Form for a Bill of Pains and Penalties

Form

Preamble.

Whereas, on the ... day of ..., 19XX, A, then member of the House of Commons for the constituency of B, was complicit in the passing of the Bill for the XYZ Act 19XX by that House:

[The normal words of enactment go here]

Conviction, penalty and citation.

1.-(1) The said complicity of the said A in the said passing of the said Bill shall be deemed and adjudged high treason.
(2) The said A shall be imprisoned for life.
(3) This Act may be cited as the Punishment of A Act 20XX.

Notes

This is a form for a Bill to convict and punish an MP for his role in the passing of an earlier Act. This form is described as one for a "Bill of Pains and Penalties" following English usage. In American usage, which does not distinguish between capital and non-capital offences, it would be a "Bill of Attainder". However, the conviction and penalty imposed will be described as an attainder throughout the rest of these notes because it makes for simpler presentation, and as this form could be adapted to one for a Bill of Attainder simply by changing the penalty.

Because of the doctrine of 'parliamentary sovereignty', it might be practically impossible to punish an MP by any means other than retrospective legislation. If one was to pass an Act of Parliament purporting to criminalise the future passing of 'bad' Acts, the legislature would presumably purport to repeal it before doing so. If one was to argue that doing so was a common law offence, members of the legislature would presumably deny the existence of such an offence, citing the aforementioned doctrine and the decision in Knuller v DPP. On the other hand, the same doctrine would presumably equally prevent courts questioning the validity of an Act attainting one or more members for their role in the passing an earlier Act.

The author expresses no opinion generally as to the compatibility of a Bill of this form with articles 5 to 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, though article 7 would not be engaged if the voting for which the MP is attainted at the time constituted an offence under international law punishable with life imprisonment or was criminal according to the general principles of law recognised by civilised nations. If any doubt was entertained in this behalf, a clause could be added providing that the Human Rights Act 1998 shall not apply to the provisions of the Act. No opinion is expressed as to whether this would involve re-negotiating or denouncing the treaty or leaving the Council of Europe. [One could imagine a more complicated Bill that created a retrospective offence of passing 'bad' legislation in the past in more abstract terms and provided for it to be tried by the ordinary courts or some new court.]

It is assumed that section 5 of the Treason Act 1695 would not apply to the conviction or penalty that an Act of this form would impose, to the preceding parliamentary proceedings or any subsequent proceedings. If any doubt was entertained in that behalf, a provision could be enacted expressly disapplying the said section 5.

It is assumed that the Act, or the offending portion of it, for which the member is to be attainted would be repealed before a Bill of this kind was introduced. It may be that such a repeal should be retrospective.

This form is drafted as a form for a Bill for the attainder of a member of the Commons, and would have to be modified for the attainder of a member of the House of Lords.

This form is partly framed on the Act of Parliament which attainted Richard Roose for poisoning the Bishop of Rochester in 1531.

The date left unspecified in the form is the date on which the House of Commons passed the Bill for the Act for which the member is to be attainted. "A" is a place holder for the name of the member, "B" for that of his constituency, and "XYZ Act 19XX" for the short title of the Act for which he is to be attainted.

The words "complicit" and "complicity" are intended to mean "he voted for it". The author is not sure if these are the correct words.

Clause 1(1): The words "high treason" could be replaced with "an offence" or "a crime". It is imagined that the sort of earlier legislation which a later Parliament with a different composition might wish to characterise as treason, and particularly to characterise as conspiracy or incitement to levy war on the public, might particularly include legislation purporting to authorise or, by its vagueness, tacitly encouraging, acts of paramilitary violence and detention, such as imprisonment and arrest, for reasons that are vicious or demented.

Clause 1(2): Imprisonment for life is presently the maximum penalty for high treason, but any penalty could be substituted. If the penalty imposed is capital, it is a Bill of Attainder.

See also

• Law reform