Legislative methods and forms

Front matter

SIR COURTENAY ILBERT

LONDON

HENRY FROWDE, M.A.

Preface

THE contents of this volume are based on memoranda and other papers written at various times on subjects connected with my official work. Such value as they may possess arises from their representing more than thirty years' experience in the preparation of legislative measures both in England and in India. I have endeavoured to avoid subjects which have been already treated of by other writers, and to confine myself to matters about which I can speak from personal knowledge, and therefore with some degree of confidence and authority.

In dealing with my subject-matter, I have, of course, considered myself bound by rules of official reticence, but, notwithstanding the restrictions thus imposed, I cannot help thinking that the book may be useful and interesting both to the practical legislator and to the student of political institutions. Chapters I and X might even detain the eye of the general reader.

Chapter I is an attempt to trace, in broad historical outline, the relations between the common or customary law of this country and its enacted or statute law, and to compare them with tfoe relations existing between customary law and statute law in France and Germany.

Chapter II describes the contents of the English Statute Book.

The greater part of these two chapters has appeared as articles in the Journal of the Society of Comparative Legislation.

Chapter III deals with what I have called subordinate vi PREFACE

legislation, that is to say, that part of the law which is enacted, not directly by the supreme legislature, but under delegated powers — an important region, which has as yet been imperfectly explored. I have compared English tradition and practice in the delegation of legislative powers with the tradition and practice of continental countries.

Chapter IV is a retrospective summary of the attempts which, during the last three centuries and a half, have been made to improve the form of the English statute law. A study of these attempts and of their results may exercise a sobering, but perhaps also an educative, influence on the reformer. This chapter is based on a minute which I wrote in 1892, and which was published as a Parliamentary Paper in 1893.

Chapter V describes the mode in which Government legislative measures are prepared in England.

Chapter VI is a very short account of those matters relating to the passage of a public Bill through Parliament which have to be borne in mind by a Parliamentary draftsman and those for whom he acts.

Chapter VII is substantially a plea for prosecuting, in a more vigorous and systematic manner than heretofore, the unattractive but useful work of rearranging and consolidating the contents of the English Statute Book. It reproduces with some modifications an article which appeared in the Quarterly Review.

Chapter VIII deals with the well-worn subject of codification, restates briefly the familiar arguments for and against that process, and describes what has been actually done towards codifying the laws of different countries, and the mode hi which, and the circumstances under which, the work has been done. I have thought myself justified in dealing at some length with Anglo-Indian codification, because its history does not seem to be generally known, and the facts relating to it are not easily accessible in a collected form. For valuable assistance in describing the

PREFACE vii

course of continental codification, I am much indebted to Dr. E. Schuster, of Lincoln's Inn. Portions of this chapter have already appeared in the Encyclopedia of English Law and in the Law Quarterly Review.

Chapter IX summarizes what I have been able to find out about the methods of legislation in the various British colonies, and is based on the extremely interesting replies which have been received to the queries addressed to the colonies by the Colonial Office at the instance of the Society of Comparative Legislation, and which have been published in the Journal of that Society.

Chapter X is to some extent a generalization from the contents of preceding chapters, and endeavours to describe and explain some of the most characteristic features of English parliamentary legislation.

Chapter XI, if it wished to be ambitious, might describe itself as a short treatise on nomography, but really consists of practical notes which I have made from time to time for the guidance of myself and of those who have worked with or under me in the preparation of legislative measures.

Chapter XII is also of a severely practical character, and consists of forms which may have to be used by a parliamentary draftsman, and of notes explaining some features of that complex and elaborate administrative system in which he is apt to find so many pitfalls.

The memoranda on which these two chapters are based have for some time been in private circulation, and copies of them were, a few years ago, sent by the Colonial Office to the Governments of the several British Colonies for the assistance of their official draftsmen.

It is impossible for me to acknowledge in detail my indebtedness to numerous friends. Chapters XI and XII were originally prepared as a supplement to the useful little treatise on ' Practical Legislation,' which was written many years ago by Lord Thring, my early instructor in the art of draftsmanship, but which has long been out of print. I am viii PREFACE

reminded at every page of what I owe to my old and dear friend, the late Sir Henry Jenkyns, with whom it was my privilege to work officially for twelve years, and unofficially for a much longer period, and whose intimate acquaintance with the principles and details of English legislation and administration has never been surpassed.

I have been permitted to see in proof some of the chapters of Mr. Bryce's forthcoming Studies in History and Jurisprudence. He has dealt with some of the subjects on which I have touched, but from a different point of view, and with an abundance of knowledge and a felicity of expression and illustration which I can only envy and cannot emulate.

I am indebted to Mr. F. W. Gardiner for the Index and Tables of Statutes and Cases.

C. P. ILBERT.

3, WHITEHALL GARDENS.

February, 1901.

Contents

CHAPTEE I

PAGE

Rivalry between common law and statute law i

CHAPTER II Meaning of ' statute ' 20

Statutes of the Realm . . . . . . . . 21

Scottish statutes ........... 23

Irish statutes . 33

Editions of statutes at Inrge for period since 1713 .... 23

Chitty's Statutes of Practical Utility 24

Statutes Revised (first edition) ........ 24

Statutes Revised (second edition) ....... 24

Utility of Statutes Revised . 25 x CONTENTS

PAGE

Irish Statutes Revised 25

Projected edition of Scottish Statutes Revised 26

Annual volumes of Public General Statutes ..... 26

Classification of statutes ......... 26

Distinction between Public and Private Acts ..... 27

Distinction between Public and Private Bills ..... 28

Provisional Order Confirmation BilTs -33

Public Acts of a local character ........ 33

Chronological Table and Index of Acts ....... 33

Lists of Local and Private Acts ........ 35

Chapter IV Stages In The Improvement Of The English Statute Law

Object of chapter 43

Proposals under King Edward VI ....... 43

Proceedings under Queen Elizabeth ....... 43

Proposals under King James I . -45

Lord Bacon's proposals of 1616 45

Proceedings under the Commonwealth 46

Proceedings after Restoration . . . . . . . -47

Reports of 1796 -47

Improvement in classification of Acts ...... 49

Resolutions of 1800 . 50

Resolution of Public Records Commission, 1806 .... 50

Sir Robert Peel's Criminal Law Amendment Acts . . . .51

Statute Law Commission of 1833 . . . . . . .51

Sir Henry Seton's Reports of 1836 . 52

Statute Law Commission of 1845 52

Further steps for codification of criminal law 53

Lord Cran worth's proposals of 1853 ....... 53

Statute Law Board of 1843 . -53

Statute Law Commission of 1854 55

Statute Law Revision Act of 1856 57

Select Committee of 1857 58

Criticisms in Parliament on proceedings of Statute Law Commissioners ............ 58

Proceedings in 1859 59

Publication of Register of Public General Acts ..... 59

Steps taken by Sir Richard Bethell in 1860 59

Statute Law Revision Act of 1861 60

Criminal Law Consolidation Acts of 1861 60

Statute Law Revision Act of 1863 60

Other expurgatory Acts 62

CONTENTS xi

PACK

Preparation of Index to and Chronological Table of Statutes . . 63

Alteration in classification and editions of the statutes ... 64

Appointment of Statute Law Committee in 1868 .... 64

Publication of Chronological Table and Index to Statutes . . 66

Publication of first edition of Revised Statutes 66

Arrangement for extension of first Revised Edition .... 66

Successive editions of Chronological Table and Index ... 66

Establishment of Parliamentary Counsel's office .... 67

Select Committee of 1875 67

Improvement in drafting of Bills 68

Reports on civil procedure and courts 69

Mr. Wright's report, 1877, on criminal law and procedure . . 69

Criminal Code Bills of 1878-83 69

Second edition of Revised Statutes ....... 70

Statute Law Revision Bills of 1887 and 1888 70

Statute Law Revision Bill of 1889 71

Select Committee of 1890 ......... 71

Statute Law Revision Acts of 1890 ....... 72

Statute Law Revision Act of 1891 72

Establishment of Joint Committee for consideration of Statute Law

Revision Bills 72

Recent Consolidation Acts 72

Procedure for passing Consolidation Bills in 1894 .... 73

Difficulties experienced in 1896 74

Suspension of work of consolidation 75

Short Titles Acts of 1892 and 1896 75

Summary of results 76

CHAPTEK V

Preparation of early Acts 77

Legislation in the Tudor period 77

Share of judges in preparation of Bills after Restoration ... 78

Lawyers' Acts 79

Eighteenth-century legislation 80

Mr. Pitt's ' Parliamentary Counsel ' .80

Change in nature of ministerial responsibility for legislation . . 82

Appointment of Home Office Counsel 83

Establishment of Parliamentary Counsel's Office in 1869 ... 84

Object of scheme of 1869 85

Staff of Parliamentary Counsel's Office . . . . 85

Gradual abolition of departmental draftsmen . ... 86

Practice as to instructions for Government Bills ... 86

Procedure on receipt of instructions 87

Work of draftsman after introduction of Bill into Parliament . . 89

Scotch and Irish Bills 9°

Private members' Bills 9° xii CONTENTS

PACK

Hybrid Bills 91

Private Bills 9a

Provisional Order Bills ......... 92

Other duties of Parliamentary Counsel's Office 93

Advising on questions affecting legislation 93

Statutory rules and orders 94

Statute law revision and consolidation 95

Results of establishment of Parliamentary Counsel's Office . . 95

Control over Government legislation 96

Improvement in form of statutes 96

Suggestions for extension of duties of Office ..... 96

Chapter VI Passage Of Bills Thkough Parliament

Right of initiating legislation 98

Mode of introduction .......... 99

Stages in progress of Bill ......... 101

Classes of committees .......... 104

Authentication of Acts ......... 105

NOTE A — Initiation of legislation in France and Germany . .106

NOTE B — Legislative procedure in France ..... 108

CHAPTER VII Meaning of consolidation . . . . . . . . .111

Difficulties of consolidation in

Change of language in

Changes of law and circumstances 112

Differences of style 112

Ambiguities and obscurities 112

Consolidation means rewriting 112

Consolidation Acts not popular 113

Progress made in consolidation 114

Work to be done 115

Need of support from public opinion . . . . . .116

Is consolidation worth the trouble it involves ? . . . .116

Possible improvements in machinery for consolidation . . .118

Bentham's definition of codification 122

Savigny on codification 123

Results of Bentham's work 124

CONTENTS xiii

PAGE

Results of Savigny*s work .126

Fate of codification in England 127

Codification in India . • . . . . . . . . .129

Codification in British colonies ........ 155

Codification in the United States 155

Codification on the Continent 157

General conclusions 159

Advantages of codification 159

Difficulties in way of codification 160

Case for dealing with criminal law 162

Chapter IX

INDIAN AND COLONIAL LEGISLATION I. COMMON LAW AS THE BASIS OF STATUTE LAW.

General principles . 167

Channel Islands 168

British colonies generally ......... 168

French law in Canada and elsewhere 168

Spanish law 169

Roman-Dutch law 169

Malta 170

Cyprus 170

Laws applicable to particular races and creeds 1 70

Ceylon 170

Straits * 171

Hong Kong 171

African colonies 173

Australasia 172

II. STATUTE LAW.

Materials of which statute law of British possessions is composed . 172

Legislative powers of Imperial Parliament 173

Effect of severance of one possession from another . . . . 1 73

Survivals of foreign enacted law 173

Illustrations 174

The Indian Statute Book 174

Canadian statute law 176

Australasian statute law 177

Rudimentary forms of legislation 178

III. METHODS OF LEGISLATION.

I. Preparation of Bills.

India i?9

Canada 180 xiv CONTENTS

PAGE

Newfoundland 180

New South Wales 180

Victoria 181

Queensland 181

South Australia 181

Western Australia 182

2. Publication of Bills.

3. Stages of Bills.

4. References on Points of Form ........ 186

5. Uniformity of Style 186

6. Legislative Sessions.

7. Numbering and Short Titles of Laws ....... 187

8. Private Bill Legislation.

g. Explanatory Statements '. 190

IV. PUBLICATION OF STATUTES.

i. Current Legislation.

Canada 191

South Australia ........... 191

Variations in size of volumes of colonial statutes .... 193

2. Collective and Revised Editions.

Canada 194

Victoria 195

New Zealand 196

3. Indexing.

Suggestions for uniformity of indexing 198

Existing indexes in India and elsewhere . . . . . . 198

CONTENTS xv V. CONSOLIDATION AND CODIFICATION.

PAGE

Collective Editions of Colonial Acts 202

CHAPTEE X

Napoleon on legislatures * . . 208

Napoleonic theory and English practice 208

Leading characteristics of English legislation ..... 209

Parliament mainly concerned with administrative law . . . 209 Control of Executive Government over legislation . . . .213

Distrust of official discretion 219

Comparison with other legislatures ....... 222

United States legislation 222

Continental legislation 222

Colonial legislation .......... 224

Anglo-Indian legislation ......... 225

Causes of defective form of Acts of Parliament . . . . 229

The progress of a Bill through the House ...... 230

Should legislation be delegated to experts ? . . . . .231

Advantages of existing system ........ 233

Systematic consolidation would remove many defects . . . 235

CHAPTEK XI

General principles of statutory drafting . . . . . . 237

Preliminary work .......... 243

Arrangement 244

Marginal notes 246

Clauses 246

Sentences 247

Language 247

Penalties and other sanctions 248

Expenses 250

Rules of interpretation 250

Imperative and directory regulations 251

Transitional arrangements . ........ 251

Consolidation Bills 251

Referential legislation (in the wider sense) 254

Amending legislation .......... 256

Referential legislation (in the narrower sense) 259

Schedules, rules, and forms 266

Title 268

Preamble 269

Formal and saving clauses 270 xvi CONTENTS

CHAPTER XII

STATUTORY FORMS TITLE.

PAGE

ENACTING FORMULA.

FORMAL CLAUSES.

Forms.

Short title 272

Construction of Act 273

Provision for embodying amending Act in principal Act . . . 274

Extent of Act 275

Application of Act by Order in Council (colonies) .... 276

Application of Act by Order in Council (foreign countries) . . 277

Application of Act to British possessions 277

Commencement of Act 277

Appointed day 278

Duration of Act 279

Repeal of enactments in schedule 279

Repeal of enactments on rules coming into operation . . . 280

Power to repeal or vary Acts in schedule 280

DEFINITIONS.

Explanatory Note 281

CENTRAL AUTHORITIES.

Forms.

Staff and remuneration and expenses 283

Style and seal of Board 283

Transfer of officers 284

CENTRAL FINANCE.

Exchequer and Consolidated Fund 284

Exchequer and Audit Departments Act, 1866 285

Comptroller an Auditor-General 285

Payments into Exchequer 285

Consolidated Fund 286

Consolidated Fund charges and annual supply charges . . . 286

Consolidated Fund charges 286

Charge for public debt 286

Heads of public debt 286

Permanent funded debt 286

Funded debt of terminable annuities 287

CONTENTS xvii

PAGE

War loan 287

Floating or unfunded debt 287

Exchequer bills and Exchequer bonds 287

N Treasury bills . * 288

Charge for management of National Debt 288

Sinking Fund Act, 1875 288

Old Sinking Fund 288

Permanent annual charge for the National Debt .... 289

New Sinking Fund 290

Supply of money for Consolidated Fund charges .... 390 Procedure for authorizing expenditure of money required to meet

Supply charges 291

Resolution in Committee of Supply 291

Resolution in Committee of Ways and Means 291

Consolidated Fund Acts 291

Issue of credit by Comptroller and Auditor-General .... 291

Issue by Treasury 393

Appropriation Act 293

Paymaster-General 293

Audit and reference to Public Accounts Committee .... 293

General characteristics of system 293

Appropriations in aid 294

Special accounts 294

Local Taxation Account 294

Cattle Pleuro-pneumonia Account for Great Britain . . . 295

General Lighthouse Fund 295

Naval Defence Account 296

Loans from public money 296

Loans by Public Works Loan Commissioners 296

Interest on loans 296

Terms for repayment 297

Security for loan 297

Local Loans Fund . . 297

Annual Public Works Loans Acts 298

Forms.

Power for Public Works Loan Commissioners to lend . . . 299

Money to be applied as appropriation in aid 300

LOCAL AUTHORITIES AND LOCAL FINANCE.

Forms.

Expenses of [district council] 304

Application of receipts by [district council] 305

Application of capital money 305

Power of county council to borrow 306

Power of borough council to borrow ....... 306

Power of district council to borrow 306

Power of [ ] to borrow 306

Proceedings in case of default of local authority .... 307 ILBERT. // L, b xviii CONTENTS

PROVISIONAL ORDERS AND SCHEMES.

PAGE

Forms.

Confirmation of provisional order by Parliament .... 308

Confirmation of scheme by Parliament or Order in Council . . 309

ORDERS IN COUNCIL, RULES, REGULATIONS, AND BY-LAWS.

Forms.

Power for His Majesty to make Orders in Council . . . . 311 Power for King in Council to make regulations . . . .312

Draft of Order to be laid before Parliament 312

Power to make rules 313

Rules to be laid before Parliament 313

Rules to be subject to disallowance by Parliament .... 313

Draft of rules to be laid before Parliament 314

Power of local authority to make by-laws 314

By-laws 315

ACQUISITION OF LAND.

Forms.

Power to purchase land 320

Machinery for purchase of land 321

LEGAL PROCEEDINGS.

Forms.

Expenses of indictments 324

Summary prosecution of offences 324

Exemption of occupier from fine on proof of another being actual

offender 324

Compensation for damage caused by offence 325

Imprisonment for wilful act or neglect endangering life or limb . 325

FORM, SERVICE, INSPECTION, AND EVIDENCE OF DOCUMENTS. Forms.

Form of notices, &c 326

Service of notices, &c 326

Inspection of documents 327

Execution of instruments by head of department .... 328

Evidence of register 328

Gazette to be evidence 328

Proof of document by certified copy, &c 329

COMPUTATION OF TIME.

Forms.

Computation of time 329

CONTENTS xix SAVING CLAUSES.

PAGE

Forms.

Saving for rules of equity and common law . . . . . 330

Powers of Act cumulative 330

Repeal of local Acts 331

Saving for powers of [Charity Commissioners, &c.] .... 331

Saving for power to proceed under other law 331

Saving of civil remedy 331

Saving of obligation to make discovery 331

SPECIAL AUTHORITIES.

Forms.

Powers of Commissioners (judicial) 333

Penalty for false swearing 333

Power to appear by counsel 333

Indemnity to witnesses 333

APPENDIX I

REPEAL TABLES AND SCHEDULES