Lords Sitting of 31 March 1868

MINUTES.
PUBLIC BILLS—First Reading—Marine Mutiny*; Mutiny*; Inclosure* (61).
Second Reading — (£6,000,000) Consolidated Fund*; London Coal and Wine Duties Continuance* (59).
Committee—Indian Railway Companies* (63).
Third Reading—Railways (Extension of Time)* (36).

EDUCATION—ANSWER TO ADDRESS.
The QUEEN'S Answer to the Address of the 23rd Instant, reported.
BUSINESS OF THE HOUSE—REPORT OF SELECT COMMITTEE.

  RESOLUTION.
  THE EARL OF MALMESBURY, in calling attention to the Report of the Select Committee on "the Business of the House," said, their Lordships would recollect that last year a noble Earl (the Earl of Shaftesbury) brought under their consideration the necessity of appointing a Select Committee to investigate two or three points of some importance with reference to carrying on the Business of the House in an improved form. The first point to which the Committee directed its attention was whether the House ought to meet at an earlier hour than it now did; but, on consideration, it was found that it would be very inconvenient and unfair to the Lord Chancellor, who probably had been sitting all the morning for six hours hearing appeals, to call upon him at once to take his place on the Woolsack and enter upon the Public Business of the House without any rest or any interval whatever. The Committee had, therefore, decided not to recommend any change in the present arrangement in that respect. The question of the use of proxies, which had lately attracted some notice, next engaged the Committee's attention. The privilege enjoyed by Peers, of being represented in the House by

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  proxies when unable to attend personally, was a very ancient and historical one, it had become prescriptive, and belonged to the Estate of the Peerage in the same way as the privilege of sending their proxies to the other House belonged to the Estate of the Commons—for the Members of the other House were in reality the proxies of the Estate of the Commons. In the primæval days when our Constitution originated, the Estates of the Realm were three, or, as some said, two. First, there was the Church, which was represented by the Archbishops and Bishops, and next the lay Peers. Those two Estates, not being very numerous, could easily meet under the same roof. But of course that was not the case with the Commons, who were too multitudinous to assemble in one place, and they according sent to Parliament their representatives, or, in other words, their proxies. No doubt, then, the Committee had stated correctly that it was a privilege inherent in the Peers to send their proxies to that House in the same way as the Commons sent the proxies of their Estate to the House of Commons. The Committee, however, considered whether any change should be made in regard to that practice. It was clear that the privilege of the Peers to use proxies could only be put an end to by Act of Parliament; but there were abundant precedents to show that the House itself could, by its own Orders, regulate the mode of exercising the privilege. For instance, in the reign of Charles II, on an occasion when proxies were used, the Duke of Buckingham, who was not very scrupulous, brought more than twenty proxies in his pocket, and an Order was then made that no Peer should hold more than two proxies. It would be seen, moreover, by the Report of the Select Committee, that no Peer could hold more than two proxies; that they could not be used in Committee, nor in judicial proceedings; and that they must be entered before three o'clock of the day on which they were to be used. These things showed that the House could by its own Orders, regulate the use of proxies. The inconvenience attending the use of proxies was much discussed in the Select Committee; and although there was some difference of opinion as to how the privilege should be dealt with, it was thought that their Lordships' House would be more popular, and would enjoy more confidence with the country in respect to its decisions, if that privilege were waived,
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  inasmuch as those who were not present at the debates were not supposed to have a full knowledge of the points on which they would have to vote. On the other hand, there were many Members of their Lordships' House who, though prevented from being present in the House by illness or through employment under the Crown, were yet perfectly cognizant of what was going on there, and as capable of giving an opinion on subjects brought before Parliament, as if they were present and heard the debates. Such a case it would be easy to find at the present moment in the late Prime Minister, whom nobody could say was not as capable of giving his opinion on a political question as if he were then sitting in that House. The same remark might apply to some of our Ambassadors at Foreign Courts. The Committee, however, though divided in opinion, decided that, on the whole, it would be preferable to put an end to the use of proxies, and that an Order of the House should be adopted to that effect. They further recommended that, to prevent that Order from being lightly suspended, twice the usual length of notice should be given of any Motion for its suspension. The Committee also recommended that Notices of Questions should be placed on the Minutes and not given privately, as was now often done; but, at the same time, they did not propose to prevent Questions as to sudden or pressing affairs being put to Ministers without notice. "With respect to the appointment of Committees on Private Bills, the Select Committee recommended that the Committee of Selection should exercise its discretion as to calling upon Peers to serve, although they might be absent from the House.
  Moved, "To agree to the Report of the Select Committee on Business of the House."—(The Lord Privy Seal.)
  THE EARL OF CARNARVONsaid, that his noble Friend's argument went in one way and his vote in another, for he (the Lord Privy Seal) argued in favour of proxies, while he concluded by asking their Lordships to vote their abandonment. There would not, he thought, be much difference of opinion among their Lordships on this subject. His noble Friend said the Committee had come to a resolution to abandon proxies, because the use of them was not popular out-of-doors. But his impression was that the feeling of the Committee had so not much reference to the question of

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  their being popular or not as that proxies were a source of weakness rather than strength, and that they were a form of proceeding that could never be used in any circumstances of real difficulty or emergency. It would be impossible for their Lordships to pass any important measure simply and solely by the votes of the absentees — as impossible as for the lay Lords to interfere with the judicial proceedings of the House. That was not a time when they should lean upon fictitious support, and the Committee had therefore, in his opinion, wisely determined to abolish the use of proxies. The whole character and use of proxies had undergone a great change. Formerly proxies could not be used except under Royal licence, which was granted to Peers who were absent engaged in the discharge of high and important State duties. Now they did not depend on the Royal consent; but were exercised as the privilege of individual Peers, who used them as they thought best for their own convenience. In the same way the difficulties of communication between the different parts of the kingdom were another ground on which proxies might have been justified in other days. It appeared to him, however, that all the reasons that formerly existed in favour of the use of proxies had disappeared. He should perhaps have preferred to see proxies more definitely abandoned; but since, if the present Motion was carried, their Lordships could never revert to the use of them, he for one should be quite content to accept the Motion. There was another matter which had occupied the attention of the Committee, as it had also excited a good deal of attention out-of-doors—namely, the numbers of Peers present who were supposed to be necessary for the transaction of Business. It had been said that five or six Peers often sat to pass or reject measures of the utmost importance. He had attended that House as often as almost anyone, and he thought he might safely say that the number of Peers present at the thinnest time of attendance was on any important question rarely below twenty. If so a quorum probably ought not to be less than twenty, and he hardly saw that any great practical importance would be derived from establishing a quorum unless they fixed the number at, or nearly at, forty, the same as the House of Commons. The attendance upon their Lordships' House varied much; but he did not believe that it was
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  an exaggerated statement if he said that the average attendance before Easter was between sixty and seventy, and that after Easter it was considerably more. A certain number of Peers no doubt failed altogether to attend, some from age and others from illness. Others could not plead equally valid causes of absence. Perhaps their absence did not matter so much as far as general legislation was concerned; but the House had a right to complain of a want of proper attendance so far as Private Bill legislation was concerned. His noble Friend the Chairman of Committees was often placed in an invidious position in being obliged to go about canvassing their Lordships for Peers to sit on Private Bill Committees. The Peers also who regularly attended had a right to complain on this score, because they were called upon to take more than their fair share of Committee work. The noble Earl (Earl Granville) proposed in the Committee that the House should adopt a system similar to that in the House of Commons, where a circular letter was sent round to every Member who was expected to take part in Private Business, asking him at what period of the Session his attendance would be most convenient to himself. It appeared from evidence that this had answered very well in the House of Commons, and the noble Earl proposed the adoption of a similar course. It was agreed to; but at a subsequent meeting the paragraph was either struck out or expressed in a different and ambiguous sense. And on this point he must observe that the Minutes of the Committee were reported in a most unsatisfactory and confused manner, and it was difficult for even those who were present to discriminate the precise course of proceeding. With respect to their Lordships' hour of meeting, the Committee had at first decided in favour of meeting at the hour of a quarter past four, and the Lord Chancellor, then on the Woolsack, stated that this hour would not be inconvenient to him. Subsequently that decision was reversed by a majority of 1. He did not complain of this; the Committee were very nearly equally divided, and though the re-consideration of the question was brought on at an inconvenient time when the attendance of some Peers was impossible, there was no surprise; but he greatly regretted that the first decision had not been adhered to, as he believed the change would have been advantageous. He, for one, could not consent to accept

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  the Resolution with regard to the hour of meeting as final, and he had the authority of Lord Shaftesbury, who first brought the subject forward, and had made it peculiarly his own, for saying that he attached so much importance to the change of hour that after Easter, he would give the House an opportunity of re-considering what he deemed to be the unfortunate decision of the Committee.
  THE EARL OF ELLENBOROUGHsaid, he thought the best course would have been to propose the adoption of the recommendation of the Committee seriatim.
  LORD REDESDALEsaid, that although he did not see the necessity of some of the changes proposed, he was willing to accept the conclusions of the Committee. Some of their recommendations—for instance, the retention of the present hour of meeting—did not require formal adoption. He did not think it was expedient to make any change in the nomination of Committees for Private Business, for he believed the present system worked satisfactorily. The Committee had suggested that Peers not in attendance in the House should be nominated on such Committees, and perhaps on some occasions it might be desirable to exercise greater pressure than hitherto in this direction. As to the time of assembling, the Committee in the first instance decided by a majority of 1 in favour of meeting at half-past four; one of the Members, however, who held a contrary opinion, was accidentally absent, and on the question being re-considered, there was a majority of 1 against any alteration. For his own part, he could see no advantage in meeting earlier, and it would, moreover, be inconvenient to the noble and learned Lord on the Woolsack, as also to Peers engaged on Committees. With respect to proxies, he thought the prejudice against them unreasonable, and that the system was a more sensible one than that which would necessarily be substituted—namely, pairing, as was done in the House of Commons. At a late period of the year an announcement was often made that two Members of the other House had paired for the remainder of the Session; yet, in many instances, those Gentlemen might have voted on the same side. It was surely better for an absent Peer to intrust a proxy to a person in whom he reposed confidence, so that his vote might not be lost on any important occasion. Since, however, the majority of the Committee were opposed to the use of
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  proxies, he should not oppose the Resolution.
  LORD LYVEDENsaid, although he would admit that something might be said in favour of proxies, public opinion was so decidedly adverse to them that their Lordships would do well to remove the misapprehensions to which they gave rise by abandoning the use of them. Many persons supposed that proxies might be tendered on any occasion, whether Peers were present or not, and that the Ministry of the day held a great number, which they could use at any time. The public would be disabused of these notions were proxies discontinued; and as they were seldom resorted to, the change was an advisable one. The recommendation of the Committee, that Questions should not be put without Notice, seemed to him a very good one; for a Question was sometimes put shortly after five o'clock, when Peers who would have been interested in the subject had not arrived, and only the Ministers were previously acquainted with its object. Moreover, if Notice were given, and if — as often happened — the Question gave rise to discussion, noble Lords would have the opportunity of directing their attention to the matter beforehand. As to the nomination by the Committee of Selection of absent Peers, he thought it would be well to adopt a distinct Resolution on the subject, as this would give it more weight. He hoped that, on a future occasion, the noble Earl the Lord Privy Seal would propose Resolutions carrying into effect those recommendations of the Committee which he wished to be adopted.
  EARL STANHOPEsaid, he gave credit to the noble Lord the Chairman of Committees for consistency, for he had both in the Committee and on this occasion objected to the discontinuance of proxies; but while he (Earl Stanhope) admitted his consistency, he was certainly not convinced by his arguments. His noble Friend had maintained the system of proxies chiefly on the ground that the system of pairing was equally open to exception. But there was this important difference—that the addition of a certain number of pairs to both the majority and the minority made no difference in the result, whereas the use of proxies might lead to a decision the reverse of that which would otherwise have been given. Indeed, this happened on the last occasion when proxies were used—namely, on the Motion of the noble Earl (the Earl of

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  Malmesbury) himself on the affairs of Denmark and Germany. The majority of the Peers present were satisfied with the defence of the Government of the day; but proxies being called for—most unwisely, in his judgment—by the Prime Minister of that day, the majority of the Peers absent decided the division against the Government. It was enough of itself to discredit the system of proxies that when a noble Earl (Earl Russell) was put on his personal defence, and when that defence was deemed satisfactory to the majority of those who heard it, an appeal should be made by another noble Earl (the Earl of Derby) to those Peers who had not heard it, and could not hear it. Passing from the subject of proxies, he (Earl Stanhope) did not think that any Resolution should now be passed confirming the recommendation of the Committee, and approving the present hour of meeting. They were told by his noble Friend near him (the Earl of Carnarvon) that Lord Shaftesbury, who was now absent from town, intended to submit a Resolution to the effect that the House should meet at a quarter past four instead of five. Assuming, for the sake of argument, that Lord Shaftesbury would carry his proposition, would not their Lordships stultify themselves if they were to come to a vote on the subject now? He thought it would be well that they should not at that moment adopt any Resolution by which their future discretion might be fettered. He wished to add a word of merely verbal criticism. As he had already stated, he fully approved the proposed Standing Order with respect to proxies. The noble Earl had, however, taken the very words of the Committee, and embodied them in the Standing Order—
  "That the Practice of calling for Proxies on a Division should be discontinued, and, to prevent the Order being lightly suspended, that Twice the usual length of Notice shall be given of any Motion for its Suspension."
  Now, when a Committee made a Report they properly gave reasons for their conclusions; but when the House passed an Order it was not its practice to do so. He would, therefore, take the liberty at the proper time to move the omission of the words "to prevent this Order being lightly suspended."
  EARL DE GREYagreed with the noble Lord the Chairman of Committees, that there was no necessity for their Lordships to give a formal sanction to most of the recommendations of the Committee, except
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  that relating to the discontinuance of proxies. But with regard to attendance on Private Business, it appeared to him absolutely necessary to have a definite Resolution of the House. It was very desirable that the House should pass a Resolution calling on those Peers who were in the habit of absenting themselves from Private Bill Committees to attend to their duties. Speaking for himself, and, as far as he could judge, for many other Members of the Committee, a strong feeling was entertained by many that it was extremely desirable that some measure should be taken to assimilate the practice of their Lordships' House to that of the other House of Parliament on this subject. He trusted the noble Earl opposite would take the matter into consideration, and propose a definite Resolution.
  THE MARQUESS OF BATHsaid, that he was in favour of doing away with the practice of using proxies, for the simple reason that there would be great practical difficulties in employing them in those cases in which alone there would be any need of them. With regard to the 7th Paragraph—he spoke with great deference to the noble Lord the Chairman of Committees—but he thought the Committee of Selection had the power to place on Private Bill Committees any Peer, whether in London or not, and all that would be required would be a strong opinion on the part of the House to enable them to exercise that power with effect. There was a case in which a noble Lord had been committed to the custody of the Usher of the Black Rod for not having attended a Committee to which he had been appointed. There could be no question, therefore, as to the power which the Committee of Selection possessed. With regard to the alteration of the hour of meeting, it was true that it was carried in the Select Committee by a narrow majority in the first instance; but noble Lords who complained that the decision had been reversed would recollect that another important Committee was sitting at the time, upon which he and Lord Stradbroke were serving, and that if they had been able to go from one Committee Room to another they would have voted against any change. The noble Earl (the Earl of Carnarvon) had said that Lord Shaftesbury was about coming home, and that he intended to propose that the hour of meeting should be changed. But were the House of Lords to be dependent on Lord Shaftesbury's presence or absence

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  before expressing an opinion on a matter of public business? Lord Shaftesbury was a very great man, but he was scarcely so great a man as all that.
  LORD STANLEY OF ALDERLEYsaid, he saw no necessity for retaining the system of the use of proxies. As for compelling the attendance of Peers on Committees, that might be done; but it would not be so easy to secure the proper discharge of the duties of the Committees. One man might lead a horse to the water, but twenty could not force him to drink. He wished to call attention to the inconvenient mode in which these Reports were drawn up. With regard to different paragraphs it was extremely difficult to make out what was done. He hoped, therefore, directions would be given that the draught Report should appear with the proceedings.
  THE MARQUESS OF CLANRICARDEsaid, with regard to putting Questions without Notice, he had sat long in the House, and he could say that great public convenience had sometimes arisen from Peers being permitted to put Questions to Ministers of which they had given either private notice or no notice, and he hoped their Lordships would not altogether put an end to that practice. With regard to the attendance of Peers on Private Bill Committees, he thought it would be unwise to come to any Resolution that it might be found difficult to enforce. It should, moreover, be remembered that it was the House that appointed the Committees, and any noble Lord who failed to attend must render his account, not to the five Lords who formed the Committee of Selection, but to the House. He was not aware that there was any necessity for adopting any system of compulsory attendance, for he understood there was no difficulty in securing a sufficient number of Peers for the transaction of business. He thought, however, they might adopt the recommendation of the Committee on this subject.
  THE DUKE OF CLEVELANDagreed with the noble Marquess (the Marquess of Clanricarde) that it might be found highly inconvenient if it should be absolutely prohibited that Questions should be put without Notice; but then they ought to adopt the practice of the House of Commons and prevent discussion being raised upon them. There might be not only great inconvenience but also great impropriety if the system of putting Questions without Notice were used for the purpose of raising discussions which nobody could have anticipated.
  EARL RUSSELLagreed with the noble Duke that there was a great difference between a noble Lord putting without Notice a Question to which he merely wished for an answer, and a Question which led to a debate. There was an inconvenience in the latter coming on without Notice; but it seemed to him better not to adopt any Resolution on the subject. He thought they should confine themselves on that occasion to adopting the Resolution with regard to proxies.
  THE EARL OF HARROWBYsaid, their Lordships had not too many opportunities of showing that interest in public affairs which it was their privilege to show, and it was undesirable to diminish the importance of this House by diminishing the number of those opportunities; and there was something gained by allowing Members of that House to do things irregularly which would be attended with great inconvenience if done in the House of Commons. Their Lordships were a smaller body than the House of Commons, and there was much less pressure on their time, and therefore he thought they might be allowed a large latitude in the transaction of their business. He thought that every facility should be given for raising questions in this House, and that they should trust to the good sense of noble Lords not to abuse the privilege.
  LORD REDESDALEthought that a Resolution might be too stringent in its application; but the Report laid before the House might be agreed to as a guide and direction—for it went no further. He repeated his opinion that the system of proxies was infinitely more sensible than the system of pairing; and it was a mistake to suppose that the result of a division could not be affected by the latter practice. He had known cases in which a Member having returned before the time of his pair had expired, was obliged to leave the House on a division, even when he believed that his pair, if present, would have gone into the same Lobby.
  THE EARL OF MALMESBURYsaid, the general wish of their Lordships seemed to be that the Report of the Committee should be put in a more substantive form, and he would therefore undertake, on a future day, to move a series of Resolutions embodying it. At the same time, he should ask their Lordships to adopt at once the Standing Order with reference to proxies.
  Motion (by Leave of the House) withdrawn.

  PROXIES—RESOLUTION.
  Resolved, That the following Order be added to the Roll of Standing Orders:
  "Standing Order XXXII a. Ordered, That the Practice of calling for Proxies on a Division shall be discontinued, and that Two Days' Notice be given of any Motion for the Suspension of this Standing Order."
  House adjourned at half past Six o'clock, to Thursday next, half past Ten o'clock.