Parliament usually attempts to retain a control, or at least an oversight, of the orders made by the public departments under the authority delegated to them in this way. Sometimes the order is issued under a power that is provisional only, and does not become operative until confirmed by a statute. This is usually, though not invariably,[364:1] true of rights granted to private companies or local authorities to construct works of public utility, such as waterworks, gas-works, tramways, and the like.[364:2] Provisional orders of that kind do not involve any true delegation of legislative power, because they derive their validity, not from the act of the department, but from the statutes by which they are confirmed; and they are included among the Acts of Parliament, and not the statutory orders of the year. Practically, however, they are almost always confirmed without amendment.
Over Statutory Orders.
Parliamentary control over statutory orders strictly so called, which involve a real delegation of legislative power, is commonly maintained by requiring them to be reported to the two Houses; and in order to give an opportunity for preliminary criticism, the regulation, or a draft thereof, must sometimes be laid on the table for a certain time before it becomes operative.[365:1] Moreover, control by Parliament is often expressly reserved by providing that if, within forty days, either House presents an address to the Crown against a draft or order, then the order shall not be made, or in case it has already gone into effect it shall thenceforth be void.[365:2] An address under such a provision is exempted from the rule about the interruption of business in the House of Commons, and hence can be moved by a private member at the close of the sitting on any evening, without taking his chance in drawing lots, or appealing to the government for a part of its time.[365:3] As a matter of fact, motions of this kind are uncommon, and are rarely, if ever, successful; although the frequency with which the statutory orders are revised by the departments would seem to show that the officials who make them are highly sensitive to outside opinion.
Since 1893 the statutory orders of each year have been regularly published like the Acts of Parliament;[365:4] and an idea of their number may be derived from the fact that they always fill one, and often two, large volumes, each much thicker than the present emaciated book of the Public General Acts.[366:1] In spite of the potential control retained by the Houses over statutory orders, the growing habit of delegating authority to make them involves a substantial transfer of power from Parliament to the executive branch of the government, a transfer due in part to the increasing difficulty in legislation.
The existing relation between the cabinet and the House of Commons has thus had a number of distinct, and at first sight contradictory, effects. While placing the initiative for almost all important legislation in the hands of the ministers, it has tended to reduce the number and completeness of the laws they can carry through; and on the other hand it has helped to invest them with a power of subordinate or secondary legislation quite foreign to English traditions. This is true of public matters, but in regard to private and local acts the relation of the cabinet to Parliament, and hence the effects of that relation, are wholly different.
FOOTNOTES:
[356:1] Cf. Ilbert, "Legislative Methods and Forms," 217.
[356:2] Ilbert, Ibid., 90-91. Private bills are, of course, drafted by the counsel for the petitioners, and provisional order bills by the department that grants the provisional order.
[356:3] Ilbert, "Leg. Methods and Forms," 86 note. The Scotch and Irish bills, and almost all the most important Indian bills, are drawn by draftsmen attached to the offices for those countries.