i: . ■j^ ^ K\ ^ ■ H^N I » •• ■ m '"V^J .■•»,' Er ' , % '^ •'SSP -y .' j y. ii;... I M • .' 4» - « '^».i ,~ *. X ■ ^ ) ' d L' s."^ V fU/'v '.^.■4 |T"' t J iisS. i« ^^^^H .-t't-- F *«^ ^ .■C;;^";'-; /- ■ ''.,1 ^ '.f ^ / .•-.1 ■iS: -f-^' ^#^. 1 V mm u-^ ^.:: n- 4. . ...-..■V -/^■'^ :..'^:'ii Mi:-^. ^ I L I B RARY OF THE U N I VLR5 ITY or ILLI NOIS NOTES ON THE PRESENT SYSTEM OF PEIVATE BILL LEGISLATION. BY THEODOKE MARTIN. WESTMINSTER : J. B. NICHOLS AND SONS, 25, PARLIAMENT STREET. 1872. NOTES ON THE PRESENT SYSTEM OF PEIVATE BILL LEGISLATION. Until the opinion of the House of Commons had been expressed on the principle involved in Mr. Dodson's propositions, the body of which I am a member felt re- luctant to take part in the discussion. Whether Parlia- ment should delegate to some external and undefined judicial tribunal purely legislative functio^^s in matters which are often scarcely inferior in general importance to those which are dealt with in Public Bills, and which, at all events, affect interests, both public and private, of a magnitude far beyond those which fall within the jurisdic* tion of the highest judicial tribunals, seemed to be a ques- tion which the Legislature would determine upon broad general principles. Now that the House of Commons has pretty clearly indicated that it is not prepared to sur- render so large a portion of its peculiar privileges and duties, I no longer hesitate in expressing those opinions which long observation has enabled me to form of the present system of what is called ''Private Bill Legis- lation." Nor am I deterred by the apprehension that the opinions which I express may be attributed by some to self-interest ; or by the more charitable to that fondness which men have for a system to which their professional occupations have long habituated them. Practitioners before any tribunal must be very shortsighted if they are not anxious that its work should be as well and economically performed as possible, for on this the permanence of the tribunal must ultimately depend. They of all men must wish, therefore, to see reform, where reform is wanted, judiciously applied. But, even if my conviction that the present system as a whole is the best that has hitherto been devised may not be a circumstance entitled to much weight, yet being in direct and intimate contact with great municipal and com- mercial bodies who either promote or oppose the bulk of Private Bills, a Parliamentary Agent can at least say, with some authority, that the present agitation of the subject is not due to their dissatisfaction. Municipal bodies, gas and water companies, railway and dock boards, harbour and conservancy commissioners, all those bodies in short who as Promoters or Opponents of Private Bills are most frequently in Parliament, are not in a matter vital to their interests likely to be silent under a grievance so heavy as the present system is often alleged to be. In fact, not only are the great interests who are habitu- ally before Parliament not dissatisfied with the existing system, but (as I believe) they view with apprehension the suggestion that Parliament should divest itself of its functions with respect to Private Bills. Nor is this to be wondered at. They know that the uncertainties, the delays, the vast cost which are so often charged against the system, however true of a period long since past, when Committees were neither so well con- stituted, nor the business before them so well understood as they arQ now, do not arise under the present practice. They know that under the improvement which has for some years prevailed, if a case is unduly protracted, and consequently involved in immoderate expense, this is due. ■ Muc; not to the system, but to special circumstances, which would lead to the same, or even worse reults, before any- other tribunal. They know that as matters now stand, while personal rights and vested interests are sure of a fair consideration, no substantial public interest or advan- tage is allowed to be obstructed by them. They know, moreover, that the business, whether great or small, is disposed of with promptitude. And, above all, they have the assurance from long experience that the independence and vigorous common sense of the Committees lead them to arrive in effect, with very rare exceptions, at a sound judgment on the. varied questions of expediency sub- mitted to them, which could never be hoped for from a tribunal of a judicial character. It was well said by Mr. Dodson upon introducing his Resolutions, that the functions of Committees of Parlia- ment are rather those of an Arbitrator th^ of a judicial court. And so indeed they are. Questions of legal right, or of property, or even of contract. Committees wisely refuse to discuss. These thev leave to courts of law or of equity. But to determine upon the conflicting claims of vast Corporations ; to reconcile private rights with public interests, and to mete out to each a due measure of pro- tection; to intervene for the rescue from endless and ruinous litigation of undertakings on which the prosperity of whole districts or the welfare of a multitude of persons may depend ; — these offices and such as these are delegated to Committees of Parliament as high courts of arbitration. And I assert, after well nigh thirty years of active and varied practice, that these offices are not only honorably but wisely and promptly performed. Nor can I conceive, nor undoubtedly has there been yet suggested, any court of arbitration more likely to - 4 accomplish these important duties. Carefully selected from the picked men of the country ; usually presided over by a Member of experience in such inquiries ; always com- posed of gentlemen conversant with the various affairs of life ; aided, but I can safely say in no wise controlled, by a Bar who are the repositories of precedents for procedure; these Committees listen with unvarying courtesy to all relevant matter which is submitted to them. And I have often admired how, after determining some large question elaborately treated by able counsel and skilful witnesses, they will settle with equal care some comparatively minute matter— the crossing of a road, the taking of a stream—- arising out of the greater issue. If, instead of lending a willing ear to the clamour of those who with little knowledge of the facts tell them that the present system of Private Bill Legislation is vicious. Members of the House of Commons would believe, what is unquestionably true, that by the devotion of a com- paratively few hours of every year to serving on Private Committees they are sensibly contributing to the welfare of the country, and are fulJ&Uing a duty which they cannot without mischief delegate to others, I cannot help think- ing that it would be less difficult to find Members to serve on these Committees. Three specific charges are made against the present system; that it is uncertain in its results, that it is lengthy, and that it is costly. Pirst, as to its uncertainty. A little reflection will show that some uncertainty is inherent in the very subjects of enquiry. Whether a great town shall be supplied with water from one source or another ; whether a rival B^ail- way shall disturb the existing monopoly of a district ; whether the dock shall be constructed at this or that spot in an estuary, must be determined by the evidence in each case, and by consideration of conflicting claims. Concern- ing these things no man can be certain. Nor, again, is it any imputation upon Committees that this year they grant what last year they denied. The circumstances may, in the interval, have changed. Opponents may have been conciliated; objectionable details cured; additional evi- dence may have been obtained ; more careful arguments used. And so it is that the Committees of the second House may without inconsistency arrive upon the same Bill at a conclusion different from that of the first House. But so little capricious are the Committees of both Houses, that Counsel and Agents of experience can usually foretell the fate of Bills with tolerable accuracy. Now, with whatever care a permanent tribunal might be constituted, its members must insensibly, out of their very sense of responsibility, incline to be governed in their decisions by definite rules, or presupposed principles, or recorded judgments in what may be deemed analogous cases ; and thus would be sacrificed that freedom and elas- ticity of judgment which, in matters of legislation, the ever-shifting conditions of social wants and industrial development demand. Then as to the length of the proceedings : I am not concerned to deny, that it must occupy much time to ascer- tain facts which can only be established by the testimony of many witnesses. That this is not peculiar to Committees of Parliament has recently been abundantly demonstrated. But I do deny that time is wasted by superfluous evidence before Committees ; and I assert that the inquiries before Committees are conducted with greater promptitude than before courts of law. They are not fettered, as all judi- 6 cial tribunals must be, by technical and often vexatious rules, and so arrive more rapidly at the substantial issue. There is one merit peculiar to the conduct of private business in Parliament, and it is a merit of which any tribunal may well be proud ; Parliament disposes of all its private Bills in the Session in which they are introduced. There are no heart- sickening remanets ; no retaining of counsel and assembling of witnesses to be dismissed after great cost until the next Sittings. No matter how late a Bill is sent up to the House of Lords, five peers are found to consider it as diligently as though the inquiry were a primary duty of their station. But it is said that the proceedings before Parliament are costly. And so is all litigation costly where the matters at issue are of suflBicient importance to justify the employ- ment of eminent counsel and skilled witnesses. No doubt the House fees do tend to increase appreciably the cost of Parliamentary proceedings, especially with rela- tion to unopposed Bills. They are calculated on a scale that covers, one year with another, nearly the whole cost of the Parliamentary establishment, and the expense therefore of that establishment in connection with public as well as private business is borne by the promoters and opponents of Private Bills. The fees to both Houses upon the simplest Bill are upwards of £150, and only in the case of a few Bills less than £200. The House Pees ought not, as I think, to be more than sufficient to cover the cost of that part of the Par- liamentary Establishment which has to be maintained for the purposes of Private Bill Legislation. Thus at once the expense of Private Bills would be lightened. The other great expenses of Private Bills do not depend upon the tribunal. They must be incurred wherever the issues raised by them are tried, for they consist mainly of the fees of skilled advocates and scientific witnesses, which would certainly not be diminished by the removal of the business to another region, whether metropolitan or local. There may be instances under the present system where the cost of local witnesses is considerable, but these are comparatively few, for in most cases it is not upon the number, but the quality of evidence, that experienced practitioners now rely. Where works are in question the testimony of engineers or scientific men resident in the metropolis is usually indispensable, and the cost of obtain- ing their assistance away from London would, in most cases, if not all, outweigh the expense that is now incurred in bringing local witnesses to town. And this would be the same as to the Bar. The experience of j;he new elec- tion tribunals shows that the scale of fees now paid is far higher than when the Petitions were heard by Committees. With the Chairmen, who usually preside over the Com- mittees of both Houses, any attempt to protract a case by superfluous evidence is certain to be checked, and every year's practice has the effect of confining the procedure more and more to what is absolutely necessary for the fair hearing of the case. It seems now to be admitted on all hands, that, even if an external tribunal were established, an appeal to Parliament must, be granted as of right. This being so, it is surely worse than useless to establish a new tribunal to deal with questions, the ultimate j udgment on which is to rest with Parliament, to whom in every disputed case of importance appeal will certainly be made. Such a new tribunal is discredited by its very constitution. It can only act with effect in rejecting such schemes as are sub- 8 mitted to it. But even here its decisions will not carry with them the weight of a Parliamentary Committee. In every case of importance, the strength hoth of Promoters and Opponents will he reserved for the Parliamentary and final appeal. The estahlishment of such a tribunal, there- fore, can only increase an expense which is already said to he extravagant. Again it has been urged, that a large proportion of the minor questions which are now dealt with hy Bill might be disposed of in the way of Provisional Order. In simple matters of the internal arrangements of Companies, and in some cases where enlarged powers are desired with the consent of all parties affected, or which involve no en- croachment upon private rights, the system of Provisional Orders may be applicable. But, whenever individual rights are required to yield to public advantage, or a con- - flict arises between existing interests, as occurs in the great bulk of cases, the system of Provisional Orders has not been found to be acceptable. Will the result be different if a wider scope be given to the system ? I believe not. But this much is at least certain, that, if the right of appeal to Parliament be reserved, the extension of the system will neither save the time of Committee, nor expense to parties. And, even where measures are not opposed, there are substantial reasons for keeping them immediately under the control of Parliament. One great advantage of the present Private Bill practice is the publicity which is insured through all the stages of a measure. In Parliament everyone can watch the pro- gress of a Bill and see that nothing prejudicial to his interest is introduced at any of its stages. Instances of the 9 importance of this power are of constant occurrence. Pro- visions are not unfrequently introduced during the pro- gress of a Bill, by which private rights and property are seriously affected, and which, but for the publicity of the proceedings, would remain unknown to the parties affected until the mischief was irretrievable. The conformity of the framework of Bills with esta- blished principle and precedent is moreover secured by the careful supervision of the Chairman of Committees in the House of Lords, by whom every Private Bill is narrowly scrutinised, and who not only strives to prevent the intro- duction of anything contrary to public interest or acknow- ledged principle, but to secure a uniformity and exactitude in the language of Private Bills which are often found want- ing in Public Acts. How efficiently that work is done, with what regard to public objects, and with what vigilance for the protection of private rights, every practitioner in Par- liament will rejoice to bear witness, though most of us have wdnced at times under the process of supervision. The existing staff of officers for dealing with all unop- posed Bills (which as a rule relate to purely local ques- tions) being thoroughly efficient and not overweighted, there appears to be no sufficient reason why this class of Bills should be dealt with by any external tribunal. The formal passage of these Bills through Committee does not impose any duty upon Members which they are not per- fectly willing to discharge in the interests of their con- stituents. With reference to the question, how far the pressure of Private Bill Legislation on Members can be lightened, it may be well to test the actual facts. We take the case of last Session, when the amount of Private Business was above the average. 10 The opposed Bills in the Session of 1871, including Bills partly public and partly private, such as the Metropolitan Board of Works, the Metropolis Water, the New Mint, and the Dean Eorest Bills required the appointment of 37 Com- mittees. The number of Members nominated by the Committee of Selection to serve on these Committees was 148. The number actually appointed was 166, the excess of 18 being required to fill the places of Members who were discharged before the whole business of the Committee was completed. I believe that all practitioners in Parliament are of opinion that the Committees may, with advantage, be reduced to three Members, they alone having votes- Chairmen are, I know, sometimes reluctant to give a east- ing vote. Now, assuming 37 Committees as a fair average, although in fact it is a high one, and reducing the number of each Committee from 4 to 3, a change which would be univer- sally acceptable, the figures above given would be reduced from 148 to 111^ and from 166 to 129 respectively. Surely, it can scarcely be contended, that it would unduly tax the resources of the House of Commons to find this number of Members, to discharge the duties of Private Bill legislation. Laborious as these sometimes are, there is usually some compensation in the interest and importance of the questions at issue, and in the satisfaction of having been instrumental in establishing some great public work, or of having by a piece of well digested legislation settled almost by a stroke what years of litigation before judicial tribunals, acting on precedent and surrounded by causes of delay, would only have involved in greater difficulty. 11 It only remains to deal with the suggestion of a Joint Committee of both Houses. Instead of lightening the labours of Members, this would, I am satisfied, increase them. Divided, as Bills now are, in their first stages between the two Houses, it is only a proportion (about one-third) of the opposed cases to which the opposition is continued in the second House. But if all opposed Bills are to be dealt with by a Joint Com- mittee, Members of both Houses will of course have to sit on every opposed Bill ; and not only would a larger number of Members be in this way called upon to serve, — for in no case, it is presumed, would the number on each Committee be less than three Members of each House, — but they would at the same time have to sit for longer periods. As a rule the contest in the first House is more prolonged than in the second. It is not merely that the area of opposition is, on a re-hearing, diminished, but the real points of the case have been cleared of what is second- ary or irrelevant. The Joint Committee moreover would be in the position of the Committee in the first House, with this addition, that the contested Clauses must always be dealt with, which are now not unfrequently left to the second hearing. The sittings cannot fail therefore to be proportionately protracted. There will, therefore, be no relief to Members from a system of Joint Committees. That it is not desired by the parties chiefly interested in Private Bill Legislation there . can be no doubt ; neither will it be found, on due con- sideration of its practical results, to be expedient in itself. The interests dealt with by Private Bills are of such magnitude as, to entitle them to the review of a second tribunal ; and Promoters who are seeking great privileges from Parliament have no right to complain of an appeal against an adverse decision by those whose rights or pro- 12 perties are affected by it. Committees, whether of Lords or Commons, may be misled, as even tribunals purely judicial are liable to be, by circumstances which prevent the discovery of truth, such for example as partial repre- sentations, or evidence which has come upon one of the parties by surprise. A tribunal of appeal, before which the true issue is raised more clearly, and on sifted evi- dence, is not liable to the same chances of error. Again, the rejection of a Bill by a Joint Committee would not be final ; the Bill would, if of importance, be re-introduced in another Session : while a decision adverse to Opponents would either be final, thereby creating a a sense of injustice, or be followed by an appeal to the House itself for recommittal or other relief, with all the evils of canvassing and of partial statements uncorrobo- rated by evidence. Moreover, the real merits of the cases of Opponents are frequently not appreciated by the Promoters themselves until disclosed in the first House. And, although the opposition may have been unsuccessful there, the Pro- moters become satisfied that it is not groundless ; and so, rather than imperil their Bill by a second discussion, they wisely concede points which might have been settled by a Joint Committee irrevocably in their favour. Hence it is that not more than one-third of the Bills opposed in the first House are opposed in the second. Mutual conces- sions, founded on a knowledge of the relative strength of their cases, produce a measure ultimately satisfactory to both parties. Again, notwithstanding the publication of Notices of Private Bills in the Gazette and newspapers, it frequently happens that parties affected by such Bills do not become aware of the provisions that affect them until after the Bills have passed through Committee in the first House ? 13 How are persons in this position to obtain redress under a system of Joint Committees ? The system of a single Joint Committee would operate with great hardship in another large class of cases, where alterations are made in Bills in Committee, which ma- terially affect parties who are not then present, and who have no means of objecting, except by Petition to the second House. And, if there is to be no second inquiry, how are the rights of dissenting shareholders to a hearing against such alterations to be secured ? Neither is it unimportant to consider, that in the inter- val between the two inquiries, under the present system, the provisions introduced in the first House, and which of necessity are often hastily prepared to meet the decision of a Committee, are carefully examined, and reduced to a form both more comprehensive and precise, so as to leave as little scope as may be for future misunderstanding or dispute. Under a system of Joint Commiftees this ad- vantage would be lost, and Bills would have to be intro- duced in a future Session to remove obscurities or repair omissions which, under the present state of things, would have been prevented. Einally, the great excellence of a tribunal being that not only should justice be done by it, but that it should be ac- knowledged to be done ; is a Joint Committee likely to create this conviction ? It would not give greater confidence to the suitors than a Committee of either House alone ; and its adverse decision, if final, would leave behind it great dis- content. On the other hand the cases are rare indeed where parties who have had a fair hearing before two Committees do not acquiesce in the fitness of the decision. In conclusion, I would repeat my conviction, shared, I believe, in the main by all my professional brethren, that 14 the existing system is satisfactory to the suitors in Par- liament ; and that if the House fees are somewhat reduced, and if the Committees shall consist of three Memhers who of com'se alone should vote, there will be no need to resort to any new tribunals. The number of days on which Committees on opposed Private Bills in the last Session sat, was as follows : — 2 Committees 4 ditto 4i ditto . 2 ditto 3 ditto . 4 ditto 1 ditto . 4 ditto 1 ditto 1 ditto 3 ditto . 2 ditto 1 ditto . 1 ditto 1 ditto . 1 ditto 1 ditto . 1 ditto 1 day. 2 days. 3 4 5 6 7 9 11 13 14 15 16 17 18 19 21 27 37 PINIS. «■! mmm^mimwwmm:m^^ms^mim • /'■ ■ . ^t.% '^ '*^ m 'K ^-4^-^ ..^..i^^^^^ ^.