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not be required to-day may be required to-morrow. Under these circumstances any certainty of result, any uniformity of decision, would be a reproach and not a merit to the tribunal. What we must have is uniform patience in hearing, uniform impartiality in deciding cases. That is what we do in fact find in Committees, and what we should, in all probability, fail to secure from any permanent tribunal of a judicial character. It is the failure to understand this distinction which has led to this foolish demanda demand which was once vigorously made by Mr. Lowe in the House of Commons. Speaking in 1864, he said, “ Although decisions are continually being given upon points of the greatest consequence to the public, no rule, no law is created. A judicial decision is of value to the litigants, but it is of still greater value to the rest of the community, who steer their course by it, and are thus enabled to avoid litigation. Such a result, however, has not been attained by the action of our Committees. One does not know what another has done or is doing. No record is kept.
kept. Although a point may have arisen twenty times before, it is treated as a case of first impression, and the same question is often decided by different Committees in diametrically opposite ways. The result is that no one knows when he is sure to maintain his own rights, and no one can tell that he may not overthrow the right of another person. If a judicial and permanent element be introduced into the Committees, their judgments will be reported and gathered together and will form precedents which will guide future decisions.” (Hansard, Vol. 175, p. 1563-4.) Accordingly, acting on this advice—which was thought to be good—the House of Commons established the Court of Referees. At first, the Court inquired into engineering details and estimates, and worked so badly and increased litigation to such an extent, that its functions were ultimately restricted to determining the right of petitioners to be heard upon their petitions.
Writing in 1872, Sir Edmund Beckett said of this Court,
I have no hesitation in saying, after eight years trial, that the Court of Referees has become a nuisance to the suitors and the laughing stock of the profession” (Times, 21st May, 1872); and a writer in the Saturday Review says,
Many practitioners at first approved of the reference of question of locus standi to a separate tribunal; but experience has led to an almost unanimous condemnation of the present practice.” (Saturday Review, 23rd March, 1872). That the result of the constitution of any similar tribunal to deal with petitions for Private Bills would be equally or more unsatisfactory, it requires no prescience to predict. But is it called for ? Are the results of Private Bill legislation unsatisfactory to the public, or the promoters or opponents of Private Bills ? Mr. Leeman, Chairman of the North-Eastern Railway Company, bore his testimony in the House of Commons to the satisfaction which was felt by the railway world in the existing system, and Lord Bury, in the same debate, spoke to a similar effect.* Sir Theodore Martin, too, in the pamphlet already referred to, says, that having been brought into intimate contact with great municipal and commercial bodies who either promote or oppose the bulk of Private Bills, he can say with some authority that the agitation "was not due to their dissatisfaction,” and Mr. Dodson himself bears testimony to the like effect, when he speaks of it being “a singular circumstance that although the procedure by application to the departments was a shorter and cheaper one, there was an inconceivable preference to apply to the House by Bill.” It would require a good deal of evidence after these authoritative statements to induce us to believe that there was any strong feeling of dissatisfaction upon the part of
Mr. Denison, also a railway director, was opposed to the resolution; and the Railway News (9th March, 1872) took a view adverse to the proposed change on the same grounds.
those who are interested in the matter. Any dissatisfaction which has been felt, as Mr. Dodson said in the course of the same debate, has been due to the length and costliness of the proceedings. But we cannot believe that in either of these respects would the proposed scheme do anything to remedy the evils complained of. As a remark of minor importance we may say that the immediate economy of substituting highly paid Commissioners for members of Committee, who perform the work gratuitously, is not so easily appreciated. But as we have seen, both in length and costliness the Local Government Inquiry as to the Lower Thames Valley Sewage Scheme, has exceeded all Parliamentary contests of recent years. But is it not evident that the contest out of Parliament which Mr. Dodson proposes, and the subsequent contest in Parliament before the joint Committee, would be very equivalent, in so far as length and expense were concerned, to the two contests which may take place on an important Bill at the present time. That two contests do not always take place it is unnecessary to say. As a fact, only a small proportion of the Bills are opposed in both Houses of Parliament, but the fact that they can be opposed in both Houses is often a means of making the promoters more reasonable to the claims of opponents than they would otherwise be.
We have now dealt with, we believe we have disposed of, all the arguments which have been brought forward in favour of a change, except that which we referred to in the first instance, viz., the increasing demand made by public business on the time of members, and the difficulty which is said to be felt in getting members to devote themselves to Private Bill business. It is a question whether private business is not quite as important as much of the business which goes under the large name of Public; but it is certain that any member who does his work upon a Private Bill Committee is discharging a responsible and important duty to the
public. True, if he is always speaking in the House, and is reported by the Central Press Association, he may have the satisfaction of seeing more of his words in print, and bulking larger in the wondering eyes of his constituents, than he would if he devoted himself to the useful work which is done in the lobbies; but we question much whether he would do better service to the public. The demand upon the time of members who have to sit upon Select Committees might, as Colonel Wilson Patten said, be made less. Surely fifteen is a large enough number to constitute any inquiry Committee. But apart from these considerations there seems to be an exaggerated idea as to the amount of time which members have to give to Private Business in Committee. It is an erroneous impression in this regard which has led to some of the agitation for a change. The cry, it seems to us, comes too late. Private Bill business is not nearly so heavy now as it used to be. A month or six weeks is all that can be counted on as a “ Session" in the Committee Rooms. But in order to test this matter, let us see how many members were required in a busy year to do the whole of the work. In 1871, as we gather from Sir Theodore Martin's notes, 37 Committees were appointed, and the number of members required to serve on those Committees would be in all 148.* The Committees of that Session, which was a heavier one than any we have had since, sat on an average about nine days each. One Committee sitting 27 days, an exceptionally long time, and two getting through all the work referred to them in one day. Is this a very heavy tax on the time of 660 members ? Many of them, no doubt, have official or professional duties to attend to; and are, therefore, not available for service upon such Committees, but even deducting those
* According to Mr. Dodson in 1872, the number of contested Bills varies from 40 to 60. These of course could be disposed of by a much smaller number of Committees.
there is a large number of members to whom the devotion of some four hours a day for nine days in the year to an important public duty, to an important part of the legislation of the country, is not, and cannot be, any serious tax. Mr. Gathorne Hardy (now Lord Cranbrook) well said in 1872, " that while members were anxious to be relieved from unnecessary work, none would wish to shirk work if they deemed it essential to the interests of the public." And we believe that many will agree with Mr. Hardy that the work done by members in connexion with Private Bills is very necessary to the public interest. Besides, young members of the House of Commons learn business very well in the School of Committees, and learn a great deal in that school which stands them in good stead in their more prominent Parliamentary duties. Some of the most able and illustrious of leading statesmen have done important work as the Chairmen of such Committees. But when we remember that all this cry comes from the Commons, where the work ought not to bear so heavily upon individual members as it does in the Lords, we may feel some surprise. The House of Lords gets through as much work as the Lower House, and as there are a comparatively small number of Peers it must necessarily bear more heavily upon each. In relation to private Bills, not only are there fewer to choose from, but more to be chosen; for every Committee on Private Bills in that House consists of five members instead of four as in the Lower House. But as has been more than once suggested, if it is necessary still further to save the time of members, the size of the Committees might, without serious disadvantage, be reduced. And the profession, it seems, would prefer to see Committees consisting of three members. It is true Sir Edmund Beckett protests against any such alteration, but Sir Theodore Martin thinks that this reduction would not inaterially take from the excellence of the tribunal.