The Government of England (Vol. I)

by A. Lawrence Lowell

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.

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.

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.

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.

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.