Assignment: Diploma Class - Due 30th September, 2011

Please read the following passage and answer the questions that follow. Each answer should not be more than 500 words.

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British Railway Board v Picken: Excerpt from the judgment of Lord Reid:

In my judgment the law is correctly stated by Lord Campbell in
Edinburgh and Dalkeith Railway Co. v. Wauchope (1842) 8 Cl. & F. 710;
1 Bell 252. Mr. Wauchope claimed certain wayleaves. The matter was
dealt with in a private Act. He appears to have maintained in the Court
of Session that the provisions of that Act should not be applied because it
had been passed without his having had notice as required by Standing
Orders. This contention was abandoned in this House. Lord Brougham
and Lord Cottenham said that want of notice was no ground for holding
that the Act did not apply. Lord Campbell based his opinion on more
general grounds. He said:

" My Lords, I think it right to say a word or two before I sit down,
" upon the point that has been raised with regard to an act of Parliament
" being held inoperative by a court of justice because the forms, in
" respect of an act of Parliament, have not been complied with. There
" seems great reason to believe that notion has prevailed to a consider-
" able extent in Scotland, for we have it here brought forward as a
" substantive ground upon which the act of the 4th and 5th William
" the Fourth could not apply: the language being, that the statute of
" the 4th and 5th William the Fourth being a private act, and no
" notice given to the pursuer of the intention to apply for an act of
" Parliament, and so on. It would appear that that defence was
" entered into, and the fact was examined into, and an inquiry, whether
" notice was given to him personally, or by advertisement in the
" newspapers, and the Lord Ordinary, in the note which he appends
" to his interlocutor, gives great weight to this. The Lord Ordinary
" says ' he is by no means satisfied that due parliamentary notice was
" ' given to the pursuer previous to the introduction of this last act.
" ' Undoubtedly no notice was given to him personally, nor did the
" ' public notices announce any intention to take away his existing
" ' rights. If, as the Lord Ordinary is disposed to think, these defects
" ' imply a failure to intimate the real design in view, he would be
" ' strongly inclined to hold in conformity with the principles of Donald,
" ' 27th November, 1832, that rights previously established could not
" ' be taken away by a private act, of which due notice was not given
" ' to the party meant to be injured.' Therefore, my Lord Ordinary
" seems to have been most distinctly of opinion, that if this act did
" receive that construction, it would clearly take away the right to
" this tonnage from Mr. Wauchope, and would have had that effect if
" notice had been given to him before the bill was introduced into
" the House of Commons ; but that notice not having been given, it
" could have no such effect, and therefore the act is wholly inoperative.
" I must express some surprise that such a notion should have prevailed.
" It seems to me there is no foundation for it whatever; all that a
" court of justice can look to is the parliamentary roll; they see that an
" act has passed both Houses of Parliament, and that it has received
" the royal assent, and no court of justice can inquire into the manner
" in which it was introduced, or what passed in parliament during the
" various stages of its progress through both Houses of Parliament. I
" therefore trust that no such inquiry will hereafter be entered into in
" Scotland, and that due effect will be given to every act of Parliament,
" both private as well as public, upon the just construction which appears
" to arise upon it."

No doubt this was obiter but so far as I am aware no one since 1842 has
doubted that it is a correct statement of the constitutional position.

The function of the Court is to construe and apply the enactments of
Parliament. The Court has no concern with the manner in which Parliament
or its officers carrying out its Standing Orders perform these functions. Any
attempt to prove that they were misled by fraud or otherwise would neces
sarily involve an enquiry into the manner in which they had performed their
functions in dealing with the Bill which became the British Railways Act,
1968.

7

In whatever form the Respondent's case is pleaded he must prove not
only that the Appellants acted fraudulently but also that their fraud caused
damage to him by causing the enactment of section 18. He could not prove
that without an examination of the manner in which the officers of Parlia-
ment dealt with the matter. So the Court would, or at least might, have to
adjudicate upon that.

For a century or more both Parliament and the Courts have been careful
not to act so as to cause conflict between them. Any such investigations
as the Respondent seeks could easily lead to such a conflict, and I would
only support it if compelled to do so by clear authority. But it appears
to me that the whole trend of authority for over a century is clearly against
permitting any such investigation.

The Respondent is entitled to argue that section 18 should be construed
in a way favourable to him and for that reason I have refrained from
pronouncing on that matter. But he is not entitled to go behind the Act
to shew that section 18 should not be. enforced. Nor is he entitled to
examine proceedings in Parliament in order to shew that the Appellants
by fraudulently misleading Parliament caused him loss. I am therefore
clearly of opinion that this appeal should be allowed and the judgment
of Chapman J. restored.

Questions: 

1. What was the contention of Mr. Waunchope in the case of Edingburgh and Dalkeith Railway Co. v Wauchope . Also, why do you think Lord Reid discusses this case?

2. What was the response of the courts to Mr. Waunchope's arguments in the Edingburgh and Dalkeith Case?

3. Do you think that Lord Reid takes into account consideration factors other than law in arriving at this decision?