New Clause. — (Complaints to Railway and Canal Commission as to Undue Disadvantage.)

Orders of the Day — Ministry of Ways and Communications Bill – in the House of Commons on 1st July 1919.

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"The owners of any harbour, dock, or pier undertaking established by Act of Parliament who shall have reason to believe that the Minister is by any direction given, or anything done, by him under this Act placing their harbour, dock, or pier at an undue disadvantage as compared with any other harbour, dock, or pier may make complaint thereof to the Railway and Canal Com missioners who shall have the like jurisdiction to hear and determine the subject matter of the complaint as they have to hear and determine a complaint of a contravention of Section two of the Railway and Canal Traffic Act, 1854, as amended by subsequent Acts, and the Commissioners may accordingly rescind or vary such direction or give such other relief as to them may seem proper."—[Mr. Pennefather.]

Brought up, and read the first time.

Photo of Sir John Pennefather Sir John Pennefather , Liverpool Kirkdale

I beg to move, That the Clause be read a second time. I feel in a difficulty with regard to this Clause, because it is very hard to tell yet how the point covered by it is affected by the Amendment which we have passed this afternoon. Unless my Friends whose names are on the Paper in support of it or other hon. Members who are interested desire to make any remarks, I should feel inclined that this point might be raised at some other stage. I think, however, that some of my hon. Friends do desire to make some remarks, and, therefore, I will just content myself with moving the Clause.

Photo of Mr James Lowther Mr James Lowther , Penrith and Cockermouth

I rather think this has been disposed of. The House has decided that in the event of any dock or pier or harbour desiring to take exception to certain acts of the Minister, it shall have a certain time within which to appeal.

Photo of Mr William Joynson-Hicks Mr William Joynson-Hicks , Twickenham

On a point of order, Sir, and with very great submission. What we passed this afternoon was a Clause giving the right of appeal in respect to any Order of the Minister referring to a dock or harbour. The present Clause gives the dock or harbour the right to appeal to the Railway and Canal Commissioners in respect to undue disadvantage to them caused by any Order of the Minister.

Photo of Sir John Pennefather Sir John Pennefather , Liverpool Kirkdale

I will content myself by simply moving the new Clause.

Photo of Mr William Joynson-Hicks Mr William Joynson-Hicks , Twickenham

I beg to second the Motion. It is quite possible that by an Order given by me Minister to a railway company, which may have to run trains into a dock, that very grave disadvantage may be placed on the dock. This Clause is, in effect, a re-enactment of a Clause in the Railway and Canal Traffic Act, 1888, Section 30, by which Parliament reserved a very distinct power to any dock or harbour authority or dock company which had reason to believe that any railway company was, by its rates or otherwise, placing their harbour or docks at an undue disadvantage compared with any other docks. Under Clause 3 of the Bill, Subsection (1) (e), we reserve the right to a dock or harbour to appeal to the Railway Commissioners in regard to anything done by a railway company which creates an undue preference in regard to rates. We do not, however, preserve to the dock or harbour authority the right to appeal against undue preference "or otherwise." That is an oversight, I gather, from the Committee upstairs, but it is quite clear that an order of a railway company— which, of course, under the provisions of this Bill, will have been taken possession of, technically, by the Minister, and so will be an Order of the Minister through the railway company—could place another company at a great deal of disadvantage. This is conceivable, and in 1888 Parliament thought it was conceivable and provided a right for them to appeal. The right which Parliament gave in 1888 for a dock company to appeal to the Railway and Canal Commissioners should not be taken away under this Act, but preserved.

Photo of Mr Edward Shortt Mr Edward Shortt , Newcastle upon Tyne West

This Clause as it stands goes a great deal further than anything which is contained in the Act referred to by my hon. Friend the Member for Twickenham. That Act provides for the case of a railway company which has any system connected with two separate and individual docks, and which gives a preference to one of them. Suppose, for instance, that a railway company serving the docks at Hull and Grimsby gave an undue preference to the Hull docks, the Grimsby docks could go before the Railway and Canal Commissioners and get from the railway company the same facilities as are given to Hull. But this is a very different matter, and I must say it is a most ingenious use of a term which I do not think occurs anywhere except in that particular section—namely, "undue disadvantage." That really means undue preference. I do not quite know what "undue disadvantage" means in the proposed Clause, but I think I know what it ends at. The Minister may give directions with regard to railways and docks all over the country, and also roads and canals, and so on. If the Minister gives an order, say in Glasgow or Liverpool, which greatly improves the facilities, improves the railway connections, and perhaps the connections with some canals, those facilities may be of immense value to the trade of the country. But such an improvement in the facilities of the docks of Glasgow and Liverpool might attract trade, say, from Southampton or some other port to Liverpool and Glasgow, to the great advantage of the trading community, but to the injury of some individual dock. Then that dock would be able to come and say that these orders, which are for the good of the whole trading community, are to the disadvantage, say, of Southampton, and put a stop to the whole thing. That sort of thing is far too wide. As I have said, I do not think the term "undue disadvantage" is used anywhere but in that one section. I may be wrong, but at any rate I do not recollect it. It is there used really as meaning undue preference on the same railway system.

Photo of Mr William Joynson-Hicks Mr William Joynson-Hicks , Twickenham

I do not think it can refer to undue preference. Preference must be a matter of rates. The Section refers to cases in which a dock is placed at an undue disadvantage, whether by rates or otherwise.

Photo of Mr Edward Shortt Mr Edward Shortt , Newcastle upon Tyne West

It is a preference given by one system which serves two docks to one of those docks, and I take it that the second dock must be put upon as good a footing as the first. As this proposed Clause stands it means that, no matter where the Order is given, or whether it is connected or not with the complaining dock, which may be in a totally different part of the country, if the indirect effect is to make a dock less prosperous, or if it would necessitate a change in its trade, or something of that sort; if, in fact, it was something which, -while being of immense benefit to the trade of the country, might cause temporary dislocation and disadvantage to some local dock, that local dock could plead undue disadvantage and put a stop to the whole thing. Therefore, it is quite impossible to accept this Clause. There is no desire to do anything to interfere with any individual undertaking; quite the opposite. But, at the same time, as you must have improvements—and I trust that they will be brought about under the working of the Bill when it becomes an Act—there must be a certain amount of dislocation and temporary disadvantage, and everybody must accept that. At the same time there is every intention to treat everybody with fairness and to do no injury that can possibly be avoided. We cannot, however, accept a provision which, in order to avoid some temporary disadvantage to a local undertaking, may put a stop to a great scheme of national policy which will be of the greatest national benefit.

Photo of Mr Edward Carson Mr Edward Carson , Belfast Duncairn

I should like to ask whether the provision referred to by the hon. and learned Gentleman opposite (Mr. Joynson-Hicks) will be preserved. The right hon. Gentleman the Home Secretary says that the Section of the Railway and Canal Traffic Act of 1888, to which reference has been made, applies where a railway serves two docks, and ensures that the railway shall not have the power to create an undue disadvantage against either of them. That is what I understood to be his construction of the Section. But is that right preserved, or has it been taken away now that the railway company is being practically abolished, and the right hon. Gentleman the Member for Cambridge is to be the Director of all the railway companies? Will he be bound by that Section in the cases provided for, in that, where a railway serves two docks, and either of them is put at a disadvantage, it will be able to go to the Railway and Canal Commission?

Photo of Mr Edward Shortt Mr Edward Shortt , Newcastle upon Tyne West

Yes, the provision in that Act is not repealed, and in so far as a railway company does that, it still exists; and the Minister is in fact, acting as a railway company. The railway company would still continue to exist as such.

Photo of Major-General Sir Ivor Philipps Major-General Sir Ivor Philipps , Southampton

I protest against the example which my right hon. Friend the Home Secretary took. He suggested that improvements which the Minister might introduce in Liverpool or Glasgow would seriously damage Southampton.

Photo of Mr Edward Shortt Mr Edward Shortt , Newcastle upon Tyne West

I said, "or some other port."

Photo of Lord Hugh Cecil Lord Hugh Cecil , Oxford University

I do not think the argument of the right hon. Gentleman is a good one, because the words "undue disadvantage" would evidently exclude any disadvantage caused in the public interest by a great reform. I cannot conceive that the Railway and Canal Commission would hold that a particular dock suffered "undue disadvantage" because, owing to some considerable improvement, that particular dock lost rather more than others. That would be "due disadvantage." Therefore I suggest that the words "undue disadvantage" do guard against the objection which the Home Secretary makes; but if that were not sufficient it would be open to the Government to define the words in their Bill in any way they think proper, and make it quite clear that "undue disadvantage" means disadvantage which is in the nature of unfair advantage given to one dock over another.

Photo of Mr William Joynson-Hicks Mr William Joynson-Hicks , Twickenham

I should like with the leave of the House, to say one word with regard to the point made by the Home Secretary. I am afraid that he is wrong. Under the provisions of his own Bill, any alteration in rates made by a railway company under the direction of the Minister is deemed to be reasonable, notwithstanding any agreement or statutory provision. If a railway company, under the directions of the Minister, makes a rate, that rate is deemed to be reasonable notwithstanding any statutory provision, subject only to claims as regards undue preference, but not undue disadvantage. Perhaps if the words ''undue disadvantage" were inserted after the words "undue preference" in Sub-section (1) (e) of Section 3 of the Bill, it would meet the case. A rate ordered by the Minister is deemed to be reasonable and becomes statutory, and I think that could be pleaded, as the Bill at present stands, in reply to any claim by a dock company in respect of "undue disadvantage."

Photo of Colonel Sir James Greig Colonel Sir James Greig , Renfrewshire Western

The effort of this Amendment, which has been moved in order to provide an appeal under the Clause which the Government has already accepted in the interests of the dock and harbour companies this afternoon, would be to allow a dock or harbour company, where it is injuriously affected, to make an appeal which would hold up the whole matter. What does this Amendment do? It applies to harbour, dock, and pier undertakings, and a harbour, dock or pier undertaking within the section as it is thus proposed to be amended, could complain to the Railway and Canal Commissioners of any direction given or anything done by the Minister under that Act. Suppose that to be applied to Section 3 of the Act, the remaining powers of which it is admitted are still within the control of the Minister, leaving out paragraphs (i) and (ii), and suppose that the Minister gives a direction that certain appliances or equipments, fixed or movable, shall be moved under Sub-section (4) into a certain dock. That is an exercise of an ordinary minor power of the Minister. The dock company says that it will put them at a disadvantage as compared with some other dock company somewhere else, and it goes to the Railway Commission; and every minor exercise of power by the Minister will be liable to be thus held up by an appeal to the Committee.

Photo of Mr John Gretton Mr John Gretton , Burton

I do not know whether the House realises that the whole position has now been altered and an entirely new set of circumstances has been brought about by this Bill. One of the intentions of this Bill is that the traffic of the country shall be controlled as one whole. That means to a very great extent doing away with competition between railway companies, and whereas previously there were docks competing with the railway companies, and railway companies who had acquired docks could place other docks at a disadvantage by sending traffic to their own dock, now competition is to be entirely done away with and traffic diverted, in the national interests, from one direction to another. This may be done in various ways. Most people would agree that to develop the facilities of one harbour is not placing another harbour at an undue disadvantage—that is to say, the mere development of facilities for handling grain or any particular class of goods. But it is against other actions of the Minister that some safeguard is required. It may be that this Clause may not in all respects meet the situation, but the principle is right, and those dock companies which have been excepted from the provisions of this Act by the decision of the House this afternoon, do require some protection against competition from the harbours which would be under the control of the railways, and so under the control of the Minister. I think this Clause might well be read a second time, and such Amendments introduced as may be required.

Photo of Mr Donald Maclean Mr Donald Maclean , Peebles and Southern

As the hon. and gallant Member for Burton has said, the circumstances are undoubtedly very different from those contemplated in the Bill as it is at present before the House. I agree with the Home Secretary that to pass this Clause in its present form would undoubtedly give great opportunities to any harbour, dock, or pier undertaking which is not at present within the scope of his authority to make things very awkward for him. Those who have had any experience of the procedure before the Railway and Canal Commissioners know what a very wide scope it has, and what a very skilled Bar there is for dealing with all the various points that can be raised. If it is left simply at the mercy, to use the words of the hon. Member, of these two words—"undue disadvantage"— I have no doubt at all that—I will not say use the word "unscrupulous"—but a very determined and financially strong undertaking or group of undertakings could make life very unhappy for the right hon. Gentleman. Then, again, the harbour, dock, and pier undertakings which are not within the ambit of the present powers of the right hon. Gentleman are entitled to some protection, which, I do not think, is in the Bill. I have the Act of 1888 before me—one with which, to a certain extent, we are familiar—and I therefore think that some such words as suggested ought to be inserted. While agreeing that "undue disadvantage" goes too far, I do not think that the words "undue preference" do, or some similar words. The words "undue preference" have acquired a certain artificial meaning, and they are constantly being argued and discussed before the Railway and Canal Commission. I think this Clause might receive a Second Reading, subject to some Amendment giving the harbour, dock, and port authorities— which are, for the moment, by the decision of the House, outside the immediate purview of the Minister—power to complain to the Railway and Canal Commission of undue preference against them, and I think that that certainly is a power which these authorities are entitled to ask from this House.

Photo of Mr Henry Wilson-Fox Mr Henry Wilson-Fox , Tamworth

The discussion on this Clause has served a very useful purpose in bringing out that about which there is some confusion of thought— what this Bill is aiming at. As I understand it, the object of the Bill is to secure efficiency of transport for trade. I have never understood from reading the Bill, nor gathered from the speeches of the Home Secretary and the Minister-designate, that it was part of the intention of the Bill to divert the natural channels of trade. My view of the position is that it is the duty of this House to support the Government in making provision for efficient transport for such trade that exists or is likely to arise in the near future. I do not think it can form part of the scope of the Bill to decide how trade is to be dealt with. The moment we convert our Minister of Ways and Communications into a Minister of Trade we are adding very largely to his responsibilities, and, I think, placing upon his shoulders a burden that ought not to be placed upon him and which the House should consider very carefully before it invites him to assume. I can understand, for instance, directions given that harbour authorities which have not been able to make efficient provision for the natural trade of their port should be dealt with, but I do not think the time has come to give directions to harbour authorities not to provide facilities that will if not provided take their trade to another port. If the Bill is to give these extra powers to the Minister, then I agree with the hon. Gentleman opposite it is perfectly right that some limitations should be placed upon him so that he may not use them for the purpose which, I am sure, this House ought not to give him power to exercise. It may be necessary, for the purposes of this Bill, to give the Minister in charge very much wider powers than the House really wishes him to exercise. I accept that. For this reason I support the Bill, and that the House should be generous in giving these powers, but I also myself feel the need for a limitation of these powers. I support the Amendment for this reason, because I think it is right and proper that the dock and harbour authorities should be placed in a position under this Bill to protect themselves within right and proper limits, and by reference to a properly constituted judicial authority.

Photo of Mr Edward Shortt Mr Edward Shortt , Newcastle upon Tyne West

I do not think it is possible to accept the Second Reading of this Clause. It is so wide, and I hardly know how it can be amended so as to bring it within the scope of what it is possible to do. The term "undue preference" means great facilities. There is a provision in Clause 3 of the Bill, paragraph (e), which preserves the right to make a claim in regard to undue preference. When we come to that Clause we may consider a provision to give a dock authority the same powers as any trader in connection with the question of undue preference, but to accept a wide suggestion like this, which goes far beyond anything that is known in the way of undue advantage, and goes far beyond matters of rates and facilities, and matters which are usually-heard by the Railway Canal Commissioners—it is difficult, I say, to see how far it does go—is not possible. The term "undue preference" we know, and also that undue disadvantage is used. But "undue disadvantage" I confess I do not know, nor do I know any judgment in any Court which helps us to understand it. For this reason, I must ask the House to reject this proposal, although when we come to Clause 3 we may consider the-question of giving docks the right to claim in matters of undue preference what they fairly and rightly ought to be able to do.

Photo of Sir John Pennefather Sir John Pennefather , Liverpool Kirkdale

After listening to what has been said, I come very much to the same opinion as that with which I started, which is that it is very difficult at such short notice to realise exactly how far this Clause has or has not been affected by the Amendments we have already passed this afternoon, and the arrangements which have been made. On the statement that the whole matter will be reconsidered on Clause 3, I beg leave to withdraw the Clause.

Motion and Clause, by leave, withdrawn.

The following new Clause stood on the Paper in the name of Mr. JOYNSON-HICKS: