MOTION FOR A SELECT COMMITTEE. (Hansard, 19 February 1875)

§ MR. FORSYTH,
in rising to call the attention of the House to the language of and manner of drawing and passing Acts of Parliament, and to move a Resolution on the subject, said, the subject might not seem one of a very attractive nature, but it was nevertheless more interesting than at first sight it appeared, and one of great practical importance. The House of Commons, as a co-ordinate branch of the Legislature, existed for the purpose of legislation, and our written laws affected the liberties, the property, the rights, and the lives of all. It was therefore of the utmost importance that the laws we enacted should be plain, clear, simple, and intelligible. It was a trite maxim that everyone was bound to know the law. That was a legal fiction; yet it was undeniably true that no one could plead ignorance of the law in excuse for its violation. The principles of the Common Law were simple and clear—the difficulty lay in the application, which often was only adapted to the capacity of legal minds. But with respect to the Statute Law there ought to be no difficulty on the part of any person of ordinary understanding to comprehend it:—it ought to be as easy to construe a statute as to read a book, provided the style was clear and ordinarily intelligible—an Act of Parliament should be like a scientific book, the style clear, arrangement skilful, the language accurate, and the sentences grammatical. But we knew very well that everyone who was not a lawyer approached a Statute Book with feelings of aversion and disgust, and turned from it as from a chaotic wilderness, a labyrinth of strange phraseology and intricate construction. Many years ago a French Judge came to this country for the purpose of studying and writing upon our criminal jurisprudence. He began to write upon the subject, and the first thing he dealt with was a statute relating to our criminal jurisprudence. He dismissed the subject in these two lines—"I spare my French readers the barbarous phraseology of this species of law-making." Montesquieu, the author of Esprit des Lois, in the chapter upon the Composition 569 of Laws, laid down certain rules which read as a satire upon our system of law-making. Montesquieu said, the style of a written law ought to be concise, simple, and direct. The Quarterly Review, in an article describing the state of English legislation, said the Legislature, instead of framing its measures with the utmost clearness, seemed to have some end to serve in involving them in the greatest possible obscurity. In order to show the importance of this subject, he would first state the number of statutes that had passed and were passing. Since the Statute of Merton in the reign of Henry III. there had been passed no less than 41,985 Acts of Parliament. Of course these were not all in existence now, but they had passed through Parliament. Of these, 18,297 were Public Acts. He came to the reign of Her present Majesty. In the reign of Queen Victoria there had been passed to the end of the last Session of Parliament 4,178 Public Acts, and of Private and Local Acts 8,089:—making the total of Acts of Parliament passed in the present reign up to the end of 1874, 12,267. We were passing every year about 100 Public Acts. Last Session of Parliament was not thought to be very prolific, but it was by no means an idle Session, 96 Public Acts and 209 Private Acts having been passed. Sir Edward Coke had quoted two Latin lines, one of which asked a question, and the other answered it— Quæritur ut crescunt tot tanta volumina legran? In promptu causa est, crescit in orbe dolus. But the reason of the multiplicity of our laws was that Parliament dealt with such a vast variety of subjects. The House of Commons might well be compared to the trunk of an elephant, which could rend an oak and pick up a pin. To show the interest which the public felt in this matter, he might refer to two Notices which had been given by his hon. and learned Friends, the Member for West Staffordshire (Mr. Staveley Hill) and the hon. Member for Liverpool (Mr. Rathbone), of their intention to ask the House to remedy the confused state of our legislation; and last night he received a letter from the National Chamber of Commerce thanking him for the attention which he had given to this most important subject. In a great speech made by Lord Brougham in 1848 he spoke in most severe terms of the obscurity pervading our Statute Law; he described 570 it as totally devoid of system—all was random, chaos, and wild chance. Since that time, he admitted, there had been considerable improvement. There was less tautology, less circumlocution, less prolixity, but still a great deal of confusion, in the laws we passed. There was a deceptive brevity'—brevis esse laboro, obscurus fio. He would bear willing testimony to the ability of the learned gentleman to whom was entrusted the drawing of Bills on behalf of the Crown; but he entirely differed from him as to the plan on which they were framed. Of late years there had been a constant habit of making enactments, not by plain and distinct words expressed on the face of the Act, but by referring to other Acts passed in previous years, and by incorporating portions of preceding Acts; so that you were obliged to go back and back to those Acts to ascertain what in fact the Legislature meant. But that was a hopeless task; you became involved in a perfect chaos. There was also this habit—an Act was repealed, not bodily, but only a section or a portion of a section; and annexed to the Act with which you were dealing you found a schedule which stated what portions of former Acts were repealed, and you had to go back from Act to Act—so that even to a lawyer the task was almost hopeless. Take the case of the Public Health Act, passed in 1872. It was for the purpose, among other things, of establishing a new Sanitary Authority, and laid down the powers and duties of that Authority. How was that done? By referring to five distinct classes of Acts of Parliament—one class containing five Acts, and the whole making a total of 16 Acts of Parliament, from which you were to ascertain what were the rights, the duties, and the obligations of the new Sanitary Authority. Take another instance—that of the Church Building Acts. He believed that about 25 of that class of Acts were passed in the course of a very few years. Dr. Lushington, speaking of them, said he need not comment upon their obscurity, for that was a matter of perfect notoriety; but of one of them he said that it was entitled to pre-eminence for obscurity and difficulty of construction. In another case Vice Chancellor Kindersley said it was difficult in the last degree to discover the meaning of the Act of Parliament, He might also refer to the Mer- 571 chant Shipping Acts, which commenced with the Act of 1854; since which period he did not know how many Amendment Acts had been passed. Every one of these said—"This Act is to be taken and construed as one with the Merchant Shipping Act of 1854, and all the other amending Acts." To give a notion of the sort of puzzle these statutes presented even to legal minds, he might mention that the 33rd section of the Act of 1873 repealed the 39th section of the Merchant Shipping Amendment Act of 1862, the 4th and 10th sections of the Amendment Act of 1871, and also various sections of other Amendment Acts. All these Acts were so incorporated one with another that a man must have the whole of them before him if he wished to determine any course to be pursued. He held that the proper way of amending an Act of Parliament on an important subject was to repeal it altogether and to re-enact its provisions in the new Act, with such modifications as might be necessary. This would enable everybody to ascertain within the four corners of the Act of Parliament what the law on the subject was. Numerous authorities might be cited in favour of adopting such a course, and the only possible objection to it was that all the clauses of the original measure might be opposed in Parliament. But surely, if the previous legislation ought to stand, the House of Commons would support it clause by clause, and if it required alteration they would amend it. He was very glad to learn, from the very able speech that he had recently made on the subject in the other House, that the Lord Chancellor intended, in consolidating the Patent Laws, to repeal the whole of the existing statutes, so that the whole law on the subject would be found within the four corners of his Bill. This was the way in which all amending Acts ought to be drawn. The evils of which he had spoken would almost all have been obviated if those who framed them, and those who passed them through the House, had observed certain rules mentioned by Lord Brougham. One of these rules was that a statute should never be made without careful regard to former statutes in pari materiâ—that one part of a statute should never contradict another statute—another that the least equivocal and the plainest terms should always be used, and that 572 different words should never be used in the same sense; and a third was that enactments should never be made by reference to another statute. This latter rule was violated in nearly every Bill that was introduced. Lord Brougham recommended that if, to avoid greater perplexity, it became necessary to refer to another statute, careful regard should be had to the effects of the Act referred to. Supposing, however, that a Bill was admirably drawn, and that there were no mistakes in it which even a legal mind could discover, what was done in that House? After the second reading it was considered in Committee of the Whole House, and it might be "pulled in pieces," as the phrase went. Amendments were frequently introduced which conflicted with the other parts of the Bill, and which caused the greatest difficulty when the measure came to be administered as law and construed by the Judges. It might, perhaps, be argued that the mistakes made in this House might be corrected in the House of Lords. Well, it certainly was not a very dignified proceeding for the House of Commons to trust to the Upper House for the correction of its blunders. Besides, the Bill underwent the same process in the Lords, who might also commit mistakes, for aliquando bonus dormitat Homerus. Possibly it might be said it was his own fault if he did not understand particular Acts of Parliament; and therefore, in order, to fortify his own statement, the hon. and learned Gentleman proceeded to quote opinions expressed by Lord A binger, Lord Denman, Lord Campbell, the present Lord Chief Justice of England, and Mr. Justice Blackburn as to the extreme difficulty of understanding the meaning of various Acts of Parliament. In 1873 Lord Cairns, in the discussion upon the Register for Parliamentary and Municipal Elections Bill, called upon their Lordships to reject a series "of Chinese puzzles," which arose from the ambiguous phraseology of some of the clauses; and last year the Premier said he could not, and did not, understand a particular clause in the Endowed Schools Amendment Bill, which was, in fact, an extremely difficult clause to interpret. He held in his hand a list of 25 Acts of Parliament, in all of which blunders had been committed which had to be amended by subsequent Acts, and not one of those 573 blunders would have existed if there had been proper revision and supervision after the Bills had passed through Committee. Having thus established a very strong case, he would proceed to the more difficult question—namely, the remedy. Before 1856 a Statute Law Commission was appointed, including among its members some of the most eminent legal authorities of the day—Lord Cranworth, then Lord Chancellor, Lord Lyndhurst, Lord Brougham, Lord Campbell, Lord Wensleydale, Lord Chief Justice Jervis, Mr. Walpole, Lord "Westbury, and the present Lord Chief Baron. The Commissioners in their second Report, made in 1856, submitted that— The most effectual mode of insuring simplicity and uniformity, or otherwise improving the form and style of future statutes, would he the appointment of an officer or Board, with a sufficient staff of assistants, whose duty it would he to advise upon the legal effect of every Bill, and who would suggest how it should be worded, in order to carry out the intentions of Parliament? In 1857, a Select Committee was appointed for the purpose of considering so much of the second Report as had reference to the improvement of current legislation. This Committee sat for five days and examined five witnesses, but then reported that, having regard to the approaching Prorogation, they were not in a position to come to any conclusion on the subject referred to them. From that day to the present nothing had been done. Mr. Coulson, Mr. Rickards, Sir Erskine May, and Mr. Bellenden Ker were all in favour of some such plan as that he suggested—namely, that there should be a Committee of Revision and Supervision assisted by a legal officer, whose duty it would be to take care that the language of Acts of Parliament was uniform, consistent, and intelligible. This Committee would have no power to enact, but would simply take care that what Parliament meant to enact should be properly expressed. It might be said that a great burden would be thrown upon Members by the appointment of such a Committee. The work, however, would not be arduous. There might be two Committees, one appointed for the first and the other for the second three months of the Session. In this House there were some Members who never 574 spoke, and many who seldom spoke, and they perhaps for that reason were all the more valuable—men of acuteness and business-like habits, who would be glad to serve upon a Committee of this kind. Sir Erskine May had given it as his opinion that there was at present a waste of good material which might in this way be utilized. The very existence of this Committee of Revision would make Members more cautious in the Amendments they proposed; but even if precious time were occupied in this work, it was better that time should be so spent than that legislation should be imperfect and confused. Deliberandum est diu quod statuendum est semel. In conclusion, he would express a hope that the subject would receive due consideration from the House, and that something would be done now or before long to remedy what appeared to him to be almost a public scandal. He (Mr. Forsyth) begged to move the Resolution of which he had given Notice.

THE ATTORNEY GENERAL
said, he readily acknowledged that the subject to which his hon. and learned Friend had with so much ability directed attention was one which deserved the gravest consideration. Both the House and the Government were under an obligation to him for having taken up the matter. Without going the whole length of the criticism which had been pronounced upon the present mode of passing Acts of Parliament, or concurring in all his hon. and learned Friend had said, he felt bound to admit that there was a great deal of foundation for it. Of course, in a large measure the inaccuracies and contradictions which were to be found in the statutes arose from the 575 freedom of discussion which was necessary in the proceedings of Parliament. With regard to the proposal of his hon. and learned Friend, he confessed that it did not appear to him to be practicable in its present form. The Statute Law Commissioners, to whose Report of 1856 reference had already been made, recommended a different kind of tribunal from that which was now suggested. Their recommendation was, if he remembered right, that there should be an officer or Board outside Parliament to whom Bills should be referred from either of the two Houses. A Select Committee was appointed in 1857 for the purpose of having the whole question thoroughly considered; but, unfortunately, it was appointed late in the Session, and had not time to complete the heavy labour imposed upon it. The course adopted on that occasion suggested the course which it seemed to him desirable to follow at the present time. If the hon. and learned Member withdrew his Motion, he (the Attorney General) or some other Member of the Government would ask for the appointment of a Select Committee to inquire into the subject-matter. He was not at that moment prepared to say in what precise form of words the Committee would be moved for; but the matter would not escape his attention, and he trusted the hon. and learned Gentleman would be satisfied with this undertaking.

§ MR. GREGORY
suggested that the evil complained of might in a great measure be remedied by a rule requiring that previous Notice should be given of Amendments to be moved in Committee.

§ MR. FORSYTH
thankfully acceded to the suggestion of the Attorney General; and would withdraw his Motion.