriding right.
It is now too late in the day to attempt to inter fere with the established usage of the Constitution, and to revive the obsolete and abandoned privilege of the Lords.
On the other hand, the privilege of the House of Commons is restricted to money bills, and a typical money bill is an admin istrative measure rather than a modification of the fundamental law. Shall the broader or the narrower interpretation of the privi lege of the Commons prevail? In England the constitutional law of legislative power and privilege, it is to be remembered, is con strued not by the courts but by Parliament itself, not by adjudication but by action. The rule of the privilege of the Commons is after all only a convention between the two houses. _One has as much right to dissolve it as the other has to say that it shall not be dissolved. In the long run, the only test of the constitutionality of a legislative act in England is the test of public opinion. De— parture from precedent may be validated and the new precedent thus created cited with approval, if it is subsequently found to have been based upon wise statesmanship and social justice. The Lords therefore have been justified in seeking to limit the preroga tive of the Commons so as to protect their own jurisdiction over all constitutional questions. Parliamentary sovereignty does not imply
