CHAPTER XX
PRIVATE BILL LEGISLATION
If the direction of important legislation of a public character lies almost altogether in the hands of the ministers, special laws affecting private or local interests are not less completely outside of their province.
The Nature of Private Bills.
Private Acts of Parliament are of immemorial antiquity, but they seem to have first become numerous in connection with the building of turnpike roads and the enclosure of commons in the second half of the eighteenth century.[367:1] They were also the means used to authorise the construction of canals, and later of railways; and, in fact, it was the great number of railway bills, presented in 1844 and 1845 that gave rise to the modern private bill procedure in the House of Commons.
Apart from railway bills they have been used of late years chiefly to regulate local police and sanitary matters, or to grant powers to private companies or municipal corporations for the supply of public conveniences, such as water, gas, electric light, or tramways; for private bill procedure applies not only to bills that affect private persons or companies, but also to those that deal with the rights and duties of organs of local government in any particular place.[367:2]
The line, however, between public and private bills is not altogether logical. Measures, for example, touching matters of general interest affecting the whole metropolis have been passed as public bills; and this has been true to a smaller extent of other places; while bills regulating affairs of less importance for those very areas have been treated as private. In fact the same subject has at different times been dealt with by public and private bills; the question which procedure should be followed depending upon the uncertain standard of the degree in which the public interest was involved.[368:1] With these exceptions it may be said that every bill introduced for the benefit of any person, company or locality, is, for the purposes of procedure, a private bill.
Procedure on Private Bills.
The standing orders that govern procedure upon private bills are much more elaborate and comprehensive than those relating to public bills. They fill in print five times as many pages; and although custom and precedent play an important part, still the printed rules approach very nearly to a code of private bill procedure.[368:2]
Petition and Notice.
Before a private bill is introduced, a petition therefor is drawn up, and in order to give any one interested an opportunity to prepare his objections, notice of the petition must be given, in October or November, in The Gazette, in appropriate local newspapers, and in some cases by posters upon the roadside. Personal notice must also be served in December upon the owners of land directly affected, and if the petition is for leave to build a tramway, the consent of the local authority must be obtained.[369:1] Plans of the work proposed must also be deposited for inspection both at Westminster and with some local officer.[369:2] The petition, with the bill itself, must be filed on or before Dec. 17 in the Private Bill Office of the House, and a copy must be delivered to the Treasury, the Local Government Board, the Post Office, and to any other department whose duties relate to the subject involved.[369:3] The petitioner is also required to file estimates of cost, and to deposit a sum equal to four or five per cent. of the proposed expenditures as a guarantee fund for the benefit of persons who may be injured by a commencement, and failure to complete, the work.[369:4]
Examiners of Petitions.
The next step is to make sure that these preliminary regulations have been obeyed. It is done by paid officers of the House called Examiners of Petitions for Private Bills,[369:5] and since 1855 the two Houses have appointed the same persons to that post, so that the process is gone through only once.[369:6] The petitioner must prove before the examiner that he has complied with the standing orders; and any person affected has a right to be heard on the question, if he has filed a memorial of his intention to appear. The examiner certifies that the standing orders have been followed, or reports in what respect they have been disregarded.[369:7]
Legislative and Judicial Aspects of the Procedure.
Private bill procedure has both a legislative and a judicial aspect. The final aim being the passage of an act, a private bill goes through all the stages of a public bill, and the records of its progress appear in the journals of the House. But the procedure is also regarded as a controversy between the promoters and opponents of the measure, and this involves an additional process of a judicial character. For that purpose the full records of the case are preserved in the Private Bill Office, where they are open to public inspection. The preliminary steps already described are intended chiefly to prepare the case for the judicial trial, and to give opponents a chance to make ready their defence. They correspond to the pleadings in the clerk's office of a court; and they are conducted by a parliamentary agent who performs the duties of a solicitor in a law suit.[370:1]
Introduction of the Bill.
The preliminaries over, the bill is ready to be introduced, and the first thing is to arrange in which House it shall begin its career. This is decided at a conference between the Chairmen of Committees of the two Houses, or in practice by the gentlemen who act as their legal advisers, the Counsel to Mr. Speaker and the Counsel to the Lord Chairman of Committees.[370:2] All these proceedings take place before the usual date for the meeting of Parliament, so that when it assembles the bills can be brought in at once.[370:3]
If the examiner reports that the standing orders have been complied with, the bill is presented forthwith by being laid upon the table of the House. If not, his report is referred to the Committee on Standing Orders, composed of eleven members chosen by the House itself at the opening of the session.[371:1] This committee reports whether the omission is of such a nature that under the circumstances it ought to be excused or not; and the report is almost always adopted by the House. In case the omission is excused the bill is presented by being laid upon the table; and every bill is deemed when presented to have been read a first time.[371:2]
Second Reading.
On the next stage, the second reading, a debate may take place upon the general principle involved, and a bill is sometimes rejected at this point, either because it is inconsistent with public policy, or because opponents whose interests are involved have been able to persuade a majority of the members to vote against it. Instructions to the committee about the provisions to be inserted in the bill can also be adopted at that time.
Private Bill Committees.
The committee stage of the bill, for the consideration of its provisions in detail, is devolved upon a private bill committee. Here takes place the judicial process, or trial of the controversy between conflicting interests, which presents the peculiar feature of the English procedure. Until near the middle of the nineteenth century the committees for private bills were made up on the same principle as select committees on other matters. They consisted in large part of supporters and opponents of the measure. But in 1837 the Lords began to form their private bill committee of a small number of wholly impartial members,—a practice which was adopted by the Commons for railway bills in 1844, and for all other private bills in 1855.[371:3] The system of committees in the two Houses is now very much the same,[372:1] the order of proceeding in the Commons being as follows: All opposed private bills, except those relating to railways and canals, divorce, and police and sanitary matters, are referred under the rules to the Committee of Selection, which divides them into groups and refers each group to a separate committee, consisting of a chairman and three members not locally or otherwise interested, all of whom it appoints for the purpose.[372:2]
Railway and Canal Bills.
In order to secure greater uniformity in the private acts relating to railways, a general committee on railway and canal bills was created in 1854.[372:3] It is appointed every year by the Committee of Selection, and to it are referred all bills of that kind. But it does not take charge of them itself. It merely divides them into groups, and then acts as a chairman's panel; that is, it refers the bills to separate committees, the chairman of which it selects from its own ranks, the other three members being appointed by the Committee of Selection.[372:4]
Police and Sanitary Bills.
With the same object of obtaining uniformity, all bills promoted by local authorities for police and sanitary purposes were referred after 1881 to a single committee. In this case, however, the bills were not too numerous to be considered by the committee itself, although to relieve pressure it was, in 1892, enlarged to eleven members, and authorised to bisect itself for the more rapid despatch of business. Curiously enough the committee was discontinued for some years, but, after loud complaints about exceptional powers granted by private acts, it was revived by sessional order in 1903, and intrusted with all police and sanitary bills which contain powers "in conflict with, deviation from, or excess of, the general law."[373:1]
A committee on divorce bills is still provided for in the rules, but since the power of granting divorces in England and Scotland has been entirely transferred to the courts, bills of this kind have become rare. While the various private bill committees are thus formed in slightly different ways, their mode of dealing with the measures that come before them is the same.
Locus Standi.
The bills referred to these committees have been described as "opposed," but that implies an opponent, and means, not an objector in the House, but an outside contestant on the basis of interest, for the chief object of these committees is a judicial hearing of opposing parties. If there is no opponent, so that the question is solely whether the privileges sought are consistent with the public welfare, the bill is said to be unopposed, and goes through quite a different procedure to be described hereafter. Plainly, therefore, the question who may oppose a bill, and on what grounds, is of vital importance. A person who enjoys the right is said to have a locus standi; and the first question to be decided is whether an opponent does or does not have it.
Now, any one who wishes to oppose a bill must, on or before Feb. 12, file a petition in the Private Bill Office, stating the ground of his objection,[373:2] and if the promoters contest his right to appear,[373:3] the question of locus standi is decided by the Court of Referees, consisting of the Chairman of Ways and Means, the Deputy Chairman, and not less than seven members of the House appointed by the Speaker. The Counsel to Mr. Speaker assists the court, but sits now only as an assessor.[373:4] The principal divergence in the procedure of the two Houses arises at this point, for questions of locus standi are determined in the House of Lords by the committee that considers the bill; and there is some difference of opinion about the relative merits of the two systems.[374:1] In both Houses the decisions are governed partly by express provisions in the standing orders,[374:2] and partly by precedents that have hardened into rules.
Grounds of Locus Standi.
In order to have a locus standi, an opponent must, as a rule, show that the bill may affect his property or business. He must prove a personal interest distinct from that of the rest of the community. Moreover, it is a general principle that, except on the ground of some special injury to themselves, both individuals and public boards are precluded from opposing before a private bill committee a public body on which they are represented. If, for example, a borough proposes to construct and work a tramway, an omnibus company has a right to be heard in opposition, but a rate-payer who believes that the plan will be financially disastrous has not.[374:3]
It is, of course, unnecessary to describe here all the kinds of private interest that will furnish a locus standi.[374:4] But in general, it may be said that the right is enjoyed by all persons whose land is to be compulsorily taken; by the owners and occupiers of buildings along the line of a proposed tramway; by traders affected by the tolls, fares, or rates proposed;[374:5] by public authorities; and sometimes by inhabitants acting on behalf of a county, town, or district, that is or may be affected. Competition, also, is a ground for locus standi, although the right to appear is usually confined to monopolies, to organisations that represent the trade as a whole, or to individuals whose business is important enough to represent that trade;[375:1] moreover the privilege is extended by the standing orders to chambers of agriculture, commerce or shipping.[375:2] While, therefore, the rules of locus standi are not perfectly logical, they are distinctly based upon private interest, individual or collective, and not upon the general welfare.
Hearing before the Committee.
The hearing of the parties before the committee follows the pattern of a trial in a court of law, even to the standing of the counsel employed. Up to this point the parties have been represented by parliamentary agents, who, although not necessarily attorneys or solicitors, hold a similar position, and must be registered in the Private Bill Office.[375:3] The actual hearings, however, like trials in court, are conducted by barristers. The fees, which are large, attract a high order of talent, and in fact the practice before private bill committees has become almost a distinct branch of the profession, the counsel who pursue it being known as the parliamentary bar.[375:4] The proceedings are strictly judicial in form, the barristers examining and cross-examining the witnesses and making the arguments in the ordinary way. Moreover, if either party has vexatiously subjected the other to expense, the committee can award costs like a court of law, and this is occasionally done.[375:5]
The first thing taken up is the preamble, the hearing upon this involving the general merits of the bill, so that if the committee is of opinion that promoters have failed to prove that part of their case, it reports at once against the bill. Otherwise the clauses are taken up in order, and the committee reports the bill with or without amendments.
The Committee and Public Policy.
Although the peculiar function of the committee consists in passing upon the conflicting claims of the parties that appear before it, the question whether the public welfare will be promoted by the enactment of the bill must be considered also. This is, of course, one of the chief things that the promoters must prove; but the committee seeks no evidence on its own account, nor can it permit a private person who has no locus standi to address it on the subject. In the interest of public policy, however, some safeguards have been devised. In the first place the standing orders direct that in various classes of measures certain provisions must be inserted. These relate to such matters as the level of roads, grade crossings, the amount of mortgages, the time for completing works, deposits to secure completion, minimum rates of fare, the application of general railway acts, leaving open spaces for recreation in enclosure bills, and the erection in London of new workmen's dwellings to replace others that are torn down. In some cases also the committee must report specially any unusual provisions contained in the bill, notably in relation to the borrowing powers of local authorities.
Moreover, on some questions the committee has the benefit of advice from public officials. That private bills must be filed with one or more of the public departments has already been pointed out. In a few cases the departments are directed to submit to Parliament a report upon the bill,[376:1] and they are always at liberty to do so. Under the rules these communications are referred to the committees,[376:2] which are required to notice in their reports the recommendations of the departments, and state the reasons for dissent where they have not been followed.[376:3] Occasionally, representatives of the departments appear before the committees;[377:1] and, what is more important, a general oversight of private bill legislation, with the right to make suggestions, is maintained by the officers of the Houses.[377:2] This is especially true of the Counsel to Mr. Speaker, and of the Chairman of Committees and his counsel in the House of Lords; but the question how effective their supervision is must be deferred until the results of the system are discussed.
Unopposed Bills.
Unopposed bills, that is bills where no adverse petition has been filed, or where the petitioner has not proved a locus standi, do not involve a judicial trial between contestants, but only an examination with a view to the public interest.[377:3] They are, therefore, referred to quite a different committee. Until 1903 it consisted of the Chairman, or Deputy Chairman, of the Committee of Ways and Means, and the Counsel to Mr. Speaker, assisted usually, but not always, by one other member of the House.[377:4] The Select Committee of 1902 on Private Business was of opinion that a body with so much authority ought to be strengthened by the addition of more members directly responsible to the House,[377:5] and in partial fulfilment of its recommendations the standing orders provided in the following year that the Committee on Unopposed Bills should consist of the Chairman and Deputy Chairman of Ways and Means, of two other members of the House, appointed by the Committee of Selection, and of the Counsel to Mr. Speaker.[378:1]
The bills having already been read through by the Speaker's Counsel, and in part by the Chairman of Ways and Means, the committee goes over them rapidly with the promoters, discussing chiefly such points as have been raised by the Speaker's Counsel, and by any reports from government departments.[378:2] If any other question should come up involving a new and important matter of public policy, the Chairman, who was already overworked, would formerly have avoided the responsibility of deciding it himself by reporting to the House, as he has power to do,[378:3] that the bill ought to be treated as opposed;[378:4] and this although there was no one to conduct the opposition.[378:5] One of the objects of strengthening the committee was to put it in a position to decide all such questions itself. As a matter of fact the committee often makes amendments in a bill, but seldom reports that it ought not to pass.
Report and Consideration.
After a bill, whether opposed or not, has been reported, the House, if dissatisfied, may recommit it either as a whole or with reference to particular clauses, and with or without instructions. When this does not happen, and it is unusual, the bill, if reported without amendment, and not a railway or tramway bill, stands ready for its third reading. If, on the other hand, it has been amended by the committee, or is a railway or tramway bill, it is ordered to lie upon the table for consideration on report.[378:6] At that stage amendments may be proposed, or a motion may be made to recommit, but in order to insure that the standing orders are complied with, both by the private bill committee and by the House itself, the consideration cannot take place until the Chairman of Ways and Means has informed the House that this is the case; nor can any amendments be offered until the Committee on Standing Orders has reported upon them, if the Chairman thinks it proper that they should do so.[379:1]
The last stage is that of third reading where only verbal amendments are in order.[379:2]
Private Bills in the Lords.
After passing through one House a private bill goes to the other, and there is the usual process for reaching an agreement upon amendments. It is needless to trace here the course of a private bill in the Lords.[379:3] The procedure is essentially the same as in the Commons, and the only differences of any consequence have already been mentioned in the text or in the notes. A great deal of discussion has taken place upon the wisdom of having two separate hearings before the private committees of the two Houses.[379:4] It has been suggested that a second hearing is needless, and that time and expense would be saved by having a single trial before a joint committee. On the other hand it is urged that where a bill is objectionable or defective the second hearing gives a better chance to reject or improve it; and that as a matter of fact the parties often accept the decision of the first committee, or compromise their differences, only about one third of the bills opposed in one house being opposed again in the other.[379:5]
Special Procedure for Scotland.
The inconvenience and expense of a trial before a committee in London led to a strong demand for hearings in Scotland upon private bills relating to that kingdom, and in 1899 a statute was enacted for that purpose.[380:1] The Act and the general orders made in pursuance thereof, provide that, instead of following the ordinary procedure, promoters of Scotch private bills shall, in April or December, file a petition with the Secretary for Scotland for a draft provisional order deposited therewith. They must also comply with rules similar to those in force for private bills about giving notice, and filing copies and plans with the government departments. The draft order is submitted to the Chairmen of Committees of the two Houses. If either of them is of opinion that it affects interests outside of Scotland, or is of such a character, or raises such a question of policy, that it ought not to be dealt with in the new way, then it takes the regular course of an English private bill. If not, the order follows the new Scotch procedure. The two Chairmen assign an examiner to see that the general orders about notice, and other matters, have been observed, the final power of dispensation in case of non-compliance resting also in their hands. After these preliminary steps have been taken, the petition is ready to begin its active career.
Scotch Private Bill committees.
If the petition is not opposed, the Secretary for Scotland may, after considering the reports of the public departments, make the provisional order, as prayed for or with amendments. In short, he takes the place of a committee on unopposed private bills. If, on the other hand, he thinks an inquiry ought to be held, or if the petition is opposed, he sends it to a commission selected on a curious plan designed to retain the work as far as possible in parliamentary hands. The difficulty, on one side, of getting members of Parliament to undertake such a service, and the desire, on the other, to retain a close connection with the Houses, resulted in a compromise between a parliamentary committee and a permanent commission.[381:1] Each House provides a panel of its own members, that of the Commons consisting of not more than fifteen members appointed by the Committee of Selection.[381:2] There is also an extra parliamentary panel of twenty men appointed for a term of five years by the two Chairmen and the Secretary for Scotland. The commission upon every petition consists of four persons taken from these panels, the Chairmen of Committees selecting two from the panel of each House, if possible; if not, they appoint as many of the four as they can from the two House panels indiscriminately, the remainder in any case being taken by the Secretary from the extra parliamentary panel.[381:3] The commission so formed holds its sessions, of course, in Scotland, proceeds like a committee upon an opposed private bill, and has power to decide all questions of locus standi. It reports to the Secretary whether the provisional order should be issued and in what form; and he acts accordingly.[381:4]
Confirmation by Parliament.
The order of the Secretary, whether opposed or unopposed, is not final, but provisional only, and requires confirmation by Parliament. He brings in a bill to confirm it, and if the order was not opposed in Scotland, or is not opposed in Parliament, it is treated as if it had already gone through all the stages up to and including committee, and is ordered to be considered as if reported from a committee of the House. But the right of the parties to a hearing in Parliament as the final court of appeal has been to some extent preserved, for a petition may be presented against any order that has been opposed, or has been the subject of a local inquiry, in Scotland, and in that case a motion may be made to refer the bill to a joint committee, which hears the parties as in the case of an ordinary private bill, but reports to both Houses. The question of permitting an appeal to a parliamentary committee in London was much discussed at the time, and the bill as finally passed reserved the right, limiting it to a single hearing before a joint committee, instead of two hearings before separate committees of each House as in the case of an ordinary private bill. The promoter, moreover, as well as the opponent, has a right to appeal to Parliament. If his draft order is refused, he may, without going through the other preliminary steps, file it in the form of a substitute bill in the proper public office, and proceed with it like a private bill.[382:1]
The Scotch procedure has thus the effect of a compulsory arbitration in Scotland, preceding a possible trial at Westminster. It appears, however, that a Scotch confirmation bill is in fact seldom opposed in London.
Ireland and Wales.
Two years after the Scotch statute was passed, similar acts were proposed for Ireland and for Wales, but neither of them was passed. A select committee on a Welsh bill of this kind reported in 1904 that the Scotch procedure as it stood was not adapted to Wales, and that any desire in England for a less costly procedure than now existed would best be met by an extension of the system of provisional orders. The committee remarked that while most of the witnesses examined thought the Scotch Act had worked well on the whole, some of them believed there had been no saving of expense in the case of large schemes. This was attributed by the witnesses mainly to the cost of bringing counsel and experts from London, and in fact, the evidence showed no little difference of opinion about the advantages of the new procedure in several respects.[382:2] In Ireland there is another obstacle to the adoption of the Scotch Act; for while local hearings on private bills would have especial value beyond St. George's Channel, the Nationalists do not want any form of devolution that leaves the final management of Irish affairs in the hands of the British Parliament.
Provisional Orders.
The vast amount of private legislation enacted in England every year is due in large measure to the absence of general statutes upon subjects that would seem to be ripe for them. Year after year private bills are passed on the same subject, until a policy is established which might well be crystallised into a general law, leaving the controversies that arise in its application to be settled by a body of purely judicial character; or, as in continental countries, a final power of dealing with these matters might, subject to rules fixed by law, be vested in the administrative departments. That many costly bills in Parliament would be saved by passing appropriate statutes has been suggested,[383:1] yet the process goes on slowly, and so far as it has been carried it is for the most part incomplete. During the last fifty years central administrative authority in local and other matters has increased enormously, but in conferring powers upon public departments Parliament has been reluctant to give up its own ultimate control over particular cases. This is especially true of the compulsory sale of land for public purposes; for property in land still retains a peculiar sanctity in England.[383:2]
Parliament has, no doubt, in many cases, delegated to the administrative organs of the state a final authority to grant special powers to local bodies or private companies, or at least to sanction their use;[383:3] but in other cases the grant must be laid before the Houses, and does not go into effect if either of them passes a resolution of disapproval.[383:4] Sometimes if opposed,[384:1] and more often whether opposed or not, the orders conferring the powers must be submitted to Parliament for a formal ratification. This is the origin of provisional orders. They are issued by a government office under the authority of statutes, but they are merely provisional until confirmed by Parliament. Except the Treasury, the Admiralty, and the Indian and Colonial Offices, which can hardly come into direct touch with local affairs, almost all the important departments, and even the county councils, have been given some powers of this kind; and they cover all manner of subjects that would otherwise be dealt with by private bills.[384:2]
Procedure upon Provisional Orders.
Provisional orders are begun by an application to the department that has power to issue them, and although the standing orders do not as a rule apply to these applications,[384:3] yet, by the enabling acts, or by the instructions issued by the departments themselves, similar regulations about notices, deposit of plans, consent of local authorities, and so forth, are enforced. The department usually holds, by means of an inspector, an inquiry on the spot; and either in this or in some other way objectors who are interested are given a chance to present their case. Upon the report of the inspector, and such other information as it obtains, the department decides whether it will make the order or not.
The orders made are then arranged in groups according to their subjects, and each group is scheduled to a confirming bill, which is introduced into Parliament like a public bill by the minister at the head of the department. But it is not treated as a public bill, still less as a government bill.
The minister does not try to force it through; he does not put pressure upon his followers by having the government whips act as tellers in a division. The measure is treated as a group of private bills, except that if an order is unopposed an officer of the department appears in support of it before the committee. The bill is read a first time, sent to the examiner, read a second time and referred to the Committee of Selection or the Committee on Railway and Canal Bills. Then if no petition has been filed against any of the orders in the bill it goes to the Committee on Unopposed Private Bills; otherwise it goes, with all the orders it contains, to an ordinary private bill committee which gives a hearing in the usual form to the promoters and opponents of the orders that are opposed.[385:1] Finally, the bill goes through the regular stages in the House.[385:2] In fact the standing orders direct[385:3] that provisional order bills, after being reported, shall be subject to the same rules as private bills, except so far as the payment of fees by the promoters is concerned.
Advantages of Provisional Orders.
The question of fees is a very important matter. It is one of the chief reasons for resorting to a provisional order; because the fees charged by the Houses to the promoters of private bills are heavy, and in the case of unopposed bills they form a large part of the cost of obtaining the act. An unopposed provisional order is, therefore, very much less expensive than an unopposed private bill; and although, with the large fees of counsel and expert witnesses, an opposed order may cost as much or even more than an opposed bill, it has the benefit of the presumption arising from the action of the department. Moreover, provisional orders, even if contested before the department, are not commonly opposed in the House. In the four years from 1898 to 1901 less than one tenth of the provisional orders were opposed in Parliament, and only one of them failed to pass.[386:1] It is, indeed, noteworthy that of the 2520 provisional orders issued by the Local Government Board from 1872 to 1902 only 23 were rejected by Parliament.[386:2]
Defects of Private Bill Legislation.
Expense.
The system of private bill legislation, like the rest of man's handiwork, is not altogether without defects. One of these is the costliness of the procedure. A local governing body that wants to do some obvious and necessary public duty, such as to take land for the purpose of a new street or schoolhouse, must go to the expense of getting a provisional order; or if the object happens to be one not covered by any statute for provisional orders, it must incur the greater cost of promoting a private bill; and in either case the owner, if determined to fight to the bitter end, can force the expense up to a considerable sum. In the House of Commons there is a fee for almost every step that is taken by the promoters of a private bill; the minimum fees for the various stages in the House itself taken together are never less than thirty-five pounds, and they increase according to the amount involved, up to four times as much. There is, moreover, a fee of ten pounds for each day that the committee sits, if the promoters appear by counsel, and of five pounds if they do not. Fees on a smaller scale are also charged to opponents. Altogether the annual receipts of the House of Commons from private bill legislation average over forty thousand pounds, while its expenses on that account are less than twelve thousand.[386:3] In the House of Lords the fees are arranged somewhat differently, but they are, on the whole, about as large;[386:4] so that the parliamentary charges on the smallest unopposed private bill amount to over one hundred and ninety pounds. Then there are the expenses of parliamentary and local agents, of printing, advertising, and, in the case of opposed bills, of counsel, witnesses, and experts. Sometimes, all this makes a very large sum. Birmingham, for example, spent £44,750 in 1892 in promoting a single bill.[387:1]
The total amount spent by local authorities in the United Kingdom during the seven years from 1892 to 1898 in promoting and opposing private bills was £1,396,407, while private companies expended for the same purpose £2,806,813. Adding the smaller sums spent on provisional orders, and those paid out by harbour and dock boards, the grand total consumed in private legislation was £4,496,834.[387:2] The cost of opposed bills cannot be materially reduced by Parliament if the present system is to be maintained; and while this is not true of unopposed bills, it has been argued that high fees are an earnest of good faith and tend to check private speculation in concessions.
Neglect of the Public Interest.
A second defect in the system is a lack of sufficient attention to the interests of the public. As early as 1865 it struck observers that, apart from certain partial safeguards, the public had no friend in this class of legislation.[387:3]
The fact is that private bill committees are chiefly occupied by a hearing between conflicting interests, in which a citizen whose only motive for appearing is the general welfare has no locus standi.[387:4] Moreover, they are shifting tribunals, whose decisions are uncertain, and whose very nature renders a consistent policy extremely difficult. In fact it is this uncertainty that often causes promoters to try the chance of a private bill, rather than apply for a provisional order on the same subject to a public department that is trying to enforce a well-known policy at variance in some respects with the powers the promoter is seeking to obtain.
The committees are sometimes willing to grant new and unusual powers, without enough regard for the ultimate effect of the precedent they create. This has been specially true in the case of borough councils, and was a cause of no small complaint before the Committee on Municipal Trading in 1900.
Effect of the Standing Orders.
There are, indeed, certain means of preserving uniformity of action that are more or less effective. The first of these are the standing orders, which lay down some rules for the guidance of the committees, and prescribe a few provisions that must be inserted in certain classes of bills. They do not, however, go very far.
Clauses Acts and Model Bills.
Then there are the clauses acts, of various kinds, which are practically always incorporated—though not without additions or exceptions—in private bills on the subjects with which they deal. There are, also, the model bills, which have been carefully drawn up as standards for the committees to follow, although they are by no means obliged to do so. But all these things tend merely to maintain uniformity in legislation of a well-recognised type, along familiar lines. They have little effect in cases where a request is made for new and unusual powers. Cases of that kind are not, indeed, wholly without supervision. If a bill deals with local police or health, it goes before the Police and Sanitary Committee created by the House of Commons for the very purpose of preserving a consistent policy in such matters, and of no small use in that way.[388:1] But this is true only for a very limited class of measures.
The Government Departments.
The only general oversight comes from the government departments, and the officers of Parliament. It has already been pointed out that all private bills must be referred to one or more of the departments, and that these are sometimes obliged, and always at liberty, to make reports upon them. The reports go to the private bill committees, which are required to notice the recommendations therein in their own reports to the House. The suggestions cannot, therefore, be entirely ignored, but the departments have no means of enforcing them. The Home Office is, indeed, always represented before the Committee on Police and Sanitary Bills,[389:1] but it is rarely asked to attend before others;[389:2] and, in general, it may be said that for a department to communicate with the committees save by its written reports is somewhat exceptional.[389:3] On novel questions of policy, moreover, the departments seem to follow rather than lead the private bill committees.[389:4]
Chairman of Ways and Means.
The officers of the Houses of Parliament have a more effective influence. Under the standing orders of the Commons all private bills must be shown to the Chairman of Ways and Means, both before they are considered by a committee and after any amendments have been made.[389:5] When sitting in the Committee on Unopposed Bills, he frequently requires the agent of the promoters to omit or insert clauses,[389:6] and occasionally he draws the attention of the chairman of a private bill committee to an extraordinary provision; but he does not feel it his duty to try to secure a general uniformity in private bills.[389:7] In fact, he is so busy that he can examine personally only a small part of them.[389:8] The appointment of a Deputy Chairman has been an assistance in this way.[389:9] But the work is mainly done by the Counsel to Mr. Speaker, who reads all the bills; makes a careful analysis of them, noting the reports from the government departments; sees the agents about any amendments he has to suggest; and calls the attention of the Chairman of Ways and Means to any matters that may require it.[389:10] Sometimes he is consulted by the chairman of a private bill committee;[390:1] while the paid referee, on account of his large experience, had formerly some influence with the committees.[390:2]
The Lord Chairman.
But by far the most important officer of Parliament in this respect is the Chairman of Committees in the House of Lords, the Lord Chairman, as he is called. Being less busy with public affairs than the House Chairman, he is able to devote much more time to private bill legislation. He examines all the bills, even reading those introduced into the House of Commons before the Speaker's Counsel sees them;[390:3] and he is in constant communication with the Chairman of Ways and Means, and with the government departments.[390:4] He does not, as a rule, act directly upon the private bill committees,[390:5] but he confers with the promoters of the bills or their agents, and explains to them what changes he requires them to make. In such cases the promoters usually comply with his wishes. In fact they are practically obliged to do so or withdraw their bill, because the second and third readings of private bills in the House of Lords are always moved by the Lord Chairman, who would simply refuse to act if his advice were not accepted. Of course, some other peer might make the motion and carry it, but this is said to have happened only once within living memory.[390:6] The Lord Chairman examines provisional orders less thoroughly, and if they contain objectionable provisions he confers with the department that is responsible for them rather than with the promoters.[390:7]
The greatest obstacles which the Lord Chairman meets with come from what are known as "agreed clauses," that is, clauses agreed upon between opponents and promoters of the bill. These in most cases are accepted without much examination by the private bill committees. The Lord Chairman tries to strike them out when he deems them against public policy; but this is not always easy, because it may be an injustice to one of the parties who has consented not to urge or oppose other provisions on the faith of those clauses. Moreover, even if the clauses are struck out of the bill, they may still be operative in fact, as the persons interested often feel bound in honour to carry them out. The matter has a very important bearing on the subject of municipal trading,[391:1] that is, the supply of public utilities by companies and public bodies, and it will be noticed hereafter in that connection. It is curious that the protection of the public interest in private bill legislation should depend very largely on the action of one man, and that man not the holder of a representative office or responsible to the public, but a member of an hereditary chamber who practically holds his post as long as he pleases.
Merits of the System.
If the English system of private bill legislation has its defects, they are far more than outweighed by its merits. The curse of most representative bodies at the present day is the tendency of the members to urge the interests of their localities or their constituents. It is this more than anything else that has brought legislatures into discredit, and has made them appear to be concerned with a tangled skein of private interests rather than with the public welfare.[391:2] It is this that makes possible the American boss, who draws his resources from his profession of private bill broker. Now the very essence of the English system lies in the fact that it tends to remove private and local bills from the general field of political discussion, and thus helps to rivet the attention of Parliament upon public matters. A ministry stands or falls upon its general legislative and administrative record, and not because it has offended one member by opposing the demands of a powerful company, and another by ignoring the desires of a borough council.
It Depends on the Support of the Committees by the House.
Such a condition would not be possible unless Parliament was willing to leave private legislation in the main to small impartial committees, and abide by their judgment. If this were not true—and it would not be true in most other legislatures—the promoters and opponents of the bill would attempt to forestall or reverse the decisions of the committees on the floor of the House, and would try to enlist the support of the members in their favour. That is, indeed, occasionally done, and has called forth no small complaint. Perhaps the most notable instance of late years was that of the bills for the organisation of companies to supply electric power in Durham and South Wales. The bills were opposed on the ground both of public policy and of local interest, and were rejected by the House of Commons in 1899 under the powerful influence of the Association of Municipal Corporations. Public feeling was, however, aroused, and the bills were passed in 1901.
In the very nature of things Parliament must have power to overrule the private bill committees, and sometimes does so, but the permanence of the system depends upon the fact that it is not done often. The question, therefore, whether there is a growing tendency to override the committees is a very interesting one. Such meagre statistics as have been collected would appear to show that there has been a slight increase in the number of bills opposed on second and third reading, and in the number of instructions to committees that have been moved,[392:1] as well as in the amount of time spent in the House in debating these matters.[392:2] It seems, also, to be the general opinion of men in close touch with private bill practice, that the habit of overruling the committees has gained ground of late years, but fortunately not to any dangerous extent.[393:1]
FOOTNOTES:
[367:1] For the History of this subject see Clifford's "History of Private Bill Legislation."
[367:2] The distinction between public and private bills, and public and private acts is not the same. The former depends upon the nature of the procedure in Parliament; while acts are classified as (1) Public General Acts, (2) Local Acts, which have the same legal effect as public acts, but apply only to a particular locality, and may relate to an organ of local government or a company; (3) Private Acts—now few in number—which are of a personal nature, and are not taken notice of by courts unless specially pleaded. With some exceptions that will appear sufficiently in the text, the acts in classes (2) and (3) do, and those in class (1) do not, go through the procedure of private bills.
Hybrid Bills.
Cf. May, 634-43. Ilbert, "Leg. Methods and Forms," 29-32. Moreover, as measures intended primarily to affect particular places, may, on account of their far-reaching importance, be treated as public bills, so others designed for public objects may interfere in a peculiar way with private interests. Measures of either kind are sometimes, under the name of "Hybrid Bills," put through a mixed procedure. They are introduced as public bills, and then referred to a private bill committee, which is, however, larger than an ordinary committee of that kind, the members being appointed partly by the House and partly by the Committee of Selection. A procedure of this sort is required in the case of bills of the London County Council for raising loans (S.O.P.B. 194).
[368:2] To distinguish between the two classes of standing orders the numbers of those relating to public business are printed in the parliamentary papers in bold-faced type. But in the footnotes to this book those relating to private business are referred to as S.O.P.B. The references are to the standing orders as revised in 1903, because a number of changes were made in that year in pursuance of the recommendations of the Select Committee of 1902. The statements in this chapter relate to the procedure in the House of Commons; for the practice in the House of Lords is so nearly the same in almost all essential points, that it is enough to indicate the more important differences in the text or in the notes. A memorandum on the differences in detail may be found in the Report of the Committee on Private Business (Com. Papers, 1902, VII., 321, App. 15).
[369:1] The rules about notice are contained in S.O.P.B. 3-22. See also May, 680-81.
[369:2] S.O.P.B. 23-31.
[369:3] Ibid., 32-34.
[369:4] Ibid., 35-37, 55-59. By the so-called Wharncliffe Order a special meeting of the members of any company must be held to authorise or ratify an application for a private bill. Ibid., 62-68.
[369:5] S.O.P.B. 69-78.
[369:6] May, 682; cf. Clifford, 788-95.
[369:7] S.O.P.B. 69-78, 230-32. May, 683-91.
[370:1] The legislative procedure in the House is regulated by Part IV. (193-226) of the Standing Orders Relating to Private Business; the conduct of the Private Bill Office by Part V. (227-49); the judicial procedure before private bill committees, with the supervision thereof by the officers of the House, and the prescription of provisions that must, or must not, be inserted, by Part III. (69-162).
[370:2] Rep. of Sel. Com. on Priv. Business, Com. Papers, 1888, XVI., 1, Q. 340; Rep. of a similar Com., Com. Papers, 1902, VII., 321, Qs. 193, 1957-5. Formerly many more private bills began in the Commons than in the Lords, but now the numbers are not very far from the same. Ibid., Q. 337, and App. 8.
[370:3] Until 1903 the division of bills between the two Houses was not made until after Parliament met. Ibid., Qs. 166-68, 197. But the committee of 1902 recommended a change which was made (Ibid., Report Sect. 18 S.O.P.B. 79).
[371:1] S.O.P.B. 91-97. There is a committee with similar powers in the House of Lords, composed of forty peers, besides the Chairman of Committees who with any two other members forms a quorum. May, 796.
[371:2] S.O.P.B. 197. This is a change made in accordance with the report of the Select Committee of 1902. Before that time a vote, though a formal one, took place on the first reading.
[371:3] Clifford, I., 70-71, 256; II., 821-43. Rep. of Com. on Priv. Bill Leg., Com. Papers, 1888, XVI., 1, p. xix.
[372:1] In the Lords the committees on opposed bills consist of five members and the chairman has no casting vote. In the Commons he has both an ordinary and a casting vote, S.O.P.B. 124. In the Lords there is no Committee on Railway and Canal Bills.
[372:2] S.O.P.B. 98, 103, 105-6, 108, 110-13, 116-17, 208. Until a few years ago there was a paid referee who could sit on the committee with an advisory voice but no vote. May, 728. There were formerly two paid referees, and later only one.
[372:3] Clifford, I., 117.
[372:4] S.O.P.B. 98-106, 115, 208.
[373:1] May, 767. Ilbert, "Manual," § 92, and p. 294. It is appointed by the Committee of Selection.
[373:2] S.O.P.B. 127-28. If the bill is brought from the House of Lords, or delayed in any other way, the petition must be filed within ten days of the first reading.
[373:3] May, 733.
[373:4] S.O.P.B. 87-89. Until 1902 the Speaker's Counsel and the paid referee were members, and the important members, of the court.
[374:1] Rep. Com. on Priv. Bill Leg., Com. Papers, 1888, XVI., 1, p. iv., and see the evidence before the Committee on Private Business, Com. Papers, 1902, VII., 321.
[374:2] S.O.P.B. 129-35. These precedents are collected in the reports of cases in the Court of Referees, by Rickards and Saunders, and Saunders and Austin.
[374:3] By the Borough Funds Act of 1872 the expense of promoting a private bill cannot be incurred by a local authority unless sanctioned by a meeting of the rate-payers. Glen, "Law of Public Health," 12 Ed., 483, 967-68. But this does not apply to matters for which provisional orders can be obtained. Ibid., 970; cf. Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 2242, 2290-92, 2329-31. By the Borough Funds Act, 1903, no such sanction is required for opposing a private bill.
[374:4] Cf. May, 734-52.
[374:5] But usually only in case they appear as a class. S.O.P.B. 133; May, 735.
[375:1] Rep. of Com. on Municipal Trading, Com. Papers, 1900, VII., 183, Qs. 576, 582, 2377.
[375:2] If the Court of Referees thinks fit. S.O.P.B. 133a. This provision is not restricted to cases of competition.
[375:3] May, 691-93.
[375:4] By custom, parliamentary counsel are never appointed to the bench, and as they cannot enter Parliament without giving up their practice, they are shut out from a political career.
[375:5] May, 781-82.
[376:1] Cf. S.O.P.B. 154, 155, 157a, 158b, 173, 194c.
[376:2] S.O.P.B. 212.
[376:3] Ibid., 150, 157, 157a, 173a, 194c, 194d.
[377:1] Rep. Com. on Municipal Trading, Com. Papers, 1900, VII., 1, Qs. 569, 985.
[377:2] Cf. S.O.P.B. 79-86.
[377:3] The total number of private bills that come before the House of Commons runs from 150 to 250 a year, and of these about one half are unopposed in that House. There are also about 50 unopposed provisional orders.
[377:4] Cf. S.O.P.B. (1902) 109, 137. For bills originating in the House the third man was the member indorsing the bill. But this member, if interested, locally or otherwise, although taking part in other ways, could not vote. S.O.P.B. (1902) 139, now S.O.P.B. 138. For bills coming from the House of Lords he was Mr. Parker Smith, M.P. Rep. Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 23, 68-69, 368; and see the Return printed yearly in the Commons Papers of the persons who served on the committee for each unopposed bill.
In the Lords the Committee on unopposed bills consists of the Chairman of Committees and such lords as think fit to attend, but the work is practically done by the Chairman and his counsel. May, 801. Rep. Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 1961, 1984-85, 2096, 2099-2104.
[377:5] Com. Papers, 1902, VII., 321, pp. viii-ix.
[378:1] S.O.P.B. 109.
[378:2] Rep. Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 25, 27, 72-73, 1393, 1405-8.
[378:3] S.O.P.B. 83, 209.
[378:4] Rep. Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 75-76, 1410-12.
[378:5] Ibid., Q. 1391.
[378:6] S.O.P.B. 213.
[379:1] S.O.P.B. 81, 84, 85, 215-16, 218. Amendments made by the Lords must also be laid before the Chairman of Ways and Means. Ibid., 86. Before consideration bills must also be sent again to the government departments where they have to be deposited before they are introduced. Ibid., 84.
[379:2] S.O.P.B. 219. In the House of Lords there is no consideration or report stage, and substantial amendments may be made on third reading. Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, App. 15.
[379:3] Cf. May, Ch. xxix.
[379:4] Cf. Reps. of the Sel. Coms. of 1888 and 1902, Com. Papers, 1888, XVI., 1; 1902, VII., 321.
[379:5] Cf. Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, Apps. 8, 12.
[380:1] 62-63 Vic., c. 47. Section 15 of the act empowers the Lord Chairman of Committees and the Chairman of Ways and Means, acting jointly with the Secretary for Scotland, to make, subject to objection by either House, general orders for regulating proceedings under the Act. These orders, which are voluminous, may be found in Com. Papers, 1900, LXVII., 649. A few standing orders for Scotch bills are published as Part VI. of the Standing Orders relating to Private Business.
[381:1] Rep. of Com. on Priv. Bill Proc. (Scotland), Com. Papers, 1898, XI., 625.
[381:2] S.O.P.B. 253.
[381:3] The parliamentary returns show that of the dozen persons required each year to make three commissions on groups of petitions, it has been necessary to take only a couple of names from the extra parliamentary panel.
[381:4] By § 8 if the commission report that the order be issued, he may amend their draft.
[382:1] S.O.P.B. 255-58.
[382:2] Com. Papers, 1904, VI., 409.
[383:1] E.g. Rep. of Com. on Police and Sanitary Bills, Com. Papers, 1898, XI., 555; Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, p. vii.
[383:2] The cases where land can be taken compulsorily without confirmation by Parliament, are few, and are in the main confined to widening highways, enlarging public buildings, providing for national defence, furnishing allotments to labourers, and acquiring land for parish purposes. The most striking departure from the rule is in the Act of 1896 for the construction of light railways. Cf. Ilbert, "Leg. Methods and Forms," 320.
[383:3] This applies to many matters connected with local government. It is true also of the construction of light railways. 59-60 Vic., c. 48, § 9.
[383:4] This is true, for example, of certificates granted by the Board of Trade to railways, for raising capital, working agreements, and other matters.
[384:1] To this class belong the orders for providing dwellings for the working classes, granting charters to municipal boroughs, changing the boundaries of divided parishes, constructing tramways in Ireland, etc.
[384:2] For a description of the various statutes giving authority to issue provisional orders see Clifford, Ch. xviii., and May, Ch. xxvi., and for a more exhaustive list of those relating to the Local Government Board see Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, App. 10.
[384:3] The only ones that apply are S.O.P.B. 38 and 39 about replacing workmen's dwellings and the deposit of plans.
[385:1] S.O.P.B. 208a.
[385:2] In the House of Lords an unopposed bill, like a public bill, is referred after second reading to a Committee of the Whole. An opposed order goes to a private bill committee, and then, with the rest of the bill to a Committee of the Whole.
[385:3] S.O.P.B. 151.
[386:1] Rep. of Com. on Priv. Business, Com. Papers, 1902, VII., 321, App. 11.
[386:2] Ibid., p. 185.
[386:3] Ibid., App. 6.
[386:4] Ibid., App. 15, and see the tables appended to the standing orders.
[387:1] Return of Expense of Private Bill Legislation, 1892-98, Com. Papers, 1900, LXVII., 111, p. 7.
[387:2] Ibid., 187, p. 66. See also the returns for the preceding seven years in Com. Papers, 1892, LXIII., 51.
[387:3] Clifford, II., 800.
[387:4] At the local inquiries held by the departments for the purpose of issuing provisional orders, any resident of the district has, in some cases, at least, a right to be heard. Macassey, "Private Bills and Provisional Orders," 388, 418.
[388:1] Rep. of Com. on Municipal Trading, Com. Papers, 1900, VII., 183, Qs. 421, 423.
[389:1] Rep. of the Com. on Municipal Trading, Com. Papers, 1900, VII., 183, Q. 987; Rep. of the Com. on Priv. Business, Com. Papers, 1902, VII., 321, Qs. 2368-69, 2403-4.
[389:2] Rep. of Com. on Priv. Business, 1902, VII., 321, Qs. 2378, 2401-2.
[389:3] Rep. of Com. on Municipal Trading, 1900, VII., 183, Qs. 233-34.
[389:4] Cf. Ibid., Qs. 3, 103, 145, and 1063.
[389:5] S.O.P.B. 80.
[389:6] Rep. of Committee on Priv. Business, 1902, VII., 321, Qs. 403-5.
[389:7] Ibid., Qs. 391-94.
[389:8] Ibid., Q. 2327.
[389:9] Ibid., Qs. 85-87.
[389:10] Rep. of Com. on Priv. Bill Legislation, Com. Papers, 1888, XVI., 1, Qs. 340-42.
[390:1] Rep. of Com. on Priv. Bill Legislation, Com. Papers, 1888, XVI., I., Qs. 348. Rep. of Com. on Municipal Trading, 1900, VII., 183, Q. 545.
[390:2] Rep. of Com. on Municipal Trading, 1900, VII., 183, Qs. 2372, 2393, and 2399.
[390:3] Rep. of Com. on Priv. Business, 1902, VII., 321, Q. 248.
[390:4] Rep. on Municipal Trading, 1900, VII., 183, Q. 3915.
[390:5] Ibid., Qs. 290-91 and 3923-24.
[390:6] Ibid., Qs. 284-85, 390, 3912, 3920, 3922; Rep. of Com. on Priv. Business, 1902, VII., 321, Qs. 77-80, 214-15.
[390:7] Rep. on Municipal Trading, 1900, VII., 183, Qs. 454-55 and 3917-18.
[391:1] Cf. Rep. on Municipal Trading, 1900, VII., 183, Qs. 298, 341-44, 347, 3939-41.
[391:2] For a careful study from this point of view of a fairly good legislative body, by one of its members well fitted to observe, see an article by Francis C. Lowell, in the Atlantic Monthly, LXXIX., 366-77, March, 1897.
[392:1] In the five years 1891-95 the number of bills opposed on second reading averaged 17-3/5, while from 1897-1901 they averaged 32. Rep. of Com. on Priv. Business, 1902, VII., 321, Q. 218.
[392:2] Rep. of Com. on Priv. Business, 1902, VII., 321, App. 2. But these periods are too short to warrant any accurate conclusion. In not more than eight or nine per cent. of the cases does the opposition seem to have succeeded. Ibid., Q. 219-20.
[393:1] Cf. Rep. of Com. on Priv. Bill Leg., Com. Papers, 1888, XVI., 1, Qs. 346-47, 487-88, 553, 1244. Rep. of Com. on Municipal Trading, 1900, VII., 183, Qs. 519, 523-26, 529. Com. on Priv. Business, 1902, VII., 321, Qs. 42-43. In conversation the writer found the opinion that the habit was increasing substantially universal.
When the Speaker's Counsel hears that opposition in the House is likely to be made, he sometimes tries to prevent it by arranging for a conference between the promoters and opponents in the presence of the Chairman of Ways and Means. Rep. of Com. on Priv. Bill Legislation, 1888, XVI., 1, Q. 346.
