The Government of England Part 43

[Sidenote: 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 ca.n.a.ls, 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]

[Sidenote: Railway and Ca.n.a.l Bills.]

In order to secure greater uniformity in the private acts relating to railways, a general committee on railway and ca.n.a.l 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]

[Sidenote: 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.

[Sidenote: _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 pet.i.tion 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 a.s.sists the court, but sits now only as an a.s.sessor.[373:4] The princ.i.p.al 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.

[Sidenote: 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. Compet.i.tion, 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.

[Sidenote: 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.

[Sidenote: The Committee and Public Policy.]

Although the peculiar function of the committee consists in pa.s.sing 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 cla.s.ses 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 s.p.a.ces 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.

[Sidenote: Unopposed Bills.]

Unopposed bills, that is bills where no adverse pet.i.tion has been filed, or where the pet.i.tioner 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, a.s.sisted 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 pa.s.s.

[Sidenote: 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]

[Sidenote: Private Bills in the Lords.]

After pa.s.sing 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]

[Sidenote: 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 pet.i.tion 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 a.s.sign 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 pet.i.tion is ready to begin its active career.

[Sidenote: Scotch Private Bill committees.]

If the pet.i.tion 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 pet.i.tion 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 pet.i.tion 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]

[Sidenote: 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 pet.i.tion 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 pa.s.sed 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 subst.i.tute 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.

[Sidenote: Ireland and Wales.]

Two years after the Scotch statute was pa.s.sed, similar acts were proposed for Ireland and for Wales, but neither of them was pa.s.sed. 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.

[Sidenote: 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 pa.s.sed 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 pa.s.sing 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 sanct.i.ty 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 pa.s.ses 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]

[Sidenote: 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 Ca.n.a.l Bills. Then if no pet.i.tion 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.

[Sidenote: Advantages of Provisional Orders.]