Local Government, Local Legislation

Municipal Initiative in Parliament from 1858–1872

R.J.B. Morris

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781315525358
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

In the mid-Victorian period, when British international influence and power were at their height, concerns about local economic and social conditions were only slowly coming to be recognised as part of the obligations and expectations of central government.

Adopting a legal history perspective, this study reveals how municipal authorities of this period had few public law powers to regulate local conditions, or to provide services, and thus the more enterprising went direct to Parliament to obtain

– at a price – the passing specific local Bills to address their needs. Identifying and analysing for the first time the 335 local Parliamentary Bills promoted by local authorities in the period from the passing of the Local Government Act 1858 to the first annual report of the Local Government Board in 1872, the book draws three main conclusions from this huge mass of local statute book material. The first is that, far from being an uncoordinated mass of inconsistent, quixotic provisions, these Acts have a substantial degree of cohesion as a body of material. Second, the towns and cities of northern England secured more than half of them. Thirdly, the costs of promotions (and the vested interests involved in them) represented a huge and often wasteful outlay that a more pragmatic and forward-looking Parliamentary attitude could have greatly reduced.

1The sources, structure and scope of local legislation

Introduction

During Queen Victoria’s reign (1837–1901), the British Government and the British people both came to expect and assume that central government should broadly look after the welfare and well-being of the whole population, and should take the initiative in doing so. Defence of the realm and the King’s (or Queen’s) peace might have been part of the unwritten compact between monarch and subjects since medieval times; the governmental climate, however, that still allowed the Irish to starve in their thousands in the 1840s without the then most powerful nation on earth apparently doing much about it was, by the end of that century, long gone – outmoded in part no doubt by the assumptions of a broadening electorate.

Just how the Government should ensure the social and economic well-being of its citizens was, however, contentious, and would remain so – but well before Victoria died it was clear that a demographic order mainly based on the pre-eminence and priority of landowners was no longer dominant. There had, however, long been those in both Houses of Parliament who (whether confident because of, or altruistic despite, being landowners themselves) spoke and acted differently. Some peers and M.P.s alike spoke of the public interest, and were concerned for reform. They often had first-hand experience of what happened when self-seeking or vested business interests came up against the power of a state that, while actively ruling much of the globe, was still in the early stages of learning how to control and direct immense social change, rapid industrialisation and urban expansion at home, as well as the rising influence, needs and demands of the wider population, who could no longer be ignored. The Chairman of Ways and Means, John George Dodson M.P. (Liberal, East Sussex), speaking of the members of Private Bill Committees in the House of Commons on 15 March 1872, described them as men ‘accustomed to watch and allow for public opinion’.¹

A very large part of the industrialisation and urban expansion that occurred after around 1840 came about because of private or local initiative, not state direction. Initially at least, there was neither the tradition nor the will in central government for it. (That grew only slowly, until much later the overwhelming needs of the First World War gave rise to a pre-eminent national control which has never since been significantly reversed.) Individual initiative, whether seeking profit or the improvement of the manifestly intolerable conditions that unbridled development and growing population were bringing, was how projects were undertaken or the state of things was altered.

For a hundred years from the 1790s the national landscape was changed: first by canals, and then by railways, and also by inclosures of hitherto common land. Factories, mills and coal mines changed the landscape too – often even more dramatically and damagingly; they, however, could be built at will by whoever controlled the land involved. Canals and railways on the other hand had to cross many lands over many miles; they needed the ability to override objections and ransom terms, and to appeal to concepts of a wider public good, which cooperation alone could never resolve. That overriding could only come from Parliament, through a statute that could in principle achieve almost anything, and which the courts would uphold. The state would not create the canal or rail network directly; it would not even actively oversee or coordinate it; but it would license the permissions and indemnities needed to build it, and would do so on terms which, considering the general state of public administration at the time, were remarkably exacting, consistent and principled. Furthermore, those presiding over the licensing stood to gain nothing personally from doing so, even though the process was inevitably costly and spawned a specialist industry to meet the needs of those who would be licensed.

What applied to transport infrastructure applied also to thousands of other projects, circumstances and needs – to most things, in fact, that neither the common law nor custom envisaged or encompassed. Early on, local communities sought powers for paving and lighting; other public health requirements followed. In due course, and with the nature and relative speed of the innovations and initiatives varying from place to place, Parliament was asked to license – to give permission for by Act of Parliament – roads, bridges, docks, harbours, markets and much else. The advent of water and gas companies or ‘undertakings’ was in due course followed by similar ventures about electricity and tramways; meanwhile a whole canon of powers and duties grew up around boundaries, local tax-raising, finance and the associated powers and provisions found necessary in an increasingly sophisticated society whose municipalities possessed only that legal capacity either explicitly or impliedly given to them by statute. As the Law Commissions put it in their 1996 Report on the Chronological Table of Local Legislation (Cm 3301):

Local legislation has played a crucial part in the process whereby the United Kingdom has since the eighteenth century been changed from a predominantly agricultural and rural society into one that is predominantly urban and suburban.²

The governance context

The rapidly growing industrialisation and urban expansion of the mid-Victorian years took place amid equally fundamental and lasting change in both national and local governance. At Victoria’s accession, both retained the memory, if no longer the detailed imprint, of the late eighteenth century. By the time of her death, the apparatus of both was irretrievably different. When the future or fate of the mass of the people did not matter very much to the state, or to those who guided and governed it, the administrative machinery of regulation could afford to be weak in any context not seen as of compelling national importance. The more, however, that the nation became a cohesive and inter-dependent economic unit, the more that control was required, information needed, and conformity with a planned expectation sought. If you gained the right to vote, you also gained the obligation to pay for that right by playing according to the rules of the new order. The state could pour forth new rules and administrative theory every bit as rapidly as smoke pollution could pour from factory chimneys.

The development of what has come to be known as the ‘information state’ has been increasingly studied in recent years. Edward Higgs, in The Information State in England (2004), contrasts the decentralised state of early modern England – a period he does not define, but which starts for him at least well back in the seventeenth century – when local affairs were largely dealt with locally, and there was a wide gulf, only partly filled by the justices, between those and the affairs of state at Crown and Parliament level. He gives a number of examples of new or nascent administrative systems in the mid-Victorian period; some arise from the Government’s need to tax, organise and increasingly to look after its citizens, and some from scandals that could no longer be ignored – but he also shows how the public rationales of the time did not necessarily always tell the full or the real story.³ Higgs identifies the period from 1830 to 1870 as seeing ‘the passage of numerous pieces of legislation that sought to regulate society’,⁴ and he cites the views of several historians who see the legislation, and the centralising outlook that gave rise to much of it, in widely differing terms – a ‘capitalist cultural revolution’; the ‘social disciplinarian’ role of the Victorian state; the new breed of ‘expert’; a revolution in government predicated on the discovery of treatment of ‘social ills’; and so on.⁵ It was not, however, a novelty for the state to be regulating, and for it to be doing so with an eye to financial gain and political advantage: monarchs back to King John and before had repetitively granted charters to license local privileges and activities, and to gain subservience to the will of Westminster. What was novel was the scale of the regulation, the increasing need also to secure the will of the electorate, and the recognition that the capacity of the centre to administer at local level had never been particularly good. Moreover, it was not the monarch, nor even primarily Parliament, that was doing the regulating – rather it was the newly burgeoning Government administrative machine. Furthermore, the new regulation needed new laws, and new concepts of law. A whole apparatus of decision-making was required, and so was a redefined relationship with the citizenry at large, whose broad consent Ministers of the 1850s – mindful no doubt of the revolutions of 1848 across the Channel – dare not any longer take for granted. The citizenry’s willingness to be governed by those new powerful civil servants referred to by Higgs was essential to a fundamental reciprocal respect, without which the business of her Majesty’s Government could not be carried on.⁶

Jose Harris, giving an overview of British society in the years after 1870, considers mid-Victorian Britain as having remained ‘a society that in numerous ways was fiercely variegated and local’. Contrasting with the European scene, she writes that

preservation of local autonomy and custom was seen as a quintessential feature of British national character and culture – in marked contrast to the centralization, rationality, and legalistic uniformity imposed on Continental countries by the legacy of the two Napoleons.⁷

That emphasis on the variegated and local is underlined by the enormous numbers of local authorities – public bodies – that existed at this time: among the total were 224 municipal boroughs; 117 sets of improvement commissioners; 637 local boards of health; an extraordinary 15,414 parishes and townships; and various others like poor law unions, county units and burial boards.⁸ The extreme complexity of these thousands of local units is illustrated by the evidence printed with the 1873 Select Committee report on Boundaries of Parishes, Unions and Counties, and its examples of countless anomalies, such as those places that were associated with a different county from the one within which they were geographically situated.⁹

British politics of the time were dominated by Liberals on the one side, and by Conservatives on the other. ‘In general terms’ writes Elizabeth Hurren,¹⁰

nineteenth-century Liberalism has been characterised by an emphasis on ‘individualism’. It personified ‘a belief in maximising the individual citizen’s freedom from restraint and a corresponding commitment to restricting the role of the state’.¹¹ It espoused the notion of ‘an enabling state’ that provided law, order and defence but thereafter left (indeed required) its citizens to get on with their working lives.

‘British Conservatism’ on the other hand

saw itself as the guardian of political equilibrium, a role that suited its predominantly agricultural membership prior to 1880. Yet Conservative...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of contents
• Foreword
• 1 The sources, structure and scope of local legislation
• 2 The context and content of local Bill promotion
• 3 Passing the Bill: Formalities and financing
• 4 Public law and private initiative: The wider context of local legislation
• 5 The texts and technicalities of local legislation
• 6 The powers and purposes of local legislation
• 7 Conclusion
• Bibliography
• Table of Cases
• Table of Statutes and Bills
• Index