HC Deb 18 February 1876 vol 227 cc485-500

in rising "to call the attention of the House to the position of those officers of the House called 'Referees,' and to move for a Committee to inquire and report on that position, and particularly as to the legality and expediency of allowing 'Referees' the same power of voting on a Private Bill Committee as a Member of Parliament regularly elected by a constitu- ency," said: In bringing before the House what appears to me an important constitutional question, I shall endeavour to do so without unduly trespassing on the time of the House. It may perhaps be asked why I should now call in question a decision of the House which was come to eight years ago, which was discussed at the time by hon. Members of far greater experience than myself, and which for those eight years has remained unquestioned. My reply is that the point which I wish to bring before the House appears to have been entirely unnoticed in the debates of that day; that it has never been called in question since, because the number of hon. Members who seem to be aware that these Referees were exercising a power of voting has been but small—and that in an institution whose powers and privileges are the growth of ages, eight years are by no means enough to create immunity from question. It was only near the end of last Session that I myself became aware that any one not an actual Member of this House had a vote in any stage of our legislation. I derived the information through finding that the vote of a Referee had decided the fate of two important local Bills in a way which I, with far better knowledge of the locality, considered illogical and absurd. Desiring to dispute the decision in this House on the third reading, I found that the actual decision had been given by one who could not come into this House to explain or justify what he had done. I thought that a most extraordinary and improper state of matters, and immediately set about inquiring how it should be so. I asked several old Members, but they knew nothing of it; in fact, did not believe it could be so at all. They had never heard of Referees voting. I then had recourse to Sir Erskine May's most valuable book, to the Standing Orders, and to the Journals of the House, and discovered that it was a thing of quite recent origin—that the power of a Referee to sit on a Committee had been conferred by a simple Resolution of this House only in 1868, and that the Resolution did not specify any power of voting. In the meantime I had failed in getting the House to upset the decision of its Committee, for the House hardly will do that in any case at all; and the consequence was, that a most unjust Bill had been passed through this House, nominally by the House itself, but really and practically by the vote of an outsider elected by no constituency, responsible to no constituency, not even responsible to this House—in fact, an utterly irresponsible individual, not even able to come into this House to explain his reasons. In this case fortunately, we had a House of Lords, and the blunder of this House was rectified there. I have said that the Resolution which enabled a Referee to sit on a Committee had not specified any power of voting. I may also say that in the whole debate the only trace that such a power was contemplated is in its incidental mention by the noble Lord at that time Member for the East Hiding of Yorkshire (Lord Hotham), but alluded to by no other speaker, and it seems therefore very much open to doubt if the House really intended to confer voting power. But the point I wish to press is that, even if the House did intend to do it, it was unconstitutional and ultra vires to make such a change in the process of legislation by a mere Resolution, or in any other way than by an Act of Parliament; and it does seem to me to be a most unfortunate thing that the Resolution did not specify fully its whole scope, for in that case I think its unconstitutional character would have been detected at the time, instead of remaining till now, when it can be set right only by an acknowledgment of error, which the House, and especially the official element in the House, will be most unwilling to make. At the time when this error was committed, the Private Bill legislation of the House was in a state of great difficulty. The burden of that legislation was pressing heavily on Members, and it was urgently required that some means should be found of getting through that business more easily. In 1864 a Court of Referees had been established to examine the engineering and estimates of certain Bills, and to report on these to the Committees. That had been found to work well, in so far that their technical advice was a manifest aid to the Committees, but it was also found that in considering these details a large part of the evidence on the subject of the Bill had to be gone over before that Court of Referees, and afterwards be repeated before the Committee, and that this double evidence led to an extra expense, which it was thought might be saved. For that purpose it was proposed by the right hon. Gentleman now the Member for Chester (Mr. Dodson), then Chairman of Ways and Means, that the Committee of Selection might, if they pleased, refer any Bill entirely to the Court of Referees, which, I may mention, consists of the Chairman of Ways and Means along with three other persons appointed by the Speaker, and not necessarily Members of the House. That course was objected to by the House, and particularly by Lord Hotham, then Chairman of the Standing Orders Committee, who gave strong reasons against such an arrangement, one of which was that when such a Court reported to the House, and hon. Members wished to question that decision, these Referees were unable to appear here to defend their decision. Lord Hotham then proposed the following Resolution:— That the Committee of Selection may refer any opposed Private Bill, or any Group of such Bills, to a Committee consisting of Pour Members and a Referee; which was assented to by the House, and is the Resolution which I wish to call in question. It does seem strange that Lord Hotham did not observe that the very argument which he had used with such effect against the proposal of the Chairman of Ways and Means—namely, that a Referee could not appear in this House to justify a decision—applied also to his own proposal, though not quite in the same degree; and that is specially so if the Resolution was intended to confer voting power, and the House will understand that it is only to the voting power that I make objection. I can understand it to be a suitable enough arrangement that the Referees should attend the Committees as assessors or advisers to give the Committee the benefit of technical knowledge on those points of engineering and estimates which, as Referees, they were specially appointed to examine; but if the Resolution meant to go further than that it was wrong. Now, whatever the Resolution meant to do, the power of voting certainly has been assumed by the Referees, and I will now lay before the House the grounds on which I think it was unconstitutional. Every hon. Member is aware that the powers and privi- leges of this House were in old times I far more the growth of custom and precedent than of statute, and therefore it is not possible for me to adduce any statute prescribing the legislative process of passing Bills through Parliament. Here, however, is an extract from Sir Erskine May's work— The Imperial Parliament of the United Kingdom of Great Britain and Ireland, is composed of the King or Queen, and throe Estates of the Realm—viz., the Lords Spiritual, the Lords Temporal, and the Commons. These several powers collectively make laws that are binding upon the subjects of the British Empire. Here we have the legislative function clearly restricted to the Monarch and the three Estates of the Realm. They are to make the laws. Now, surely it cannot be contended that the making of a law consists merely in the final passing of it; but it consists of certain well-known stages through which every Act of Parliament, whether Public or Private, has to pass, and every one of which stages was, up to the passing of that Resolution, strictly limited to the Monarch and the Estates of the Realm. I presume an attempt will be made to show that a Private Bill is different from a Public Bill; but I do not think that, as regards legislative process, that distinction can be maintained, and for this among other reasons, that no one can draw a definite and distinct line between the two classes of Bills. We speak of Public Bills and of Private Bills, and of Hybrid Bills, but the difference cannot be strictly defined, for it may even happen that two Bills might be identical in their subject and in their provisions, and if one of them applies to London, to Edinburgh, or to Dublin, it would be a Public Bill; while, if its duplicate applied only to Manchester, to Glasgow, or to Belfast, it would be a Private Bill. Nor is there any material difference in the stages through which the two classes have to pass. Each must be introduced under the endorsement of two Members. Each must be read a first time, each must be read a second time, each must be gone through by Committee, clause by clause, each must be reported to the House, and each must be read a third time and passed; and I repeat that, till the passing of this unfortunate Resolution, every one of these stages in this House was strictly confined to Members of the House. The only difference that has existed has been the very slight one that the Public Bill is discussed clause by clause by the House in Committee, while the Private Bill is discussed clause by clause by a Committee of the House; but whether by the House in Committee or by a Committee of the House, the stage is one of the necessary stages in the making of a law, and is therefore part of the legislative function which cannot be exercised by any one other than those on whom the Constitution has imposed it. The only argument I have heard in justification is that the decision of the Committee and Referee is not final; that the Bill has to be reported to the House, and the House can reverse the decision, but the reply to that is that practically the decision is final, because the House hardly will consider the merits of such a Bill but simply confirms its Committee; but more than that, the very same argument applies to a Bill which is discussed by the House in Committee. That also only reports to the House, yet I hardly think any hon. Member would be found to maintain that it would be open to the House, if it chose, to bring in outsiders to walk through our Division Lobbies, and give votes on the clauses of a Bill on an equal footing with ourselves merely on the pretence that the stage was not final, and would still come under review of the House. It seems to me that if the House claims a right to confer a legislative vote on anyone outside the House by any other means than by Act of Parliament, it is assuming to itself a new prerogative, and one for which there is no precedent. Now, I find that in 1704 the House of Lords, at a Conference with the House of Commons, communicated the following Resolution:— That neither House of Parliament hath any power, by any Vote, or Declaration, to create to themselves any new privilege that is not warranted by the known laws and customs of Parliament."—[Parl. Hist. vi. 387.] That Resolution was assented to by the Commons, and was always acted upon. It is for those who defend the Resolution of 1868 to show that it is not a new privilege to confer legislative votes on men not elected by any constituency, not responsible to any one, and who cannot appear in the House to justify their vote. I do not ask the House to come to any hasty decision; I do not ask the House to accept my statement of the case; all I ask is that they should appoint a Select Committee of their own Members to investigate the matter. I earnestly hope that the Committee may be granted, for I see possibility of grave difficulty if it be refused. It may lead to the loss of public confidence in the decisions of such Committees. It might lead to the decision of such a Committee being disputed in the Court of Queen's Bench, and I think it would hardly consist with the dignity of this House that such an issue should be raised at all. It would be far better for the House to investigate the matter for itself, and even, if necessary, retrace a wrong step of its own free will than have its authority questioned elsewhere. The hon. Member concluded by moving the Resolution.


in seconding the Motion, said, he believed that it raised an important constitutional question. He did not believe that it ever was the intention of Parliament to transfer its voting powers to the Referees. How did the matter work? The Chairman of a Select Committee had a casting vote, and when there were three other Members of the Committee, including the Referee, the Chairman and the Referee could arrive at and make effective a decision which was against the views of two hon. Members of the House, that decision being practically carried not by the vote of a Member of the House, but by the vote of a Referee. In the Judicial Committee of the Privy Council there were sometimes three assessors, who took full part in the discussion, suggested points, and heard arguments, but in the decision itself they had no voice at all. He thought it would be a mistake to have a portion of the legislation of Parliament decided by the votes of those who were not Members.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "a Select Committee he appointed to inquire and report on the position of the Referees of the House on Private Bills, and particularly as to the legality and expediency of allowing the Referees the same power of voting on a Private Bill Committee as a Member of Parliament regularly elected by a constituency,"—(Mr. Anderson,)

—instead thereof.


trusted the House would not think him guilty of presump- tion in rising at that time; but he thought he should be almost guilty of disrespect to the House if, after his experience of Parliamentary Private Bill Committees, he did not give the House the benefit of his knowledge. It seemed to him that no solid and real ground had been laid why the system, which had worked well for a considerable number of years, should be destroyed. Some gross miscarriage of justice, or something worse, should have happened to induce the House to interfere with a state of things which had given satisfaction to the public and to those concerned with Private Bill legislation. The hon. Gentleman the Member for Glasgow (Mr. Anderson) had erred in two respects; he had in one respect exaggerated the importance of the functions of these Referees, while he had in some degree underrated their position. These Referees were officers of the House. But they were also something more. A series of Resolutions and Standing Orders had been passed which gave them a certain status, and their position might be said to have been determined in 1867 by an Act which positively clothed them with the same powers in dealing with Private Bills, under certain circumstances, as Committees of the House. Then the hon. Member had overrated the powers of the Referees in assuming that they or the Committees had the power of deciding the fate of Bills. It was useless to disguise the fact that, in a great many cases, the verdict of the Committee was accepted by the House; but, properly speaking, the Committee's function was to report, and if it appeared that they had omitted to take some important evidence, it was possible to have the Bill re-committed, and the whole subject re-discussed. Therefore, although the Referees had a voice in Committees, it could not be said that they could walk into the House and influence the final determination of Bills. He thought the hon. Member would have taken notice of the Referee as to the question of locus standi. The system which had been adopted, by avoiding hap-hazard or conflicting decisions, had saved an enormous amount of time, and an enormous amount of money; but if the Referee were to have no vote, it would materially change the usefulness of the tribunal. The whole course of proceeding had been reduced to a system, and had worked admirably; but as he had said, if the Referees were not to have votes their usefulness would be very much diminished, for the House could hardly confer upon the Referees functions in one case which were to be denied in the other. The question had undergone discussion in 1864, 1865, and 1867, and his experience showed him that the Referees had been a very useful body. He did not know the merits of the particular case to which the hon. Member referred, but was that case, which was the only one of the kind the House had ever heard of, a sufficient ground for granting a Committee to inquire into the general practice on this question, a practice which had continued for so many years? He trusted the Committee would not be granted, as he did not think it would do any good. Another thing, it was not required, for no grievance had been made out.


said, that probably his experience of these matters was more remote than that of the hon. and learned Member for Cambridgeshire (Mr. Rodwell), and therefore he might be excused if he could not join in the conclusion his hon. Friend had arrived at. The question raised by the hon. Member for Glasgow (Mr. Anderson) was a new one, and one of such importance that it was desirable it should be settled. If it were a question as to whether the Referees formed a good tribunal, or the element of one, he should be disposed to vote against them; but the point raised was not that—it was much more serious, and one which called for the attention of the House and Her Majesty's Government, and he therefore hoped they would state their opinion on the subject. The more highly the House valued their privileges, the more careful they should be to guard their integrity, and to inquire into the operation of any system by which they might possibly be impaired. The hon. Member for Glasgow had pointed out that the functions attributed to the Referees were a delegation of the functions belonging to that House, and which functions were being performed by gentlemen who were not Members of the House. Now that was a very serious matter, and they had to consider whether they could delegate such powers merely by Resolution. If it was a good thing to do, then let it be done in the proper way; and he was disposed to agree that it ought to be done by Act of Parliament, because he doubted very much whether that House had the power by Resolution to delegate to those who were not Members any portion of its functions. Supposing by Resolution the House had determined that one of the Judges of the land should sit upon Election Committees, and determine the seat of a Member of that House. He thought every man would agree with him that that would be an unconstitutional Resolution, and that they would have no power to pass it. No doubt the House had thought fit to make the Judges try the Election Petitions, but it was not done by Resolution. There was nothing about which they ought to be more careful than a matter of the kind. He had no doubt his hon. and learned Friend had truly stated the efficiency of the Referees; but however satisfactory the tribunal might be, however high the character of its members, it appeared that it was now formed by a species of Constitutional lapsus, which could not be too soon remedied. The Report of a Select Committee might, therefore, be useful in placing the whole matter on a sound and Constitutional basis.


completely agreed with the observations just made. This was a matter involving Constitutional principles, and he was quite sure that House had no power to delegate its functions to gentlemen who were not Members of the House, because, if they had the power, it might be used in such a way as to lead to serious consequences. The maxim Delegatus non protest delegare applied to all their legislative powers, nor was there any difference between Public and Private Bills. The Act of 1867 largely extended the powers of the Referees in respect of locus standi and other matters; but the Standing Order which put the Referee upon the Committee was not passed until the Session of 1868, and it might be desirable to have evidence as to the manner in which the tribunal thus constituted had actually worked. He was of opinion that the question had been very properly brought before the House, and the hon. Member for Glasgow (Mr. Anderson) deserved their thanks for the action he had taken.


said, that the question was no less than this—whether the Busi- ness of the House should be continued to be discharged by Members of the House alone. It seemed to him a remarkable proceeding that gentlemen who were not Members should be authorized to vote upon Committees; and that merely by a Resolution. Had a Referee been appointed upon a Committee of which he was Chairman, he should have felt it his duty to report that matter to the House; and he now hoped that the House would not refuse to appoint a Committee to inquire into the subject. It would tend to impeach the authority of the Private Bill Committees of the House if it was known that matters involving millions of money were to be settled by two Members of Parliament and that another who was not a Member of Parliament should have a casting vote. He should certainly support the Motion.


said, the Motion of the hon. Member for Glasgow (Mr. Anderson) was one which dealt with the question from two points of view; because the Committee he was so anxious to have appointed was to inquire into the legality as well as the expediency of allowing Referees the same power of voting in Private Bill Committees as Members of Parliament. He thought there was rather a tendency to confuse these two issues, which were quite separate in their character. He would endeavour to give a sketch of the history of the tribunal of Referees, and to show how the present system, which he admitted was an anomalous one, had come to exist. The first step was taken in 1864, when it was referred to a Select Committee to consider whether it was desirable to appoint Referees for particular purposes. The Motion was made by a Member of very great authority, the present Lord Winmarleigh (then Colonel Wilson-Patten), and the Committee reported that it was desirable that such a tribunal should be constituted, and should have cognizance not merely of matters of engineering and finance, but also of other matters having reference to four classes of Private Bills. The tribunal was really set up as a tribunal of experts, to relieve Members of the House of duties which in many cases they were scarcely adequate to perform. At the end of 1865 a further Committee was appointed, to consider how that tribunal had worked, and that Committee reported in favour of rather extending the powers of the Referees. In 1867 a rather considerable addition was made to the powers of the Referees, because power was given to the Committee of Selection to refer Bills to Referees instead of to a Committee of the House of Commons. This reference, however, was confined to Gas and Water Bills. In 1868 the then Chairman of Ways and Means brought forward a proposition that still further extended the powers of the Referees, by allowing them a jurisdiction over all Private Bills, and not merely Gas and Water Bills. The House hesitated to give them such an extended power, and an Amendment was moved by the noble Lord the Member for the East Riding of Yorkshire (Lord Hotham), the Chairman of the Committee upon Standing Orders, to get rid of the double inquiry which had existed by the amalgamation of the two tribunals which had up to that time exercised a divided authority. It was accordingly provided by the Standing Orders that a Bill might be referred to a Committee of four Members of the House, or to a Committee of four Members and a Referee. There must, however, be four Members of Parliament on a Committee where there was a Referee. Notwithstanding the change, however, it was not correct to say, as had been stated by the last speaker, that a question involving large sums of money could be decided by the vote of the Chairman of a Committee and a Referee alone. A Referee, of course, might make his influence felt, and with two other Members of the Committee might outvote the Chairman, and he was not altogether sure that it was desirable in cases in which interests so important were concerned, that the votes of two Members should overrule those of the other two Members simply because of the casting vote of the Chairman. Even in a case to which the hon. Member for Glasgow had referred, in which there were two Members on one side and two on the other, on a division the result might have been the same as that he had stated, without the intervention of the Referees. He would also remind the House that, owing to the fatalities which attended the last General Election, it had been deprived of the services of several Members who had had great experience as Chairmen of Committees on Private Bills, and that it was well that those who succeeded them, and who had not the same experience, should have the assistance and advice which such men as the Referees were able to afford. He was aware that the hon. Member for Glasgow did not propose altogether to expel the Referees from those Committees; but if the House were to decide that a system which had been tried for several years, and with which the greatest satisfaction had been expressed out-of-doors, should be now abolished, a great blow would, in his opinion, have been struck at the authority of those officers. To strike such a blow would, he thought, be most inexpedient. The Referees were not merely assessors upon these Private Bill Committees; but they also formed part of a Court of locus standi, which was composed of five Members of this House and three paid Referees. There was likewise the Committee upon Unopposed Bills, upon which Referees also served. They could not deal with one of these matters affecting Referees without dealing with all of them. While upon the question of legality he might observe that it was a serious matter that the House should, after the present system had been in operation for eight years, and after numerous cases had been decided under it, cast a doubt upon the authority of those Committees, and, as it were, retrospectively invalidate their decisions. Surely, if the question of legality were to be tested at all, it should be tested outside those walls, where an authoritative exposition of the law could be obtained. He thought that the hon. Member for Glasgow would, under the circumstances, do well to pause, if it were only out of consideration for the interests which would be affected, before raising this question of legality. For his own part, while sufficiently aware of the anomaly of the practice of Referees having votes, he was as jealous as any other Member of the privileges of the House, and he frankly confessed that if they were now constructing these tribunals, he would not propose to give the Referees votes. They were, however, now looking back over the practice of the House which had existed for many years. He had only to add that he would promise to give his attention to the subject, and that he should be happy to confer upon it with his right hon. Friend the Chairman of the Committee on Stand- ing Orders, and others whose opinions were entitled to more weight than that of any individual Member on so great and important a point.


thought the working of the present system had been most beneficial, but admitted that, in regard to expediency, a fair question had been raised by the proposition of the hon. Member for Glasgow (Mr. Anderson). He should not for a moment deprecate the full investigation before a Committee of the question of the maintenance of Referees as a constituent part of the Committees upstairs. However, he trusted the House would pause before taking a step which would stamp with illegality an act considered to be one of the privileges of the House—namely, that of appointing servants of the House to assist them in their deliberations on private Bills. He should deprecate a hasty Resolution condemning the legality of a system which had been sanctioned by the leading Members of the House, and which had been in operation for eight years.


said, he was of opinion that, as the question had been raised, it must be settled, though whether it should be referred to the Committee proposed by his hon. Friend the Member for Glasgow (Mr. Anderson) was another matter. The question that had been raised was, not whether the system had worked well, but whether the House had not gone beyond its power in allowing Referees to do that which it had no right to allow them to—that of taking part in making Acts of Parliament affecting the property of Her Majesty's subjects. He thought that his hon. Friend had very properly brought the subject before the House, and that as it had been raised, it could not be allowed to go to sleep.


confessed he was much surprised to hear about a year ago that the Referees did vote, as it had never occurred to him to see a Referee vote. As the hon. Member for Swansea (Mr. Dillwyn) had remarked, it was absolutely necessary that, the question having once been raised, must be settled. The House, in so doing, would not be throwing any discredit on what had been done in past years, if it called in question the powers of the Referees. The point was, whether the House was right in giving them those powers, and not whether the Referees had done wrong. There was no shadow of imputation upon the Referees, and, indeed, they deserved all the credit which had been given to them by his hon. Friend the Chairman of Ways and Means. He should have liked to see the Motion in a very different form, but that was hardly worth while dwelling upon. In his judgment it would be well if a very strong Committee were appointed to investigate this matter. It must be settled at once, for the power of the Referees might be questioned from without, and then the House would be placed in a worse position than it occupied at present.


said, he should have been unwilling to concur in the present Motion, if his doing so were considered to indicate the slightest dissatisfaction with the was in which the Referees had discharged their duties; but the legality or "constitutionality" of the arrangement having been now disputed, it ought to be decided.


said, it appeared to him that after the speech of his hon. Friend the Chairman of Ways and Means, the House had better endeavour to modify the terms in which it was proposed to appoint this Committee. His hon. Friend had pointed out with great force that the functions of the Referees could not be separated. In his (Mr. Dodson's) opinion, the best course would be for the hon. Member for Glasgow to withdraw the present Motion, and substitute for it a new one, for an inquiry into the working of the system of Referees. He would suggest that the Amendment should be confined to the appointment of a Committee "to inquire into the position of those Officers of the House called Referees."


said, he preferred his own Amendment, as that suggested did not raise the Constitutional point.


said, he also preferred the Amendment of the hon. Member for Glasgow to that proposed by the right hon. Gentleman the Member for Chester. The Bill referred to by the hon. Member for Glasgow as having been read a second time in the House was altered in Committee, in which the Referees took part, and when it came back for the third reading, it was not the Bill the House agreed to on the second reading. It was necessary, on Constitutional grounds, that some alterations should take place.

Question, "That the words proposed to be left out stand part of the Question," put, and ngatived.

Words added.

Main Question, as amended, put, and agreed to. Ordered, That a Select Committee be appointed to inquire and report on the position of the Referees of the House on Private Bills, and particularly as to the legality and expediency of allowing the Referees the same power of voting on a Private Bill Committee as a Member of Parliament regularly elected by a constituency.