CHAPTER II

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.

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