The Government of England Part 44

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 pa.s.s.[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]

[Sidenote: Defects of Private Bill Legislation.]

[Sidenote: 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.

[Sidenote: 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 cla.s.s 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 Munic.i.p.al Trading in 1900.

[Sidenote: 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 cla.s.ses of bills. They do not, however, go very far.

[Sidenote: 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 cla.s.s of measures.

[Sidenote: 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]

[Sidenote: 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 a.s.sistance 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 a.n.a.lysis 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]

[Sidenote: 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 munic.i.p.al 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.

[Sidenote: 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 const.i.tuents. 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.

[Sidenote: 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 a.s.sociation of Munic.i.p.al Corporations. Public feeling was, however, aroused, and the bills were pa.s.sed 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 cla.s.sified 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 cla.s.ses (2) and (3) do, and those in cla.s.s (1) do not, go through the procedure of private bills.

[368:1]

[Sidenote: 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 cla.s.ses 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 Ca.n.a.l 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.