“If, however, we turn from contemplating the intentions of the Legislature to consider the degree in which they are realised, the contrast is curiously great. Not only have permissive enactments remained for the most part unapplied in places where their application has been desirable; not only have various optional constructions and organisations which would have conduced to physical well-being, and which such enactments were designed to facilitate, remained in an immense majority of cases unbegun; but even nuisances which the law imperatively declares intolerable have, on an enormous scale, been suffered to continue; while diseases which mainly represent the inoperativeness of the nuisance-law, have still been occasioning, I believe, fully a fourth part of the entire mortality of the country. And when inquiry is made into the meaning of this strange unprogressiveness in reforms intended, and in great part commanded, by the Legislature, the explanation is not far to seek. Its essence is in the form, or perhaps I may rather say in the formlessness, of the law. No doubt there are here and there other faults. But the essential fault is that laws which ought to be in the utmost possible degree, simple, coherent, and intelligible, are often in nearly the utmost possible degree, complex, disjointed and obscure. Authorities and persons wishing to give them effect may often find almost insuperable difficulties in their way; and authorities and persons with contrary disposition can scarcely fail to find excuse or impunity for any amount of malfeasance or evasion.”
To this review by one of the ablest and most experienced of men of the time in matters relating to the public health, it must, however, be added that so far as the metropolis was concerned, “the meaning of this strange unprogressiveness” was not so much the formlessness of the law, as the fact that the interests against the enforcement of many portions of the law were predominant, and the non-administration of the law was due far more to that circumstance than to any ambiguities or obscurities in the laws. “Vested interests in filth and dirt” were all powerful on the greater number of the local authorities of London, and so the law which would have interfered with those interests was left severely unadministered.
Against these interests it was difficult to struggle—especially when there was no compulsion upon the administrators of the laws to administer them. Sheltered under a permissive, they would not exercise a compulsory power—a power entrusted to them with the control of public money for public good.
The true cause of the inoperativeness of the law was, in a way, pointed out by the Medical Officer of Health for St. James’, Westminster, when he wrote (1869–70):—
“The great deficiency of the Act of 1866, as of all other English legislation on sanitary matters, is that no public prosecutor is appointed. If Vestries neglect to prosecute, and individuals do not see their way to it, people may be killed by infectious diseases to any extent.”
And the Medical Officer of Health for St. Giles’ expressed a similar opinion when he wrote (1870):—
“The duty of making these sanitary improvements should be imperative instead of permissive. It was wise, at first, perhaps, that our sanitary legislation should be tentative and experimental; but experience having proved its necessity it should be made more stringent.”
But neither of them got so far as to see the natural and simple remedy, that where a local authority for one reason or another would not administer the laws made by Parliament, the central authority should step in and do the work at the cost and expense of the recalcitrant local authority.
If one set of people failed in their duty to the public, it was but right that where such tremendous issues were at stake as the health and physical well-being, not merely of the people of one parish but of over three and a quarter millions of people—and all that their health and well-being implied—the administration of the law should be placed in hands that would administer it.
That, however, was but part of the great problem, though it would have gone a long way in ameliorating things. The other necessity was the strengthening and altering of the law which itself stood in need of many and large changes before a sure foundation could be laid for the future health of the great community resident in the great metropolis of London.