Chapter II · THE EVOLUTION OF AN ACT OF PARLIAMENT

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Statute law should be of high practical efficiency, as an instrument for good government and human progress, having regard to the time and thought expended upon its production. Parliament makes laws without haste or impulse, deliberately and with patience. Getting a big Government measure through Parliament is, indeed, a long and laborious task, for the success of which ability, experience, tact and judgment of the highest order are essential. A Bill has to pass through no fewer than five distinct and separate stages in both Houses of Parliament before the last ceremony of all, the Royal Assent, makes it the law of the land. It has to be read the first time, and read the second time; it has to pass through Committee, to be reported to the House, and finally read the third time. And having gone through all these five stages in the House in which it is first introduced—always the Commons in the case of measures of great public interest—it has to go through precisely the same stages in the other House. It is a very ancient procedure, and when it was first devised its object must have been not to promote but to impede legislation.

Even before a great Government measure is introduced at all into the House of Commons much anxious consideration is given, first to its principles, and next to its composition. Indeed, Parliament is generally in ignorance of what it is to be asked to sanction until the Minister has unfolded his legislative scheme in the House of Commons. An outline of the Bill is first laid in the rough before the Cabinet by the Minister, and, no doubt after considerable discussion, the proposals are agreed to in so far as they are in conformity with what the Cabinet conceives to be its mandate from the electorate, or, more properly speaking, with the general wishes and inclinations of the Party in the House and in the country.

Gladstone, in his Diary for December 1868, thus describes how he prepared the skeleton plan for the disestablishment of the Irish Church:

13th.—Saw the Queen at one, and stated the case of the Irish Church. It was graciously received. 24th.—At night, went to work on draft of Irish Church measure, feeling the impulse. 25th.—Christmas Day. Worked much on Irish Church abbozzo. Finished it at night. 26th.—Revised the Irish Church draft and sent it to be copied with notes.

Next came the Cabinet stage:

February 8, 1869.—Cabinet on the heads of Irish Church Bill. 9th.—Cabinet. We completed the heads of the Irish Church measure to my great satisfaction.

Then comes the work of embodying the principles agreed upon by the Cabinet in a Bill of the prescribed form, divided into many clauses, which again are sub-divided into sections. This is done by Government draughtsmen, lawyers who are adepts in the use of the legal verbiage—quaint, prolix and circumlocutory—which custom ordains must be employed in an Act of Parliament, and which the lay mind often finds so difficult to understand and the legal mind sometimes interprets in various senses, when disputes arising out of an Act come for settlement before the Courts.

The procedure of bringing in Bills in the House of Commons has been much simplified. I can recall a time when no Bill could be introduced by its promoter without leave being asked for first and obtained. When leave was given by the House, the Minister or private Member, in charge of the measure, was asked by the Speaker, “Who will prepare and bring in the Bill?” and in answer the Minister or private Member recited the names of three or four “backers,” including his own. Then retiring to the Bar, he was called upon by the Speaker, and coming up to the Table literally brought in his Bill. This ceremony was a survival from ancient times when the “backers” left the Chamber to draft the Bill, and after an interval returned with the finished composition. The practice since 1902 is for the Minister, or private Member, to give notice of his intention to bring in a Bill, which notice appears on the “Orders of the Day”—the daily agenda of the proceedings in the House—and when called upon by the Speaker he presents his Bill to the Clerk at the Table without any ceremony, and it is thereby read a first time. Occasionally, when it is thought necessary, in the case of a Bill of some consequence, at once to explain its purport, a short statement may be made by the Minister under what is called “the ten minutes’ rule,” the statement and one speech in criticism of the measure being each limited to that period of time.

However, it sometimes happens that a Minister in charge of a Bill of first-rate importance will ask leave, in the old form, to bring it in, and in doing so will make a long speech both explanatory and defensive. Such a Bill usually arouses Party feeling, and the Opposition at once states their objection; but it is customary to allow the motion for leave to be agreed to without a division. The Bill is printed and circulated only after it has been read a first time, and, of course, until its provisions are fully before the House no definite decision can be come to by the Opposition in regard to it. Therefore the usage of permitting a Bill to be introduced unchallenged is rarely departed from, and only when, in the opinion of some section of the House, there are reasons for fighting it even from the very first.

Leave having been given unanimously, or carried on a division, the Minister brings in the Bill. The ceremony of introduction is then carried out. The Minister goes down to the Bar, whence he walks up the floor to the Table, amid the welcoming cheers of his supporters, hands the Clerk what purports to be a copy of the Bill. Often it is but a dummy copy, usually a folded sheet of paper with the title of the Bill written upon it. Indeed, I have seen a Minister, on obtaining leave to introduce a Bill, pick up from the Table the nearest sheet of notepaper to hand, and while the House rang with the applause of his Party, solemnly hand the Clerk that piece of virgin paper as a copy of the great measure, which, perhaps, was expected to make earth a reflex of Heaven.

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It is on the motion for the second reading of the Bill that the battle over its principles and proposals really begins. There is a long debate—its length being determined by the importance or contentious nature of the measure—in which the Bill is attacked by the Opposition, and defended by the Ministers and their supporters, on broad and general lines. A hostile amendment is moved. Sometimes it is declaratory of the chief objections to the Bill. Sometimes it runs simply—“That this Bill be read a second time this day six months,” which amounts, in a roundabout way, to a motion for its rejection. The debate of argument is closed by a trial of strength in numbers in the division lobbies, and if the motion for the second reading be carried—usually a foregone conclusion in the case of a Government measure—the principles of the Bill are supposed to have received the approval of the House.

Then comes the most important stage of all, and the most critical—the Committee stage, during which the proposals of the Bill are considered, separately and in detail, and efforts made to amend them or reject them. But, occasionally, “instructions to the Committee” are raised as obstacles to delay the House in getting into Committee on the Bill. Notice was given of fourteen instructions in the case of the Home Rule Bill of 1893. The Committee on a Bill have general powers to make amendments which are relevant to the subject-matter of the Bill as presented. The purpose of an “instruction” is to enable the Committee to amend or alter the Bill in a way unauthorized by their general powers. In other words, an “instruction” is usually intended to empower the Committee to extend or limit the scope of the Bill in a manner not contemplated by its promoters and hostile to the purpose they have in view. “Instructions” are, in fact, usually designed to wreck the Bill, or, at least, to impede its progress through the House, For instance, one of the “instructions” to the Committee on the Home Rule Bill aimed at a contemporaneous settlement of the Irish land question; and another proposed that the number of seats in the House allotted to Ireland should be considerably reduced. But Mr. Speaker Peel, by a stroke of authority unique for its sweeping character perhaps in the history of the Chair, which in a House governed by precedent has had the effect of enormously increasing the power of the Speaker, declared that, with one exception, the whole of the “instructions” were out or order. It must not, however, be supposed that if the Speaker had ruled otherwise the “instructions” would have been adopted, and that a land measure, and a reform measure—to say nothing of the aims of the other eleven “instructions”—would have been included in the scope of the Home Rule Bill of 1893, making it appallingly complicated and unwieldy. If an “instruction” is in order, it is moved and debated like other motions, and its fate—which is, generally, rejection—is decided in the division lobbies.

The House goes into Committee on a Bill simply enough. The Clerk reads the title of the Bill—as, for instance, “The Representation of the People Bill—Committee.” “The question is that I do now leave the chair,” says the Speaker. “As many as are of that opinion will say ‘Aye’; the contrary, ‘No.’ I think the ‘Ayes’ have it.” As his declaration is allowed to pass unchallenged, he adds, positively, “The ‘Ayes’ have it,” and forthwith steps down from the Chair and quits the Chamber. The Serjeant-at-Arms rises from his chair at the Bar, walks up the floor, lifts the Mace from the Table, and places it out of sight on rests below. The Chairman of Committees takes his seat at the Table, not in the Speaker’s high Chair, but in the low chair of the principal Clerk.

The House is now in Committee. It is, in fact, the House without the Speaker and the Mace. Members are provided with copies of the Bill, and a separate paper containing the amendments, of which notice has been given days before to the Clerks. Immediately the second reading of a big Bill is agreed to, there is a rush of Opposition Members to the Table to hand in amendments. Many of these amendments are certain to be duplicates, and he who gets in the first of the number will be called on to move it. The amendment-paper is divided into sections, each opening successively with a clause of the Bill, and containing all the amendments put down to that clause. If the Bill be very contentious, the amendment-paper runs to many pages. It is at this stage that the direct influence of the House at large on the legislative proposals of the Government comes into operation. The House must necessarily allow the Cabinet to draw up the Bill, in accordance with its political principles. Now comes the opportunity of Members generally to criticize the details of the Bill and suggest alternative proposals. Each evening that the Bill is down for consideration in Committee, the Minister in charge—head of the Department which will have the administration of the Act—enters the House with a dispatch box, which he places on the Table in front of his seat on the Treasury Bench. When he opens the box, a mass of documents of all kinds—printed, typed and written—is disclosed to view. These papers are constantly consulted by the Minister during the proceedings. In them he finds most of the arguments with which to reply to the amendments. They have been prepared for him by the permanent officials of his Department—those Civil servants who retain their positions under all Parties and faithfully serve the Ministers of whatever Party may be in power. Not only that, but one or two of these officials are sitting in a little gallery behind the Speaker’s Chair ready to hand to be personally referred to by the Minister for advice or guidance should he find himself hard pressed by any of the critics of the Bill. The Minister is also helped by his Parliamentary Secretary. One of the Law Officers, the Attorney-General or the Solicitor-General, comes to his assistance when an amendment raising legal points is moved. But most of the burden necessarily falls upon the Minister. He gets little or no aid from his colleagues in the Administration. Every other Minister has his own Department to look after, and it is the custom for each to confine himself to his own affairs, and not to interfere in the consideration of a measure affecting another Department unless he is invited to do so by the Minister in charge. It is a difficult and wearying task, indeed, to steer a big controversial Bill through the always uncertain and sometimes turbulent waters of the Committee stage, avoiding the rocks and shoals that thickly abound in the form of unforeseen waverings and dissatisfactions in the ranks of supporters, and sudden accessions of strength, in numbers or in argument, to the Opposition.

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The first amendment considered is, of course, the first amendment put down to Clause 1. It is moved by the Member in whose name it stands on the paper. A reply is given by the Minister in charge. He may accept the amendment, but generally he opposes it. At any rate, there follows a discussion which ends in a division. So the amendments to a clause are dealt with in regular order as they appear on the paper. For some days the amendment-paper shows no appreciable sign of diminution. For as amendments to the earlier clauses are being disposed of, fresh amendments to later clauses are being evolved from the active and ingenious minds of the opponents of the Bill. While a Bill is in Committee the amendments to it are reprinted every night and distributed to Members in the morning, with other parliamentary papers.

It is customary for big controversial measures to occupy a month or two of the session in Committee. Gladstone’s Land Bill of 1881 had a run of twenty-five days in that stage; the Home Rule Bill of 1898 forty-seven days; and Balfour’s Education Bill, 1902, forty-five days. Such Bills are discussed most carefully and elaborately, not only clause by clause, but word by word. A Member can speak but once on any question when the House is sitting. He may speak as often as he pleases on any question in Committee subject to the opinion of the Chairman as to the relevancy of the talk to the amendment. At times there is undisguised obstruction by the opponents of the Bill. One of the chief faculties of the Opposition bent on thwarting the nefarious designs of the Government is that of elaboration of speech—a prolongation of the “cackle” in order to delay getting to the “’osses.” But generally debate in Committee of the whole House is much more businesslike than debate in the House with the Speaker in the Chair. There is, occasionally, full debate on an important amendment, a “field night” on which all the controversial forces of each Party are brought into action; but, as a rule, Members talk in a conversational fashion, and argue the points in brief pointed speeches. The House on the occasion of the second reading suggests rather an amphitheatre for oratorical gladiators. In Committee it seems more the temple of legislation in which not so much Party principles as free individual opinions are brought to bear upon the subject.

The Bill, as I have said, is considered clause by clause. When all the amendments to a clause have been disposed of, the Chairman puts the question—“Clause 1” or “Clause 20” (as the case may be), “the question is that ‘this clause stand part of the Bill,’” or, if it has undergone alteration, “that this clause as amended stand part of the Bill,” and on that question the principle of the clause may be again debated, no matter how fully it may have been discussed indirectly as amendment after amendment was moved to the clause. A Bill is not rejected in Committee. If, however, an important clause is defeated, not only is the Bill dropped, but the Administration, on whom a vote of censure has thus, in fact, been passed, resigns—throwing upon the Opposition the responsibility of carrying on the Government—or appeals to the country to decide the issue in a General Election. But that is an extremely rare occurrence. Amendment of the legislative proposals of the Government is really limited by the operation of the Party system. If the passing of the Bill, substantially in the form in which it is brought in, is insisted upon by the Government, their will is upheld by the majority of Members—their pledged Party supporters.

Nevertheless, a Bill occasionally undergoes alteration in Committee. The Minister in charge puts down amendments with a view to removing defects in the measure which have been brought out in the debate on the second reading, and these, of course, are carried. Modifications proposed by followers of the Government are also often accepted. Moreover, there are compromises designed to gain support by satisfying the wishes of particular sections of Members, or to disarm or appease the Opposition, but leaving unaffected the main principles of the measure. All the abilities of the House—its practical experience, its special knowledge—are brought to bear on a big Bill in Committee, and when at last that stage is concluded, when the Chairman puts the question, “That I report this Bill with amendments to the House,” and it is agreed to, there has been fashioned as good a piece of legislative workmanship as is possible for the trained intelligence of the Legislature, or rather of the Party in power, to produce—in the light of their political opinions and pledges.

Thus the Government can rely upon the organized discipline of its followers, the dead weight of its majority, to carry a big Bill ultimately through the Committee stage with but little change in principle or even in form, despite the constructive, or destructive, criticism and action of the Opposition. And if the progress of the Bill be too slow to their liking, they are armed with power to expedite it. This is done by means of the system of closure by compartments. The “guillotine,” as it is called for short, or the “gag,” which is the rougher and briefer designation given to it by the Opposition, was first applied in Committee on the Irish Crimes Bill of 1887. Arthur Balfour, who, as Chief Secretary for Ireland, was in charge, moved, when the Bill had been in Committee fifteen days, that in a week’s time such clauses as remained undisposed of should be put forthwith from the Chair without amendment or debate, and this was done on the day appointed. Debate on the Home Rule Bill of 1893 in Committee was curtailed by the same mechanical process. A time-table is accordingly part of the established procedure in the case of large, complicated and controversial Bills. It is used by all Parties when they are in power. A motion for this closure is not carried if it appears on a division that less than 100 members voted for it. Another form of closure is known as the “kangaroo.” By this process the Chairman of Committees is empowered to jump over the less important amendments on the paper, and select for discussion those which raise more vital issues. The Coalition Government under Lloyd George introduced a new principle in the session of 1920. This was the appointment of an unofficial committee, representative of Members generally, to select the questions to be raised and debated by amendments to the Government of Ireland Bill in the Committee stage for which twenty-one days were allotted.

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The House of Commons recognized in 1882 that it is impossible for it to do itself, and within its own Chamber, the vast amount of legislative work, which, owing to the ever widening extension in all directions of the operations of government, it is called upon to perform. It decided, therefore, to delegate some of its functions to committees or sections of itself sitting in rooms upstairs. Two Standing Committees were appointed for the consideration of all Bills relating to law and to trade. So valuable did this reform in parliamentary procedure prove to be that in 1907 the Liberals, then in office, increased the number of Standing Committees to four, for the consideration of Bills of a larger and more general class. Each Committee consisted of not less than sixty and not more than eighty Members, and was intended to be the House in little, the various Parties or interests being proportionally represented. In 1919 the number of Standing Committees was increased to six, and the membership of each was reduced to fifty. The members are nominated by the Committee of Selection—a small body of the oldest and most experienced men in the House, appointed for this special purpose, and who act upon the principle of giving representation to all Parties and all sections of opinion. The system of Standing Committees also provides for the devolution of business on the principle of nationality. A Bill relating exclusively to Scotland is referred to a Standing Committee consisting of all the representatives of Scottish constituencies, together with ten other Members nominated by the Committee of Selection and specially conversant with the subject to be dealt with. In the same way Welsh Bills are referred to a Standing Committee of Members from Wales, with fifteen other Members selected from the general body. Every Bill, after the second reading, is automatically sent to a Standing Committee, unless it is proposed and agreed to that a particular measure be retained for consideration by the Committee of the whole House, a course which is always followed in the case of Bills of first-rate importance and Bills which, being highly controversial, excite passion and antagonize Parties.

Each Standing Committee sits, with a chairman, in one of the Committee-rooms upstairs, from eleven or twelve o’clock until the hour the House meets, on alternate days, until its labours are over. Twenty members form a quorum. Clause after clause of the Bill is considered, amended, rejected, or adopted, in exactly the same way as if it were a Bill before a Committee of the whole House. Service upon these Standing Committees impose heavy additional obligations upon Members. But the burden is, as a rule, cheerfully borne. They afford Members a larger opportunity of taking an effective part in the work of legislation. Many a Member of talent and business capacity, who, probably because of the lack of a glib tongue, has failed to make himself a prominent figure on the larger stage of the House, transfers his ambition for distinction to the rather obscure shades of the Committee-rooms. The reporters are admitted to the meetings of the Standing Committees, but the newspapers give to the discussions not a tithe of the space which they would give to proceedings on Bills of a similar kind in Committee of the whole House. But despite the absence of that incentive to devotion to duty which publicity is supposed to provide—or perhaps, as some should say, because of it—the details of Bills so referred to Standing Committees are carefully considered, the discussions are brief and to the point, and, as a rule, the Acts which are so dealt with will bear favourable comparison, in the matter of freedom from blots and contradictions, with the statutes that have passed through the Committee of the whole House. This is due largely to the Chairmen, who are always chosen for their experience and discretion.

When a Bill has emerged from the Committee stage the worst of its troubles are over, in the House of Commons at least. The Speaker is sent for—if the Committee be one of the whole House—the Mace is again placed upon the Table, and the House resumes. The Chairman of Committees, standing by the Chair with a copy of the Bill in his hand, reports to the Speaker that the measure has passed through Committee. If a Bill be reported to the House without amendment, it may be read a third time forthwith, and its passage through the House of Commons be thus completed. But as it never happens that a big Government measure goes through Committee without amendment, a day is fixed for the fourth stage of a Bill, known as “the report stage,” and for it the Bill as amended is reprinted.

On the report stage amendments may again be moved to the clauses of the Bill, or new clauses may be proposed, or the Bill may even be recommitted to the Committee again, if it has been found that matters which can only be properly dealt with in that stage have been overlooked. Still, the report stage is usually brief, the amendments being generally confined to points that have not been dealt with in Committee. It must be added, however, that in the case of a controversial Bill which has been referred to one or other of the Standing Committees the deliberations upstairs have little restraining effect on the same contentions being debated at length in the House on the report stage. What comes out most prominently in the passing of a big Bill through its various stages is the persistence with which the same questions are raised over and over again, showing how obstinate is the reluctance of the Opposition to accept anything as settled, and their desire to upset it while a chance to do so remains. Then comes the fifth and last stage of the Bill—“the third reading.” There is a set debate in which the principles of the Bill are attacked and defended, as at the second reading stage. But the Bill cannot now be altered in any way. It must be either adopted or rejected, and that question is decided by a division. Of course, it is read the third time. The defeat of a Government Bill on its third reading in the House of Commons is a thing almost unknown.

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The Bill then goes to the House of Lords. It was formerly the custom for the Minister in charge of a Bill which passed the Commons to bring it up to the Lords with much ostentation. The Reform Bill of 1831, for instance, was brought up to the Lords by Lord John Russell, who had conducted it through the Commons, and Lord Althorp, the Leader of the House. The Ministers were accompanied by close on 200 Whig Members, who burst into loud cheers when Lord Chancellor Brougham came down to the Bar and received the Bill from Lord John Russell. But a different procedure has been followed since 1855. The Clerk of the House of Commons brings the Bill to the Bar of the House of Lords, where he hands it over to the Clerk of the Parliaments. “A message from the Commons,” says the Clerk of the Parliaments, “desiring your lordships’ concurrence in the first reading of the Representation of the People Bill.” The Bill is then read the first time, and is again reprinted for the use of the peers.

The Lords having given the measure a second reading, may alter its details substantially in Committee. When they are in Committee on a Bill the Lord Chancellor leaves the Woolsack and sits with other Ministers on the Front Bench, and the Lord Chairman of Committees, taking his seat at the Table, presides. After a Bill has passed through Committee of the House, it is referred for further revision to the Standing Committee, which consists of the Lord Chairman and eight other peers. The Lords have also the power to amend a Bill at the third reading stage—a practice which was abolished in the House of Commons in 1856—and further opportunity for debate is provided by an additional stage—dropped by the House of Commons also in 1856—“That this Bill do pass.” But, however trivial the alteration made in the Bill by the Lords may be, the Bill must be submitted again to the Commons, who may agree or may not agree with the Lords. If they agree with the Lords’ amendments, well and good. If they disagree, the Lords’ amendments are struck out, and the Bill is sent back to “another place” (as the House of Lords is called in the House of Commons) in its original form. It is generally recognized that the working of the Constitution depends on compromise, and usually an arrangement smooths, in the end, the differences between the two Houses. The Bill accordingly is passed, and remains with the Lords for the Royal Assent.

But what if the Lords throw out a Bill at the first or second reading stage? The Bill can ultimately be carried over their heads by means of the Parliament Act which was passed in 1911 by the Liberal Government, under Asquith as Prime Minister, to cope with the situation created by the Lords in rejecting their Bill to give Home Rule to Ireland. This Act provides that a Bill which is passed by the House of Commons in three successive sessions, and is rejected by the Lords in each of these sessions, shall on its rejection for the third time by the Lords be presented to the King and become an Act of Parliament on the Royal Assent being signified. It was by this procedure that the Government of Ireland Act, 1914, was placed on the Statute Book. The enacting words of an Act carried through both Houses in the ordinary way declares that it has been passed by and with the advice and consent of the Lords and Commons in Parliament assembled. A different form of words is used in the case of an Act carried under the Parliament Act. It says:

Be it enacted by the King’s most excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Act, 1911, and by authority of the same, as follows:

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Such is the long and elaborate process by which a Bill passes through both Houses towards its transformation into an Act of Parliament by the Royal Assent. Nevertheless, a Bill may pass through all its stages in both Houses and receive the Royal Assent within a single day. Such expeditious law-making is rendered possible by the suspension of the Standing Orders of both Houses which regulate procedure in regard to Bills. It is resorted to only in a grave emergency. The Bill for the suspension of the Habeas Corpus Act in Ireland during the Fenian troubles in 1866—allowing arrest and imprisonment without trial—was carried through both Houses on a Saturday, but owing to the delay caused by the absence of Queen Victoria from London, it did not receive the Royal Assent until one o’clock on Sunday morning—the only occasion, perhaps, that Parliament has sat on the Sabbath. In like manner the Explosive Bill, to cope with the dynamite conspiracy for the blowing up of public buildings in 1883, passed through both Houses before the midnight of the day on which it was introduced. In 1914, shortly after the outbreak of the World War, the Defence of the Realm Act—which practically placed British liberty at the feet of that capricious and whimsical lady, “Dora,” for the duration of the War—was swiftly passed into law, all on one day, without having been printed or circulated. The Standing Orders are also sometimes suspended by agreement towards the end of a session in order to wind up business quickly.