FOOTNOTES:

Defects of Form.

Sir Courtenay Ilbert attributes the defects of form in the English statutes of the present day chiefly to the battering that a bill must almost necessarily encounter in passing through the House of Commons, and to the fact that an Act of Parliament is essentially a creature of compromise.[357:2]Yet there would seem to be other difficulties arising from the conditions under which legislation is conducted.

The Parliamentary Counsel's office has certainly improved the statutes very much by making them more concise, uniform and orderly; but their form is far from perfect. Two objects must be aimed at in drafting an act; one that it shall be intelligible to the persons who are compelled toobey it; and the other that the courts which interpret it, or the counsel who are called upon to advise upon it, shall be able to ascertain its precise meaning with certainty. Now to a layman, and even to a foreign lawyer, an English act is often difficult to understand, and sometimes misleading. To penetrate its intent one must frequently be familiar with all previous legislation on the subject. It is no doubt true that "No statute is completely intelligible as an isolated enactment. Every statute is a chapter, or a fragment of a chapter, of a body of law."[358:1]Still it does not seem necessary that English acts should be quite so obscure as they often are. Nor, judging from the amount of litigation that sometimes occurs over their interpretation, does this defect appear to be always counterbalanced by remarkable legal certainty. The most celebrated case is that of the Education Act of 1902. After the provision for the payment of religious instruction in the church schools out of local rates had provoked dogged resistance, and the magistrates had enforced it against recalcitrant rate-payers for a couple of years, the matter was brought before the higher courts by the refusal of the County Council for the West Riding of Yorkshire to make the payment; and the majority of the Court of Appeal was of opinion that the statute did not oblige it to do so.[358:2]The House of Lords reversed the decision;[358:3]but for Parliament to pass the Act in such a form that the Court of Appeal could regard it as failing to effect what everybody knew to be one of its main objects is surely an amazing example of bad drafting. Nor was this the result of amendments in the House of Commons, for the provision in question went through unchanged; and although in this case the fault is said not to lie at the door of the Parliamentary Counsel, it shows none the less the defects of the system.

The Defects Arise;

It has already been remarked that the limited capacityof Parliament for law-making affects both the form and the content of its acts; and this is one of many elements in a complex problem. The lack of time for comprehensive legislation, the political temperament of the nation, and the exigencies of a responsible ministry have each a marked influence on the form and the substance of the statutes; and, indeed, all these factors act and react upon one another.

from Difficulty of Legislating;

The difficulty of passing long or complicated measures makes the minister insist that his bill shall be as short as possible,[359:1]and hence it must include no clauses not absolutely necessary for the object he has in view. The draftsman, therefore, disturbs existing statutes as little as he can, either in the way of revising or incorporating their provisions. If he must embody earlier enactments in his draft, he does so by referring to them, rather than by repeating them.[359:2]The practice of legislation by reference, which is a source of no small inconvenience in using the statutes, has been carried very far. In fact there is a long series of "Clauses Acts" on various subjects, not enacted with an independent legislative force of their own, but placed on the statute book as standard provisions to be embodied in subsequent acts by reference express or implied.[359:3]The desire to have the bill short has also given a strong impulse to the practice of removing details from the body of the act, and massing them in schedules at its close.[359:4]This is an advantage to the minister who has charge of the bill, because while it does not withdraw the matters in the schedules from the control of the House, it does make them less conspicuous and concentrates the attention of the members on the principal questions of policy.

from Political Temperament;

A similar result, although one that concerns more directly the substance than the form of the statutes, may be tracedto a conservative tradition in legislation. It is commonly said that in industrial matters Englishmen do not appreciate the value of the scrap-heap, that they tend to use old-fashioned machinery when it would be better to discard it altogether. If they dislike to abandon a machine, they have a still greater aversion to repealing an Act of Parliament. Every Briton happily believes that it is better to readjust the institutions of a country slowly, than to pull them down and build anew; and there being no line between the institutions that are fundamental, and those that are not, a fragment of the veneration for the British Constitution attaches to every statute; and, indeed, to custom also. This helps to make the legislator cautious, and his work tentative. Moreover, there is a great respect for vested rights, and for that matter for vested habits, and sometimes vested abuses. Sir Courtenay Ilbert tells us how much solicitude is aroused by the probable effect of a bill on the peculiar circumstances of the parish of Ockley-cum-Withypool, or the emoluments of the beadle of Little Peddlington.[360:1]Too much attention seems to be paid at times to such interests when they conflict with those of the public; and this brings up the third factor in the problem, that of cabinet responsibility, which has a marked influence on both the form and the content of legislation.

Reform-sponsibility of Ministers.

If the parliamentary system, as it has developed in England, intrusts the active conduct of legislation and administration to the ministry of the day, and thereby concentrates enormous political power in the hands of a few men, it does so among a highly individualistic people. The ministers wield their great authority on two conditions. One is that they must retain an absolute hold upon their own majority, and the other is that their rule must be tempered by liberty of criticism. They must explain everything they do, they must defend it against the attacks of the whole House, and justify it to the satisfaction of almost all their followers. The result is that they try to bring into theirmeasures nothing that might furnish a needless target for critics, or prove a cause of offence to any of their supporters.

Restraint, in some form, is the price paid for power; and great strength in one direction is apt to conceal weakness in another. An English ministry with a good majority at its back appears omnipotent. It announces its policy, forces through its bills against the protests of the Opposition, and even against appeals from members on its own side not to put pressure upon them. But the power it exerts is in large part the resultant of other forces less openly displayed. If, on pain of disloyalty, and for fear of handing the government over to the adversary, the private adherent of the party in power must follow the whips in critical divisions, the ministers, on their part, are sometimes compelled by an insistent group of their supporters to adopt one measure, or to mutilate or abandon another. They cannot disregard the serious objections of any considerable section of their own followers, and this has become more and more true with the evolution of the parliamentary system. Half a century ago they might win as many votes from the other side of the House as they lost on their own, but that is rarely possible to-day. They must now carry with them on every question substantially the whole of their party.[361:1]Their omnipotence is therefore a very limited and cautious omnipotence, and this has shown itself, especially under the late Conservative government, in the meagre annual production of statutes.

Revision and Codification of Statutes.

If the legislation of a country is to consist, not in passing comprehensive laws dealing with a whole subject, but in making progressive changes by tinkering and patching the existing acts, it would seem an obvious convenience to issue from time to time new editions of those acts compiled in a more compact and intelligible form. It would be a greatadvantage to have frequent revisions or codification of the statutes on a subject, not involving a change of substance, but merely a simplification of form. But such a process of consolidation has not been common in England. A great deal of labour was expended on this object by several commissions during the nineteenth century; but the only positive results have been the production of two editions of revised statutes—being simply the statutes at large rearranged with the parts no longer in force omitted—and the passage of a limited number of acts consolidating the statutes on certain subjects.[362:1]Such acts are not easy to pass, because, as Sir Courtenay Ilbert remarks, "It is difficult to disabuse the average member of Parliament of the notion that the introduction of a consolidation bill affords a suitable opportunity for proposing amendments, to satisfy him that reënactment does not mean approval or perpetuation of the existing law, or to convince him that attempts to combine substantial amendment with consolidation almost inevitably spell failure in both."[362:2]The process has neither been extended to so many subjects, nor repeated at such short intervals, as might be wished.

Temporary Laws.

Another curious result of the difficulty of enacting laws may be seen in the long list of temporary statutes, continued in force from time to time, sometimes for many years. Some of these are acts of a transitory nature, designed to cover an emergency, or to deal with an ephemeral state of things. Laws of that kind expire with the conditions that called them forth. But the English temporary acts often relate to permanent matters. That a statute of an experimental character should be enacted at the outset for a limited period is natural enough, but when the period has come to an end, and the experiment has proved a success, one would expect to see the law reënacted in an enduring form. In England, however, there is passed every year an Expiring Laws Continuance Act, giving another twelve-month's lease of life to a list of acts appended in a schedule,many of which are already old. One or two have already reached the age of threescore years and ten; and among the list are still found the Ballot Act of 1872, with most of the statutes of the last half century that regulate the conduct of elections. The reason for the existence of perpetual temporary laws is to be found, no doubt, in the fact that in this form they can be continued almost without opposition, while an attempt to enact them as permanent statutes would give rise to great debates with a host of amendments, and consume a vast deal of the one thing whereof the ministry has never enough—that is time.

Delegation of Legislative Power.

The limited capacity of Parliament to pass statutes is not felt as a pressing evil, because the period of great remedial legislation is over. The transition from the political and industrial conditions of the eighteenth century has been accomplished, and the consequent change in laws and institutions has been, in the main, effected. The demand for radical legislation is, therefore, comparatively small, and for the time at least the process of making law can afford to run slow. Yet it may be doubted whether, with the great extension in the sphere of government, Parliament could be suffered to move at its present pace were it not for the growing practice of delegating legislative power. We hear much talk about the need for a devolution of the power of Parliament on subordinate representative bodies, but the tendency is not mainly in that direction. The authority of this kind vested in the county councils by recent statutes is small, too small to affect the question. The real delegation has been in favour of the administrative departments of the central government, and this involves a striking departure from Anglo-Saxon traditions, with a distinct approach to the practice of continental countries.[363:1]

Statutory Orders.

Formerly an English statute went into great detail, attempting to provide expressly for every question that could possibly arise. Its interpretation, or its applicability to aspecial case, could be determined only by the courts, while its defects could be remedied, or its omissions filled up, only by another statute. It contained in itself the complete expression of the legislative will. But of late it has become more and more common for Parliament to embody in a statute only general provisions, and give to some public department a power to make regulations for completing the details, and applying the act to particular cases. These regulations—known as statutory orders—cover a great variety of subjects, and govern not only the duties of officials, and the administration of public affairs, both national and local, but also the conduct of individuals in the management of their own concerns. They prescribe, for example, how many persons can live on canal-boats, the number of cubic feet of air in factories, the precautions that must be taken for cleanliness in dairies, what per cent of water may be contained in genuine butter, and under an authority of this kind a general order was issued in 1900 for muzzling all the dogs in the country.

Control of Parliament over Provisional Orders.

Parliament usually attempts to retain a control, or at least an oversight, of the orders made by the public departments under the authority delegated to them in this way. Sometimes the order is issued under a power that is provisional only, and does not become operative until confirmed by a statute. This is usually, though not invariably,[364:1]true of rights granted to private companies or local authorities to construct works of public utility, such as waterworks, gas-works, tramways, and the like.[364:2]Provisional orders of that kind do not involve any true delegation of legislative power, because they derive their validity, not from the act of the department, but from the statutes by which they areconfirmed; and they are included among the Acts of Parliament, and not the statutory orders of the year. Practically, however, they are almost always confirmed without amendment.

Over Statutory Orders.

Parliamentary control over statutory orders strictly so called, which involve a real delegation of legislative power, is commonly maintained by requiring them to be reported to the two Houses; and in order to give an opportunity for preliminary criticism, the regulation, or a draft thereof, must sometimes be laid on the table for a certain time before it becomes operative.[365:1]Moreover, control by Parliament is often expressly reserved by providing that if, within forty days, either House presents an address to the Crown against a draft or order, then the order shall not be made, or in case it has already gone into effect it shall thenceforth be void.[365:2]An address under such a provision is exempted from the rule about the interruption of business in the House of Commons, and hence can be moved by a private member at the close of the sitting on any evening, without taking his chance in drawing lots, or appealing to the government for a part of its time.[365:3]As a matter of fact, motions of this kind are uncommon, and are rarely, if ever, successful; although the frequency with which the statutory orders are revised by the departments would seem to show that the officials who make them are highly sensitive to outside opinion.

Since 1893 the statutory orders of each year have been regularly published like the Acts of Parliament;[365:4]and an idea of their number may be derived from the fact that they always fill one, and often two, large volumes, each much thicker than the present emaciated book of the PublicGeneral Acts.[366:1]In spite of the potential control retained by the Houses over statutory orders, the growing habit of delegating authority to make them involves a substantial transfer of power from Parliament to the executive branch of the government, a transfer due in part to the increasing difficulty in legislation.

The existing relation between the cabinet and the House of Commons has thus had a number of distinct, and at first sight contradictory, effects. While placing the initiative for almost all important legislation in the hands of the ministers, it has tended to reduce the number and completeness of the laws they can carry through; and on the other hand it has helped to invest them with a power of subordinate or secondary legislation quite foreign to English traditions. This is true of public matters, but in regard to private and local acts the relation of the cabinet to Parliament, and hence the effects of that relation, are wholly different.

[356:1]Cf.Ilbert, "Legislative Methods and Forms," 217.

[356:2]Ilbert,Ibid., 90-91. Private bills are, of course, drafted by the counsel for the petitioners, and provisional order bills by the department that grants the provisional order.

[356:3]Ilbert, "Leg. Methods and Forms," 86 note. The Scotch and Irish bills, and almost all the most important Indian bills, are drawn by draftsmen attached to the offices for those countries.

[357:1]Sir Courtenay Ilbert, himself Parliamentary Counsel at the time he wrote his work on "Legislative Methods and Forms," has given therein an excellent description of the history (67-69, 80-85) and the work (85-97, 218-19, 227-31) of the office.

[357:2]"Leg. Methods and Forms," 229-31.

[358:1]"Leg. Methods and Forms," 254.

[358:2]Rexvs.West Riding of Yorkshire, (1906) 2 K.B., 676.

[358:3]Atty. Gen.vs.West Riding of Yorkshire, (1907) App. Cas., 29.

[359:1]Ilbert, "Leg. Methods and Forms," 217, 241.

[359:2]Ibid., 217-18.Cf.254-66.

[359:3]This is particularly true in the case of local and private bills, where the provisions of "Clauses Acts" must often be incorporated, either by the terms of those acts, or in consequence of the standing orders on private business.Ibid., 261.

[359:4]Cf. Ibid., 266-68.

[360:1]Ilbert, "Leg. Methods and Forms," 230.

[361:1]The extent to which this is done, and the amount it has increased, is shown by statistics in the chapter on "The Strength of Party Ties." The difficulty to-day comes, not from the opinions or interests of individual members, but from groups of members acting on public grounds, or at least, on grounds which affect a great part of their constituents.

[362:1]Ilbert, "Leg. Methods and Forms," Chs. iv., vii.

[362:2]Ibid., 113.

[363:1]Cf.Ilbert, "Leg. Methods and Forms," Chap. iii., and pp. 220-21, 224.

[364:1]Authority, for example, to construct a light railway, which is legally distinct, but physically indistinguishable, from a tramway, does not require confirmation by Parliament, 59-60 Vic., c. 48, §9.

[364:2]A change in the boundaries of a county or borough requires in the same way confirmation by Parliament; but an order altering an urban or rural district or parish, requires only to be laid upon the table of each House, 51-52 Vic., c. 41 (part 3).

[365:1]Drafts of orders that are not required to be laid before Parliament before they come into operation, must, by 56-57 Vic., c. 66, § 1, be open to criticism, by any public body interested, for forty days before they are finally settled and made. But this does not apply to rules made by the Local Government Board, the Board of Trade and some others (§ 1 (4)).

[365:2]Cf.Ilbert, "Leg. Methods and Forms," 41,cf.310-14.

[365:3]Ilbert, "Manual," § 36.

[365:4]56-57 Vic., c. 60, § 3.

[366:1]This last, however, does not contain the text, but only a list of titles, of local and private acts, although many of them are legally public general acts. On the other hand the published statutory orders for the year do not include by any means all the orders of a temporary nature.

If the direction of important legislation of a public character lies almost altogether in the hands of the ministers, special laws affecting private or local interests are not less completely outside of their province.

The Nature of Private Bills.

Private Acts of Parliament are of immemorial antiquity, but they seem to have first become numerous in connection with the building of turnpike roads and the enclosure of commons in the second half of the eighteenth century.[367:1]They were also the means used to authorise the construction of canals, and later of railways; and, in fact, it was the great number of railway bills, presented in 1844 and 1845 that gave rise to the modern private bill procedure in the House of Commons.

Apart from railway bills they have been used of late years chiefly to regulate local police and sanitary matters, or to grant powers to private companies or municipal corporations for the supply of public conveniences, such as water, gas, electric light, or tramways; for private bill procedure applies not only to bills that affect private persons or companies, but also to those that deal with the rights and duties of organs of local government in any particular place.[367:2]

The line, however, between public and private bills is not altogether logical. Measures, for example, touching matters of general interest affecting the whole metropolis have been passed as public bills; and this has been true to a smaller extent of other places; while bills regulating affairs of less importance for those very areas have been treated as private. In fact the same subject has at different times been dealt with by public and private bills; the question which procedure should be followed depending upon the uncertain standard of the degree in which the public interest was involved.[368:1]With these exceptions it may be said that every bill introduced for the benefit of any person, company or locality, is, for the purposes of procedure, a private bill.

Procedure on Private Bills.

The standing orders that govern procedure upon private bills are much more elaborate and comprehensive than those relating to public bills. They fill in print five times as many pages; and although custom and precedent play an important part, still the printed rules approach very nearly to a code of private bill procedure.[368:2]

Petition and Notice.

Before a private bill is introduced, a petition therefor isdrawn up, and in order to give any one interested an opportunity to prepare his objections, notice of the petition must be given, in October or November, inThe Gazette, in appropriate local newspapers, and in some cases by posters upon the roadside. Personal notice must also be served in December upon the owners of land directly affected, and if the petition is for leave to build a tramway, the consent of the local authority must be obtained.[369:1]Plans of the work proposed must also be deposited for inspection both at Westminster and with some local officer.[369:2]The petition, with the bill itself, must be filed on or before Dec. 17 in the Private Bill Office of the House, and a copy must be delivered to the Treasury, the Local Government Board, the Post Office, and to any other department whose duties relate to the subject involved.[369:3]The petitioner is also required to file estimates of cost, and to deposit a sum equal to four or five per cent. of the proposed expenditures as a guarantee fund for the benefit of persons who may be injured by a commencement, and failure to complete, the work.[369:4]

Examiners of Petitions.

The next step is to make sure that these preliminary regulations have been obeyed. It is done by paid officers of the House called Examiners of Petitions for Private Bills,[369:5]and since 1855 the two Houses have appointed the same persons to that post, so that the process is gone through only once.[369:6]The petitioner must prove before the examiner that he has complied with the standing orders; and any person affected has a right to be heard on the question, if he has filed a memorial of his intention to appear. The examiner certifies that the standing orders have been followed, or reports in what respect they have been disregarded.[369:7]

Legislative and Judicial Aspects of the Procedure.

Private bill procedure has both a legislative and a judicial aspect. The final aim being the passage of an act, a private bill goes through all the stages of a public bill, and the records of its progress appear in the journals of the House. But the procedure is also regarded as a controversy between the promoters and opponents of the measure, and this involves an additional process of a judicial character. For that purpose the full records of the case are preserved in the Private Bill Office, where they are open to public inspection. The preliminary steps already described are intended chiefly to prepare the case for the judicial trial, and to give opponents a chance to make ready their defence. They correspond to the pleadings in the clerk's office of a court; and they are conducted by a parliamentary agent who performs the duties of a solicitor in a law suit.[370:1]

Introduction of the Bill.

The preliminaries over, the bill is ready to be introduced, and the first thing is to arrange in which House it shall begin its career. This is decided at a conference between the Chairmen of Committees of the two Houses, or in practice by the gentlemen who act as their legal advisers, the Counsel to Mr. Speaker and the Counsel to the Lord Chairman of Committees.[370:2]All these proceedings take place before the usual date for the meeting of Parliament, so that when it assembles the bills can be brought in at once.[370:3]

If the examiner reports that the standing orders have been complied with, the bill is presented forthwith by being laidupon the table of the House. If not, his report is referred to the Committee on Standing Orders, composed of eleven members chosen by the House itself at the opening of the session.[371:1]This committee reports whether the omission is of such a nature that under the circumstances it ought to be excused or not; and the report is almost always adopted by the House. In case the omission is excused the bill is presented by being laid upon the table; and every bill is deemed when presented to have been read a first time.[371:2]

Second Reading.

On the next stage, the second reading, a debate may take place upon the general principle involved, and a bill is sometimes rejected at this point, either because it is inconsistent with public policy, or because opponents whose interests are involved have been able to persuade a majority of the members to vote against it. Instructions to the committee about the provisions to be inserted in the bill can also be adopted at that time.

Private Bill Committees.

The committee stage of the bill, for the consideration of its provisions in detail, is devolved upon a private bill committee. Here takes place the judicial process, or trial of the controversy between conflicting interests, which presents the peculiar feature of the English procedure. Until near the middle of the nineteenth century the committees for private bills were made up on the same principle as select committees on other matters. They consisted in large part of supporters and opponents of the measure. But in 1837 the Lords began to form their private bill committee of a small number of wholly impartial members,—a practice which was adopted by the Commons for railway bills in 1844, and for all other private bills in 1855.[371:3]The system of committeesin the two Houses is now very much the same,[372:1]the order of proceeding in the Commons being as follows: All opposed private bills, except those relating to railways and canals, divorce, and police and sanitary matters, are referred under the rules to the Committee of Selection, which divides them into groups and refers each group to a separate committee, consisting of a chairman and three members not locally or otherwise interested, all of whom it appoints for the purpose.[372:2]

Railway and Canal Bills.

In order to secure greater uniformity in the private acts relating to railways, a general committee on railway and canal bills was created in 1854.[372:3]It is appointed every year by the Committee of Selection, and to it are referred all bills of that kind. But it does not take charge of them itself. It merely divides them into groups, and then acts as a chairman's panel; that is, it refers the bills to separate committees, the chairman of which it selects from its own ranks, the other three members being appointed by the Committee of Selection.[372:4]

Police and Sanitary Bills.

With the same object of obtaining uniformity, all bills promoted by local authorities for police and sanitary purposes were referred after 1881 to a single committee. In this case, however, the bills were not too numerous to be considered by the committee itself, although to relieve pressure it was, in 1892, enlarged to eleven members, and authorised to bisect itself for the more rapid despatch of business. Curiously enough the committee was discontinued for some years, but, after loud complaints about exceptional powers granted by private acts, it was revived by sessional order in 1903, and intrusted with all police and sanitary bills whichcontain powers "in conflict with, deviation from, or excess of, the general law."[373:1]

A committee on divorce bills is still provided for in the rules, but since the power of granting divorces in England and Scotland has been entirely transferred to the courts, bills of this kind have become rare. While the various private bill committees are thus formed in slightly different ways, their mode of dealing with the measures that come before them is the same.

Locus Standi.

The bills referred to these committees have been described as "opposed," but that implies an opponent, and means, not an objector in the House, but an outside contestant on the basis of interest, for the chief object of these committees is a judicial hearing of opposing parties. If there is no opponent, so that the question is solely whether the privileges sought are consistent with the public welfare, the bill is said to be unopposed, and goes through quite a different procedure to be described hereafter. Plainly, therefore, the question who may oppose a bill, and on what grounds, is of vital importance. A person who enjoys the right is said to have alocus standi; and the first question to be decided is whether an opponent does or does not have it.

Now, any one who wishes to oppose a bill must, on or before Feb. 12, file a petition in the Private Bill Office, stating the ground of his objection,[373:2]and if the promoters contest his right to appear,[373:3]the question oflocus standiis decided by the Court of Referees, consisting of the Chairman of Ways and Means, the Deputy Chairman, and not less than seven members of the House appointed by the Speaker. The Counsel to Mr. Speaker assists the court, but sits now only as an assessor.[373:4]The principal divergence in the procedureof the two Houses arises at this point, for questions oflocus standiare determined in the House of Lords by the committee that considers the bill; and there is some difference of opinion about the relative merits of the two systems.[374:1]In both Houses the decisions are governed partly by express provisions in the standing orders,[374:2]and partly by precedents that have hardened into rules.

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