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New Clause—(Electricity Commissioners To State Reasons For Decisions)

Volume 389: debated on Thursday 6 May 1943

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Whenever under this Act the Electricity Commissioners give or withhold any consent or approval or determine any question or issue they shall state the reasons for their decision and whenever they make any decision which involves a question or issue of law they shall state a case for the opinion of the Court of Session in Scotland.—( Mr. Henderson Stewart.)

Brought up, and read the First time.

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

I think I can state briefly the reason for proposing this Clause. The Committee, having gone through this long Bill, will realise that the Commissioners are going to give or withhold consent or approval many times. They will frequently—far too frequently—have to determine questions or issues which will arise. Very often it will be a decision on the question of price, and issues of great importance, involving large sums of money will arise. There is scarcely anybody in the electricity industry who does not feel aggrieved at the present state of the law. Time after time in recent years the Electricity Commissioners have made decisions involving millions of pounds and the law at present says that the Electricity Commissioners shall decide an issue of that kind. In this case there is no right of appeal. The only law in this matter is the law of the Electricity Commissioners.

I ask the right hon. Gentleman to realise that this is an important issue. There is a great deal of dissatisfaction in the industry in England and I am certain that it will cause immense dissatisfaction throughout Scotland if there is not some way in which the decision of the Electricity Commissioners in London can be appealed against before some other authority. That appeal can only be made if the Electricity Commissioners state the ground for their decision. In Scottish law the sheriff states what he has found in fact and then what he has found in law. If you want to appeal you cannot raise the question on what he has decided in fact but on what he has decided in law. That is what I am asking here. The Electricity Commissioners, when they decide the issues, should state openly what they have found and how they have arrived at their decision.

The sheriff is a legal authority. You can appeal against him on the grounds of law, but his finding on fact is not subject to appeal. The Commissioners are not legal authorities and you are asking a non-legal body to state what are the facts and what is the law.

The interruption of the hon. Gentleman serves greatly to strengthen my case. I was coming to that. It is precisely because the Electricity Commissioners are not lawyers that I object so much to the present state of things. They have to exercise a judicial function. If the hon. Member will look at the Act of 1921 and previous Electricity Acts he will see that the Electricity Commission has two functions, (1) administrative, (2) judicial. It is the judicial function which they are constantly being asked to perform and they perform it completely in the dark. They have no qualifications to act as judges.

I did not say that at all. All I was saying was that they are not a legal body; they are not lawyers. A sheriff is a competent legal authority and he decides on the facts and his judgment can be appealed against only on grounds of law. The Electricity Commissioners simply judge on the facts and not on law.

That is not quite so. In practice the Electricity Commissioners have to consider questions of fact and of law and very often questions of mixed fact and law. I will refer to a case in point. If the hon. Member will look at Sections 12 and 13 of the Act of 1926, he will see that it is laid down that questions of price have to be decided on which, clearly, a matter of law arises. If he and I had a dispute as to what should be paid, it would be a matter of law to decide it. In this case the Electricity Commissioners, as it were, are the sheriff, and they have, under the Act of 1926, to perform the functions of a sheriff. It is because we have no way of discovering how they arrive at their decision in law, that we object, and all that I am asking is that it should be stated when they decide, upon what grounds they have reached their decision. The Highlands are so nationalist in their view that there will be the devil to pay if the Electricity Commissioners are to decide these matters without any right of anneal beyond them, and I warn my right hon. Friend that that will be a dangerous situation.

I would like to say a few words in support of the proposed new Clause. As I said earlier, I am not so much impressed by the quality of the Electricity Commissioners as are certain other people, and if they give a decision they should say why. If there is no appeal in the strict sense, there may be an indirect appeal in the sense that you can make an appeal to the Minister and through him the decision of the Commissioners might be altered. Strictly speaking, however, I do not think that the Minister has any power to over-rule them. Clause 12 (2, e) refers to:

"any other payment which the Board are authorised to make and which ought in the opinion of the Electricity Commissioners to be spread over a term of years."
Here is something on which the Electricity Commission is asked to give an opinion. When it expresses an opinion you are not entitled to examine its state of mind—even if it has a mind, and sometimes a collective mind does not exist anyhow. But if that opinion has laid it down that certain payments are to be spread over a number of years and they have a substantial influence on the cost of electricity, then those who may be affected ought to know why the Commission arrived at its decision. It is not unreasonable to ask that when the Electricity Commissioners arrive at a decision they should give their reason. The hon. Member for Gorbals (Mr. Buchanan) said the Commissioners are not a legal body performing judicial functions. They are performing administrative functions but many of their decisions are at least quasijudicial. Their proceedings take the character of legal proceedings, and it is only right that, if they come to a decision involving, directly or indirectly, the law and the interpretation of the law, there ought to be an opportunity for their decision to be challenged in the courts. The more frequently you can make semi-judicial powers challengeable in the courts the more frequently are the decisions likely to be right. The greatest Corrective to anybody who makes decision, is that his decision should be open to appeal. Nobody likes his decision to be reversed on appeal. Every judge of the High Court is more careful because there is a Court of Appeal and the Court of Appeal is more careful because there is an ultimate appeal to another place.

You have to come to the end of the rope some time. There is a final appeal in a sense, because, if such a decision offends our general sense of what the law ought to be, then Parliament changes the law. That is the ultimate appeal in certain cases. That generally happens when the Inland Revenue loses a case; opportunity is taken in the next Finance Bill to block the loopholes. This Bill is going to cause a great deal of satisfaction in municipal circles in Scotland. The Commissioners live in premises opening on to the courtyard of the Savoy Hotel and I can see deputations coming from Scottish municipalities to interview the Commissioners, owing to the very pleasant site on which they have their offices. The proposed Clause asks for something which is essentially reasonable. If the Secretary of State does not like the wording I am sure that my hon. Friend will have no objection to redrafting the Clause provided the principle embodied in it is preserved. I ask whoever is to reply to give most favourable consideration to this new Clause.

I hope that my hon. Friend the Member for East Fife (Mr. Henderson Stewart) will not press his Clause on the Committee. I can think of nothing more hampering to the work of the Board than that there should be an appeal to the Court of Session at every stage—and there are many stages, as he said—where the Electricity Commissioners issue a decision. I am aware that the Clause, as suggested, would refer only to decisions on matters of law but no one knows better than my hon. Friend how easy it is, even if a matter is stated in the form of a statement or a decision of fact, to maintain that it involves in some way a question of law. Accordingly, at every stage at which the Electricity Commissioners issue a decision, there would be an appeal to the Court of Session, and nobody knows when the Board would get on with its work at all. While the Clause would not be welcomed from that point of view, it would certainly be very welcome to the legal profession, and if I were speaking on their behalf I would welcome it. But speaking on behalf of the consumers of electricity, I fear that we must resist the incorporation of this Clause in the Bill, and I would ask my hon. Friend, for these reasons, to withdraw it.

There is one more reason which I should state. It would make the North of Scotland Board quite anomalous in this respect. All over the country, both in Scotland and south of the Border, the Electricity Commissioners have the duty of issuing decisions and in no case up to now have they been bound to state the reason for their decision. They have not been hampered, nor have the corresponding boards been hampered by an appeal either to the Court of Session or to the High Court in England. This would place the North of Scotland in a position of anomaly and the Board in the North of Scotland would be hampered as no other board in the country is hampered. I accordingly invite my hon. Friend not to press the Clause.

The Solicitor-General has devoted all his speech to the legal side. Suppose he considers the new Clause up to the word "decision." He gives no reason why the Commissioners should not say the grounds on which they have come to an opinion, except that it has not been the practice to do so in the past. Because it has not been considered virtuous to do a thing in the past, is no reason why it should not be done in future, even in the North of Scotland. Surely the hon. and learned Gentleman ought to give the reasons why it is undesirable that the Electricity Commissioners should state how they arrive at their decisions.

If there is to be no appeal against a decision, then it does not much matter whether they state the reasons or not, but probably the best answer to my hon. Friend is that what is suggested ought to be done if at all in the form of a general amendment of the law, applied all over the country. This Board ought not to be placed in a peculiar position.

The real difficulty is this: There is a dispute, between one undertaker and another. It has to be settled by the Electricity Commissioners. What we want is to ensure that the two disputants shall be able to discover whether the Commissioners have or have not misdirected themselves on questions of law. There have been a few cases in which the Electricity Commissioners have been found to have misdirected themselves in law. When such a case has been discovered and taken to the court there has been, as the Committee knows, an overturning of the Commissioners' decision. The difficulty is that when they do not state the grounds for their decision, you can never bring a case to the courts. That is undemocratic and not right and on the widest grounds of public morale and justice some change ought to be made.

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