Chapter IX: Direct Legislation in England

PARLIAMENT.

It remains for us to consider the organ of direct legislation in England, and the work which that organ turns out. Here again I must turn away from the large field of historical inquiry. The history of English statutes, their development out of petitions addressed to the sovereign in his Great Council, the mode in which they were drafted, debated, and passed, the rules of interpretation which have obtained regarding them, their influence at different epochs upon the growth of the Common Law, the development and value of the functions of non-official members of Parliament in preparing them and getting them passed, the decay of those functions which the last few years have seen—all these would supply interesting and instructive matter, not merely for an essay but for a treatise. But seeing how long we have had to wait for a philosophical history of the law of England in general, one need not be surprised that this particular department still waits for its historian[135].

-----

Footnote 135:

The admirable _History of English Law_ of Professors Pollock and
Maitland stops soon after the point at which parliamentary legislation
begins. Since the passage in the text was written, the book of Sir C.
P. Ilbert, entitled _Legislative Methods and Forms_, has been
published. It is full of valuable information and acute remarks upon
modern English legislation, and brings together a mass of historical
facts never previously collected.

-----

In England there has been, through the long course of our history, only one organ of Direct Legislation, viz. the Great Council of the nation. It began as a Primary Assembly of all freemen. It passed, between the time of Athelstan and that of Henry III, through a phase in which it had, owing to the growth of the nation and to the practical limitation of its membership, almost ceased to be Primary in fact, though its theoretical character, as embracing the whole people, had not been abrogated. Since the time of Edward I it has consisted of two branches, one of which is Primary, the other Representative; and this present phase is evidently drawing to its end.

Thus the history of Direct Legislation in England stands contrasted with the history of such legislation in Rome in two points: (1) that we in England have always had an organ which in intendment of law was the same from beginning to end, and admittedly supreme; and (2) that we have never had more than one organ at the same time, whereas at Rome the theoretically complete and unrestricted legislative power of the popular Assembly coexisted, for a time, with the legislative power of the Senate, and the theoretically complete and unrestricted legislative power of the Senate coexisted for a certain period with the legislative power (stronger, but at first carefully disguised) of the Emperor. It may seem absurd to speak of two organs of direct legislation as each complete and supreme: yet such would seem to have been the theory of the Roman law. We in England came near having a similar state of things in the days when the Crown claimed, and was sometimes permitted to exert, a power of legislating apart from Parliament and not in virtue of any permission by Parliament. But this power was never formally recognized by the law.

The Parliament of the United Kingdom and that eldest and strongest of its numerous progeny, the Congress of the United States, seem at first sight well composed and admirably equipped for securing legislation which shall be excellent in point both of Substance and of Form. As to excellence of Substance, these assemblies ought to be able to make such laws as the people wish and need, for they are popular in character, giving full expression to the wishes of all classes, and enabling any person or section aggrieved by existing defects in the law to state his complaints and suggest a remedy for them. The British Parliament, moreover, consists of two Houses, one of which, while deficient in the strength that comes from popular election, is by its composition capable of looking at questions from a point of view unlike that of the Lower House. It contains many men of great ability and knowledge of affairs, so that it could well discharge (if so disposed) the functions of criticism and revision. So the American Congress has also the advantage of being composed of two branches, either of which can criticize and amend the Bills passed by the other.

As regards excellence of Form, which is that with which we are here specially concerned, several notable merits may be claimed for the British Parliament. The House of Lords, as has been just observed, contains among the fifty or sixty persons (out of nearly six hundred members) who habitually attend its sittings not a few possessing intellectual power and practical experience, with (usually) some seven or eight distinguished lawyers, the flower of the legal profession. Being a representative body, the House of Commons contains persons who are presumably above the average in knowledge of the world and its affairs, as well as in intellectual capacity. Among these there are to be found many men (though a smaller proportion than is found in the American Congress or in some colonial legislatures) who possess a technical acquaintance with the laws of the country, and ought to be specially well fitted to amend them, while at the same time any such tendency as professional men might have to indulge in mere technicalities is likely to be corrected by the presence of a majority of laymen. They deliberate in full publicity, and thereby can obtain from all quarters suggestions that may direct or help them. They are responsible to those who have sent them up, and who can closely watch their conduct. Ample opportunities are provided for the discussion of every measure, and for curing any defect which may lurk in any Bill brought forward either by the Ministers of the Crown, liable through their position to a fire of hostile criticism, or by a private member. Every Bill has to pass through seven stages in the House of Commons[136], and six in the House of Lords, and at each of these stages it may be debated at indefinite length[137]. That must be, one would think, either a very trivial or a strangely hidden blemish which escapes the notice of keen, experienced, and often unfriendly critics on twelve successive occasions[138]. Could any machinery be better adapted to secure that the laws passed shall be expressed in the most clear and precise terms, that each shall be well arranged and self-consistent, that every new statute shall be properly fitted into those that have gone before, and shall, in effecting any change, repeal expressly the parts of previous statutes which it affects, so as to provide against possible uncertainty or discrepancy?

-----

Footnote 136:

Now (1900) reduced to six by the discontinuance of the habit of
putting the question that Mr. Speaker do leave the chair when the
House of Commons goes into Committee.

Footnote 137:

Now, however, subject to the power of imposing the closure of debate,
a power the growing frequency of whose exercise has greatly altered
the character of the House.

Footnote 138:

Now reduced to eleven. The number of stages for a Bill which passes
through both Houses must be calculated by subtracting one from the
number reached by adding the stages in each House, because a Bill
coming from either House to the other obtains its first reading as a
matter of course, without debate.

-----

Why is it then that we hear so many complaints about the condition of the laws of England as to the number of points which remain unsettled, as to the confusion in which some great departments of law lie, as to the undue length of our statutes, their obscurity, their inconsistencies, their omissions? I do not inquire to what extent these complaints are well founded. It is enough to note that they proceed not merely from scientific jurists, who might be supposed to be enamoured of an impossible ideal, but from such practical men as compose our commercial classes, such technically competent as well as practical men as the judges of the land.

Somewhat similar complaints are made in the United States. The methods of legislation used there are generally similar to those of Britain, both in the Federal Congress and in the forty-five State Legislatures, and every one of these bodies consists of two Houses, each jealous of the other. The chief difference is that the Americans consolidate their statutes at certain intervals, so that the statute law, both Federal and State, is brought within a smaller compass than that of the United Kingdom. Subject to this and to some minor dissimilarities, the remarks which follow on the causes why British legislation is less perfect than might be expected from the elaborate machinery provided for producing it apply to the United States also[139].

-----

Footnote 139:

As to the actual methods and difficulties of Parliamentary
legislation, see the penetrating and careful analysis contained in Sir
C. P. Ilbert’s _Legislative Methods and Forms_, chap. x.

-----

The methods of British legislation, and the dangers incident to those methods, are exactly the opposite to those which we have noted in Rome. Both under the Republic, when statutes were passed at the instance of a magistrate with no possibility of amendment by the Assembly, and under the later Empire, when the monarch or his advisers could issue a law with as much ease and as little personal fear of consequences as a counsel can draw a will or the articles of a joint stock company, no provision was made for independent criticism, nor for discussion, nor for the interposition of delays. The excellence of the law depended on the person who prepared and proposed it, and on him alone[140]; and the law could be issued to take effect as soon as the Assembly had given its one vote or the Emperor his one signature. The Senate could indeed debate and might amend the forms of decrees submitted to it, but as it was really a mere instrument in the Emperor’s hand it exercised these powers very sparingly.

-----

Footnote 140:

Although, as observed above, the Emperor might, if he liked, cause a
draft Constitution to be debated in his Consistory.

-----

With us in England the opportunities for debate, for resistance, and for amendment are so ample as to prevent many things from being done which ought to be done, and to impress an unscientific cumbrousness, prolixity, and inelegance upon most of the work we turn out. Too many persons are concerned, and few of them have any care or taste for technical excellence. The House of Commons is overloaded with work, some of it work which it had better not attempt, but which it does attempt in deference to the clamorous demands of particular sections of opinion. A reform in the substance of the law excites little interest unless it has either some political (_i.e._ party) importance, or has a considerable pressure of public opinion behind it. A reform in the form and expression of the law, having neither of these forces to back it up, excites no interest at all. Accordingly it is neglected, for a Ministry is disposed to think first of pleasing its own supporters, then of winning popular favour in general, and accordingly gives the time at its disposal to measures deemed likely to secure for it political advantage.

Private (_i.e._ unofficial) members of Parliament might supply what is lacking in the Ministry by bringing forward and passing modest and useful Bills, calculated either to remove minor defects in the substance of the law or to improve its form. But the Ministry now commands so large a part of the available time of the House of Commons, and the opportunities given to members for arresting the progress of other members’ bills are so abundant, that hardly anything can be accomplished by an unofficial member. In the United States, where all members are unofficial, the despotism of the British Ministry, which after all is a responsible despotism, is replaced by the irresponsible despotism of the Committees, which are as much disposed as is a British Ministry to be swayed by sectional pressure or by the prospect of political gain.

The British House of Commons is too large for discussing what may be called the technical or formal part of legislation. Its debates in Committee on points of substance are often excellent. But it cares little for harmony, propriety, and conciseness of language. If an inexperienced enthusiast for legal symmetry observes, in proposing an amendment, that his terms will not affect the substance, though they will improve the form, of the clause, he is impatiently rebuked for occupying the time of the House with what ‘will make no difference.’ On the other hand, changes in substance are constantly made in Committee which have the effect of rendering the form of the measure worse than when it came from the draftsman’s hands. Clauses are put in or struck out, exceptions are added, references to other statutes are inserted, which make the sense of the enactment difficult to follow and its construction uncertain. Sometimes these faults are corrected in that later consideration which is called the Report stage. Sometimes they are not, either because they have escaped notice, or because the Ministry are in a hurry, and do not wish to risk the further raising of questions likely to give trouble. The House of Lords ought to correct all such blemishes. But it seldom does so, either from indolence, or because it does not wish to differ with the House of Commons except where it has some class interest, political or economic, to contend for. In fact, that function of revision which modern theory attributes to the House of Lords is not discharged.

The facilities which Parliamentary procedure affords for delaying the progress of Bills in the House of Commons are so ample, not to say profuse, that the practice has grown up of drafting Bills, not in the form most scientifically appropriate, but in that which makes it easiest for them to be carried through under the fire of debate. To lay down those broad, clear, simple propositions of principle which conduce to the intelligibility and symmetry of the law is to invite opposition, and to make the process of opposing easier for those who desire to resist, but have not the technical knowledge needed for a minute discussion. To bury a principle out of sight under a mass of details; to avoid the declaration of a principle by enacting a number of small provisions, which cover most of the practically important points, yet do not amount to the declaration of a new general rule; to insert a number of exceptions, not in themselves desirable, but calculated to avert threatened hostility; to hide a substantial change under the cloak of a reference to some previous Act which is to be incorporated with the Act proposed to be passed; to deal with some parts of a subject in one year, and postpone some other parts to be dealt with in another measure next year, while leaving yet other parts to the chances of the future, though all ought to have been included in one enactment;—these are expedients which are repellent to the scientific conscience of the draftsman, but which are forced on him by the wishes of the Minister who is in charge of the Bill and who foresees both the objections that will be taken to it and the opportunities for obstructing it which parliamentary procedure affords. Yet the Minister may well plead that, with the limited time at his disposal, these expedients are essential to the passing of his Bill. Any one can see what complication, what obscurity, what uncertainty in the law must needs result from this way of amending it.

Thus it has come about that our English statute law is more bulky and even more unscientific in its form (whatever the excellence of its matter) than was the statute law of the Roman Empire when Theodosius II, and afterwards Justinian, set themselves to call order out of chaos. No Theodosius II, no Justinian, need be looked for in England. Yet much might be done to reduce the existing statutes into a more manageable mass, and something to improve the form in which they come from the hands of the legislature. The former work, previously in the hands of the Statute Law Commission, has since that body came to an end been entrusted to another body called the Statute Law Committee, which is conducting a general revision of the statutes. It has issued a Revised Edition coming down to A. D. 1886, and under its auspices a number of useful Consolidation Acts have been passed, whereby the Statute Law, and in a few instances the Common Law also, relating to particular departments has been brought together and enacted as an orderly whole. The more difficult enterprise of providing better methods for turning out new law in a clear, concise, and scientifically ordered form, is rarely discussed, even by lawyers, and seems to excite no public interest. It raises many difficult questions which this is not the place to treat of, so I will be content with observing that the remedy for the present defects of British statutes which seems least inconsistent with our parliamentary methods, would be to refer each Act, after it had passed both Houses, but before it received the royal assent, to a small committee consisting of skilled draftsmen and of skilled members of both Houses, who should revise the form and language of the Act in such wise as, without in the least affecting its substance, to improve its arrangement and its phraseology, the Act being formally submitted once more to both Houses before the royal assent was given, so as to prevent any suspicion that a change of substance had been made. It is, however, unlikely that Parliament will consent to any proposal of this nature; and even if some such expedient were adopted it would, at least in some cases, fail to remove the faults above described, because they are necessarily incident to legislation by large assemblies on matters which excite popular feeling and involve political controversy.