The Government of England Part 42

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 Public General 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.

FOOTNOTES:

[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 pet.i.tioners, 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] Rex _vs._ 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 const.i.tuents.

[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 t.i.tles, 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.

CHAPTER XX

PRIVATE BILL LEGISLATION

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.

[Sidenote: 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 ca.n.a.ls, 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 munic.i.p.al 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 pa.s.sed 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.

[Sidenote: 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]

[Sidenote: Pet.i.tion and Notice.]

Before a private bill is introduced, a pet.i.tion therefor is drawn up, and in order to give any one interested an opportunity to prepare his objections, notice of the pet.i.tion must be given, in October or November, in _The 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 pet.i.tion 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 pet.i.tion, 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 pet.i.tioner 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]

[Sidenote: Examiners of Pet.i.tions.]

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 Pet.i.tions 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 pet.i.tioner 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]

[Sidenote: Legislative and Judicial Aspects of the Procedure.]

Private bill procedure has both a legislative and a judicial aspect. The final aim being the pa.s.sage 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]

[Sidenote: 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 a.s.sembles 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 laid upon 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 circ.u.mstances 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]

[Sidenote: 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.