HC Deb 17 March 1868 vol 190 cc1797-811

Order read, for resuming Adjourned Debate on Question [18th February], That the Committee of Selection may, if they think fit, refer any Private Bills to the Referees, instead of to a Committee of the House, with power to the Referees to inquire into the whole subject-matter of such Bills, and to report them with or without Amendments, to the House."—(Mr. Dodson.)

Question again proposed.

Debate resumed.


said, the Chairman of Ways and Means proposed to leave to the Committee of Selection the discretion of sending any Private Bill to a Committee of Referees instead of to a Committee of the House. That at once raised the question of the number who should compose the Committee of Referees. He did not wish it to be supposed that he had any complaint to make with respect to the con- duct of the Referees. These gentlemen, he thought, had done their duty very diligently and effectually, and he would leave undisturbed in their hands all questions of locus standi. He had heard many complaints brought against the Committees. For instance, it was alleged that a Chairman must either be very inefficient or very stupid who could not secure the adhesion of one member to his own particular views, and in that case the whole case was entirely in his hands. This arose from, the Chairman having a double or casting vote. A Committee of five would work much better than a Committee of four, and it would get rid of the objectionable double vote of the Chairman. The Committee of Standing Orders had come to the unanimous conclusion that, instead of having a Court of Referees as it had existed for a short time, or as it was proposed to establish it, it would be better that Private Bills should be referred in the ordinary manner to Committees, which should consist of four Members of the House and a Referee, and that every Committee should have the advantage of the presence and assistance of a Referee, who should have a vote, but the Chairman always to be a Member of the House. He could see that, were a Committee composed of two Members of the House and two Referees, difficulties would arise; because in cases where differences of opinion arose it would be inconvenient to discuss the question in the House where the Referees could not attend to uphold their decision. With the concurrence, therefore, of the Committee on Standing Orders, he had resolved to move an Amendment to the Resolution of the hon. Member the Chairman of Ways and Means.

Amendment proposed, To leave out from the word "may" to the end of the Question, in order to add the words "refer any opposed Private Bill, or any Group of such Bills, to a Committee consisting of Four Members and a Referee,"—(Lord Hotham,) —instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."


said, as he was supposed to be the father of the Court of Referees, he wished to say a few words. The Standing Order which was now under discussion was debated by the House under very different circumstances to what they were now placed in, and a larger number of Members of the House had recently been elected who had no knowledge of the defects and inconveniences of the old system. The Court of Referees was established in 1865, and had saved much time and expense. At the time when it was instituted there were no less than 600 Private Bills before Parliament, and the Committee of Selection experienced the greatest difficulty in appointing Committees to try them. After considering the matter a small number of Members who took interest in the Private Business of the House unanimously adopted a Resolution that the organization of the Committees was very defective; that it was totally impossible to transact Private Business in a satisfactory manner owing to its great extent, and that it was highly desirable that some improvements should be effected. Although in the present Session there was less Private Business than in any Session for the last ten years, it would be unwise for the House to revert to the old system, under which, in nine cases out of ten, they had a tribunal which was weaker than the Bar practising before it. The consequence was, that talented lawyers induced the Committees to come to almost any vote they liked, and the most contradictory decisions were given. The time of the Committees was, moreover, occupied with the most frivolous examinations regarding matters that had no particular bearing upon the point at issue. It had therefore been arranged that these Bills should be separated into two parts—one relating to the public merits of the Bill, and the other to the construction of any works under it; and it was recommended that all the statistics and the engineering points should be inquired into by a distinct tribunal. That created a double inquiry, which was no doubt attended with some inconvenience; but, on the whole, the Court of Referees had answered the purpose for which it was instituted, having effected a very great saving of time and expense. Previous to the establishment of the Court of Referees, the most extravagant expense was caused to the promoters of Private Bills. One railway company, for instance, spent £52,000, not in carrying a Bill through Parliament, but in defending itself against the attacks of other companies, not one-tenth of which would have been expended had the Court of Referees been in existence. Another company had incurred an expense of upwards of £60,000. He would therefore strongly urge the House not to go back again to the old system. Inclosure Bills and Pier and Harbour Bills were now dealt with entirely out of that House, and yet that class of improvements were as numerous now as they had previously been. He was perfectly convinced that the fears of his right hon. Friend the Member for Oxfordshire (Mr. Henley), that if they referred Bills to a tribunal not composed of Members of that House they would prevent many good works from being executed, were entirely groundless. He did not see, if they got a good tribunal, and if the House was represented by one experienced Member in that tribunal, why the House should feel less confidence in it than in a tribunal entirely composed of its own Members. The old system was discreditable; and he thought that if they acceded to the proposal of the Chairman of Ways and Means, they would secure to the House every proper control which it ought to possess. He should support that Gentleman's Motion if it were pressed to a division.


said, he thought it very important for the House to keep the control of private legislation in its own hands, and not delegate it to Referees, as was proposed. Committees of the House, and he believed a Royal Commission, had recommended that the House should not part with its jurisdiction to any judicial tribunal, or to any tribunal not composed to some extent of Members of the House. He did not understand upon what principle a selection was to be made. What were the Bills to be referred to an ordinary Committee of the House? and what were the Bills that were to be referred to the Court of Referees? He understood that the Bills to be referred to the Court of Referees would not be measures of first-rate importance, containing matters involving any new policy. Such Bills were to go to the ordinary Committee; and that the Bills to be referred to the Court of Referees would be rather of a routine nature, of which the Court of Referees could dispose. He did not think that point had been made clear, and he begged of his hon. Friend to explain it. He (Mr. M. Gibson) had been always of opinion that the establishment of a Court of Referees to find facts for another Committee was a bad arrangement, and any experience they had previously showed that it would not work efficiently. He believed that the Court of Referees had employed itself in minute inquiries into facts that might not be considered material by the Committee on the Bill, and therefore unnecessary expense was thrown upon the parties. He would offer an Amendment, to the effect that the Court of Referees should consist of four, and that not less than three of the four should be Members of the House. That would be midway between the proposal of his hon. Friend (Mr. Dodson) and of the noble Lord (Lord Hotham).


said, that he was glad to find that all the Gentlemen who had Amendments on this subject upon the Paper were opposed to the system of double inquiry. There were three proposals before the House: that by the Chairman of Ways and Means for a Court of two Members and two Referees; that of the noble Lord for one of four Members and one Referee; and that of the right hon. Member for Ashton-under-Lyne for three Members and one Referee. He would consider all three proposals. It was feared that in practice it would be impossible, under such a system as that proposed by the Chairman of Ways and Means, to prevent parties interested in the questions decided by the Referees from bringing them back to the House for discussion, and it was on that account that he preferred the plan of the noble Lord. Again, he reminded the House that the number of Members serving on Private Bill Committees was reduced from five to four, simply for the purpose of relieving the House; and the operation of the new system had shown the force of the argument made use of when it was first proposed, that the reduction would throw too much power into the hands of the Chairman The objects of appointing Referees were to relieve the House of a certain part of its business, to secure certain engineering knowledge in the examination of plans, and above all, to secure similarity of decisions and this last mentioned purpose would be provided for by the appointment of a Referee upon each Committee according to the noble Lord's proposal. If the House adopted the Amendment, a sufficient number of Referees had already been appointed to enable the experiment to be tried at once, whereas the plan of the Chairman of Ways and Means could not be brought into operation this year.


said, he understood the proposal of the hon. Gentle man the Chairman of Ways and Means to be a proposal for a continuity of policy in the proceedings of Private Committees; and as a reform in that direction, though a feeble and inadequate reform, he hailed it gladly. He entreated hon. Members to look beyond mere technical details, and ask themselves whether the machinery by which they had hitherto administered the railway business of the House had produced results of which to be proud. Hitherto it had been the most planless and purposeless system, if he could give it the name of system, that ever was known. No kind of rule had been laid down for the guidance of the Committees, amidst the manifold complications of the questions that had arisen. Were the Committees to be looked on as judicial tribunals or as legislative tribunals? If as the former they had this remarkable peculiarity, that the proceedings were carried on at the maximum of expense, and there was no element in the tribunals which secured continuity of policy or consistency of decision. The Committee of this year was not the Committee of next year; there was no legislation from without to control them; they could produce no precedents from within by which they could be guided. The result was that, except in purity of purpose and honesty, they had no single attribute such as one was accustomed to find in judicial tribunals in a civilized country. On the other hand, if they were not judicial tribunals, but fragments of the Legislature—and if the extraordinary theory were adopted that each fragment possessed in itself all the wisdom of the whole Legislature combined—how was it that the Committee of Selection did not form these Committees from the whole House, or from the best Members in it? The fact was that the Committee of Selection made their choice on the principle of getting on Private Bill Committees those who had nothing to do. If the Committee of Selection had swept the Treasury Bench in order to find Members for the Private Committees he was certain that the present system would not have endured five hours; but it was because they had to deal with Members who did not take a leading part in the debates, and could not resist the compulsion put upon them, that the contrary system had lasted so long. He (Viscount Cranborne) had constantly tried to stimulate the Committee of Selection into boldly choosing from the prominent Members of the House, but they had never answered his challenge, being always ready to excuse those who had much public or official business to attend to. This was not a question of theory merely, but one of practice. What had the system effected? It had produced a series of railways at enormous cost, without plan, and with a waste of capital more colossal than ever happened in the history of the world before. Had the public gained by it? Let any hon. Gentleman who entertained a doubt on the point compare the fares charged on the Continent with those charged in this country. On the Continent the Governments exercised a very strong power in selecting what lines should be constructed; in England the lines were allowed to construct themselves very much as they liked, and the result had been that many lines which paid had to charge the public for branch lines which did not pay. As a rule, the lines going through agricultural districts were losing speculations, unless they connected two great centres of population. The companies, in order to recoup themselves, had charged the paying portions of their systems, and had obtained from lines uniting great centres of population very considerable fares, which, when compared with the fares on the Continent, showed a difference of 25 per cent, or 50 per cent, or even of 100 per cent. While the capital expended on the Continent had produced paying lines, there had been in England a vast amount of capital sunk into the sea, and the capital which remained had to pay for the loss. Therefore, he considered the existing mode of conducting the Private Bill business to be unwise and practically unjust. The cause of its failure was that it proceeded on no plan or system; but it was a mere proceeding of haphazard, according to the accident of the selection of the Chairman or Members of Committees, or according to the talent of the counsel appearing before them. The result had been that they showed no adequate return for the capital expended, so that we saw on the one hand ruined shareholders, and on the other hand the public charged fares much above those of Continental traffic. On these grounds he thought the House ought not to cling too closely to the remains of a system which had completely failed; but rather encourage the Chairman of Committees to do what he was now attempting to secure—more continuity of decision and policy. That could only be done by referring the very considerable mass of their business to those who did not change from year to year. That, he believed, was most likely to produce a system that would be wholesome and beneficial to the country; and he hoped the hon. Gentleman would proceed with the scheme he had taken in hand.


observed, that the proposal of the Chairman of Ways and Means embraced two points—the improvement of Committees and the machinery by which they adjudicated on a large class of Private Business, and also a question of policy—namely, whether competition was to be admitted or not. The two had a very material bearing on each other. He would make a very few remarks on the question of the constitution of the Committees with a view to obtain what was most desirable, greater continuity of decisions. It was desirable not merely that the tribunals should be of a uniform description, but much more on the class of matters now referred to them. The great defect in the private legislation of the House was not so much the constitution of the tribunal, but in referring to them a great mass of matters which ought to have been settled on some broad principle of legislation. The question of competing lines and monopoly should not have been referred to those Committees. No question was more important than that referred to by the noble Lord, whether they should have adopted a system of regulated monopoly or free trade in railways. Twenty years ago that question was of the greatest possible importance, when an outlay of £500,000,000 was to be expended, and the whole system of the communications of the country depended on its right decision. It was now practically useless to go back and inquire whether that was right or wrong. It was sufficient to say that this system was proposed by the Report of Lord Dalhousie's Commission, which had been a good deal canvassed. A great deal was said on both sides. He was not going to argue that the decision come to by Parliament was entirely wrong and destitute of foundation, for though the opposite system might have produced great advantages, such as terminal concessions, it was unsuited to the genius of the English nation, and the policy adopted had the effect of giving the country a greater number of miles of railway within a limited period than could otherwise have been secured. That was a great advantage to the country, although, undoubtedly, the shareholders had suffered. But if it were adopted it ought to be carried out to its legitimate consequences. Nothing was more absurd than to say they would not have regulated monopoly, and yet subject railways made under a system of free competition to all the expenses and restrictions which would have been imposed on those going on the opposite principle. He arrived at this practical conclusion, that the proper way to deal with this question would be to take up the broad general principles that should regulate railway legislation and embody them in a general Act, leaving little or nothing for investigation before Committees. A Bill might be brought in consisting of only two clauses. Anyone might make a railway anywhere provided he deposited sufficient security for giving compensation to those whose interests were effected thereby, and existing railways should be at liberty to do anything they liked consistently with the objects for which they were made, and without prejudice to the existing state of things. This mode of proceeding would save a great deal of labour to the House, and extricate them from the difficulties in which they were now involved. The proposal of the Chairman of Ways and Means was an improvement; but the much larger question should be dealt with by general legislation.


admitted the difficulty of this question; but he could not admit that no attempt had been made to lay down the policy of railway legislation. A very great effort had been made in that direction, under Lord Dalhousie, by a very able and powerful Government. He cordially agreed with the noble Lord as to the desirableness of keeping up as far as possible what was called the continuity of decisions, and at the same time preventing questions on Private Bills coming back for decision to the floor of that House; for it must be remembered those questions would come back from where they had been heard on evidence on both sides, with the assistance of counsel, to where they would be decided without hearing evidence on either. He was one of those who thought the railway system of the country, so quickly developed as it had been, had proved of the greatest possible advantage to the community, although, as in the case of canals and roads, the unfortunate shareholders had suffered. No doubt about it, it was the branches that did not pay; but yet rival companies had fought with the greatest vigour to secure them as an advantage to themselves, and, at all events, prevent them falling into the hands of their competitors. On the whole, he thought they should keep their Committees strong, in order to prevent questions coming back for decision to the floor of the House, which, in his estimation, would be a great misfortune.


said, that having at a former period paid considerable attention to this subject, he wished to say a few words before the House went to a division. He entirely agreed with the right hon. Gentleman (Mr. Henley), and altogether differed from the noble Lord who spoke before him (Viscount Cranborne), with regard to the Members who constituted Committees. He remembered when means were taken to obtain a rather more permanent and settled administration in regard to railways by the establishment of a Chairman's Panel, a person of no less consideration than the Foreign Secretary devoted himself to the management of that Committee, and gave a great deal of very useful attention to the subject. So also when the Great Northern Railway was brought forward the President of the Poor Law Board, who was at that time a very useful Member of the House of Commons, acted as Chairman of the Committee. It was not just, therefore, to say that Members of the Private Bill Committees were selected on the ground that they had nothing else to do. The question of railways was a legislative and not a judicial one. Parliament had to take care that due consideration was given to the great railway companies who had expended an enormous capital for the benefit of the public; but they had also to take care that that consideration was not extended beyond proper limits, and the question, therefore, was whether this point was to be determined by Members who were responsible to that House, or by persons out of doors, who would have no responsibility, and whose designs would be in some measure arbitrary. He felt certain that no tribunal would be endured for long which was not responsible to that House for its decisions, The Government of Sir Robert Peel appointed a body under Lord Dalhousie to deal with these questions. Their ability was unquestioned; but their Resolutions were not only treated with indifference, but there was even a feeling, however it was to be accounted for, that their approval was an argument against the plan. Subsequent attempts had been made at legislation, which had not proved satisfactory. It was now proposed to take some step in order to secure greater permanence and regularity in the proceedings of these Railway Committees, and the noble Lord the Chairman of the Standing Orders Committee acquiesced in the proposal that there should be some permanent element introduced into them, while at the same time he objected to that permanent element being so large as to be equi-pollent with the Members of the House. In his opinion, the advice of the noble Lord was sound and wise, and the House ought to adopt it.


said, that two or three years ago the Commission appointed to inquire into the operation of the railway system throughout this country had incidentally to inquire into many of the questions that had arisen in the course of this discussion, and they submitted for the consideration of the Government, and of that House, some principles which they laid down for the regulation of future railway legislation, and those principles were in accordance rather with the proposition of the noble Lord than with that of the hon. Member. The Commission in their Report particularly directed attention to the difficulties in which the House was placed in dealing with the capital of railways. The House was almost always imposed upon by the promoters of railway companies upon this subject, and the result was that great injustice was frequently done. The House should decline to deal with the question of capital, and should require all companies which applied for powers for constructing new lines to fulfil all the requirements of the law necessary to enable them to make their appearance before Parliament as joint-stock companies. He objected to any company having a monopoly of any particular district, and wished to see the principles of free trade adopted with regard to them. It was impossible that any general scheme for laying down railways throughout the country could be carried into effect by the permanent element it was proposed to introduce into the Private Bill Committees. If Parliament wished that some such plan should be devised they must themselves lay down the plan that was to be carried out, and not leave the matter to the mere arbitrary decision of some three or four gentlemen. The Commission proposed that while the Committees should retain their present form, they should be assisted by the Board of Trade, which was to call their attention to all questions affecting the public interest. He thought that these recommendations were well worthy the consideration of the House.


said, he was glad to find a general concurrence in the two first propositions he had made—namely, to substitute for the purely Parliamentary Committee a mixed tribunal, and to abolish the divided inquiry. The question now at issue was the minor one, of what number the tribunal should consist. He originally proposed that the tribunal should consist of four persons, and that not less than two of them, including the Chairman, who had the casting vote, should be Members of the House. By this, he thought he had sufficiently secured the preponderance of the legislative element in the tribunal; but the Committee of Standing Orders seemed to think the official element would be still too strong, and proposed that the Committee should be assisted by only one Referee. The noble Lord (Lord Hotham), however, proposed that the Committee should consist of the old number of five members, including the one Referee. Against these two propositions they had the alternative suggestion from the right hon. Member for Ashton-under-Lyne (Mr. Milnor Gibson) that the Parliamentary Committee should continue to consist, as at present, of four members, including the official Referee. He had told the noble Lord the Chairman of the Committee of Standing Orders that, although he had a preference for his own scheme, he would willingly acquiesce in the proposal of the Committee, if it were approved by the House, and, of course, he would stand by that promise; but if he were permitted to re-consider the whole matter in the light of the alternative proposal made by the right hon. Member for Ashton-under-Lyne, he would prefer to accept that middle course, and he hoped the Standing Orders Committee would do the same.


supported the Chairman of Ways and Means in his amended proposal, which combined the introduction of a permanent element to the Parliamentary tribunal with the minimum of change. There was a great difficulty in finding Members, and four had been found a sufficient number for the constitution of these tribunals.


said, he hoped the House would continue to adopt the uneven number. Three was the number that had originally been proposed; but the inconvenience that would occur was set forth if one Member should be attacked by illness. He did not altogether approve the introduction of a permanent element to the Committee, because it was questionable whether an official would not have a tendency to run too much in one groove.


said, he should support the proposition of the Chairman of Ways and Means. He thought, considering the difficulty of obtaining Members, that four would be sufficient.


thought their thanks were due to the noble Lord the Chairman of the Committee of Standing Orders for the Motion he had brought forward. He contended that, if the number four were open to objection on account of the power thereby lodged in the hands of the Chairman, it was not right that Railway Bills, involving large monetary interests, should be intrusted to the decisions of Committees composed of that number, unless they were prepared to reduce the number of Members of Election Committees.


thought the Motion of the right hon. Gentleman opposite (Mr. M. Gibson) might be regarded as a fair compromise. He had already expressed his opinion on this question, and would not now detain the House. He had merely risen, as there seemed to be some little confusion in point of form, for the purpose of suggesting that the Motion of his hon. Friend the Chairman of Ways and Means should be withdrawn, and that the Amendment of the noble Lord (Lord Hotham) should be put as a substantive Motion, in which case the right hon. Gentleman might move, as an Amendment, the substitution of the word "three" for "four."

Amendment and Motion, by leave, withdrawn.

Motion made, and Question proposed, That the Committee of Selection may refer any opposed Private Bill, or any Group of such Bills, to a Committee consisting of Four Members and a Referee."—(Lord Hotham.)

Amendment proposed, to leave out the word "Four," in order to insert the word "Three,"—(Mr. Miner Gibson,)—instead thereof.

Question put, "That the word 'Four' stand part of the Question."


enforced the argument employed by the hon. Member for Portsmouth (Mr. Serjeant Gaselee), and contended that in a Committee composed of four members the Chairman would be in- trusted with too much power. He thought that the argument used in favour of a Committee of four—that it would save the time of the House—was not very forcible, as there was a great deal of unemployed labour in the House available for Committee work, for more than two-thirds of the Members elected in the last Parliament had never served on Private Committees. They would not have four as a number for an Election Committee, and why should they have it for Committees before which important commercial issues were brought?


said, that the number four was arrived at by a kind of haphazard course. There were Members present who knew of cases where the casting vote had to be exercised, and how unpleasant it was. He reminded the House that the Committee on Standing Orders had reported in favour of the Committees being composed of an even number of Members. It was hoped that the addition of an official Member as Referee would shorten the labours of the Committees, as it might lead to opposition being offered to a fewer number of Bills.


said, the argument used by the hon. Member for Stockport (Mr. Watkin) against the number being fixed at four was the very argument which had led to that number being recommended, it being thought that it would be desirable to give a preponderating weight to the Chairman, whose opinion, from his knowledge of public business, was entitled to more consideration than that of other Members. In his view of the case it gave greater strength to the tribunal, and it was for this reason the number four was originally adopted.

The House divided:—Ayes 162; Noes 159: Majority 3.

Main Question put, and agreed to. Ordered, That the Committee of Selection may refer any opposed Private Bill, or any Group of such Bills, to a Committee, consisting of Four Members and a Referee.


next proposed the repeal of Standing Orders 93, 95, 96, and 97, relating to the divided inquiry before the Referees and Committees. Considering the length to which the discussion upon Private Business had extended he should probably be consulting the convenience of the House if, after that Motion had been carried, he abstained on the present occasion from pressing the other alterations contemplated by his Notice of Motion.


presumed that what his hon. Friend was now moving had only for its object to carry out the vote at which the House had just arrived.


said, it was only to get rid of the double inquiry.

Standing Orders 93, 95, 96, and 97 read, and repealed.

Standing Order 131 (Competition to be a ground of locus standi) read.


proposed that the remaining Motions should be postponed till that day week.


inquired whether it was the intention of his hon. Friend to bring the mutter on again at that date?


Certainly, if it met the convenience of the House.

Further Consideration of said Standing Order deferred till Tuesday next.