The Government of England (Vol. I)

by A. Lawrence Lowell

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.