Wednesday 6 November 2019

Billingsgate Dock

by Richard Cheffins

Reg Barter, in his article on Billingsgate Dock in Greenwich industrial history, Vol. 4, No. 2, asks for comments on its current legal status.  I can help to some extent though my conclusions are in part based on inference rather than on documentary evidence.  I can, at least, clarify the status of the ‘strange and obscure Act of Parliament’ that he mentions.

The Greenwich Hospital act 1850 (13&14 Vic., cap. 24) is, in law, a ‘public act’ – the final section (§ 21) states ‘This act shall be deemed a public act and shall be judicially taken notice of as such …’.  The text can therefore be found in the sessional volumes of Public general acts (Vol. for 13&14 Victoria [1850], pp.237-52).  It is not referred to in the Index to the London government act 1963 and orders made thereunder as it doesn’t qualify for inclusion, and it is omitted from Halsbury’s Statutes as the latter is not comprehensive (‘There are, however, … certain minor acts deliberately excluded …’ Preface).  In fact, exclusions are more numerous than this might suggest and public acts of a local character are exclude as being ‘of limited interest’ (‘local acts’ as such are excluded altogether – the scope being ‘statutes’, i.e. public acts).  It is unlisted in the Chronological table of local Legislation because it is not ‘local legislation’.  This requires some explanation.

Plainly, in reality, the act is very local but it was not issued in the series ‘Local and personal acts’.  There are only two types of bills – public (introduced within Parliament and seeking to define or alter the general law of the land) and private (introduced by petition from outside Parliament and seeking privileges or exemptions for the petitioner from the general law without altering the generality).  Originally, public bills, if passed became public acts and were published while private bills became private acts and remained unpublished.  As the Industrial Revolution developed, it became increasingly inconvenient for a wide range of private acts (canal, turnpike, harbour and railway acts and others) to remain unpublished.  Moreover, in a court of law such acts were only ‘evidence’ and had to be proved by providing the court with a certificate from the Clerk of the Parliaments stating that the transcript provided was a true and accurate copy of the Original Act in his possession.  To avoid this and to ensure publication, it became the practice during the 18th century to insert a clause in such bills deeming the resulting acts to be public.  Such ‘pretend’ public acts began to out-number real ones and, in 1797, they were formed into an entirely separate class of acts known as ‘Local and personal acts’.

Even then, not all acts of a local character and originating as private bills were issued as Local and personal acts.  Some, of course, remained private but others were public general acts and the reason for this (if we ignore simple error) is various.  ‘Local’ acts with major financial implications (e.g. the Cardiff Bay barrage act 1993) or likely to affect most of us (e.g. the Channel tunnel act 1987) will be public and many London-wide acts are also public but the act concerned is ‘public’ for a different reason.  Greenwich Hospital is a royal (i.e. state) charity and legislation concerning it is considered ‘national’ and therefore qualifies as public and general.  There are numerous Greenwich Hospital acts and all are public.

The 1850 act is therefore indexed in the Index to the statutes, under ‘Greenwich Hospital’ (proving it to be still in force) and listed in the Chronological table of the statutes under ‘13&14 Vic., cap 24’.  It is listed there in bold, indicating again that it is considered in force but this is followed by an asterisk (*), signifying that it considered ‘of limited [NB. Not ‘local’] application’.  In the Preface acts so qualified are defined as either of a local character (as here) or for colonies that have since become independent.  In either case, no ‘effects’ (amendments or partial repeals) are noted.  This is a stumbling block for those seeking to establish the current status of the act or of any of its provisions and the legal presumption that an act remains in force (and unamended) unless proved otherwise does not help in establishing the truth.

There are two aspects of the current status of the Billingsgate Dock that are at issue – the ownership of the Dock and public rights in connection with its use.  The 1850 act authorised the Commissioners of Greenwich Hospital to acquire the Dock and properties adjacent (set out in the schedule to the act) in order to enlarge it and improve landward access to it (seaward access was the responsibility as we shall see of the Thames Conservators).  The act required this work as a condition for the Commissioners to take possession of Ship Dock, extinguish public rights there and stop up Fisher Lane.  As Ship Dock and Fisher Lane were closed and incorporated into the Greenwich Hospital estates, it must be presumed that Billingsgate Dock was enlarged (it must have been very small before) and consequently it and the surrounding properties were acquired by Greenwich Hospital.
Ownership of the Dock before that was obscure – the Schedule of the 1850 act states the ‘Owners or reputed owners’ to be the Admiralty (now the Ministry of Defence), the Commissioners of Woods (now the DETR), the City of London, the Parish (now London Borough) of Greenwich, and Morden College ‘or some or one of them’ - which sounds as if nobody was sure!  Subsequently the 1850 act was amended in this respect by the Greenwich Hospital act 1865 (28&29 Vic., cap. 89 §22) which states ‘All lands which … are … settled on or vested in or are held by or in trust for the Commissioners of Greenwich Hospital shall henceforth, by virtue of this act, remain and be settled on and vested in the Admiralty …’. 

On 1 April 1964, the role of the First Lord of the Admiralty as sole trustee for the Greenwich Hospital was transferred to the Secretary of State for Defence for the time being.  And this remains the position.

It is possible that the Greenwich Hospital estates could have disposed of Billingsgate Dock by private conveyance, without recourse to legislation but this seems improbable in the extreme (the Hospital’s archives would confirm this or not).  Otherwise, the 1850 act as amended by that of 1865 remains in force and Billingsgate Dock is owned by the Secretary of State for Defence as trustee for the Greenwich Hospital.  Certainly there is no reason to believe the Greenwich Pier Company ever had ownership rights in Billingsgate Dock (in any case Greenwich Hospital is a joint (or is it part?) owner of the Pier as came to light in the recent negotiations for its redevelopment).

Public rights in connection with Billingsgate Dock were not created by the 1850 act.  §17 merely states that the rights and privileges (as well as the ‘restrictions, dues and payments’) enjoyed by the public in the original Billingsgate Dock were to continue with respect to the new and enlarged dock and the provisions (unspecified) for keeping it in repair should continue.  Control of the Thames and Thames-side activities including its dockings was traditionally the responsibility of Thames Conservators who, since 1157, though not without challenge from time to time, had been the City of London. Around 1840 this had finally been challenged by the Crown and the dispute was still unsettled by 1850 which is why among others the Commissioners of Woods (representing the Crown) and the City of London were both reputed owners of Billingsgate Dock. 

The 1850 act (§20) saved the City’s rights but in 1857 the dispute was resolved by the Thames conservancy act 1857 (20&21 Vic., cap. cxlvii), a local act - not all London-wide acts are public. This transferred responsibility for dockings in the tidal Thames to a Board of Conservancy, reconstituted a few years later as the Thames Conservancy Board on which both the Crown and the City were represented.  Though the Board continued, it shed its responsibility for docks in the tidal Thames in 1908.  This was transferred to the Port of London Authority by the Port of London act 1908 (8 Edw. 7, cap.68).  Insofar as the rights of the public in Billingsgate Dock are concerned with amenities, recreation or the environment, responsibility was transferred yet again in 1989 by the Water act 1989 (1989 cap.15) to the Thames Water Authority.

Provision concerning public rights confirmed by the 1850 act will be found, if any amendments have been made, in the various acts establishing these public bodies or any acts amending the same or any orders made under the authority of any of the foregoing. As if this wasn’t complicated enough, two further factors should be born in mind.  It may be that the 1850 act has not in fact been amended in this respect.  In which case it would probably take litigation to determine whether the rights had fallen into desuetude or not.  If amendments have been made, they will almost certainly not have specifically referred to Billingsgate Dock.  Rather they will have referred to ‘docks’ generally or to certain classes of them and any such generic amendments might be found in any relevant act or in any orders made by virtue of powers conferred by these acts.  Given that the 1850 act confirms the public’s rights and privileges but does not say precisely what they are, given that there is undisputed free access landward to the Dock as part of Cutty Sark Gardens, and given that there is not, so far as I am aware, any pressing demand for docking facilities there, the task of searching legislation to establish theoretical rights is disproportionate to any result achievable.  But if anyone would like to do it, I hope that the above provides a starting point.

This article appeared in the May 2000 GIHS Newsletter

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