§ Bill read 3a, with the Amendments.
§ LORD CLIFFORD OF CHUDLEIGH
My Lords, I have an Amendment which I shall ask your Lordships to insert in this Bill, and I am afraid it will require some few words of explanation. The history of the matter is this. The Corporation of Torquay, being desirous of having tramways in their town, and objecting on the score of amenity to the system of overhead wires, sought for some other system, and, among others, the system of the Dolter Traction Company was brought before them. This appeared to meet the requirements of the case, and a Bill was therefore promoted, with the consent—which, as your Lordships will remember, is an absolute necessity—of the corporation, and one of the terms upon which this consent was given was that the clause which I now move should be inserted in the Bill, the object of it being to protect from electric action the water and gas pipes of which 1002 the corporation are the owners. The original clause as first inserted in the Bill had reference only to the water and gas pipes belonging to the corporation, but when the Bill came before the other House the Committee of that House thought it only right and proper—and I must confess that their action appears to embody substantial justice—that if the pipes belonging to the authority in the town were protected by the clause, the pipes belonging to the gas company should be also protected; and on this understanding, which, as far as I can make out, was mutually agreed to by all parties, the clause was inserted in the other House.
When the Bill came before the Committee of your Lordships' House the matter was again discussed; and finally the chairman of that Committee, my noble friend Lord Hawkesbury, in giving the decision of the Committee, said they were agreed, under the special circumstances of the case, without making it a precedent, to allow this clause, and that he would, on behalf of the Committee, report accordingly to the Lord Chairman. My noble friend the Lord Chairman of Committees—and I do not wish for one moment to say a word against the propriety or even the justice of the action he has taken—struck out the clause from the Bill, and the Bill was reported and now comes to be read a third time without the clause in it which was agreed upon by the two Committees. I do not intend in the least to disguise from your Lordships the fact that I have against me some very weighty authority, although I have every confidence that I shall be able to show to your Lordships that there is a difference in this case. The first authority against me is the Committee of the two Houses which sat in 1893 under the presidency of my noble friend opposite, Viscount Cross, and of whose decision I am bound to say I speak with the greatest respect, not only on account of the fact that the noble Viscount was Chairman of the Committee, but also, perhaps, because I was one of the members of it myself. The decision of this Committee was to this effect. They considered that it would be against public policy, inasmuch as it would hamper invention and hamper enterprise in electric tramway undertakings if the 1003 promoters were to be subject to any other liability except that of complying with the regulations from time to time laid down and embodied in the model clauses by the Board of Trade.
I feel bound to point out to your Lordships in what way this particular case does not come under the clause which was arranged by that Joint Committee. The important point in this particular case is that the method adopted by the Dolter Company, their method of electric traction, is one which has never yet been tried in this country. It is a new method, and on that account I contend that the Corporation of Torquay were fully justified in asking of the company that they should give a guarantee to them against loss other than that required by the regulations of the Board of Trade, which were not suited to, and not drawn up for, that particular method of traction. It was a natural precaution on their part, and it did not contravene the object that particular method of traction. It was a natural precaution on their part, and it did not contravene the object which the Joint Committee had, because it did not prevent the Dolter Company from continuing the promotion of their undertaking, and, therefore, the agreement which was then made was no bar to electric enterprise. It did not in the least interfere with their promoting that tramway in the town of Torquay. I have already mentioned that the corporation had the full power of stopping any action at all, of preventing the promotion of the Bill had they so thought fit, and that this safeguard which they insisted upon being put in was one of the very prominent reasons which induced them to give their consent to the undertaking being started at all. I have, I know, another very weighty authority against me. I refer to the action of your Lordships' House in the case of the Beckenham Bill. In-that Bill your Lordships were asked to insert a similar clause in protection, I think it was, of the Crystal Palace Gas Company, and in that case, on the advice of the Chairman of Committees, the Earl of Morley, the House came to the conclusion that the clause had better not be inserted. But in that instance the system which it was proposed to work the tramways on was a very well-known one. It was an over head system, and one that had been before the Board of Trade, and to which 1004 the Board of Trade regulations specially referred; and therefore all the arguments which were adduced before the Joint Committee of 1893, and which had led to their recommendation, had full and ample force.
But in this case as I have pointed out, the system was and entirely new one. There was no evidence that the regulations of the Board of Trade dealt specially with it, and I contend that the Corporation of Torquay were quite justified in making it a condition of their agreement that this clause should be inserted. I have said that I think the action of my noble friend the Acting Chairman of Committees was quite right and proper. As precedents are rather dangerous things, and as in the words of Lord Hawkesbury, which I have quoted, it was evidently the wish of the Committee—in fact, the wish of both Committees—that this should in no way form a precedent for future Bills, it was very right that the decision as to the insertion of this clause should be left to your Lordships' House. I hope, my Lords, that I have successfully demonstrated that the case is one quite different from the cases which have gone before, and that the insertion of this clause need in no way form a precedent for the future. I hope, therefore, your Lordships will see your way to insert the clause which I now move.
Moved, "to insert as a new clause:—'If at any time it be proved that any injury or damage to any mains, pipes, or apparatus of the corporation or of the Torquay Gas Company shall have resulted from the use of electric current on any of the tramways authorised by this Act, nothing in this Act shall relieve the company from liability to make compensation for such injury or damage."—(Lord Clifford of Chudleigh.)
§ * LORD HAWKESBURY
My Lords, as chairman of the Committee to which this Bill was referred I should like to say one or two words as to the reasons why we allowed this clause to stand. As my noble friend has explained, it was one of the conditions made by the Corporation of Torquay—who were evidently most anxious to preserve the beauties of that place—when they gave their consent to this Bill being promoted by the Dolter Company, that this clause should be inserted in the Bill, 1005 because, as my noble friend Lord Clifford of Chudleigh has so well explained, the Dolter system of surface traction is an entirely new one, and has not hitherto been tried in this country. The invention was made long after the Joint Committee over which the noble Viscount, Lord Cross, presided eleven year ago sat, and therefore there was some doubt as to whether the clauses upon which the Board of Trade regulations were founded would meet the case and provide compensation in the event of damage by electrolysis. That being the case, the Committee entirely agreed with the opinion formed by the Committee of the Lower House, and decided that the clause should stand. I am not sure whether my noble friend Lord Clifford of Chudleigh explained that it was when the Bill was before the Commons Committee that the addition was made to protect the mains of the gas company in the same way that the gas and water mains which were the property of the corporation were protected. The Committee over which I had the honour to preside felt very strongly that though reluctant to go behind formulated clauses, this was an entirely new departure in underground traction, something entirely new in this country, and, therefore, with the expression which now stands in black and white that it should not be considered a precedent, they decided to pass the clause as it stood. I hope that in the circumstances your Lordships will accept the Amendment and reinstate the clause in the Bill.
§ * THE ACTING CHAIRMAN OF COMMITTEES (Lord BALFOUR of BURLEIGH)
My Lords, I am obliged to advise the House not to accept the Amendment which has been moved by the noble Lord opposite. I am bound to confess that the Amendment has been placed before the House in a most temperate and reasonable way, but I think I shall be able to show your Lordships that to insert this clause would he destructive of the precedents which have governed this matter for about eleven years, and that my action in refusing to allow the Bill to be read a third time with the clause in it was the only one I could take in conformity with the almost universal course which this House has adopted in regard to the clause in 1006 past Bills. The question is no new one, and the practice has been regarded up to now as pretty well established. The whole question of the injurious affection of the electrolytic action upon gas and water pipes was fully considered by the Joint Committee presided over by my noble friend Lord Cross in 1893, and the result of the labours of that Committee was the model clause which appears in this Bill. The question now is whether this company are merely to be obliged to obey the Board of Trade regulations, or whether they are to give an absolute indemnity against this electrolytic action to two specific owners of gas and water pipes. As far as I understand it, the effect of this electrolytic action is the fusion, and consequently the destruction of metal by the escape of electricity which has travelled out of its proper channel.
The first objection I have to the proposal is that it will put these two bodies—the corporation and the gas company—in a specially favoured position. The clause which the noble Lord opposite is now moving to insert has been put into several Bills in past sessions by Committees of the House of Commons. In the last session of Parliament it was called in question in this House in the case of the Beckenham Bill by my noble friend Lord Stanhope, who I do not see in his place to-day, and it was then struck out on the Third Reading of the Bill by the House as a whole. The noble Earl the Chairman of Committees, Lord Morley, not only concurred in that action, but advised the House, in conjunction with Lord Stanhope, to take it; and he said—I have referred to the speech which he made on that occasion—that he regarded this as a question of some importance, and as a matter of principle. There is no evidence whatever that the regulations made by the Board of Trade for the protection of people who might be injured by electrolytic action are in any way ineffectual and if there was, it is in the power of the Board of Trade to alter these regulations and bring them up to date without any Act of Parliament. The matter has been committed to that Board, and they can take action at once the moment any suspicion of damage is brought to their notice. I am assured by representatives of the Board of Trade whom I have consulted that no such case can be made 1007 out, and I have every reason to suppose that the noble Lord who represents the Board of Trade in this House will confirm that statement.
Last year the clause was actually rejected by the House, or taken out of a Bill in which it had been inserted. I think your Lordships will agree with me that in those circumstances I should have been taking a wrong view of my duty if I had not supported the decision of the House and told the promoters and those who had agreed with them that this clause, whether it was an agreed clause or not, must be inserted in the House itself, and that no Committee, and certainly no Chairman of Committees acting alone, would be entitled to allow the clause, however much agreed, to be put into the Bill. As I have said, it is really for the House itself to decide whether it will overrule and make of no effect the decision which it came to last year in the Beckenham case. But I am bound to tell your Lordships that that precedent has been acted upon in several Bills during the present session, some of which have received the Royal Assent, and I venture to suggest to the House, with all respect, that if, therefore, at this late period of the session it goes back upon the decision which it came to last year, it will by inference inflict considerable hardship upon many of those who, believing the matter to be settled, have accepted Bills for driving tramway cars by electric action without this clause As I have said, the Board of Trade regard their regulations as sufficient, and if necessary they can be altered from time to time.
That brings me, to one point which I admit does differentiate this case from some of the others which have gone before it. This system which is to be applied in Torquay is, I understand, to be a new system called the Dolter Company's system, but there is no evidence brought forward that it is in any way different in this matter from other systems. As I understand it, it is a mere matter of inference and of dread, and I venture to suggest that that is not a sufficient reason for breaking all the precedents which have governed this subject heretofore and thereby of putting the whole matter again into confusion. It is all very well to say this 1008 will not be a precedent. It may not be a precedent for every system of traction, but it will certainly be claimed by those who come to use the Dolter system as a precedent in their case. If you put this clause in in the case of one particular system of traction, you will give that particular system a great advantage over all others, and I think that would be a most unfair and unreasonable thing to do.
It is no use pleading the agreement which has been made between the parties. The agents and those who advised them knew perfectly well—or I am entitled to presume they knew perfectly well—that this clause was contrary to Parliamentary practice, and they ought to have advised their clients that it was not by any means likely that the authorities of the House would allow it to be inserted unless the House itself gave the order. I say that if the House in its wisdom chooses to reverse the decision it came to last year it is acting quite within its right, but if you do that in this case you may just as well abolish the mode clause altogether. The Board of Trade may give Provisional Orders for the working of electric tramways, but they will not insert this or any other similar clause in any of their Orders. Therefore you will have two codes running side by side, one the code which is established when Parliamentary powers, are sought, and the other the code of the Board of Trade under the Provisional Order system. The model clause which is in this Bill is general in its application. It applies to anybody who owns pipes or wires underground near those which are used for electric traction. It may be the case that in Torquay it may comprise all owners of pipes and wires, but, as a matter of fact, it is a protective clause for special petitioners; and on that ground, as well as the other grounds that I have stated, I hope the House will not go back on the decision of last year.
My Lords, on behalf of the Board of Trade I am anxious to associate myself with the remarks that have just fallen from the noble Lord the Chairman of Committees. There are two forms of procedure in your Lordships' House. Promoters can either proceed by a Private Bill as in this case, which is subject to the authority of the Chairman, of Committees, or they may proceed by 1009 Provisional Order, which is subject to the consent of the Board of Trade. If this scheme had been by Provisional Order, I should have adopted the same arguments that have been so well and forcibly used by my noble friend the Chairman of Committees. In order to assure the House, I may inform your Lordships that I have received a letter from the electrical adviser of the Board of Trade to the effect that he is familiar with the Dolter system, and is of opinion that the usual protective regulations of the Board of Trade are quite applicable and will be effective, as they are in regard to a similar system which has been for some time in use at Wolverhampton, and the electric conditions of which resemble those of the Dolter system. I therefore hope your Lordships will reject the Amendment.
§ VISCOUNT CROSS
My Lords, as chairman of the Joint Committee who had to consider this matter, I may say that we went very carefully into the whole question, and with considerable difficulty framed the model clause which has been more than once alluded to in the course of the discussion this evening. We believed that that clause, as drawn, would afford ample protection to all concerned, and I trust your Lordships will reject this Amendment.
§ LORD NEWTON
My Lords, as it has not infrequently happened to me that in my capacity as Chairman of Private Bill Committees I have had to decide this question, perhaps I may be allowed to say a word or two in support of the course proposed by my noble friend the Chairman of Committees. Nothing is more common, when Bills of this kind are being considered by a Committee, than for the representatives of gas companies to appear, and in heartbroken accents and with tears in their eyes, to point out that unless they get special protection against what is called electrolysis, serious consequences might ensue, though I never knew anybody who could explain exactly what electrolysis was, or the precise injury which it could inflict. The Corporation of Torquay, I presume, have found themselves in the fortunate position of being able to squeeze the promoters of this Bill, and to obtain this particular clause, and the gas company of Torquay, naturally 1010 wishing to obtain the same advantages, went before the Committee, and the Committee, out of generous sympathy for them, gave them the same privilege. Well, in my own case I have always resisted these appeals, because, as has been pointed out, this creates an entirely new precedent, and because it is fairly obvious that gas companies have complete protection from the Board of Trade. I would only venture to add that in my humble opinion it is extremely desirable that in questions of this kind there should be uniformity of procedure on the part of Private Bill Committees. I confess that I have not sufficient confidence in my own judgment to assume that I should be invariably correct in any decision I might give, and I therefore prefer to be guided by a model clause such as in this Bill. I hope this view will commend itself to the House generally.
§ LORD CLIFFORD OF CHUDLEIGH
My Lords, I only rise for the purpose of an explanation. The noble Lord the Chairman of Committees said there was no evidence adduced with regard to this particular system. I wish to point out that that was naturally so because the clause came up as one which was agreed. The corporation had a doubt as to what danger they were running, and the promoters agreed to insure them against any such danger. While bowing to the opinion of the House as to the inadvisability of not following a fixed plan, I can only respectfully submit that this case was one which was somewhat different from all the others, and that the Corporation of Torquay were justified in endeavouring to protect themselves against a danger which was very possible, if not absolutely certain.
§ On Question, Amendment disagreed to.
§ Moved, "That the Bill do pass."—(Lord Balfour of Burleigh.)
§ On Question, Bill passed, and returned to the Commons.