RESOLUTION. (Hansard, 15 March 1872)

§ MR. DODSON
,^* in rising to move the following Resolutions:— 1. That, in the opinion of this House, the system of Private Legislation calls for the attention of Her Majesty's Government, and requires reform. 2. That it is expedient to substitute, as far as possible, an extended and improved system of Provisional Orders for Local and Personal Bills. 3. That Provisional Orders should be obtainable in England, Scotland, and Ireland on application to a permanent tribunal of a judicial character, before which Promoters and Opponents should be heard in open Court, and the decisions of which should be subject to confirmation by Parliament. 4. That, in case of cither House of Parliament admitting an Appeal against a decision of the tribunal in the matter of any Provisional Order, such Provisional Order should be referred to a Parliamentary tribunal, composed, in the manner recommended in 1869 by the Joint Committee of the House of Lords and the House of Commons on the Despatch of Business in Parliament, of Members of both Houses, said, the defects of the system of private legislation were so well known, and the dissatisfaction which was felt with it was so wide spread, that he need not enlarge upon them. These evils and inconveniences were partly inherent in the subject-matter. Private Business often necessitated a judicial investigation into intricate facts, and the Committees had sometimes to decide questions involving a nice adjustment of private interests and a balance of public advantages and 18 disadvantages. Frequently the question was one of discretion, and not to be decided by any uniform law. All these evils and inconveniences, however, were aggravated by the fluctuating nature of our Committees. The Members of them showed great industry, sometimes great ability, and always high honour; and they rendered a service for which they received very inadequate credit from this House or the public. They were men, too, accustomed to watch and allow for public opinion. The number of Members, however, having the leisure to devote themselves to the work, who from legal antecedents or special knowledge were peculiarly fitted for a judicial investigation, and for presiding, in fact, over a lawsuit, was limited. Members in general had not the habits and training which fitted them to control an active and energetic Bar, and to decide what evidence should be excluded or admitted. The result was that there was a Bench much weaker than the Bar before it. Moreover, all these inquiries were crowded into a few weeks; the comparatively few qualified Members were wanted in half-a-dozen or a dozen Committee-rooms at once; Members were pressed into the service regardless of their qualifications, and the Committees sat all at once, with no knowledge of each other's proceedings, and consequently with conflicting decisions. Members, too, had public duties in that House, and, their physical powers being limited, Committees could only sit for a few hours in the day. Hence there were frequent adjournments, and long detention of witnesses and legal practitioners—every element, indeed, insuring a lengthy, costly, uncertain, and unsatisfactory inquiry. All this ordeal might have to be undergone a second time in the other House, for there was no appeal in a judicial sense on special grounds, such as an allegation that the first tribunal had fallen into some error, or that new facts had come to light; but an opponent with enough money in his pocket could insist as a matter of right on taking his chance with a second jury. Nor was it an appeal from an inferior to a superior tribunal, for the Committees of the two Houses were of co-ordinate authority, and it was a matter of chance or official arrangement whether a Bill first came before this or the other House. If both juries were to hear the 19 same counsel and the same witnesses, why, it had been asked, should they not sit on the same day and in the same room? This was the recommendation of the Joint Committee of both Houses in 1869. The Members of the Commons all concurred in recommending its adoption as conducing to greater simplicity, rapidity, and economy; while of the Members of the Lords, only one, Lord Redesdale, opposed it. The Members of the Commons were Sir George Grey, Mr. Disraeli, Mr. Bouverie, Mr. Walpole, Colonel Wilson-Patten, and the Chairman of Ways and Means; the Members of the Lords were Lord Granville, Lord Halifax, Lord Eversley, Lord Salisbury, Lord Redesdale, and the late Lord Derby. It had been objected that this would allow no opportunity of appeal, but that Committee contemplated some provision of this kind; on this subject, however, he would comment presently. It had also been objected that the plan would not lighten the labours of Members. This, however, was not the first consideration, but that which was best for the public interest. If the Joint Committees, as had been suggested, were composed of three Members of each House, the labours of the Commons would be slightly diminished, and if of two Members of each House they would be materially diminished. The question arose—Could not the reform be carried further? The House had, with great advantage to the parties concerned and great credit to itself, remitted to the Judges of the land the trial of divorces, Election Petitions, and various questions relating to settled estates formerly decided by Parliamentary Committees; and in many other matters it had confided to an external body original jurisdiction, the decision being subject to confirmation by Parliament. For the conduct of a judicial investigation a permanent tribunal of experienced men was better qualified than a jury of Gentlemen inexperienced in such business, such as composed the ordinary Private Bill Committees. It was, of course, objected that though the investigation might be judicial, the result was legislative, the Committee's functions being, not to ascertain or declare, but to make the law. In the majority of cases, however, and in an increasing number, their functions were not so much those of legislators as of arbitrators. Public feeling with regard 20 to public works and joint stock companies had greatly changed within the last quarter of a century. At one time railways coming into a district were regarded as enemies to be resisted, and Parliament had to decide whether private interests should be overridden for the sake of the public advantage; whereas, now, in 9 cases out of 10, he might almost say in 99 cases out of 100, they were looked upon as allies to be negotiated with, landowners and other opponents being generally anxious that they should be made, but on more favourable terms. So, too, with gas and water works. Of 170 Railway Bills introduced this Session, 150 probably were for the construction of "spurs," or branch lines, six or eight miles long, and for the settlement of the terms on which they should be worked by the main-line company. These were obviously matters of arbitration. There were, of course, cases involving serious questions of policy, and whether the public benefit justified an exception to the general law. In view of these, such as the amalgamation Bills of this Session, Parliament could not and ought not to part with its jurisdiction. His suggestion was, that it should simply part with provisional jurisdiction, reserving, as in many other cases, the ultimate control. Assuming that this was a rational basis, what external tribunal would command such general confidence that appeals from it would be the exception, not the rule? Provisional Orders were at present made by Government Departments, and were confined to matters in which the capital at stake was small, the parties generally consented, or the opinion of the locality affected could be ascertained; but if extended to matters where great interests were at stake, and where feeling ran high, people would not be satisfied with an Order made upon the decision of an official sitting in a Government office, and on grounds or evidence which nobody knew, nor with an Order made on the decision of a Government Inspector, sent down to hold a public meeting, or make some general inquiry, and liable to hear only ex parte statements. Provisional Orders, to be generally acquiesced in, must be made by a tribunal possessing public confidence, after a public hearing, where all concerned had an opportunity of appearing by witnesses and counsel. An hon. and learned Member had introduced 21 a Bill for one part of the United Kingdom remitting the investigation to the Judges of the land; but he doubted whether they would be disposed to undertake the work, and their habits and training would lead them to adhere to precedents, whereas this tribunal ought to allow amply for the variations of public, opinion. It should be composed of men, not inferior in weight and calibre to the Judges, appointed for this special purpose. We looked for Judges among the most eminent practitioners at the Bar, and in the same quarter might be found men qualified for this duty. He saw no danger of men thus specially appointed adhering too strictly to precedents, and obstructing public improvements, and the necessity of consulting public feeling would be kept alive in them by the power of appeal to Parliament. This tribunal ought to sit in London, Edinburgh, and Dublin, and it might, perhaps, go on circuit, and sit in other places; for in important local cases, say at Glasgow or Liverpool, it might be cheaper and more convenient for the tribunal to go thither than for the parties to go to the tribunal. In matters of minor importance, such as the settlement of disputes between companies, the internal or financial arrangements of a company, or the extension of time for the completion of works, one Judge or Commissioner might make the Order. Where taking the property of unwilling persons to a great extent was at issue, the invasion of a town by a railway necessitating much demolition of dwellings, or amalgamations of public importance, two or more Judges might decide. There was a third class of exceptional cases, involving a new principle or matters of magnitude, such as to constitute a great question of public policy, in which it would be apparent that neither the parties nor the public would rest satisfied without a decision of the Legislature. He thought it worthy of consideration whether, with a view to such cases, a discretion should not be given to the Court to remit them at once to Parliament. All the Provisional Orders that came before the tribunal, whether they were granted or refused, should be laid before Parliament, lest it should be possible that this tribunal, whether through error or some unfortunate bias of some of its members, should have it in its power altogether to suppress some 22 new invention, or to prevent a scheme of a novel character being submitted to the Legislature. The tribunal would, of course, decide on all questions as to compliance with the Standing Orders, and on those which were now decided by the Referees as to the rights of locus standi of parties. Then came the question how many Judges would be required to transact this business. According to the best calculation he had been able to make, three Judges sitting for nine months in the year would be sufficient to discharge all the work now discharged by the Committees of the two Houses, by the Referees, and by the Examiners on Private Bills. What he proposed was, that there should be one set of Commissioners, whose commission would run over the whole of the United Kingdom, and who should visit different parts as required. There was not business enough in Scotland or in Ireland to justify the creation of a separate tribunal, and, moreover, the establishment of one Commission for the United Kingdom would tend to secure harmony and consistency of proceeding. He thought the men who composed this tribunal should be not a whit inferior in calibre or in authority to the Judges of the land, and therefore that provision should be made for their salaries on a proper scale. The parties to Private Bills now paid in fees a sum varying from a minimum of £45,000 or £50,000 to a maximum of between £130,000 and £140,000 a-year. That fund was mainly, if not entirely, under the control of the Chancellor of the Exchequer. Here, then, was a fund amply sufficient to provide for the expenses of an efficient tribunal, and he thought the parties who were called upon to pay such heavy fees were, at least, entitled to claim from the Chancellor of the Exchequer and the country that in return for those heavy fees they should be provided with the most efficient tribunal the country could furnish. As a general rule, it would be admitted, that the nearer home a trial took place the less expensive it would be to the litigants. In exceptional cases, where many eminent counsel would be engaged, and many eminent scientific witnesses would be called, of course the expenses of a trial would in those particular respects be greater if it were held in the provinces than if it were held in London. We must, however, legislate for general, not for exceptional cases. 23 Still, to meet exceptional cases, he proposed that the parties should have the option of claiming that their eases should be tried in the metropolis instead of any other place. He had approved of the adoption of Joint Committees for the trial of Private Bills as in itself an improvement. If we were to establish an external tribunal of First Instance, he thought there could be no question that a consolidated Committee of the two Houses would be the best tribunal for dealing with such appeal. How many cases of appeal there might be in a year it was, of course, impossible to determine. Some idea might be derived from the number of Private Bills that were now contested in both Houses. At present the number was, perhaps, from 40 to 50 or 60, and if the number of appeals were similar, that would furnish Work for 8 or 10 Joint Committees. At this rate about 20 Members of each House, selected for their especial qualifications, would suffice to discharge all the duties of this kind. He hoped, however, the number of appeals would prove less than of doubly contested cases. The House was now disposed to place great confidence in its Private Bill Committees and in its Referees. It seldom re-committed a Bill or reversed their decision, and he thought the decision of such a tribunal as he contemplated would carry still greater weight and command still greater respect. Then came the question whether the appeal to Parliament should be a matter of right or be subject to certain conditions. Considering the liability of a frivolous appellant to costs, he thought there would be no undue number of such appeals without a definite cause; but he was aware there was a very strong feeling against leaving it simply to the discretion of one party whether, without any cause shown, the expenses of a second trial should be incurred. He therefore suggested that if notice of an appeal against the decision of the tribunal were given, the tribunal should furnish a short summary of the reasons for which that decision was given. It would, in this respect, do what the Board of Trade was now required to do in certain cases, as in granting a warrant for the abandonment of a railway. The appellant would then present a Petition to Parliament setting forth his reasons, and asking for liberty to appeal. The statement of the tribunal, 24 with the Petition of the appellant, would go as a matter of course before the Standing Orders Committee, who would report to the House whether in their opinion a primâ facie case for an appeal was made out. It had always appeared to him that the passing of Provisional Orders was very cumbrous and inconvenient, and he suggested that each Provisional Order, whether made by a Department or by the tribunal, should be laid before Parliament, and if within a certain number of days it were not objected to, then it should become law. He did not propose to interfere with the duties or jurisdiction of the Inclosure Commissioners. He thought it expedient that, for the present at all events, Government Departments should retain the power they now possessed of making Provisional Orders in minor matters. With regard to Ireland, the Lord Lieutenant in Council or the Chief Secretary was the Department which granted Provisional Orders for Irish tramways or for the local government of the towns. It would, in his opinion, be convenient to persons interested in Irish undertakings if the powers of the Board of Trade for granting Provisional Orders with regard to railways, gas and waterworks were also carried over St. George's Channel, and intrusted either to the Lord Lieutenant or to the Chief Secretary. He could not make a similar suggestion for the benefit of Scotland, because there was in that country, so far as he was aware, no Government Department to which the power of granting Provisional Orders could be transferred. For the present, therefore, Scotland would have to rest satisfied with the opportunity of applying for Provisional Orders either to the Government Department, as at present, or to the new tribunal sitting in Edinburgh or elsewhere. There were other Private Bills which might be called Private Bills proper, such as Estate, Divorce, and Naturalization Bills; they were few in number, perhaps only from 10 to 20 in the course of a Session, and were very seldom opposed. With these Private Bills proper he did not propose under this scheme to interfere. If they were to be dealt with, it might be done by extending the powers of the Judges in reference to settled estates, of the Divorce Court, and so on. If this scheme were adopted, every undertaking would be carried on by means of Provisional 25 Orders, to be obtained in minor cases on application to a Government Department; in great cases, and also in minor cases if the promoters chose, on application to a strong external tribunal, constituted of men of the same calibre as the Judges of the land, before whom the promoters and the witnesses would be heard in open court. Following upon that, if the case required it, would be an appeal to the strongest Parliamentary tribunal which could be furnished—namely, a tribunal drawn from a limited number of men selected by the two Houses for their special qualifications for the work. He ventured to hope that under such a system the public would be more cheaply, more efficiently, and more satisfactorily served than it was at present; and, further, there would be this secondary advantage, that Parliament would relieve itself from a great amount of work, much of which was too minute to be worthy to occupy the time and attention of Members of the Legislature, and much of which, with all due respect for the Members of the two Houses, they were but ill-qualified to perform. This relief to the labours of this House was a matter of great and growing importance. The Public Business of the House of Commons was growing, and was likely to continue to grow. There was, moreover, a growing disposition to appoint Select Committees to consider Public Bills and public subjects, and that also took up the time of Members. An idea had been mooted that, with a view to the despatch of Business, a system of Grand Committees should be adopted, to which important Public Business should be referred. If such a scheme was to be carried into effect, it would become doubly and trebly important to release from their labours some 180 to 250 Members who were now engaged in considering Private Bills. He had trespassed so long on the time of the House that he would not attempt to anticipate the objections which might be raised to the scheme he had suggested. He was perfectly aware that a great number of objections might be urged; but every scheme that might be proposed would be open to some objections, and the question was, whether the objections which applied to the existing state of things were not greater. In what he had said he could lay no claim to originality. Almost every idea which 26 he had thrown out had been suggested by others, such as Lord Grey, Lord Salisbury, the Chancellor of the Exchequer, Sir T. Erskine May, Mr. Rickards, the Speaker's Counsel, and other gentlemen of great experience and well qualified to give an opinion. He laid no claim, as he had said, to originality in the suggestions he had put before the House, with one single exception. But, though these schemes had at different times been submitted to Select Committees, and had met with a large share of approval, the transfer of any portion of the jurisdiction of Parliament to an external tribunal had not been discussed in this House for a great number of years. Every year that passed over our heads brought further testimony to the unsatisfactory character of our private legislation, to the possibility of remitting more and more of these matters, in the first instance at all events, to an external tribunal, and to the desirability of relieving Parliament from unnecessary labour. He had not the presumption to suppose that he could submit to the House a scheme which it would be fair to accept on his own recommendation. This matter, if dealt with, must receive the grave consideration of many minds. But he would ask the House not to fall into the error of appointing another Select Committee to consider this question. Of Select Committees we had had an infinity, and any hon. Gentleman who was curious on the subject might find the shelves of the Library groaning under their Reports of Private Bill legislation, and very little had come of it. If another Select Committee were appointed it would take the evidence of a limited number of the officials of this House; but these had been examined over and over again, and of gentlemen of great learning, ability, and high honour who were well versed in the practice of Private Bill legislation. Well, all men very naturally had an affection for the labyrinth of which they held the clue, and from them it could not be expected that much evidence against the present system would be received. But if this matter was to be dealt with effectively, it must be submitted to the consideration of several independent minds. He would suggest to the House that they should appoint a Committee, not to take evidence, but a Committee which, if it had the will, would also have the 27 power, to give effect to its will. He proposed that the House should call upon the Government to act as a Committee, and to take up this subject. The hon. Gentleman concluded by moving the Resolutions of which he had given Notice.

MR. GREGORY
, though favourable generally to the scheme of his hon. Friend, thought that one or two points in it suggested doubt. Thus, he believed that Parliament would desire to retain its jurisdiction over railways, not only in cases of proposed amalgamation and working arrangements, but in a variety of other cases affecting railways, which, though not apparently great in themselves, really involved points of public policy, affected large interests, and could not be referred with advantage to any other tribunal. If the House were to retain its jurisdiction in these matters, he did not approve of a Joint Committee of the two Houses. It was often of public advantage that two Committees should sit at different times on the same Bill. Public attention was thus directed to the inquiry, and on a second investigation in the other House points were brought forward which had previously been overlooked. For example, a Bill was promoted for the virtual amalgamation of three railways—the South-Eastern, the Brighton, and the Chatham and Dover. That Bill passed the House of Commons without much discussion; but in the other House strong representations were made that it would cripple the trade of the district and was contrary to public interest, the result being the withdrawal of the Bill, which had never been renewed. What would have been the effect upon the south-eastern counties of England if there had only been one investigation in this case? As to the constitution of the proposed tribunal, he would suggest that his hon. Friend and Colleague should not look to the Bar alone, but should appoint men who were now habitually called in as arbitrators—engineers, railway managers, men who were accustomed to deal with these questions, who formed judicial habits and whose 28 minds acquired a judicial tone. A tribunal so constituted would be very valuable, and it should not merely take evidence, but have a view of the site of the works and scheme submitted to it. Committees now suffered greatly through the want of such a view, for which maps and photographs offered a poor substitute. Subject to these observations, he concurred in the scheme, and hoped his hon. Friend would have the assistance of the Government in carrying it out.

§ MR. BOUVERIE
said, he thought that the House ought to feel greatly indebted to his hon. Friend for the care and labour he had bestowed in elaborating a scheme for the conduct of Private Business so as to render it easier to hon. Members. It was impossible, however, to enter now into the details of the scheme, which was an elaborate one and required great consideration. At present, he should be unwilling to commit himself absolutely either in favour of or against it. He approved of its general features; but should be sorry, by agreeing to those Resolutions, to destroy the existing system without seeing the details which were to be substituted for it. He thought, however, the proper conclusion of the Resolutions would have been the introduction of a Bill to carry out the scheme. He must repeat that it would not be proper now to discuss details; but there was one strong objection to a permanent tribunal such as that shadowed forth by his hon. Friend—that it must necessarily want the flexibility possessed by a Committee of either House, that it was almost certain to be guided by precedent, and that when it had once decided in one way it would be bound by that decision, and would so decide again, no matter what might have been the change of circumstances meanwhile. Now, Committees were guided by no such considerations; but it often happened that a Committee one Session would decide a particular point one way, and next Session a new Committee would decide the same point in a directly contrary way. That was not without its advantages, because some of the greatest improvements in the country, fraught with the greatest public benefits, had in the first instance been rejected by Committees, and subsequently been passed with universal assent. He should be sorry, therefore, to see any tribunal which should be of such an inelastic 29 and inflexible character as to refuse to review its own decisions and pass projects which it might previously have rejected. This was one great difficulty which his hon. Friend would have to meet. However, for the present he suggested, in no spirit of hostility to the plan, that the debate should be adjourned, so that the House might have time to consider these proposals, and might, if possible, see them elaborated in the shape of a Bill.

§ COLONEL WILSON-PATTEN
said, he must also thank the hon. Gentleman for the pains he had evidently taken in the preparation of these proposals, and for the admirable way in which he had submitted them to the House. He believed he spoke the sentiments of most Members of the House when he said that the time had arrived when some re-organization must take place in the mode of conducting private legislation. Having to take an active part in the formation of Committees, he could say that during the last few Sessions the difficulty of forming these Committees had greatly increased, owing to the length to which debates were carried in this House; so that hon. Members who were occupied during the whole night were indisposed to come down early in the morning to act upon Private Bill Committees. He was, therefore, prepared to listen to any proposal for bringing about a change. It was, at the same time, impossible to discuss at once the details of so elaborate a scheme as had been submitted to the House. He, at all events, would be very sorry to commit himself without further consideration to an acceptance of the Resolutions. One of them he was prepared to vote for, for he had been long of opinion that Committees of that House were not the best tribunal to decide on a new mode of conducting business. The matter should, he thought, be taken up by the Government; but for the present he was in favour of the adjournment of the debate as moved by the right hon. Gentleman opposite (Mr. Bouverie), and which he should second, for he thought the House required time to consider the proposals.

§ MR. SCLATER-BOOTH
also wished to thank his hon. Friend for the boldness 30 with which he had brought forward his scheme; and although he was not prepared to criticize it at present, he should be willing to support at least two or three out of the four Resolutions. In some respects he thought his hon. Friend went too far, and in others that he did not go far enough. It would have been better, he thought, if the Private Business had been divided into railway legislation, and all other local Acts. Such local matters as came within their jurisdiction might, for instance, be relegated to Courts of quarter sessions; but railway legislation would, in his opinion, be difficult to remove from the cognizance of the House itself, and for that reason he hoped the Government would take the matter into their consideration.

§ MR. CHICHESTER FORTESCUE
concurred in the general expression of thanks with which the scheme of his hon. Friend had been received. The definite proposals which had been made would, he thought, be of great use in bringing the House face to face with the difficulties, and in preventing it from losing itself in generalities. If the House had been asked on that occasion to come to a decision on the Resolutions, he should, from the point of view of the office which he had the honour to fill, have deemed it his duty to state his views with respect to them. He was not, however, surprised that hon. Members did not feel themselves competent at once to deal with the details of the scheme, and he hoped, therefore, the Motion for adjournment would be agreed to.

§ MR. DODSON
, having thanked the House for the manner in which the scheme had been so far discussed, said, he should not object to the adjournment of the debate to that day week.