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Cite as: [1974] UKHL 1, [1974] AC 765

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    Die Mercurii, 30° Januarii 1974

    Parliamentary Archives,




    Lord Reid
    Lord Morris of Borth-y-Gest
    Lord Wilberforce
    Lord Simon of Glaisdale
    Lord Cross of Chelsea

    Lord Reid


    Our Railway system was built up piecemeal during the nineteenth century.
    Generally promoters obtained from Parliament private Acts authorising com-
    paratively short stretches of Railway and giving compulsory powers to
    acquire the necessary land. Before 1845 there was no uniformity in the
    provision of these Acts but many, we were informed about a hundred,
    contained provisions to the effect that if the proposed railway was abandoned
    or discontinued the land acquired for it would revert to the owners for the
    time being of adjoining land. If the land on opposite sides of the railway
    had different owners each would get half of the railway land between their
    properties. Apparently such provisions were no longer inserted in private
    Bills after 1845.

    The Appellants' title to a substantial amount of their railway land flows
    from these old pre-1845 Acts. When, some years ago, it became evident
    that numerous stretches of railway would have to be closed down, they
    realised that some of these old reverter provisions would take effect unless
    they obtained new rights from Parliament. So they promoted a Bill which,
    on 26th July, 1968, became the British Railways Act, 1968. Chapter xxxiv,
    section 18, of that Act provides: —

    " 18.—(1) As from the passing of this Act, the provisions to which
    " this section applies shall not apply to any lands vested in the Board.

    " (2) This section applies to any provision in an enactment to the
    " effect that, if at any time after the coming into force of that pro-
    " vision a railway or part of a railway shall be abandoned or given
    " up, or if after the same shall have been completed it shall cease
    " (whether for a specified period or not) to be used or employed as a
    " railway, the lands taken for the purposes of such railway or part
    " of a railway, or over which the same shall pass, shall vest in the
    " owners for the time being of the adjoining lands, being a provision
    " in an enactment relating to an existing or former railway or part
    " of a railway comprised in the undertaking of the Board and not being
    " a provision for the protection or benefit of a named person or the
    " successors of a named person or for the protection of the owner,
    " lessee or occupier of specified lands."

    For reasons which will appear later it would not be proper to make
    any decision as to the proper construction of that section. But I can say
    that at first sight it appears to take away without compensation all rights of
    adjoining owners to a reversion of land to them on the closing down of any
    part of our railway system.

    The Respondent is interested in the preservation of railways and in order
    to be in a position to test the Appellants' right in court he took advantage
    of the closing of the Clevedon Yatton branch line in Somerset, and on 20th
    October. 1969, purchased for ten shillings from the owner of lands adjoining
    the railway

    ". . . ALL THAT his estate and interest in All that piece of land
    " and track formerly part of the Yatton to Clevedon Branch Railway
    " Line of British Rail Together with the fixtures and appurtenances
    " attached thereto including the metal rails the sleepers and the ballast
    " laid on the said track TO HOLD the same unto the Purchaser in
    " fee simple ".


    Then on 23rd October, 1969, he raised the action with which we are
    concerned. He founds on section 259 of the Bristol and Exeter Railway Act,
    1836, which is in these terms: —

    " If the said Railway or any part thereof shall at any time hereafter
    " be abandoned or given up by the said Company, or after the same
    " shall have been completed shall for the space of three years cease to
    " be used and employed as a Railway, then and in such case the
    " lands so purchased or taken by the said Company for the purposes
    " of this Act, or otherwise the parts thereof over which the said Rail-
    " way or any part of such railway which shall be so abandoned or
    " given up by the said Company shall pass, shall vest in the owners
    " for the time being of the land adjoining that which shall be so
    " abandoned or given up in the manner following; (that is to say) One
    " moiety thereof in the owners of the land on the one side, and the
    " remainder thereof in the owners of the land on the other side thereof."

    He has two alternative grounds of action. First he says that under
    section 259 this piece of railway land reverted to his predecessor in title
    and now belongs to him because, on the facts, this section came into opera-
    tion before the passing of the 1968 Act which repealed it. That is denied
    by the Appellants and admittedly that issue must go to trial whatever be
    the outcome of the present case.

    The Respondent's alternative ground of action is not easy to state con-
    cisely. He appears to allege that in obtaining the enactment of section 18
    of the 1968 Act in their favour they fraudulently concealed certain matters
    from Parliament and its officers and thereby mislead Parliament into granting
    this right to them.

    This case arises because by Summons of 18th January, 1972, the Appellants
    sought an Order that part of the Respondent's pleadings be struck out under
    Order 18, Rule 19, on the ground that it is frivolous and vexatious and that
    it is an abuse of the process of the Court. Thereupon by order of the
    Master in Chambers of 21st February, 1972, paragraphs 3 and 4 of the
    Respondent's amended reply were struck out. These were the parts which
    raised the Respondent's alternative grounds of action. An appeal to
    Chapman J. was dismissed. But a further appeal to the Court of Appeal
    was allowed on 3rd October, 1972, and the Appellants now appeal to this
    House to have the order of the Master restored.

    I do not think it necessary to set out these paragraphs in full because
    admittedly the position now is that if by amendment of these paragraphs
    the Respondent can plead an arguable case he is entitled to succeed and
    to have this issue sent to trial,

    As the Respondent's case developed in argument it appeared that he seeks
    one or other of two methods of relief against section 18. First he says
    that section 18 confers a benefit on the Appellants and that if he can prove
    that Parliament was fraudulently misled into enacting this benefit the Court
    can and should disregard the section. And, secondly, he says that even if
    the Court cannot do that and the section has taken effect, the Court can on
    proof that Parliament was so misled nullify the resulting benefit to the
    Appellants by requiring them to hold in trust for him the benefit which
    the section has given to the Appellants to his detriment.

    The idea that a Court is entitled to disregard a provision in an Act of
    Parliament on any ground must seem strange and startling to anyone with
    any knowledge of the history and law of our Constitution, but a detailed
    argument has been submitted to your Lordships and I must deal with it.

    I must make it plain that there has been no attempt to question the
    general supremacy of Parliament. In earlier times many learned lawyers
    seem to have believed that an Act of Parliament could be disregarded in
    so far as it was contrary to the law of God or the law of nature or natural
    justice but since the supremacy of Parliament was finally demonstrated by
    the Revolution of 1688 any such idea has become obsolete.


    The Respondent's contention is that there is a difference between a public
    and a private Act. There are of course great differences between the methods
    and procedures followed in dealing with public and private Bills, and there
    may be some differences in the methods of construing their provisions. But
    the Respondent argues for a much more fundamental difference. There is
    little in modern authority that he can rely on. The mainstay of his argument
    is a decision of this House, Mackenzie v. Stewart in 1754.

    The case is reported in Morisons Dictionary of Decisions 7443 and 15459
    and in this House 1 Paton, 578, and a number of documents in connection
    with this case have been preserved. The facts are not altogether clear but
    I think I can state them in this way. In 1688 the Earl of Cromarty disponed
    the lands of Royston to his third son Sir James Mackenzie (who became
    Lord Royston) and the heirs male of his body whom failing, to his second
    son Sir Kenneth Mackenzie and the heirs male of his body whom failing,
    to other substitutes. This was a strict entail containing prohibitory irritant
    and resolutive clauses against altering the order of succession, contracting
    debts and selling or disponing the lands. The deeds contained a provision
    obliging Sir James and the heirs of entail to pay 20,000 Merks to Lady
    Anne Mackenzie. This debt appears to have been paid or discharged.

    Lord Royston wanted to free himself from the fetters of the entail. To
    do that he had to get an Act of Parliament which authorised the sale of
    the lands. To get such an Act he had to shew that the lands were so
    burdened with debts that selling them and paying off the debts was the
    only or at least the best way of dealing with the situation. In fact, the
    lands were not burdened with any debts. So he was a party to the creation
    of a fictitious bond antedated to 1688 in favour of Lady Anne for 20,000
    Merks and, in a manner not clear, he made it appear that a bond in favour
    of Lundie for 8,250 Merks was a valid burden on the lands. Further he
    made it appear that there were large arrears of interest on these bonds so
    that in all 51,350 Merks Scots or £2,852 sterling was recoverable out of the

    Then he succeeded in 1739 in obtaining the Act 12 Geo. II, chap. vii.
    The Act in a long preamble narrated the existence of those debts and stated
    that it would be for the advantage of all concerned that the lands should
    be sold and the debts paid. Then it enacted that the land should be sold


    " that the Monies arising by such Sale or Sales, should be vested in,
    " and settled upon, and the same were thereby vested in the said Trustees,
    " or any two or more of them, or the Survivor, or any two or more of
    " them, should and would, immediately after such Sale or Sales, or as
    " soon after as conveniently might be, apply and dispose of the Monies
    " arising by such Sale or Sales, in the first Place, for paying and defray-
    " ing the Charges and Expenses attending the passing this Act; and
    " afterwards, and in the next place, to pay off and discharge the said
    " Sum of 51.350 Merks Scots, or 2852. 15s. 6d. Sterling with which the
    " said Premises stood then charged and incumbered as aforesaid, with
    " the Arrears of Interest; and should, with the like Privity and Consent.
    " lay out the Residue and Surplus of the Money arising by such Sale,
    " in the Purchase of other Lands and Hereditaments in Fee Simple ;
    " and which said other Lands and Hereditaments so to be purchased.
    " should immediately after such Purchase or Purchases as aforesaid,
    " be settled, disponed, and provided to and for the Use and Behalf of the
    " said Sir James Mackenzie of Royston, and the other surviving Heirs
    " of Entail, according to the different Rights and Interests, and in the
    " same Order and Course of Succession, secured, ascertained, and estab-
    " lished to and for them respectively in and by the said Deed of Tailzie,
    " as far as the same might be capable of taking Effect, with the Powers.
    " and subject to the Restrictions and Limitations therein contained ; and
    " in the mean time, until such Purchase could be made, to place out
    " such Residue or Surplus at Interest upon real or other sufficient
    " Security."


    Lord Royston had so contrived matters that the beneficial interest in these
    supposed debts had vested in himself. So when the lands were sold he simply
    put the purchase price in his own pocket.

    Some time after Lord Royston's death, Sir Kenneth Mackenzie who
    would have been the heir of entail in possession if the lands had not been
    sold brought an action against Stewart the grandson and heir of Lord
    Royston requiring him to account for the money which Lord Royston
    had wrongfully obtained. In the Court of Session Stewart did not attempt
    to dispute these facts. His plea was that Parliament had found the facts
    narrated in the preamble to be true and that it was incompetent for any
    Court to reopen the matter. Mackenzie's plea was that the Act did not
    require these debts to be paid whether due or not.

    " Had the Act of Parliament said, that these Sums should be paid
    " to the nominal Creditors, whether they were Creditors or not, the
    " Pursuer would not pretend to dispute the Authority of Parliament.
    " But the Act has neither said so, nor was it so intended by the
    " Legislature."

    1 quote from the Information, a written pleading submitted to the Court of

    It is rare to find any reasons reported for decisions of that period and
    there is no report of anything except the Interlocutor of the Court of Jst July,

    " The Lords found. That those debts that, by act of Parliament,
    " are appointed to be paid out of the price of the estate of Royston
    " must be stated to exhaust the said price; and that, the price of the
    " estate being exhausted by those debts, there is no ground for a further
    " count and reckoning."

    We have the Cases submitted by the parties when the case was appealed
    to this House. They are not so clear as the pleadings in the Court of
    Session but they appear to me to raise the same arguments.

    The Journals of the House of Lords of 14th March, 1754. state that the
    case was argued in two days and set out the Order of the House.

    " It is ORDERED and Adjuged, by the Lords Spiritual and Temporal
    " in Parliament assembled. That the said Interlocutor complained of
    " in the said Appeal be, and the same is hereby, reversed ; and that the
    " Interlocutor of the Lord Ordinary, of the 20th of January 1747, be,
    " and the same is hereby, affirmed: And it is hereby further ORDERED,
    " That the Court of Session in Scotland do proceed thereupon, accord-
    " ing to Justice and the Rules of that Court, without Prejudice to any
    " Question that may hereafter arise, concerning the Relief to which
    " the Appellant may be entitled, and against what Persons or Subjects
    " such Relief (if any) ought to be extended."

    The Interlocutor of the Lord Ordinary referred to allowed Mackenzie to
    prove that the debts narrated in the Act were fictitious.

    At that period there were no contemporary reports of Scots appeals in
    this House. It would seem that quite often no other peer with legal experience
    sat with the Lord Chancellor and it seems to me to be probable that
    frequently no formal speech giving reasons was made at the conclusion of
    the argument. In comparatively few cases there have been preserved
    observations made in the House: sometimes these appear to have been
    observations made in the course of the argument. In the present case we
    have a note made by Lord Kames in his Select Decisions reported in
    Morison at p. 7445:

    " The Lord Chancellor, in delivering his opinion, expressed a good
    " deal of indignation at the fraudulent means of obtaining the act; and
    " said, that he never would have consented to such private acts, had he
    " ever entertained a notion that they could be used to cover fraud."


    Lord Kames' Select Decisions cover the earlier period of his long tenure
    of office as a judge. We do not know how he came to add this passage
    at the end of his report of the case in the Court of Session. He must
    have got it, perhaps at second hand, from someone present during the
    arguments: so these observations may have been made during the argument
    or in a speech. Lord Hardwicke was, I think, Lord Chancellor both in
    1754 and in 1739 when the Act was passed, so he may have had some
    part in passing the Act. In any case I do not read his observations as
    indicating the ground of decision but rather as a comment on what took
    place when the Act was passed.

    I must notice some other comments in the case made within a few years
    after its decision. Lord Elchies in an appendix to a work on Tailzie says
    with regard to the case (No. 46): " vide Lord Chancellor's speech with the
    " cases by which it seems that notwithstanding such private acts fraud either
    " in obtaining them or in the execution may be tried as well as in private
    " contracts ". Again, we do not know what information Lord Elchies had
    about the case. The facts must have been generally known but no detailed
    account of proceedings in this House would have been available.

    We were also referred to some observations by the judges who took part
    in the Magistrates of Dumbarton v. Magistrates of Glasgow (1771) M. 14769.
    Lord Hailes in his Reports at p. 446 gives short notes of the opinions of the
    judges who sat with him in hearing the case. Lord Kames is reported as


    " In the case of Royston an Act of Parliament said that debts were
    " true debts. The Courts here would not find the contrary. But this
    " judgment was reversed upon Lord Hardwick's opinion "

    and the Lord President is reported as saying:

    " The case of Roystoun is not in point; for there was a private Act
    " of Parliament upon a false narrative. The heir of entail was found
    " to have right to the value of the subject, because the debts of the
    " entailer were fictitious. Yet still the Court could not have stopped
    " the execution of the Act of Parliament because it proceeded upon a
    " false narrative."

    I do not think that any of these observations can be relied on as indicating
    what was Lord Hardwicke's ground of judgment.

    My noble and learned friend, Lord Wilberforce, has dealt with Blackstone's
    comments on the case. He gives no citation except the Journal of this
    House and it is impossible to get from the entry which I have quoted any
    indication of the grounds of the judgment.

    It appears to me that far the most probable explanation of the decision is
    that it was a decision as to the true construction of the Act. The operative
    provision was " to pay off and discharge the said sum of 51,350 Merks Scots
    " or £2.582 Sterling with which the said premises stood then charged and
    "encumbered as aforesaid with the arrears of interest." This is I think
    easily susceptible of the construction that if there were no sums with which
    the premises were encumbered then there was nothing to pay off. There
    was no direction to pay off anything except encumbrances and if there were
    no encumbrances the direction had no operative effect. That was the
    argument for Mackenzie and it seems to me much more likely that Lord
    Hardwick adopted it than that he laid down some new constitutional principle
    that the Court had the power to give relief against the provision of a

    If the decision was only as to the construction of a statutory provision
    that would explain why the case has received little attention in later cases.
    I do not think it necessary to refer to the few later references to the case
    which have been unearthed by the researches of counsel. And I shall not
    repeat what is said by my noble and learned friends about other cases
    relied on by the Respondent. If Mackenzie v. Stewart is found to afford no
    support to the Respondent's argument the rest of the authorities are


    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,


    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.

    Lord Morris of Borth-y-Gest

    My lords,

    The question which is before us is whether paragraphs 3 and 4 of the
    Amended Reply should be struck out in accordance with the Order made
    by the Master and affirmed by the Judge. There are certain issues of
    fact in the action which are not affected by those paragraphs. The Plaintiff
    asserts that the provisions of section 259 of the Bristol and Exeter Railway
    Act. 1836, were applicable to the track of the Clevedon-Yatton Railway
    line and that the Railway was abandoned or given up or for three years
    had ceased to be used and that as a consequence a very small part of the
    track came into the ownership of a Mr. Keevill who for a consideration of
    ten shillings sold that part to the Plaintiff on the 20th October, 1969. If
    certain issues of fact are decided adversely to the Plaintiff then he will
    be in great difficulty if, as the British Railways Board assert, the provisions
    of section 259 ceased to apply to the track as from the 26th July, 1968, as a
    result of the enactment on that date of the British Railways Act, 1968.
    Section 18(1) of that Act is in the following terms :-

    " As from the passing of this Act, the provisions to which this
    " section applies shall not apply to any lands vested in the Board."

    Subsection (2) appears to describe such provisions in such a way as to include
    section 259.

    In their defence to the Plaintiff's claims in the action British Railways
    have pleaded that in so far as the Plaintiff's purported ownership of
    the piece of land in question was alleged to rest on the provisions of section
    259 his claim to ownership was invalid by reason of the provisions of section
    18 of the Act of 1968. It was in order to meet the prospect of defeat by
    reason of those provisions that paragraphs 3 and 4 of the Reply were

    In my view, it is beyond question that the substance of the plea advanced
    by the two paragraphs is that the Court is entitled to and should disregard
    what Parliament has enacted in section 18. The question of fundamental
    importance which arises is whether the Court should entertain the
    proposition that an Act of Parliament can so be assailed in the Courts that
    matters should proceed as though the Act or some part of it had never been
    Passed. I consider that such doctrine would be dangerous and impermissible.
    It is the function of the Courts to administer the laws which Parliament


    has enacted. In the processes of Parliament there will be much considera-
    tion whether a Bill should or should not in one form or another become
    an enactment. When an enactment is passed there is finality unless and
    until it is amended or repealed by Parliament. In the Courts there may be
    argument as to the correct interpretation of the enactment: there must
    be none as to whether it should be on the statute book at all.

    In paragraph 3 of the Amended Reply there is an allegation that a recital
    in the preamble was false. Whether on a fair reading of the whole Act
    this is arguable has not now to be decided. There follows an allegation
    of fraud (i.e. that the British Railways Board knew that there was a false
    recital) and an allegation that no notice was given of " intended compulsory
    " acquisition ". Whether or not it is apt to describe the effect of section 18
    as compulsory acquisition does not now arise. But whether or not there
    are any points of construction of the Act that can be formulated, what
    paragraph 4 of the Amended Reply proceeds to assert is (a) that the British
    Railways Board
    broke the standing orders of Parliament and (b) failed to
    comply with the standing orders of Parliament and (c) included a misleading
    preamble and (d) " misled Parliament " and (e) obtained ex parte as an
    unopposed Bill an Act which was solely for their benefit, and that as a result
    " the Act is ineffective to deprive the Plaintiff of his land and proprietary
    " rights " and furthermore that the British Railways Board " cannot rely " on
    the Act.

    Though here and there in the two paragraphs there occurs the word
    " construction " I do not think that it can be doubted that the effect and the
    purpose of the two paragraphs is to assert that the Courts could and should
    for the reasons which I have set out under (a) to (e) above disregard certain
    enacting provisions of the Act which is cited as the British Railways Act,
    1968, and which as is recited in the Act was "enacted by the Queen's most
    " Excellent Majesty, by and with the advice and consent of the Lords
    " Spiritual and Temporal, and Commons, in this present Parliament
    " assembled, and by the authority of the same." While any legitimate
    point may be taken as to the proper construction of what Parliament has
    enacted I have no doubt that paragraphs 3 and 4 of the Amended Reply
    should not be allowed to stand inasmuch as they assert and claim the
    exercise by the Courts of a power to disregard what Parliament has enacted.

    There is a clear distinction between recitals to an Act which are mere
    recitals and the enacting provisions of an Act. The recitals may be
    examined when the enacting provisions are being construed but even if in
    some particular instance the recitals to an Act were thought to be faulty
    that would give no warrant for disobeying or ignoring or varying the clear
    enacting provisions of an Act.

    Nor, in my view, should any redrafted pleading be allowed which revives
    in altered form an attack upon the validity of the enacting provisions of an
    Act of Parliament. Nor, in my view, should the same attack be allowed
    in shrouded form by asserting that if the Act is effective and if as a conse-
    quence some rights were taken away from some people, British Railways
    should hold their lands subject to some style of burden or equity
    on the basis that Parliament ought not to have enacted as it did and only
    did so enact as a result of what the two paragraphs of the Amended Reply

    We are not in the present case concerned with any question as to any
    possible personal rights resulting from some contract or arrangement made
    between parties in relation to or in connection with some prospective

    The conclusion which I have reached results, in my view, not only from a
    settled and sustained line of authority which I see no reason to question
    and which I should think be endorsed but also from the view that any other
    conclusion would be constitutionally undesirable and impracticable. It must
    surely be for Parliament to lay down the procedures which are to be followed
    before a Bill can become an Act. It must be for Parliament to decide


    whether its decreed procedures have in fact been followed. It must be for
    Parliament to lay down and to construe its standing orders and further to
    decide whether they have been obeyed: it must be for Parliament to decide
    whether in any particular case to dispense with compliance with such orders.
    It must be for Parliament to decide whether it is satisfied that an Act should
    be passed in the form and with the wording set out in the Act. It must be
    for Parliament to decide what documentary material or testimony it requires
    and the extent to which Parliamentary privilege should attach. It would
    be impracticable and undesirable for the High Court of Justice to embark
    upon an enquiry concerning the effect or the effectiveness of the internal
    procedures in the High Court of Parliament or an enquiry whether in any
    particular case those procedures were effectively followed.

    Clear pronouncements on the law are to be found in a stream of authorities
    in the 19th century. In Edinburgh Railway Co. v. Wauchope in (1842)
    8 Cl. & F. 710 points of construction called for decision but in the course
    of the proceedings a point was taken to the effect that a private Act
    which affected a vested right could not be made applicable to a person who
    had had no notice served upon him of the introduction of the Bill. Though
    the point was abandoned in this House Lords Brougham, Cottenham and
    Campbell felt that it was important to make it clear that any such doctrine
    was wholly without foundation. Lord Campbell expressed his surprise
    that such a notion should ever have prevailed.

    " There is no foundation whatever for it. All that a Court of
    " Justice can do is to look to the Parliamentary roll: if from that it
    " should appear that a bill has passed both Houses and received the
    " Royal Assent, no Court of Justice can inquire into the mode in
    " which it was introduced into Parliament, nor into what was done
    " previous to its introduction, or what passed in Parliament during its
    " progress in its various stages through both Houses. I trust, therefore,
    " that no such inquiry will again be entered upon in any Court in
    " Scotland, but that due effect will be given to every Act of Parliament,
    " private as well as public, upon what appears to be the proper
    " construction of its existing provisions ".

    In pursuance of that pronouncement were the words of Cockburn C.J.

    when in 1859 in The Earl of Shrewsbury v. Scott 6 C.B. (N.S.) 1 he said

    (at p. 160)—

    " These observations illustrate the question which is now before us.
    " and make it clear that, if an act of parliament, by plain, unambiguous,
    " positive enactment, affects the rights even of parties who were not
    " before the House (those parties being clearly pointed out by the bill,
    " and expressly excepted from the saving clause), it is not for a court
    " of law to consider whether the forms of parliament have been pursued,
    " whether those provisions which the wisdom of either House of
    " Parliament has provided for the prevention of any deception on itself.
    " or of injury to the rights of absent parties, have been followed: it is
    " enough for us if the provisions of the act are clear, express, and
    " positive: if they are, we have only to carry the act into effect."

    In the earlier case of Waterford Railway Company v. Logan 14 Q.B. 672
    the Court disallowed a plea that an Act of Parliament was obtained by the
    fraud of the Plaintiffs.

    Of equal clarity was the passage in the judgment of Willes J. in 1871 when
    in Lee v. Bude and Torrington Junction Railway Co. L.R. 6 C.P. 576 (in
    which case it was alleged that Parliament had been induced to pass an Act
    by fraudulent recitals) he said (at p. 582)—

    " Are we to act as regents over what is done by parliament with
    " the consent of the Queen, lords and commons? I deny that any such
    " authority exists. If an Act of Parliament has been obtained
    " improperly, it is for the legislature to correct it by repealing it: but,
    " so long as it exists as law. the Courts are bound to obey it. The
    " proceedings here are judicial, not autocratic, which they would be if
    " we could make laws instead of administering them."

    309737 A5


    In Labrador Company v.. The Queen [1893] AC 104 Lord Hannen in

    delivering the Judgment of the Privy Council said (at p. 123):

    " Even if it could be proved that the legislature was deceived, it would
    " not be competent for a court of law to disregard its enactments. If
    " a mistake has been made, the legislature alone can correct it."

    This statement of principle was accepted and applied in the Judgment of the
    Privy Council in Tukino v. Aotea District Maori Land Board [1941] AC 308
    (see p. 322) where Viscount Simon L.C. in delivering the Judgment of the
    Board further said—

    " It is not open to the court to go behind what has been enacted by
    " the legislature, and to inquire how the enactment came to be made.
    " whether it arose out of incorrect information or, indeed, on actual
    " deception by someone on whom reliance was placed by it. The court
    " must accept the enactment as the law unless and until the legislature
    " itself alters such enactment, on being persuaded of its error."

    Unless the authority of these pronouncements is for some reason to be
    eroded there cannot be a triable issue in the Courts whether an Act of
    Parliament was improperly obtained.

    It has, however, been contended that the firm rule that the Courts must
    accept and give full binding effectiveness to an Act of Parliament relates only
    to public general Acts and that this results from a consideration of the case
    of McKenzie v. Stewart. The various accounts and reports of that case were
    very fully examined in the course of the submissions made in the present
    case. Though much documentary material exists there is no record of any
    reasons which may have been expressed in this House. Though Blackstone
    stated somewhat ambiguously that a private Act obtained upon fraudulent
    suggestions had "been relieved against". I do not think that the decision
    in the case involved that any departure had been made from the enacting
    provisions of the Act in question. I have had the advantage of reading and
    considering the speech of my noble and learned friend, Lord Reid, with its
    lull examination of the case and I am in entire agreement with the con-
    clusions expressed. The case gives no basis for any suggestion that there is
    any limitation to public general Acts of the rule that the Courts must give
    full binding effectiveness to the enacting provisions of an Act of Parliament.
    As was said in 1842 in Edinburgh Railway Co. v. Wauchope (supra) due
    effect must be given to every Act of Parliament " private as well as public "
    upon what appears to be the proper construction of its existing provisions.
    The case of Green v. Mortimer (1865) 3 L.T. 642 is no authority to the con-
    trary. An Act had included a provision which the Lord Chancellor
    described as " quite absurd " because it purported to give the court power
    to do that which was quite impossible.

    In the result I have not been persuaded that any doubt has been cast upon
    principles which are soundly directed as being both desirable and
    reasonable and which furthermore have for long been firmly established by

    1 would allow the appeal and restore the order made by the learned judge.

    Lord Wilberforce


    The nature and history of Mr. Pickin's claim in this action, and its legal
    foundation, have been stated by my noble and learned friend, Lord Reid.
    Clearly this claim to a few yards of one railway line, under an Act of
    1836, acquired for 10s. by a private citizen, against the British Railways
    , fortified by an Act of Parliament of 1968 which can make claims invalid, which is the very stuff of which
    constitutional law is made. But I regret—and I use the word because
    it is legitimate to admire a courageous assertion of individual right—that
    Mr. Pickin has no case in this respect. The idea, which seems to have
    had some currency, mainly in Scotland, that an Act of Parliament, public
    or private, or a provision in an Act of Parliament, could be declared invalid


    or ineffective in the Courts on account of some irregularity in Parliamentary
    procedure, or on the ground that Parliament in passing it was misled, or
    on the ground that it was obtained by deception or fraud, has been decisively
    repudiated by authorities of the highest standing from 1842 onwards. The
    remedy for a Parliamentary wrong, if one has been committed, must
    be sought from Parliament, and cannot be gained from the Courts. The
    law in my opinion is correctly summed up in Halsbury's Laws of England
    3rd Ed. vol. 36 p. 378 in these words:

    " If a Bill has been agreed .to by both Houses of Parliament, and
    " has received the Royal Assent, it cannot be impeached in the Courts
    " on the ground that its introduction or passage through Parliament,
    " was attended by any irregularity or even on the ground that it was
    " obtained by fraud."

    The authorities on which this paragraph is based include Edinburgh &
    Dalkeith Railway Co.
    v. Wauchope (1842) 8 Cl. & F. 710, Stead v. Carey
    (1845) 1 C.B. 496, 516, Waterford Railway Co. v. Logan (1850) 14 Q.B. 672,
    Lee v. Bude & Torrington Railway L.R. 6 C.P. 576, 592 per Willes J..
    Labrador Co. v. The Queen [1893] AC 104, 123, Hoani Te Heokeu v.
    Actea District Maori Land Board [1941] AC 308. I do not quote from these
    authorities passages which are well enough known, but I would note that
    between them they expressly negative the admissibility in law of every
    allegation made by the Respondent in the two relevant paragraphs of his
    reply. It is to be noticed that in so far as a distinction is sought to be
    made between public and private Acts, on which I shall comment later, the
    first four of those cited were concerned with private legislation ; that an
    allegation of a false recital was involved in Lee's case : that in the same case
    the allegation was that the recital was false to the knowledge of the
    plaintiffs who procured the Act, that an allegation that the Act was obtained
    by fraud was disallowed in the Waterford case as well as in Tukino's case
    and a similar allegation as to suppressio veri or suggestio falsi was repudiated
    in Stead v. Carey: that alleged irregularity of procedure was not admitted in
    Wauchope's case.

    In this state of authority, it is not surprising that an application was made
    by the Board to strike out from Mr. Pickin's pleading (sc. Reply) the two
    paragraphs attacking the validity or effect of section 18 of the 1968 Act,
    nor that the application should be granted by the Master and by the judge
    in chambers. But their decision was reversed by the Court of Appeal who
    considered that the issue on this point should go to trial. It is clear that
    the consequence of allowing the trial to proceed on the basis of the law as stated
    by the Court of Appeal would be to require the Court to embark on far-reaching
    enquiries as to the proceedings in Parliament which led to the enactment of

    the 1968 Act. For this reason it was, exceptionally, necessary for this House

    to review the matter at the present stage.

    My Lords, the basis on which the Court of Appeal thought that it was
    possible to reopen what would generally be thought to be settled law was
    that of one case—a Scottish 18th century appeal which came to this House,
    i" which, as was usual at the time, no reasons were given for the House's
    decision. This case is McKenzie v. Stewart. [I do not overlook that two
    other cases were cited but these are of no value. Biddulph v. Biddulph
    (I790) Cruise Digest, Private Act s. 51, p. 28 is clearly an application of an
    Act, not "relief" against an Act. Green v. Mortimer 1865 (13 L.T. 642) was a case
    Where the Court was directed to make an estate inalienable so far as its
    jurisdiction allowed—which it did not allow—a case of no value for the
    present purpose.) Even if this case. McKenzie v. Stewart, contained a clear
    ratio decidendi, it would be difficult to sustain it against the chain of explicit
    later decisions from 1842 to 1943. The so-called per incuriam doctrine, to
    which appeal has been made several times recently, looks even more sickly
    when invoked against Lord Cottenham, Lord Brougham, Lord Campbell,
    Willes J. and Viscount Simon L.C. But the case itself does not resist
    examination. Your Lordships were treated to an exhaustive and certainly


    interesting scrutiny of McKenzie v. Stewart in all its stages, through digests,
    differing reports, subsequent comments and citations. We examined the
    parties' contentions in the Court of Session and in this House. None of this
    material in the least persuaded me that it will bear the weight sought to be
    put upon it, or indeed any weight, or that it justifies a new look at the law.
    The Act in question (12 Geo. II c. vii) was an estate Act, the object of which,
    as stated in the long title, was to enable entailed lands to be sold for
    payment of debts and incumbrances affecting them: a type of Act similar,
    as Blackstone explains, to a private assurance (see Bl. Comm: 4th Ed. vol.
    2 p. 345 ff.). The result arrived at after lengthy court proceedings was simply
    to decide that, there being money in the hands of Lord Royston, arising
    from the sale, which ought to have been applied in payment of debts, this
    money, when it appeared that the debts were fictitious, must be applied in
    the purchase of lands, as the residue was directed by the Act to be applied.
    One may ask of this, what else should be done? Should Lord Royston be
    allowed to put the money—which incidentally should have been paid to his
    trustees and not to him at all—in his own pocket? My noble and learned
    friend, Lord Reid, has discussed the case more fully and I am happy to accept
    his conclusions. Like him I quite fail to understand how this case, with, I
    repeat, no reported judgment in this House, can be regarded as any authority
    for invalidating an Act of Parliament or any provision in an Act of Parlia-
    ment. The indignation of Lord Hardwick L.C., reported by Lord Kames,
    at the " fraudulent means of obtaining the Act" is understandable enough,
    and so Lord Royston's estate had to account for the money, but that is all.

    An attempt to inject authority into McKenzie v. Stewart was made by
    references to Blackstone and Sir W. Holdsworth. I have already referred to
    Blackstone who first commented on it in his 4th edition (1771). (His first
    edition (1766) though published well after the House of Lords decision makes
    no reference to it.) But he deals with the Act—under a title Alienation by
    Record—in these words:

    " Acts of this kind are however at present carried on, in both houses,
    " with great deliberation and caution ; particularly in the house of lords
    " they are usually referred to two judges to examine and report the facts
    " alleged, and to settle all technical forms. Nothing also is done with-
    " out the consent, expressly given, of all parties in being, and capable
    " of consent, that have the remotest interest in the matter: unless such
    " consent shall appear to be perversely and without reason withheld.
    " And, as was before hinted, an equivalent in money or other estate
    " is usually settled upon infants, or persons not in esse, or not of capacity
    " to act for themselves, who are to be concluded by this act. And a
    " general saving is constantly added, at the close of the bill, of the right
    " and interest of all persons whatsoever; except those whose consent is
    " so given or purchased, and who are therein particularly named ; though
    " it hath been holden, that, even if such saving be omitted, the act shall
    " bind none but the parties. (Co. 138)

    " A law, thus made, though it binds all parties to the bill, is yet
    " looked upon rather as a private conveyance, than as the solemn act of
    " the legislature. It is not therefore allowed to be a public, but a mere
    " private statute ; it is not printed or published among the other laws
    " of the session ; it hath been relieved against when obtained upon
    " fraudulent suggestions; (Richardson v. Hamilton. Cane. 8 Jan. 1973
    " McKenzie v. Stuart. Dom. Proc. 13 Mar. 1754). It hath been holden
    " to be void if contrary to law and reason (4 Rep. 12); and no judge or
    " jury is bound to take notice of it, unless the same be specially set
    " forth and pleaded to them. It remains however enrolled among the
    " public records of the nation, to be for ever preserved as a perpetual
    " testimony of the conveyance or assurance so made or established."

    The words " it hath been relieved against" are not precise and must be
    related to what was done: they are no warrant for a proposition that the
    Act in any respect was declared or treated as invalid. Blackstone limits what
    he says to " estate Acts " regarded as comparable with private assurances;


    it would be surprising if he had not. having regard to his generally strong
    views as to the sovereignty of Parliament.

    Professor Holdsworth follows his Vinerian predecessor in a more extended
    passage (Vol. xi. pp. 354 ff) and treats McKenzie
    v. Stewart in a similar
    manner. But he does continue with a passage of some interest in which he
    refers to the principle applied by courts of equity of imposing a trust upon
    rights obtained at law where any undue or unconscientious advantage has
    been obtained by the legal owner. He quotes a passage from a speech of
    Lord Westbury in McCormick v. Grogan L.R. 4 H.L.—97, in the following

    " the Court of Equity has, from a very early period decided that even
    " an Act of Parliament shall not be used as an instrument of fraud;
    " and if in the machinery of perpetrating a fraud an Act of Parliament
    " intervenes, the Court of Equity, it is true, does not set aside this Act
    " of Parliament, but it fastens on the individual who gets a title under
    " that Act, and imposes on him a personal obligation, because he applies
    " the Act as an instrument for accomplishing a fraud. In this way the
    " Court of Equity has dealt with the Statute of Frauds, and in this
    " manner, also, it deals with the Statute of Wills."

    This is widely expressed and the context must be understood; the references,
    though general, to an Act of Parliament are references to the Wills Act or
    the Statute of Frauds—public Acts—and to such equitable doctrines as secret
    trusts or part performance. The doctrine may well be admitted that equity,
    when faced with an appeal to a regulatory public statute, which requires
    compliance with formalities, will not allow such a statute (assumedly passed
    to prevent fraud) to be used to promote fraud and will do so by imposing a
    trust or equity upon a legal right. Moreover, it is settled and wholesome law
    that, if circumstances are shown which give rise to an equitable claim by one
    person against another, by reason of fraudulent or unconscientious behaviour
    of that other, equity may impose a trust, or personal obligation, even when
    that other has a title at law, or by statute. The first of these propositions,
    which Lord Westbury was asserting, has no relevance here. And acceptance
    of the second goes no way towards the invalidation, on account of fraud or
    otherwise, of what Parliament has enacted, if what is relied upon as founding
    an equity claim consists of action by way of misleading Parliament into the
    passing of the Act. An attack at law is firmly excluded by the basic authorities
    and this cannot be remounted by reframing the attack in equitable terms.
    There is no warrant in authority, or, in my opinion, in principle, for allowing
    a person against the provisions of a statute to achieve in equity a result
    which, on the same facts, he cannot achieve at law. I therefore consider
    that Mr. Pickin, in paragraphs 3 and 4 of his reply, has no maintainable or
    arguable case.

    Before I deal specifically with the pleading there are some matters which
    merit perhaps some brief supplementary comments. First, I must say that,
    though for the present purpose, we are called upon to assume the truth of
    any facts alleged, I am far from convinced, as a matter of construction,
    that there is any substance whatever in the contention that the 5th recital
    of the 1968 Act was false or misleading in any way. The recital is in the
    common form of private Acts which are designed to confer powers to acquire
    land compulsorily and there seems to be an obvious distinction between
    those provisions in the Act which concern " lands authorised to be acquired
    " and used " (I quote from the recital), namely, sections 13-17, and section 18
    which is not so concerned and to which, on the face of it, the recital does
    not refer. For my part, I have grave doubt whether the necessity to assume
    the truth of pleaded facts extends so far as to require the acceptance of an
    unconvincing argument on construction. But assuming the contrary, I do
    not understand how the courts can enquire whether Parliament was misled
    by this recital into enacting section 18. How can we know how Parliament
    understood the recital—who is " Parliament" for this purpose—the members
    of both Houses or of either House—the members of the Committee on
    Private Bills—the Counsel who advise the Chairmen of these committees—
    the officials whose business it is to look at recitals and at the Bill? We know


    nothing; and by no process short of summoning some or all of these persons
    and examining their records can we find out on what view of the facts or
    on what consideration of policy section 18 was enacted: yet the plaintiff,
    in undertaking to show that the recital was false, and that Parliament was
    mislead and (presumably) would not have enacted the section had it known
    the facts and realised what it was doing, must commit the Courts to the
    process described. This analysis of what the plaintiff's contentions involve
    demonstrates, in my opinion, and validates, the reasons for the Courts' firm
    refusal to embark on any enquiry of this kind. To do so involves them
    both in a potential clash with Parliament and in a series of steps which can
    lead to no result.

    Secondly, as to the nature of the Act of 1968. This was a private Bill
    promoted by the British Railways Board and enacted through Private Bill
    Procedure. Private Bills have a long history: in early times they were
    more numerous than Public Acts. They represented the response of the
    King in Parliament to petitions of his subjects, either for relief against some
    general law, or for the authorisation to dispose of property by tenants in
    chief under the feudal system (these categories are not exhaustive).

    At the present time there are various categories some of which, personal
    bills, concern the rights of individuals, estate bills being effectively the only
    survivors ; others affect, in various degrees, the interests of the public,
    inasmuch as they authorise the execution of works or the acquisition of land,
    or confer general powers (cf. Stead v. Carey p. 522 per Coltman J.). Because
    of the pressure on Parliamentary time, a number of modern private bills,
    promoted by public undertakings, are not confined to provisions of local
    application, such as the execution of specified works, or the acquisition of
    specified lands, but contain legislation of general application: for example,
    Bills have been passed dealing generally with level crossings. The
    present Act is of this character; it contains much of a local character; but
    in addition it presents, in section 18; an enactment in general terms dealing
    with a large number of pre-existing Acts and affecting railway lines all
    over the country. It may be questioned whether the procedure of putting
    such a clause into a private Bill is desirable or whether, on the contrary,
    such a provision ought to be brought in through a public bill, and so exposed
    to debate and amendment on the floor of either House. The Courts cannot
    enter into this debate. But it is open to them to notice that, even though
    the Private Bill procedure may, in principle, be inappropriate, the procedure
    laid down in Standing Orders of both Houses embodies extensive safe-
    guards, which, if properly used, can prevent any use of that procedure
    which may be detrimental to the interest of individuals or of the public.

    Whether in any particular case, or in this case, these safeguards were
    made use of, whether the attention of Parliament, its committees or officers,
    was called to the provision in question, or what decisions (right or wrong)
    were taken, are not matters into which the Courts can enquire. Private
    Acts, such as the Act of 1968, as the authorities already cited show, are as
    fully Acts of Parliament as public Acts, and compel acceptance by the

    On the legal foundations so established it is necessary to deal with the
    pleading. It should be made clear that there are issues and contentions
    raised in the action which are perfectly legitimate and which may properly
    go to trial. This appeal is only concerned with paragraphs 3 and 4 of the
    Amended Reply. The relevant allegations can be stated as the following:

    1. The Act of 1968 contains a false recital, drafted by the British
      Railways Board
      , as promoters, which was known by the Board to be false.

    2. Notice was given to adjoining owners of lands which might be
    effected by section 18; and no public notice was given of the Board's
    intended " compulsory acquisition ".

    3. For the reasons stated in (1) and (2), section 18 does not in its true
    construction bar this action or deprive the plaintiff of his interest in land
    without compensation.


    4. Alternatively, the Board as promoters have broken the Standing
    Orders of Parliament and included a misleading preamble and misled
    Parliament: accordingly, this Act is ineffective to deprive the plaintiff of
    his land or proprietary rights and the Board cannot rely on it.

    The whole of this is upon the clearest authority which I have stated imper-
    missible, and unless capable of amendment must be struck out.

    In this House, for the first time, a fresh series of possible amendments
    was produced in draft which, it was claimed, showed a maintainable case
    even if the existing pleading did not. In my opinion, they are no more
    sustainable in law than the paragraphs they would replace. The proposed
    new paragraph 3 introduced, in support of an argument as to construction,
    the same matters, all bearing upon the proceedings in Parliament leading to
    the enactment of section 18 of the 1968 Act, as were previously raised. For
    the reasons already stated, they cannot be regarded as stating a maintainable
    case. The proposed new paragraph 4 adduced, in support of a claim to
    equitable relief against the Board as promoter of the Bill, the same matters,
    all related to the proceedings in Parliament which led to the enactment of
    section 18, as have already been set out in new paragraph 3. It was admitted
    that the only support in law for these contentions was provided by McKenzie
    v. Stewart. For the reasons discussed above, I am of the opinion that
    McKenzie v. Stewart is no authority for the granting of any such relief, and
    that no other ground exists for allowing the case so proposed to be stated to

    I would allow the appeal and restore the judgment of Chapman J.

    Lord Simon of Glaisdale

    Mv lords,

    I have had the advantage of reading in draft the speeches prepared by my
    noble and learned friends, with which I entirely agree—except that I would
    prefer to be taken as indicating no opinion whatever on any question of
    construction that might hereafter arise in this action.

    The system by which, in this country, those liable to be affected by
    general political decisions have some control over the decision-making is
    parliamentary democracy. Its peculiar feature in constitutional law is the
    sovereignty of Parliament. This involves that, contrary to what was
    sometimes asserted before the 18th century, and in contradistinction to
    some other democratic systems, the courts in this country have no power
    to declare enacted law to be invalid. It was conceded before your Lordships
    (contrary to what seems to have been accepted in the Court of Appeal)
    that the courts cannot directly declare enacted law to be invalid. That
    being so, it would be odd if the same thing could be done indirectly,
    through frustration of the enacted law by the application of some alleged
    doctrine of equity.

    A second concomitant of the sovereignty of Parliament is that the Houses
    of Parliament enjoy certain privileges. These are vouchsafed so that
    Parliament can fulfil its key function in our system of democratic government.
    To adapt the words of Lord Ellenborough in Burdett
    v. Abbott (1811)
    l4 East, 1152:

    " they [the Houses] would sink into utter contempt and inefficiency
    " without [them]."

    Parliamentary privilege is part of the law of the land (see Erskine May's
    Parliamentary Practice,
    18th ed., 1971, ch.
    v). Among the privileges of
    the Houses of Parliament is the exclusive right to determine the regularity
    of their own internal proceedings (Erskine/May, pp. 176, 195, 197).

    " What is said or done within the walls of Parliament cannot be
    " enquired into in a court of law. On this point all the judges in the
    " two great cases which exhaust the learning on the subject—
    " Burden v. Abbott and Stockdale v. Hansard [(1839) 9 Ad. & E. 1]
    " are agreed and are emphatic."


    (Lord Coleridge C.J. in Bradlaugh v. Gossett (1884) 12 QBD 271, 275).
    The rule, indeed, is reflected in the Bill of Rights, 1688, art. 9, s.l., of which
    I italicise the words which are relevant to this appeal:

    " That the freedom of speech and debates or proceedings in Parliament
    " ought not to be impeached or questioned in any place out of
    " Parliament".

    I have no doubt that the Respondent in paragraphs 3 and 4 of his Reply
    (even as sought to be amended) is seeking to impeach proceedings in
    Parliament, and that the issues raised by those paragraphs cannot be tried
    without questioning proceedings in Parliament.

    It is well known that in the past there have been dangerous strains
    between the law courts and Parliament—dangerous because each institution
    has its own particular role to play in our constitution, and because collision between
    the two institutions is likely to impair their power to vouchsafe those '
    constitutional rights for which citizens depend on them. So for many years
    Parliament and the courts have each been astute to respect the sphere of
    action and the privileges of the other—Parliament, for example, by its
    sub judice rule, the courts by taking care to exclude evidence which might
    amount to infringement of parliamentary privilege (for a recent example,
    see Dingle v. Associated Newspapers Ltd. [1960] 2 Q.B. 405). The
    Respondent to the instant appeal claimed that he could discharge the onus
    of proving the allegations in paragraphs 3 and 4 of the Reply merely by
    reliance on presumptions, so that proceedings in Parliament need not, so far
    as he was concerned, be forensically questioned. Even if this were so, it
    would still leave unanswered how the Appellant could proceed in rebuttal
    without calling parliamentary proceedings in question. I am quite clear
    that the issues would not be fairly tried without infringement of the Bill
    of Rights and of that general parliamentary privilege which is part of
    the law of the land.

    The Respondent claims, however, that, whatever may be the position as
    regards a public Act of Parliament, it is open to a litigant to impugn the
    validity (or, at least, by invoking jurisdiction in equity, nullify the operation)
    of an enactment in a private Act of Parliament. But the considerations of
    parliamentary privilege to which I have referred would undoubtedly seem to
    extend to Private Bill procedure ; and the authorities to which my noble and
    learned friends have adverted are clearly contrary to the Respondent's
    submissions. What was said in Edinburgh & Dalkeith Railway Co. v.
    (1842) 8 Cl. & F. 710 seems to me to be particularly apposite and
    authoritative: even though counsel there did not finally venture to argue that
    the validity of a provision in a private Act could be impugned on the ground
    that it had been obtained by fraud, the point was formally before the House;
    nor is it possible to conceive that Lord (Tottenham, Lord Brougham and
    Lord Campbell were all entirely oblivious to what had appeared in later
    editions of Blackstone.

    Moreover, the distinction that the Respondent sought to draw between
    public and private Acts of Parliament breaks down when one considers that
    there is a third, intermediate, class of proceedings in Parliament between
    PuDlic and Private Bills—namely, Hybrid Bills. These are Public Bills some
    provisions of which affect private rights. Those particular provisions are
    subject to the procedure of Private Bill legislation; though the Bills finally
    emerge as public Acts. For the purpose of his argument counsel for the
    Respondent sought to distinguish a Hybrid Bill from a Private Bill on the
    ground that only the latter had a promoter on whom a constructive trust
    could be imposed arising from his having misled Parliament. But it is
    difficult to see how the position of a Minister in relation to the Private Bill
    procedures applicable to a Hybrid Bill differs from that of the ordinary

    promoter of a Private Bill.

    A further practical consideration is that if there is evidence that Parlia-
    ment may have been misled into an enactment, Parliament might well-
    indeed, would be likely to—wish to conduct its own inquiry. It would be


    unthinkable that two inquiries—one parliamentary and the other forensic—
    should proceed concurrently, conceivably arriving at different conclusions;
    and a parliamentary examination of parliamentary procedures and of the
    actions and understandings of officers of Parliament would seem to be clearly
    more satisfactory than one conducted in a court of law—apart from
    considerations of Parliamentary privilege.

    For the foregoing reasons, as well as for those set out in the speeches of
    my noble and learned friends, I would allow the appeal. If the Respondent
    thinks that Parliament has been misled into an enactment inimical to his
    interests, his remedy lies with Parliament itself, and nowhere else.

    Lord Cross of Chelsea


    The pleas in paragraphs 3 and 4 of the Amended Reply proceed on the
    assumption that the rights of reverter which were extinguished by section 18
    of the British Railways Act, 1968, were " lands " which the Act authorised
    the Board to acquire. That being assumed to be so, it is said that the sixth
    recital in the preamble was false since no plans of the lands in respect of
    which the rights of reverter existed had been deposited as there alleged.
    It is further alleged that the Board knew that the recital was false in this
    respect, that they broke the Standing Orders of Parliament and that they
    misled Parliament. It emerged in the course of argument that what was
    meant by this was that by inserting the false recital they induced Parliament
    to think that Orders 13 and 27 of the House of Commons Standing Orders
    relating to Private Business, which provide that where by a Bill it is proposed
    to authorise the acquisition of any land, notice in writing of the proposal
    shall be given to the persons affected and plans of the lands in question
    deposited, had been complied with whereas in fact they had not been
    complied with. To my mind, the basic assumption is unjustified. The Act
    draws a distinction between the lands and easements referred to in sections
    13 and 14 which the Board is authorised to acquire compulsorily if it wishes
    to do so (though under section 16 the powers of compulsory acquisition
    cease on 31st December, 1971, if not previously exercised) and the rights
    of reverter which are automatically extinguished under section 18 on the
    passing of the Act. The Act does not give to the Board authority to
    acquire these rights of reverter so that they would be extinguished if the
    Board chose to exercise their power to acquire them but would remain in
    existence if the Board chose not to acquire them. The Act simply destroys
    the rights of reverter, and I cannot believe that those whose duty it was to
    consider the Bill in its passage through Parliament could have thought that
    the lands referred to in the sixth recital in the preamble included the interests
    in land constituted by the rights of reverter or that the servants or agents
    of the Board who were responsible for drafting the Bill and representing
    the Board in its passage through Parliament—however anxious they may
    have been to secure that the rights of reverter should be extinguished without
    notice to those entitled to them—entertained the hope that anyone would
    read the sixth recital as relating to the rights of reverter as well as to the
    lands referred to in sections 13 and 14. The Court might, I think, have
    well been justified in striking out paragraphs 3 and 4 of the Amended Reply
    on the ground that they contained allegations of fraud which were based
    on a false hypothesis and were patently misconceived. But as this point
    has not hitherto been taken we must deal with the appeal on the footing
    that in enacting section 18 of the Act Parliament was misled by fraudulent
    misrepresentations made by the Board through its servants and agents.

    Even if one makes that assumption I am clearly of opinion that the
    paragraphs in question should be struck out. The sheet anchor of the
    Respondent's argument is, of course, the decision of this House in Mackenzie
    v. Stewart (Morison's Dictionary 7443). That case and the cases of Biddulph


    v. Biddulph (5 Cruise Digest, Tit. Private Act, section 53) and Green v.
    (3 L.T. 642) which were also relied on by the Respondent, all
    related to Estate Acts. Such Acts—dealing with the property of private
    individuals—were common in the 18th and 19th centuries but have now
    become rare owing to the powers to deal with settled estates given to limited
    owners by the Settled Land Acts and to the powers now given to the Court
    by the Variation of Trusts Act, 1958. To-day such Acts are only called
    for where the property in question has been itself settled by Act of Parliament.
    The provisions contained in such an Act, obtained at the instance of some
    of those interested in the Settled Estate, are obviously analogous to those
    contained in a disposition inter partes and if it were the law that, as Blackstone
    suggests (see Vol. 2, p. 345) a Personal Act can be " relieved against when
    " obtained upon fraudulent suggestions ", it would not follow in the least
    that such an Act as the British Railways Act, 1968, could be " relieved
    " against" just because it happened to be a private and not a public Act.
    But I agree with your Lordships that the rule laid down in such cases as
    Edinburgh and Dalkeith Railway Company v. Wauchope 8 C. & F. 710
    and Lee v. Bude and Torrington Railway L.R. 6 C.P. 576 is applicable to
    all Acts of Parliament including Estate Acts. I also agree with all that
    has been said by my noble and learned friend. Lord Reid, with regard to
    McKenzie v. Stewart. We do not know what were the reasons for the
    decision : the case could easily have been decided on construction ; and
    it should be treated as having been so decided. I would say the same of
    Biddulph v. Biddulph. Green v. Mortimer does not touch the present
    problem at all. Parliament could have empowered the Courts to make the
    life estate inalienable ; but what it did do was to empower the Courts to
    make it inalienable " so far as the rules of law and equity and the jurisdiction
    " and the authority of the Court admit". That, as Lord Campbell pointed
    out, was absurd since the rules of law and equity and the jurisdiction and
    authority of the Court did not give the Court any such power.

    Before us Counsel for the Respondent submitted that even if section 18
    on its true construction extinguished the rights of reverter and the Courts
    were not entitled to " go behind the Act " but were bound to accept that as
    a result of it the
    Board as from the date of its passing held the legal estate
    in fee simple in the lands in question free from the right of reverter yet
    any adjoining owner who chose to do so could, on proof of the facts alleged
    in paragraphs 3 and 4 of the Reply, obtain a declaration that the Board
    held the legal estate in the strip of line adjoining his land on trust for him.
    This argument adopts the explanation of McKenzie v. Stewart given by
    Holdsworth History of English Law Volume XI pages 354-358. Equity,
    Holdsworth says, while accepting that the Private Act, although obtained
    by fraud, gave the promoter the legal estate in the property in question will
    not permit it to be used as an instrument of fraud and will force the promoter
    to hold the advantage which he has gained by deceiving Parliament on
    trust for the person defrauded. To accept this argument would enable the
    Respondent when he has been refused entry by the front door to get in by the
    back. In order to establish the personal equity he would have to prove the
    same facts as to the misleading of Parliament as he would have to prove
    if a direct attack on the Act were open to him, and the objections which
    are fatal to a direct attack on the Act—namely, that the Court will not
    enquire into what passed in the course of the passage of the Bill through
    Parliament—must be equally fatal to any attempt to establish the alleged
    personal equity. I agree entirely with everything which has been said by
    my noble and learned friend, Lord Wilberforce, on this aspect of the case.

    Paragraph 3 of the Amended Reply professes to relate only to construction,
    but the fact that it is struck out because the matters alleged in it are not
    admissible in considering the true construction of the Act will not preclude
    the Respondent from advancing any arguments on construction which are
    legitimately open to him; the striking out of paragraphs 3 and 4 does,
    however, entail the consequence that the application for discovery made on
    8th December, 1971, should be dismissed.


    I would add in conclusion that the fact that I think, as I stated at the
    beginning of this speech, that the allegations of fraud made by the Respondent
    are misconceived does not mean that I also think that his sense of grievance
    that Parliament should by a Private Act have summarily deprived the
    adjoining owners of their rights to reverter without notice to them is neces-
    sarily wholly unjustified. We do not and cannot know whether the question
    of giving him notice was raised during the passage of the Bill. It may
    have escaped attention ; on the other hand, Parliament may have addressed
    its mind to the point and decided that in all the circumstances the giving of
    notice was not necessary. That is a matter into which it is impossible for us
    to enquire. I would allow the appeal.

    309737 Dd 896211 120 1/74 StS

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