THE EVOLUTION OF AN ACT OF PARLIAMENT
1
Statute law should be of high practical efficiency, as an instrument
for good government and human progress, having regard to the time and
thought expended upon its production. Parliament makes laws without
haste or impulse, deliberately and with patience. Getting a big
Government measure through Parliament is, indeed, a long and laborious
task, for the success of which ability, experience, tact and judgment
of the highest order are essential. A Bill has to pass through no fewer
than five distinct and separate stages in both Houses of Parliament
before the last ceremony of all, the Royal Assent, makes it the law of
the land. It has to be read the first time, and read the second time;
it has to pass through Committee, to be reported to the House, and
finally read the third time. And having gone through all these five
stages in the House in which it is first introduced--always the Commons
in the case of measures of great public interest--it has to go through
precisely the same stages in the other House. It is a very ancient
procedure, and when it was first devised its object must have been not
to promote but to impede legislation.
Even before a great Government measure is introduced at all into
the House of Commons much anxious consideration is given, first to
its principles, and next to its composition. Indeed, Parliament is
generally in ignorance of what it is to be asked to sanction until the
Minister has unfolded his legislative scheme in the House of Commons.
An outline of the Bill is first laid in the rough before the Cabinet
by the Minister, and, no doubt after considerable discussion, the
proposals are agreed to in so far as they are in conformity with what
the Cabinet conceives to be its mandate from the electorate, or, more
properly speaking, with the general wishes and inclinations of the
Party in the House and in the country.
Gladstone, in his _Diary_ for December 1868, thus describes how he
prepared the skeleton plan for the disestablishment of the Irish Church:
_13th._--Saw the Queen at one, and stated the case of the Irish
Church. It was graciously received. _24th._--At night, went to
work on draft of Irish Church measure, feeling the impulse.
_25th._--Christmas Day. Worked much on Irish Church _abbozzo_.
Finished it at night. _26th._--Revised the Irish Church draft
and sent it to be copied with notes.
Next came the Cabinet stage:
_February 8, 1869._--Cabinet on the heads of Irish Church Bill.
_9th._--Cabinet. We completed the heads of the Irish Church
measure to my great satisfaction.
Then comes the work of embodying the principles agreed upon by
the Cabinet in a Bill of the prescribed form, divided into many
clauses, which again are sub-divided into sections. This is done by
Government draughtsmen, lawyers who are adepts in the use of the legal
verbiage--quaint, prolix and circumlocutory--which custom ordains must
be employed in an Act of Parliament, and which the lay mind often finds
so difficult to understand and the legal mind sometimes interprets in
various senses, when disputes arising out of an Act come for settlement
before the Courts.
The procedure of bringing in Bills in the House of Commons has been
much simplified. I can recall a time when no Bill could be introduced
by its promoter without leave being asked for first and obtained. When
leave was given by the House, the Minister or private Member, in charge
of the measure, was asked by the Speaker, “Who will prepare and bring
in the Bill?” and in answer the Minister or private Member recited the
names of three or four “backers,” including his own. Then retiring
to the Bar, he was called upon by the Speaker, and coming up to the
Table literally brought in his Bill. This ceremony was a survival from
ancient times when the “backers” left the Chamber to draft the Bill,
and after an interval returned with the finished composition. The
practice since 1902 is for the Minister, or private Member, to give
notice of his intention to bring in a Bill, which notice appears on
the “Orders of the Day”--the daily agenda of the proceedings in the
House--and when called upon by the Speaker he presents his Bill to the
Clerk at the Table without any ceremony, and it is thereby read a first
time. Occasionally, when it is thought necessary, in the case of a Bill
of some consequence, at once to explain its purport, a short statement
may be made by the Minister under what is called “the ten minutes’
rule,” the statement and one speech in criticism of the measure being
each limited to that period of time.
However, it sometimes happens that a Minister in charge of a Bill of
first-rate importance will ask leave, in the old form, to bring it in,
and in doing so will make a long speech both explanatory and defensive.
Such a Bill usually arouses Party feeling, and the Opposition at once
states their objection; but it is customary to allow the motion for
leave to be agreed to without a division. The Bill is printed and
circulated only after it has been read a first time, and, of course,
until its provisions are fully before the House no definite decision
can be come to by the Opposition in regard to it. Therefore the usage
of permitting a Bill to be introduced unchallenged is rarely departed
from, and only when, in the opinion of some section of the House, there
are reasons for fighting it even from the very first.
Leave having been given unanimously, or carried on a division, the
Minister brings in the Bill. The ceremony of introduction is then
carried out. The Minister goes down to the Bar, whence he walks up the
floor to the Table, amid the welcoming cheers of his supporters, hands
the Clerk what purports to be a copy of the Bill. Often it is but a
dummy copy, usually a folded sheet of paper with the title of the Bill
written upon it. Indeed, I have seen a Minister, on obtaining leave to
introduce a Bill, pick up from the Table the nearest sheet of notepaper
to hand, and while the House rang with the applause of his Party,
solemnly hand the Clerk that piece of virgin paper as a copy of the
great measure, which, perhaps, was expected to make earth a reflex of
Heaven.
2
It is on the motion for the second reading of the Bill that the
battle over its principles and proposals really begins. There is
a long debate--its length being determined by the importance or
contentious nature of the measure--in which the Bill is attacked by
the Opposition, and defended by the Ministers and their supporters, on
broad and general lines. A hostile amendment is moved. Sometimes it
is declaratory of the chief objections to the Bill. Sometimes it runs
simply--“That this Bill be read a second time this day six months,”
which amounts, in a roundabout way, to a motion for its rejection.
The debate of argument is closed by a trial of strength in numbers
in the division lobbies, and if the motion for the second reading be
carried--usually a foregone conclusion in the case of a Government
measure--the principles of the Bill are supposed to have received the
approval of the House.
Then comes the most important stage of all, and the most critical--the
Committee stage, during which the proposals of the Bill are considered,
separately and in detail, and efforts made to amend them or reject
them. But, occasionally, “instructions to the Committee” are raised as
obstacles to delay the House in getting into Committee on the Bill.
Notice was given of fourteen instructions in the case of the Home Rule
Bill of 1893. The Committee on a Bill have general powers to make
amendments which are relevant to the subject-matter of the Bill as
presented. The purpose of an “instruction” is to enable the Committee
to amend or alter the Bill in a way unauthorized by their general
powers. In other words, an “instruction” is usually intended to empower
the Committee to extend or limit the scope of the Bill in a manner not
contemplated by its promoters and hostile to the purpose they have
in view. “Instructions” are, in fact, usually designed to wreck the
Bill, or, at least, to impede its progress through the House, For
instance, one of the “instructions” to the Committee on the Home Rule
Bill aimed at a contemporaneous settlement of the Irish land question;
and another proposed that the number of seats in the House allotted
to Ireland should be considerably reduced. But Mr. Speaker Peel, by a
stroke of authority unique for its sweeping character perhaps in the
history of the Chair, which in a House governed by precedent has had
the effect of enormously increasing the power of the Speaker, declared
that, with one exception, the whole of the “instructions” were out or
order. It must not, however, be supposed that if the Speaker had ruled
otherwise the “instructions” would have been adopted, and that a land
measure, and a reform measure--to say nothing of the aims of the other
eleven “instructions”--would have been included in the scope of the
Home Rule Bill of 1893, making it appallingly complicated and unwieldy.
If an “instruction” is in order, it is moved and debated like other
motions, and its fate--which is, generally, rejection--is decided in
the division lobbies.
The House goes into Committee on a Bill simply enough. The Clerk
reads the title of the Bill--as, for instance, “The Representation
of the People Bill--Committee.” “The question is that I do now leave
the chair,” says the Speaker. “As many as are of that opinion will
say ‘Aye’; the contrary, ‘No.’ I think the ‘Ayes’ have it.” As his
declaration is allowed to pass unchallenged, he adds, positively, “The
‘Ayes’ have it,” and forthwith steps down from the Chair and quits the
Chamber. The Serjeant-at-Arms rises from his chair at the Bar, walks up
the floor, lifts the Mace from the Table, and places it out of sight on
rests below. The Chairman of Committees takes his seat at the Table,
not in the Speaker’s high Chair, but in the low chair of the principal
Clerk.
The House is now in Committee. It is, in fact, the House without the
Speaker and the Mace. Members are provided with copies of the Bill,
and a separate paper containing the amendments, of which notice has
been given days before to the Clerks. Immediately the second reading
of a big Bill is agreed to, there is a rush of Opposition Members
to the Table to hand in amendments. Many of these amendments are
certain to be duplicates, and he who gets in the first of the number
will be called on to move it. The amendment-paper is divided into
sections, each opening successively with a clause of the Bill, and
containing all the amendments put down to that clause. If the Bill
be very contentious, the amendment-paper runs to many pages. It is
at this stage that the direct influence of the House at large on the
legislative proposals of the Government comes into operation. The House
must necessarily allow the Cabinet to draw up the Bill, in accordance
with its political principles. Now comes the opportunity of Members
generally to criticize the details of the Bill and suggest alternative
proposals. Each evening that the Bill is down for consideration in
Committee, the Minister in charge--head of the Department which
will have the administration of the Act--enters the House with a
dispatch box, which he places on the Table in front of his seat on
the Treasury Bench. When he opens the box, a mass of documents of all
kinds--printed, typed and written--is disclosed to view. These papers
are constantly consulted by the Minister during the proceedings.
In them he finds most of the arguments with which to reply to the
amendments. They have been prepared for him by the permanent officials
of his Department--those Civil servants who retain their positions
under all Parties and faithfully serve the Ministers of whatever Party
may be in power. Not only that, but one or two of these officials are
sitting in a little gallery behind the Speaker’s Chair ready to hand
to be personally referred to by the Minister for advice or guidance
should he find himself hard pressed by any of the critics of the Bill.
The Minister is also helped by his Parliamentary Secretary. One of the
Law Officers, the Attorney-General or the Solicitor-General, comes
to his assistance when an amendment raising legal points is moved.
But most of the burden necessarily falls upon the Minister. He gets
little or no aid from his colleagues in the Administration. Every other
Minister has his own Department to look after, and it is the custom
for each to confine himself to his own affairs, and not to interfere
in the consideration of a measure affecting another Department unless
he is invited to do so by the Minister in charge. It is a difficult
and wearying task, indeed, to steer a big controversial Bill through
the always uncertain and sometimes turbulent waters of the Committee
stage, avoiding the rocks and shoals that thickly abound in the form of
unforeseen waverings and dissatisfactions in the ranks of supporters,
and sudden accessions of strength, in numbers or in argument, to the
Opposition.
3
The first amendment considered is, of course, the first amendment
put down to Clause 1. It is moved by the Member in whose name it
stands on the paper. A reply is given by the Minister in charge. He
may accept the amendment, but generally he opposes it. At any rate,
there follows a discussion which ends in a division. So the amendments
to a clause are dealt with in regular order as they appear on the
paper. For some days the amendment-paper shows no appreciable sign
of diminution. For as amendments to the earlier clauses are being
disposed of, fresh amendments to later clauses are being evolved from
the active and ingenious minds of the opponents of the Bill. While a
Bill is in Committee the amendments to it are reprinted every night and
distributed to Members in the morning, with other parliamentary papers.
It is customary for big controversial measures to occupy a month or
two of the session in Committee. Gladstone’s Land Bill of 1881 had
a run of twenty-five days in that stage; the Home Rule Bill of 1898
forty-seven days; and Balfour’s Education Bill, 1902, forty-five days.
Such Bills are discussed most carefully and elaborately, not only
clause by clause, but word by word. A Member can speak but once on any
question when the House is sitting. He may speak as often as he pleases
on any question in Committee subject to the opinion of the Chairman
as to the relevancy of the talk to the amendment. At times there is
undisguised obstruction by the opponents of the Bill. One of the chief
faculties of the Opposition bent on thwarting the nefarious designs
of the Government is that of elaboration of speech--a prolongation of
the “cackle” in order to delay getting to the “’osses.” But generally
debate in Committee of the whole House is much more businesslike
than debate in the House with the Speaker in the Chair. There is,
occasionally, full debate on an important amendment, a “field night”
on which all the controversial forces of each Party are brought into
action; but, as a rule, Members talk in a conversational fashion, and
argue the points in brief pointed speeches. The House on the occasion
of the second reading suggests rather an amphitheatre for oratorical
gladiators. In Committee it seems more the temple of legislation in
which not so much Party principles as free individual opinions are
brought to bear upon the subject.
The Bill, as I have said, is considered clause by clause. When all
the amendments to a clause have been disposed of, the Chairman puts
the question--“Clause 1” or “Clause 20” (as the case may be), “the
question is that ‘this clause stand part of the Bill,’” or, if it has
undergone alteration, “that this clause as amended stand part of the
Bill,” and on that question the principle of the clause may be again
debated, no matter how fully it may have been discussed indirectly
as amendment after amendment was moved to the clause. A Bill is not
rejected in Committee. If, however, an important clause is defeated,
not only is the Bill dropped, but the Administration, on whom a vote
of censure has thus, in fact, been passed, resigns--throwing upon the
Opposition the responsibility of carrying on the Government--or appeals
to the country to decide the issue in a General Election. But that is
an extremely rare occurrence. Amendment of the legislative proposals of
the Government is really limited by the operation of the Party system.
If the passing of the Bill, substantially in the form in which it is
brought in, is insisted upon by the Government, their will is upheld by
the majority of Members--their pledged Party supporters.
Nevertheless, a Bill occasionally undergoes alteration in Committee.
The Minister in charge puts down amendments with a view to removing
defects in the measure which have been brought out in the debate on
the second reading, and these, of course, are carried. Modifications
proposed by followers of the Government are also often accepted.
Moreover, there are compromises designed to gain support by satisfying
the wishes of particular sections of Members, or to disarm or appease
the Opposition, but leaving unaffected the main principles of the
measure. All the abilities of the House--its practical experience, its
special knowledge--are brought to bear on a big Bill in Committee,
and when at last that stage is concluded, when the Chairman puts the
question, “That I report this Bill with amendments to the House,”
and it is agreed to, there has been fashioned as good a piece of
legislative workmanship as is possible for the trained intelligence of
the Legislature, or rather of the Party in power, to produce--in the
light of their political opinions and pledges.
Thus the Government can rely upon the organized discipline of its
followers, the dead weight of its majority, to carry a big Bill
ultimately through the Committee stage with but little change in
principle or even in form, despite the constructive, or destructive,
criticism and action of the Opposition. And if the progress of the Bill
be too slow to their liking, they are armed with power to expedite it.
This is done by means of the system of closure by compartments. The
“guillotine,” as it is called for short, or the “gag,” which is the
rougher and briefer designation given to it by the Opposition, was
first applied in Committee on the Irish Crimes Bill of 1887. Arthur
Balfour, who, as Chief Secretary for Ireland, was in charge, moved,
when the Bill had been in Committee fifteen days, that in a week’s
time such clauses as remained undisposed of should be put forthwith
from the Chair without amendment or debate, and this was done on the
day appointed. Debate on the Home Rule Bill of 1893 in Committee was
curtailed by the same mechanical process. A time-table is accordingly
part of the established procedure in the case of large, complicated and
controversial Bills. It is used by all Parties when they are in power.
A motion for this closure is not carried if it appears on a division
that less than 100 members voted for it. Another form of closure is
known as the “kangaroo.” By this process the Chairman of Committees
is empowered to jump over the less important amendments on the paper,
and select for discussion those which raise more vital issues. The
Coalition Government under Lloyd George introduced a new principle
in the session of 1920. This was the appointment of an unofficial
committee, representative of Members generally, to select the questions
to be raised and debated by amendments to the Government of Ireland
Bill in the Committee stage for which twenty-one days were allotted.
4
The House of Commons recognized in 1882 that it is impossible for it to
do itself, and within its own Chamber, the vast amount of legislative
work, which, owing to the ever widening extension in all directions
of the operations of government, it is called upon to perform. It
decided, therefore, to delegate some of its functions to committees or
sections of itself sitting in rooms upstairs. Two Standing Committees
were appointed for the consideration of all Bills relating to law and
to trade. So valuable did this reform in parliamentary procedure prove
to be that in 1907 the Liberals, then in office, increased the number
of Standing Committees to four, for the consideration of Bills of a
larger and more general class. Each Committee consisted of not less
than sixty and not more than eighty Members, and was intended to be the
House in little, the various Parties or interests being proportionally
represented. In 1919 the number of Standing Committees was increased
to six, and the membership of each was reduced to fifty. The members
are nominated by the Committee of Selection--a small body of the oldest
and most experienced men in the House, appointed for this special
purpose, and who act upon the principle of giving representation to all
Parties and all sections of opinion. The system of Standing Committees
also provides for the devolution of business on the principle of
nationality. A Bill relating exclusively to Scotland is referred to a
Standing Committee consisting of all the representatives of Scottish
constituencies, together with ten other Members nominated by the
Committee of Selection and specially conversant with the subject to
be dealt with. In the same way Welsh Bills are referred to a Standing
Committee of Members from Wales, with fifteen other Members selected
from the general body. Every Bill, after the second reading, is
automatically sent to a Standing Committee, unless it is proposed and
agreed to that a particular measure be retained for consideration by
the Committee of the whole House, a course which is always followed
in the case of Bills of first-rate importance and Bills which, being
highly controversial, excite passion and antagonize Parties.
Each Standing Committee sits, with a chairman, in one of the
Committee-rooms upstairs, from eleven or twelve o’clock until the hour
the House meets, on alternate days, until its labours are over. Twenty
members form a quorum. Clause after clause of the Bill is considered,
amended, rejected, or adopted, in exactly the same way as if it were a
Bill before a Committee of the whole House. Service upon these Standing
Committees impose heavy additional obligations upon Members. But the
burden is, as a rule, cheerfully borne. They afford Members a larger
opportunity of taking an effective part in the work of legislation.
Many a Member of talent and business capacity, who, probably because
of the lack of a glib tongue, has failed to make himself a prominent
figure on the larger stage of the House, transfers his ambition for
distinction to the rather obscure shades of the Committee-rooms. The
reporters are admitted to the meetings of the Standing Committees, but
the newspapers give to the discussions not a tithe of the space which
they would give to proceedings on Bills of a similar kind in Committee
of the whole House. But despite the absence of that incentive to
devotion to duty which publicity is supposed to provide--or perhaps,
as some should say, because of it--the details of Bills so referred to
Standing Committees are carefully considered, the discussions are brief
and to the point, and, as a rule, the Acts which are so dealt with
will bear favourable comparison, in the matter of freedom from blots
and contradictions, with the statutes that have passed through the
Committee of the whole House. This is due largely to the Chairmen, who
are always chosen for their experience and discretion.
When a Bill has emerged from the Committee stage the worst of its
troubles are over, in the House of Commons at least. The Speaker is
sent for--if the Committee be one of the whole House--the Mace is
again placed upon the Table, and the House resumes. The Chairman of
Committees, standing by the Chair with a copy of the Bill in his hand,
reports to the Speaker that the measure has passed through Committee.
If a Bill be reported to the House without amendment, it may be read a
third time forthwith, and its passage through the House of Commons be
thus completed. But as it never happens that a big Government measure
goes through Committee without amendment, a day is fixed for the fourth
stage of a Bill, known as “the report stage,” and for it the Bill as
amended is reprinted.
On the report stage amendments may again be moved to the clauses
of the Bill, or new clauses may be proposed, or the Bill may even
be recommitted to the Committee again, if it has been found that
matters which can only be properly dealt with in that stage have been
overlooked. Still, the report stage is usually brief, the amendments
being generally confined to points that have not been dealt with
in Committee. It must be added, however, that in the case of a
controversial Bill which has been referred to one or other of the
Standing Committees the deliberations upstairs have little restraining
effect on the same contentions being debated at length in the House on
the report stage. What comes out most prominently in the passing of a
big Bill through its various stages is the persistence with which the
same questions are raised over and over again, showing how obstinate
is the reluctance of the Opposition to accept anything as settled,
and their desire to upset it while a chance to do so remains. Then
comes the fifth and last stage of the Bill--“the third reading.” There
is a set debate in which the principles of the Bill are attacked and
defended, as at the second reading stage. But the Bill cannot now be
altered in any way. It must be either adopted or rejected, and that
question is decided by a division. Of course, it is read the third
time. The defeat of a Government Bill on its third reading in the House
of Commons is a thing almost unknown.
5
The Bill then goes to the House of Lords. It was formerly the custom
for the Minister in charge of a Bill which passed the Commons to bring
it up to the Lords with much ostentation. The Reform Bill of 1831, for
instance, was brought up to the Lords by Lord John Russell, who had
conducted it through the Commons, and Lord Althorp, the Leader of the
House. The Ministers were accompanied by close on 200 Whig Members,
who burst into loud cheers when Lord Chancellor Brougham came down to
the Bar and received the Bill from Lord John Russell. But a different
procedure has been followed since 1855. The Clerk of the House of
Commons brings the Bill to the Bar of the House of Lords, where he
hands it over to the Clerk of the Parliaments. “A message from the
Commons,” says the Clerk of the Parliaments, “desiring your lordships’
concurrence in the first reading of the Representation of the People
Bill.” The Bill is then read the first time, and is again reprinted for
the use of the peers.
The Lords having given the measure a second reading, may alter its
details substantially in Committee. When they are in Committee on
a Bill the Lord Chancellor leaves the Woolsack and sits with other
Ministers on the Front Bench, and the Lord Chairman of Committees,
taking his seat at the Table, presides. After a Bill has passed through
Committee of the House, it is referred for further revision to the
Standing Committee, which consists of the Lord Chairman and eight
other peers. The Lords have also the power to amend a Bill at the
third reading stage--a practice which was abolished in the House of
Commons in 1856--and further opportunity for debate is provided by an
additional stage--dropped by the House of Commons also in 1856--“That
this Bill do pass.” But, however trivial the alteration made in the
Bill by the Lords may be, the Bill must be submitted again to the
Commons, who may agree or may not agree with the Lords. If they agree
with the Lords’ amendments, well and good. If they disagree, the Lords’
amendments are struck out, and the Bill is sent back to “another
place” (as the House of Lords is called in the House of Commons) in
its original form. It is generally recognized that the working of
the Constitution depends on compromise, and usually an arrangement
smooths, in the end, the differences between the two Houses. The Bill
accordingly is passed, and remains with the Lords for the Royal Assent.
But what if the Lords throw out a Bill at the first or second reading
stage? The Bill can ultimately be carried over their heads by means of
the Parliament Act which was passed in 1911 by the Liberal Government,
under Asquith as Prime Minister, to cope with the situation created
by the Lords in rejecting their Bill to give Home Rule to Ireland.
This Act provides that a Bill which is passed by the House of Commons
in three successive sessions, and is rejected by the Lords in each of
these sessions, shall on its rejection for the third time by the Lords
be presented to the King and become an Act of Parliament on the Royal
Assent being signified. It was by this procedure that the Government of
Ireland Act, 1914, was placed on the Statute Book. The enacting words
of an Act carried through both Houses in the ordinary way declares that
it has been passed by and with the advice and consent of the Lords and
Commons in Parliament assembled. A different form of words is used in
the case of an Act carried under the Parliament Act. It says:
Be it enacted by the King’s most excellent Majesty, by and
with the advice and consent of the Commons in this present
Parliament assembled, in accordance with the provisions of the
Parliament Act, 1911, and by authority of the same, as follows:
6
Such is the long and elaborate process by which a Bill passes through
both Houses towards its transformation into an Act of Parliament by
the Royal Assent. Nevertheless, a Bill may pass through all its stages
in both Houses and receive the Royal Assent within a single day.
Such expeditious law-making is rendered possible by the suspension
of the Standing Orders of both Houses which regulate procedure in
regard to Bills. It is resorted to only in a grave emergency. The
Bill for the suspension of the Habeas Corpus Act in Ireland during
the Fenian troubles in 1866--allowing arrest and imprisonment without
trial--was carried through both Houses on a Saturday, but owing to
the delay caused by the absence of Queen Victoria from London, it did
not receive the Royal Assent until one o’clock on Sunday morning--the
only occasion, perhaps, that Parliament has sat on the Sabbath. In
like manner the Explosive Bill, to cope with the dynamite conspiracy
for the blowing up of public buildings in 1883, passed through both
Houses before the midnight of the day on which it was introduced. In
1914, shortly after the outbreak of the World War, the Defence of the
Realm Act--which practically placed British liberty at the feet of
that capricious and whimsical lady, “Dora,” for the duration of the
War--was swiftly passed into law, all on one day, without having been
printed or circulated. The Standing Orders are also sometimes suspended
by agreement towards the end of a session in order to wind up business
quickly.