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fore, by either House of Parliament, the rescinding
thereof shall be ' without prejudice to the validity of
any proceedings which may in the meantime have been
taken under the same.' ! If a scheme has been upon the
table of both Houses for the prescribed time, without
any address against it, it passes out of the hands of
government, who can no longer delay its operation j
Sometimes direct provision is made as to the mode of
objection thereto.

A noticeable example of this is afforded by the Oxford and Cam-
bridge University Reform Acts, passed in 1854 and subsequent years,
which empowered the executive commission, or governing body, of
the university, to frame ordinances, regulations, and statutes which
should be laid before both Houses of Parliament, and, if not objected
to by an address to be presented by either House within ' forty
days,' be approved, by order of the Queen in council. k

It was laid down as a principle by the commis-
sioners appointed in 1864, to enquire into the manage-
ment of endowed schools in England * that Parliament
is the only body that can be considered as the supreme
trustee of endowments, and that in some form or other
the approval of Parliament ought to be obtained to all
schemes for the re-settlement of educational trusts. 1

Pursuant to this report, the Act of 1869 was passed,
which provided for the appointment of a small commis-

Acts 20 & 29 Viet. c. 112, sec. 3 ; J Hans. D. v. 234. p. 857.

c. 124, sec. 11 ; c. 125, sec. 26 ; 32 & k Oxford, Acts 17 & 18 Viet. c. 81,

33 Viet. c. 42, sec. 8 ; 38 Vic. cc. 5 sec. 36 ; 25 & 26 Viet. c. 26, sec. 7.

and 28. And see 32 & 33 Viet. c. 20. Cara-

h See 39 & 40 Viet. c. 57, and 40 bridge, Act 19 & 20 Viet. c. 88,

& 41 Viet. c. 23. sec. 40.

1 38 & 39 Viet. c. 77, sec. 25, and > Com. Tap. 1867-8, v. 28, pt. 1,

c. 91, sec. 7. p. 635.


sion to draw up schemes and trust deeds for the
re-constitution of the endowed schools. These draft
schemes to be submitted to the governing bodies of the
particular schools, and after due enquiry, to the com-
mittee of council on education, for their sanction. An
appeal is allowed, in certain cases, to the Privy Council.
Finally, all such schemes (unless objected to, by a peti-
tion) must be laid before both Houses of Parliament for
' forty days '

[Extended to ' four months ' in the case of certain specified schemes
which were submitted to Parliament in 1873 by Act 36 & 37 Viet.
c. 7 ; amended and extended to ' two months ' in all other cases by
Act 36 & 37 Viet. c. 87, sec. 15].

If within that time either House address her Majesty to
withhold her consent from any scheme, or any part withhoi
thereof, the Crown can only assent to so much of the afent yal
same as may not have been objected to. m

On June 30, 1871, an address was moved to the Queen, in the
House of Lords, that for certain reasons therein stated her Majesty
would withhold her assent from the proposed scheme of the Endowed
School Commissioners for the management of Emanuel Hospital
Charity School, heretofore governed by the Corporation of the City
of London. 11 The motion was opposed by ministers, but agreed to
on " division. Immediately afterwards another address was moved
praying that the royal assent might also be withheld from the
schemes relating to St. Margaret's Hospital and the Greycoat
Hospital, Westminster. No reason was assigned for the request in
the motion ; but the mover stated that these schemes were open to
the same objections that had been urged against the first-mentioned
scheme. Notwithstanding the opposition of ministers, this motion
was agreed to. On July 3 her Majesty's answer was reported,
' That she would withhold her assent from the several schemes
objected to in these addresses.' P Subsequently the commissioners
prepared a second scheme for Emanuel Hospital, which was more
acceptable to the governors of that institution. On May 13, 1873,
an address to the Queen was moved in the House of Commons, that

m Act. 32 & 33 Viet. c. 56. sec. 41. against the proceedings of the corn-
Hans. D. v. 207, p. 300. Ib. v. 213, missioners in this case, Coin. Pap.
p. 551. 1871, v. 55, p. 871.

n The Corporation of London had Hans. D. v. 207, pp. 862-902.
petitioned Parliament, protesting v 2b. p. 962.


the royal assent might be withheld therefrom. After a long debate
the motion was negatived.

General Inclosure Act of 1845, q first empowered
orders. commissioners to issue provisional orders for authorising
the inclosure of commons, subject to the ratification of
Parliament, instead of the method previously resorted
to, of obtaining private Acts for such a purpose. In
the execution of their powers, however, the commis-
sioners did not sufficiently consider the general conve-
nience and comfort of the neighbourhood interested in
the preservation, as commons, of the lands in question,
but were too ready to grant all applications for in-
closures, on compliance with certain fixed conditions.
Accordingly, in 1869, the House of Commons appointed
a committee to investigate the matter, which recom-
mended that no further inclosures should take place
until a revised Inclosure Act had been passed . Where-
upon, several years elapsed before the House again
passed an Act to give effect to provisional orders for
inclosures. And, in 1872, the inclosure commissioners
reported that they had suspended their operations, until
Parliament should have agreed upon a definite policy
in regard to inclosures, the government, meanwhile,
making repeated attempts to pass a new Inclosure Act,
but without success. 1 At length, on February 10, 1876,
General the home secretary brought in a General Inclosure Bill,
^closure wn i c ] 1 was a g ree d to by Parliament. Under this Act
provisional orders may be issued for the regulation or
inclosure of commons, after affording to all parties
interested an opportunity of being heard for or against
the proposal : such provisional orders to be afterwards
subjected to the investigation of a standing parliamentary
committee, who shall consider the details of the schemes,
report thereon, and remit for the consideration of the

> 8& 9 Viet, c. 118.
' Hans. D. v. 212, p. 488 ; v. 216, p. 433 ; v. 225, p. 1941.


inclosure commissioners any proposed modifications
therein. Then the Bill to confirm the orders is to be
introduced and passed.' Such a committee was first
appointed by the House of Commons (upon the first
report of the inclosure commissioners under the new
Act) on February 26, 1877. It reported in favour of
the confirmation of the proposed inclosures, subject to
certain conditions, but not requiring the reconsideration
of the schemes by the commissioners.*

The select committee on commons (to consider
reports of the inclosure commissioners) appointed in
1877, was nominated in part by the House, and in part
by the committee of selection. The inclosure com-
missioners appeared before the committee, and explained
their course of proceedings under the new Act, and the
mode in which their reports are investigated and dealt
with by this committee. 11 All the necessary forms to be
used under the Act are appended to the report of this

In 1877 ministers having proposed that rules to be prisons'
made pursuant to the Prisons' Act should not come into Act-
operation until they had been laid for forty days before
both Houses of Parliament an amendment was moved
to require such rules to be distinctly approved by reso-
lution of each House. It was urged that, in the present
pressure of business, it would be difficult for an unofficial
member to get an opportunity of moving adverse reso-
lutions to these rules. On the other hand, it was stated
that if special approval was obligatory, the House might
be the whole session discussing rules on very trivial
points. After much debate, the amendment was nega-
tived and the ministerial proposal agreed to. w

By the Electric Lighting Act, 1882, the Board of

Han. D. v. 229, p. 1533 ; v. 230, T Ib. Appx. Nos. 1, 2, 3.

p. 1034. Act. 39 & 40 Viet. c. 56. w Hans. D. v. 233, pp. 515-528.

* Cora. Pap. 1877, v. 10, p. 39. And see v. 234, p. 1801.
Id. Evid. p. 7.


Trade is empowered to grant provisional orders autho-
rising the supply of electricity for any public or private
purpose, at their discretion, subject to confirmation by
Parliament. x

This Act has given occasion to much criticism on the
provisional order system. It is evident ' that the system
can only be worked efficiently in conjunction with
thoroughly comprehensive general acts applicable to
each object for which provisional orders are recog-
nised.' y

Report on I n vo l. 7 of the Journal of the Statistical Society of Ireland
tioi^by (P- 138 ) wiU be found a Report of a Committee of the Society on
means of Legislation by means of Provisional Orders, in England, Scotland, and
pro- Ireland, made on February 20, 1877. This report points out the pro-

orders gress and result of the provisional order system, during the thirty years
in which it has been in operation, and the extent of its application,
in each of the three kingdoms. Also, the extent to which a direct re-
sponsibility to Parliament has been introduced, both for the general
principles and the details of such legislation, in particular cases. It
suggests a larger application of the system to Ireland, as well as for
reasons of economy, and to relieve the Irish people ' of the grievous
burden ' of legislation by local Bills, as also to secure a more general
harmony in the local jurisdiction and local legislation of the different
parts of the United Kingdom.

On February 25, 1881, an address to the Crown was moved in the
Lords that the order in council for reducing number of divisions
of High Court of Justice, and abolishing titles of lord chief justice
of Common Pleas and lord chief baron, might not come into oper-
ation. This motion had been previously made, and withdrawn : it
was therefore opposed, as unprecedented : and a motion to adjourn
the House was carried.

Irish The Irish Coercion Act of 1881 requires that every

Coercion warrant i ssue d under it for the apprehension of offenders
shall be laid before Parliament. This is ' a novel and
mischievous attempt to control the exercise ' of the
powers intrusted to government, and it will give rise to
discussions in particular cases which will be a serious
hindrance to legislative work. * The tendency of Par-

* See also the Educational Endowment (Scotland) Act, 1882.
' See further L. T. v. 7.">, p. 251.


liament to attempt an impossible supervision over the
details of executive and judicial business is one of the
causes of its increasing difficulties in overtaking its
arrears of work.' a

On July 28, 1871, a member of the House of Lords moved an St. Kath-
address to the Queen, requesting that in any scheme to be agreed |*r ine . s
upon in regard to St. Katharine's Hospital, formerly situated near
the Tower, but since transferred to Regent's Park, ' due attention
may be paid to the spiritual and educational necessities of the
parishes adjacent to the old precincts of the hospital ' (a royal com-
mission of enquiry into the charitable foundation having advised
that no local claims should be recognised in relation thereto). b The
motion was opposed by ministers, but carried on division. Her
Majesty replied that she would take this address into consideration
together with the report of the commission." 1

On July 26, 1872, three several addresses were passed by the House
of Lords praying that the royal assent might be refused to certain
schemes of the Endowed School Commissioners. On August 1, her
Majesty replied, ' That she would withhold her assent from these

Much dissatisfaction having arisen in regard to the Endowed
proceedings of the commissioners under the Endowed School
Schools Act of 1869, the vice-president of the Educa
-tion Board moved, on February 11, 1873, for the ap-
pointment of a select committee to enquire into the
operation of that Act before renewing the powers of
the commissioners, which were about to expire. He
stated that the information to be elicited by this com-
mittee would be of much service to the government in
determining upon the work to be done in future. Never-
theless, the government would act under a full sense of
their own responsibility in the matter. The motion was
agreed to. e The committee reported on June 17. They
recommended the continuance of the Act, which would
shortly expire, for three years, with power to the Privy
Council to further extend it, for one or two years.

L. T. v. 70, p. 310. d Ib. p. 943.

b Com. Pap. 1871, v. 16, p. 371. Ib. v. 214, p. 289.

e Hans, D. v. 208, p. 384.


su gg este d some important amendments, chiefly
report on to facilitate alterations, by the Education Department,
schools. a * the instance of persons interested, to schemes sub-
mitted thereto by the commissioners. Also, that the
period of consideration by Parliament of opposed
schemes should be extended from forty days to two
months, and that such period shall be within the same
session. Unopposed schemes to be approved and en-
forced without being laid before Parliament.* Effect
was given to these recommendations by the Act 36 & 37
Viet. c. 87, excepting that the Act of 1869 was extended
for one year only, and not three years, as recommended
by the committee. This necessitated renewed discus-
sion in the ensuing session, when an Act was passed
transferring the powers of the Endowed School Com-
missioners to the Charity Commissioners (37 & 38 Viet.
c. 87). Accordingly on December 31, 1874, the En-
dowed School Commissioners presented a final report,
which recapitulated all that they had done during their
term of office. The special powers of the Endowed
School Commissioners were further prolonged under a
new commission by an Act 1875, c. 29.

In Mr. Gladstone's address to the electors of Green-
wich on January 23, 1874, announcing the dissolution
of Parliament, and again offering himself for re-election,
he remarks that, ' the duties of Parliament have reached
a point where they seem, for the present, to defy all
efforts to overtake them. I think we ought not only to

CJ */

admit, but to welcome, every improvement in the organi-
sation of local and subordinate authority which, under
the unquestioned control of Parliament, would tend to
lighten its labours and to expedite the public business.' g
By the Public Schools (England) Act of 1 868, the
governing bodies of the seven great public schools
enumerated therein, are empowered to make or amend

' Com. Pap. 1873, v. 8, p. 299. London Times, Jan. 24, 1874, p. 8.


any existing statutes or regulations relating to such Bowers
school, under certain restrictions and limitations de- Public

TI Schools

fined by the Act. These statutes to be approved by Act .
the special commissioners appointed under this Act, and
afterwards by the Queen in council, before going into
operation. If within a certain time the governing bodies
of any of those schools shall fail to make the necessary
statutes and regulations for the management of the
same, the commissioners shall frame them, and submit
them for the approbation of the crown ; but with this
proviso, that the approval or disapproval of the crown
to any statute, &c., made by the commissioners shall not
be signified until the same ' has been laid before both
Houses of Parliament for not less than forty days.' So
that if the governing body and the commissioners agreed
as to a particular scheme it would not be necessary to
submit the same to Parliament ; but if they did not
agree, any scheme framed by the commissioners must
be laid before the two Houses. h

Pursuant to the statute aforesaid, two of the great schools (Eton
and Westminster) re-constituted themselves. But the five other
schools failed to do so. Consequently the power to frame their
statutes devolved upon the special commissioners. Accordingly in
February, 1870, the commissioners framed statutes, providing therein
that the governing bodies of these schools should be exclusively
taken from members of the Church of England. 1 Exception was
taken to this restriction in the House of Commons ; J and on April 5,
1870, an address was moved therein to her Majesty, requesting that
the same might be expunged from the statutes, because in the En-
dowed Schools Act, passed in 1869, the principle of that limitation
had been abandoned by Parliament. 11 Ministers consented to this
address, but suggested an alteration in its terms, expressive of a desire
that the statutes of the said five schools should be framed in accord-
ance with the principle adopted in the Endowed Schools Act, viz.,
that, except in certain cases, religious opinion should not be a dis-
qualification for membership in the governing body of a public school. 1

b Act 31 & 32 Viet. c. 118, sec. 19. J Hans. D. v. 199, p. 1143.

And see Hans. D. v. 201, p. 188 ; v. k Ib. v. 200, p. 1379.

203, p. 1047. * Ib. v. 201, pp. 176-193.

1 Com. Pap. 1870, v. 54, p. 529.


Public Afterwards Mr. Russell Gurney (a commissioner under the Act) pro-
posed an amendment, that the statutes should be referred back by
the crown to the commissioners, ' in order that they might have
an opportunity of reconsidering ' the same, ' with reference to the
principles applied in the Endowed Schools Act to other endowed
schools.' This amendment was agreed to, and the address passed.
Her Majesty replied that she would give directions accordingly. 11

Thereupon, the Public Schools Commissioners re-considered the
matter, and removed the restriction objected to, as respected three of
the schools, but retained it on behalf of Harrow and Winchester.
The new statutes were laid upon the table. It was afterwards moved
to resolve, that the continuance of the restriction in respect to the
governing bodies of the aforesaid schools is inexpedient. The
motion was opposed by Mr. Gladstone (the premier) and others, on
the ground that the commissioners were bound by the law and could
not act on a principle of expediency, and that ' any resolution of the
House against their determination would not be operative.' It was
tnerefore negatived on division.? Meanwhile ministers brought in a
short Bill, to continue the powers of the governing bodies of the
seven schools, and of the special commissioners, for a further period.
In committee thereon an attempt was made to add a clause, requiring
any statutes made by the governing bodies of these schools to be laid
before Parliament, before they should receive the royal sanction. But
this was negatived, and the Bill passed. 1

Subsequently by order in council of February 8, 1871, her Majesty
disallowed the statutes framed by the special commissioners in Feb-
ruary 1 870, on behalf of the five great schools, but did not disallow
the amended statutes in relation thereto, because it appeared they
had been made in error, inasmuch as the crown had no right, upon
the recommendation of the House of Commons, to send back the
original statutes to the commissioners for reconsideration, but could
only ' allow or disallow them.' At the same time, another Act was
passed, prolonging the powers of the governing bodies of the seven
schools, under the Act of 1868, to August 25, 1872, until when they
should have the sole right to frame statutes for the government of
the said schools. They could now take the initiative in the recon-
sideration of the whole question. 1 " [By the Act 35 & 36 Viet. c. 54,
their powers were further prolonged for another year.]

Notwithstanding the passing of this Act, the House of Commons
on June 13, 1871, agreed to an address (on division) requesting the
Queen to disallow the statute, laid upon the table, as above stated,

m Hans. D. v. 201, p. 1683.
Ib. v. 202, p. 676.
Ib. v. 203, p. 078.
v Ib. p. 988.

" Ib. p. 1047. 33 & 34 Viet. c.
' 34 & 35 Viet. c. 60. Hans. D.
T. 204, p. 749.


whereby membership in the Church of England was made obligatory
in appointments to the governing body of Harrow School. On July 7
the Queen's answer was reported : That she would signify her disap-
proval of that proviso.' The action of government in this case was
condemned in the House of Lords by the archbishop of York, one of
the commissioners under the Act of 1868.*

By the Act 32 & 33 Viet. c. 39, provisional orders for the
government of hospitals, and other endowed institutions, in Scotland,
after being drafted by the local authorities, approved by the parties
interested, and issued by the secretary of state, may not go into
operation until they have been laid before both Houses of Parlia-
ment for forty days, and no address has been presented by either
House objecting to the same.

By the Act 32 & 33 Viet, c, 86, the Treasury may by a minute
direct that certain statements, or returns, heretofore required to be
laid before one or both Houses of Parliament, shall be discontinued,
as being no longer necessary, provided that every such minute shall
be laid before both Houses of Parliament for at least thirty days,
and shall be inoperative if, within that time, a resolution against its
coming into operation is passed by either House.

The two following cases deal with public funds, ap- Consent
propriated by Parliament, so the consent of both Houses Houses
is necessary to confirm or annul the order. necessary.

By the Elementary Education Act, 33 & 34 Viet. c. 75, 20,
. compulsory purchases of land for sites of school-houses may be made Precs-
by the School Boards, with consent of the Education Department ; dents,
but no such order shall be valid unless confirmed by a special Act of
Parliament. 11

By the Act 32 & 33 Viet. c. 110, 16, the Treasury are em-
powered to fix a scale of fees to be charged by the Board of Charity
Commissioners. But the same must be laid before both Houses of
Parliament for thirty days, and if it ' be disapproved of by both
Houses within one month,' such fees, or such parts thereof as shall
be disapproved of, shall not be imposed.

The War Office having issued a circular of instructions to volun-
teers, defining their duty in affording aid to the civil power in cases
of riot, a copy of the same was presented to both Houses of Parlia-
ment, on June 13, 1867. A debate arose in the House of Commons
on June 28, upon a motion designed to express disapprobation of
certain parts of this circular. Ministers denied that it was intended
to bear the objectionable construction placed upon it, but expressed

5 Hans. D. v. 206, p. 2044 ; v. 207, - For an Act to confirm such

pp. 347, 1314. orders, see 37 & 38 Viet. c. 90.
* /*. v. 207, p. 1279.



themselves willing to reconsider the terms thereof. The motion was
then put and agre,ed to. v A similar discussion arose in the House of
Lords, but assurances being given that the circular would be re-
considered, no motion was made. w

By the Act 36 & 37 Viet. c. 48, 29, general orders made by
the railway commissioners for regulating proceedings before them
must be submitted to the lord chancellor for his approval, and
afterwards submitted to both Houses for ' two months, 'during which
they are liable to be disapproved, in whole or in part by either House,
in which case the order so objected to shall have no force or effect.
A depart- In further illustration of parliamentary interference in a case

mental where the requirements of law appear to have been disregarded by a
1 ^ n mere departmental regulation, see the discussion in the House of Corn-
in House mons on April 3, 1865, upon a member calling attention to the con-
of Com- duct of the chief commissioner of police in refusing to allow the metro-
politan police to flog juvenile offenders under the order of magistrates,
although they were required to inflict such punishment by law."

These examples will suffice to show that the practice
of entrusting legislative powers, under certain restric-
tions and limitations, to executive departments is in-
creasingly resorted to by Parliament. But admitting
its obvious advantages, it is liable to serious abuse. It
has been well observed that there ' is no modern inno-

Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 45 of 85)