The Government of England Part 41

[349:2] _Ibid._, 562.

[349:3] The India Office is maintained out of the revenues of India, but, as already explained, an opportunity to criticise the administration of that country is provided every year when the Indian accounts are laid before Parliament.

[349:4] The debate must relate to the administrative conduct of those who receive the grants (May, 561-62), and therefore the Speaker, in 1903, ruled out of order a discussion of the fiscal question on which the cabinet had taken no action, and had refused to announce a policy.

(Hans. 4 Ser. CXXVII., 867-70.)

[350:1] This was true of the latest example, that of an amendment relating to native labour in South Africa, moved on the second reading of the Consolidated Fund (No. 1) Bill of 1903. It was withdrawn when it had served the purpose. (Hans. 4 Ser. CXX., 72.)

[350:2] May, 581.

[352:1] Hans. 4 Ser. CXXIII., 142.

[352:2] _Ibid._, 327.

[352:3] _Ibid._, 1241, 1245, 1274.

[353:1] Hans. 4 Ser. CXXIII., 1250, 1323; CXXV., 571-74.

[353:2] _Ibid._ CXXVII., 867.

[353:3] Hans. 4 Ser. CXXIX., 623, 1446. There was on March 7 a motion to adjourn to call attention to the failure of Mr. Balfour to explain the resignations of ministers in the autumn. This involved the fiscal question only indirectly, and was rejected 237 to 172.

[354:1] Hans. 4 Ser. Cx.x.xV., 253 _et seq._

[354:2] _Ibid._, Cx.x.xIX., 284 _et seq._

[354:3] It had also been discussed on the adjournment for Easter.

[355:1] Redlich ends his book on the procedure of the House of Commons with the remark (p. 800), that the rules of a legislative body are the political manometer, which measures the strain of forces in the parliamentary machine, and thereby in the whole organism of the state.

CHAPTER XIX

THE FORM AND CONTENTS OF STATUTES

[Sidenote: Difficulty of Pa.s.sing Laws.]

We have seen that the legislative capacity of the House of Commons has nearly reached its limit. What is more, it is small, and markedly smaller than in the past. In the decade beginning with 1868, ninety-four government bills on the average became law each year, but of late the number has not been half so large, and private members' bills have fallen off in about the same proportion. The fact is that a growth in the number of members who want to take part in debate, a more minute criticism, and a more systematic opposition, have made the process of pa.s.sing a bill through the House increasingly difficult. This is particularly true of measures that are long or complicated, for the greater the length the more the pegs on which to hang amendments.[356:1]

Now the difficulty of pa.s.sing laws has had an effect both on the form of the statutes and on the content of legislation.

[Sidenote: Drafting of Bills.]

A public bill introduced by a private member may be drafted by him, or by counsel he has employed for the purpose. There is no systematic supervision over such bills,[356:2] no stage at which their drafting is reviewed, and whether well or ill drawn, they are not likely to be much improved in their pa.s.sage through Parliament. Government bills, on the other hand, which relate to England, and are not of a purely formal and routine character,[356:3] are now all drafted by the Parliamentary Counsel to the Treasury, or by his a.s.sistants under his direction.[357:1] They are prepared under instructions from, and after consultations with, the departments concerned, and are sometimes recast several times before they are introduced into Parliament. They are then a.s.sailed by a host of critics, both in and out of the Houses; some of them trying to pick flaws in a measure which they want to destroy; while others, who are not opposed to the general principle involved, discover provisions that affect their interests, based, perhaps, on local custom or privilege. The objections raised may not have been entirely foreseen, or may prove of greater political importance than was supposed, and hence amendments and new clauses are adopted during the debates in committee. These changes are usually made with the consent of the minister in charge of the bill, and the Parliamentary Counsel, as well as the permanent head of the department concerned, is often present under the gallery to give his advice; but still the amendments mar the fair handicraft of the draftsman, and an effort has to be made to improve the text either on the report stage or in the House of Lords.

[Sidenote: 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 pa.s.sing 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 to obey 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 pa.s.s 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.

[Sidenote: The Defects Arise;]

It has already been remarked that the limited capacity of 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.

[Sidenote: from Difficulty of Legislating;]

The difficulty of pa.s.sing 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 ma.s.sing 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 princ.i.p.al questions of policy.

[Sidenote: from Political Temperament;]

A similar result, although one that concerns more directly the substance than the form of the statutes, may be traced to a conservative tradition in legislation. It is commonly said that in industrial matters Englishmen do not appreciate the value of the sc.r.a.p-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 inst.i.tutions of a country slowly, than to pull them down and build anew; and there being no line between the inst.i.tutions that are fundamental, and those that are not, a fragment of the veneration for the British Const.i.tution 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 circ.u.mstances of the parish of Ockley-c.u.m-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.

[Sidenote: 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 their measures 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.

[Sidenote: Revision and Codification of Statutes.]

If the legislation of a country is to consist, not in pa.s.sing 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 great advantage 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 pa.s.sage of a limited number of acts consolidating the statutes on certain subjects.[362:1] Such acts are not easy to pa.s.s, 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 reenactment 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.

[Sidenote: 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 reenacted in an enduring form. In England, however, there is pa.s.sed 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.

[Sidenote: Delegation of Legislative Power.]

The limited capacity of Parliament to pa.s.s 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 inst.i.tutions 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]

[Sidenote: 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 a special 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 ca.n.a.l-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 b.u.t.ter, and under an authority of this kind a general order was issued in 1900 for muzzling all the dogs in the country.

[Sidenote: 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 are confirmed; 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.

[Sidenote: 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.