FOOTNOTES:

Insignificance of Private Members' Legislation.

As there are only about a dozen Fridays before Whitsuntide,a private member must be very fortunate in the ballot, or he must have a number of friends interested in the same bill, to get it started with any prospect of success; and even then there is scarcely a hope of carrying it through if a single member opposes it persistently at every point. Ten or fifteen such bills are enacted a year, and of these only a couple provoke enough difference of opinion to lead to a division during their course in the House.[314:1]But while many private members loudly bewail their wrongs, they make no organised effort for mutual protection. These men are, in fact, separate units without a basis for combination. They have not even that spirit of the golden rule, which does much harm in legislation. They show neither the good nature, nor the instinct for log-rolling, which prompts men to vote for one another's bills, hoping for like favours in return. Hence their labours produce little fruit, either sweet or bitter. In short, the public legislation initiated by private members is neither large in amount, nor important in character, and it cannot be passed against serious opposition,—a condition that tends to become more marked as time goes on.

Private Members' Motions.

The privilege on the part of private members of bringing forward motions on Tuesday or Wednesday evenings is, like that of having bills considered on Friday, determined by lot; with this difference, that a notice of motion cannot be given more than four motion days ahead, and hence the first ballot covers only two weeks, and is followed by fresh balloting every week until Easter.[314:2]In order to improve the chance of getting a hearing, a number of members interested in the same question will often send in their names, with the understanding that any one of them who is lucky enough to be drawn shall set down the motion. This practice was introduced by the Irishmen; but it hasnow become common among members of all kinds who take, or wish to appear to take, an interest in a subject. It is called "syndicating," and has resulted in making the motions not infrequently reflect the views of a considerable section of the House.

Their Nature and Effect.

The motions on these nights take the form of resolutions, and are of every kind. Some of them express aspirations of an abstract nature, such as that the government ought to encourage cotton-growing in the British colonies, or that the greater part of the cost of training teachers ought to be borne by the national exchequer.[315:1]Others demand more definite legislation about matters on which the parties are not prepared to take sides. A motion, for example, was carried in 1904 that the franchise for members of Parliament ought to be extended to women. But a resolution adopted in that way, without opposition from the government, is commonly regarded as a mere aspiration, and has hardly a perceptible effect. Others again deal with the hobbies of individuals, and in that case the members are apt to go home, so that after an hour or two of desultory talk the House is counted out for lack of a quorum; the frequency with which that occurs depending, of course, upon the amount of general interest attaching to the motions that happen to appear on the list.[315:2]Finally there are motions which attack the cabinet or its policy, motions, for example, condemning preferential tariffs on food, or the control by the central government of the police in Ireland. Motions of that sort are, of course, strenuously resisted by the Treasury Bench, and they will be discussed hereafter when we come to the methods of criticising the action of the ministry.[315:3]Apart from cases of this last class, the motionsof private members have even less practical importance than their bills. Occasionally a real popular demand may find expression in that way, but it is uncommon, and the chief value of the Tuesday and Wednesday evening sittings would seem to lie in helping to keep alive the salutary fiction that members of Parliament still possess a substantial power of independent action.

Control of the Cabinet over Legislation.

All the sittings not reserved for private members are at the disposal of the government, and it can arrange the order of its business as it thinks best.[316:1]The responsibility of the ministers for legislation is a comparatively recent matter.[316:2]Before the Reform Act of 1832 their functions were chiefly executive; but the rapid demand for great remedial measures, and later the complexity of legislation due to the extended control and supervision by the administrative departments, and not least the concentration of power in the cabinet by the growth of the parliamentary system, brought about a change. By the middle of the century that change was recognised, and at the present day the ministers would treat the rejection of any of their important measures as equivalent to a vote of want of confidence.[316:3]

Moreover, the government is responsible not only for introducing a bill, but also for failing to do so. At a meeting in the autumn the cabinet decides upon the measures it intends to bring forward, and announces them in the King's speech at the opening of the session. Amendments to the address in reply are moved expressing regret that His Majesty has not referred to some measure that is desired, and if such an amendment were carried it would almost certainly cause the downfall of the ministry. This happened, indeed, in 1886, when the resignation of Lord Salisbury'scabinet was brought about by the adoption of an amendment regretting that the speech announced no measure for providing agricultural labourers with land.

Amendments to Government Bills.

Following upon the responsibility for the introduction and passage of all important measures has come an increasing control by the ministers over the details of their measures. It was formerly maintained that the House could exercise a great deal of freedom in amending bills, without implying a loss of general confidence in the cabinet.[317:1]But of late amendments carried against the opposition of the Treasury Bench have been extremely rare.[317:2]In fact only four such cases have occurred in the last ten years. This does not mean that the debates on the details of bills are fruitless. On the contrary, it often happens that the discussion exposes defects of which the government was not aware, or reveals an unsuspected but widespread hostility to some provision; and when this happens the minister in charge of the bill often declares that he will accept an amendment, or undertakes to prepare a clause to meet the objection which has been pointed out.[317:3]But it does mean that thechanges in their bills are made by the ministers themselves after hearing the debate, and that an amendment, even of small consequence, can seldom be carried without their consent. This is the natural outcome of the principle that the cabinet is completely responsible for the principal public measures, and hence must be able to control all their provisions so long as it remains in office.

Relation of the Cabinet to the Committees.

From the same point of view the relation of the government to the various committees of the House is a matter of great importance. If the cabinet is to be responsible for the policy of the state, and must resign when defeated, it is manifestly entitled to frame the policy on which it stands. But if, as in some countries that have copied the parliamentary form of government, and notably in France, the bills of the cabinet are referred for consideration and amendment to committees not under its control, then it may have to face the alternative of opposing its own bill on account of the amendments made therein, or of standing upon a measure of which it can no longer wholly approve. It may be put in the awkward position of defending a policy that has been forced upon it, instead of one of its own selection. Such a condition of things has sapped the authority of the ministry, and weakened the government in more than one nation of continental Europe.[318:1]This danger has been avoided in England by the very limited use of committees on public bills, and by the influence of the Treasury Bench over those that exist.

Controversial Bills not Referred to Committees.

The most important government bills, and especially those of a highly controversial nature, are not referred to committees at all. They are debated only in the House itself; and in Committee of the Whole, which is merely the House sitting with slightly different rules, and not a committee in the sense in which the word is used in this chapter. To select committees few public bills are referred, and those as a rule are certainly not of a controversial character.[319:1]The only difficulty arises in the case of the standing committees. When he first proposed these in 1882, Mr. Gladstone said that they were not intended to consider measures of a partisan character;[319:2]and it has been generally recognised ever since that very contentious bills ought not to be referred to them.[319:3]A long debate on the subject took place recently, on the occasion when the bill to restrict alien immigration was sent to the Standing Committee on Law in 1904.[319:4]All the members who took part in the discussions, except Mr. Chamberlain,[319:5]agreed on the general principle; but they did not agree upon any test of contentiousness, and were sharply divided on the question whether the Aliens Bill was contentious or not. Mr. Balfour himself took the ground that the controversial character of a bill is a matter of degree, and that this bill was near the border line. The obstacles in its path proved in the end so serious that it had to be dropped for the session.

That a bill is non-contentious clearly does not mean that it is unopposed, or even that the opposition has no connection with party. Every one of the six government bills referred to standing committees in 1899, for example, had aparty vote at some stage in its passage through the House.[320:1]These committees are expected to deal, not with questions of political principle, but with details that require technical skill or careful consideration, in bills where the general principle is either non-contentious, or may be regarded as settled by the House itself. They were intended to be used for measures on which the committee stage is not likely to raise any important questions of policy. The original intention, however, has not been wholly carried out. Highly contentious bills have not infrequently been "sent upstairs,"[320:2]as the expression goes, although this has never been done in the case of the most important government measures. Many people feel that the departure is unfortunate, and hence there was no little opposition in 1907 to raising the number of standing committees to four, and providing that all bills should be referred to them unless the House ordered otherwise. An amendment, to the report of the committee, that the provision should not apply to bills containing general controversial matter was rejected by a strict party vote,[320:3]and the change in procedure was put through the House itself by the use of closure.[320:4]If the standing committees were confined to non-contentious measures, they could create no serious embarrassment for the ministry, even if quite free from its control.

Party Complexion of Committees.

But in fact the committees are a good deal under the influence of the government. In the first place the government party is always given a majority of the members. Formerly it had on select committees a majority of one only,[320:5]but now it has become a general rule that both select and standing committees shall reflect as nearly as may be the party complexion of the House itself. Thus in 1894, whenthe parties were nearly evenly balanced in the House, the government majority on the committees was usually very small, but after the Conservatives came into power with a much larger majority, their share of members in the committees was correspondingly great.[321:1]The standing committees, and often the select committees also, are appointed by the Committee of Selection, which contains usually six adherents of the party in power, and five from the other side of the House. But they are members of great experience. They know the principles they are expected to apply, and with their discretion in the choice of individuals the ministers make no attempt to interfere.[321:2]

Influence of the Government in Committees.

The mere possession of a majority upon a committee is not always enough, unless the government can bring pressure to bear upon its followers. In select committees on bills this is not a matter of much consequence, because, as we have seen, they rarely have charge of important, or at least of contentious, measures. In select committees of inquiry one hears nothing of pressure—to the credit of statesmen be it said—and although the report of an English committee or commission of inquiry is often a variation on the theme that "no one did anything wrong, but they hadbetter not do it again," still there are reports that contain severe criticism on the public administration.[322:1]In the standing committees the influence of the government is palpable. In fact these committees, when dealing with government bills, are miniatures of the House in arrangement as well as in composition. There are the same rows of benches facing each other; and the minister in charge of the bill sits in the corner seat at the chairman's right hand, accepting, or refusing to accept, amendments on behalf of the government.[322:2]Absent members are fetched in the same way to take part in divisions;[322:3]and when the Conservatives were in power, whips were sometimes issued imploring them to be present on the morrow, because an important vote was expected. The Liberals do not do this, and often have trouble in getting their partisans to attend. Moreover, a difficulty sometimes arises from the fact that the members who are most strongly interested in a bill and hence least under the control of the minister—the Labour men or the Irish Nationalists, for example, in the case of bills affecting their constituents—attend far more regularly than the rest. But although the influence of the government over a standing committee is distinctly less than over the House itself,[322:4]it is certainly very considerable.

Few Party Votes in Committees.

Nevertheless the voting in both select and standing committees runs little on party lines, decidedly less than it does in the House itself. Taking two recent years, 1894 and 1899, for which the writer has had statistics prepared, it appears that in 1894 there were in the select committees twenty-three party votes out of eighty-four divisions; andin the Standing Committees on Law and Trade[323:1]there were only seven divisions in all, of which only two were on party lines; whereas in the House itself there were one hundred and eighty-four party votes out of a total of two hundred and forty-six divisions. Moreover, the party votes in committees were mainly confined to a very few subjects. Thus seventeen of the twenty-three party votes in the select committees were given in the committee on the work of the Charity Commission, and four of the remainder were in that on Scotch Feus and Building Leases.[323:2]For 1899 the comparison is even more striking. In the select committees there was one party vote out of sixty-three divisions; in the standing committees six out of fifty-three—and those six were all on one bill[323:3]—while in the House there were two hundred and forty-two party votes out of three hundred and fifty-seven divisions.[323:4]

The reasons why the votes run on party lines less in the committees than in the House itself are self-evident. First there is the fact that the most contentious measures, those where party feeling runs highest, are not referred tocommittees. Another reason, not less important, is that a defeat of the government, even in a standing committee, cannot directly imperil the life of the ministry, and hence the final means of pressure is lacking. In fact an amendment is occasionally carried against the government in a standing committee, and in that case the minister either makes up his mind to accept the change or tries to get it reversed in the House on report. But this very condition, which is embarrassing for the minister, shows that there is a limit to the work standing committees can be set to do, without imperilling the authority of the cabinet.

Suggestion of a Committee on the Estimates.

A similar danger would attend the use of committees on the estimates. The creation of such committees has often been suggested,[324:1]and for a very good reason. The debates on the estimates in the House of Commons have become an opportunity for criticising the conduct of the administration, while the financial aspect of the matter, the question whether the grants are excessive and ought to be reduced or not, has largely fallen out of sight. It has not unnaturally been felt that this function, which the House itself is disinclined to discharge, might be effectively performed by a select or standing committee. But if the committee were really to revise the estimates, it would, like the committees on the budget in continental parliaments, encroach upon the power of the government to frame its own budget. It would imperil the exclusive initiative in money matters, which is the corner-stone both of sound finance, and of the authority of a responsible ministry. That the Committee on Accounts should scrutinise the disbursements with care, to see that they correspond with the votes, is most salutary; and that special committees should be appointed from time to time, to review the expenditures, and suggest possible lines of saving, is also excellent. These are in the nature of criticism of past actions, with suggestions of a general characterfor the future, and they do not affect the freedom of the cabinet to lay down its own policy and prepare its own budget.

The last committee on national expenditure reported in 1903 in favour of having a select committee examine each year one class or portion of the estimates; but there was a sharp difference of opinion on the question whether such a committee would or would not interfere with the responsibility of ministers, and the recommendation was adopted only by a vote of seven to five.[325:1]In view of the experience in other countries, one cannot help feeling that the minority was right; that while the proposed committee would be far less of a thorn in the side of the Treasury Bench than one on the estimates as a whole, yet that if it really exerted any authority, and ventured to report reductions, it would stand to just that extent in a position of antagonism and rivalry with the ministers.

Legislative Capacity of Parliament has been Reached.

One of Mr. Gladstone's objects in proposing the standing committees was to increase the legislative capacity of the House, by enabling it to do a part of its work by sections sitting at the same time.[325:2]Such a process of making one worm into two by cutting it in halves is well enough with an organism whose nervous system is not too highly centralised; and in England it seems to have been carried about as far as is consistent with a responsible ministry. The standing committees have to some extent fulfilled this purpose, but it is extremely doubtful whether they can wisely be charged with bills of a more contentious nature than are sent to them now. In order to increase the legislative output the number of standing committees was raised to four, on April 16, 1907, with a provision that bills should be regularly referred to them unless the House directed the contrary. How far this change will result in placing in their hands more controversial bills, and how far it will increase the power of the House to pass laws, remains to beseen. There can be no doubt, however, that the legislative capacity of Parliament is limited; and the limit would appear to be well-nigh reached, unless private members are to lose their remnant of time, or debate is to be still further restricted, so that the members will no longer be free, until closure is moved, to speak at such length as they please, and to discuss every conceivable detail, great or small, often several times over. But upon the preservation of these things the position of the House of Commons largely depends.

To say that at present the cabinet legislates with the advice and consent of Parliament would hardly be an exaggeration; and it is only the right of private members to bring in a few motions and bills of their own, and to criticise government measures, or propose amendments to them, freely, that prevents legislation from being the work of a mere automatic majority. It does not follow that the action of the cabinet is arbitrary; that it springs from personal judgment divorced from all dependence on popular or parliamentary opinion. The cabinet has its finger always on the pulse of the House of Commons, and especially of its own majority there; and it is ever on the watch for expressions of public feeling outside. Its function is in large part to sum up and formulate the desires of its supporters, but the majority must accept its conclusions, and in carrying them out becomes well-nigh automatic.

[309:1]Curiously enough, such a procedure is unknown in the House of Commons, and the term itself is unfamiliar. It means in the case of an election, for example, that a candidate to be successful need only have more votes than any one else, whereas election by majority means that he must have more than half of the votes cast. The proposal for a second ballot in elections to Parliament involves requiring a majority instead of a plurality on the first ballot.

[312:1]S.O. 4. In his account of the evolution of procedure in the House of Commons (Recht und Technik des Englischen Parlamentarismus,Buch I., Abs. 2), Redlich traces the history of the practice of reserving particular days for the government, which began in 1811.

[312:2]It is a mistake to lay too much stress upon the exact proportion of time allotted to private members and to the government; because much of the time of each is devoted to the same purpose. One of the uses to which private members' evenings are put is criticism of the conduct of the ministry, but this is also the principal object of the debates upon the address, upon the estimates in Committee of Supply, upon motions to adjourn and on other occasions.

[312:3]These figures are taken from the return made for ten years in 1888, and the subsequent annual returns, making due allowance for the cases of two short sittings instead of a long one in a day. An exact computation by hours would be difficult. The evening sittings are shorter than the average sittings, but so were the old Wednesday sittings reserved for private members.

[313:1]As Redlich observes (Recht und Technik, 206) the introduction of the twelve-o'clock rule for the interruption of business brought in the habit of talking out a bill before midnight, and blocking bills after midnight, two of the great obstacles to legislation by private members.

[313:2]S.O. 6.

[314:1]Although the time at the disposal of private members has not changed much of late years, the number of these bills enacted, and especially of those enacted against opposition, has diminished sensibly. In the decade from 1878 to 1887 about twenty-three such bills were passed a year, and on four or five of these divisions took place.

[314:2]S.O. 7. Ilbert, "Manual," §§ 45, 119.

[315:1]The following examples are all taken from the session of 1904.

[315:2]In 1903, for example, the House was counted out for want of a quorum on seven out of the seventeen private members' nights; while in 1904 this happened only once, and then after the first motion had been voted down.

[315:3]On March 22 and 28, 1905, the ministers, with their followers, took no part in the debates or divisions on the motions of private members condemning their attitude on the fiscal question, and they paid no attention to the votes. This event, which was unprecedented, will be discussed later.

[316:1]S.O. 5.

[316:2]Cf.Todd, "Parl. Govt. in England," II., 368. Ilbert, "Legislative Methods and Forms," 82, 216.

[316:3]The only cases where a government bill has been rejected by the House of Commons for more than a score of years are those of the Home Rule Bill in 1886, on which the cabinet dissolved Parliament, and an insignificant bill on church buildings in the Isle of Man, which was defeated in a thin House in 1897.

[317:1]Cf.Todd, "Parl. Govt. in England," II., 370-72.

[317:2]The number of amendments to government bills (not including the estimates) carried against the government whips acting as tellers in each year since 1850, has been as follows:—1851918654187911893118522186621880018940185361867818810189501854718687188211896118555186921883318970185671870218843189801857418714188541899018582187281886219000185911873418871190111860418740188811902018616187501889019030186261876018900190421863418770189111905118642187801892019060

[317:2]The number of amendments to government bills (not including the estimates) carried against the government whips acting as tellers in each year since 1850, has been as follows:—

[317:3]The minister often says that he will consider whether he can meet the views that have been expressed; and then on the report stage he brings up a compromise clause. An interesting example of this occurred on July 23, 1906, when the Opposition complained that sufficient time had not been given for debating the educational council for Wales, the provisions proposed having been profoundly changed since it had been last before the House. The government replied that the changes had been made to meet objections raised by the Opposition itself. Hans. 4 Ser. CLXI., 741et seq.

[318:1]For France, see Dupriez,Les Ministres, II., 406-8, 410-13. Lowell, "Governments and Parties," I., 111-17. For Italy, Dupriez, I., 309, 312. Lowell, I., 207-10. For Belgium, where the evil is diminished by greater party discipline, and by the fact that the changes proposed by the committee must be moved as amendments to the government bill, see Dupriez, I., 243-45. In France permanent standing committees have been very extensively substituted during the last few years for temporary ones appointed to consider particular bills; but while this may do good in other ways, it cannot entirely remove the evil described in the text.

[319:1]In each of the years 1894 and 1899, for example,—years for which I have analysed the divisions in Parliament,—only one government bill, that was enacted, was referred to a select committee, and neither of these bills had a division on party lines in the course of its progress through the House.

[319:2]Hans. 3 Ser. CCLXXV., 149.

[319:3]See, for example, Hans. 4 Ser. IV., 1461, XXII., 1151, XXIII., 713-14, 1012, XXXIII., 851-54, CII., 345.

[319:4]Hans. 4 Ser. CXXXV., 1086et seq.Another debate has since occurred on March 20-21, 1907.

[319:5]Mr. Chamberlain's views seem to have undergone some modification.Cf.Hans. 4 Ser. XXIII., 1012, and CXXXV., 1113-14.

[320:1]I define a party vote arbitrarily as one where more than nine tenths of the members of the party in power, who take part in the division, vote together on one side, and nine tenths of the Opposition who take part vote together on the other side.

[320:2]Second Rep. of Com. on House of Commons (Procedure), May 25, 1906, Qs. 96, 113, 142, 381 (p. 41). The rooms of the standing committees are on the upper floor.

[320:3]Ibid., p. viii.

[320:4]Hans. 4 Ser. CLXXII., 873-919.

[320:5]Hans. 3 Ser. CCLXXV., 306-7.

[321:1]This does not, of course, apply to the ordinary committees on private and local bills, and it cannot always be strictly applied to all select committees. But in the case of standing committees the apportionment is decidedly accurate. In fact one of the chief objections to a standing committee for Scotland, composed mainly of Scotch members, was that it would not reflect the proportion of parties in the House. In the debate Mr. Balfour remarked that this "is not merely the traditional practice, but a practice absolutely necessary if we are to maintain Governmental responsibility in matters of legislation." He asked what would be the position of the government with standing committees of which they did not happen to possess the confidence. The committee would send back a bill changed, and then the minister must either drop the bill, or accept it as it is, or reverse the changes on the report stage. Such a position would, as he said, be intolerable, and would make legislation by a responsible ministry an absurdity. (Hans. 4 Ser. XXII., 1132, 1135-36.)Cf.Second Rep. Com. on House of Commons (Procedure), May 25, 1906, Q. 100.

[321:2]Hans. 3 Ser. CCCXXXIX., 126. The chairmen of the standing committees are intended, like the Speaker, to be strictly impartial. They are selected by and from the Chairman's Panel, which contains three members from each side of the House; and a member of the Opposition often presides when a government bill is discussed.

[322:1]Notably in recent years that of 1903 on the War in South Africa, Com. Papers, 1904, XL., 1et seq.; and that of 1904 on the Beck case, Com. Papers, 1905, LXII., 465et seq.

[322:2]"The very structure and furniture . . . of the Chamber in which the Grand Committee would sit, were designed to carry out the idea of government by Party." Hans. 4 Ser. XXII., 1162.

[322:3]Hans. 4 Ser. XCII., 570.

[322:4]Second Rep. of Com. on House of Commons (Procedure), 1906, Qs. 100, 280, 341.

[323:1]In the anomalous standing committee for Scotch business the condition of things was very different. It reported upon only one bill, that on Local Government for Scotland, and on this there were no less than sixty-three divisions, of which twenty-one were party votes.

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