HC Deb 09 November 1926 vol 199 cc932-47

(1) For the purposes in this Act mentioned, a tribunal of appeal (hereinafter called "the tribunal") shall be constituted, consisting of five members appointed by the Lord Chancellor.

(2) Each member of the tribunal shall be appointed for a term of five years, and shall be eligible for re-appointment.

(3) The Lord Chancellor may, if he thinks fit, remove for inability or other proper cause any member of the tribunal.

(4) Each member of the tribunal shall be entitled to such remuneration as the Treasury from time to time may fix.

(5) The tribunal may provide offices and such clerks, officers, and servants as may be necessary, who shall be paid such salaries as may be approved by the Treasury.

(6) The tribunal shall, subject to the provisions of this Act, have jurisdiction to hear and determine appeals brought before them under this Act.

(7) The tribunal may from time to time, subject to the approval of the Lord Chancellor, make regulations as to the procedure to be followed on appeals to the tribunal, including the time and notice of appeal, and as to the fees to be paid by appellants and other parties.

(8) Any order of the tribunal may be enforced by the High Court as if it were an order of that Court.

(9) The salaries or fees payable to the members of the tribunal and the fees and establishment expenses of the tribunal shall, so far as they are not defrayed out of fees paid to the tribunal, be paid in the same manner as expenses or estimated expenses of the Electricity Commissioners are payable under Section twenty-nine of the Electricity (Supply) Act, 1919, as amended by Section seven of the Electricity (Supply) Act, 1922. —[Sir J. Nall.]

Brought up, and read the First time.


I beg to move, "That the Clause be read a Second time."

The object of this Clause is to clarify and put into definite form in the Bill, a system of appeal to which any party who may be aggrieved may resort in certain circumstances. There is some inconsistency between the Bill as it is drawn and the announcement made of the Government's intention at an earlier date. The Government's intention as announced in the Prime Minister's speech was to set up a public trust similar to the Port of London Authority or the Mersey Docks Board. The difference between the constitution of the body proposed in the Bill and the constitution of those authorities will be raised on another Amendment, but the important point in this particular connection is that those public authorities are charged with administering their own property and may not interfere with the property of any other authority or undertaker unless they come to this House and obtain statutory permission to do so. They must promote a Private Bill or, in certain circumstances, a Provisional Order, or, in certain other circumstances, a special Order, and the party whose property is to be expropriated or controlled by a public trust of that kind has access to this House through the Private Bill procedure, the Provisional 'Order procedure and so forth. In every case they have an opportunity of being heard and of securing a decision from an independent tribunal.

The Board to be set up under this Bill will be able to adopt schemes which, after their adoption, will have statutory form. In other words, for the first time in our history as far as I can find out, a public body will be able to adopt a scheme or series of schemes affecting the properties and indeed the statutory obligations of other authorities by the mere adoption of their own ideas without submitting them to anybody else. When this matter was considered in Committee upstairs, the objection was met to some extent by allowing a very restricted form of appeal or arbitration in relation to certain financial matters. There are very severe limitations as to the category of appeals, as to the kind of cases that can be taken to appeal, and, indeed, as to the scope of the arbitrator himself in making an award. This question arises in different forms on the different Clauses of the Bill. If this public authority is to have the power intended in the Bill of interfering in this way with the conduct of the business of other authorities, many of them operating under Statute, and if we sanction this grave departure from our constitution I practice hitherto of allowing authorities in such circumstances to appeal to Parliament or to some other independent tribunal, it seems only fair that we should put in some adequate and expeditious substitute whereby aggrieved parties may have their grievances heard with some prospect of adjustment if they prove those grievances.

The precedent which I have followed in this proposed New Clause is that of the London Building Acts and the words on the Paper are copied from the London Building Act, 1894. It was said in Committee upstairs that any tribunal of the sort required should be simple and inexpensive. If one searches the records of tribunals and appeals generally in this country there will scarcely be found anything more effective or cheaper in its administration than the appeal tribunal set up under the London Building Acts. That body of three men—I suggest five here—costs only some £500 a year, and it has had the advantage of being definite body, definitely established to hear all cases which may arise within its scope. It has established precedents and case law which operate to guide future appellants. In the Bill as it is drafted all kinds of arbitrators may be appointed. Different men may be appointed to hear cases of the same kind in different parts of the country at the same time. They, as individuals, may come to opposite decisions on the same questions at the same time in different parts of the country. That is not calculated to assist the smooth working of the scheme under the Bill.

The object of the Clause is to set up a definite tribunal, not in an expensive form, not with expensive procedure, but a definitely appointed tribunal which, having come to a decision on a particular kind of case, will have regard to that decision in future cases. If this proposal be adopted, after the first two or three hearings of appeals of the kind contemplated the need for further appeals will rapidly disappear, because the further decisions of the tribunal will become obvious. All parties concerned will then be guided in their actions by a desire to avoid the trouble of bringing further appeals on points of principle which have already been settled. I earnestly suggest to the Government that a proposal of this kind, although they may vary it in detail, is one which they ought to adopt and one which would go a long way to meet some of the objections which have been raised. The Minister of Transport recently received a deputation from the Chambers of Commerce—at which I was unable to be present, although I ought to have been there. A tribunal of this kind would go a long way to meet the need which was urged by that body. If no such provision be made, the Bill will leave this House with a few scattered and inconclusive provisions in various Clauses for a very limited form of arbitration in a few specified cases—an arbitration which could only be claimed by a very limited number of those who might need it.

That would be contrary to the whole of our constitutional practice and procedure. For the first time in history we should deny to municipalities, county councils, statutory undertakings of all kinds, as well as to private individuals, the ordinary facility which at present exists whereby they are entitled to appeal to an independent tribunal, when powers of the kind contemplated are being sought in the ordinary process of Private Bill legislation or provision order procedure. The principle of this thing goes far beyond the scope of this Bill and the intentions of the Government in relation to the Board and the possible functioning of the Board. This denying of access to Parliament and of any right of appeal against the arbitrary decisions of a new public trust, not itself directly answerable to Parliament or amenable to the Ministry of the day, is an entirely new departure, and I urge upon the House that it raises a constitutional question of the gravest kind, which ought not to be summarily dismissed on the plea that some form of arbitration has been provided in the Bill.

I hope to show, later on, that that arbitration is very limited and ineffective in many respects, but I should be out of order in doing so now. I urge upon the Government that, either in the form in which I propose it or in some rather different form, a right of appeal to a properly constituted and permanent authority, which can set up precedents and case law, should be adopted in this case, and it would go a long way towards removing some of the very earnestly felt apprehensions as to the possible working of the Bill. With regard to the consequential Clause, it may well be that the Government would object to that, even if they accepted the first Clause. I should be quite prepared to discuss that in detail, if the main principle were accepted on this first Clause, as the consequential Clause goes beyond the actual Bill, but I hope the Government in the meantime will indicate some intention of meeting the very real desire that we should have an effective but inexpensive process of appeal.


I beg to second the Motion.

I do so as one of the strong supporters of the Bill, but as one who thinks that the tribunal of appeal has not got wide enough powers. I was one of the Committee that appeared with the Chambers of Commerce before the Minister, and this was one of the points which we urged, namely, that anyone who considered himself injured by any order of the new authority should be in a position to go before a court of appeal to get damages, but it need not interfere with the working of the Act. The court of appeal would be limited to giving merely pecuniary remuneration for damages incurred, and anyone injured by any provision would have the power of going before the court of appeal and putting his case before it. I hope very much that the Government will see their way to meet this request and give us a wider court of appeal.


The mover of this Clause was in fact moving a Clause which merely purported to set up a tribunal of appeal, but he quite frankly admitted that his new Clause was designed to raise what he himself described as "matters of the gravest Constitutional importance," and radically to alter the provisions of the Bill, because, as he indicated, he desired that anybody who was affected in any way by any provision of the Bill should have a right to have an appeal to this tribunal. This is a matter which was thrashed out at very great length over two days' meetings in Committee upstairs. It was exhaustively debated there, and the provisions as to appeal which are contained in the Bill as it comes to this House are provisions which the overwhelming majority of the Committee—I think a three to one, or thereabouts, majority — thought were adequate and at the same time were the maximum which could he given if the Bill was to be a practical success. My hon. Friend the Member for the Drake Division of Plymouth (Sir A. Benn), who seconded the new Clause, said—and I entirely accept it, of course—that he spoke as a supporter and friend of the Bill, but I am not quite sure that he realises into what company he has been drawn in seconding this Clause.

I would like, if I might, without going outside the Amendment, to tell the House what the actual position is. It is quite true that when the Bill was originally before this House there were no substantial provisions giving a right of appeal. There was a right to go in some cases to the Electricity Commissioners and in some other cases to the Minister of Transport, but there was no appeal to an independent tribunal. The Committee thought, and the Government agreed with the view, that it was desirable that in certain cases, where there was a risk of injustice being done, an appeal should be provided, and those who have not noticed the changes in the Bill since it has been in Committee, arid who only go by the speech of my hon. and gallant Friend in moving this Clause, may be a little surprised to know how far the Committee has already gone with the assent of the Government. There are two great divisions into which this scheme falls; the first is the setting up of the scheme, and the second is the operation of the scheme when once it has been approved.

So far as the setting up of the scheme is concerned, that is contained in the first four Clauses of the Bill, and the provision which we now have in Clause 4 provides that, first of all, the Electricity Commissioners are to prepare a scheme, that then the Board is to announce the scheme, and to give everybody an opportunity of making any representations which they see fit upon it; that the Board shall consider those representations and, so far as they think it right, shall modify or amend the scheme; and that then anybody on whom any obligation is imposed by the scheme as passed by the Board is to have a right of appeal to an independent arbitrator, not, as my hon. and gallant Friend says, anybody who may be quite unqualified—


I did not say that.


At any rate, let me tell the House who he is in fact. The independent arbitrator is to be selected by the Minister from a panel set up by the Lord Chancellor, and that panel is confined to people who are qualified to hold judicial office; that is to say, that they are taken from the same class of people as are to-day capable of being appointed to be Judges. That is the type of man to whom the appeal goes, and there is further express provision that, if there is any point on which it is desirable to have expert assistance, the arbitrator may call in assessors who shall assist him in regard to any technical questions. That seems to the Government, and seemed to the Committee, to be as far as we could safely and adequately go to meet the position of safeguarding those whose interests were affected. If the appeal were widened, as the hon. and gallant Member who moved the Clause desires, so that anyone who was in any way affected by the scheme should have a right of appeal, that would no doubt go a long way to meet the views of those who regard this Bill as a bad Bill, because it would effectively prevent it ever becoming a practical Measure, for there is hardly anybody in the country who is not affected by this Bill.

There is, first of all, not only every owner of a selected or a non-selected station—because the non-selected people are just as likely to feel aggrieved by, not having the privilege of being selected stations as the other people are who are invited to become selected stations—but, in addition to that, every district through which a main transmission line does or does not go is undoubtedly affected, and every consumer of electricity is undoubtedly affected, and if we were to allow everybody who was affected by the Bill to have a right of appeal to a tribunal of five persons, who were to sit with clerks and offices and all the rest of it, the result would be that it would be not in the lifetime of anybody in this House that we should see the scheme effectively working. That may be the desire of those who think the Bill is a thoroughly bad Bill, and who are not ashamed to say so, but it is not the desire of those who wish to make this a real contribution to the improvement of the supply of electricity in this country.

So much for the setting up of a scheme, and I hope I have shown that we have safeguarded the position and that it would be useless, as well as fatal, to extend the appeal more widely. But when the scheme is operating, again there are elaborate provisions for appeal, in Clause after Clause, where there is any risk of harm being done if an appeal is not allowed. For instance, in Clause 5, where there are provisions for requiring extension or alteration of plant, there is an express appeal again given to the qualified arbitrator with or without assessors. In Clause 8, which is the provision with regard to the acquisition of main transmission lines, again an appeal is given. In Clause 9, a very important Clause which deals with standardisation, an appeal is given. In Clause 10, which is the Clause which gives the Board the right to require and make provisions that the whole supply shall be taken from the Board, again an appeal is given. In Clause 14—the very important Clause dealing with non-selected stations, which gives a right in certain circumstances of closing down a station—again an appeal is given; and so, wherever there is a danger of rights being prejudicially affected, a right of appeal is provided.

In addition to the rights of appeal to the qualified arbitrator, with or without assessors, there is also, as the House will realise, a number of technical questions raised in various provisions of the Bill, and the Government do not think, and the Committee did not think, that a legal tribunal of this kind was in the least the most suitable for dealing with technical questions. Therefore, we have provided again a series of appeals to the Electricity Commissioners in certain cases, and in other cases to the Minister of Transport. In other eases, again, we have provided that certain things cannot happen unless the matter is brought before Parliament. We have varied the kind of appeal according to the kind of provision with which we are dealing. Where it is a technical question, we have given an appeal to a technical body, where there is a question raising great questions of public interest, we have given an appeal to Parliament, and where there is a question raising financial questions, we have given an appeal to the tribunal to which I have already made reference. We believe that, in doing that, we have fully met all the just causes of complaint which might arise in the working of this scheme, and we believe also that, if we were to depart from that and accept the proposal now laid before the House, the result would be entirely to wreck the whole scheme, which, I know, is very far from the wish of the seconder of the Clause, but which, no doubt, would not unduly disappoint the hon. and gallant Member who moved it. On those grounds, it is impossible for the Government to accept this suggested tribunal, and I hope the House will endorse the decision of its Committee and uphold the limited rights of appeal provided by the Bill as it comes before us now.

5.0 P.M.


Undeterred by the fate which has fallen on the hon. Member for Plymouth (Sir A. Shirley Benn), who supported this Amendment, I want to say that, although I am a supporter of the I should like to see slight alterations made in it. I am inclined to think that the Attorney-General has made it, clear that the widening of the scope of arbitration can hardly be expected. But with regard to what he said in reply to my hon. Friend with regard to the nature of the tribunal to be set up under the Bill, I cannot see how he can think he is likely to get so consistent a series of decisions on points by referring them to individuals in different parts of the country, each of whom will be supported probably by technical assessors. I have had some experience of the tribunals referred to by the hon. Member who proposed the Amendment. They, of course, got a body of information together which was of value to them in maintaining the consistency of the decisions to which they came. I cannot help thinking it would he worth while the Attorney-General considering whether on this particular point there is not a danger, for however qualified the legal arbitrators and assessors may be, they are bound to differ in their qualifications, because they will come from separate districts of the country. While it might be argued that they will have special knowledge of those districts, I do not think it will be so useful as having a body of decisions maintained on single and definite lines by a single tribunal. I, therefore, venture on this point to differ from the Government, although I agree with the Bill in its entirety.


I am amazed to find this proposal emanating from hon. Members opposite—from a group who have claimed to stand for economy. Here is on the Paper, printed, a proposal to set up a tribunal with a staff and clerks and offices and with fees and salaries to be provided by the Treasury. Here is a proposal, at a time when we are told it is what the country is suffering from, to make officials and to create yet one more Department. I quite agree with the learned Attorney-General that his proposal at any rate does not propose to set up a permanent bureaucracy. But here is. a suggestion to create another Department purely for the purpose of hearing appeals, to encourage delay and impede the construction of this scheme that is so long overdue. My one criticism of the Bill is that there is to be a Board. We have Commissioners, and we are now to have a Board under the Bill. The hon. Member who moved this new Clause is not satisfied with the Board of officials to be created, but wants to see super imposed on this structure another body.


That is an absolute misrepresentation of what I said.


I was not attempting to give the hon. and gallant Member's speech, but what the result of his proposal would be. It is the wrong way to pass legislation. The only justification for this Bill is the urgent need of the country and the necessity for our electrification being brought up to date. The very fact of a proposal of this kind being put on the Paper is a proof that hon. Members advocating it are not really in earnest in their desire to obtain it.


The hon. Member who spoke last seems to have misapprehended the speech of the Mover of the Clause. I thought he made it particularly clear that, although administration was to be set up with offices and a staff, yet the words were almost the same as those in the previous Act and that the total cost would be £500 per annum. Of course, I quite understand the conception of the hon. Member for Bethnal Green (Mr. Harris) of having power to appoint officers and engage a staff is quite different from that of hon. Members on these benches and there is no doubt he could run to great expense. You do not need to incur any greater expenditure than has already been agreed to. I think there is only one solitary issue proposed under this new Clause. Does the Attorney-General presume in favour merely of facilitating the activities of the executive, or does he presume in favour of protecting the liberties of the people? That is the issue. It is the sole issue. If there is to be any mistake made at all, am I riot right in saying that we should make the mistake in favour of the preservation of the liberties of our people? If there is to be any mistake at all, it should be on the side not of facilitating the activities of the executive functioning over the people, but rather to make sure that the activities of the executive should in no way prejudicially affect the rights of the people. I have not heard from the Attorney-General anything that shows the slightest anxiety in that direction. I would quite seriously impress on the attention of the Attorney-General the necessity for keeping in mind more and more the limitation of the activities of the executive and the preservation of the liberties of the people.


I think that the Attorney-General's Clause as it stands has largely met the issue that was raised by the hon. Member who moved the Amendment. The only thing is the point raised by the hon. Member for Spelthorne (Sir P. Pilditch) that there will be a lack of continuity in decisions. You may get a heavier award in one place than in another and that will create a feeling of injustice. I think the Clause carries a good deal of the implication mentioned by the hon. Member for Bethnal Green (Mr. Harris). It seems like erecting a new Court of Justice and it will be a very expensive business. If the hon. Member for Bethnal Green is under the delusion that this Bill will cheapen distribution, then he is mistaken. You might as well say that by amalgamating all the distilling companies you would cheapen their product. There will be no savings here whatever. I never can understand why there should be the necessity for a Board as well as for Commissioners. I have seen nothing like this Bill except an advertisement that I saw in a newspaper stating that the advertiser wanted a strong horse to do all the country minister's work.


I only want to make an observation on something that fell from the Attorney-General in his reply. One of his objections to this Clause was that if it were to be put in the Bill, there would be a difficulty in working the Bill because of the immense number of bodies and people affected and the number of people who would have the right of appeal to this tribunal. I merely want to point out that the Attorney-General's own words prove that this Bill, as some of us said on Second Beading, is interfering with the rights of many individuals and corporations without giving them the opportunity of an appeal to Parliament and of being heard by Parliament in the way in which they always have been heard in the past in the case of Private Bills.


Your Clause does not do that.


That was not really the point of my argument. I was endeavouring to point out that the Attorney-General's own words referred to one of our objections to the principle of this Bill. The Amendment may not be perfect, but at any rate it is an attempt to do something to modify that particular blot on the Bill. There are many more things I should like to say in support of this Amendment, but I realise that an appeal to the Attorney-General will not be much use. I propose therefore, in pursuance of the statement I made in moving the first Amendment to-day, to do what I can to shorten discussion, and I shall not be debarred by the somewhat offensive and sneering remarks of the learned Attorney-General in regard to promises of this kind coming from un- expected quarters. As far as I am concerned, that kind of thing is like water on the duck's back. But, if I may venture to say so, I hope the Attorney-General will endeavour to treat those who are moving Amendments with a little more sympathy, and, possibly, I am not going too far when I say, a little more politeness.

Commander BELLAIRS

I think there is a good deal of point in the criticism which was made by an hon. Friend of mine, that there is likely to be a lack of continuity in the decisions of gentlemen selected from the panel, and I would like to know what is likely to be the size of the panel from which the gentlemen will be selected. In the first place, a panel will be set up by the Lord Chancellor, and, in the second place, the appointment will be made by the Minister of Transport. It is very likely that this Bill may be used for the purpose of bringing about nationalisation schemes. I am very much interested in trying to extract from the Attorney-General whether there will be any limit imposed on the size of the panels, so that we may know who are likely to he the men selected.


The size of the panel will depend entirely, of course, on the multiplicity of appeals. If it turns out that there will be comparatively few, as I hope, then a panel of two or three may easily do the work. In answer to the apprehension of my hon. Friend the Member for the Spelthorne Division (Sir P. Pilditch), it would be quite true that if this tribunal were dealing with grave points of law, we might very well have to meet the point, but he will see they are almost entirely financial matters. The sort of question will be whether or not compensation ought to be given for a particular obligation; whether or not the cost of generating electricity at non-selected stations is shown to be cheaper; what sort of cost is incurred by standardisation and other points of that character, which are purely financial points. If a scheme is being put up, for example, for the South of England, and another for Scotland, it will not be necessary to wait until all the decisions are taken for the South of England before getting on with the Scottish scheme. It will be possible to have an arbitration regarding any objection or any claim for compensation with regard to Scotland, at the same time that someone else is discussing the question of compensation with regard to a particular case in the South of England. It was with that object in our minds that we put our proposal before the Committee, and the Committee thought it was wiser to take the plan in the form we have put it.


Will the right hon. and learned Gentleman allow me to put this point? Sub-section (3) of Clause 4 says if any authorised undertakers on whom obligations are imposed by the scheme consider that the carrying out of those obligations would he prejudicial. What was in my mind was that those few words involve a good deal. I think they involve questions of right and of law. If you are going to set up—


On a point of Order. Are we allowed to make two speeches on Report?

Mr. DEPUTY-SPEAKER (Captain FitzRoy)

I thought the hon. Member was asking a question. He cannot make another speech.


I do not want to do that. I wish to ask whether these matters do not involve considerable questions of right and questions of law, and whether it would be possible to get the same effective consideration of these matters if referred to a number of individuals throughout the country, rather than to a body of people who would collect records of their previous decisions, and get together such a body of decisions as would prevent the further raising of matters.


If I might be allowed to answer the question, my answer would be, that as far as the questions of right are involved, they would be dealt with by the Board when they got the representations put before them as to the scheme as drafted by the Electricity Commissioners. The Board have to consider everybody's representations before confirming the scheme, and there is the proviso that if a particular undertaker, on whom a particular obligation is imposed, thinks that he is prejudiced by carrying out that obligation, he can then go to the tribunal, and the tribunal, as my hon. Friend will see, gives him financial compensation in a case where it is thought advisable to do so. I do not think any question of law is involved there.


Does the right hon. and learned Gentleman consider it consistent with English law that the Board should be judges in their own cause?


I do not know whether that is meant for a question, but the answer is that they are not parties to any cause.


We have heard from the Attorney-General that this Bill affects an enormous number of public and private interests, and in listening to the discussion all the enthusiasm for the Bill seems to come from the opposite side. One might think it was a Bill promoted by the hon. Member for Limehouse (Mr. Attlee). Undoubtedly there is a good deal of uneasiness in regard to it on this side of the House, and those who understand the subject best feel the greatest amount of uneasiness. Such a tribunal as is proposed in this Clause is nonpolitical, and would ensure continuity, and the result of its action in a short time would be that the number of appeals would very greatly lessen. I regret very much that the Attorney-General could not see fit to accept the Clause. I, personally, should like to see all ether appeals cut out of the Bill, and just one tribunal appointed.


The last speaker suggests that he prefers this new Clause because the tribunal would be nonpolitical. I would like to ask him how he makes out that it would be nonpolitical, since the appointment of the five members would be by the Lord Chancellor, the same person who would set up the panel from whom the arbitrator would be appointed under the Bill as it stands. The last speaker also suggested that the silence on these benches was in a sense ominous. It was obvious he was not a member of the Committee, or he would not comment on the silence of Members on these benches. The hon. Member who referred to the Attorney-General was also not a member of the Committee, or he would not have protested against the sentiments of the Attorney-General when replying to the Mover of this Clause. Those who sat in the Commitee and saw hour after hour deliberately wasted by those who are definitely opposed to the Bill—


I think we had better confine ourselves to the Clause.


I was going to say that the Members who were wasting the time were then pleading for the kind of tribunal the Bill now contains. Now that we have reached the Report stage, they are coming along with further and absolutely destructive Amendments to hold up the Bill, and to turn down the proposals they were making in Committee. There is only one object behind this Clause, and the Attorney-General clearly indicated what that object was. Those who have spoken on this Clause, with the exception, perhaps, of one Scottish Member, are all vitally interested in preserving what at present to them is a very valuable position. They have no desire for this Bill to become operative either at an early or late date; consequently they propose Amendments here which they know would hold up the Bill for an object of this Clause, as of so many indefinite amount of time. The definite object of this Clause as of so many Amendments which they moved in Committee, and will move on the Report stage, is to hold up the Bill, and prevent it from becoming an Act at an early date. Although we on these benches have no cause to love a hybrid Bill of this description, we at least want to see what benefits will be forthcoming as a result of the first instalment of national organisation. At all events, we prefer the arbitration proposals already inserted in the Bill, and not the destructive or obstructive Amendments moved.

Question, "That the Clause be read a Second time," put, and negatived.


The next two Clauses (Appeal from Electricity Commissioners to Tribunal) and (Administration of the law relating to the supply of electricity) are consequential.