Alpheus Todd.

On parliamentary government in England : its origin, development, and practical operation (Volume 1) online

. (page 44 of 85)
Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 44 of 85)
Font size
QR-code for this ebook

giving effect to treaties ; for extending the terms of
patents ; for granting charters of incorporation to com-
panies or municipal bodies ; for proclaiming ports, fairs,
&c, ; for deciding causes on appeal ; for creating eccle-
siastical districts or circuits for judicial purposes ; for
granting exemptions from the law of mortmain; for the

1 Peel's Mem. v. 2, p. 131. And see Judge Ritchie in Windsor

m Attorney-General v. Bishop of and Annapolis Ry. case, Nova Scotia
Manchester, L. R. 3 Eq. p. 436. Equity Decisions, v. 1, p. 307.



they re-
quire the
of Par-


regulation of the Board of Admiralty, and of appoint-
ments to offices in the various departments of state; for
creating new offices, and defining the qualifications of
persons to fill the same ; and for declaring the period
at which certain Acts of Parliament (the operation of
which has been left by the legislature to the discretion
of the Queen in council) shall be enforced. 11

It is difficult to draw the line between what may
and what may not be accomplished by an order in
council, without special legislative sanction. As a
general rule, all orders in council restricting trade, un-
less issued under the authority of an Act of Parliament,
or justified by reference to cases coming within the pre-
rogative of war and all orders suspending the opera-
tion of any statute would require an Act of Indemnity.
But when duly informed by the crown of the proceed-
ings had upon any such occasion, Parliament has always
been willing to indemnify the government for the timely
exercise of authority for the public welfare, although it
may have led to an overstepping of the constitutional
limits of executive power.

So far as proclamations, as distinct from orders in
council, are concerned, it is an indisputable branch of
the royal prerogative to issue proclamations in refe-
rence to the existing state of the law, warning those
who may be likely to commit offences, encouraging
respect for the law, and offering rewards for the appre-
hension of offenders. These documents are regarded
as solemn expressions of the royal will, and are invari-
ably issued upon the advice of responsible ministers.
They are usually based upon orders in council, and are

n Rep. on the Privy Coun., Com.
Pap. 1854, v. 27, p. 253. Rep. on

limited to three years, with authority
to her Majesty in council to renew

it for another year without applying
to Parliament. This power was ex-
ercised by order in council in 1872.
Hans. D. v. 212, p. 340. And see
40 & 41 Viet. c. 38.

See cases cited in Lieber's Her-
meneutics, 3rd ed. 1880, p. 67 n.


intended to promulgate decisions arrived at by the
sovereign in council. Their exact force has been a
matter of dispute, which even now cannot be precisely
determined, since it labours under the uncertainty
which affects all questions bearing on the limits of the
prerogative. It is clear, however, that while a pro-
clamation cannot make a law, it can add force to a
law already made. p When the sovereign declares war
against a foreign power, proclamations are usually
issued, materially altering the ordinary laws relating to
trade, and imposing rules for the conduct of trade with
neutrals or belligerents.* 1 Proclamations are also issued
to fix the mode, time, and circumstances of putting into
execution certain laws, the operation of which has been
left to the discretion of the executive government ; r or,
for the purpose of making formal declaration of exist-
ing laws and penalties, and of the intention of govern-
ment to enforce the same ; or, to appoint and direct
the keeping of a day of observance, whether as a fast
or thanksgiving. But 'proclamations have only a bind-
ing force when they are grounded upon and enforce
the laws of the realm.' 8 And to be valid in law they
must be published in the official gazette of the king-
dom.* The king cannot authorise by proclamation the
creation of an offence which is not a crime by the ex
isting law ; ' for if so, he might alter the law of the land
by his proclamation.' u

P See Forsyth, Const. Law, p. Coke, 3 Inst. 162. See Lords'

180, n. Hallam, Const. Hist. v. 1, p. Debates, May 2, 1876, on the terms of

337. the proclamation issued pursuant to

i See Cox, Inst. Eng. Govt. 28. the Royal Titles Act.

Ed. Rev. v. 100, p. 192. * Act. 40 & 41 Viet. c. 41.

T Ex. gra 6 Geo. IV. c. 78. Muni- u Bowyer, Const. Law, p. 173.

cip. Corp. Act of 1835. Health of Att.-Gen. Collier, Hans. D. v. 203.

Towns Act of 1848. Royal Titles p. 1370.
Act of 1876.


Control of Parliament over the issue of Orders and
Minutes of Council, and other Departmental Regu-

Minutes The responsibility of ministers to Parliament neces-

01 ' sarily implies the right of either House to express its
opinion as to the legality or expediency of any particu-
lar act of administration ; and to proceed to call to
account any minister of state who may have exceeded
the limits of constitutional authority in the execution of
public duty.

See the debate in the House of Lords May 12, and in the House
of Commons June 25, 1817, upon the circular letter of the secretary
of state for the Home Department (Lord Sidmouth) to the lords
lieutenants of counties, respecting the authority and duties of magis-
trates, in regard to blasphemous or seditious libels ; which letter was
alleged to have been an interference with the ordinary course of
justice, and an assumption by the executive of legislative power. v

In the working of constitutional government, expe-
rience has proved that certain subordinate powers of
legislation must be entrusted to almost every leading
department of state. So long as these powers are
exercised with the knowledge of Parliament, and in
direct subjection to its control, they can be more ad-
vantageously discharged by responsible ministers than
if it were obligatory that they should emanate from
Parliament itself. w For all such regulations are framed
by a responsible minister, for the sanction of the crown.
And no premature interference therein ought to be
Depart- attempted by either House.* Minutes of council, de-
reguia- partmental regulations, and other authoritative di-
tions. rections emanating from the heads of the principal

v May, Const. Hist. v. 2, p. 188. before the Com 6 , on Education, Com.

See the Evid. of the Rt. Hon. Pap. 1866, v.6,pp. 54, 55,68,71,72,

R. Lowe, H. A. Bruce, and C. B. 76, 153.

Adderlcy, and of Earl Granville, ' Hans. D. v. 157, p. 842.


executive departments, must needs be frequently issued

in regard to particular matters of administration, which

require to be determined by competent authority, but

it is essential that all acts of quasi-legislative authority Depart-

which may be performed by any department of state, Halation

shall be within the limits defined and prescribed by Sllbs f r ;

* vient to

parliamentary enactment ; and also that, whenever Pariia-
either the expenditure of public money, or other great
public interests, are concerned in the matters thus dis-
posed of, an opportunity should be afforded to Parlia-
ment of expressing its opinion upon the same, before
the government proceed to take action thereon.

Shortly after the adoption of the order in council of April 10, Prece-
1839, creating a separate department of the privy council as a body dents,
to superintend the distribution of the moneys voted by Parliament
for educational purposes, the proceedings of government in the matter
were called in question in both Houses. On June 1 4, an address was
moved in the House of Commons, praying for the revocation of the
said order. After several nights' debate, this motion was negatived
by a majority of 5 only, in a full House.? On July 5, in the House
of Lords, a series of resolutions were agreed to, and embodied
in an address to the Queen, deprecating the conferring of such
important powers upon the committee of council without the
consent of Parliament, and praying that no steps may be taken with
respect to the establishment of any plan of national education with-
out affording to their lordships an opportunity of fully considering
the proposed measure. 2 On July 11, an answer was returned to this
address, expressing her Majesty's regret that the House of Lords
' should have thought it necessary to take such a step on the present
occasion ' ; and assuring their lordships that annual reports of the
proceedings of the newly appointed Committee of Education would
be laid before Parliament, ' so that the House would be enabled to
exercise its judgment upon them.' a

The Committee of Privy Council on Education, in 1861, framed Minutes
a revised code of rules for the administration of the parliameritary g,j uca .
grants for promoting education in England, which effected extensive tion Cone
alterations in the existing system of education as administered by mittee.
the Privy Council. The government laid before Parliament the
minute of council establishing the revised code on August 6, 1861>

Mir. of Parl. 1839, p. 3195, ' Ib. p. 3662. 2b. p. 3815.



being the very day of the prorogation,* but without giving any ex-
planations on the subject. However, as the new regulations were not
to come into operation until after the next meeting of Parliament,
when they were liable to be objected to by either House, it was pro-
bably deemed unnecessary to comment upon them on their first intro-
duction. During the recess, the new code was subjected to consider-
able criticism, and elicited formidable opposition in many quarters.
The complaints against it received full attention from the govern-
ment, who, shortly after the reassembling of Parliament, laid before
both Houses another minute, containing several modifications of the
code. These changes, however, were not sufficiently comprehensive
to satisfy the opponents of the measure. Accordingly, a discussion
took place in each House upon the subject, wherein exception was
taken, not merely to the re-revised code itself, but also to the mode
of its adoption by the government. In the House of Lords, on
February 17, 1862, Lord Derby called upon the ministry to embody
the principles and leading details of the scheme in a series of resolu-
tions, to be submitted to both Houses, in order to afford opportunity
for mature deliberation thereupon. But this they declined to do.
Mr. Walpole, who led the attack upon the code in the House of
Commons, condemned the government for not having submitted it
to Parliament in a series of distinct propositions, instead of as a
whole. He said that ' he wished to raise the question whether, when
any alteration is made in a system of education which the country
has adopted, accepted, and acted on, it is to be in the power of any
government, at any future period, by its own mere motion, and with-
out the concurrence and sanction of Parliament, to alter that system
fundamentally and entirely, in the manner they are now attempting
to do. In 1839, this question was much agitated, and discussed in
this House. There was then an attempt to introduce normal and
industrial schools. That attempt was defeated ; and one of the
great objections urged against it was the manner in which the
attempt was made. The House was told, and told truly, that the
power which the committee of council asserted to itself was a power
essentially beyond that which the constitution gave to any depart-
ment in the state. It was the assertion by a body necessarily politi-
cal in its character necessarily fluctuating in its nature, which
would be irresponsible, and therefore despotic of an authority and
power which does not belong to any minister, and which ought only
to be entrusted to both Houses of Parliament.' With these views
Mr. Walpole submitted to the House a series of resolutions, con-
demnatory of certain parts of the revised code, for the purpose of
obtaining, in committee of the whole House, a full discussion of the

b Com. Jour. 1861, p. 427.



scheme, and the introduction of considerable changes therein. With
the general principle of the code as an endeavour to simplify the
machinery for administering the grants of public money for the pro-
motion of popular education, and an attempt to test the results of
such education he entirely concurred ; but he considered the mode
of effecting these objects, as set forth in the code, to be quite un-
palatable to Parliament and to the country. In asking the House to
adopt this course, he likened it to the proceeding in committee upon
a government bill, the principle of which has been agreed to by the
House, but which is subject to amendment of details at that stage of
its progress. And in order to prevent a proceeding so objectionable
as the present from being drawn into precedent by the government,
Mr. Walpole appended two resolutions to his series, requiring the re-
printing of the code in the January of each year, should any material
alteration therein be proposed, and in a form to point out distinctly
the intended changes ; and declaring that, in the event of any revision
or material alteration being proposed by the department at any time,
it shall not be lawful to take any action thereon until the same shall
have been submitted to Parliament, and laid on the table of both
Houses for at least one calendar month. [In order to bring the lan-
guage of the minutes in this particular ' in accordance with the sense
and spirit ' of Mr. Walpole's resolutions, the government subsequently
submitted to the Commons, February 17, 1865, a new rule to the same
effect, which while it recognised the power of the department to alter
the minutes, restrained any action upon such alterations until the
documents had been laid before Parliament. Supplementary regu-
lations on minor points, not included in the code, are laid on the
table every year, with the report of the Education Department. d ]
By these resolutions it was his object to maintain that the committee
of council, whilst entrusted with important administrative functions,
had no legislative authority, but must submit for the sanction of
Parliament all material changes in the national system of education
before attempting to enforce them. Secretary Sir George Grey, on
behalf of the government, acquiesced in the course suggested by Mr.
Walpole, and also in the principle involved in the last two resolu-
tions. 6 In compliance with the foregoing resolutions, the code was
reprinted January 1863 ; and a new minute of some importance
having been issued in the following May, the same was immediately
submitted to Parliament, to lie upon the table for one month before
it became law. f Whereupon the House went into committee on the
proposed resolutions. Three days afterwards, the vice-president

minutes to
be laid
of Parlia-

c As to the proper construction to
be given to these resolutions, see
Hans. D. v. 171, p. 1042.

d Ib. v. 177, p. 327.

Ib. v. 166, p. 52.

f Ib. v. 171, pp. 952-954.

11 H 2



of the Education Committee announced that the government were
prepared to make important alterations in the new code, in order to
render it more acceptable to Parliament and to the country. To
afford time for the due consideration of these amendments, no
further action was taken in the House on the subject until May 5,
when Mr. Walpole stated that on account of the conciliatory and
satisfactory conduct of the government, he was prepared to abandon
his resolutions, and to accept the revised code in its amended shape.
Thus ended a severe and protracted contest, wherein the right of
Parliament to exercise a constitutional control over the executive
government, in g^tcm-legislative matters and in the settlement of
all important details of administration was amply recognised and
sustained. In 1870, this principle was embodied in the Elementary
Education Act, which provides (in sec. 97) that no minute of the
Education Department, which defines the conditions upon which an
elementary school shall be entitled to receive public aid shall be in
force until it has lain for not less than one month on the table of
both Houses of Parliament. By practice these thirty days are com-
puted from the day on which the code was circulated amongst
members, not from the day when it was formally laid upon the table
of the Housed

j t h as a } so b een acknowledged that the Education


Department is bound to apply for the sanction of Par-
liament not merely to any minute which involves the
expenditure of public money, but to any minute which
modifies the departmental regulations previously sub-
mitted to Parliament. 11

And it is understood that no important changes in the system of
national education in Ireland should be introduced before they had
been communicated to Parliament, although it is entirely within the
province of the Irish Education Commissioners to alter or modify
their rules without any action on part of government. 1

To assist the judgment of the Commons in this matter
tElappro- it h as been customary for the member who represents
vai of the the department in the House to make a statement in

House of 1 A .

Commons, explanation ot the changes effected by the new minutes,
when he lays them upon the table. 3 ' At this stage,

Minutes of



HOW sub-

' Hans. D. v. 232, p. 1216.
" Com. Pap. 1864, v. 9, p.

J Com. Pap. 1865, v. 6, pp. 55, 72,
369. 153. Hans. D. v. 185, p. 1147. Ib

. . . , . .

Ev.453,&c. Hans. D. v. 177, p. 327. v. 204, pp. 1813. 1827; v. 223, p.
' Ib. v. 183, p. 1031. 226.


however, no debate should take place, as there is no
question before the Chair.

The manner in which the sense of the House of ^tod
Commons is taken in reference to new minutes of the sense of
Committee of Council on Education, when they have H ouse.
been laid upon the table, may be seen from the follow-
ing cases.

On May 5, 1863, two resolutions were submitted to the House,
by a private member, to declare the expediency of modifying the
regulations of the code in certain particulars. After a long debate,
one of these resolutions was withdrawn and another negatived. On
March 10, and again on July 21, 1871, similar resolutions were pro-
posed, and negatived. On May 5, 1874, a similar resolution was
proposed, and negatived. On March 9, 1875, an address to a similar
effect was moved, and negatived.

On March 8, 1864, a resolution was proposed for the modification
of the rules in regard to aid to schools for the working classes.
After debate, the government agreed to accept this resolution. On
June 2 following, the mover, being of opinion that the new minute
which had been issued in conformity with the said resolution did not
meet the case, proposed another resolution, to declare the inadequacy
of the minute to remove the objections entertained against the
former minute ; but the motion was negatived. On June 30 another
resolution, condemnatory of the new minute, was proposed ; but the
Speaker ruled that it was out of order, being similar in substance to
the one previously negatived. k

[See a resolution, agreed to by the House of Commons and
accepted by ministers on March 4, 1873, denning and limiting the
operation of a treasury minute in relation to county court judges.

On July 2, 1877, certain War Office circulars were objected to,
in the House of Commons, on the ground that they had been issued
in contravention of certain Acts of Parliament ; but the secretary
for war was able to show that the complaint was untenable. 1 ]

k See the comments of Ld. R. Cecil Council on Education, Hans. D. T.

on this case, in his argument to show 177, p. 1309.

the inadequacy of the control of l Ib. v. 235, p. 618.
Parliament over minutes of Com. of



Control of
over exe-
cutive le-





THE constitutional control of Parliament over the exer-
cise of legislative powers by ministers of state, executive
departments, and other public bodies, being admitted,
it is evident that there is an undeniable advantage in
the practice itself. The proper limits within which
such powers may be exercised having been prescribed
by statute with directions that all such minor or pro-
visional legislation shall be duly submitted to Parliament,
either for tacit approval or direct ratification, it is
often expedient to entrust the settlement of the details
of practical legislation, requiring special or local know-
ledge, to the public department immediately concerned
therein. By this means the benefit of local experience
is obtained in the determination of such questions, and
especially where the consent of parties interested has
been freely given, Parliament is relieved from the con-
sideration of matters which may be troublesome to
decide, without infringing upon local interests. Within
the past thirty years numerous Acts have passed, to
confer and regulate the exercise of such powers, in sub-
ordination to general principles established by law.

Thus, in 1845, by the Act 8 & 9 Viet. c. 118, the Inclosure Com-
missioners were constituted, and empowered, in certain cases, to
complete inclosures, and in other cases to make provisional orders for
the inclosure of lands, to be ratified by public Acts of Parliament.*
A select committee of the House of Lords, in 1858, on private Bill

May, Parl. Prac. ed. 1883, p. 760.


legislation, took much evidence in favour of an application of this
principle to other measures of local improvement, but they refrained
from any specific recommendation on the subject. b

Thus, by the Contagious Disorders of Animals Act of 1848, the
Privy Council were empowered to make orders and regulations to
carry out the intent of the Act, the same to be laid before both
Houses of Parliament within a specified time. c

Again in 1866, upon the outbreak of the cattle plague in Great
Britain, endeavours were made to frame an Act of Parliament to
arrest the progress of the disorder, without injuriously affecting
local interests. But, after much debate, the attempt proved un-
successful. It was then determined to enlarge the powers conferred
upon the Privy Council by the Act of 1848, and to empower any
two lords of the council to frame orders to meet the emergency in
particular parts of the country, such orders to be afterwards com-
municated to Parliament. Under this authority nearly 150 separate
orders in council were issued. d The Act was continued in the
following session, with enlarged powers. 8

The orders issued under the authority of the statutes Question-

. ing orders

aforementioned, though enjoined to be laid before Par-
liament, were not required to be directly or indirectly
sanctioned by either House. But this did not prevent
them from being questioned.

The mode of questioning these orders is shown by
a proceeding in the House of Commons on June 21,
1867, when, as an amendment to going into committee
of supply, it was moved to resolve that a particular
order respecting the importation of cattle ' is inexpe-
dient. ' f But after an explanation by a minister the
motion was withdrawn.

It is customary to provide that orders in council, Should be
departmental regulations, representations, rules of court, toParUa-
or tables of fees, framed and issued under the authority ment -
of particular Acts of Parliament, shall be laid before
both Houses within twenty, thirty, or forty days (as the
case may be), after the making thereof, or after the

b Com. Pap. 1857-8, v. 12, pp. 12, 29 Viet. c. 15. Com. Pap. 1866, v.

36, 45. 59, pp. 213-297. Ib. 1867, v. 59, p. 1.
e 11 & 12 Viet. c. 107, sees. 4-6. 30 & 31 Viet. c. 125.
d Hans. D. v. 187, p. '864. Act { Hans. D. v. 188, p. 349.



ment the
trustee of

re-assembling of Parliament, should they have been
issued during a recess g (it is usually added), before
they become operative and binding. But sometimes
this restriction is omitted h and it is sometimes ex-
pressly enacted that in the event of an order, or rule,
being annulled in consequence of the disapproval there-

Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 44 of 85)