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Necessary vation which needs to be watched with more jealousy
Parii than the practice of delegating the authority of Parlia-
ment in men t (even in small and local matters), with no better

entrusting V

legislative check than the chance that some unusually vigilant
legislator may move an address to reject the scheme of
law before it has had time to mature into an indefeas-
ible enactment. The whole scope and genius of our
legislative system is to afford by the forms of Parlia-
ment every possible security that no law shall be made
which has not been deliberately and repeatedly affirmed
in all its details, and it would be alien to the essence of
free government to substitute for this a system in which
the relations of the crown and Parliament should be re-
versed, and statutes should be octroyes by the govern-
ment, and nothing but a bare veto left to the Lords and
Commons.' y

T Hans. D. v. 188, pp. 728-744. * Sat. Kev. May 7, 1870, p. 602.

* Ib. p. 751. Ib. \. 178, p. 7J9. And see Hans. D. V. 187, p 69.


In 1870 the lord chief justice of England and all the judges Curtail-
unanimously concurred in protesting against the powers proposed to m ent of
be conferred, by the High Court of Justice Bill, upon a committee Fu^ia]
of the Privy Council to make or alter the law relating to the consti- tribunals,
tution, procedure, or practice of the court, notwithstanding that the
new rules were to be afterwards laid before Parliament. They con-
tended that ' subordinate rules of procedure and practice ' should be
left to be settled by the judges of the new court, and that ' the more
important matters of procedure ought to be considered and deter-
mined by Parliament,' and ' certain fixed guiding principles and
rules' thereupon embodied in the Bill, so as to maintain 'the prin-
ciple that the judicature should be in all respects independent of the
executive.' a Similar objections were made in the House of Lords to
conferring such large quasi-legislative powers upon the Privy Coun-
cil, as giving to the executive government great and unconstitutional
preponderance in dealing with matters that ought to be determined
by Parliament. 1 * In deference to these opinions, ministers agreed
that the proposed rules should have the direct sanction of Parliament
before the Bill came into operation. In this shape the Bill passed
the Lords, but it was withdrawn in the House of Commons before
the second reading. In 1871 these measures were not reintroduced,
though preparations were made for introducing them in an improved

In 1872 Lord Chancellor Hatherley introduced a Bill entirely
confined to the final appellate jurisdiction as exercised by the House
of Lords and Judicial Committee of Privy Council.

In 1873 Lord Chancellor Selborne brought in a Bill for consti-
tuting a supreme Court of Judicature, and to refer part of the juris-
diction of the said Judicial Committee to it. He embodied in his
Bill the main points of procedure, so that this important matter
should not be left to an external authority, but be dealt with by
Parliament itself. But power was also given to supplement these
rules by order in council. The said rules to be subject to objection
by either House of Parliament, to be signified by an address passed
within forty days, in which case their operation would be annulled.* 1
The new Bill, which became law, broadly and intelligibly laid down
the principles upon which the courts should proceed in carrying out
the new law reforms. 6 Nevertheless, 1 in 1875, Lord Chancellor
Cairns proposed a Bill to amend the Judicature Acts, and to allow
the rules to be enacted by order in council, on the recommenda-
tion of the judges ; f all such rules, however, to be laid before both

Com. Pap. 1871, v. 58, p. 259. 37 Viet, c. 65, 68.

Hans. D. v. 201, pp. 1564-1589. e Ib. v. 216, p. 643.

Ib. p. 1922. f Sat. Rev. Feb. 20, 1875, p. 240.

Ilaus. D. v. 214, p. 348 ; 36 & Haus. D. v. 22, p. 148.

I r2


Houses for forty days, and if disapproved by either House to be
annulled, but without prejudice to the validity of past proceedings
under the same.* One hundred days were allowed for objections to
rules under the Irish Judicature Act, 40 & 41 Yict. c. 57, 69.

Growth The system of authorising matters of local concern

of pro- . "

visional to be dealt with by the issue of provisional orders
tkm! la ~ under the general authority of Parliament originated in
1845, in the case of inclosures of lands, pursuant to the
Act 8 & 9 Viet. c. 118. At first the orders issued
under this Act did not require parliamentary confirma-
tion. But by the Act 15 & 16 Viet. c. 70, passed in
1852, all such provisional orders must be confirmed by
Parliament before the inclosures are proceeded with.
Since then there has been a gradual and successful
extension of the principle of provisional legislation to
other matters of local concern. 11 This has contributed
very materially to relieve the Imperial Parliament from
the great and growing pressure of local business,
and to ensure the determination of such questions
after previous enquiry by tribunals more competent
for their satisfactory settlement. 1 By various Acts
of Parliament authority has been given to the Home
Office, the Board of Trade, the Local Government
Boards, the Inclosure Commission, the Charity Com-
mission, the Commissioners of Public Works (Ireland),
the Education Department, and other departments
of state, to grant provisional orders or certificates,
and to approve of schemes for the construction, im-
provement, or management of particular works, or
local affairs, which have hitherto required the direct
sanction of Parliament ; or else have been undertaken
by the executive government upon its own responsi-
bility. j

* 38 & 39 Viet. c. 77, 25. May, Parl. Prac. ed. 1883, pp.

h Com. Pap. 1877, v. 68, p. 169. 760-767, 787. Mr, Bruce, Hans. D.

' Fitz James Stephen on Parl. v. 2 JO, p. 320.
Govt. in Cont. Rev. v. 23, p. 1.


By the use of such machinery legislation is simplified, s ""j-!| lfie
while the supervision and control of Parliament is main- mentary
tained. For the enabling statutes invariably require lafion.
the departments from whence a provisional order, certi-
ficate, or scheme may issue, to lay the same before both
Houses of Parliament for confirmation.*

There will always remain a large number of applica- Advan-

L i 1,4. i. tagesof

tions, e.g. where compulsory powers are sought, or where pro-
there are strong competing interests, which must neces- ^derlf 1
sarily be initiated and proceeded with in the ordinary
manner by Bill ; but it is a manifest advantage to
permit the promoters of schemes locally approved, and
involving no serious principle, to have recourse to pro-
visional orders which can be obtained at a compara-
tively moderate cost thereby lightening materially the
burden of private business before parliamentary com-
mittees, while the hearing and adjudication of all im-
portant questions, and the final decision in all cases, are
still reserved to Parliament. 1 The sanction of Parlia-
ment is given to provisional legislation by an act which
in its progress through Parliament is treated as a public
Bill. Such Bills either (as in the case of provisional
orders under the Public Health Acts or Inclosure Acts)
refer to the particular orders in the body of the confirming
Act, and enumerate them in a schedule ; or (as in the
case of orders issued in relation to fisheries, harbours,
or railways) set them out at length in the schedule of
the confirming Act.

For a complete list of all public general Acts of Parliament to
confirm provisional orders, schemes, &c., passed up to 1874, see
Appendix to Chronological Index to the Statutes, published by

k For a return of the several Acts And see the evidence of Mr. Wyatt,

authorising the issue of provisional an experienced Parly, agent, as to

orders, &c., by any public depart- the working of the provisional order

ment, see Com. Pap. 1871, v. 68, pp. system, with suggestions for au

397, 403. ameuded procedure, Ib. 1877, v. 16,

1 Com. Pap. 1872, v. 54, p. 314. pp. 581, 638.


Pro- authority in 1874. Since 1866, however, such confirming Acts are

orders 1 no * i nvar i a bly printed in the public general statutes.

When the orders are merely referred to in the Acts,
and not set out, they are rarely discussed in detail, but
are confirmed or rejected without change.

All persons aggrieved by any provisional orders have
a right to petition Parliament against them, as they
would against a private Bill. Their objections will be
carefully considered by the House wherein the petition
is presented, before the order is confirmed. 11

Ample power is thus secured to Parliament to con-
trol and amend all provisional legislation ; a power which
is sometimes exercised to alter or to reject particular

On June 26, 1871, in committee on a Bill to confirm certain pro-
visional orders of the Board of Trade in relation to tramways, all
the orders for constructing tramways in London were struck out, on
the ground that the requirements of the metropolis as a whole ought
to be deliberately considered by Parliament, and not in a fragmentary

In 1872, a joint committee of both Houses was appointed to
enquire into the question of metropolitan tramways, which reported
on June 17. On July 3 resolutions were agreed to by the House of
Commons, authorising the suspension of further proceedings with
reference to any metropolitan tramway Bills of the present or
previous session, in order that the same might be reintroduced next
session, at the discretion of the promoters."!

But even if no formal confirmation by Parliament is
required on behalf of a local scheme, authorised by
executive authority, a mere direction in the enabling

m Com. Pap. 1867-8, v. 28, pt. 1, power committees on Bills confirm-

p. 635. ing provisional orders, to award

n See Mr. Coates' evidence before costs and examine witnesses on oath.

Com. Com e . on the Tramways Bill, And see Acts 27 <fe 28 Viet. cc. 58

Com. Pap. 1870, v. 10, p. 691 ; S.O. and 03 ; 28 & 20 Viet. c. 50.

H. of Com. 1871, No. 146 ; Act 35 & P Hans. D. v. 207, p. 639. And

36 Viet. c. 79, 45. And see Mr. see Act 34 35 Viet. c. 69.

Wyatt's evidence before Com. Corn*. > Hans. D. v. 212, p. 682. Act

on Tramways in Com. Pap. 1877, v. 35 & 36 Viet. c. 43 was passed to

16, p. 581. authorise the Board of Trade to give

See Act 34 Viet. c. 3, to em- effect to these resolutions.


statute, that the same shall be laid before both Houses

of Parliament will justify legislative interposition, if orders.

need be, to ratify or amend it. r

For some valuable notes on the Provisional Order System, point-
ing out certain serious defects in the working of it, see a paper by
J. Norwood (on Private Bill Legislation). 8 Also Theodore Martin's
pamphlet on Private Bill Legislation for similar objections.*

Hitherto the provisional orders made by government
departments have dealt only with matters in which the
capital at stake was small, the parties affected generally
agreed, and the opinion of the locality specially interested
could be easily ascertained. But on March 15, 1872, Mr.
Dodson (the chairman of committees) submitted to the
House of Commons a series of resolutions, to provide for
substituting, as far as possible, an extended and improved
system of provisional orders for the present system of
legislation on local and personal Bills. Such orders to be
obtained on application to a permanent tribunal of a judi-
cial character, which should hold its sittings in various
parts of the United Kingdom, and before which promoters
and opponents should be heard in open court ; the deci-
sions of this tribunal to be submitted for the confirma-
tion of Parliament. In case of either House admitting an
appeal against any decision of this tribunal, the same to
be referred to a joint committee of both Houses, to be
composed in the manner recommended in 1869, by the
joint committee on the despatch of business in Parlia-
ment. After a brief debate on these resolutions, their
further consideration was adjourned. 11 Upon a resump-
tion of the debate, it appeared that, while members were
generally in favour of a further extension of the system
of provisional orders, they were scarcely prepared to
depute to any body outside of Parliament the determi-
nation of such questions. Finally, the House agreed to

r See the Huddersfield Burial ' Irish Stat. Soc. Journ. v. 6, p. 430.
Ground Act, 15 & 16 Viet. c. 41. * L. 1872.
May, Parl. Prac. ed. 1883, p. 788. Haiis. D. v. 210, pp. 17-30.





resolve, that the system of private legislation calls for
the attention of Parliament and of government, and
requires reform/

Meanwhile, on June 13, Mr. F. S. Powell proposed a series of
resolutions on private Bill legislation, with a view to the limitation
of the same ; but after a brief discussion the debate was adjourned.
It was resumed on July 4, again adjourned, and not resumed. On
June 17 the president of the Board of Trade (Mr. Chichester
Fortescue) stated that the question was still under the considera-
tion of government, although his own responsibility was mainly
limited to an endeavour to ascertain how far the system of pro-
\isional orders could be improved and extended. w On June 17, 1873,
the president of the Board of Trade stated that the various depart-
ments were steadily increasing the number of provisional orders
issued by them ; and the Board of Trade might reasonably extend
the system by enabling local authorities to obtain such orders for
the erection of gas and water works, instead of their being com-
pelled to proceed by Bill. But he had failed to discover any other
method by which government could extend the system.* In "1874,
Mr. Dodson was asked whether he intended to reintroduce his
above-mentioned resolutions of 1872. He replied that he preferred
to leave the matter in the hands of the government.?

Meanwhile, in 1872, Mr. Theodore Martin, a parliamentary agent,
published a pamphlet, in which he expressed his conviction, shared
in, he believed, in the main by all his professional brethren, that the
existing system of private Bill legislation is satisfactory to the
suitors in Parliament, and that the reforms therein proposed by Mr.
Dodson were objectionable.

Contracts entered into by Public Departments.

An important question akin in principle to that
which has been just considered has arisen of late years
with regard to contracts, to be entered into between
any department of the executive government and other
parties, for the performance of any work or service, the
undertaking of which has been, or may afterwards be,
authorised by Parliament. It is manifest that the re-
sponsibility of entering into such contracts properly
rests upon the executive alone. But it is equally clear

Hans. I), v. 210, pp. 507-529.
' 2b. v. 211, p. 1854.

Ib, v. 217, p. 498.
i Ib. v. 218, p. 339.


that the government have no constitutional authority to Public
make a contract which shall be binding on the House of
Commons," by whom the necessary funds for carrying on
the contract must be supplied ; and that the consent of
Parliament should be first obtained to all new contracts.

1 It would not be wise to lay down the general and inflexible rule
with regard to all our public departments, that it should be abso-
lutely necessary before a contract for any service is entered into
that a vote of Parliament should be taken for that particular sum.'
Where the service is continuous, well defined, and involves no
novelty, either in principle or action, it is customary to permit
contracts to be entered into on the discretion of responsible depart-
ments before a vote is taken. b

On June 28, 1869, an amendment was proposed, in Committee
of Supply, to reduce a vote for works on the Houses of Parliament
by 2,500, with a view to censure the Office of Works for under-
taking a new kind of decoration (with mosaics) in the Central Hall,
because it had been contracted for previously to its being sanctioned
by a parliamentary vote. After a short discussion, the amendment
was negatived. But on July 8, on the report of the resolutions, an
amendment was again moved, to reduce the vote by 5,500 in order
to prevent certain structural alterations of the Central Hall, as well
as to condemn the decoration thereof with mosaic work. Another
amendment was then offered by the commissioner of works (Mr.
Layard) to reduce the vote by 3,000 only, as a guarantee that the
proposed structural alterations in the Central Hall should not be
undertaken until approved by Parliament. With regard to the
mosaic work, for which contracts had already been made, he admitted
that he had acted prematurely, and threw himself upon the indulg-
ence of the House. His amendment was then agreed to. d On July
26 the matter was again brought forward, by a motion for the ap-
pointment of a select committee to enquire into the circumstances
under which a contract had been made by the Office of Works with
a private company for the decoration of the Central Hall of the
Westminster Palace ; but upon satisfactory explanations being
afforded by Mr. Layard the motion was withdrawn. 6

Furthermore, that if any contract be entered into by

See Smith's Parl.Rememb. 1860, d Ib. pp. 1429-1445.

p. 75. Judgment of the Court of e Ib, v. 198, pp. 708-720 ; v. 201,

Queen's Bench in the Churchward p. 394. It was afterwards deter-

case, 1865, cited post, p. 772. mined by the Board of Works to

b Mr. Gladstone, Hans. D. v. 197, abandon the mosaic decorations, Ib.

p. 1439. v. 203, p. 916.

c Hans. D. v. 197, p. 683. ]


executive department for work to be performed,
the cost of which will exceed the amount already voted
by Parliament for the service to be contracted for, such
contract should expressly state that payments on behalf
of the same would be made ' out of moneys to be voted
by Parliament ; ' and that application should be made
to Parliament for a further appropriation to cover such
increase of expenditure. This would afford an oppor-
tunity to the House of Commons to express its disap-
proval of the matter, if it should think fit to do so. 1

The principle of the control of Parliament, and
especially of the House of Commons, over contracts,
was first established, in the years 1859 and 1860, by
a committee of the House of Commons appointed to
enquire into certain transactions arising out of existing
contracts for postal and telegraphic services. The pro-
ceedings of this committee, and of the House upon its
reports, will come under review, in another part of
this work (p. 767, &c.), in connection with the pri-
vileges of Parliament in matters of Supply. It will
suffice here to state the conclusions arrived at, as the
result of this enquiry, for the purpose of ensuring that
due notice shall be given to Parliament of any contracts
to be hereafter entered into by government, which may
involve prospective expenditure to an amount beyond
that which has been actually voted by Parliament for
any specified service.
standing gy a standing order, adopted by the House of

Order con- ~ m*-ij-ir>/i- -\ t ^ ^

cerning Commons on March 4, Ibol, it is provided that 'the
contracts. c h a i rman of the Committee of Ways and Means shall
make a report to the House previously to the second
reading of any private Bill, by which it is intended to
authorise, confirm, or alter any contract with any depart-
ment of the government, whereby a public charge has
been or may be created; and such report, together

' Hans. D. v. 217, p. 1100.


with a copy of the contract, and of any resolution to
be proposed in relation thereto, shall be circulated with
the votes two clear days at least before the day on
which the resolution is to be considered in a committee
of the whole House, which consideration shall not take
place until after the time of private business ; nor shall
the report of any such resolution be considered until
three clear days at least after the resolution shall have
been agreed to by the Committee.' g

Moreover, in all new contracts for the conveyance Mail and
of mails by sea, or for the purpose of telegraphic com- contorts.
munications beyond sea, it has been resolved by the
House of Commons that a condition shall be inserted
that they shall not be binding until they have been
approved of by a resolution of the House. h

It is understood that all contracts should come
before the House in such a state as that the House
should be free to express its opinion thereupon, without
incurring any pecuniary responsibility to the contrac-
tors. 1 But it is undesirable to fetter the government,
or the House, by the adoption of an abstract resolution
in regard to the terms upon which all postal subsidies
shall be granted hereafter. 3

In the years 1863 and 1867 special resolutions were
passed by the House of Commons, approving of contracts
which had been laid upon the table, before the expira-
tion of the month. k But this was done under peculiar
and exceptional circumstances. As a general rule, it
has been agreed that ' the House should not be asked
to share in the responsibility of the details of mail con-
tracts,' and that it is ' far better that they should come
into legal force on the sole responsibility of the execu-
tive, after an opportunity of rejecting them (by their

s Com. Jour. ]861, p. 89. S. O. China, and Australia mails, Hans. D.

H. of Com. 1862, No. 78. v. 189, pp. 658-702, 1561.

h Com. Jour. July 13, 1869. J Hans. D. v. 190, pp. 2010-2020.

' See debates on a proposed con- k Com. Jour. 1863, pp. 389, 4.04.

tract for the conveyance of the India, Hans. D. v. 190, p. 450.


Contracts, remaining for one month upon the table) had been
afforded to the House, than that the House should be
called upon to affirm them by a positive vote.' 1

In the event of any such contract being disapproved
of, it is of course necessary that a substantive resolution
should be proposed in relation thereto.

Thus, on March 20, 1863, a resolution was moved to declare that
the House was not prepared to grant a sum of money to the Galway
Packet Company, whose contract had expired, but was proposed to
be renewed. The motion was negatived, on division. On July 21,
on the motion of the secretary to the Treasury, it was resolved
(without debate) that the new contract with this company be ap-
proved. On March 12, 1869, on motion of a private member, the
contracts entered into by the postmaster-general with Messrs.
Cunard & Co. and Mr. Inman, for the conveyance of mails to the
United States, were referred to a select committee, ministers con-
senting thereto. 111 The committee reported in April, and on June 1
resolutions to enforce a more stringent rule in the submission of
contracts to the judgment of the House were moved, but after long
debate were withdrawn ; the government having announced their
intention to amend the present rule by substituting a plan whereby
the judgment of the House should be distinctly taken upon every
contract that might be hereafter laid upon the table. n [This pledge
was carried out by an amendment of the rule, which was agreed to,
and made a standing order, on July 13, 1869.] Another resolution,
in regard to negotiations with the United States Government for a
reduced rate of postage, which was proposed at the same time, being
amended at the suggestion of ministers, was agreed to.P

Though confined, in the letter, to a particular class
of contracts, the above-mentioned resolution, requir-
ing that Parliament shall be notified of the intention
of the government to enter into contracts which involve
prospective expenditure, not limited to the service of
the current financial year, embodies a principle which
is susceptible of general application. In the proceedings

1 The chanc. of the ex. (Mr. 1883, p. 655. For the Canadian law,

Gladstone). Uaus. D. v. 172, p. 1201. requiring all postal service contracts

m Hans. D. v. 194, p. 1281. to be laid before both Houses of Par-

Ib. v. 196, pp. 1128, 1 156. liament, see 29 Viet. c. 5.

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