of M. Noirtier de Villefort in "Monte Cristo," who was completely
paralysed except for one eye. Like him it has only a single faculty,
that of saying Yes or No. Individually the members may express the most
involved opinions, the most complex and divergent sentiments, but when
it comes to voting, the body can vote only Yes or No. Some one makes a
motion, some one else moves an amendment, perhaps other amendments are
superimposed, but on each amendment in turn, and finally on the main
question, the body simply votes for or against. Where a body acts by
plurality it can, of course, choose which of several propositions it
will adopt, which of several persons, for example, it will elect.[309:1]
But this depends upon the same general principle, that the body can act
collectively only on propositions laid before it by an individual, or a
group of men acting together as an individual. Ordinarily it can only
answer Yes or No to questions laid before it one at a time in that way.
[Sidenote: Framing the Question.]
Obviously, therefore, it is of vital importance to know who has power to
ask the question; and, in fact, one of the great arts in managing bodies
of men consists in so framing questions as to get the best possible
chance of a favourable reply. In small bodies that have limited
functions and an abundance of time, the members are free to propose any
questions they please; but in large assemblies, all of whose proceedings
are of necessity slower, this freedom is curtailed by lack of time,
especially if the range of activities is wide. Hence the legislatures of
all great states have been constrained to adopt some process for
restricting or sifting the proposals or bills of their members. The most
common device is that of referring the bills to committees, which can
practically eliminate those that have no serious chance of success, and
can amend others, putting them into a more acceptable form. In such
cases the committees enjoy, if not the exclusive privilege of proposing
questions to the legislature, at least the primary right of framing the
questions that are to be submitted, and this gives them a momentous
power. An organisation by committees is the most natural evolution of a
legislative body, if there is nothing to obstruct it. Now in Parliament
there has been something to obstruct it, and that is the system of a
responsible ministry.
[Sidenote: The Cabinet.]
The cabinet has been said to be a committee, and the most important
committee of the House; but it is really far more. Unlike an ordinary
committee, it does not have the bills of members referred to it. On the
contrary it has the sole right to initiate, as well as to frame, the
measures it submits to the House; and these comprise, in fact, almost
all the important bills that are enacted. By far the greater part of
legislation originates, therefore, exclusively with the ministers. The
system of a responsible ministry has obstructed the growth of
committees; because, in the case of government measures, the chief
function of such committees, that of sifting bills and putting them into
proper shape, is performed by the cabinet itself; and also because, as
will be shown hereafter, the authority of the cabinet would be weakened
if other bodies, not necessarily in accord with it, had power to modify
its proposals. In this connection it may be observed that in the domain
of private and local bills, where the responsibility of the cabinet
does not extend, there has developed a most elaborate and complete set
of committees, to which all such bills are referred.
[Sidenote: Subjects Treated in this Chapter.]
The relation of the cabinet to the House of Commons may be conveniently
treated under three heads: the initiative left to private members; the
direct control of the cabinet over legislation with its effects; and the
control of the House over the administration and the general policy of
the government.
[Sidenote: Private Members' Bills.]
It may appear strange that the existence of a responsible ministry
should obstruct the growth of committees on public bills brought in by
private members. Nevertheless it has done so; partly by reducing those
bills to a position of secondary importance; and partly because if the
committees were under the control of the government the private member
would be even more helpless than he is now, and if they were not they
might be at times inconvenient rivals to the ministry. As the House of
Commons is organised, therefore, the committees play a minor part. The
most important legislation of a public nature originates with the
ministers, and is entirely in their charge, save for an occasional
reference to a committee under exceptional circumstances; while private
members are free to bring their public bills before the House,
unfettered by any committee, provided they can find a chance to do so in
the extremely meagre allowance of time at their disposal. In short the
Commons have solved the question of time by giving most of it to the
government to use as it pleases, and leaving the private members to
scramble for the rest.
[Sidenote: Time Allotted to Private Members.]
Under the new rules of 1902 and 1906 government business has precedence,
from the opening of the session until Easter, at every sitting, except
after a quarter past eight o'clock on Tuesday and Wednesday and at the
sitting on Friday. Until Easter, therefore, these three periods in the
week are reserved for the private members. Between Easter and
Whitsuntide the government is given the whole of Tuesday for its own
use, and after Whitsuntide it has all the time except the third and
fourth Fridays next following.[312:1] As the private members have no
time reserved for them until the close of the debate on the address, the
arrangement gives them in a normal year about thirty parts of the
session out of a couple of hundred. It must be remembered also that the
part of a sitting after quarter past eight is shorter than that which
goes before; is never, on private members' nights, prolonged beyond the
hour of interruption; and is liable to be broken into by opposed private
bills, and motions to adjourn on a matter of urgent public
importance.[312:2] It is clear, therefore, that the share of time
reserved for private members is small. But although their lamentations
over confiscation of their sittings by the government have been
constant, the actual time at their disposal has not, in fact, been
seriously diminished of late years. An examination of the parliamentary
papers shows that in the ten years from 1878 to 1887 government business
actually had precedence on the average in eighty-three per cent. of the
sittings, and during the following decade in about eighty-four and a
half per cent.[312:3] This is very little less than the proportion that
now prevails. The recent rules have merely sanctioned by permanent
standing order a practice that had long been followed in an irregular
way by special resolutions adopted during the course of the session.
[Sidenote: Ballot for Days.]
When, as Hobbes remarked, there is not enough of any article to satisfy
everybody, and no one has authority to apportion it, the most obvious
means of distribution is the lot. This primitive method is still
employed for dividing among the private members the time reserved for
their use. Their sittings are devoted to two different objects. On
Tuesday and Wednesday evenings notices of motions have precedence, while
Friday is the day for bills. At the beginning of a session members who
want to introduce bills send in their names, and in the order in which
the lots are drawn they set down their bills for second reading on a
Friday, selecting, of course, the earliest unoccupied day. In this way
every Friday before Whitsuntide is taken, and although there will
probably not be time to deal with more than one bill in a day, less
successful competitors place their measures second or third on the
lists, hoping that they may be reached.
The first bill on the list usually comes to a vote on the second
reading, but when that point has been passed it is difficult to find an
opportunity for any of its subsequent steps. A reference to a standing
committee affords the best chance, because it avoids the committee stage
in the House. If a bill is not so referred, it is almost certainly
doomed, unless it can pass some of its stages, unopposed, after the hour
for the interruption of business; and, in fact, any bill is well-nigh
hopeless that does not take at least one step in this way.[313:1] On the
two Fridays remaining after Whitsuntide private members' bills are given
precedence in the order of their progress,[313:2] the most advanced
obtaining the right of way. The leader of the House may, however, star
any bill, that is, give to it a fraction of the government time, but
this is very rarely done, and never till near the close of a session.
[Sidenote: Insignificance of Private Members' Legislation.]
As there are only about a dozen Fridays before Whitsuntide, a private
member must be very fortunate in the ballot, or he must have a number of
friends interested in the same bill, to get it started with any prospect
of success; and even then there is scarcely a hope of carrying it
through if a single member opposes it persistently at every point. Ten
or fifteen such bills are enacted a year, and of these only a couple
provoke enough difference of opinion to lead to a division during their
course in the House.[314:1] But while many private members loudly bewail
their wrongs, they make no organised effort for mutual protection. These
men are, in fact, separate units without a basis for combination. They
have not even that spirit of the golden rule, which does much harm in
legislation. They show neither the good nature, nor the instinct for
log-rolling, which prompts men to vote for one another's bills, hoping
for like favours in return. Hence their labours produce little fruit,
either sweet or bitter. In short, the public legislation initiated by
private members is neither large in amount, nor important in character,
and it cannot be passed against serious opposition,--a condition that
tends to become more marked as time goes on.
[Sidenote: Private Members' Motions.]
The privilege on the part of private members of bringing forward motions
on Tuesday or Wednesday evenings is, like that of having bills
considered on Friday, determined by lot; with this difference, that a
notice of motion cannot be given more than four motion days ahead, and
hence the first ballot covers only two weeks, and is followed by fresh
balloting every week until Easter.[314:2] In order to improve the chance
of getting a hearing, a number of members interested in the same
question will often send in their names, with the understanding that any
one of them who is lucky enough to be drawn shall set down the motion.
This practice was introduced by the Irishmen; but it has now become
common among members of all kinds who take, or wish to appear to take,
an interest in a subject. It is called "syndicating," and has resulted
in making the motions not infrequently reflect the views of a
considerable section of the House.
[Sidenote: Their Nature and Effect.]
The motions on these nights take the form of resolutions, and are of
every kind. Some of them express aspirations of an abstract nature, such
as that the government ought to encourage cotton-growing in the British
colonies, or that the greater part of the cost of training teachers
ought to be borne by the national exchequer.[315:1] Others demand more
definite legislation about matters on which the parties are not prepared
to take sides. A motion, for example, was carried in 1904 that the
franchise for members of Parliament ought to be extended to women. But a
resolution adopted in that way, without opposition from the government,
is commonly regarded as a mere aspiration, and has hardly a perceptible
effect. Others again deal with the hobbies of individuals, and in that
case the members are apt to go home, so that after an hour or two of
desultory talk the House is counted out for lack of a quorum; the
frequency with which that occurs depending, of course, upon the amount
of general interest attaching to the motions that happen to appear on
the list.[315:2] Finally there are motions which attack the cabinet or
its policy, motions, for example, condemning preferential tariffs on
food, or the control by the central government of the police in Ireland.
Motions of that sort are, of course, strenuously resisted by the
Treasury Bench, and they will be discussed hereafter when we come to the
methods of criticising the action of the ministry.[315:3] Apart from
cases of this last class, the motions of private members have even less
practical importance than their bills. Occasionally a real popular
demand may find expression in that way, but it is uncommon, and the
chief value of the Tuesday and Wednesday evening sittings would seem to
lie in helping to keep alive the salutary fiction that members of
Parliament still possess a substantial power of independent action.
[Sidenote: Control of the Cabinet over Legislation.]
All the sittings not reserved for private members are at the disposal of
the government, and it can arrange the order of its business as it
thinks best.[316:1] The responsibility of the ministers for legislation
is a comparatively recent matter.[316:2] Before the Reform Act of 1832
their functions were chiefly executive; but the rapid demand for great
remedial measures, and later the complexity of legislation due to the
extended control and supervision by the administrative departments, and
not least the concentration of power in the cabinet by the growth of the
parliamentary system, brought about a change. By the middle of the
century that change was recognised, and at the present day the ministers
would treat the rejection of any of their important measures as
equivalent to a vote of want of confidence.[316:3]
Moreover, the government is responsible not only for introducing a bill,
but also for failing to do so. At a meeting in the autumn the cabinet
decides upon the measures it intends to bring forward, and announces
them in the King's speech at the opening of the session. Amendments to
the address in reply are moved expressing regret that His Majesty has
not referred to some measure that is desired, and if such an amendment
were carried it would almost certainly cause the downfall of the
ministry. This happened, indeed, in 1886, when the resignation of Lord
Salisbury's cabinet was brought about by the adoption of an amendment
regretting that the speech announced no measure for providing
agricultural labourers with land.
[Sidenote: Amendments to Government Bills.]
Following upon the responsibility for the introduction and passage of
all important measures has come an increasing control by the ministers
over the details of their measures. It was formerly maintained that the
House could exercise a great deal of freedom in amending bills, without
implying a loss of general confidence in the cabinet.[317:1] But of late
amendments carried against the opposition of the Treasury Bench have
been extremely rare.[317:2] In fact only four such cases have occurred
in the last ten years. This does not mean that the debates on the
details of bills are fruitless. On the contrary, it often happens that
the discussion exposes defects of which the government was not aware, or
reveals an unsuspected but widespread hostility to some provision; and
when this happens the minister in charge of the bill often declares that
he will accept an amendment, or undertakes to prepare a clause to meet
the objection which has been pointed out.[317:3] But it does mean that
the changes in their bills are made by the ministers themselves after
hearing the debate, and that an amendment, even of small consequence,
can seldom be carried without their consent. This is the natural outcome
of the principle that the cabinet is completely responsible for the
principal public measures, and hence must be able to control all their
provisions so long as it remains in office.
[Sidenote: Relation of the Cabinet to the Committees.]
From the same point of view the relation of the government to the
various committees of the House is a matter of great importance. If the
cabinet is to be responsible for the policy of the state, and must
resign when defeated, it is manifestly entitled to frame the policy on
which it stands. But if, as in some countries that have copied the
parliamentary form of government, and notably in France, the bills of
the cabinet are referred for consideration and amendment to committees
not under its control, then it may have to face the alternative of
opposing its own bill on account of the amendments made therein, or of
standing upon a measure of which it can no longer wholly approve. It may
be put in the awkward position of defending a policy that has been
forced upon it, instead of one of its own selection. Such a condition of
things has sapped the authority of the ministry, and weakened the
government in more than one nation of continental Europe.[318:1] This
danger has been avoided in England by the very limited use of committees
on public bills, and by the influence of the Treasury Bench over those
that exist.
[Sidenote: Controversial Bills not Referred to Committees.]
The most important government bills, and especially those of a highly
controversial nature, are not referred to committees at all. They are
debated only in the House itself; and in Committee of the Whole, which
is merely the House sitting with slightly different rules, and not a
committee in the sense in which the word is used in this chapter. To
select committees few public bills are referred, and those as a rule are
certainly not of a controversial character.[319:1] The only difficulty
arises in the case of the standing committees. When he first proposed
these in 1882, Mr. Gladstone said that they were not intended to
consider measures of a partisan character;[319:2] and it has been
generally recognised ever since that very contentious bills ought not to
be referred to them.[319:3] A long debate on the subject took place
recently, on the occasion when the bill to restrict alien immigration
was sent to the Standing Committee on Law in 1904.[319:4] All the
members who took part in the discussions, except Mr. Chamberlain,[319:5]
agreed on the general principle; but they did not agree upon any test of
contentiousness, and were sharply divided on the question whether the
Aliens Bill was contentious or not. Mr. Balfour himself took the ground
that the controversial character of a bill is a matter of degree, and
that this bill was near the border line. The obstacles in its path
proved in the end so serious that it had to be dropped for the session.
That a bill is non-contentious clearly does not mean that it is
unopposed, or even that the opposition has no connection with party.
Every one of the six government bills referred to standing committees in
1899, for example, had a party vote at some stage in its passage
through the House.[320:1] These committees are expected to deal, not
with questions of political principle, but with details that require
technical skill or careful consideration, in bills where the general
principle is either non-contentious, or may be regarded as settled by
the House itself. They were intended to be used for measures on which
the committee stage is not likely to raise any important questions of
policy. The original intention, however, has not been wholly carried
out. Highly contentious bills have not infrequently been "sent
upstairs,"[320:2] as the expression goes, although this has never been
done in the case of the most important government measures. Many people
feel that the departure is unfortunate, and hence there was no little
opposition in 1907 to raising the number of standing committees to four,
and providing that all bills should be referred to them unless the House
ordered otherwise. An amendment, to the report of the committee, that
the provision should not apply to bills containing general controversial
matter was rejected by a strict party vote,[320:3] and the change in
procedure was put through the House itself by the use of closure.[320:4]
If the standing committees were confined to non-contentious measures,
they could create no serious embarrassment for the ministry, even if
quite free from its control.
[Sidenote: Party Complexion of Committees.]
But in fact the committees are a good deal under the influence of the
government. In the first place the government party is always given a
majority of the members. Formerly it had on select committees a majority
of one only,[320:5] but now it has become a general rule that both
select and standing committees shall reflect as nearly as may be the
party complexion of the House itself. Thus in 1894, when the parties
were nearly evenly balanced in the House, the government majority on the
committees was usually very small, but after the Conservatives came into
power with a much larger majority, their share of members in the
committees was correspondingly great.[321:1] The standing committees,
and often the select committees also, are appointed by the Committee of
Selection, which contains usually six adherents of the party in power,
and five from the other side of the House. But they are members of great
experience. They know the principles they are expected to apply, and
with their discretion in the choice of individuals the ministers make no
attempt to interfere.[321:2]
[Sidenote: Influence of the Government in Committees.]
The mere possession of a majority upon a committee is not always enough,
unless the government can bring pressure to bear upon its followers. In
select committees on bills this is not a matter of much consequence,
because, as we have seen, they rarely have charge of important, or at
least of contentious, measures. In select committees of inquiry one
hears nothing of pressure--to the credit of statesmen be it said--and
although the report of an English committee or commission of inquiry is
often a variation on the theme that "no one did anything wrong, but they
had better not do it again," still there are reports that contain
severe criticism on the public administration.[322:1] In the standing
committees the influence of the government is palpable. In fact these
committees, when dealing with government bills, are miniatures of the
House in arrangement as well as in composition. There are the same rows
of benches facing each other; and the minister in charge of the bill
sits in the corner seat at the chairman's right hand, accepting, or
refusing to accept, amendments on behalf of the government.[322:2]
Absent members are fetched in the same way to take part in
divisions;[322:3] and when the Conservatives were in power, whips were
sometimes issued imploring them to be present on the morrow, because an
important vote was expected. The Liberals do not do this, and often have
trouble in getting their partisans to attend. Moreover, a difficulty
sometimes arises from the fact that the members who are most strongly
interested in a bill and hence least under the control of the
minister--the Labour men or the Irish Nationalists, for example, in the
case of bills affecting their constituents--attend far more regularly
than the rest. But although the influence of the government over a
standing committee is distinctly less than over the House itself,[322:4]
it is certainly very considerable.
[Sidenote: Few Party Votes in Committees.]
Nevertheless the voting in both select and standing committees runs
little on party lines, decidedly less than it does in the House itself.
Taking two recent years, 1894 and 1899, for which the writer has had
statistics prepared, it appears that in 1894 there were in the select
committees twenty-three party votes out of eighty-four divisions; and
in the Standing Committees on Law and Trade[323:1] there were only
seven divisions in all, of which only two were on party lines; whereas
in the House itself there were one hundred and eighty-four party votes
out of a total of two hundred and forty-six divisions. Moreover, the
party votes in committees were mainly confined to a very few subjects.
Thus seventeen of the twenty-three party votes in the select committees
were given in the committee on the work of the Charity Commission, and
four of the remainder were in that on Scotch Feus and Building
Leases.[323:2] For 1899 the comparison is even more striking. In the
select committees there was one party vote out of sixty-three divisions;
in the standing committees six out of fifty-three--and those six were
all on one bill[323:3]--while in the House there were two hundred and
forty-two party votes out of three hundred and fifty-seven
divisions.[323:4]
The reasons why the votes run on party lines less in the committees than
in the House itself are self-evident. First there is the fact that the
most contentious measures, those where party feeling runs highest, are
not referred to committees. Another reason, not less important, is that
a defeat of the government, even in a standing committee, cannot
directly imperil the life of the ministry, and hence the final means of
pressure is lacking. In fact an amendment is occasionally carried
against the government in a standing committee, and in that case the
minister either makes up his mind to accept the change or tries to get
it reversed in the House on report. But this very condition, which is
embarrassing for the minister, shows that there is a limit to the work
standing committees can be set to do, without imperilling the authority
of the cabinet.
[Sidenote: Suggestion of a Committee on the Estimates.]
A similar danger would attend the use of committees on the estimates.
The creation of such committees has often been suggested,[324:1] and for
a very good reason. The debates on the estimates in the House of Commons
have become an opportunity for criticising the conduct of the
administration, while the financial aspect of the matter, the question
whether the grants are excessive and ought to be reduced or not, has
largely fallen out of sight. It has not unnaturally been felt that this
function, which the House itself is disinclined to discharge, might be
effectively performed by a select or standing committee. But if the
committee were really to revise the estimates, it would, like the
committees on the budget in continental parliaments, encroach upon the
power of the government to frame its own budget. It would imperil the
exclusive initiative in money matters, which is the corner-stone both of
sound finance, and of the authority of a responsible ministry. That the
Committee on Accounts should scrutinise the disbursements with care, to
see that they correspond with the votes, is most salutary; and that
special committees should be appointed from time to time, to review the
expenditures, and suggest possible lines of saving, is also excellent.
These are in the nature of criticism of past actions, with suggestions
of a general character for the future, and they do not affect the
freedom of the cabinet to lay down its own policy and prepare its own
budget.
The last committee on national expenditure reported in 1903 in favour of
having a select committee examine each year one class or portion of the
estimates; but there was a sharp difference of opinion on the question
whether such a committee would or would not interfere with the
responsibility of ministers, and the recommendation was adopted only by
a vote of seven to five.[325:1] In view of the experience in other
countries, one cannot help feeling that the minority was right; that
while the proposed committee would be far less of a thorn in the side of
the Treasury Bench than one on the estimates as a whole, yet that if it
really exerted any authority, and ventured to report reductions, it
would stand to just that extent in a position of antagonism and rivalry
with the ministers.
[Sidenote: Legislative Capacity of Parliament has been Reached.]
One of Mr. Gladstone's objects in proposing the standing committees was
to increase the legislative capacity of the House, by enabling it to do
a part of its work by sections sitting at the same time.[325:2] Such a
process of making one worm into two by cutting it in halves is well
enough with an organism whose nervous system is not too highly
centralised; and in England it seems to have been carried about as far
as is consistent with a responsible ministry. The standing committees
have to some extent fulfilled this purpose, but it is extremely doubtful
whether they can wisely be charged with bills of a more contentious
nature than are sent to them now. In order to increase the legislative
output the number of standing committees was raised to four, on April
16, 1907, with a provision that bills should be regularly referred to
them unless the House directed the contrary. How far this change will
result in placing in their hands more controversial bills, and how far
it will increase the power of the House to pass laws, remains to be
seen. There can be no doubt, however, that the legislative capacity of
Parliament is limited; and the limit would appear to be well-nigh
reached, unless private members are to lose their remnant of time, or
debate is to be still further restricted, so that the members will no
longer be free, until closure is moved, to speak at such length as they
please, and to discuss every conceivable detail, great or small, often
several times over. But upon the preservation of these things the
position of the House of Commons largely depends.
To say that at present the cabinet legislates with the advice and
consent of Parliament would hardly be an exaggeration; and it is only
the right of private members to bring in a few motions and bills of
their own, and to criticise government measures, or propose amendments
to them, freely, that prevents legislation from being the work of a mere
automatic majority. It does not follow that the action of the cabinet is
arbitrary; that it springs from personal judgment divorced from all
dependence on popular or parliamentary opinion. The cabinet has its
finger always on the pulse of the House of Commons, and especially of
its own majority there; and it is ever on the watch for expressions of
public feeling outside. Its function is in large part to sum up and
formulate the desires of its supporters, but the majority must accept
its conclusions, and in carrying them out becomes well-nigh automatic.
FOOTNOTES:
[309:1] Curiously enough, such a procedure is unknown in the House of
Commons, and the term itself is unfamiliar. It means in the case of an
election, for example, that a candidate to be successful need only have
more votes than any one else, whereas election by majority means that he
must have more than half of the votes cast. The proposal for a second
ballot in elections to Parliament involves requiring a majority instead
of a plurality on the first ballot.
[312:1] S.O. 4. In his account of the evolution of procedure in the
House of Commons (_Recht und Technik des Englischen Parlamentarismus_,
_Buch I., Abs. 2_), Redlich traces the history of the practice of
reserving particular days for the government, which began in 1811.
[312:2] It is a mistake to lay too much stress upon the exact proportion
of time allotted to private members and to the government; because much
of the time of each is devoted to the same purpose. One of the uses to
which private members' evenings are put is criticism of the conduct of
the ministry, but this is also the principal object of the debates upon
the address, upon the estimates in Committee of Supply, upon motions to
adjourn and on other occasions.
[312:3] These figures are taken from the return made for ten years in
1888, and the subsequent annual returns, making due allowance for the
cases of two short sittings instead of a long one in a day. An exact
computation by hours would be difficult. The evening sittings are
shorter than the average sittings, but so were the old Wednesday
sittings reserved for private members.
[313:1] As Redlich observes (_Recht und Technik_, 206) the introduction
of the twelve-o'clock rule for the interruption of business brought in
the habit of talking out a bill before midnight, and blocking bills
after midnight, two of the great obstacles to legislation by private
members.
[313:2] S.O. 6.
[314:1] Although the time at the disposal of private members has not
changed much of late years, the number of these bills enacted, and
especially of those enacted against opposition, has diminished sensibly.
In the decade from 1878 to 1887 about twenty-three such bills were
passed a year, and on four or five of these divisions took place.
[314:2] S.O. 7. Ilbert, "Manual," Secs. 45, 119.
[315:1] The following examples are all taken from the session of 1904.
[315:2] In 1903, for example, the House was counted out for want of a
quorum on seven out of the seventeen private members' nights; while in
1904 this happened only once, and then after the first motion had been
voted down.
[315:3] On March 22 and 28, 1905, the ministers, with their followers,
took no part in the debates or divisions on the motions of private
members condemning their attitude on the fiscal question, and they paid
no attention to the votes. This event, which was unprecedented, will be
discussed later.
[316:1] S.O. 5.
[316:2] _Cf._ Todd, "Parl. Govt. in England," II., 368. Ilbert,
"Legislative Methods and Forms," 82, 216.
[316:3] The only cases where a government bill has been rejected by the
House of Commons for more than a score of years are those of the Home
Rule Bill in 1886, on which the cabinet dissolved Parliament, and an
insignificant bill on church buildings in the Isle of Man, which was
defeated in a thin House in 1897.
[317:1] _Cf._ Todd, "Parl. Govt. in England," II., 370-72.
[317:2] The number of amendments to government bills (not including the
estimates) carried against the government whips acting as tellers in
each year since 1850, has been as follows:--
1851 9
1852 2
1853 6
1854 7
1855 5
1856 7
1857 4
1858 2
1859 1
1860 4
1861 6
1862 6
1863 4
1864 2
1865 4
1866 2
1867 8
1868 7
1869 2
1870 2
1871 4
1872 8
1873 4
1874 0
1875 0
1876 0
1877 0
1878 0
1879 1
1880 0
1881 0
1882 1
1883 3
1884 3
1885 4
1886 2
1887 1
1888 1
1889 0
1890 0
1891 1
1892 0
1893 1
1894 0
1895 0
1896 1
1897 0
1898 0
1899 0
1900 0
1901 1
1902 0
1903 0
1904 2
1905 1
1906 0
[317:3] The minister often says that he will consider whether he can
meet the views that have been expressed; and then on the report stage he
brings up a compromise clause. An interesting example of this occurred
on July 23, 1906, when the Opposition complained that sufficient time
had not been given for debating the educational council for Wales, the
provisions proposed having been profoundly changed since it had been
last before the House. The government replied that the changes had been
made to meet objections raised by the Opposition itself. Hans. 4 Ser.
CLXI., 741 _et seq._
[318:1] For France, see Dupriez, _Les Ministres_, II., 406-8, 410-13.
Lowell, "Governments and Parties," I., 111-17. For Italy, Dupriez, I.,
309, 312. Lowell, I., 207-10. For Belgium, where the evil is diminished
by greater party discipline, and by the fact that the changes proposed
by the committee must be moved as amendments to the government bill, see
Dupriez, I., 243-45. In France permanent standing committees have been
very extensively substituted during the last few years for temporary
ones appointed to consider particular bills; but while this may do good
in other ways, it cannot entirely remove the evil described in the text.
[319:1] In each of the years 1894 and 1899, for example,--years for
which I have analysed the divisions in Parliament,--only one government
bill, that was enacted, was referred to a select committee, and neither
of these bills had a division on party lines in the course of its
progress through the House.
[319:2] Hans. 3 Ser. CCLXXV., 149.
[319:3] See, for example, Hans. 4 Ser. IV., 1461, XXII., 1151, XXIII.,
713-14, 1012, XXXIII., 851-54, CII., 345.
[319:4] Hans. 4 Ser. CXXXV., 1086 _et seq._ Another debate has since
occurred on March 20-21, 1907.
[319:5] Mr. Chamberlain's views seem to have undergone some
modification. _Cf._ Hans. 4 Ser. XXIII., 1012, and CXXXV., 1113-14.
[320:1] I define a party vote arbitrarily as one where more than nine
tenths of the members of the party in power, who take part in the
division, vote together on one side, and nine tenths of the Opposition
who take part vote together on the other side.
[320:2] Second Rep. of Com. on House of Commons (Procedure), May 25,
1906, Qs. 96, 113, 142, 381 (p. 41). The rooms of the standing
committees are on the upper floor.
[320:3] _Ibid._, p. viii.
[320:4] Hans. 4 Ser. CLXXII., 873-919.
[320:5] Hans. 3 Ser. CCLXXV., 306-7.
[321:1] This does not, of course, apply to the ordinary committees on
private and local bills, and it cannot always be strictly applied to all
select committees. But in the case of standing committees the
apportionment is decidedly accurate. In fact one of the chief objections
to a standing committee for Scotland, composed mainly of Scotch members,
was that it would not reflect the proportion of parties in the House. In
the debate Mr. Balfour remarked that this "is not merely the traditional
practice, but a practice absolutely necessary if we are to maintain
Governmental responsibility in matters of legislation." He asked what
would be the position of the government with standing committees of
which they did not happen to possess the confidence. The committee would
send back a bill changed, and then the minister must either drop the
bill, or accept it as it is, or reverse the changes on the report stage.
Such a position would, as he said, be intolerable, and would make
legislation by a responsible ministry an absurdity. (Hans. 4 Ser. XXII.,
1132, 1135-36.) _Cf._ Second Rep. Com. on House of Commons (Procedure),
May 25, 1906, Q. 100.
[321:2] Hans. 3 Ser. CCCXXXIX., 126. The chairmen of the standing
committees are intended, like the Speaker, to be strictly impartial.
They are selected by and from the Chairman's Panel, which contains three
members from each side of the House; and a member of the Opposition
often presides when a government bill is discussed.
[322:1] Notably in recent years that of 1903 on the War in South Africa,
Com. Papers, 1904, XL., 1 _et seq._; and that of 1904 on the Beck case,
Com. Papers, 1905, LXII., 465 _et seq._
[322:2] "The very structure and furniture . . . of the Chamber in which
the Grand Committee would sit, were designed to carry out the idea of
government by Party." Hans. 4 Ser. XXII., 1162.
[322:3] Hans. 4 Ser. XCII., 570.
[322:4] Second Rep. of Com. on House of Commons (Procedure), 1906, Qs.
100, 280, 341.
[323:1] In the anomalous standing committee for Scotch business the
condition of things was very different. It reported upon only one bill,
that on Local Government for Scotland, and on this there were no less
than sixty-three divisions, of which twenty-one were party votes.
[323:2] Both of the party votes in the standing committees of Law and
Trade in 1894 were on the Church Patronage Bill, which was not a
government bill.
[323:3] The Agriculture and Technical Education (Ireland) Bill.
[323:4] The method of making these computations is the same as that
described in the chapter on "The Strength of Party Ties," and the
divisions in the committees are taken from their reports in the blue
books for the year.
The figures may be presented in other ways which give much the same
result. If we take only the party in power, to see in what proportion of
divisions it cast a party vote--paying no attention to the votes of the
members of the Opposition--we find it as follows:--
1894: House 81%; Select Coms. 49%; Stand. Coms. Law & Trade 43%
1899: House 91%; Select Coms. 34%; Stand. Coms. Law & Trade 59%
1900: House Select Coms. 18%; Stand. Coms. Law & Trade 43%
The proportion of divisions where neither party cast a party vote were
as follows:--
1894: House 4.13%; Select Coms. 25%; Stand. Coms. Law & Trade 14%
1899: House 2.28%; Select Coms. 43%; Stand. Coms. Law & Trade 26%
1900: House Select Coms. 45%; Stand. Coms. Law & Trade 41%
The number of party votes in 1900 was in Select Coms. 4 out of 51, and
in Stand. Coms. 6 out of 74.
[324:1] Todd, "Parl. Govt. in England," I., 744-46. May, 564. Rep. of
Com. on Estimates Procedure, Com. Papers, 1888, XII., 27, p. iv. Report
Com. on Nat. Exp., Com. Papers, 1903, VII., 483.
[325:1] Rep. Com. on Nat. Exp., Com. Papers, 1903, VII., 483.
[325:2] Hans. 3 Ser. CCLXXV., 145-46.
CHAPTER XVIII
THE COMMONS' CONTROL OF THE CABINET
[Sidenote: Control of the House over Administration.]
If the relations between the cabinet and the House of Commons in
legislative matters have changed, their relations in executive matters
have been modified also. If the cabinet to-day legislates with the
advice and consent of the House, it administers subject to its constant
supervision and criticism. In both cases the relation is fundamentally
the same. In both the English system seems to be approximating more and
more to a condition where the cabinet initiates everything, frames its
own policy, submits that policy to a searching criticism in the House,
and adopts such suggestions as it deems best; but where the House, after
all this has been done, must accept the acts and proposals of the
government as they stand, or pass a vote of censure, and take the
chances of a change of ministry or a dissolution.
[Sidenote: It Rarely directs Administrative Action.]
There is nothing to prevent the House of Commons from adopting an
address or resolution calling upon the government for specific
administrative action; and it has been occasionally, though not often,
done.[327:1] Under the present rules of procedure there are few
opportunities for a direct vote of this kind, the chief occasions when
it is in order being the evening sittings reserved for private members'
motions. On these and other occasions resolutions asking for executive
action are sometimes brought forward,[327:2] but they are rarely
carried against the opposition of the cabinet. In fact it does not seem
to have occurred at all in the last ten years, while in the preceding
ten years it occurred only four times; and it so happened that in the
last three of those cases, at least, the government did not carry out
the wishes of the House.[328:1] Such votes are not likely to be common
in the future, because the modern principle of responsibility requires
that the ministers should be free to act and be held to account for what
they do, rather than that they should be given explicit directions in
regard to their duties.
[Sidenote: It Criticises Freely the Conduct of the Government.]
If the House of Commons does not often pass votes asking for executive
action in the future, its members criticise the conduct of the
government in the past freely and constantly. The opportunities for
doing so are, indeed, manifold. There is first the address in answer to
the King's speech at the opening of the session; then the questions day
by day give a chance, if not for direct criticism, at least for calling
the ministers to account; then there are the motions to adjourn; the
private members' motions; the debates on going into the Committees of
Supply and Ways and Means; the discussions in the Committee of Supply
itself; the debates on the Consolidated Fund Resolutions, on the
Appropriation Bill, on the Budget, and on the motions to adjourn for the
holidays; and, finally, the formal motions of want of confidence. The
way in which these various occasions are used to bring the acts of the
ministers to the attention of Parliament needs explanation.
[Sidenote: Individual Criticism and Collective Censure.]
But first it is important to distinguish between individual criticism by
members, and collective censure by vote of the House. The former,
whether coming from the seats behind the Treasury Bench, or from the
opposite side of the floor, is in the nature of a caution to the
ministers, an expression of personal opinion that is likely to find more
or less of an echo outside of Parliament. It does not in itself imperil
the position of the government at the moment, although the errors of the
ministers pointed out in this way go into the great balance of account
on which the nation renders its verdict at the next general election.
But a collective censure by vote of the House may mean immediate
resignation. Now the system of a responsible ministry implies the
alternation in power of two parties holding different views upon the
questions of the day. If it does not imply this; if the fall of one
cabinet is followed by the appointment of another with a similar policy;
then public life will revolve about the personal ambitions and intrigues
of leading politicians,--a condition that has caused much of the
discredit now attached to the parliamentary system in some continental
states. But if a change of ministry involves the transfer of power to an
Opposition with quite a different programme, it is clear that the change
ought not to take place until the nation has declared, either at the
polls, or through its representatives in the House of Commons, that it
wishes that result. The ministers ought, therefore, to stand or fall
upon their general policy, upon their whole record, or upon some one
question that in permanent consequence outweighs everything else, not
upon a particular act of secondary importance. Moreover the judgment
ought to be given after mature deliberation, not in the heat of a
debate upon some political blunder brought suddenly to the notice of the
House. Exactly the reverse of this occurs under the French system of
interpellations. By that procedure a single act of the government can be
made the subject of a debate ending with motions condemning or
justifying the occurrence; and great ingenuity is sometimes displayed in
so framing the motions as to catch the votes of members, who, although
supporters of the cabinet, cannot approve of the act in question.[330:1]
How a resort to similar tactics in the House of Commons has been more
and more barred out, will be seen in the following pages, which describe
the different methods of bringing the conduct of the ministers before
the House.
[Sidenote: Address in Reply to the King's Speech.]
The first two or three weeks of an ordinary session are taken up with a
debate on the address in reply to the King's speech. The address
provides a field for a series of political battles, fought over the
amendments that are brought forward. There are a dozen or more of these
every year; many of them urging the need of legislation that is not
foreshadowed in the speech; others relating to purely administrative
matters arising in foreign or domestic affairs. Sometimes they deal with
large questions of public policy, like the extension of the frontier of
India, or the maintenance of the integrity of China. But this is by no
means always true; and amendments are moved, for example, drawing
attention to the grievances of the postal and telegraph clerks, or
complaining of the government for failure to prosecute the directors of
a blasted financial scheme or for the releasing or refusing to release
persons convicted of crimes connected with political agitation in
Ireland. In some of these cases particular acts are brought before the
bar of the House; and it is usually impossible to avoid a direct vote
upon them. But they are not recent events, or unexpectedly sprung upon
Parliament. They have almost always aroused a good deal of public
attention, and formed the subject of no little discussion. The
government has, therefore, plenty of time to prepare its defence, to
sound and marshal its followers; and it does not, in fact, suffer
defeats on administrative questions brought forward in this way. Twice
in more than twenty years the government tellers have found themselves
in a minority on an amendment to the address, but neither case involved
an executive act. The first, in 1886, was an amendment expressing regret
that the speech had announced no measure for the relief of agricultural
labourers. Under the peculiar state of parties Lord Salisbury's cabinet
took the defeat as a vote of want of confidence and resigned. The other
case occurred in 1894, when an amendment aimed at the power of the Lords
to reject bills passed by the Commons was carried against the government
on the motion of some of its own followers; but it was clearly not the
kind of vote that involves the downfall of a ministry.
While, therefore, the address is essentially a time for the discussion
of questions of general policy, it is, no doubt, an occasion when
particular acts may be brought up for judgment, and a direct vote forced
upon them, although not in the way that is most embarrassing for a
cabinet.
[Sidenote: Questions to Ministers.]
Isolated examples of questions addressed to ministers can be found far
back in the eighteenth century, but the habit did not become common
until about sixty years ago. At that period one hundred or more
questions were asked in the course of a session, and the first
regulations were made regarding the time and method of putting
them.[331:1] Thereafter the practice grew so fast that in the seventies
over one thousand were asked in a session, and by the end of the century
it had increased to about five thousand. In form questions are simply
requests for information. They must contain no argument, no statement of
fact not needed to make their purport clear, and they must be addressed
to that minister in the House in whose province the subject-matter of
the inquiry falls.[332:1] They cover almost every conceivable field; the
intentions of ministers in the conduct of the business of the House;
acts done by officials of all grades in every department of the public
service; and even events that might be expected to give rise to action
by the government. The process of answering questions gives to the
Treasury Bench an air of omniscience not wholly deserved, for notice of
the question to be asked is sent in a day or two in advance so as to
give time for the permanent subordinates to hunt up the matter, and
supply their chief with the facts required.
[Sidenote: Motives for Asking Them.]
Questions are asked from various motives; sometimes simply to obtain
information; sometimes to show to constituents the assiduity of their
member, or to exhibit his opinions; sometimes to draw public attention
to a grievance; sometimes to embarrass the government, or make a telling
point; and at times a question is asked by a supporter of the minister
in order to give him a chance to bring out a fact effectively. But
whatever the personal motive may be, the system provides a method of
dragging before the House any act or omission by the departments of
state, and of turning a searchlight upon every corner of the public
service. The privilege is easily abused, but it helps very much to keep
the administration of the country up to the mark, and it is a great
safeguard against negligent or arbitrary conduct, or the growth of that
bureaucratic arrogance which is quite unknown in England. The minister
is not, of course, obliged to answer, but unless he can plead an obvious
reason of public policy why he should not do so, as is often the case in
foreign affairs, a refusal would look like an attempt to conceal, and
would have a bad effect.
[Sidenote: Not followed by Debate or Vote.]
Now while questions furnish a most effective means of bringing
administrative errors to the notice of the House they afford no
opportunity for passing judgment upon them; and thereby they avoid the
dangers of the French custom of interpellations. A question in England
is not even followed by a debate. Often, indeed, the member says that
his inquiry has not been fully answered, or interjects a remark,
objection or further question; but this is never allowed to grow into a
discussion, and when the habit of asking supplementary questions becomes
too common the ministers refuse to answer them altogether, to the
temporary exasperation of the Opposition, or the Speaker himself checks
them, enforcing the rule against introducing matter of argument. If no
debate is in order, neither is a vote; and hence questions furnish a
means of drawing public attention to an act, but not for collective
censure of it by the House.
[Sidenote: Motions to Adjourn.]
[Sidenote: Their History.]
Although a question cannot give rise directly to a discussion or a vote,
yet a motion, followed both by a debate and a division, may result from
a question. This is the "motion to adjourn for the purpose of discussing
a definite matter of urgent public importance," which is commonly, but
by no means always, provoked by an answer to a question. It has had a
curious history. There is in the House of Commons no principle of
universal application requiring debate to be confined to the subject of
the motion before the House, and great latitude was formerly permitted
in the discussion of motions to adjourn.[333:1] Taking advantage of this
fact it became the habit to create an opportunity for debating some
matter that could not be brought forward in the ordinary course of
procedure, by moving the adjournment before the orders of the day had
been taken up; and the object being merely debate, the motion was almost
always withdrawn after it had served its purpose. In 1877 motions of
this kind began to be used, much against the inclination of the Speaker,
to bring on a debate where the answer to a question had been
unsatisfactory; and about the same time they ceased to be regularly
withdrawn.[334:1] A few years later, indeed, it became common to push
these motions to a division. Before 1881 this seems to have been done in
only two instances,[334:2] but in that year it was done seven times, and
the motions themselves rose to the unprecedented number of nineteen.
Members were beginning to regard the motion to adjourn as a privilege,
while the freedom with which it could be used opened a door for abuse.
The government, however, speedily restricted the practice by regulations
that dealt with different kinds of motions to adjourn in different ways.
The motion to adjourn for the Easter or Whitsuntide recess was left
untouched, and still gives rise, as we shall see, to a miscellaneous
discussion of many things. Upon a motion to adjourn, made, on the other
hand, while the House is engaged upon the business of the day, debate
was, by a standing order of 1882, confined strictly to the question of
adjournment;[334:3] and, finally, the motion to adjourn, made before the
orders of the day have been taken up, was hedged about by limitations
peculiar to itself.
[Sidenote: Motion to Adjourn to Discuss an Urgent Public Matter.]
Mr. Gladstone's Urgency Resolution of 1881 gave to the Speaker control
over the business of the House so long as the matter declared urgent was
under consideration; and in framing rules for the exercise of his power
the Speaker laid down a principle that was embodied in a standing order
in the autumn of 1882.[334:4] The order, which is still in force
to-day, provides that a motion to adjourn shall not be made before
taking up the business of the day, except by leave of the House, unless
forty members rise in their places to support it, or ten members rise,
and the House, on a division, decides that the motion shall be made. It
provides, also, that the motion can be made only "for the purpose of
discussing a definite matter of urgent public importance."[335:1] The
standing order of 1882 prevented waste of time by a frivolous or
eccentric use of the motion to adjourn, but did not prevent any
considerable body of opponents from using it to bring the ministers to
account. This may be seen from the fact that in the twenty years
following the adoption of the order the motion was made one hundred and
forty-six times, and in just one half of those cases it was pushed to a
division.
[Sidenote: Object of the Motion.]
Although the motion is almost invariably made by an opponent of the
ministry, the object is not always censure. Sometimes it is made in
order to obtain fuller information than can be given by an answer to a
question; sometimes in order to rivet attention on a subject; and, as we
have seen, it is often withdrawn or negatived without a division. Yet it
does furnish a method by which, without notice, a debate can be
precipitated and a vote taken upon a specific act or omission of the
government; and this is after all its chief importance. The motion
bears, therefore, a certain resemblance to the French interpellation,
but the difference in form is of the utmost consequence. There is in
England no chance to frame the motion, as in France, to express subtle
shades of meaning. It cannot be so drafted that conscientious members of
the dominant party may feel obliged to vote for it, although it implies
a condemnation of the government. The motion to adjourn does not,
indeed, express in terms any judgment upon the subject-matter of the
debate, and a supporter of the cabinet can, without inconsistency, state
his opinion that the ministers have blundered, and then vote against
the adjournment. The motion has, in fact, been carried only twice; once
on May 10, 1881, before the Standing Order of 1882, in a very thin
House, when the government did not oppose it;[336:1] and a second time
on July 5, 1887, after the debate over the arrest of Miss Cass. In
neither case did any minister resign.
[Sidenote: Its Danger.]
[Sidenote: Under the Rules of 1902 and 1906.]
Still the motion to adjourn is a source of danger to the cabinet. Cool
as English public men are, and strong as the bonds of party have become,
it would be rash to predict that the House of Commons will not be
carried away again as it was in the case of Miss Cass, and that the
cabinet would not regard a vote to adjourn as a censure implying lack of
confidence. The danger has been slightly reduced by the rules of 1902.
By a change in the standing orders adopted in that year, and slightly
modified in 1906, the motion can be made only when the putting of
questions is finished at three o'clock, and then it stands over for
debate until a quarter past eight of the same day. By this arrangement
the government escapes the risk of surprise. It has five hours, after
notice of the debate, in which to prepare its case, ascertain the
opinion of its followers, persuade the doubtful, and rally the faithful.
Then the debate comes on at an hour when the attendance is habitually
small, instead of a time when the House is always full.[336:2]
[Sidenote: Blocking Orders.]
Moreover a motion to adjourn for the purpose of discussing a matter of
urgent public importance can, in the case of any particular subject, be
prevented altogether, if necessary, by a very simple device. There is a
general principle of parliamentary law in England that no question on
which the House has rendered a decision shall be brought before it a
second time in the same session; and in the Commons--although not in the
Lords--the principle has been extended by rulings of the Speakers to
forbid the anticipation of questions of which notice has already been
given. Nor is it necessary that a definite time for taking the matter up
should have been fixed.[337:1] It is enough that the notice of a motion
should have been given, no matter how remote may be the chance that the
member who gave the notice will ever be able to bring his motion before
the House. By merely giving notice of a motion, which he has no
intention of calling up, any member can, therefore, prevent a subject
from being brought forward either by a motion to adjourn, or by a
subsequent private member's motion, or in the course of the debate on
adjournment for the Easter or Whitsuntide recess. A "blocking motion" of
this kind is thus an effectual barrier against a motion to adjourn which
might place the government in an awkward position.
Complaints of the use of blocking motions have been often made, and in
1904 there was no little discussion of the subject.[337:2] There were
said to be on the notice paper, without any day assigned for their
consideration, thirty-four notices of motion, relating among other
things to fiscal reform, Macedonia, the Congo State, Thibet, the
reorganisation of the War Office, Chinese labour in South Africa, public
health, military training, local and other taxation, and the system of
blocking motions itself.[337:3] It was asserted that motions of this
kind were set down by supporters of the Treasury Bench after
consultation with the government whip. Mr. Balfour did not deny the
charge, but said that he never inquired into consultations of that
kind.[338:1] He thought that "there ought to be no limitation of the
powers of the House to discuss anything upon a motion for adjournment
for the holidays"; but he was more cautious in giving an opinion about
motions to adjourn to discuss a matter of urgent public importance. The
government dislikes these motions, because they consume precious time,
and because they can be used on all occasions to raise awkward questions
on which the cabinet may be unwilling to show its hand or supply facts.
There is, however, another serious objection to them. The House ought to
be at liberty to criticise the ministry freely at all times, but that
the discussion should be followed by a vote, expressing, however
indirectly, a judgment on the matter, involves a possible danger to the
parliamentary form of government.
[Sidenote: Private Members' Motions.]
The most direct method by which the acts of the ministers can be brought
before Parliament, and a vote taken upon them, is that of private
members' motions. These may, and often do, contain an explicit
condemnation of some part of the policy or administrative conduct of the
government. But the effectiveness of such motions as a means of passing
judgment upon the Treasury Bench is not in reality great, and that for
several reasons. There are in all only about seventeen evenings reserved
for the purpose, and it is rare that more than one motion reaches a vote
in an evening. Nor are those few occasions all used to take the
government to task. The right to make a motion is determined by the
ballot, and the fortunate member is free to raise any question he
pleases. Being one of the rare chances for private initiative, he often
uses it to bring forward some favourite project of his own. Several of
these evenings are thus devoted every year to discussing aspirations
that lie outside the field of party politics, and do not affect the
position of the cabinet. The number of motions aimed at the government
is, therefore, not large, and unless many members are interested in
criticising the same thing, it is a mere chance what is brought forward
for discussion. Then all the private members' evenings come in the early
part of the year; and notices of the motions must be given four evenings
in advance. It follows that they can hardly deal with current questions
that arise after the session is well under way, and this is in itself a
very serious limitation upon their importance as a means of bringing the
ministers to account.
[Sidenote: Means of Avoiding Them.]
In case of necessity a hostile vote on a private member's motion can
usually be avoided. The member has but one evening, and the ministers
could no doubt prolong the debate until the moment of interruption, and
then defeat an attempt at closure. But this does not appear to be done,
and might be regarded as showing too much fear of the result. Sometimes,
also, a motion can be blocked, although that is not so easy as in the
case of a motion to adjourn, because the private member has as early an
opportunity as the blocker to give notice of his motion.
There are, however, other means of defence; and, in fact, the
possibility of escaping a disastrous vote on a private member's motion
has been recently illustrated in the case of the fiscal question in a
very striking way, for during the sessions of 1904 and 1905 such motions
were used persistently in a vain attempt to get a decisive expression of
opinion on that question. On May 18, 1904, a motion was made against any
protective tax on food, which the government met by an amendment that it
was not necessary to discuss the question. As there were a number of
Unionists who objected to a tax on food, but did not want to upset the
government, the amendment was carried. Early in the next session another
inconvenient motion of a similar kind was shelved by the previous
question; and, finally, Mr. Balfour decided that he could avoid the
consequences of a wager of battle by simply refusing to fight. On March
22 and 28, 1905, followed by most of his supporters, he absented himself
from the debates and divisions on private members' motions touching
this subject, although on the second occasion the motion condemned in
direct terms the policy of the government. He explained that he took
this course because the subject ought not to be discussed on party
lines, and could not be dealt with by the existing Parliament, which had
no mandate from the nation for the purpose. He added that if the House
was allowed on private members' nights to act without the ordinary
machinery of party management, the conclusions at which it might arrive
would be treated as expressions of opinion which do not govern
policy.[340:1] In other words, he claimed that the ministers might
decline to take part in the proceedings on private members' motions, and
disregard the votes passed. His attitude was severely criticised, and
may have damaged the ministry in the eyes of the public, but that he
should have been able to assume it shows the impotence of motions of
that kind.
[Sidenote: Rarely Carried Against the Ministers.]
As lately as twenty years ago motions made by private members were not
infrequently carried against the opposition of the government--on the
average nearly once a year. Like all other votes hostile to the
ministers, however, they have become more rare, and in fact the last
case of the kind occurred in 1893. But if private members' motions have
not of late proved effectual, as a means of bringing some special part
of the conduct of the government before the judgment of the House, and
obtaining a test vote upon it, this may not hereafter be true in every
case. They certainly furnish possible exception to the principle that in
its relations with the government the House of Commons passes judgment
only upon the measures which the ministers choose to bring forward, or
upon their policy and administrative record as a whole.
[Sidenote: Debate on Going into Supply.]
Amendments to the address, motions to adjourn and private members'
motions, are almost the only occasions at the present time when
criticism of the government's action can be followed by a vote upon the
act criticised. Formerly there was another opportunity as constant and
prolific as any of them. This came when the House resolved itself into
Committee of the Whole on Supply. Before taking up supply on any day a
motion had to be made that the Speaker do leave the chair; and in
accordance, it was said, with the ancient doctrine that redress of
grievances should be considered before supply, any subject not requiring
a substantive motion, or not a matter of detail properly discussed in
the committee itself, could be debated either on the principal motion,
or on an amendment framed for the purpose.[341:1] This gave frequent
opportunities, throughout the greater part of the session, not only for
finding fault with the conduct of the government, but also for taking
the sense of the House thereon by means of amendments to the motion that
the Speaker do leave the chair.
[Sidenote: How Limited in 1882.]
[Sidenote: In 1896 and 1902.]
The practice opened the door to a vexatious waste of time, and in 1882
it was limited by a standing order, which provided that on Monday or
Thursday the Speaker should leave the chair without question put (and
therefore without amendment or debate) unless on first going into supply
on the estimates for the Army, Navy, or civil service, or on a vote of
credit, an amendment should be moved, or question raised, relating to
the estimates proposed to be taken in supply.[341:2] Tuesdays and
Wednesdays were at that time private members' days, and whenever they
were seized by the government, and used for supply, it was the habit to
extend the order to them by special vote.[341:3] This left Friday as the
only day on which the motion that the Speaker do leave the chair was
open to amendment and debate.[341:4] Finally, in 1896, when a fixed
number of days were allotted to supply, the standing order was extended
to Friday also.
It was done at first by a sessional order; but this was renewed from
year to year, until it was made permanent by the rules of 1902.[342:1]
[Sidenote: Effect of the Present Practice.]
At present the Speaker leaves the chair without putting any question,
except on going into supply for the first time on the Army, Navy and
civil service estimates; and on these three occasions the rule that
discussion and amendment must relate to the estimates in that branch of
supply about to be taken up is very strictly applied.[342:2] Moreover,
only a single amendment to the motion that the Speaker do leave the
chair can be moved, because the amendment takes the form that certain
words in the motion be left out in order to substitute others, and the
question is put to the House whether the words proposed to be left out
shall stand. If, therefore, the amendment is negatived, the House has
decided that those words shall stand part of the question, and no other
amendment to omit them can afterward be proposed.[342:3] Debate,
however, may and usually does continue upon the main question. But the
House can hardly reject the motion that the Speaker do leave the chair;
and, in fact, such a vote, although perhaps a general reflection upon
the ministry, could not, after a miscellaneous debate upon many topics,
be regarded as expressing an opinion upon any particular subject.
It follows that (besides the extraordinary case of a vote of credit)
there are every year three occasions set apart for general discussion of
all matters germane to the three great branches of supply, on each of
which a single vote can be taken upon some special grievance or question
of policy. Formerly the amendment that obtained the right of way
depended largely upon the accident of catching the Speaker's eye,[342:4]
but now, like the motions on private members' nights, it is determined
by the blinder justice of the lot.[342:5] The amendments relate to all
manner of things, such as the system of enlistment for the Army, the
number of artillery horses, the insufficient manning of the fleet, the
desirability of an international agreement for a reduction in
ship-building, the refusal of the Post Office to grant telephone
licenses to municipalities, the inequitable fiscal treatment of
Scotland, and the defective state of primary education in Ireland.
The three general debates upon the motions to go into Committee of
Supply upon the estimates still afford an excellent chance for
criticising the government, but the limitations upon amendments, and the
conditions under which they are proposed, has reduced the opportunity
for a decisive condemnation of any part of its conduct almost to
nothing. Until a score of years ago the ministers were, indeed, beaten
nearly every session upon some amendment on going into supply, but since
1891 this has not happened once.
[Sidenote: Amendments on Going into Ways and Means.]
After the general rule forbidding debate and amendment on going into
Committee of Supply had been extended to Friday, it occurred to Mr.
Gibson Bowles, an enterprising mentor of the government, that a similar
use might be made of the motion to go into Committee of Ways and Means.
Accordingly in the regular session of 1900, and in the special session
in December of that year, he moved amendments to the motion, but the
practice grieved the Treasury Bench and was stopped by a change in the
standing orders made in 1901.[343:1]
[Sidenote: Debate in the Committee of Supply as a Means of Criticism.]
In proposing his new procedure for supply in 1896, Mr. Balfour spoke of
the belief that the object of debating the appropriations is to secure
economical administration, as an ancient superstition no longer at all
true. Members, he said, now move reductions in order to get from
ministers a promise of future increase; and the danger is that the
House will urge too much extravagance. He insisted that the real object
of the Committee of Supply is the chance it affords to private members
of criticising the executive and administrative action of the
government; that it is an open platform for members, where the
ministers, for the sake of getting their appropriations passed, are
bound to keep a quorum.[344:1] This is, indeed, manifest to any one
familiar with the debates upon the estimates. They are not to any great
extent discussions of financial questions, of what the nation can, or
cannot, afford to do. They are a long series of criticisms upon the
policy of the ministers, and the conduct of the departments under their
control. From this point of view Mr. Balfour suggested a method of
making the debates more valuable. He described the futility of the old
system of taking up the estimates in their numerical order, pointing out
how much time was wasted every year in discussing the earlier votes in
Class I.,--repairs of royal palaces, etc.,--while some of the largest
appropriations were always hurried through with little comment at the
fag end of the session. He promised in future to bring forward the
important votes in the earlier part of the year, and in fact to give
precedence to estimates that any group of members might wish to
discuss.[344:2]
Adding together the days regularly allotted to supply under the standing
order, the additional sittings used for the purpose, and those devoted
to supplementary estimates,[344:3] the better part of more than thirty
days are spent every year in Committee of Supply. This would appear to
give time enough for a thorough overhauling of many branches of the
administration; and under Mr. Balfour's practice, which will, no doubt,
be followed by future cabinets, the question what departments shall be
examined is determined by the critics themselves.
The debates in the Committee of Supply must be relevant to the estimates
under consideration, that is, they must be confined to the particular
vote then before the House, and the conduct of the government connected
therewith. The greater part of the time is therefore taken up with a
discussion of small details of administration. But there are certain
votes that give a chance to review the broader questions of policy. As
the grants made to the Army and Navy for one purpose can, with the
consent of the Treasury, be used for another, the debate on the great
votes for the pay of the men is allowed to range over the general policy
and management of the service concerned.[345:1] The items for the
salaries of the ministers give a similar, though less comprehensive,
chance to examine the policy pursued in their several departments; and
in order to raise a debate of that kind it is common to move to reduce
the salary of a minister by one hundred pounds. If an excessive
proportion of the time devoted to supply is consumed in the ventilation
of small grievances, that is due to the fact that the criticism is
conducted, in the main, by individual members of the House, and not by
an organised opposition; but at least it has the merit of keeping the
administration in all its details highly sensitive to public opinion.
[Sidenote: Amendments in Supply as an Expression of Opinion.]
The debates in supply afford an excellent opportunity for criticising
the acts of the government, but the divisions in supply are not an
effective means of expressing the judgment of the House upon those acts.
The items of appropriation are grouped into votes, each of which, as its
name implies, is passed as a single vote; and every vote contains so
many items that the House cannot reject it entirely.
Moreover, the only amendment in order is a motion to reduce the vote,
by omitting a particular item or otherwise. Now a reduction may be moved
either because the House really objects to the appropriation, or as a
means of expressing condemnation of some act of the government connected
with the item in question. Even in these days of extravagance the House
occasionally objects to an appropriation on the ground that it is
unnecessary or excessive, or because it disapproves of the purpose
altogether. In such cases the Chancellor of the Exchequer is apt to
withdraw the estimate or consent to the reduction. In fact, there have
been only two instances in the last twenty years where a reduction was
made for this reason without the consent of the government, and only one
where it was carried against their opposition.[346:1]
[Sidenote: Reductions used as a Protest.]
A reduction is often moved, on the other hand, to emphasise some
grievance, some act of the administration that is the subject of
complaint. But such a motion is not an effective means of testing the
opinion of the House upon the matter in debate. When, for example, a
reduction of a minister's salary is proposed in order to draw attention
to a shortcoming in his department, the supporters of the cabinet almost
invariably vote against the reduction without regard to their opinion
upon the shortcoming in question; and they are perfectly right in so
doing. They would be quite justified, and quite logical, in refusing to
vote the reduction in salary, while saying that the act complained of
had been a mistake and ought not to occur again. An amendment of that
kind is, therefore, seldom carried; and then usually by accident. It has
happened only four times in a score of years. On June 14, 1895, when
Lord Rosebery's cabinet was struggling for its life, with only a
majority of a dozen in the Commons, it was beaten on an amendment
reducing the appropriation for the Parliament buildings by five hundred
pounds to call attention to the quantity of rooms occupied by officials
of the House. The number of members who took part in the division was so
small--the vote being sixty-three to forty-three--that the result must
be regarded as a fluke, rather than as an expression of opinion by the
House. A week later the government was defeated again on an amendment to
reduce the salary of the Secretary of State for War by one hundred
pounds to draw attention to an alleged lack of supply of cordite. This
was done by a trick. Enough Conservatives to turn the scale were brought
into the House, by way of the terrace, without the knowledge of the
whips on either side. Under ordinary circumstances the ministers would
not have paid much attention to such a division, but their position in
this case was so precarious and so uncomfortable, that they took
advantage of the occurrence to resign. The third instance happened in
1904 when the grant for the Commissioners of National Education in
Ireland was reduced by one hundred pounds as a protest against a
circular they had issued which limited the teaching of the Irish
language in the schools. It was a "snap" vote, coming suddenly after a
very short debate. Had the ministers foreseen the division they could
easily have called in enough of their followers to change the
majority;[348:1] and, in fact, they seem to have disregarded the vote
altogether, save that they expended for Irish education one hundred
pounds less than they had intended. The last case was in 1905, when the
appropriation for the Irish Land Commission was reduced by one hundred
pounds as a protest against the administration of the Land Act of 1903.
This was serious, and the government considered its position for a
couple of days, but decided for the moment neither to resign nor
dissolve.[348:2]
Manifestly the debates in Committee of Supply offer a very wide field
for individual criticism, while they give little chance for collective
condemnation of the matters criticised. This is even more obvious in
certain other forms of procedure that are yet to be considered.
[Sidenote: Debates on the Finance Bill;]
The debates upon the resolutions embodying the proposals of the budget,
and upon the Finance Bill that carries them into effect, are governed by
the ordinary rules of debate upon bills, and are confined to the
questions immediately before the House.[348:3]
[Sidenote: on the Budget;]
But in introducing his budget the Chancellor of the Exchequer makes a
statement covering the income and expenditure of the current and coming
years, and incidentally reviewing the economic condition of the country
and the state of trade. The debate that ensues may wander as far as the
statement itself, regardless of the particular resolution on which it is
nominally based. This gives a chance to examine fully the financial
policy--but only the financial policy--of the government; without,
however, any corresponding means of expressing the judgment of the House
thereon.
[Sidenote: on the Consolidated Fund Bills.]
In his treatise on parliamentary practice, Sir Thomas Erskine May states
that debate and amendment on the stages of Consolidated Fund Bills "must
be relevant to the bill, and must be confined to the conduct or action
of those who receive or administer the grants specified in the
bill."[349:1] The first part of this statement is true of the committee
stage. Debate and amendment must then be strictly relevant; and as the
object of the bills is simply to authorise the issue out of the
Consolidated Fund of the sums required to meet the grants already voted,
and to provide that those grants must be used for the purposes for which
they are made, no criticism of administrative conduct is in
order.[349:2] The proceedings in committee are, therefore, brief. The
latter part of May's statement applies to the second and third readings,
but as the bills cover the grants that support practically every branch
of the government, except the India Office,[349:3] the acts of almost
any department can be discussed at those stages. The occasions are, as a
rule, freely used for the purpose. Sometimes the debate is of a
miscellaneous character, and runs off into small details, but more
commonly it turns upon a few large questions of domestic, colonial or
foreign policy that have aroused general interest.[349:4] Amendments
can, indeed, be moved, and they may range as far as the debate itself.
The procedure would appear, therefore, to resemble that of going into
Committee of Supply. But the House is aware that it must pass the bills,
and although a division on the reading is often taken, the negative
votes are usually confined to the Irish members, who are more anxious to
impede than to make use of the parliamentary system. In the rare cases
where amendments have been moved the object is simply to concentrate
discussion upon some particular question,[350:1] and they have seldom,
if ever, been carried.
[Sidenote: Debates on Adjournment for Easter and Whitsuntide.]
Perhaps the most striking case of an opportunity for criticising the
government, without any means of condemning its action, is furnished by
the motion to adjourn over Easter or Whitsuntide. According to the old
practice about adjournment, the rule of relevancy does not apply in
these cases, and hence the discussion may, and in fact does, wander
wherever the members please. It is of a heterogeneous nature, touching
upon many subjects. But as the Speakers have ruled that no amendment is
in order, except on the time of adjournment,[350:2] the motion which
provides the excuse for a debate is always adopted as it stands.
[Sidenote: Motion of Want of Confidence.]
The foregoing comprise all the ordinary means of criticising the conduct
of the government. The leader of the Opposition has one more. He can at
any time claim to move a vote of want of confidence, and within
reasonable limits the leader of the House will always assign a day for
the purpose. But this is quite a different matter from the criticism of
particular acts of which we have been speaking. Whatever the precise
form of the motion may be, the object is to turn the ministry out, and
every member goes into one or the other lobby, according to his desire
that the cabinet shall stand or fall. The judgment of the House is
passed not upon any one act or question of policy, but distinctly upon
the record of the ministry as a whole; and a defeat must be immediately
followed by resignation or dissolution.
[Sidenote: Freedom of Criticism.]
[Sidenote: Difficulty in Passing Judgment.]
From this survey of the various methods by which the ministers can be
called to account in the House of Commons, it is clear that the
opportunities to air grievances, to suggest reforms, and to criticise
the government for both large matters and small, for their general
policy and their least administrative acts, are many and constant. If
less numerous than formerly, they are in practice quite as useful. For
the object they serve, that of turning a searchlight upon the
government, and keeping the public informed of its conduct, they are
abundant. On the other hand, the opportunities to pass judgment upon
particular acts of the ministers have diminished very much, and there is
a marked tendency to make a definite expression of opinion on such
matters by vote of the House more and more difficult. Such a tendency is
entirely in accord with the true principle of parliamentary government.
There ought to be the fullest opportunity for criticism; but the cabinet
must be free not only to frame its own policy, but also to carry that
policy out, and it ought not to be shackled, or thrust out, so long as
its conduct of affairs is on the whole satisfactory to the nation.
[Sidenote: Illustrated by the Debates on Fiscal Policy.]
So far we have considered primarily the functions of the House in
relation to administrative matters, but, except for the bills brought in
by the government, what has been said applies equally to its control
over the general policy of the cabinet, for its means of criticising and
passing judgment are the same. How far the ministers are free to-day to
frame the programme on which they will take their stand, and how hard it
is to force an issue on a question that they do not choose to bring
forward, may be seen from the recent history of the debates on the
fiscal question. A considerable number of Unionists were strongly
opposed to a return to protective duties in any form, and especially to
a taxation of food. There were enough of them to turn the scale, so that
if a division could have been taken at any time on the fiscal question
alone, the House would in all probability have voted in favour of
maintaining the existing system. On the other hand, most of the
free-food Unionists, being heartily in accord with the cabinet on other
matters, desired to keep it in power so long as it adopted no fiscal
policy hostile to their principles; and therefore they were anxious not
to vote against the government if they could conscientiously abstain
from doing so. Under these circumstances the Liberals sought by every
means to force a direct vote upon the fiscal question, while Mr. Balfour
cautiously avoided any definite statement of policy himself, and strove
to prevent the House from expressing a distinct opinion on the subject.
He took the ground that until the cabinet announced a fiscal programme
the only form in which the attitude of the ministers on the question
could properly come before Parliament was that of a general motion of
want of confidence in them.
[Sidenote: In 1903.]
Mr. Chamberlain broached his plan of preferential tariffs in a speech at
Birmingham on May 15, 1903. By that time it was just too late in the
year to bring forward a private member's motion on the subject; so that
the first debate upon it took place on the motion to adjourn over
Whitsuntide,[352:1] when no amendment or vote expressing the opinion of
the House was in order. This was May 28. The next opportunity for
extensive discussion came on June 9 over the Finance Bill; but the
Speaker ruled, that as the government had made no proposals for a change
of fiscal policy, such changes could not be brought into the debate on
that bill.[352:2] The Opposition then resorted to a motion to adjourn.
But it was not easy to treat as an urgent matter the question of
adopting a policy, which the ministers declared the existing Parliament
incompetent to adopt, and the Opposition insisted ought never to be
adopted at all. The Liberals solved the difficulty by taking advantage
of a recent occurrence, and on June 17 moved to adjourn to discuss a
misunderstanding of the tariff speeches of Mr. Balfour and Mr.
Chamberlain by the premier of New South Wales. The Speaker, however,
ruled that a general debate of the fiscal question did not come within
the terms of the motion, although a motion of wider scope might have
been made. The adjournment was, of course, rejected, and by a vote of
252 to 132.[352:3] Both on this and on later occasions, Mr. Balfour,
while refusing to give any of the government's time for the discussion
of fiscal policy as such, expressed his entire readiness to assign a day
for a formal motion of lack of confidence;[353:1] but the Liberals did
not accept the offer. They said, and with truth, that a vote of censure
would not test the opinion of the House on the fiscal question; and they
knew that it would result in an overwhelming defeat for them. Finally,
on Aug. 11, the Speaker ruled that, as no official act of any minister
was involved, the question could not be debated on the second reading of
the Appropriation Bill.[353:2] And thus, although there were many
questions put on the subject, and some incidental discussion during the
debates on other matters, the session of 1903 came to an end without any
vote on fiscal policy.
[Sidenote: In 1904.]
When the House met again great changes had taken place in the ministry.
Both Mr. Chamberlain and his strongest opponents had resigned, and it
was certain that the cabinet would take no positive attitude on the
fiscal question during the life of the Parliament. Yet the Liberals had
several means of extracting a vote on the subject, which they had lacked
in the second half of the preceding session. They began at once with the
debate on the address, by moving that the removal of protective duties
has conduced to the welfare of the population, and that any return to
them would be injurious. The wording was not well adapted to drive a
wedge into the government majority, for the ministers repudiated the
charge that they contemplated protection. Only twenty-one Unionists
voted for the amendment, which was rejected by 327 to 276.[353:3] Then
came, on March 9, a private member's motion to the effect that the House
expresses its condemnation of the continual agitation in favour of a
protective tariff encouraged by the ministers. This also was not well
conceived, and was rejected by 289 to 243, nineteen Unionists voting
against the government. On May 18 another private member's motion came
on; which stated that the House, believing a protective tariff on food
burdensome to the people, welcomes the declaration that the government
is opposed to it. It was a more dangerous attack, which the ministers
met by moving an amendment that it was unnecessary to discuss the
question. They succeeded by about the same majority as on the other
occasions, for the amendment was carried by a vote of 306 to 251,
seventeen Unionists in the minority.[354:1]
At last the Liberals asked for a day to move a vote of censure, and Aug.
1 was set apart for the purpose. The motion expressed regret that
certain ministers had accepted official positions in the Liberal
Unionist Association, which had recently declared its adhesion to the
policy of preferential duties, involving the taxation of food. But the
form of the motion was unimportant, and the result illustrates the
nature of a vote of want of confidence, and the futility of using it to
test the opinion of the House on any particular question of policy. No
one voted against the ministers who was not prepared to turn them out,
and the motion was rejected by a vote of 288 to 210.[354:2] Only one
member classed as a Unionist voted for it, while of those who had gone
into the Opposition lobby on previous occasions one voted with the
government, and the rest absented themselves. Although the fiscal
question had been debated several times,[354:3] the Opposition had again
been baffled throughout the session in their efforts to get a vote upon
its merits.
[Sidenote: In 1905.]
The result in the following year was the same, but the tactics were
different. The first private member's motion on the subject was shelved
by the previous question, and the government dealt with the subsequent
ones by the novel device, already described, of staying away from the
division altogether. Mr. Balfour virtually took the ground that a vote
on which the government exerted no pressure could not be regarded as a
true expression of the opinion of the House, and might therefore be
ignored--an extension, although by no means an illogical extension, of
the accepted doctrines of the constitution.
[Sidenote: Parliament the Great Inquest of the Nation.]
The system of a responsible ministry can develop in a normal and healthy
way only in case the legislative body is divided into two parties, and
under those conditions it is the inevitable consequence of the system
that Parliament cannot support the cabinet on one question and oppose it
on another. The programme of the ministers must be accepted or rejected
as a whole, and hence the power of initiative, both legislative and
executive, must rest entirely with them. This is clearly the tendency in
Parliament at the present day.[355:1] The House of Commons is finding
more and more difficulty in passing any effective vote, except a vote of
censure. It tends to lose all powers except the power to criticise and
the power to sentence to death. Parliament has been called the great
inquest of the nation, and for that purpose its functions have of late
been rather enlarged than impaired. Nor are the inquisitors confined to
any one section of the House, for while that part is played chiefly by
the Opposition, the government often receives a caution from its own
supporters also. If the parliamentary system has made the cabinet of the
day autocratic, it is an autocracy exerted with the utmost publicity,
under a constant fire of criticism; and tempered by the force of public
opinion, the risk of a vote of want of confidence, and the prospects of
the next election.
FOOTNOTES:
[327:1] For a collection of instances from 1807 to 1874 see Todd, "Parl.
Govt. in England," I., 422-28, 449-50.
[327:2] In the year 1904, for example, there were three motions clearly
of this character. The first two (in favour of paying unskilled
government workmen the standard rate of wages, and against granting
permits for the vivisection of dogs) did not come to a vote; while the
third (calling upon the government to encourage cotton growing in
Africa) was agreed to without a division.
[328:1] It is sometimes difficult to distinguish between censure of past
action, and a direction for the future; but, if we exclude votes
indirectly implying censure, by a reduction of an appropriation, or an
adjournment of the House, the only instances since 1886 where a vote
relating in express terms to either of these things has been carried
against the opposition of the government, have been as follows: On June
12, 1888, a resolution was adopted that redundant officials ought to be
transferred to other departments, although a Royal Commission was
already considering the subject. On April 30, 1889, a vote was passed
condemning the Indian fiscal system for encouraging the opium trade; and
another vote to the same effect was carried, on going into the Committee
of Supply on April 10, 1891. A commission appointed by the government
reported in favour of the existing system which was thereupon
maintained. (Com. Papers, 1894, LX., 583; LXI.; LXII.; 1895, XLII., 31
_et seq._; _cf._ 1892, LVIII.; and 1893, LXVI.) Finally, on June 3,
1893, it was voted that the examinations for the Indian Civil Service
ought to be held in India as well as in England; but, after collecting
the opinions of Indian officials, which were almost wholly adverse to
the change, the government decided not to make it (Com. Papers, 1893,
LXIV., 869; 1894, LX., 1), and so informed the House, Hans. 4 Ser.
XXIV., 1537.
[330:1] Cf. Dupriez, _Les Ministres_, II., 440-45. Lowell, "Governments
and Parties," I., 117-26.
[331:1] May, 206, note 1, 236, note 1. Todd, II., 421-22.
[332:1] May, 237-38. Questions may also be addressed to the Speaker, or
to private members in regard to bills or motions in their charge, but
questions of this kind are few, and do not concern us here.
[333:1] May, 301.
[334:1] In the five years from 1873 to 1877 thirty-one such motions were
made, of which all but three were withdrawn. Those three were negatived
by an oral vote, and were not pushed to an actual division. In the next
five years, up to the adoption of the Standing Order of 1882, the
motions numbered sixty-four, and only eighteen of them were withdrawn,
while twelve (one in 1878, seven in 1881, and four in 1882) were pushed
to a division. For these and many other facts relating to these motions
to adjourn I am indebted to my students at Harvard, Messrs. O. M.
Dickerson and E. Takasugi.
[334:2] In 1871 and 1878.
[334:3] Now S.O. 22.
[334:4] The rules framed by the Speaker on Feb. 9, 1881, provided, in
regard to motions to adjourn, that no adjournment should be moved before
the business of the day was taken up, except by leave of the House; and
that debate on a motion to adjourn made after business had been taken
up, should be confined to the question of adjournment. Com. Papers,
1881, LXXIV., 1.
[335:1] Now S.O. 10. The changes made in 1902 did not affect these
provisions, but merely the time when the debate on the motion should
take place.
[336:1] The debate was over the arrest of Mr. Dillon, M.P. Mr.
Gladstone, not thinking it a proper way to bring the question before the
House, declined to resist the motion, which was carried without a
division. Hans. 3 Ser. CCLXI., 183-216.
[336:2] In the twenty years that the Standing Order of 1882 remained
unchanged, the number of motions to adjourn, before public business
began averaged seven a year. In 1903 there were only three of them, and
in 1904 seven; but in 1905, when Mr. Balfour's cabinet was manifestly
losing its hold upon the country, the number rose to nine. Incidentally
the change of rule has tended to shift the debates on those motions into
the time reserved for private members, for the debate must occur at the
evening sitting, and in the earlier part of the session two of the four
evening sittings belong to the private members.
[337:1] May, 264-65, 286.
[337:2] _E.g._ Hans. 4 Ser. CXXV., 379-80, 382-83, 386-87, 397-98, 415,
629-30, 1229-32; _Ibid._, CXXXVI., 836-40. _Cf._ remarks by Mr. Swift
MacNeill in 1906. _Ibid._, CLII., 1178-79.
[337:3] Hans. 4 Ser. CXXXV., 1229. Since this was written a report has
been made by a select committee on the subject; and appended thereto is
a memorandum by Sir Courtenay Ilbert on the history of the rule against
anticipation.
[338:1] _Ibid._ 1232. _Cf._ CXXXVI., 840.
[340:1] Hans. 4 Ser. CXLIII., 886-95.
[341:1] Anson, "Law and Custom of the Const." I., 270; May, 571-72.
Redlich (_Recht und Technik_, 116-17) points out that these amendments
began in 1811 at the very moment when special days were first reserved
for the government.
[341:2] Old S.O. 56.
[341:3] May, 573-74.
[341:4] Friday was especially reserved for this purpose by old S.O. 11,
_cf._ Old S.O. 51.
[342:1] S.O. 17.
[342:2] May, 573.
[342:3] May, 574; Ilbert, "Manual," Sec. 231.
[342:4] May, 574.
[342:5] Ilbert, "Manual," Sec. 45.
[343:1] The change consisted in leaving the Committee of Ways and Means
out of the exceptions, in S.O. 51, to the general rule that the House
goes into committee without question put.
[Sidenote: The Committee on Indian Accounts.]
Debate on the motion to go into committee on the East Indian Accounts is
still allowed, in order to provide an opportunity for general debate on
the questions that may arise on these accounts. (S.O. 51, _cf._ Ilbert,
"Manual," Sec. 64.) An amendment can also be moved (_Ibid._, Sec. 117),
but in practice this has no serious effect.
[344:1] Hans. 4 Ser. XXXVII., 724-26. With this may be contrasted the
Report of the Select Committee on Procedure in Supply in 1888 (Com.
Papers, 1888, XII., 27), which said that the debates on the estimates
were an effective means, both of criticising the administration and of
controlling expenditure. It expressed the opinion that although the
estimates were not often actually reduced, the discussion prevented
future extravagance. For the condition at the present day see the Report
of the Committee on National Expenditure, and the evidence thereto
annexed (Com. Papers, 1902, VII., 15; 1903, VII., 483).
[344:2] Hans. 4 Ser. XXXVII., 727-30.
[344:3] Debate on supplementary and excess grants is limited to those
particular grants. May, 585-86.
[345:1] May, 584-85.
[346:1] Since the reduction of the vote for royal parks on March 11,
1886, the only two instances have been a reduction of the salaries of
the officers of the House of Lords, carried against the government in
1893 on the ground that they were excessive, and in 1895 a rejection of
the appropriation for a statue of Cromwell.
A list of all the reductions in the estimates from 1868 to 1887 may be
found in Appendix 5 to the Report of the Committee on Estimates
Procedure (Com. Papers, 1888, XII., 27). A list of those from 1887
through 1901 in Appendix 1, of the first report of the Committee on
National Expenditure (Com. Papers, 1902, VII., 15. _Cf._ Return of
Divisions in Supply, 1891-1901. Com. Papers, 1902, LXXXII., 139). There
were eighteen reductions in the twenty years covered by the earlier
report, eleven in the fourteen years next following. Of those eleven,
four were cases where estimates were withdrawn by the government (two of
them supplementary estimates, afterward voted as regular estimates for
the next year), three were reductions moved by the government because
the expenditure had become unnecessary, another was a reduction accepted
by the government, two more were the two cases mentioned in the text,
and the remaining one was moved to call attention to a grievance, _i.e._
the number of rooms in the Parliament buildings occupied by officers of
the House. This last case, together with the reduction of the salary of
the Secretary of State for War (which occurred in 1895, but is not
mentioned in the list), is described hereafter in the text.
[348:1] The vote was 141 to 130. (Hans. 4 Ser. CXXXI., 1141-50.)
[348:2] The vote was 199 to 196. (Hans. 4 Ser. CIL., 1486 _et seq._) Mr.
Balfour's cabinet resigned three months later when Parliament was not in
session.
[348:3] _Cf._ May, 588.
[349:1] May, 561. He speaks here only of the Appropriation Bill, but
what he says is equally true of all the Consolidated Fund Bills, of
which the Appropriation Bill is merely the last, completing the process
for the year.
[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. CXXXV., 253 _et seq._
[354:2] _Ibid._, CXXXIX., 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 Passing 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
passing 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 passing 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 passage 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 assistants 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
assailed 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 passing through the House of Commons,
and to the fact that an Act of Parliament is essentially a creature of
compromise.[357:2] Yet there would seem to be other difficulties arising
from the conditions under which legislation is conducted.
The Parliamentary Counsel's office has certainly improved the statutes
very much by making them more concise, uniform and orderly; but their
form is far from perfect. Two objects must be aimed at in drafting an
act; one that it shall be intelligible to the persons who are compelled
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 pass the Act in such
a form that the Court of Appeal could regard it as failing to effect
what everybody knew to be one of its main objects is surely an amazing
example of bad drafting. Nor was this the result of amendments in the
House of Commons, for the provision in question went through unchanged;
and although in this case the fault is said not to lie at the door of
the Parliamentary Counsel, it shows none the less the defects of the
system.
[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 passing long or complicated measures makes the
minister insist that his bill shall be as short as possible,[359:1] and
hence it must include no clauses not absolutely necessary for the object
he has in view. The draftsman, therefore, disturbs existing statutes as
little as he can, either in the way of revising or incorporating their
provisions. If he must embody earlier enactments in his draft, he does
so by referring to them, rather than by repeating them.[359:2] The
practice of legislation by reference, which is a source of no small
inconvenience in using the statutes, has been carried very far. In fact
there is a long series of "Clauses Acts" on various subjects, not
enacted with an independent legislative force of their own, but placed
on the statute book as standard provisions to be embodied in subsequent
acts by reference express or implied.[359:3] The desire to have the bill
short has also given a strong impulse to the practice of removing
details from the body of the act, and massing them in schedules at its
close.[359:4] This is an advantage to the minister who has charge of the
bill, because while it does not withdraw the matters in the schedules
from the control of the House, it does make them less conspicuous and
concentrates the attention of the members on the principal questions of
policy.
[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 scrap-heap, that they tend
to use old-fashioned machinery when it would be better to discard it
altogether. If they dislike to abandon a machine, they have a still
greater aversion to repealing an Act of Parliament. Every Briton happily
believes that it is better to readjust the institutions of a country
slowly, than to pull them down and build anew; and there being no line
between the institutions that are fundamental, and those that are not, a
fragment of the veneration for the British Constitution attaches to
every statute; and, indeed, to custom also. This helps to make the
legislator cautious, and his work tentative. Moreover, there is a great
respect for vested rights, and for that matter for vested habits, and
sometimes vested abuses. Sir Courtenay Ilbert tells us how much
solicitude is aroused by the probable effect of a bill on the peculiar
circumstances of the parish of Ockley-cum-Withypool, or the emoluments
of the beadle of Little Peddlington.[360:1] Too much attention seems to
be paid at times to such interests when they conflict with those of the
public; and this brings up the third factor in the problem, that of
cabinet responsibility, which has a marked influence on both the form
and the content of legislation.
[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.