HL Deb 13 May 1897 vol 49 cc328-38
*THE SECRETARY FOR SCOTLAND (Lord BALFOUR)

rose to call attention to the present system of private Bill legislation as affecting Scotland, and to present a Bill. He said he need not go at any length into the history of the system of private Bill legislation, because its principle was as well known to the great majority of their Lordships as it was to himself. But he might mention that the system as now known only dated from 1837. Prior to that time the House of Lords, like the House of Commons, carried its private Bill legislation through open Committees of the whole House. It was in 1837 that this House adopted the system of appointing Select Committees constituted of Members of the House who had no interest in the subject of the Bill. The same course was followed by the House of Commons seven years later in the case of railway Bills, but it was not until 1855 that all opposed private Bills were remitted to Select Committees in the House of Commons. Since that time attempts had been made at intervals in both Houses to reform the system. These efforts at reform had proceeded on two main lines. It had either been proposed that the private Bill should originate in Parliament, as at present, and that the Committee stage should be taken before some outside permanent tribunal, or else that the whole system of private Bill legislation should be referred to some such outside tribunal, and that the completed schemes only should come before Parliament for confirmation. The main object of every one of those proposals had been to relieve Parliament of the inconvenience and of the call upon the time of Members which was necessary for the due consideration of private Bills in the Committee stage. In 1869 it was suggested that this object should be attained by referring all private Bills to a Joint Committee of both Houses, instead of to a Select Committee of each House in turn, but that proposal did not at that time meet with much favour. In 1872 a series of Resolutions were proposed in the House of Commons by Lord Monk Bretton, then Mr. Dodson, which had for their object to test the opinion of the House upon the system which would be involved in the setting up of a permanent tribunal of judicial persons for the consideration of private Bills. A very long discussion ensued, and the proposal was a good deal criticised, mainly upon the same ground that he thought would be advanced against it at the present time— namely, that such a tribunal would become tied by its own precedents, and that it would not yield to the varying desires of public opinion with sufficient rapidity. The Government of that day accepted a Resolution, which was unanimously carried, that the system of private Bill legislation called for the attention of Parliament and required reform. Following upon that, the proposal for a reform of private Bill legislation was taken up by the late Mr. Craig-Sellar, who introduced Bills in the House of Commons in the years 1885, 1886, and 1887. In none of those years, however, was a Bill fortunate enough to obtain its Second Reading. In 1888 a Joint Committee of both Houses was appointed, of which he had the honour to be a member, and the terms of reference instructed them to report how the system could be modified in the interests of suitors, of the economy of the time of Parliament, and of the reduction of costs and charges. A Report was presented, not unanimously, but by a majority of that Committee, with the object of constituting, not a wholly permanent tribunal, but one which differed from the tribunals which they now had for the consideration of the Committee stage of private Bills. Of course, the reference to that Committee was in regard to the whole system of private Bill legislation for the United Kingdom. In 1889 the Government of the day tried to introduce a reform, so far as Scotland was concerned, as a part of their scheme of local government for that country, but that part of the scheme was dropped, and it did not receive the assent of either House of Parliament. In 1890, 1891, and again in 1892, Bills were proposed by the Government, and in one case a Second Reading was obtained, and the Bill was referred to a Select Committee of the House of Commons. It was, however, a good deal altered by the Committee, and was not proceeded with. It was not too much to say, he thought, that every one of these attempts at reform of the system had failed either upon the question of the tribunal to which the Committee stage of Bills should be referred, upon the question of procedure, or upon the difficulty of defining to what Bills the new procedure should be applied. It was obvious that in the case of railway Bills it was not easy to find a definition which should be applicable to all cases. A small branch railway in Scotland was in all probability a purely local concern, but, if an attempt were made to amalgamate two of the large Scottish railways, it was quite clear that that was not only a Scottish question, but one which affected great English interests, and which should therefore be reserved for the consideration of Parliament. Then there was a class of Bills dealing with banking, insurance, and other companies; and, as the company law of the two countries was almost identical, it would be very inconvenient if new principles were established for one country which were not shared in by the other. It was very important that that class of Bills should not be withdrawn from real examination in Parliament. The need for some alteration in the present system was, however, really urgent, and it arose from two somewhat different causes— first, on account of the increasing dislike of Members of both Houses to the growing demands made upon their time; and, secondly, for local reasons. This desire for local inquiries he could assure their Lordships, was one which was very generally felt in Scotland; the demand by public authorities in Scotland to have the applications for Parliamentary powers in regard to local interests made the subject of local inquiry had recently acquired a very considerable addition of strength. There had been petitions from a great number of municipalities and County Councils in Scotland; and resolutions urging upon the Government the desirability of a change had also been passed by political associations, chambers of commerce, and many other bodies. The reasons advanced were the great expense attendant upon the present system, which was a bar to many small schemes on account of the great initial cost, and the unfairness which, the great cost of Parliamentary inquiry entailed upon the opponents to large schemes who might not have the pecuniary means to present their objections which might be real and serious. He thought there was also a strong objection from a Scottish point of view to the entire centralisation in London of inquiries for purely local objects. Many such matters as extensions of municipal boundaries, proposals for fresh supplies of water, for tramway enterprise, and other matters ought, in the opinion of those interested, to be inquired into nearer the locality than was the case at present. He did not forget that, although separate Private Bills might affect only individual interests, yet the sum of all the interests that were involved in all the private Bills which came before Parliament was of very large importance. He certainly would not say anything which could be interpreted into hostility to the present form of tribunal. He dared say that mistakes were sometimes made, but upon the whole he believed the decisions of the Private Bills Committees, both of that House and of the other, were generally accepted as wise and fair. He believed that, so far as the individual tribunal was concerned, there was almost complete confidence in the system; the desirability of a change was based on other grounds. Certainly not the least valuable part of the present system was the general supervision over private Bill legislation, which was exercised by the Chairman of Committees of that House, and the Chairman of Ways and Means in the other. As the result of many years' experience in the examination and amendment of Private Bills, the authorities of both Houses had settled the contents and phraseology of what were termed model Bills, which, with the necessary modifications, must be applied to all private Bills to which they referred. It was quite clear that Parliament could not part with authority over such matters as those, and he thought he should carry the House with him when he said that in such matters the proper amount of uniformity could only be maintained by keeping the ultimate control in the hands of both Houses through their Chairmen of Committees. So far as he was personally concerned he was not in favour of the appointment of one permanent tribunal to do the work of examining private Bills. Such a tribunal, however able, would get into fixed habits and form fixed prejudices out of which it would be difficult for them to raise themselves, and he was pretty certain that if such a tribunal had obtained in the past it would not so readily have adapted itself to the changed circumstances and demands of public opinion as had been the case with Private Bills Committees conducted and controlled by decisions of both Houses. In the consideration of possible reforms they were face to face with the fact that no scheme which had ever been mooted had attempted to do away with the ultimate control of Parliament. But the problem which had been fatal to many of these schemes had been this—how to make the control of Parliament real and effective, and yet get rid from Parliament of the labour of the Committee stage. As he had said, all the proposals that had been made had been on one of two main lines—one, that Bills originated in Parliament should be referred to the tribunal for the Committee stage, and come back again after consideration; another, that Bills should originate before a permanent Commission, and only come to Parliament in the form of completed schemes. It seemed to him that there were two objections which would always prove fatal to such proposals. Was the tribunal in either case to give reasons for its decision? If it did not, Parliament would have no material on which to form a judgment on appeal. If it did give reasons he was nearly certain it would become hidebound by precedents of its own creation, and it would be unfair to promoters. Either of these proposals would lead to more of the time—certainly of the House of Commons—being occupied in discussing private Bills on their merits, and whether they should be referred back to the tribunal or rejected. From the present demands on the time of the other House he felt that any system which led to an extension of the practice of private Bills in the whole House would not meet with general acceptance. The main, objection to the present system, was the demand it made on the time of Members, and the expense to which it put those concerned. The main object to be aimed at in any reform was to do away with these two objections, or to obviate them as far as possible. Now, there was a well-tried system in existence which exactly met the conditions he had laid down. He referred to the system under which Provisional Orders were granted, and the main proposal of the Bill was to assimilate Scottish Private Bill procedure to that which was now pursued in the case of Provisional Orders. As he had said there might be some schemes of such magnitude or nature as were not fitted for this procedure. He did not attempt to define them in the Bill. But it was proposed that if anyone interested in a Provisional Order, whether petitioner or opponent, thought the subject-matter of the Order was of sufficient magnitude and importance to be dealt with in the form of a Private Bill, he could petition the Secretary for Scotland to that effect. The Secretary for Scotland would lay the petition before the Chairman of Committees in each House, and these three—the Secretary for Scotland and the Chairman of Committees of each House—would be the tribunal to decide whether the subject-matter of the Order should be dealt with by Provisional Order, or was one that might be more properly dealt with by a Private Bill. The Private Bill system was at the present time worked by no less than 14 Government Departments, which worked under about 30 different Acts of Parliament. The procedure was well known, and he would not describe it in detail. A petition was presented by the corporation or individuals who desired Parliamentary powers, to the Department to promulgate a draft Order. The petition and draft order were referred to a tribunal selected by the Department, and on the report of that tribunal the Department decided whether it would grant the order and lay it before Parliament, or whether it would refuse the petition. The Provisional Order system had been successful in the past. Certainly it was cheaper than the present system of private Bill legislation, and it afforded facilities for local inquiries which might be in any part of the Kingdom affected. During the last 10 years the Board of Trade had made 624 Provisional Orders. Of these, only 62 were petitioned against, and only 19 of the 62 were rejected or amended. So he might claim that the system of Provisional Orders had been successful in the past, and there was no reason why, under the safeguards of the Bill it should not be applied to matters of greater importance and larger magnitude than had been the case hitherto. During the last 10 years the Scotch Office had put 28 Provisional Orders before Parliament, of which only three had been opposed, and two rejected. The system proposed under the Bill was that the promoters of a scheme should lodge a draft Provisional Order with the Secretary for Scotland, and copies with all the Departments concerned, and the Private Bill Office of both Houses. The object of this was to preserve general control over the model clauses, and the Chairman of Committees of both Houses, or anyone interested, might petition in the manner described to have the matter dealt with by Private Bill rather than by Provisional Order. Assuming that such a petition were not presented, or the Secretary for Scotland and the Chairmen of Committees decided that the proposal was a proper one for procedure by Provisional Order, the special procedure would be this: the Secretary for Scotland, acting with the Chairmen of Committees, would settle the tribunal which was to hear the opposition, if any, to the Order. This tribunal would be selected in the following way. It would consist either of a Judge of the Court of Session, or the Sheriff of one of the counties, either of whom would be selected by the President of the Court of Session. Along with this judicial person would be two lay Commissioners, who would be selected from a panel of twelve, and would remain in force for five years. The panel of twelve would be convened in this way. The Conveners of the County Councils of Scotland and some representatives of the boroughs would meet under the Chairmanship of the Secretary for Scotland, and would select twelve persons in whom they had confidence to form the panel from which the individual two would be selected by the Secretary for Scotland and the Chairmen of Committees to try each case that might be brought before them. If that tribunal made any alteration in the draft Order it would be the duty of the Secretary for Scotland to submit to the Chairmen of Committees of both Houses the Order in its new form, and if there were anything in their opinion contrary to the general legislation sanctioned by Parliament, it would be their business to communicate them to him. If against the Order so adjusted no memorial were presented, it would become final. But if anyone felt himself aggrieved and desired to take the opinion of a Parliamentary Committee it would be possible for him to present a petition to the Secretary for Scotland, upon which the Secretary for Scotland would be bound to lay the Order before Parliament in the form of a confirming Bill. When it got to Parliament a Joint Committee of both Houses would be formed to consider it, before whom, subject to liability for costs, any opponent might be heard. The proposal for a Joint Committee might not meet with universal acceptance. But he contended that it was a rational proposal, would economise a great deal of time, and it was the only method he could think of —if there were other methods he should be glad to hear of them—by which the control of Parliament could be effectively preserved without taking an undue amount of the time of Members or putting to undue expense those who had to appear before the tribunal. If, in addition to a local inquiry, they had first a Committee of one House, and possibly a Committee of another, they would not do anything to cheapen the cost of Private Bill procedure. But he believed there would not be many cases in which after a local inquiry an appeal would be made to Parliament. The experience of Provisional Order procedure strengthened that belief. No doubt the scheme he had endeavoured to outline was in some points open to criticism. The difficulty of the whole subject was great, as had been proved by its past history. He had done his best to make this a practical scheme. If it preserved the control, of Parliament it would be found to have many advantages. It provided for a local inquiry before a, competent yet not permanent tribunal. It enabled Parliamentary powers to be obtained without coming to Westminster, if opponents and promoters were satisfied. The Parliamentary inquiry, if demanded, would be a single one by a Joint Committee and not a double one by a Select Committee of each House, and certainly the supremacy of Parliament would be preserved in every case in which anyone who was interested desired to appeal to it. At the same time adequate safeguards were provided against any Parliamentary powers being granted which would be inconsistent with the general practice of Parliament or the due protection of the public interest. He was sure the House greatly regretted the absence from its precincts of Sir Joseph Warner, who was along and well-tried servant of successive Chairmen of Committees. He thought it right to consult Sir Joseph as to these proposals, and he had had a letter from him in which, while making some criticisms— to some of which he had endeavoured to give effect—he said that he considered this— the best practical scheme for localising Private Bill legislation that he had yet seen suggested by a competent authority. The scheme was put forward with a full consciousness of the many difficulties of the question. He hoped he had been able to give an intelligible account of the Government's proposals, and he had thought it right in a matter of this magnitude to explain the scheme before the Bill was read a First time. ["Hear, hear!"] After this explanation he begged to move that the Bill be read a First time. ["Hear, hear!"]

*LORD TWEEDMOUTH

thought that men of all parties in Scotland were agreed that a change in Private Bill procedure in regard to that country was desirable, therefore he was able heartily to congratulate his noble Friend in having seized that opinion, and having endeavoured to some extent to meet it. It seemed to him, however, that the best ground, both for attack and defence of the Bill, would be found in the sentence: "It is such a little one." Without entering into any criticism of the Bill, he would point out that practically it would only deal with one very small section of private business—namely, that which was likely to be unopposed. If a Bill were likely to be seriously opposed it would, under the scheme, naturally come before Parliament in very much the same fashion as now. He quite admitted that, with regard to matters which were sometimes now dealt with by Provisional Orders, and sometimes by unopposed Private Bills, it would give new facilities and prove less expensive than the present system. But the necessity of this change had always been urged on the ground of the desirability of devolving from Parliament a great deal of its business down to the country, not merely unopposed, but also opposed, private business, and so giving larger scope to the expression of local opinion. It seemed to him that the Bill would not carry out this idea, except in the case of those Bills which were not likely to be opposed; and in the case of all great Bills it would still be necessary to come to Parliament. He did not think that Scotch opinion would be satisfied with merely having facilities given for the easier passage of unopposed private business, but would demand that private business as a whole should be dealt with by Scotsmen in Scotland. ["Hear, hear!"]

THE EARL OF CAMPERDOWN

desired to ask two questions. The noble Lord had said that any person wishing to proceed by Provisional Order would petition. In that case who would draw up and start the Provisional Order? In regard to the panel of 12 men from whom the tribunal of two was to be selected, was it proposed to pay the members of that panel?

*LORD BALFOUR

replied that the promoters would lodge the draft Order which they desired should be made. With regard to the second question, it was proposed that the two lay commissioners should be paid for the time they sat on the tribunal. It was not proposed that they should be salaried officials, or that any vested interest should be created. They would be eligible to serve for a period of five years, and might be re-appointed to that office or might not. It would rest with the Secretary for Scotland and Chairmen of Committees to select those who were to sit with the Judge or Sheriff on each case, and for the time that they sat such remuneration would be paid them as might be fixed by the Treasury.

LORD MORRIS

regarded the Bill as one which made a step in the right direction, but desired to know why a Measure of this kind was made applicable to Scotland and not to Ireland. There had been much agitation on the part of the Chambers of Commerce, leading merchants, and others interested in Ireland on this question, complaints being made of the enormous expense to which the country was put in Private Bill legislation. Every reason his noble Friend had given applied a fortiori to Ireland. It was a poorer country, more distant, and it was more oppressive and expensive for her people to come over her to pass unopposed Bills, or Bills to which there might be some opposition. He should be glad to know why this Bill had not been made appli- cable to Ireland, as it could have been by very slight alteration.

Bill to provide for improving and extending the procedure for obtaining Parliamentary powers by way of Provisional Orders in matters relating to Scotland; presented by Lord Balfour; and Read 1a; to be printed; and to be Read 2a on Thursday next.—[No. 81.]