in one direction is apt to conceal weakness in another. An English
ministry with a good majority at its back appears omnipotent. It
announces its policy, forces through its bills against the protests of
the Opposition, and even against appeals from members on its own side
not to put pressure upon them. But the power it exerts is in large part
the resultant of other forces less openly displayed. If, on pain of
disloyalty, and for fear of handing the government over to the
adversary, the private adherent of the party in power must follow the
whips in critical divisions, the ministers, on their part, are sometimes
compelled by an insistent group of their supporters to adopt one
measure, or to mutilate or abandon another. They cannot disregard the
serious objections of any considerable section of their own followers,
and this has become more and more true with the evolution of the
parliamentary system. Half a century ago they might win as many votes
from the other side of the House as they lost on their own, but that is
rarely possible to-day. They must now carry with them on every question
substantially the whole of their party.[361:1] Their omnipotence is
therefore a very limited and cautious omnipotence, and this has shown
itself, especially under the late Conservative government, in the meagre
annual production of statutes.
[Sidenote: Revision and Codification of Statutes.]
If the legislation of a country is to consist, not in passing
comprehensive laws dealing with a whole subject, but in making
progressive changes by tinkering and patching the existing acts, it
would seem an obvious convenience to issue from time to time new
editions of those acts compiled in a more compact and intelligible form.
It would be a great advantage to have frequent revisions or
codification of the statutes on a subject, not involving a change of
substance, but merely a simplification of form. But such a process of
consolidation has not been common in England. A great deal of labour was
expended on this object by several commissions during the nineteenth
century; but the only positive results have been the production of two
editions of revised statutes--being simply the statutes at large
rearranged with the parts no longer in force omitted--and the passage of
a limited number of acts consolidating the statutes on certain
subjects.[362:1] Such acts are not easy to pass, because, as Sir
Courtenay Ilbert remarks, "It is difficult to disabuse the average
member of Parliament of the notion that the introduction of a
consolidation bill affords a suitable opportunity for proposing
amendments, to satisfy him that reenactment does not mean approval or
perpetuation of the existing law, or to convince him that attempts to
combine substantial amendment with consolidation almost inevitably spell
failure in both."[362:2] The process has neither been extended to so
many subjects, nor repeated at such short intervals, as might be wished.
[Sidenote: Temporary Laws.]
Another curious result of the difficulty of enacting laws may be seen in
the long list of temporary statutes, continued in force from time to
time, sometimes for many years. Some of these are acts of a transitory
nature, designed to cover an emergency, or to deal with an ephemeral
state of things. Laws of that kind expire with the conditions that
called them forth. But the English temporary acts often relate to
permanent matters. That a statute of an experimental character should be
enacted at the outset for a limited period is natural enough, but when
the period has come to an end, and the experiment has proved a success,
one would expect to see the law reenacted in an enduring form. In
England, however, there is passed every year an Expiring Laws
Continuance Act, giving another twelve-month's lease of life to a list
of acts appended in a schedule, many of which are already old. One or
two have already reached the age of threescore years and ten; and among
the list are still found the Ballot Act of 1872, with most of the
statutes of the last half century that regulate the conduct of
elections. The reason for the existence of perpetual temporary laws is
to be found, no doubt, in the fact that in this form they can be
continued almost without opposition, while an attempt to enact them as
permanent statutes would give rise to great debates with a host of
amendments, and consume a vast deal of the one thing whereof the
ministry has never enough--that is time.
[Sidenote: Delegation of Legislative Power.]
The limited capacity of Parliament to pass statutes is not felt as a
pressing evil, because the period of great remedial legislation is over.
The transition from the political and industrial conditions of the
eighteenth century has been accomplished, and the consequent change in
laws and institutions has been, in the main, effected. The demand for
radical legislation is, therefore, comparatively small, and for the time
at least the process of making law can afford to run slow. Yet it may be
doubted whether, with the great extension in the sphere of government,
Parliament could be suffered to move at its present pace were it not for
the growing practice of delegating legislative power. We hear much talk
about the need for a devolution of the power of Parliament on
subordinate representative bodies, but the tendency is not mainly in
that direction. The authority of this kind vested in the county councils
by recent statutes is small, too small to affect the question. The real
delegation has been in favour of the administrative departments of the
central government, and this involves a striking departure from
Anglo-Saxon traditions, with a distinct approach to the practice of
continental countries.[363:1]
[Sidenote: Statutory Orders.]
Formerly an English statute went into great detail, attempting to
provide expressly for every question that could possibly arise. Its
interpretation, or its applicability to a special case, could be
determined only by the courts, while its defects could be remedied, or
its omissions filled up, only by another statute. It contained in itself
the complete expression of the legislative will. But of late it has
become more and more common for Parliament to embody in a statute only
general provisions, and give to some public department a power to make
regulations for completing the details, and applying the act to
particular cases. These regulations--known as statutory orders--cover a
great variety of subjects, and govern not only the duties of officials,
and the administration of public affairs, both national and local, but
also the conduct of individuals in the management of their own concerns.
They prescribe, for example, how many persons can live on canal-boats,
the number of cubic feet of air in factories, the precautions that must
be taken for cleanliness in dairies, what per cent of water may be
contained in genuine butter, and under an authority of this kind a
general order was issued in 1900 for muzzling all the dogs in the
country.
[Sidenote: Control of Parliament over Provisional Orders.]
Parliament usually attempts to retain a control, or at least an
oversight, of the orders made by the public departments under the
authority delegated to them in this way. Sometimes the order is issued
under a power that is provisional only, and does not become operative
until confirmed by a statute. This is usually, though not
invariably,[364:1] true of rights granted to private companies or local
authorities to construct works of public utility, such as waterworks,
gas-works, tramways, and the like.[364:2] Provisional orders of that
kind do not involve any true delegation of legislative power, because
they derive their validity, not from the act of the department, but from
the statutes by which they are confirmed; and they are included among
the Acts of Parliament, and not the statutory orders of the year.
Practically, however, they are almost always confirmed without
amendment.
[Sidenote: Over Statutory Orders.]
Parliamentary control over statutory orders strictly so called, which
involve a real delegation of legislative power, is commonly maintained
by requiring them to be reported to the two Houses; and in order to give
an opportunity for preliminary criticism, the regulation, or a draft
thereof, must sometimes be laid on the table for a certain time before
it becomes operative.[365:1] Moreover, control by Parliament is often
expressly reserved by providing that if, within forty days, either House
presents an address to the Crown against a draft or order, then the
order shall not be made, or in case it has already gone into effect it
shall thenceforth be void.[365:2] An address under such a provision is
exempted from the rule about the interruption of business in the House
of Commons, and hence can be moved by a private member at the close of
the sitting on any evening, without taking his chance in drawing lots,
or appealing to the government for a part of its time.[365:3] As a
matter of fact, motions of this kind are uncommon, and are rarely, if
ever, successful; although the frequency with which the statutory orders
are revised by the departments would seem to show that the officials who
make them are highly sensitive to outside opinion.
Since 1893 the statutory orders of each year have been regularly
published like the Acts of Parliament;[365:4] and an idea of their
number may be derived from the fact that they always fill one, and often
two, large volumes, each much thicker than the present emaciated book of
the Public General Acts.[366:1] In spite of the potential control
retained by the Houses over statutory orders, the growing habit of
delegating authority to make them involves a substantial transfer of
power from Parliament to the executive branch of the government, a
transfer due in part to the increasing difficulty in legislation.
The existing relation between the cabinet and the House of Commons has
thus had a number of distinct, and at first sight contradictory,
effects. While placing the initiative for almost all important
legislation in the hands of the ministers, it has tended to reduce the
number and completeness of the laws they can carry through; and on the
other hand it has helped to invest them with a power of subordinate or
secondary legislation quite foreign to English traditions. This is true
of public matters, but in regard to private and local acts the relation
of the cabinet to Parliament, and hence the effects of that relation,
are wholly different.
FOOTNOTES:
[356:1] _Cf._ Ilbert, "Legislative Methods and Forms," 217.
[356:2] Ilbert, _Ibid._, 90-91. Private bills are, of course, drafted by
the counsel for the petitioners, and provisional order bills by the
department that grants the provisional order.
[356:3] Ilbert, "Leg. Methods and Forms," 86 note. The Scotch and Irish
bills, and almost all the most important Indian bills, are drawn by
draftsmen attached to the offices for those countries.
[357:1] Sir Courtenay Ilbert, himself Parliamentary Counsel at the time
he wrote his work on "Legislative Methods and Forms," has given therein
an excellent description of the history (67-69, 80-85) and the work
(85-97, 218-19, 227-31) of the office.
[357:2] "Leg. Methods and Forms," 229-31.
[358:1] "Leg. Methods and Forms," 254.
[358:2] Rex _vs._ West Riding of Yorkshire, (1906) 2 K.B., 676.
[358:3] Atty. Gen. _vs._ West Riding of Yorkshire, (1907) App. Cas., 29.
[359:1] Ilbert, "Leg. Methods and Forms," 217, 241.
[359:2] _Ibid._, 217-18. _Cf._ 254-66.
[359:3] This is particularly true in the case of local and private
bills, where the provisions of "Clauses Acts" must often be
incorporated, either by the terms of those acts, or in consequence of
the standing orders on private business. _Ibid._, 261.
[359:4] _Cf. Ibid._, 266-68.
[360:1] Ilbert, "Leg. Methods and Forms," 230.
[361:1] The extent to which this is done, and the amount it has
increased, is shown by statistics in the chapter on "The Strength of
Party Ties." The difficulty to-day comes, not from the opinions or
interests of individual members, but from groups of members acting on
public grounds, or at least, on grounds which affect a great part of
their constituents.
[362:1] Ilbert, "Leg. Methods and Forms," Chs. iv., vii.
[362:2] _Ibid._, 113.
[363:1] _Cf._ Ilbert, "Leg. Methods and Forms," Chap. iii., and pp.
220-21, 224.
[364:1] Authority, for example, to construct a light railway, which is
legally distinct, but physically indistinguishable, from a tramway, does
not require confirmation by Parliament, 59-60 Vic., c. 48, Sec.9.
[364:2] A change in the boundaries of a county or borough requires in
the same way confirmation by Parliament; but an order altering an urban
or rural district or parish, requires only to be laid upon the table of
each House, 51-52 Vic., c. 41 (part 3).
[365:1] Drafts of orders that are not required to be laid before
Parliament before they come into operation, must, by 56-57 Vic., c. 66,
Sec. 1, be open to criticism, by any public body interested, for forty
days before they are finally settled and made. But this does not apply
to rules made by the Local Government Board, the Board of Trade and some
others (Sec. 1 (4)).
[365:2] _Cf._ Ilbert, "Leg. Methods and Forms," 41, _cf._ 310-14.
[365:3] Ilbert, "Manual," Sec. 36.
[365:4] 56-57 Vic., c. 60, Sec. 3.
[366:1] This last, however, does not contain the text, but only a list
of titles, of local and private acts, although many of them are legally
public general acts. On the other hand the published statutory orders
for the year do not include by any means all the orders of a temporary
nature.
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.
[Sidenote: 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.
[Sidenote: 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]
[Sidenote: 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]
[Sidenote: 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]
[Sidenote: 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]
[Sidenote: 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]
[Sidenote: 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.
[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 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]
[Sidenote: 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]
[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 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.
[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. 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.
[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 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.
[Sidenote: 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.
[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 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]
[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
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.
[Sidenote: 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]
[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 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.
[Sidenote: 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.
[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
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]
[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 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.
[Sidenote: 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]
[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_l._ 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_l._, while private companies expended for the same
purpose 2,806,813_l._. 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_l._[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
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.
[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 classes 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 class 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 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]
[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 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.
[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 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.
[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 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.
[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 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," Sec. 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 Sec. 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,
Sec. 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.
CHAPTER XXI
THE HOUSE OF LORDS
Tracing its origin to the ancient council of the magnates of the realm,
the House of Lords has, in the fulness of time, undergone several
changes of character.[394:1] From a meeting of the Great Council of the
King, it became an assembly of his principal vassals, the chief
landholders of the Kingdom, ecclesiastical and lay; and finally it was
gradually transformed into a chamber of hereditary peers, enjoying their
honours by virtue of a grant from the Crown. Each phase has left a trace
upon its organisation or functions, or upon the privileges of its
members.
[Sidenote: Composition of the House.]
Before the Reformation the ecclesiastics in the House of Lords,[394:2]
including the abbots and priors, usually outnumbered the laymen; but
upon the dissolution of the monasteries, and the disappearance therewith
of the abbots and priors, the proportions were reversed, and the
hereditary element became predominant. At present the House contains
several kinds of members, for it must be remembered that every peer has
not a right to sit, and all members of the House are not in every
respect peers.
[Sidenote: The Hereditary Peers.]
First there are the peers with hereditary seats. They are the peers of
England, created before the union with Scotland in 1707; the peers of
Great Britain created between that time and the union with Ireland in
1801; and the peers of the United Kingdom created thereafter. They rank
as dukes, marquises, earls, viscounts, and barons, whose precedence,
with that of their wives and children, furnishes abundant interest to
those who care for such things. The Crown, that is, the ministry of the
day, has unlimited power to create hereditary peerages with any rules of
descent known to the law in the case of estates in land,[395:1] and
since the accession of George III. the power has been freely used. All
but seventy-four out of nearly six hundred seats belong to this class,
which is now the only channel for an increase in the membership of the
House.
[Sidenote: The Representative Peers of Scotland.]
When the union with Scotland was made in 1707, the Scotch peers were
more numerous in proportion to population than the English; and
therefore, instead of admitting them all to the House of Lords, it was
provided that they should elect sixteen representatives of their order
for the duration of each Parliament. No provision was made for the
creation of new Scotch peers, so that with the dying out of peerages,
and the giving of hereditary seats to Scotch noblemen by creating them
peers of the United Kingdom,[395:2] the number of Scotch peers who have
no seats in their own right has fallen from one hundred and sixty-five
to thirty-three. Within another generation they may not be more than
enough to furnish the sixteen representatives.
[Sidenote: Of Ireland.]
The same problem arose upon the union with Ireland a hundred years
later; but the Scotch precedent was not followed in all respects; for
the act provided that the Irish peers should elect twenty-eight of their
number representatives for life, and an arrangement was also made for
perpetuating the nobility of Ireland within certain limits. Not more
than one new Irish peerage was to be created for every three that became
extinct, until the number--exclusive of those having hereditary seats in
the House of Lords under other titles--had fallen to one hundred, a
limit above which it can never be raised.[396:1] There is another
important difference between the Scotch and Irish peers. The former are
wholly excluded from the House of Commons, but the latter can sit for
any constituency in Great Britain, though not in Ireland. Under this
provision Irish peers have, in fact, often sat in the Commons, the most
famous case being that of Lord Palmerston. The Irish peerage thus
affords an opportunity to ennoble a statesman, without putting an end to
his political career in the popular chamber.
[Sidenote: The Bishops.]
The dissolution of the monasteries, by removing the abbots and priors
from the House of Lords, left the bishops the only spiritual peers; and
as such they have held their seats to the present day. By the time the
union with Scotland was made, the established church of that kingdom was
Presbyterian in form, and no Scotch ecclesiastics were added to the
House of Lords. But the Irish established church was Episcopal and
Protestant, and hence at the union with Ireland in 1801 four places were
given to her bishops, who filled them by rotation sitting for a session
apiece. With the disestablishment of the Irish Church in 1869 its
representatives vanished from Parliament, leaving the English prelates
as the only spiritual peers in the House of Lords.[396:2] Meanwhile the
greater attention paid to the needs of the Church has brought about the
creation of new bishoprics in England; but in order not to increase the
number of spiritual peers, it has been provided that while the
Archbishops of Canterbury and York, with the Bishops of London, Durham,
and Winchester, shall always have seats in the House of Lords, of the
rest only the twenty-one shall sit who are seniors in the order of
appointment.[396:3] The spiritual peers are members of the House solely
by virtue of their office, and so long as they retain it. Except, in
fact, for the five great sees they are members only by virtue of
seniority in office. At times the Nonconformists have tried to exclude
them altogether; but with the growth in the number of lay peers their
relative importance has diminished, and it is not probable that they
will be removed, unless as part of a larger movement for the reform of
the House of Lords, or the disestablishment of the Church.
[Sidenote: Life Peers.]
[Sidenote: The Case of Baron Wensleydale.]
Since the House of Lords is not only a legislative chamber, but also the
highest court of appeal for the British Isles, it is well that it should
contain at all times the legal talent required for the purpose. An
obvious method of accomplishing the result, without permanently
enlarging the House, or hampering the career of heirs who may not have
the wealth to support the dignity, is by giving seats for life to
eminent judges. With this object Sir James Parke, a distinguished baron
of the Court of Exchequer, received in 1856 a patent as Baron
Wensleydale for life. Much learning has been expended upon the question
whether the Crown has ever exercised the power to create a life peer
with a seat in the House of Lords,[397:1] and whether, if it ever
existed, the power has become obsolete; but the Wensleydale case was
settled by a vote of the House that the Letters Patent did not enable
the grantee to sit and vote in Parliament. Sir James Parke was thereupon
created Baron Wensleydale with an hereditary title, and the appointment
of Law Lords as life peers was postponed a score of years.
[Sidenote: The Lords of Appeal.]
At last the need for increasing the legal members of the House became so
clear that in 1876 an act was passed to authorise the appointment of
two, and ultimately of four, Lords of Appeal in Ordinary for
life.[397:2] They hold the position, and enjoy a salary of six thousand
pounds, on the same tenure as other judges; and since 1887 they have
also had a right to sit in the House as long as they live, irrespective
of their tenure of the office. The motive for their creation was simply
to strengthen the House of Lords as a court of appeal. Proposals for
life peerages on a more extended scale have also been made in connection
with plans to reform the House of Lords as a branch of Parliament. So
far these have come to nothing; and, as we shall see hereafter, it is by
no means clear that they would attain the end in view, or that, if they
did, they would be wise.
[Sidenote: The House Determines the Qualification of its Members.]
The authority of the House of Lords to determine the validity of new
patents has already been referred to in connection with the Wensleydale
case. It is also empowered by statute to pass upon the election of
Scotch and Irish representative peers. Disputed claims to the succession
of hereditary peerages, on the other hand, may be settled by the Crown
on its own authority, but it is the habit at the present day to refer
these likewise for decision to the Lords.[398:1]
[Sidenote: Disqualifications.]
Infants, aliens, bankrupts, and persons under sentence for grave
offences, are incapable of sitting in the House of Lords;[398:2] and
instances occurred in the seventeenth century of special sentence of
exclusion by the House itself. But more important from a political point
of view than the disqualifications for the upper chamber is the fact
that a peer cannot escape from the peerage. This is sometimes a
misfortune when a man, who has made his mark in the House of Commons,
has an obscure greatness thrust upon him by the untimely death of his
father. In such a case he loses at once and forever his seat in the
House where the active warfare of politics goes on, and this although he
may be a Scotch peer, who has no seat in the House of Lords. The
question was debated at some length in 1895, when Lord Selborne tried to
retain his seat in the Commons by omitting to apply for a writ of
summons as a peer; but the Commons decided that he could not do
so.[398:3]
[Sidenote: Personal Privileges of the Peers.]
Besides the liberty of speech and freedom from arrest which they
possess in common with the members of the other House, the peers, partly
in memory of their position as councillors of the Crown, partly as an
aftermath of feudal conditions, retain certain personal privileges, of
small political importance, but sometimes of interest to the person
concerned. One of these is the right of access to the sovereign for the
purpose of an audience on public affairs. Another is the right to be
tried by their peers in all cases of treason or felony.[399:1] If
Parliament is in session, the trial is conducted by the whole House of
Lords, presided over by the Lord High Steward appointed by the Crown. If
not it takes place in the court of the Lord High Steward, to which,
however, all the peers are summoned.[399:2] The privilege extends to the
Scotch and Irish peers, whether chosen to sit in the House of Lords or
not; to the life peers; to peeresses in their own right; and to the
wives and widows of peers, unless they have "disparaged" themselves by a
second marriage with a commoner; but it does not extend to the bishops,
or to Irish peers while members of the House of Commons.[399:3]
[Sidenote: Functions of the House.]
The House of Lords is both a coordinate branch of Parliament and a court
of law. Its duties as a court of appeal will be described in another
chapter with the rest of the national judicial system, and its original
jurisdiction, in the trial of peers and of impeachments brought by the
House of Commons, is no longer of much consequence. The evolution of the
political responsibility of ministers has made impeachment a clumsy and
useless device for getting rid of an official, while the greater
efficiency of the criminal law has made it needless for punishing an
offender; and in fact the last case where it was used was that of Lord
Melville, one hundred years ago. It may be noted, however, in this
connection that the House still retains the right to require the
attendance of the judges, not only when acting in a judicial capacity,
but on all occasions when it may need their advice.
[Sidenote: Money Bills.]
Since the House is a coordinate branch of the legislature, every act of
Parliament requires its assent, and although in practice it is far less
powerful than the House of Commons, the only subject on which the
limitations of its authority can be stated with precision is that of
finance. As far back as 1671 the Commons resolved "That, in all aids
given to the King, by the Commons, the Rate or Tax ought not to be
altered by the Lords";[400:1] and in 1678 they adopted another
resolution that all bills granting supplies "ought to begin with the
Commons. And that it is the undoubted and sole right of the Commons, to
direct, limit, and appoint, in such Bills, the Ends, Purposes,
Considerations, Conditions, Limitations, and Qualifications of such
Grants; which ought not to be changed, or altered by the House of
Lords."[400:2] The Commons have clung to this principle ever since,
enforcing it by a refusal to consider bills in which the Lords have
inserted or amended financial provisions; and although the Lords have
never expressly admitted the claim, they have in fact submitted to
it.[400:3]
[Sidenote: Paper Duties Bill in 1860.]
The upper House can, of course, reject a money bill altogether, but the
history of the last case where they did so shows the futility of such a
power by itself. In 1860 the ministry brought in a bill to repeal the
duties on paper, which hindered the development of a cheap newspaper
press, and the Lords rejected it in spite of the fact that the budget
already passed imposed additional taxation to make up for the loss of
revenue from paper. The next year the repeal of the paper duties was
simply included in the annual tax bill, and forced through in that way.
It is now the regular practice to include all the taxation in one bill,
and as the peers never venture to reject as a whole either this, or any
of the great measures granting supplies, it is truly said that the
House of Lords cannot initiate or amend, and practically cannot reject,
any money bill. The principle applies not only to the national receipts
and expenditures, but also to local rates,[401:1] but it does not apply
to revenues of the Crown or the Church, nor at the present day to
penalties or fees not payable into the Exchequer.[401:2]
[Sidenote: Tacking.]
It might be supposed that the Commons could carry any piece of
legislation by tacking it to a money bill. This was formerly done; but
the Lords have long had a standing order forbidding such a practice, and
no attempt has been made of late years to revive it.[401:3] Moreover the
rule about money bills is not strictly enforced where the financial
provision is merely incidental to general legislation. The Lords are
free to omit such a clause altogether,[401:4] or if it is so interwoven
with the rest of the measure that it cannot be treated separately, the
Commons have often waived their rights and taken into consideration
amendments made by the Lords.[401:5] For the sake of convenience they
have gone farther still, for they suffer expedients to be used, that
really evade, while recognising, their privilege. Bills are sometimes
introduced in the House of Lords with financial provisions which are
struck out on third reading. In the Commons these provisions are printed
as ghosts, underlined or in brackets, to indicate that they are not at
the moment a part of the bill, but that a motion will be made in
committee to reinsert them.[401:6] What is more, the Commons have
adopted a standing order that it will not insist on its privileges in
the case of private, or provisional order, bills which impose tolls, or
authorise rates by local authorities for local purposes.[401:7]
The rule about money bills applies only to measures actually before
Parliament. It does not prevent the House of Lords from expressing an
opinion upon financial matters either in debate or by resolution, or
from inquiring into them by means of select committees.[402:1] In 1903,
indeed, was seen the curious spectacle of the House of Lords debating
freely Mr. Chamberlain's fiscal policy, while the Opposition in the
Commons was striving almost in vain for an opportunity to do so.
[Sidenote: Officers of the House of Lords.]
Except when a peer is being tried the Lord Chancellor presides over the
House. In practice he is always made a peer, but this is not a legal
necessity, and, in fact, the woolsack, on which he sits, is commonly
said not to be within the House itself. Perhaps for this very reason he
has not the authority of the Speaker of the Commons in ruling upon
points of order. He does not even decide which peer shall speak, but if
more than one rise at once, and refuse to give way, the question who
shall have the floor is decided by the House itself, if necessary by
division.[402:2] Order in debate, also, is enforced not by him but by
the Lords themselves. Moreover, he has no casting vote, and it is
characteristic of his position that the peers do not address him, but
speak to "My Lords." In short, his functions are limited to formal
proceedings, and even in these he can be overruled by the House.[402:3]
If a peer he can, of course, as such, take part in debate; but otherwise
not. During his absence one of the deputy speakers, appointed by the
Crown, takes his place, or if none of these be present the House
appoints a speaker _pro tempore_.[402:4]
The other principal officers of the House are the Lord Chairman of
Committees, chosen by the House itself, who presides in Committee of the
Whole, and who, as we have seen, has great influence over private bill
legislation; the Clerk of the Parliaments, who acts as Clerk of the
House; the Gentleman Usher of the Black Rod, who acts as messenger of
the House on great and formal occasions; and the Sergeant-at-Arms; all
these last three being appointed by the Crown.
[Sidenote: Quorum.]
The quorum of the House is fixed at the absurdly small number of three,
but this is to some extent delusive, for the presence of thirty Lords is
necessary for an effectual division upon any stage of a bill. Formerly
the House occasionally imposed fines upon its absent members, a practice
that has fallen into disuse. The privilege of voting by proxy has also
disappeared. It was abolished by standing order in 1868.[403:1]
[Sidenote: Procedure.]
The procedure upon bills is in general similar to that in the House of
Commons. There are two readings, and then a Committee of the Whole,
followed by a third reading; and there is the familiar rule that no
member can speak more than once to the same question, except in
Committee of the Whole. The chief difference from the Commons consists
in the rule adopted in recent years for referring bills after the
committee stage, and before report, to a standing committee appointed by
the Committee of Selection.[403:2] This gives an opportunity to revise
the drafting of a bill that has been battered out of shape in its
passage through Parliament. As a matter of practice, however, the
reference to a standing committee is usually omitted, for the Lords are
quite in the habit of shortening the process of legislation by special
vote of the House. The committee stage is often left out altogether; and
in money bills this always is done. On the appropriation bills, indeed,
there is rarely any debate, and all the stages are not infrequently
taken on one day.
[Sidenote: The Peers have Abundance of Time.]
The Lords have no constituents to impress, and hence there are not so
many members as in the Commons who want to take part in debate.
Moreover, they are not obliged to devote a large part of their time to
supply and to the budget; and as their chamber is not the place where
the great political battles are fought, the Opposition does not oppose
at every possible step. They can, therefore, get through their work at
leisure. They make use, indeed, of select and sessional committees in
much the same way as the Commons; but, having time enough to consider
every bill in Committee of the Whole, they do not need time-saving
machinery like the Standing Committees on Law and Trade. For the same
reason, and because there is no disposition to wilful obstruction, they
do not require and do not have a closure to cut off debate. Their
sittings also are short. On Wednesday and Saturday they seldom meet at
all, while on other days their usual hour of meeting is half-past four,
and they rarely sit after dinner-time.
[Sidenote: Their Action is Little Fettered by Rules.]
On the other hand, the very fact that the fate of ministers does not
hang upon their votes renders possible a much larger freedom of action
than in the Commons. There is not the same need of precaution against
hasty, ill-considered motions, or against votes that might embarrass the
government without implying a real lack of confidence. Hence there is no
restriction upon the motions that can be brought forward, save that
notice must be given beforehand;[404:1] and any question to a minister
may be followed by a general debate, provided again that notice of the
question has been given in the orders of the day.[404:2]
FOOTNOTES:
[394:1] The best history of the House is Pike's "Constitutional History
of the House of Lords."
[394:2] The question whether they sat by virtue of their tenure of land,
or of their offices in the Church, has been a subject of some
discussion. _Cf._ Pike, 151 _et seq._ Anson, I., 220-22.
[395:1] And possibly with others. _Cf._ Anson, I., 197-200.
[395:2] At one time the House of Lords held that a Scotch peer could not
be given an hereditary seat as a peer of Great Britain; but this
decision was afterwards reversed. Pike, 361-62. A peer so created can
still vote for representatives as a Scotch peer. _Ibid._, 362-63. And
there has been some doubt whether, if a representative peer, he vacates
his seat at once. _Ibid._, 362, May, 13.
[396:1] The number is now less than one hundred.
[396:2] The Bishop of Sodor and Man has a seat, but no vote.
[396:3] There are now ten English bishops who do not sit in the House of
Lords.
[397:1] _Cf._ Pike, 369-76. Stubbs, "Const. Hist.," 5 Ed., III., 454.
[397:2] Before appointment they must have held high judicial office for
two years, or have practised at the English, Scotch, or Irish bar for
fifteen years.
[398:1] Pike, 285-87; Anson, I., 227-28. These cases are referred to the
Committee of Privileges.
[398:2] The Act of 1870 abolished corruption of blood, so that a
sentence no longer cuts off the heirs.
[398:3] Hans. 4 Ser. XXXIII., 1058 _et seq._, 1174 _et seq._, and 1728
_et seq._ _Cf._ Rep. of Com. on Vacating of Seats, Com. Papers, 1895,
X., 561.
[399:1] For misdemeanors, peers, like other persons, are tried by an
ordinary jury.
[399:2] Upon conviction a peer is now liable to the same punishment as
other offenders.
[399:3] For the history of the subject in general see Pike, Chs. x.,
xi., and for that of the bishops, _Ibid._, 151-68, 179-94, 219-23.
[400:1] 9 Com. Journals, 235.
[400:2] 9 _Ibid._, 509.
[400:3] _Cf._ May, "Const. Hist.," I., Ch. viii., 444.
[401:1] May, "Parl. Prac.," 542.
[401:2] _Ibid._, 547, 549-50.
[401:3] _Ibid._, 552-53.
[401:4] _Ibid._, 551-52.
[401:5] _Cf. Ibid._, 544-46.
[401:6] For the same purpose the Lords sometimes insert a clause, in a
bill or amendment, that a financial provision really essential to their
plan shall not be operative, and then the Commons strike the clause out.
May, 547-49.
[401:7] S.O.P.B. 226. Sometimes, also, at the request of the member in
charge of a bill, the Commons consent to waive a privilege on which they
might have insisted.
[402:1] May, 541.
[402:2] _Ibid._, 296-97.
[402:3] _Ibid._, 186, 307.
[402:4] A Lord Keeper of the Great Seal has the same rights to preside
as the Lord Chancellor, and if the Seal be in commission the Crown
appoints a Lord Speaker. May, 184-86.
[403:1] Two days' notice must be given of a motion to suspend this
order. May, 350-51.
[403:2] May, 376, 377.
[404:1] May, 204, 205.
[404:2] _Ibid._, 206.
CHAPTER XXII
THE CABINET AND THE HOUSE OF LORDS
[Sidenote: Effect of The Reform Act of 1832.]
By sweeping away rotten boroughs, and giving representatives to new
centres of industry, the Reform Act of 1832 made a great change in the
position of the House of Lords; not by lessening its power--for since
the Great Rebellion the Lords as a branch of the legislature has never
had much power--but by the change in the composition of the House of
Commons which opened a door to conflicts between the two bodies. In the
old unreformed days the Lords and Commons were in general accord,
because both were controlled by a territorial aristocracy whose chief
members were peers. That element remained, no doubt, strong in the
Commons after the Act of 1832, but it was no longer overmastering, and
it had to use its authority in a more popular spirit, so that the two
Houses ceased to be controlled by the same force. By bringing about this
result the Reform Act drew attention to the fact that an hereditary
body, however great the personal influence of its members, could not in
nineteenth century England be the equal in corporate authority of a
representative chamber. It became apparent that the House of Lords might
on important issues differ in opinion from the House of Commons, and
that in such cases an enduring desire of the nation, as expressed in the
representative chamber, must prevail.
[Sidenote: Power of the Lords Thereafter.]
This did not mean that the House of Lords must submit to everything that
the Commons chose to ordain; that it was to become a mere fifth wheel of
the coach; on the contrary, in matters not of great importance, or on
which the Commons were not thoroughly in earnest, it exercised its own
judgment, sometimes in cases that caused no little friction between the
Houses. In 1860, for example, it rejected the bill to repeal the duties
on paper; in 1871 it refused to concur in the abolition of the purchase
of commissions in the Army; and in 1880 it rejected the bill to
compensate evicted Irish tenants. In all these cases the policy of the
House of Commons was ultimately carried out; and the peers recognised
fully that their action on great measures was tentative; that they must
not go too far; and that if public opinion was persistent they must in
the end give way. As Mr. Sidney Low well says: "The House of Lords, ever
since the struggle over the great Reform Bill, has been haunted by a
suspicion that it exists on sufferance."[406:1]
[Sidenote: The House of Lords is Conservative.]
From the fact that it represents, in the main, the interests of
property, and especially of landed property, the House of Lords tends
naturally to be conservative, in the sense that it is adverse to popular
demands which appear dangerous to interests of that kind, or indeed to
the established order of things; but more than this, the peerage as a
mass tends from its social position in the nation to gravitate toward
the political party that clings to the nobility and the Church as
pillars of the state. During the half century that followed the first
Reform Act, the Liberals were in power much the greater part of the
time, and they created by far the larger number of peers;[406:2] yet the
House of Lords remained firmly Conservative throughout; for even Liberal
peers--and still more their descendants--are drawn by a steady current
to the other side; a current that was accelerated, but not caused, by
the Home Rule Bill.
The House is, in fact, overwhelmingly Conservative. Of the hereditary
peers more than four fifths belong to the Unionist party; and the
disproportion is increased by the representatives from Scotland and
Ireland. In the case of Ireland this is the inevitable result of the
method of choosing, because elections occur only one at a time on the
death of a representative peer, and his successor is always taken from
the dominant--that is, the Unionist--party. In Scotland, there being no
provision for minority representation, the same result takes place, the
majority electing all the sixteen peers for the Parliament from its own
side; and thus the representative peers from both kingdoms, forty-four
in number, are Unionists to a man.
[Sidenote: Meaning of the Term "Conservative."]
It is commonly said that the House of Lords is a conservative body which
acts as a drag on hasty legislation, and holds back until the nation
shows clearly that it has made up its mind. This is undoubtedly true,
and if it were the whole truth the limited authority retained by the
House would provoke no strong resentment in any quarter; but it is only
a part of the truth. The word "conservative" has two distinct meanings
in England, according as it is spelled with a small or a capital C. The
first signifies an aversion to change; the second, one of the two great
political parties in the state. Now, for more than a generation after
the Reform Act of 1832 these two meanings of the word were not very far
apart. The Conservative party was to such an extent the party of
resistance to change as to make plausible, if not accurate, Macaulay's
comparison of the two parties that divided the nation to the fore and
hind legs of a stag, the Liberals being always in advance, and the
Conservatives following their footsteps at a distance. The simile
expressed one aspect of a not uncommon feeling, that the direction of
the national policy rested normally with the Liberals, but that when
they went too fast the Conservatives would come to power for a short
time, while the country adjusted itself to its new conditions. That
under these circumstances the House of Lords should act with the
Conservative party, and should help them to play the part of a brake
from time to time, not in order to stop, but only to slow down, the
coach on a hill, was natural, and not open to serious objection. But
Disraeli's constant preaching against a merely negative policy, coupled
with the need of seeking for working-class support after the extension
of the franchise by the Reform Act of 1867, led to the abandonment by
the Tories of the attitude of resistance to change. Even if it be true
that the new Tory democracy is, on the whole, less progressive than the
Liberal party, it is certainly not opposed to all progress. In more than
one direction, indeed, it is distinctly more favourable to change. If
the stag has not become double-headed, he has, at least, learned to walk
with either end in front; and this change in the Tory party has had a
marked effect upon the position of the House of Lords.
[Sidenote: The House has Become a Tool of the Conservative Party.]
Although the Conservatives have outgrown their negative attitude of
resistance to change, and have become an aggressive party with a
positive policy, they have retained and even strengthened their control
of the House of Lords. The House has not, of course, lost all volition
so completely as merely to register the commands of the Unionist
leaders. To some extent it has its own opinions, which are now more
conservative than theirs; and even when they are in power it amends the
lesser details of their bills with a good deal of freedom, sometimes
making its own views prevail. In 1899, for example, it struck out of the
London Local Government Bill the provision allowing women to vote for
the borough councils, a change that the Commons accepted with
reluctance; and in 1902 it succeeded in making amendments to the
Elementary Education Bill, which threw upon the rates the burden of
current repairs in the Church schools, and preserved some control by the
bishops over religious instruction therein.
But while the House of Lords has a will of its own in smaller questions,
on the great party struggles that rend the country it throws its weight
wholly on the side of the Tories, and plays into their hands. Thus, from
1892 to 1895, and again in 1906,--the only two occasions on which the
Liberals have been in office for a score of years,--the House of Lords
used its power boldly to hobble the government. That it did so to help
the Unionist party, and not simply from conservative objection to
change, is curiously brought out by its treatment of the principal
measures of 1906. Besides the Education Bill, where the conflict of
opinion lay very deep, two other government measures that aroused some
feeling came to it from the Commons. One of them, the Trades Dispute
Bill, which provided that a trade union should not be liable to suit for
any action it might take during a strike, was certainly a radical
measure, and one to which a chamber of conservative temperament might
well object; but the Lords passed it without amendment. The other, the
Plural Voting Bill, designed to prevent a man from voting in more than
one place, involved no very profound question of principle, and made no
very far-reaching change in English institutions, but was a bone of
contention between the parties because it affected the chances of
election in close districts. This bill the House of Lords summarily
rejected.
The fact is that since the Reform Act of 1832 government by party has
become highly developed; and although the differences between the
principles of the two parties may be less fundamental than they were
formerly, the voting in Parliament runs very much more strictly on party
lines.[409:1] Politics have become more completely a battle between
parties, in which it is more difficult than ever to avoid taking sides,
while the combatants try to make use of every weapon within their reach.
Now the very accentuation of party has made it easier for the peers to
resist a Liberal ministry, because in doing so they are evidently
opposing, not the people as a whole, but only a part of the people, and
a part that is a majority by a very small fraction. In this way it has
happened that the House of Lords, without ceasing to have an opinion of
its own on other matters, has become for party purposes an instrument in
the hands of the Tory leaders, who use it as a bishop or knight of their
own colour on the chess-board of party politics.
[Sidenote: Position of the House in Forcing a Referendum.]
A cabinet never thinks of resigning on account of the hostility of the
Lords; nor is its position directly affected by their action.
Indirectly, however, it may be very seriously impaired, if the peers,
claiming that the government is not really in accord with the
electorate, reject important measures, and thereby challenge a
dissolution of Parliament. By doing so they may reduce a ministry, that
is not in a condition to dissolve, to a state of political impotence,
both in fact and in the eyes of the nation. This was true of the Liberal
administration in 1893-94, when the peers rejected the Home Rule Bill,
and made amendments that struck at the root of the Parish Councils and
Employers' Liability Bills, changing the latter in a manner so vital
that the government finally withdrew the measure altogether. The
Liberals protested that the House of Lords thwarted the will of the
people, and ought to be ended or mended. The alliteration helped to make
the phrase a catchword, but the cry excited popular enthusiasm so little
that at the dissolution in 1895 the country upheld the same party as the
House of Lords, and returned a large Unionist majority to Parliament.