RESOLUTION. (Hansard, 27 March 1876)

§ MR. MOWBRAY,
in rising to call the attention of the House to the Report of the Select Committee on Referees, and to move— That it be an Instruction to Committees on Private Bills, that Referees, appointed to such 614 Committees, may take part in all the proceedings thereof, but without the power of voting, said, he had to express his regret that his right hon. Friend the Member for the University of Cambridge (Mr. Spencer Walpole) was prevented from attending in the House that evening. In consequence of his absence, he (Mr. Mowbray) had to undertake the duty he was now fulfilling, and in doing so, he would remind hon. Gentlemen that on the 18th February last the House learnt for the first time, somewhat to its surprise, that the Referees upon Private Bills, who were not Members of the House, were shown by the hon. Member for Glasgow (Mr. Anderson) to have been in the habit of exercising the right of voting upon Private Bill Committees. He was far from intending to blame the gentlemen who had exercised a right which they believed they possessed, and which appeared to result from the legitimate construction to be put on the Standing Orders of the House, but the majority of the House were ignorant of the fact that the Referees voted as well as sat in the Committees to which they were nominated. Under those circumstances, and upon the Motion of the hon. Member for Glasgow, a Committee was appointed to inquire and report on the position of the Referees of the House with reference to Private Bill legislation, and as to the legality and expediency of allowing them the same power of voting upon Private Bills as was enjoyed by Members of Parliament regularly elected by constituencies. The Committee had met, and he would now shortly call attention both to the statements contained in its Report, and to the conclusions which the Committee drew. The Committee were materially assisted by the evidence of two most able and experienced witnesses. One was the very able and learned Clerk of the House of Commons (Sir Erskine May), who had been so long regarded as a great authority and exponent of Parliamentary law and usage, and the other was Lord Winmarleigh, better known, perhaps, as Colonel Wilson-Patten, who could say what no other man could say, that he had sat in this House for upwards of 40 years, and, with the exception of one year, when he held office under the Crown, he had been a Member of the Standing Orders Committee for 40 years, and for a large portion of the time he had been Chairman of the Committee. Colonel 615 Wilson-Patten was himself the originator of the Referees, who was first appointed in 1864, and who, in 1865, were constituted a Court of Referees for questions of locus standi, which tribunal was in existence at the present day. With regard to that portion of the duties of the Referees, the Select Committee proposed to make no change whatever. The success of the experiment of 1864 was so favourably regarded by that House and by Parliament that in 1867 Parliament passed a Bill by which the Court of Referees was empowered to administer oaths just the same as Committees on Private Bills. In 1868 his right hon. Friend the Member for Chester (Mr. Dodson) proposed considerably to extend the powers of Referees, and at that time Lord Hotham, then Chairman of the Committee on Standing Orders, said he had consulted that Committee on the subject, and he moved and carried a Motion by which it was resolved that the Committee of Selection might refer any opposed Private Bill, or any group of such Bills, to a Committee consisting of four Members and a Referee. Standing Orders were made from time to time in pursuance of that Motion, Lord Hotham in his speech spoke of every Committee having the advantage of the presence and assistance of a Referee, "who should have a vote, "but neither in his Motion as carried in the House, nor in the Standing Orders, was any mention made of the power of voting. It further appeared from extracts from the evidence given before the Committee that, in the opinion of authoritative witnesses, the assumed right of the Referees to vote in Committee on Private Bills was not according to Parliamentary usage, but was a distinct departure from it. Sir Erskine May declared that only those who were Members of the House should vote, and that learned gentleman also stated, in answer to a Question— Having fully considered all these points, if I may venture to offer an opinion on the whole case, I think that in 1868 the House made a slight slip upon the advice of Lord Hotham. He also added that the House had unquestionable power to regulate all its proceedings on such matters and in reference to the duties which it called upon its officers to perform, and that it could not do an illegal act on such points in such a way that any action could lie against it in any Court of Law; but, on 616 the other hand, he declared that what had been done in the present matter was a clear departure from Parliamentary usage and Parliamentary principle. He (Mr. Mowbray) would not trouble the House further with the evidence given before the Committee; but he wished to point out that the unanimous conclusion of the Committee was, that it was inconsistent with ancient Parliamentary usage and opposed to constitutional principles to allow the Referees the right of voting; and therefore the Committee recommended that instructions should be given that the Referees should have power to take part in all proceedings of Private Bill Committees except in the exercise of the power of voting. That was the Report of a very large Committee, consisting of 21 Members, men of great experience in that House. In conclusion, he would move the Resolution, confirmatory of that Report.

§ MR. RAIKES
said, he joined in the regret expressed by his right hon. Friend relative to the unavoidable absence of the right hon. Gentleman the Member for the University of Cambridge. At the same time, he did not think the course now proposed was the most convenient mode of giving expression to the decision at which the Select Committee had arrived. The Committee had considered their Report with exceedingly great care, and had made a very positive and explicit declaration; but he thought it would have been better if the proposal now made had been a proposal to alter the Standing Orders, instead of merely proceeding by formal Instruction to establish a practice which might hereafter be stigmatized as another slip made by this House. If a change were made, it would be better to embody it in the Standing Orders. He thought that would afford a more convenient opportunity for considering various other questions raised in the matter which could not be disposed of by the mere adoption of an Instruction of this sort. Whenever the question was again before the House, it would be his duty to invite the consideration of Parliament to the propriety of returning 617 to the old number of Members upon a Private Bill Committee, and, instead of constituting such Committees as at present of four Members, to constitute them of live. He declared now, as he had declared when the question was before the House on a previous occasion, that he was not wedded to the desirability of keeping up the present mode of reference; he only submitted to the House that he thought the system had worked well, and that it was not perhaps desirable, under the peculiar circumstances of the case, and under the form of the Motion originally submitted by the hon. Member for Glasgow, to change a system which he thought had worked well. But he quite admitted on that previous occasion that if the question were gone into, the vote of the Referees would be found to be of so anomalous a character that it would be impossible to sustain it. He had no opposition to offer to the present Motion; but he presumed that when the right hon. Gentleman returned to the House, he would move an alteration of the Standing Orders to meet the case, and that would be the best course to adopt.

§ SIR EDWARD COLEBROOKE
said, he wished to make one remark as to the decision to which the Select Committee had arrived, and he was the more anxious to do that, because the right hon. Gentleman who had made the Motion now before the House had unconsciously fallen into an error in stating that the evidence of two witnesses—Sir Erskine May and Lord Winmarleigh—had settled the question. No doubt, the Committee had followed the opinion given on the high authority of Sir Erskine May; but with regard to the evidence of Lord Winmarleigh, it would be in the recollection of Members of the Committee that, when the question was put to him as a matter of principle or expediency, he waived his opinion in consideration of the opinion already given by Sir Erskine May. He (Sir Edward Colebrooke) thought it right to call attention to that fact, because otherwise a wrong impression might get abroad. He could not agree with the strong opinion given by the Committee, that allowing votes to Referees was a violation of the Constitution, for it should always be borne in mind that, on the same evidence on which the Committee relied, the authority of the House was 618 pronounced so high that it would be possible for it to suppress Private Bill Committees altogether, and refer all such measures to the reports of gentlemen who were not Members of the House.

§ MR. ANDERSON
said, he had no wish to prolong the debate upon the question, for no hon. Member seemed inclined to oppose the Motion before the House. He would only say that he was himself perfectly content with the point brought before the House as being proved by so high an authority as Sir Erskine May that it was unconstitutional for this House to do what was done on a certain occasion in 1868, when, in the words of that learned gentleman, the House made a slight slip. The Committee had accordingly reported that the House ought to retrace the step. He took it from what had fallen from the hon. Gentleman the Chairman of Committees (Mr. Raikes) that this Resolution would be considered by the Standing Orders Committee, and that it would be embodied in a change of the Standing Orders. He perfectly agreed with what had been said as to the propriety of returning to Committees of five Members, for he thought it was highly desirable that they should get rid of the casting vote of the Chairman on small Committees, and should return to the former number of Members upon a Committee, but that was not the subject which was now before the House. He cordially supported the Motion of the right hon. Gentleman opposite.