Lords Sitting of 6 May 1873

MINUTES.
SELECT COMMITTEE—Railway &c. (Transfer and Amalgamation) Bills, The Viscount Hardinge added to the Joint Committee in the place of The Earl Grey.
PUBLIC BILLS—First Reading—Marriages (Ireland) Legalization* (94).
Second Reading—Railway and Canal Traffic (84); Land Drainage Provisional Order* (70).
Committee—Report—East India Stock Dividend Redemption* (67); Fulford Chapel Marriages Legalization* (82).

NEW PEERS.
Edward Berkeley, Baron Portman, having been created Viscount Portman of Bryanston in the county of Dorset—Was (in the usual manner) introduced.
Sir Robert Alexander Shafto Adair, Baronet, having been created Baron Waveney of South Elmham in the county of Suffolk—Was (in the usual manner) introduced.

RAILWAY AND CANAL TRAFFIC BILL.
(The Lord President).

(No. 84.) SECOND READING.
THE MARQUESS OF RIPON,in moving that the Bill be now read the second time, said, their Lordships would recollect that last year various Companies came before Parliament with Bills for large schemes of amalgamation. One of those schemes,

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which attracted a very considerable amount of attention, was that for the amalgamation of the London and North-Western with the London, Lancashire, and Yorkshire system. That and other similar measures seemed of such great importance, and involved such very large interests, that, at the suggestion of the Board of Trade, Parliament thought right to appoint a Joint Committee, composed of Members of both Houses. The Committee devoted itself very sedulously to its work. It met for the first time in March, and continued its sittings till the 2nd of August, when it made its Report. Obviously it was impossible for the Government to propose to Parliament any action on the Report at that period of the Session; and consequently they had been unable to bring forward any legislation on the subject till the present Session. When the Joint Committee was appointed it proceeded, in the first instance, to consider which course ought to be adopted with respect to such very large schemes of amalgamation as were promoted last Session; and having fully considered that question, the noble Lords and hon. Gentlemen composing it came to the conclusion that it was impossible to adopt any general rule with respect to proposals for amalgamation. It was proved that, despite the strong feeling against such proposals which had been expressed by a large portion of the public, amalgamation had been, practically, unchecked; that it had gone on to such an extent that there was very little competition indeed between the Railway Companies of this country—there was scarcely any at all in respect of charges to the public, but there was some in respect of facilities for traffic, though there was no security that this would continue. No doubt, as regarded public conveyance there was a wholesome competition of another kind—namely, between conveyance by land and conveyance by sea. That competition was of a very effective kind, and ought not to be put an end to. There was also a certain amount of competition as between railways and canals; and it would appear the value of this competition to the public at large had not met with sufficiently careful consideration by the Committees which had had to deal with Bills for the amalgamation of railway and canal properties. The Joint Committee came to the conclusion that it
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would be very difficult to maintain by Act of Parliament an effective competition between railways in cases in which the Companies did not feel that such competition was for their own interests; but, at the same time, it arrived at the conviction that, as a general principle, all amalgamation schemes ought to be made subjects of special and careful consideration, and that Bills for amalgamation ought to be submitted to a Joint Committee of both Houses. That recommendation had commended itself to Parliament, and a Joint Committee, which was about to commence its labours, had just been appointed. But the Committee of last year, going further than that, thought it was not possible in the interests of the public to rest satisfied with that single proposal. It appeared to the Committee that the public had a right to require greater security that schemes should not be brought forward and adopted which would place in the hands of Railway Companies an undue control over the traffic of the country. Turning its attention to the existing state of the law, the Committee examined the Act of 1854 generally known as Mr. Cardwell's Act. The Committee came to the conclusion that the principle on which that Act was framed was sound and wise, and that if it had failed—as admittedly it had—in producing all the benefits which Parliament had expected to follow from it, that circumstance was to be attributed rather to the machinery than to any defect in the principle of the Bill. When the Bill itself was before their Lordships' House its machinery was subjected to much criticism, and Lord Campbell pointed out that the Court of Common Pleas was not a tribunal well suited to give effect to the provisions of the measure. The noble and learned Lord said—
"That was not a code which the Judges could interpret; it left them altogether to exercise their discretion as to what they might deem reasonable. They were, besides, to form a just judgment on all matters of complaint relating to railway management that might come before them; and they were to lay down a code of regulations for the government of railway companies. The Judges, and himself among them, felt themselves incompetent to decide on these matters. He had spent a great part of his life in studying the laws of his country; but he confessed he was wholly unacquainted with railway management, as well as the transit of goods by boats; he knew not how to determine what was a reasonable fare, what was undue delay, or

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within what time trucks and boats should be returned. He believed he had correctly represented the feelings of all his learned brethren on the bench in reference to this Bill, with one exception, whom he mentioned with honour, respect, and reverence—he meant the learned Chief Justice of the Court of Common Pleas, than whom there was no Judge on the bench more zealous or more efficient; and that learned Judge, while he agreed in thinking that these were not judicial duties, had no doubt that his brethren on the bench would be able to work the Bill properly.…. They should have a lay tribunal for the decision of questions of the nature contemplated by the Bill, and not one composed of the Judges."—[3 Hansard, cxxxiii. 1137.]
The opinion which Lord Campbell expressed before the Bill passed had been fully verified since the Bill became law; and under those circumstances the Joint Committee were of opinion that it would be advisable to adopt the main provisions of the Act of 1854, and provide a better machinery for carrying them into operation. The Bill which was now before their Lordships gave effect to the recommendations of the Committee. It provided, in the first place, for the appointment of a Commission, composed of three persons possessed of special qualifications for the office of Commissioner under this Bill. The three Commissioners were to be appointed by the Government, and would be removable by the Lord Chancellor, but only for good and sufficient cause;—so that they would be completely independent of the Executive. The Commissioners would have to perform the duties which under the Act of 1854 were thrown upon the Court of Common Pleas. The Joint Committee of last year having gone into the subject came to the conclusion that the existing system of railway arbitration was very expensive and very unsatisfactory. All questions submitted to that arbitration would, after the passing of this Bill, be submitted to the Commissioners, who would settle them by arbitration. The question of "through rates" engaged the attention of the Joint Committee of last year, and in addition to incorporating important provisions of the Act of 1854, the 10th section provided that—

"1. The Company requiring the traffic to be forwarded shall give written notice of the proposed through rate to each forwarding Company, stating both its amount and its apportionment, and the route by which traffic is proposed to be forwarded:

2. Each forwarding Company shall, within the prescribed period after the receipt of such
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notice, by written notice inform the Company requiring the traffic to be forwarded whether they agree to the rate and route; and, if they object to either, the grounds of the objection;

3. If at the expiration of the prescribed period no such objection has been sent by any forwarding Company, the rate shall come into operation at such expiration:

4. If an objection to the rate or route has been sent within the prescribed period, the matter shall be referred to the Commissioners for their decision."

But the interests of the public having been so far protected, the 10th Section contained a further provision, which was only reasonable as affording a fair protection to Railway Companies. The section went on to provide that—
"In no case shall it be lawful for the Commissioners to compel any Company to accept lower mileage rates than the mileage rates which such Company may for the time being legally be charging for like traffic on any other line of communication between the same points, being the points of departure and arrival of the through route."
Their Lordships were, no doubt, aware of the obstructions to through traffic caused by what were known as "bar tolls." The provisions in this Bill having reference to through rates were based on the principle that, looking at what Parliament had done for Railway Companies, it was but reasonable that those Companies should grant reasonable through rates over their systems. On this point the Joint Committee had expressed a very distinct opinion. In its 16th recommendation the Committee stated—
"The Railway and Canal Traffic Act ought to be explained by enabling every Railway Company to make through rates and fares from or to any station on its own line to or from any station on any other line: the rates to be divided, as a general rule, according to mileage, after allowing for terminals; but with a provision that if any objection be made to the proposed rate or division as unfair, and no agreement can be come to, the Commissioners mentioned below shall, upon the application of any of the Companies interested, decide the matters in dispute."
He had already alluded to the importance of maintaining, as far as possible, the competition on land and water between Railway and Canal Companies. With that view section 14 of the Bill provided that—
"No Railway Company or Canal Company, unless expressly authorized thereto by any Act passed before the passing of this Act, shall, without the sanction of the Commissioners, to be signified in such manner as they may by general order or otherwise direct, enter into any agreement whereby any control over or right to

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interfere in or concerning the traffic carried or rates or tolls levied on any part of a canal is given to the Railway Company, or any persons managing or interested in the management of any railway; and any such agreement made after the commencement of this Act without such sanction shall be void. The Commissioners shall withhold their sanction from any such agreement which is, in their opinion, prejudicial to the interests of the public."
He thought it was clear that the interests of the public would be best served by keeping railways and canals under distinct management. It appeared from evidence taken by the Committee of last year that there had been cases in which Railway Companies in possession of canals had so managed the affairs of the latter as to greatly obstruct the public traffic; with a view of preventing that, Clause 15 of the Bill provided that—
"Every Railway Company owning or having the management of any canal or part of a canal shall at all times keep and maintain such canal or part, and all the reservoirs, works, and conveniences thereto belonging, thoroughly repaired and dredged and in good working condition, and shall preserve the supplies of water to the same, so that the whole of such canal or part may be at all times kept open and navigable for the use of all persons desirous to use and navigate the same without any unnecessary hindrance, interruption, or delay."
He did not know that he need detain their Lordships by stating any other of the provisions of the Bill, as they related rather to matters of detail in the arrangements for carrying out those provisions which he had brought more directly under the notice of their Lordships. He need not remind the House that various suggestions which would be found referred to in the Report were made to the Committee of last year; but the Committee did not think it advisable to make any other recommendations than those contained in its Report. In a matter involving such large interests the safer plan was felt to be to proceed on the basis of existing legislation, extending the provisions of that legislation where they appeared to need extension, and improving the machinery for carrying them into effect where it appeared to need improvement. On that principle the Committee had proceeded; the Bill was based on the recommendation of the Committee, and he submitted the measure to the consideration of their Lordships as one which would tend to the interests of the public at large while doing justice to railway interests.
Moved, "That the Bill be now read 2a." —(The Lord President.)
THE DUKE OF RICHMONDsaid, that having, during the period that he had the honour of being President of the Board of Trade been compelled to look very closely into this question, the experience he then gained had taught him that the subject with which the Bill dealt was an extremely difficult one, and therefore he would not attempt to throw any obstacle in the way of the Government when they were attempting by this Bill to give effect to the recommendations of the Joint Committee which last year went into the whole question with so much care. On the contrary, he would give the noble Marquess all the assistance in his power to pass a measure which might be for the interests of the public and the benefit of the Railway Companies. The noble Marquess had very truly stated that the Joint Committee to which the whole question was referred last year had devoted themselves very assiduously to the important task that had been committed to them, and the Report they presented contained most useful suggestions—indeed, without such a Report it would have been almost impossible to deal with the matter at all. As, therefore, the Committee had devoted such sedulous attention to the subject, he would have found it very difficult under any circumstances to oppose a measure founded on their Report. But he confessed that when he looked at the functions to be discharged by the Commissioners it appeared to him that to some extent the Legislature was taking the administration of the law out of the Courts of Law and placing it in the hands of three Commissioners to be appointed by the Act; and while he admitted that any Commission formed to carry out the provisions of the Bill would be of no use unless its powers were of a wide and extensive character, he thought that Parliament ought to take care that the powers given to those Commissioners were not greater than had ever before been given in this country to individuals, even when associated for a public purpose. The noble Marquess had not stated whether the three Commissioners were to cease altogether from any connection with or interest in railways and canals. Perhaps the noble Marquess thought it was so obvious they should do so that he had not deemed

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it necessary to touch on the point. He observed that the hon. Member for Gloucester (Mr. W. P. Price), who was to be appointed one of the Commissioners, had rather anticipated the decision of their Lordships' House. Feeling confident, perhaps, that the good sense of their Lordships would induce them to pass the Bill, the hon. Gentleman seemed to have already accepted the Chiltern Hundreds, so as to be able to take his new post the moment Her Majesty's Government were in a position to bestow it on him. He thought the hon. Member might better have waited at least until the Bill was read a second time in their Lordships' House; but that was only a matter of taste. He concurred with the noble Marquess that there should be no restrictions to through traffic in the shape of bar tolls, and the Commissioners would be doing a very useful work in preventing the imposition of such restrictions. He hoped also that the Commissioners would discourage attempts by one Company to enter the territory of another; because that brought about only a short competition which soon ended in combination, and he believed the system to be both injurious to the public interests and disastrous to Railway Companies themselves. He hoped the appointment of the Commission would prove more fortunate than a similar attempt made under the 9 & 10 Vict. c. 110, which had been found to work so badly that it was repealed by an Act 14 & 15 Vict., which gave back to the Board of Trade powers which had been taken from that Department by the former Act. As the Commission was to be appointed, and as it was to be hoped that the Commission commanded the confidence of the public and of the railway interests, would it not have been better to refer the schemes of amalgamation now before Parliament to the new tribunal than to the recently appointed Joint Committee of the two Houses? If the Commission were to be capable of dealing with all questions arising in respect of railways a fortiori it ought to be capable of dealing with this subject of amalgamation. He had nothing more to say as to the general scope of the Bill, but there were some points in it which would require amendment, and in respect of certain of these he would perhaps have Amendments to propose hereafter; but to Clause 12 (Pro-
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vision for complaints by public authority in certain cases) he could not omit at once directing the attention of their Lordships. This clause would give such a body as the Metropolitan Board of Works authority to travel over the country and find out what it might consider to be bad management on the part of a Railway Company; and it might then complain to the Commissioners of inconvenience caused by a Railway Company without showing that it was in any way an aggrieved party. It was impossible to leave the provisions of that section so wide and vague as they now were—words must be introduced to modify them. Again, he thought there should be a power of appeal in all cases by persons who found themselves aggrieved by the decisions of the Commissioners. No doubt the Commissioners would be fully competent to deal with questions of fact; but as even in questions of law the Bill allowed no power of appeal from the Commissioners, unless the Commissioners allowed it, that appeared to him to be a strong proposal—especially as only one of the three gentlemen to be appointed Commissioners was required to have any acquaintance with law. He thought the Bill might be much improved by Amendments which could easily be made in Committee, and he would gladly assist in making the measure one which would effect the greatest amount of good for the public generally, and at the same time be as little injurious as possible to that portion of the public which had a pecuniary interest in the railways of the country.
LORD HOUGHTONsaid, that the London and North-Western and the Lancashire and Yorkshire Railway Companies, having extensive traffic arrangements, had thought it advisable to come to Parliament with the view of having those arrangements put on a better footing; but little did the promoters of that amalgamation suppose that their simple application would not only give rise to great delay in the passing of private legislation, but would lead to a proposal which amounted to a revolution of the whole of the relations existing between Railways and the State. If he thought that the grievances of the public against railways were of a very serious and practical character, he would concur with the Government in thinking that such a measure as the one now proposed was

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necessary; but he did not believe it. He was of opinion that those who took the trouble to look into the matter would agree with him in holding that there had not occurred any such lâches on the part of the Railway Companies in their relations towards the people as to call for the creation of any tribunal such as that now proposed to be established. It must be remembered that just in proportion as greater facilities for interference were given by easier and cheaper machinery was encouragement held out to the public to interfere with the management of the great Railway Companies in a manner they had not hitherto been able to do. Hitherto there had been only two parties in the business. The complainant, the public on one side; and the defendant, the Railway Companies who were a portion of the public, on the other side. But when this Bill passed there would be a third party. The Government were assuming a serious position. The complainant would in future make his complaint through a Government agency. That was not the usual arrangement in this country. We had always been shy of bureaucratic arrangements, and therefore he thought the principle of the Bill was one which, in accordance with our usages, Englishmen should regard with some jealousy: and he trusted that this Bill would not be made a precedent for similar interference between the general public and the great commercial enterprises of the country. He did not think, however, that any very great harm or any great good would be clone by this Bill. Great powers would be given to the Commissioners. A Court of Law consisting of one lawyer and two assessors would have very extensive powers of interference with a great commercial interest; but if any Railway Company should think fit to set itself against an order made by the Commissioners, he thought it would be very difficult for the latter to force that Company to conform to their order. As the Bill had passed the other House and was likely to pass their Lordships' House, he would not offer any further opposition to the second reading than the expression to which he had already given utterance; but he could not help feeling that the Commissioners would have a work of such great difficulty to perform that the greatest prudence ought to be exercised in selecting men for the office.
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He begged to add that he did not think there was any objection to the names which had been mentioned in connection with appointments to the office. The Bill had undergone considerable change in the other House. Several portions of it, as it now stood, had emanated from independent Members, and not from Her Majesty's Government. He believed he was humbly enunciating the sentiment of the great Railway Companies of the country when he said that the President of the Board of Trade had heard their representations with great attention and had considerably modified some of the provisions of the Bill in order to meet their objections. He must say that he thought the 12th clause was so objectionable that it ought to be struck out altogether. He hoped the Bill would prove useful, but he feared that its effect would be to induce persons to make useless and unfounded complaints against the management of the great Railway Companies, and thus cause them considerable trouble.
LORD REDESDALEsaid, he quite agreed as to the extreme importance of this measure; but he could not concur with his noble Friend (Lord Houghton) in regarding the tribunal now to be constituted as a Court of Law with one lawyer—he regarded it less as a Court of Law than a Court of Arbitration to determine certain matters of administration, and decide how certain arrangements could be best carried out. Under these circumstances, nothing was of more importance than the selection of the Commissioners. He did not wish to make any comment on the names of those gentlemen who were proposed for the appointment, further than to say this—that one of them—the one appointed for his experience in railway business was, he thought, more deeply committed to party matters in the railway world than was altogether desirable. There was every reason to hope he would act fairly; but at the same time the appointment was one that would hardly be regarded as affording a fair expectation of entire impartiality. It ought to be stipulated that a member of the Commission should have no connection with any railway concern—but it was not so provided by the Bill. No Commissioner ought to hold a single railway security, or else there would be charges made against them which would be injurious

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to them in the execution of their duty. Fancy what might be said if, after a decision in case of a dispute, it turned out that one or two of the Commissioners held shares that would be benefited by that decision. Charges would be made against them—unjustly it might be—but still such charges would damage their character. There ought, therefore, to be a positive enactment that no Commissioner should hold railway securities of any kind. This would be the only way of saving them from imputation. A Railway Commission which existed years ago became utterly useless and died in consequence—and there was no use in having a Commission unless it was to be efficient. He regretted that the question of amalgamation was to be gone into before this Bill was passed, and before it had come into actual operation. The Bill ought to have been passed first, because the larger the Companies were the more difficult would it be to work this measure. Attendance upon the Joint Committee of last year had changed his opinion and made him more adverse to amalgamation. Take the proposal now before Parliament—the amalgamation of the London and North Western with the Lancashire and Yorkshire. The latter ran east and west, and crossed, as it were, the three great lines running north and south—the London and North Western, the Midland, and the Great Northern; and the effect of amalgamation would be to give the London and North Western the north and south traffic now divided among the three lines. This would be a worse arrangement for the people than the present, and it would, if the Companies were not amalgamated, be the work of the Commissioners to control the traffic in the interest of the public. The general result of amalgamation, he now believed, would be to impede rather than improve communication both for passengers and goods. Under Clause 8, which related to differences between Canal and Railway Companies, it appeared that arbitration must be applied for by both parties, and that it could not be resorted to if one of them objected. As to Clause 12, he believed that if the public was to be served, public bodies ought to be allowed to take up matters of public interest; particularly when, as in this case, it was not to be a matter of fancy, but there was to be an actual
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charge of contravening the law. If a complainant was always to be aggrieved, argument upon the point and upon the extent of the grievance would be endless. He hoped the Joint Committee on Amalgamation would consider what would be the effect of the Bill supposing it answered the expectations of its promoters. The Bill ought to accomplish all that was required by amalgamation. The object of that was that by inter-communication between the Companies better service should be rendered to the public. If the Bill was worth anything, it ought to reach the Companies that did not serve the public properly, and compel them to afford the facilities they would afford if they were amalgamated. If the Commissioners did not insure the granting of proper facilities and the carrying out of the intentions with which Parliament had granted compulsory powers to the Companies, the Commissioners would be of little use, and their functions would cease as those of former Commissions had done. He hoped nothing would be done to weaken the small powers given to the Commissioners under this Bill; and, indeed, he should be inclined to extend them rather than leave them as they were.
THE EARL OF DUCIEsaid, his noble Friend who had just sat down had remarked that one of the Commissioners might, perhaps, be unsuited to consider matters that might come before him impartially, because he was deeply committed to a certain course of policy. Now, he (the Earl of Ducie) could not help rising at once to say that it had been his privilege to be acquainted with that hon. Gentleman, the late Member for Gloucester (Mr. W. P. Price) for many years, and he could testify that he was a man of the greatest ability, and utmost probity, and one who would perform his duties with that strict impartiality which so happily distinguished public men in this country in discharge of judicial functions. It was not to be supposed that Mr. Price would be biassed in his duties as a Railway Commissioner by the circumstance of his happening to hold railway securities.
LORD REDESDALEhad no doubt Mr. Price would do so; what he said was the simple fact that this gentleman occupied such a position that numbers of persons would think he could not be an impartial Judge.
THE MARQUESS OF RIPON,in reply, thanked their Lordships for the reception of the measure, and explained, in reference to arbitration, that the most important cases were likely to arise under Clause 7, and that Clause 8 was an enabling clause to meet other cases. It was in the power of the Commissioners to decide what was and what was not a point of law as distinct from a question of fact; and there would be the option of an appeal in every case in which they were and unanimous. He did not see in this Bill any reason for delaying the consideration of the amalgamation question.
Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday next.

MARRIAGES (IRELAND) LEGALIZATION BILL [H.L.]
A Bill for legalizing Marriages solemnized in Ireland—Was presented by The Lord SOMER-HILL; read 1a. (No. 94.)
House adjourned at half-past Six o'clock to Thursday next, half-past Ten o'clock.