• Law-Makers and Outlaws|戴啟思
  • 2020-08-25    


When the Legislative Council resumes sitting in October, the Chief Executive will, if she wants to, deliver a Policy Address to the Council. When she has done, there will be a debate on the contents of the Policy Address before Members decide whether to thank her. The Council’s Rules of Procedure set out the protocol.

Compare what happens in the Council at its first meeting with what happens in the U.K. Parliament when it opens for a new session.

The House of Commons goes to the House of Lords to listen to the Queen’s Speech in which she outlines the major policy proposals of the Government and identifies the significant new bills that it will introduce in the course of the session. After the speech, Members of Parliament return to the commons to begin Parliamentary business.

Is the debate about the Queen’s Speech the first thing on the agenda? No. The House of Commons turns to a bill about Outlawry which had been introduced in 1727 but never became law.

This ancient Bill is introduced as if it might now have a chance of becoming law after three centuries of slumber but, after being introduced, debate on it immediately ends, and it is left to sleep on until the next new session when it is re-introduced and then immediately adjourned again.

At first sight, it must all seem pretty pointless. What relevance has a bill about Outlawry in the Eighteenth Century to life in Britain now?

It has, of course, no practical significance. Outlawry, the state of being outside the protection of the law, ended formally in 1879. Before then, if you persistently ignored court orders summonsing you to attend to answer to a writ, your property could be forfeited. The process gave you no right to contest the taking because you had put yourself outside the protection of the law at the beginning by refusing to answer the court summons.

If a criminal charge had been made and you failed to turn up to defend it, the consequences were dire. As an outlaw, you could be killed by any one because you had repudiated the law and thus put yourself outside its protection, so killing was no murder.

However, in 1879 the statutes enacted in medieval times declaring various kinds of Outlawry had not been enforced for many years. The Civil Procedure Repeal Acts of that year repealed them all because, in the words of the Act, ‘they have ceased to be in force, or are unnecessary’.

In 1727 Outlawry still existed but it had become less savage, and enforcement was patchy. Outlawry for criminal cases had ceased in practice a long time before, but it still existed for civil cases though exceptions for some kinds of situations had been made.

The 1727 Outlawries Bill dealt with some changes concerning the role of solicitors in handling court proclamations of Outlawry. The Bill is utterly incomprehensible today, even to modern lawyers who profess to have some knowledge of English legal history.

The Bill’s value lies in its complete pointlessness. By choosing to debate the Outlawries Bill for about thirty seconds before putting it back in its box again, and not the Queen’s Speech, the House of Commons makes a critical constitutional point. It is that although Members of Parliament owe allegiance to the Queen in Parliament, the House of Commons manages Parliamentary business on its own, and it sets the agenda for debates.

The principle that the House of Commons is solely responsible for deciding what to debate, and when, goes back well before 1727. Members of Parliament first began not to follow royal wishes about how it managed its affairs in the middle of the Sixteenth Century. In 1604, the House of Commons formally resolved ‘That the first day of sitting in every Parliament, some one bill and no more receiveth a first reading for form sake’.

However, some of the ‘for form sake’ bills that were selected to come first in the order of business of the House were bills that stood a chance of being passed and made into law. It made the point that the House of Commons was really independent and that it could choose to debate whatever it wanted, it selected a bill which had made no progress in previous Parliamentary sessions and which everyone knew was as dead as the proverbial dodo bird.

Attempts have been made to displace the Outlawries Bill in the order of business of the House of Commons on the first day of a new session. In 1794 the playwright Richard Sheridan, Member of Parliament for Stafford, asked the House to permit debate on the Government’s plans to continue the suspension of the right to apply for habeas corpus at the opening session. He wanted to put the spotlight on an important bill that affected personal liberty. He failed. The House thought that the symbolic charade of reading a dead bill to demonstrate its autonomy was more important.

There was a review of Parliamentary Procedure eighteen years’ ago. The Procure Committee considered the Outlawries Bill and its contemporary significance. It reported that it embodied ‘a principle mentioned in a minute of 1609, that when Parliament has been opened, the House should assert its freedom to consider matters of its choosing, before turning to the reason for its summons as expressed in the Queen’s Speech. This practice takes only a few seconds, and we recommend that it should continue.’

I am sure that a determined researcher could dig out of the Legislative Council archives some dusty bill that had been kicked into touch a long time ago because it would never become law. It would demonstrate a collective assertion of procedural autonomy that has been lacking for a long time if an antique Bill could be inserted into the Council’s Rules of Procedure to require its reading immediately after the Chief Executive’s Policy Address.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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