HL Deb 09 November 1948 vol 159 cc273-83

2.44 p.m.

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (VISCOUNT JOWITT)

My Lords, I rise to move that this Bill be now read a second time. I believe your Lordships will find this Bill completely uncontroversial. Its main object is to effect economy by abolishing the Railway and Canal Commission by transferring to existing courts and tribunals the Commission's present functions which, as I will show, are now much less onerous than they formerly were.

The Railway and Canal Commission was established under the Railway and Canal Traffic Act, 1838. It is composed of an ex-officio Chairman, who is a Judge of the High Court in England and Northern Ireland, and a Judge of the Court of Session in Scotland, and also of two Commissioners appointed by the Home Secretary. Of the jurisdiction originally conferred upon the Commission there now remains virtually nothing. Section 75 of the Transport Act, 1947, deprived the Commission of its jurisdiction in all matters relating to railways and canals, except for railway rating and a few minor functions in Northern Ireland. The jurisdiction in railway rating has now been taken from the Commission by Section 85 of the Local Government Act, 1948.

The Commission has, in addition, jurisdiction with regard to working facilities and support, and other matters connected with the mining industry. This jurisdiction was conferred upon it by the Mines Working Facilities and Support Act, 1923, and a number of amending Acts. It also has a miscellaneous jurisdiction to decide disputes about postal and telegraph services, the placing of electric lines along railways, the supply of water in the Metropolis and the continuance in possession and compulsory acquisition of land requisitioned during the First World War. The Commission was at one time very busy, but the establishment of the Railway Rates Tribunal by the Railways Act, 1921, deprived it of the greater part of its work relating to railways. By 1933, the number of cases heard by the Commission had declined to such an extent that a Bill was introduced into your Lordships' House to provide for the abolition of the Commission and the transfer of its functions to various tribunals. That Bill was given a Second Reading, but was then dropped because there did not appear to be any prospect of obtaining general agreement, and also because of the pressure of Parliamentary time—a pressure which even in those days was making itself felt.

In the meantime, however, by the Transport Act and The Local Government Act, to which I have already referred, the Commission has been deprived of a further part of the jurisdiction which it formerly possessed. I do not wish to trouble your Lordships with much detail, but a few figures will help to show how the business of the Commission has further declined in recent years. In the course of his speech on the Second Reading of the 1933 Bill, the Lord Chancellor, Lord Sankey, gave figures to show that the Commission had sat for an average of just over 48 days a year during the years 1929 to 1932 inclusive. That compares with an average of about 190 working days a year of a Judge. According to figures with which I have been supplied, the appointed Commissioners sat for 24 days in 1944, 30 days in 1945, 18 days in 1946, 14 days in 1947 and, so far, only 12 days in 1948. Excluding the present year, as it has not yet passed, this gives an average of under 22 days a year for the four years to 1947. The full Court sat on even fewer occasions. The number of cases dealt with during these years will also indicate the decline in the Commission's business. In 1944, 20 cases were set down for hearing; in 1945 there were 3; in 1946, 7, while in 1947 there were no cases at all. So far this year, only 4 cases have been set down.

I should now like to draw your Lordships' attention quite briefly to the structure of the Bill. Clause 1 abolishes the Commission, and transfers the functions, except as otherwise provided, in the case of England and Wales to the High Court and, in the case of Scotland, to the Court of Session. Most of the jurisdiction in practice exercised by the Commission will be transferred by this provision, for I am informed that the Commission has, in fact, not been called upon to exercise jurisdiction under the Telegraph Acts, nor that conferred by a number of other Acts, for many years. Moreover, there have been no cases at all under some of the other Acts which conferred jurisdiction upon the Commission as, for instance, the Water Acts, 1945 and 1946.

Clause 2 relates to the determination of differences arising under the Telegraph Acts. They are at present determined by a stipendiary magistrate or county court Judge in England or Wales and Northern Ireland, or by the sheriff in Scotland, subject to a right of appeal to the Commission. The clause amends the Telegraph Act of 1878 by providing that such differences shall be determined in England and Wales or in Northern Ireland by the county court, and in Scotland by the sheriff, and from these courts an appeal shall lie to a single Judge of the High Court designated by the Lord Chief Justice. In Scotland, the appeal would be to the Court of Session, and the Judge would be designated by the Lord President of the Court of Session. In Northern Ireland, he would be designated by the Lord Chief Justice of Northern Ireland. As I have already observed, there have in fact been no such appeals for a number of years. The jurisdiction transferred by Clauses 3, 4 and 5 is again so little exercised that it is not necessary for me to dwell upon these clauses, and Clause 6 makes provision for pending proceedings and for the disposal of the Commission's Records.

The two Commissioners appointed by the Home Secretary have received £3,000 a year each, but one of them retired in September of last year. The remaining Commissioner, the noble Lord, Lord Maenan, is a member of your Lordships' House, and has served as a Commissioner of the Railway and Canal Commission ever since February, 1930. He took that office at a date when many lesser men would have thought of retiring, and although the Statute gives the Lord Chancellor power to remove him, in the event of his lack of ability or misconduct, I should tell your Lordships that if the Lord Chancellor had ever contemplated doing either of those things he himself would have been guilty of the gravest misconduct. The noble Lord has won and retained the affection and regard of all members of the profession who have practised with him and who have had the privilege of practising before him while the Commission was sitting.

Your Lordships will observe that the Bill as drafted contains no provision enabling the Treasury to make compensation, such as I understand would be normal and usual, by reason of loss of office which would arise from the abolition of the Court, and I think that to include such a provision in the Bill in this House would probably involve a breach of Privilege. I have reason for understanding that such a provision would not be un-favourably looked at in another place, and might even commend itself to the Treasury. I hope, therefore, that whatever is fair and proper will be done before this Bill reaches the Statute Book. The Officers of the Commission comprise a Registrar and Secretary, who can be absorbed into other departments of the Royal Courts of Justice. I think it will be clear to your Lordships, therefore, that the retention of the Commission is no longer justified, and that its remaining functions can be performed without loss of efficiency or hardship by the courts and tribunals to which it is proposed that these functions should be transferred. I beg to move.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

2.55 p.m.

LORD LLEWELLIN

My Lords, I shall detain your Lordships for only a few moments, for my noble and learned friend Viscount Simon knows a great deal more than I do about the working of the Court which this Bill seeks to abolish. All I wish to say is that, so far as we on these Benches are concerned, this Bill is not a controversial one. It is clearly right to abolish a tribunal which has not enough work left to justify its existence. Whether the new Railway Transport Tribunal will be as satisfactory a body as this Commission has been over the years remains to be seen. That Tribunal is a new body set up to inquire into matters which were previously dealt with by the Railway and Canal Commission. I think the noble and learned Viscount the Lord Chancellor did not place the date of the beginning of the Commission far enough back; I believe that, although it was altered in form in 1888, it was in fact started in 1840, and so has been doing this work, and doing it to the general satisfaction, for over one hundred years.

There are one or two matters upon which I should like to make some comment. In regard to Clause 2, I think that it is quite right to have the whole of this jurisdiction in the first instance transferred to the county court and to cut out the stipendiary magistrates. It is far better to have the one Tribunal, and the sheriffs in Scotland. Then I should like to draw attention to one phrase in line 44 on page 2 and also to a phrase in line 40 on page 4. When we are dealing with Northern Ireland we specify that the court is to be a county court within the district in which the difference has arisen. I should like to ask the noble and learned Viscount on the Woolsack to look at those words before the Committee stage, because I should have thought that the court which may try cases in England was the same—that is, the county court for the district in which the dispute has arisen. If that definition is left out in the case of England, I do not know why it is mentioned in the case of Northern Ireland. That is a small point, but it is one we might look into, because I think it is right that Bills originating in this House should go to the other place as perfect as we can make them during our discussions here.

I was very glad that the Lord Chancellor indicated that there was a fairly good chance of a compensation clause being introduced before this Bill filially reaches the Statute Book. I am quite certain that we should desire that the noble Lord who has done such good work on this Commission for so many years should not be deprived of the usual rights given when there is an abolition of an office by Act of Parliament.

I should like to ask the noble and learned Viscount one other question. When Clause 5 becomes law, what is going to be the channel for bringing before some tribunal for decision grievances in regard to the Metropolitan Water Board? It may be that there have been very few of such disputes, but before we completely abolish the right of complaint to a tribunal we ought to know whether there is any place to which an aggrieved person may go. I shall now conclude, because my noble and learned friend Viscount Simon is now going to address your Lordships, but, before I sit down, I should like again to assure the noble and learned Viscount the Lord Chancellor that this measure will not be in any way a controversial one.

3.0 p.m.

VISCOUNT SIMON

My Lords, I have no intention of detaining the House for more than a short I feel that, after the very clear statement that has been made by the noble and learned Viscount the Lord Chancellor, and the confirmation just offered by my noble friend, Lord Llewellin, there is no doubt at all that we shall accept this Second Reading without any demur. But it does seem to me—and I hope your Lordships will think so, too—that, before this Tribunal passes into limbo, a few words might be said about its past usefulness and the great position which it held in its own sphere in our judicial system.

It is a mistake to suppose that because the title of the body was "The Railway and Canal Commission" it merely administered a form of arbitration. It was a Court, a Court of Record, and a Court with the full powers that a British court has, to compel witnesses, to hear them on oath, to have them cross-examined, and to go into matters in all necessary detail. I think it is not inappropriate to dwell on the fact that it decided, judicially, as a result of open inquiry, disputed matters about railway rates and railway charges, and about undue preference alleged to be shown to one trader as against another. Before any railway company could raise its charges it was open to the challenge of any trader who was affected; the Tribunal had cast upon it the duty of deciding. The burden of proving, that the increased charge was justified rested upon the carrier and, unless it was established that the increased charge was justified, the increase was disallowed.

We pass to new times and new methods, and no doubt most careful arrangements have been made in the latest Statute on this subject. But that is not quite the way in which the public concern at increases in railway rates and charges is now met. The Tribunal had other most important jurisdictions, too. I recall—and I think my noble friend Lord Samuel, who was Postmaster-General at the time, may not have forgotten—that in the years 1912 and 1913 it was this Court of the Railway and Canal Commission which heard and determined the claim to compensation of a great private enterprise, the National Telephone Company Limited, when it was taken over by the Post Office. It must have been one of the most elaborate inquiries. It lasted for seventy-five days, and I think there were over 500,000 separate parcels or items of all sorts and kinds to be valued. A decision was given, as a result of which the claim put forward—a claim for £20,000,000—was dissected and the Tribunal ultimately awarded as just the figure of £12,000,000. That result was not arrived at by seeking an appropriate date and endeavouring to ascertain a quotation for the company's shares on the Stock Exchange. It was done by a method which I believe is now rather out of fashion. It was done by valuing the undertaking, which the State was compulsorily acquiring on what were called "tramway terms," as at the date when notice of acquisition was given and as a going concern, with a proper and not at all excessive allowance for the plant (largely partly used plant) which had been taken over. I merely observe, in passing, that these methods appear now to be somewhat out of mode.

Perhaps your Lordships will allow me in a few sentences to recall two or three of the great personalities who have been connected with this Tribunal. As the noble and learned Viscount the Lord Chancellor has reminded us, the President in England was by Statute a High Court Judge especially nominated by the Lord Chancellor, with the result that not only was an exceptionally fit person chosen, but he continued to do this work in case after case and became very familiar with the nature of the business. That is a great advantage in these rather technical matters. If your Lordships will allow me, I will mention just two names—first Mr. Justice Bigham, who was the father of my noble friend Lord Mersey. Anyone who recalls him in the days when he presided over that Court will well remember that combination of shrewdness and wide commercial knowledge with an unfailing common sense, and with an occasional kindly humour which made the conduct of these inquiries interesting to all concerned.

Then there was Mr. Justice A. T. Lawrence, who was afterwards Lord Chief Justice of England, the father of our colleague in this House, the noble and learned Lord, Lord Oaksey. It was he, indeed, who presided over the National Telephone arbitration. As the noble and learned Viscount the Lord Chancellor has said, they had on either side of them a Commissioner, one chosen for his special railway knowledge, the other chosen as representing more specially the interests of the consumer, the public. All who saw the working of that Court in those days will have recognised its exceptional authority and power. One of those Commissioners for many years was the late Sir James Wodehouse, who was the father of the noble Lord, Lord Terrington.

May I, for a moment, for a sentence or two, stray from the immediate topic—though what I am going to say is very closely related to railways? I am sure that many of us have been distressed to read in the last few days of the death of Lord Ashfield, not only because he was a most distinguished President of the Board of Trade, but because he really was the architect and the developer of the great London transport system.

The noble and learned Viscount the Lord Chancellor has referred to the member of this House—perhaps I may call him at one and the same time both the oldest and one of the youngest of our company—who himself for so many years (nineteen years, I think) discharged his duty as one of the Commissioners. I confess that I have reached a time of life when I hear with a twinge of melancholy of the passing away of not only men but institutions. It is perfectly right to do what the Lord Chancellor proposes. Indeed, it would be quite absurd to keep alive the Railway and Canal Commission to-day, because now that body has no railway work and no canal work whatever. It does at present, I think, deal with certain questions about telephone poles put on other people's ground, wayleaves and the like, and access to coal and other minerals. That is about all it does. I have no doubt at all that the proposal is a good one, and that those remaining fragments of what was once a great jurisdiction should be passed on to another Tribunal. Therefore, I have not risen in the least with any idea of opposing or criticising the Bill.

May I end, like a famous character in Dickens, by dropping into poetry? I admit that I cannot address my Lord Chancellor by saying to him: Woodman, spare that tree! Touch not a single bough: In youth it sheltered me, And I'll protect it now. I am afraid I can say nothing of the kind, but I do say, in two lines of splendid verse: Men are we, and must grieve when even the shade Of that which once was great is passed away.

3.11 p.m.

LORD MAENAN

My Lords, as a quite new member of your Lordships' House and also the last remaining Commissioner of a Court from which, as the noble and learned Viscount on the Woolsack has said, almost every power has been stripped, I rise chiefly to thank my noble friends, the Lord Chancellor and Lord Simon, for what they have so kindly said about myself. But I would also like to say that, although I am the last remaining Commissioner, the breaking of a connection of nineteen years is rather sad. Of course, I wholly acquiesce that it is my duty to assent to the provisions of the measure which is now before your Lordships' House, yet in some ways I do it with a sad heart, because I have many very tender memories of my former colleagues and of my friends who were so kind to me. I thank the Lord Chancellor for what he has said about myself—so kindly and so indulgently. I feel that I do not deserve all his references. I also thank my noble and learned friend Lord Simon for what he has said; I am really glad to hear it. I thank them both from my heart, and I shall treasure the memory of what they have said until that memory obliterates all regrets. I also thank the Lord Chancellor for what he has indicated may be done by way of compensation, but even if I had none I should willingly assent to the end of that Court; it has ceased to be useful and, therefore, in the interests of the nation, should no longer exist.

May I add this to what Lord Simon has said about the Court? The Railway and Canal Commission had a most extensive jurisdiction. It exercised authority not only in England and Wales, but also in Ireland and in Scotland. I would wish to say with what pride and honour I sat with the senators of the College of Justice in Edinburgh and heard the abilities of those great men, second to none. Their system of law is, in many ways, alien to our own, but I was none the less interested in observing the ancient customs and modes of a great procedure. That is a debt I should like to discharge. I sat with Lord Hunter for many years, with Lord Blackburn for many years and also with Lord Carmont, who at present is the ex officio Commissioner. Lord Blackburn had the unique experience of being the oldest Scottish Judge who sat in the High Court in London, just as Mr. Justice Mackinnon was the only English Judge who ever sat on the Scottish Bench. My Lords, having mentioned those, I think I have said enough, and I thank both my noble and learned friends from my heart for what they have said.

3.14 p.m.

VISCOUNT ADDISON

My Lords, I am sure it will be in accordance with the wishes of your Lordships' House that I should say how touched we are and how much we appreciate the fact that the noble and learned Lord has made his maiden speech to-day. I, for one, felt as he was speaking how much we must have lost in times past other opportunities of receiving his advice. At the same time, I am sure all members of the House would wish to be associated with the tributes that have been paid in deep sincerity to the noble Lord for this exceptional, singular and touchingly significant event with which he has enriched the records of this House.

May I also associate myself with what the noble Viscount, Lord Simon, said with regard to the passing of Lord Ashfield, whom many of us knew as a close friend for a number of years past and who has left behind him in the transport system of London a monument of which we can be proud. All those associated with him will recognise that to a large extent he was the original architect of that fine system. So long as that endures, and even longer, his name will, I am sure, be honoured and respected by the citizens of London for the great work which he has left behind him.

On Question, Bill read 2a, and committed to a Committee of the Whole House.