ART. IX. — REVISION OF PUBLIC BILLS.

SOCIETY FOR PROMOTING THE AMENDMENT OF THE LAW.1

Parliamentary Committee.

THE following reference was made to this committee:"To consider the propriety of establishing a Board for revising and settling Public Bills in Parliament, brought in by the Government or by private Members, the latter with the consent of the Members that have brought them in.

REPORT.

THE defects of the present mode of preparing and carrying through Public Bills in Parliament have been long very generally admitted. They have been the subject of constant complaint by the judges, and were referred for inquiry to a select committee of the House of Commons in 1836.2

Some progress has been made in both Houses of Parliament as to the revision of Private Bills. In the House of Lords a general supervision takes place by the chairman of committees and his counsel; and in the House of Commons the same superintendence is effected by means of the Chairman of Ways and Means, and the counsel to the Speaker. But no care whatever on the part of the Legislature is taken as to the preparation of Public Bills. In the House of Lords,

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1 We have been permitted by this useful and learned Body to print this Report; and we hope to derive other reports from the same source. - ED. 2 Much information on this subject may also be found in a document presented to Parliament in 1838, and compiled by Mr. Arthur Symonds, intituled Papers relative to the Drawing of Acts of Parliament." The judicial expressions of disapprobation of the present system of legislation are very numerous. It is only necessary here to refer, in addition to those referred to by Mr. Symonds, to the strong opinion of Lord Hardwicke in the House of Lords, on the discussion of the Militia Bill in 1756; to the opinion of Lord Eldon (see his life by Mr. Horace Twiss, vol. ii. p. 282.); to the opinion of Sir Edward Sugden, now Lord Chancellor of Ireland, in his letter to Mr. Humphreys in 1826; and to the more recent opinion of Lord Langdale, Master of the Rolls, on 13th June, 1836, in the House of Lords. Original Note.

Bills may be presented, and are usually read a first time and ordered to be printed as a matter of course on the motion of any peer. In the House of Commons, although in some cases the principle is discussed on moving for leave to introduce a Bill, no precaution whatever is taken as to the mode and language in which the principle is carried into effect. The Member, indeed, who moves for leave to introduce the Bill is, in conjunction with one or two other Members, ordered to prepare and bring in the Bill; but this proceeding is a mere formality, as he does not in fact usually prepare it. The Bill is then brought in, and not unfrequently in its progress through Parliament it rests entirely on the individual responsibility of its promoter. If it excites no party feeling, or interferes with no vested interest, and even if it does, when its principle or fate is once decided on, its details, and still less its language, are hardly looked to by any one, and are not in many cases attentively considered, until the Bill becomes the law of the land. Sometimes a particular clause, or part of a Bill, is severely contested, or express attention is called to it; and then this clause or part of a Bill is critically considered; but even when this is the case, all the other parts and clauses frequently pass without any proper attention being paid to them.

Thus it may happen that a Bill affecting the whole country may be drawn by a person who never drew a Bill before, by one ignorant of law as a science, and possessing merely a superficial acquaintance with the usual technicalities of Acts, prepared possibly after a similar fashion. There is no uniformity of expression. There is in many cases no attempt to use the same word or phrase in the same sense throughout. There is no responsibility, except a very vague one, attaching to the mover of the Bill, who is rarely its draftsman.

The Bill thus passed into law sometimes remains a dead letter in the statute book from inability to work it. In other cases, consequences result from the Act which were never intended or anticipated; but at best the parties attempting to carry the measure into execution are frequently beset by the greatest doubt and difficulty. A very considerable proportion of the cases laid before counsel are occasioned by the difficulty of construing these statutes; and the same observ

ation applies to actions and suits in the courts both of common law and equity, the time of which is taken up in expounding and settling the meaning of the Legislature. But all this is of course attended with great, and sometimes ruinous, expense and delay to the parties.

It may however be said, that legislation, in the nature of things, must be attended by disadvantages and hazards. But it is found that where Acts have been drawn by competent persons, as for instance in the Acts for the Consolidation of the Criminal Law, brought in by Sir Robert Peel, and most of the acts passed under the direction of the Real Property and Common Law Commissioners, very few doubts comparatively have arisen, although many of these Acts have made great alteration in the law, and have legislated on points of much technical nicety and of constant occurrence.1 It is to be observed that most of the statutes to which allusion is now made passed very nearly as they were brought in.

It may be asserted, therefore, that legislation is capable of being so conducted as to avert the evils which are now so deeply felt, and of which complaint has become so general.

The inquiry then arises, whether it be not possible to devise some plan by which Acts may be passed, which will not be attended by the evils of the present system?

The plan which appears to this Committee best calculated effectually to guard against and remedy these evils is to appoint certain persons selected from the legal profession, officers of Parliament, for the examination and revision of all Public Bills.

After much consideration, it appears to this Committee that these officers should not be employed to draw the Bills either of the Government or of private Members. All that they would recommend, at any rate, in the first instance is, that every Bill should, after its second reading, be revised by the officers to be appointed. On the Bill being so revised, it should be returned to the House of Parliament in which it originated for committee; but the duty of the revising offi

1 If this observation is peculiarly applicable to one act more than another, it is to the act for the abolition of fines and recovery, 3 & 4 W. 4. c. 74., the merit of which is almost exclusively Mr. Brodie's. — ED.

cers should not be supposed to end when the Bill was so returned, but it should be their duty to watch it throughout, and attend to all alterations made in either House of Parliament until it received the royal assent; and on any alterations being made, it should be referred back again to the revision of the officers.

It does not seem unreasonable to expect that the following advantages would attend the establishment of this office, some of which are now not even attempted to be gained.

1. A uniformity of style and expression in Acts of Parliament.

2. A knowledge of the existing state of that part of the law intended to be affected by the proposed measure.

3. A greater degree of clearness in the Act when passed, and thus greatly lessening the doubts as to the intention of the Legislature, and the subsequent expense of ascertaining it either by opinions of counsel, or actions or suits for his purpose.

Another great advantage that would be gained is, that competent persons would be induced to turn their attention to the framing of Acts of Parliament, a branch of study hitherto almost entirely neglected, and yet surely demanding exclusive attention as much as any other.

The principal disadvantages appear to be, that the establishment of this office might lessen the responsibility which now attaches to the Government and to the Speaker in matters of public legislation, and that when appointed, the new officers might relax in their zeal, and leave things much as they now are.

On the whole these disadvantages, although they deserve attention, appear to be far outweighed by the advantages which would attend its establishment.

One difficulty which has been sometimes urged to the establishment of the officers proposed is, that it might tend to fetter individual Members in the exercise of some of their powers in committee on the Bill; but it is conceived that this difficulty is not very formidable. Where the committee is a select committee, one of the Public Bill officers might attend the committee (which is now not an unusual course for the gentleman to take who has prepared the Bill) to make expla

nations and provide for objections. A committee of the whole House is not perhaps the best place for settling construction of language; but it would be still open to Members to make objections of this nature if they thought fit, although, as there would probably be less occasion for it, so it may be considered that this privilege would not be so often acted on

as now.

It is quite possible that the office might, at some portion of the session, have a great press of work, and at others very little to do. When there was an excess of business they might have means afforded them of obtaining some assistance.

When the House was not sitting, or when business was not so pressing, their time might be usefully employed in consolidating and digesting the statute law, or advising on what statutes are obsolete or repealed, in reporting on the state of the law affected by proposed alterations, and in the general care and supervision of the statute law. The officers might also with advantage accompany the Bills which they returned to the House with a short statement of the existing law, and the effect of the proposed alteration.

Another question of great difficulty will be, whether the new officers should continue in practice? It is considered that the chief officer, having the task of supervising the whole, should devote himself exclusively to the duties of the office. The other members might with advantage be allowed to remain in practice in the several branches of their profession.

In effecting an object of this nature, so important to every member of the community, it is conceived that the expense to be incurred should not be the difficulty in the way of carrying it out. But it seems capable of proof that the saving that the office would effect in stopping inconsiderate and useless legislation, in shortening Bills, in preventing reprints of Bills in many cases, and in saving the time of the courts, which is now occupied in construing the present imperfect statutes, would amply pay for its establishment.

For the reasons here given, and subject to the restrictions above alluded to, this Committee are of opinion that parliamentary officers to revise Public Bills might be appointed with great advantage, as well to the legislature as to the public.