The Government of England (Vol. I)

by A. Lawrence Lowell

Provisional Orders.

The vast amount of private legislation enacted in England every year is due in large measure to the absence of general statutes upon subjects that would seem to be ripe for them. Year after year private bills are passed on the same subject, until a policy is established which might well be crystallised into a general law, leaving the controversies that arise in its application to be settled by a body of purely judicial character; or, as in continental countries, a final power of dealing with these matters might, subject to rules fixed by law, be vested in the administrative departments. That many costly bills in Parliament would be saved by passing appropriate statutes has been suggested,[383:1] yet the process goes on slowly, and so far as it has been carried it is for the most part incomplete. During the last fifty years central administrative authority in local and other matters has increased enormously, but in conferring powers upon public departments Parliament has been reluctant to give up its own ultimate control over particular cases. This is especially true of the compulsory sale of land for public purposes; for property in land still retains a peculiar sanctity in England.[383:2]

Parliament has, no doubt, in many cases, delegated to the administrative organs of the state a final authority to grant special powers to local bodies or private companies, or at least to sanction their use;[383:3] but in other cases the grant must be laid before the Houses, and does not go into effect if either of them passes a resolution of disapproval.[383:4] Sometimes if opposed,[384:1] and more often whether opposed or not, the orders conferring the powers must be submitted to Parliament for a formal ratification. This is the origin of provisional orders. They are issued by a government office under the authority of statutes, but they are merely provisional until confirmed by Parliament. Except the Treasury, the Admiralty, and the Indian and Colonial Offices, which can hardly come into direct touch with local affairs, almost all the important departments, and even the county councils, have been given some powers of this kind; and they cover all manner of subjects that would otherwise be dealt with by private bills.[384:2]

Procedure upon Provisional Orders.

Provisional orders are begun by an application to the department that has power to issue them, and although the standing orders do not as a rule apply to these applications,[384:3] yet, by the enabling acts, or by the instructions issued by the departments themselves, similar regulations about notices, deposit of plans, consent of local authorities, and so forth, are enforced. The department usually holds, by means of an inspector, an inquiry on the spot; and either in this or in some other way objectors who are interested are given a chance to present their case. Upon the report of the inspector, and such other information as it obtains, the department decides whether it will make the order or not.

The orders made are then arranged in groups according to their subjects, and each group is scheduled to a confirming bill, which is introduced into Parliament like a public bill by the minister at the head of the department. But it is not treated as a public bill, still less as a government bill.

The minister does not try to force it through; he does not put pressure upon his followers by having the government whips act as tellers in a division. The measure is treated as a group of private bills, except that if an order is unopposed an officer of the department appears in support of it before the committee. The bill is read a first time, sent to the examiner, read a second time and referred to the Committee of Selection or the Committee on Railway and Canal Bills. Then if no petition has been filed against any of the orders in the bill it goes to the Committee on Unopposed Private Bills; otherwise it goes, with all the orders it contains, to an ordinary private bill committee which gives a hearing in the usual form to the promoters and opponents of the orders that are opposed.[385:1] Finally, the bill goes through the regular stages in the House.[385:2] In fact the standing orders direct[385:3] that provisional order bills, after being reported, shall be subject to the same rules as private bills, except so far as the payment of fees by the promoters is concerned.

Advantages of Provisional Orders.

The question of fees is a very important matter. It is one of the chief reasons for resorting to a provisional order; because the fees charged by the Houses to the promoters of private bills are heavy, and in the case of unopposed bills they form a large part of the cost of obtaining the act. An unopposed provisional order is, therefore, very much less expensive than an unopposed private bill; and although, with the large fees of counsel and expert witnesses, an opposed order may cost as much or even more than an opposed bill, it has the benefit of the presumption arising from the action of the department. Moreover, provisional orders, even if contested before the department, are not commonly opposed in the House. In the four years from 1898 to 1901 less than one tenth of the provisional orders were opposed in Parliament, and only one of them failed to pass.[386:1] It is, indeed, noteworthy that of the 2520 provisional orders issued by the Local Government Board from 1872 to 1902 only 23 were rejected by Parliament.[386:2]

Defects of Private Bill Legislation.