§ The ATTORNEY-GENERAL
I beg to move, in page 13, line 44, to leave out from the word "Parliament" to the end of the clause. 1359 This Amendment is really consequential on something which follows. It was suggested to us by the other side that it was very undesirable to provide that the Arbitration Act should not apply except in so far as it might be applied by the regulations. It is desirable that some machinery should be devised with that end in view. On clause 16 we have a series of Amendments to deal with this situation, and to make the Arbitration Act apply subject to the limitation which is therein contained. In the meantime, we propose to take out of this particular Sub-section the words:and the provisions of the Arbitration Act, 1889, shall not apply with respect to any arbitration under this section except in so far as they may be applied by the said regulations.
§ Sir LAMING WORTHINGTON-EVANS
I am glad that the Government have met us to some extent. The Bill, as introduced, barred the Arbitration Act altogether. At an earlier stage I pointed out how extremely inconvenient that course was. The Government are now allowing the Arbitration Act to apply, but in the later Amendments to which the Attorney-General has called attention they have made a provision which half nullifies the application of the Act. If its application were allowed completely, then not only could a case be stated and come before a Judge of the High Court for arbitration, but if the Judge gave a decision which was not acquiesced in by the parties to the arbitration, there would be a right of appeal. For some quite unexplained reason, the Government have altered the legal procedure which has been established for the last 10 or 20 years, and have chosen to say that the decision of the Court of First Instance should be final, and that there would be no appeal. While I am grateful to the Government for having allowed the Arbitration Act to apply at all, I reserve my right when we come to the later consequential Amendments to try to get the House to alter what is now proposed and to allow the litigant his full right of appeal.
§ Amendment agreed to.
§ Sir GEORGE JONES
I beg to move, in page 14, line 3, at the end, to insert the words: 1360(11) Any person or body of persons who has made a complaint to a committee of investigation and is aggrieved at any act or omission of the body charged with the administration of the scheme in relation to which such complaint was made, or of the committee of investigation to which the complaint was made, or of the Board of Trade in reference to such complaint may require the matter to be referred to a single independent arbitrator to be appointed by agreement between such person or body of persons and the body charged as aforesaid, and in default of agreement in England and Wales by the Lord Chief Justice of England and in Scotland by the Lord Justice Clerk, and the persons having power under the Scheme to give effect to the decision shall comply therewith and exercise their powers under the scheme in conformity with the decision.The arbitrator so appointed shall have power to award costs against the party unsuccessful in such arbitration, and if the costs be awarded against the body charged with administering the scheme they shall be considered an expense within Section three (2) (g) of this Act.The reasons for this Amendment may be put shortly. Any person who makes a complaint to a committee of investigation and is dissatisfied, would have the right to appeal to an independent arbiter. I am not at all wedded to this form of words, nor am I concerned as to the manner in which the arbitrator is appointed. I am concerned that in the case of a person who makes a complaint there shall be a right of appeal. The tribunals are to be new bodies, and many of the men who will be on them will be dealing, possibly for the first time, with the kind of problems which will come before them. Certainly those problems will be extremely complicated, technical and difficult to deal with. Recognising that the new tribunals will have very difficult questions to deal with, I think that a right of appeal should be given on terms which the Government think suitable. This clause deals more or less specifically with two classes of case, and I should like to call attention to the nature of the provisions. Subsection (6) says:If…a committee of investigation is of opinion that any provision of the scheme is contrary to the public interests, it shall be the duty of the committee to report the matter to the Board of Trade.Then, if the Board of Trade, after considering the report and consulting such persons as appear to them to be affected, agree with the committee, the Board may take certain steps to enforce the recom- 1361 mendations. It will be noticed that if in fact the committee of investigation find the complaint ill-founded, there is no appeal at all. The committee of investigation may be hopelessly wrong, and may have entirely misdirected themselves, but if they have found that the complaint is ill-founded, there is no means of putting it right. That is a blemish in the provisions. Incidentally, I do not say the remainder of the provisions are very satisfactory, because if the committee find that the complaint is ill-founded, then the Board of Trade can go on and consult various persons, without giving any opportunity to the person complaining to know what has taken place and to act as may be necessary in regard to it. The person will not even know who are the persons who are to be consulted. There is another provision in Sub-section (8) which also deals with complaints. It says:If after investigating any complaint made with respect to the operation of a scheme, a committee of investigation is of opinion that any act or omission of any persons in respect of their functions under the scheme is having or is likely to have an effect contrary to the public interests…then it is provided that the committee can make certain representations to the persons who can put the matter right. Then, if there is a dispute, there is a provision that an independent arbitrator shall be appointed to deal with the matter. The Government, quite properly, have recognised the principle of independent arbitration in that Sub-section.
What I am saying is that, having gone so far, they should go the whole way, and allow a right of appeal in all cases where the party bringing the complaint is not satisfied. If the committee has gone wrong, there is absolutely no right of appeal. Those are the cases dealing with extremely important classes of complaints, and it is most unfortunate that there is no provision made to deal with the committee which goes wrong and rules that there is no cause of complaint when, in fact, there is. I understand the Bill has been largely moulded on the German system, in which there are most elaborate checks and counter-checks. Every decision given is elaborately checked, and I am told by those who are acquainted with the system that those checks and counter-checks have largely contributed to the efficiency and smoothness with which the German system works.
1362 I am not suggesting that the Government should go as far as the German system—I quite appreciate that what is suitable for Germany may not be suitable here—but I ask the Government to bear in mind that the German system has shown that this system of checks is necessary if you are going to get a good, workable Bill. I do not like the Bill, but, if we are to have it, I want to see it given as full a chance as possible, because the prosperity of the coal trade is vital to the country. Therefore, I would suggest that the Government might at least go to this extent and allow an independent arbitrator to decide all questions of dispute in the matters dealt with in the Sub-section. I do not see what objection there can be to it. An unsuccessful person may be ordered to pay the costs. The prospect of paying costs is, at any rate, some inducement to a person to abstain from frivolous appeals. I hope the Government will take the view that this idea of appealing, in regard to new tribunals dealing with this very complicated sort of question, shall be adopted, and that they will accept, at any rate, the principle of the Amendment, so that a committee which has gone wrong may be put right, thus avoiding the great damage that may otherwise ensue.
§ Captain AUSTIN HUDSON
I beg to second the Amendment.
This is an effort to remedy what we consider to be a rather serious defect in the Bill, because at present this appeal to arbitration is entirely one-sided. The object of this Sub-section is that any person who has made a complaint and is aggrieved may require the matter to be referred to a single independent arbitrator. It is complementary to Subsection (8), which says that if, after investigating any complaint, a committee of investigation is of opinion that any act is likely to have an effect contrary to public interests, if the matter be not dealt with to the satisfaction of the committee, the committee may refer the matter to a single independent arbitrator. The committee, under this Bill, is to have the right of referring to an arbiter, but the aggrieved person or persons have no such right, and that is why we say the appeal is very one-sided. There is the power to award costs, which will prevent frivolous appeals, and there 1363 is also power in default of agreement for the Lord Chief Justice in England, and in Scotland the Lord Justice Clerk, to provide an arbiter if he cannot be provided by agreement. If words to this effect can be put into the Bill, it will improve it, and it will do away with what is obviously a one-sided arrangement where the committee have power to go to arbitration if it does not like what goes on but where an aggrieved person has no such right.
§ The ATTORNEY-GENERAL
It is quite impossible for us to accept this Amendment. Consider what the provisions are relating to arbitration. First of all, arbitration is to be provided for with regard to matters arising under the central commission, and the persons who have the right to arbitrate there are, of course, the executive boards, because they are the only persons who have a locus standi in respect of the central scheme. Then you come to the district scheme. There, of course, the persons who have a locus standi are the owners of coal mines, and any owner of a coal mine has a right to claim arbitration if he considers himself aggrieved by a district agreement. Then you come to this clause, where you are dealing with the committee of investigation. Any member of the public who thinks he is paying too much for his coal or has any other grievance, real or imaginary, can put it before a committee of investigation, and, if it seems to them that there is a prima facie case and that the scheme is likely to have some effect which is against the national interest, it can adopt the machinery and start arbitration.
What absolute chaos would result in this situation, that any member of the public, anyone of the 40,000,000 of people living in this country, having put a complaint before a committee of investigation, and the committee of investigation having turned it down, can arbitrate, either with the committee of investigation or with the body charged with the administration of the scheme or with the Board of Trade. It is said that the penalty of paying costs is a sufficient safeguard against wild schemes being arbitrated upon. Do hon. Members really believe that the prospect of having to pay costs is any real bar to a man of 1364 straw, who cannot possibly pay, getting himself into the limelight?
It would be a most hopeless system if, without seeing that anyone lad a locus standi at all, you allowed anyone to come and claim to arbitrate with the Board of Trade or the central or district board or the committee of investigation. You might have millions of arbitrations by all sorts of people. Take the analogy of our private Bill legislation. We do not allow any member of the public to appear and object to proposed legislation. There is a committee that sits to see whether he has a locus standi, that is, whether he is pecuniarily interested and has a real grievance. Take the case of a relator action in the courts. If any member of the public complains about the diversion of a highway or the stopping up of a bridge, a matter with regard to which the public as a whole are interested but he himself is pecuniarily interested more than the public, the Attorney-General, as representing the public, looks into the whole matter to see how serious the complaint is, and, if he thinks it a proper case, he lends his name. Unless he lends his name, the case cannot go on. The analogue of the Attorney-General and the relator action is this committee of investigation. To allow any single member of the public to arbitrate with anyone, notwithstanding the fact that the complaint has been turned down by the committee of investigation, which as to one half consists of consumers, with an independent chairman, is a provision which no Government could possibly contemplate and for which there would be no sort of analogy in the procedure of the House or of the courts or, as far as I know, anywhere else. We have guarded the matter as carefully as we can by setting up the committee of investigation, constituted as it is, and, if we open the door wider and allow any member of the public to arbitrate, we shall be opening the door to grave abuse, and certainly no one of the departmental officials concerned would ever be able to sleep happily in their bed any more. The Amendment is quite impossible.
§ Sir B. MERRIMAN
I think the House will recognise that the Attorney-General has put some weighty objections to the Sub-section as it stands, but there is a point of substance behind this which he 1365 has not dealt with. The position may arise in which, although the committee are convinced that public interests are being infringed, and although they have made representations which have not been given effect to, the clause merely says they may refer it to arbitration. The real solution is that the word "may" should be taken out, and the word "shall" inserted. Unless that is done, or unless some such provision as this is put in, very likely in a more restricted form, you are going to get a position in which, in spite of representations on the part of the committee, a party in default may, if the committee chooses to take no further action, remain in default and the whole scheme be nullified. I suggest that the Attorney-General should consider at a later stage making this arbitration compulsory while avoiding the difficulty that he has pointed out.
§ Amendment negatived.