ÆäÀÌÁö À̹ÌÁö
PDF
ePub

country could not be thought to have any political tendency or bearing, I saw no reason why I should not comply with the request.

I feel it to be an honor and a compliment to be invited, and my desire will be to give you such information regarding our system in Great Britain as may be serviceable to you. Mr. Nelson in the few observations he has just made has indicated what is the gist of the matter, viz, that anything I may say is not said by the British ambassador, but is said by one who has for many years endeavored to study the political conditions of this country and especially those political conditions which lie outside of party politics, and who is therefore to state what is our system in England and endeavor to put our English experience at your service.

I ought, perhaps, to begin, Mr. Chairman, by indicating what are the fundamental differences between your system and that of Great Britain that make the conditions under which British legislation proceeds unlike yours. What I shall say about our system must be taken subject to the fact that these conditions are entirely different in your country and in mine, so that our system could not be applied directly in any country whose principles of government are dissimilar so far as regards legislative methods. The most important difference is this: In Britain there is not that formal separation of the legislative from the executive departments which exists in the United States. With us the executive of the country-that is to say, the cabinet, the ministers of the Crown, who conduct the executive departments and administer the business of the country-sit in Parliament, most of them in the House of Commons, some of them in the House of Lords, and they are responsible for the conduct of business in both houses.

The great bulk of legislation, including all the more important bills, are introduced by the executive government. It is they that prepare the bills; it is they that dispose of the time of Parliament for the purpose of passing the bills; it is they that conduct the bills through the Houses of Parliament, and therefore the drafting of legislation is primarily a business for the executive. Nevertheless, the power of private members, members who do not belong to the administration, to introduce bills remains quite unlimited both in the House of Commons and in the House of Lords. That is an ancient principle of our constitution, and every member of the House of Commons and every member of the House of Lords is entitled to present bills, but the rules which determine the procedure of the House of Commons have latterly assigned the largest part of the time of Parliament to Government bills. Thus it is only "Government bills" that have any great political importance; and fourfifths of all the bills that are passed, nineteen-twentieths of those that are of high significance, are passed at the instance of the executive government.

There is another difference to which I must advert to in passing, and that is the distinction that we draw between public bills and private bills. The term "private bills" means local or personal bills, bills which relate to a particularly locality or bills which affect a particular person or group of persons. These private bills are dealt with under our system in an entirely different way from that in which public bills are dealt with. They are dealt with by what may be called a kind of judicial procedure that is to say, they are

ntroduced by private persons or local authorities, and they are not conducted by our ordinary methods by which we put public bills through the two Houses of Parliament.

What I have to say to you, therefore, refers entirely to the public bills, not to private. This system of dealing with private bills is in our country a valuable and practically useful system, and if that were the question before your committee, I should be very happy to give you an account of it, and to explain how it is that we, as we believe, succeed in avoiding difficulties and dangers and the risks of improper action which may attach to the passing of private bills, by subjecting our private bills to a species of judicial procedure. They are sent to committees whose members make a solemn declaration that they will not be affected by any private interest in dealing with the bills. They are heard very much as a lawsuit is heard by counsel who present the case and who examine witnesses, and no member of either House of Parliament is permitted to interfere in any way with the conduct of these committees in dealing with private bills. It would be a breach of our set rules for any private member, no matter how greatly interested his constituents might be in the bill, to endeavor to influence the consideration of a committee on that bill. Each committee is bound to deal with it fairly on the basis of the evidence submitted and with a view to the general public interest.

I may say I have dealt with that subject in an address I delivered three years ago to the New York State Bar Association. If any member of the committee would care to have a copy of that address I shall be glad to send a copy to him, but as it is not the subject directly before you, I have merely indicated that the remarks I am going to make relate exclusively to public bills-that is to say, to those which are of general application and affect the general interest of the country.

I need not go further back into the history of the matter than to about the middle of the last century. In 1837, for the first time, an official, being a barrister of experience, was appointed to draft bills for the administration. Before that time each department had either prepared its own bills in its own way or had employed some lawyer to draft them for it. Ultimately, in the years 1869 and 1871, there was organized a permanent office which was charged with the preparation of all Government bills. Our practice in England, when we have no particular department under which to place any branch of work, is to put it under the treasury. The treasury is a sort of general legatee of business that does not belong to any special department, for the good and obvious reason that the treasury is the paymaster and has to provide for the payment of all work done which does not belong to any special department.

This bill-drafting official was called at one time the "counsel of Parliament or counsel to the treasury." It is now generally spoken of as the office of the parliamentary counsel. It consists of one head-an experienced lawyer and practiced draftsman-who receives a large salary. A large salary is necessary in order to secure the highest legal talent. I am not quite sure what the salary is, but my impression is that it used to be £2,000 a year-about $10,000-for the head of the office, and is now a little more-$12,500 for the head and $10,000 for the assistant counsel. Smaller salaries would not be suffi

E

cient to secure that first-rate legal talent which it is necessary to have. This office accordingly consists of a head counsel and the assist counsel, both barristers of talent and experience, thoroughly trained in law and draftsmanship, and their business is to prepare and put into form every bill which is to be introduced into Parliament by any department of the administration. They employ other assistants, whose payment is fixed by them under the supervision of the treasury, for any work which may be impossible for them in time of pressure to undertake personally. The process which a bill undergoes before being presented to Parliament is as follows: I had some experience in the matter, because I have been in three or four different departments of Government while I was in the House of Commons, and in three of these departments I was the head of the department, and was therefore responsible for the legislation that was introduced; and one of those departments, the board of trade, which is what you call the ministry of commerce and labor, with some of the functions of your ministry of the interior, had a great deal of legislation, and its function was not only to prepare legislation but to watch the legislation that was introduced by private members.

When a bill is to be prepared, the first thing that the minister in charge of the department does is to hold a sort of council of war of his own department, and to consider what are to be the contents of the bill he desires to introduce. When he is satisfied as regards the substance of the provisions contemplated he sends for the parliamentary counsel, who thereupon comes over to the department, discusses the matter with the minister and the heads of his subdepartments and takes the instructions upon which he is to frame the bill. If he finds that there are any technical legal difficulties connected with the carrying out of what the minister wants, it is his duty to represent those difficulties. Suppose the minister says, "I want to have a bill introduced with provisions for doing so and so." The business of the parliamentary counsel is to say, "How will you reconcile those provisions with those that exist in such and such an act? Do you want to repeal that act or to modify it? How will you reconcile your scheme with the doctrine laid down in such and such a decided case? Do you or do you not mean to alter the law as declared in that case?" Or he may say, "The plan you propose will be exposed to such and such practical difficulties in its working. How do you propose to avoid those difficulties?" Such criticisms are valuable, because there may be objections to the minister's plans which will not have occurred to his mind or to the minds of the members of his department. It is the duty of the parliamentary counsel to present these things to the minister and to give him a complete view of the way in which his bill, if it is introduced, will affect the existing law, so as to be sure it will not do more than was intended, and above all that it will not leave untouched various contingencies or legal provisions of existing statutes which ought to be dealt with to make the bill, when enacted, work in a satisfactory way.

I hope the members of the committee will follow what I am endeavoring to state, because this is one of the most important parts of the functions of a draftsman-preparing a bill-and the most helpful to the minister.

When this discussion is over the parliamentary counsel takes away his instructions and he prepares a draft of the bill and sends it to

the department. The department considers the draft bill, makes some suggestions upon it for the consideration of the parliamentary counsel, and probably requests the parliamentary counsel to come over for another conference on the subject. If the bill is a bill of first-rate importance, it is laid before the cabinet, and sometimes it is discussed before the cabinet at great length. I remember a case where the cabinet spent six or seven successive sittings in discussing the provisions of one particular bill, and sometimes, although very rarely, it will happen that the draftsman of the bill, the parliamentary counsel himself, is asked to come in and meet a committee of the cabinet to discuss the provisions of the bill. I remember one famous case in which a bill was redrafted 22 times and printed and circulated to the members of the cabinet 22 times, with the different changes which had been made in it by the parliamentary counsel, in order to obey the directions of the cabinet."

When the minister is ultimately satisfied with the draft which the parliamentary counsel has presented, and when the parliamentary counsel has said all he has to say, then the bill, having been approved by the minister, will be brought by him into the House of Commons or the House of Lords-usually into the House of Commons.

You will see from that how important a function the parliamentary counsel performs. He is in no way responsible for the policy of a bill. That is entirely a matter for the department or for the cabinet. His function is merely to carry out their wishes, but he has opportunities of the greatest possible value for representing to them the difficulties which may arise in carrying out any scheme which they propose to enact by a bill. If the bill proposes to create new administrative machinery, it would be his duty to point out any difficulties in the working of that machinery, and although the parliamentary counsel is entirely outside politics and is not entitled to belong to a political party or to express any political opinion of his own, and is, of course, forbidden to belong to a party organization, still he is an important functionary, through his duty of calling the attention of the minister or the cabinet to all questions whatever, whether they involve political considerations or not, which the bill may raise.

When the bill has been brought in, it goes through its usual stages in both houses. It is read a first time; it is read a second time; it is then, in the House of Commons, referred to one of the large committees (what are called the "Grand committees ") or it is referred to the committee of the whole. If it is a bill of first-class importance, it goes to the committee of the whole. When it is in committee, amendments are constantly moved by private members, which will affect the substance and the form of the bill, and of course the minister in charge of the bill is sometimes not enough of a lawyer to be able, offhand, to deal with the legal aspect of those amendments, so we have made an arrangement, of late years, under which the parliamentary counsel is assigned a seat inside the room-the room in which the House of Commons sits, though technically outside the House and where he can be easily got at by the minister. So when an amendment is moved about the effect of which the minister is not quite clear or whose wording he does not quite understand, he can leave his seat in the House and go around a few steps to confer with the parliamentary counsel and take his opinion about

it. That is a real convenience. Often, when an amendment has been suddenly moved, which I found it not very easy to deal with on the spur of the moment, I have gone to the parliamentary counsel "under the gallery" and consulted him about it and whether he thought we could accept it without harming the rest of the bill and, if not, whether he could suggest any change in the wording that would make it possible for us to accept it.

Mr. TOWNSEND. Mr. Ambassador, during that time what is the legislative status of a bill to which an amendment has been offeredis debate going on?

Mr. BRYCE. Debate is going on; and, of course, one can, if necessary, put up some member on one's own side, who will get up and talk for a few minutes while one is conferring with the parliamentary counsel and in that way the thing is always kept going. [Laughter.]

It is an interesting symptom when a minister is seen going to talk to his parliamentary counsel; people know that he thinks the amendment of some consequence.

Mr. PICKETT. Does he announce he is going to consult with the parliamentary counsel?

Mr. BRYCE. No; it would be irregular to do that, because the counsel is not supposed to be present. Neither is it necessary, because if the minister is seen leaving his seat to talk to the parliamentary counsel, everybody understands the reason, and as the practice is for the general convenience of all parties, nobody objects. Mr. PICKETT. I was just getting at the status.

Mr. BRYCE. In this way the bill goes through the House of Commons. When it has been through committee, it, of course, comes up in the stage of report. It is reported to the whole house, which considers it again, usually making further amendments in it. Then it comes on for third reading and then it goes to the other house.

The only other point I need mention upon this subject, is to emphasize the need which we feel to exist for the most careful consideration for the wording of the bill from the point of view of the lawyer. The minister, of course, is responsible for the substance, but we feel—in order to make our legislation finished and proper and effective and to prevent difficulties from subsequently arising the form of the bill can not be considered too carefully, and that object we believe to be attained by the employment of the highest legal talent in the work of drafting.

If there are any points which I have not succeeded in making clear, perhaps some member will ask me a question.

The CHAIRMAN. The purpose of that great care in the committee stage in the preparation of the form of the bill is, of course, to avoid litigation subsequently, I suppose?

Mr. BRYCE. That is so. Now let me attempt to sum up briefly the advantages which we in Britain believe to have resulted to the conduct of legislation and the improvement of our statute law from the institution of the office of parliamentary counsel. They are as follows:

In the first place, it has secured much greater economy, because, until this one office was created for the purpose of doing the work of drafting, we had been obliged to pay much larger sums to the lawyers than those which are now required for the payment of the permanent officials.

« ÀÌÀü°è¼Ó »