HC Deb 22 October 1952 vol 505 cc1203-25

The Minister of Defence may make arrangements whereby claims in respect of acts or omissions of members of visiting forces, or of other persons connected therewith to whom the arrangements relate, being acts or omissions of any description to which the arrangements relate, will be satisfied by payments made by the said Minister of such amounts as may be adjudged by any United Kingdom court or as may be agreed between the claimant and the said Minister or such other authority as may be provided by the arrangements; and any expenses of the Minister of Defence incurred in satisfying claims in pursuance of any such arrangements or otherwise in connection with the arrangements shall be defrayed out of moneys provided by Parliament.—[Sir D. Maxwell Fyfe.]

Brought up, and read the First time.

Motion made, and Question proposed, "That the Clause be read a Second time."

Mr. E. Fletcher

As this is in many ways a most important Clause, I hoped we should have an adequate discussion of it on Second Reading, because we have now passed to an entirely new phase of the Bill. It is regrettable that we should have to embark on this subject at this hour. Anyhow, it is our duty to investigate the matter with the care it requires before we accept it, because, although hon. Members opposite may not realise it, this new Clause affects very closely the rights of every British subject in this country.

There was a certain amount of discussion about it on the Second Reading of the Bill, but it left the whole subject in an unsatisfactory state. The Home Secretary will remember I then asked for an assurance that, when the Bill is passed, the result will be that if any British subject suffers any tort—for example, if he is injured in any accident on the roads as the result of some negligence caused either by a member of a foreign force, or by a civilian component of that force, or by a dependant of either—he shall find himself in no worse position than he would be if injured by any other British civilian. That is the principle that should be established.

This new Clause is the only opportunity we shall have to ensure that that principle is established. In looking at the Clause, it might be wondered what there is to deal with the matter. It was explained by the Home Secretary that this was the way in which the Government intend to carry into operation that part of the treaty which deals with liability to torts of service personnel serving in a foreign country. What did the Home Secretary say in introducing it? He said: The necessity for the Clause and for the arrangements referred to in it arises from the fact that a foreign State is, by the law of nations, immune from proceedings in the courts of another State."—[OFFICIAL REPORT, 17th October, 1952; Vol. 505, c. 573.] We all agree with that, but we are not dealing with the immunity of a foreign State. We are dealing here with the liability of the nationals of a foreign State. We are dealing not only with the liability of the nationals of a foreign State, but with their dependants, and no question of immunity can arise in any of these cases. The instance I took in the Second Reading debate was the case of the wife of an American soldier who is driving a motor car and unfortunately has an accident in which a British civilian is involved. What is the position of the British people thereby injured? I was given an assurance by the Attorney-General that it was not intended in that case that any immunity should arise.

The Attorney-General

indicated dissent.

Mr. Fletcher

I understood I was given that assurance, and it was because of that assurance that I put down one of the Amendments on the Order Paper designed to make that clearer.

I quite agree there is nothing in the terms of the Clause which takes away any of the existing liabilities. On the other hand, we are now coming to a part of the Bill where the Government have an opportunity of giving effect to the part of the agreement which is designed to protect British citizens. Hitherto my criticism has been that the Government seem to have gone out of their way to construe the agreement adversely to the interests of British courts and individuals. Here is an opportunity to implement by Statute the intention of the agreement that British civilians should have full redress and full opportunities of obtaining compensation if they suffer injury from foreign military personnel. That is the object of the agreement.

What is there in this Clause to carry out that intention of the agreement? There is nothing. All this Clause says is that the Minister of Defence may make some arrangements. He may, or he may not. There is nothing in this Clause to ensure that when arrangements are made the House will have an opportunity of considering them and amending them. The Home Secretary was good enough in the course of his speech—as indeed the Lord Chancellor was in another place—to give some idea of the arrangements they contemplated. Roughly they were going to give a civilian who was injured the right to stake his claim to the British claims tribunal. That may be a very good way of doing it, but any person who finds himself in that position will wish to know exactly what his rights are. We are entitled to satisfy ourselves that the machinery is adequate.

I do not want to anticipate the arguments which I shall have to advance when I move my Amendment, but it will illustrate my point if I say that the Clause would be considerably improved if, instead of taking this form—that the Minister of Defence may make arrangements—it took the form that Her Majesty the Queen might by Order in Council make some arrangements which would be subject to the usual form of consideration by the House, either by affirmative or negative Resolution. Although we should not then have the opportunity of revising the arrangements in form, we should at any rate have the opportunity of examining them in detail. Under this provision the whole matter is entirely removed from the purview of Parliament.

There are two reasons why that cannot be right. First, it does not enable us to do our duty to see that the rights of the British citizen are adequately protected, and secondly, it does not enable us to do our duty to see that the rights of the Revenue are properly protected. It may be that under the machinery devised the claimants will have a claim against the fund in excess of the amount which they would have got if they had successfully claimed damages in a court of common law against any other tortfeasor.

I regard this Clause as thoroughly unsatisfactory and I seriously suggest to the Home Secretary that there is no need to have a Clause of this kind at this stage to enable the Government to ratify this agreement. It would be much better if, having got the rest of the Bill through the Committee stage relatively happily, they left this Clause out of the Bill and waited until the Minister had been able to work out, in conjunction with the Minister of Defence, precisely what are the mechanics whereby British civilians will have the protection he wants to give them, and then introduce a new Bill setting out the matter.

I ask myself and the Home Secretary whether that would not be a far more satisfactory way to do it, and a way which would be much more fair to Parliament, than by including in this Bill this very obscure Clause which says nothing and does nothing but give the Minister of Defence power to make arrangements and removes the whole thing from the purview of Parliament? I protest against the way in which this part of the agreement has been drawn up, and I suggest that it is unnecessary to do it in this form. It complicates the task of the Committee when they are debating it in this form at this hour of night. The right thing for the Government to do would be to remove this Clause from the Bill and bring in a new Bill to deal with this totally different aspect of the question.

Mr. Paget

As I understand this Clause, it does not and cannot in any way limit the individual's civil rights. Anybody who suffers by reason of the negligence or other tort of any member of any visiting force can sue him in exactly the same way as he can sue any other individual.

The only additional thing which I wish to say with regard to that aspect of the matter—and the one which obviously will be important to the individual in the cases which arise—is that there should be some assurance that when an individual is knocked down by a car he will be suing a motorist who is insured. Negotiations are contemplated by the agreement. I feel that provisions with regard to the use of the courts here should cover the fact either that their own Government insures them, or they carry insurance from someone.

1.45 a.m.

What this Clause does is to provide an additional safeguard in that a claim is paid in some circumstances by the Minister of Defence. With regard to that I feel that this Clause would be greatly improved by an Amendment which I understand will be called. If we are going to have a scheme of this sort, it ought to be introduced by Order in Council so that the House will be in a position to consider it, and if it so desires debate it. Perhaps the Home Secretary will tell us whether there is any particular objection to that procedure.

I do not think the Home Secretary or the Attorney-General can complain in any way of the progress with this Bill. I think they are getting towards the end of the Bill a lot earlier than expected, and I would suggest no harm would be done to anyone if the Home Secretary were to say that he would withdraw this Clause—which I do not think he can feel is quite as perfect as it might be—and introduce a new Clause on Report stage. That would cost him nothing, and it would be a convenient thing to do in the light of the comments made.

Mr. Bing

I, too, think that possibly one of the disadvantages of introducing a Bill in another place is that occasionally Clauses get displaced from their proper position and then appear as new Clauses. This is not a new Clause but one put in the Bill originally, taken out in another place, and now put back. It is unfortunate we could not discuss it in its proper position in the Bill. As I understand it—and the right hon. and learned Gentleman will correct me if I am wrong—this Clause aims at implementing article 8 of the agreement, and particularly paragraphs (5), (6) and (7) of it.

In the first place, I think it is unfortunate that we do not seem to have any representative here of the War Office, which is in a sense the principal Ministry concerned. If the right hon. and learned Gentleman will look at subparagraph (5, a) of article 8 of the treaty, he will see that the provision there is that claims shall be filed, considered, settled or adjudicated in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces.

Many hon. Gentlemen feel that the whole arrangement by which the War Office has dealt with claims has been dilatory and undesirable in many ways. I see the right hon. Member for Dundee, West (Mr. Strachey) on the Front Opposition Bench. I am sure he will permit me to say that this is one branch of the War Office which rather feels it has too much strain on its resources. It always has great difficulty in dealing with claims for damage and things of that sort which arise out of the occupation of property by troops. When one looks at that provision, one sees nothing for dealing with it in this way.

This is a Clause produced in an extremely general way. I think we ought to hear from the right hon. and learned Gentleman a little bit more about how he imagines this particular Clause is to work, because there are a number of matters concerned. There is, first of all, the case where the acts are concerned, that where the visiting force takes over, perfectly properly and rightly a building and, in the course of occupation of it, damages it in some way or another, it is required to pay some form of compensation. The principles upon which that is settled are entirely different from and have no relation at all to the principles upon which compensation is settled in the event of a soldier when on leave running down somebody when out in his motor car. To confuse and draw all these things into one does not seem to me a helpful way of approaching this problem.

There are, to my mind, two entirely distinct problems. The first is, what is the right and proper compensation to be paid in cases where property is taken over by the visiting force? What are we going to do in this particular case? That is one quite different aspect of the matter. In spite of what I have said about the War Office claims department, it may be an effective and easy method of dealing with it.

But then we come to the other question, which is liable to lead to much more trouble. I had in my own constituency the case of a disabled man who had saved up a long time to purchase a motor car to do his work. He was a schoolmaster. He was not able to work unless he possessed a motor car to carry him to and from his job.

He happened to be driving this motor car one day and going over a crossing with lights and was in collision with a vehicle proceeding against the lights, driven by a sergeant of the military police, who, it turned out, had taken that vehicle in an unauthorised way, as a result of which the disabled man was not able to collect any compensation at all, because the other man himself had no money, he was not insured, and the Army said, "We are not responsible. This man took the vehicle off without asking us. We are not proposing to give any payment at all."

As the right hon. and learned Gentleman knows, where tortious acts of this sort are envisaged there is apparently a provision for providing some form of damages, some form of liability towards the person who is injured. That is a very valuable and very desirable provision because nothing creates—I am sure I have the whole Committee with me in saying this—more ill feeling and ill will than the knocking down of somebody, well known in a neighbourhood, by a member of visiting forces, in circumstances in which he can obtain no compensation whatever. Therefore, if the right hon. and learned Gentleman wants to make his Bill popular, I would suggest to him that the best course to follow would be to make it absolutely clear to people that they are in fact protected, whether or not the member of the visiting force is on duty——

Lieut.-Colonel Lipton

May I intervene here? Would it not help the object my hon. and learned Friend has in mind if the right hon. and learned Gentleman introduced a Clause which was more closely related to the particular section of the North Atlantic Treaty Agreement to which my hon. and learned Friend makes reference, namely, paragraphs (5), (6) and (7) of article VIII? The new Clause we are now discussing seems to be far less precise than the article to which I have referred.

Mr. Bing

I was going to ask the right hon. and learned Gentleman exactly how he proposes to apply the treaty. We have ratified the treaty, and it is our duty to put into our legislation what we have said we shall do. We, as the authorities of the receiving State, have to make provision when someone is run down by a motor car by someone who has taken or used it in an unauthorised way, or has been driving when drunk—because all these things could happen to anyone in any forces whether visiting or not. I do not know whether the right hon. and learned Gentleman considers the phrase "including the conduct of the injured person" to be in accordance with the English legal system or the method by which we assess damages in courts of law here. Does he think, so far as persons of another visiting state are concerned, that we are going to apply a different method of assessing damages?

Sir D. Maxwell Fyfe

indicated dissent.

Mr. Bing

I see the right hon. and learned Gentleman shakes his head.

Sir D. Maxwell Fyfe

I did say that I took it in this context as dealing with contributory negligence.

Mr. Bing

Exactly. So it enforces the law as it now stands in this country. What is it that happens in this instance? Is it that a case is started in the courts, and when damages are awarded they are paid by the Minister of Defence? Is that the position, or how is the matter to be worked out? The right hon. and learned Gentleman will remember that there is a provision for an ex gratia payment to be made. How does all this machinery work in with the Clause? I hope he will take an opportunity of saying a word to the Committee about how this Clause in fact implements the three paragraphs of article VIII to which I have alluded. I hope that before we come to the Amendment he will deal with the matter generally.

Lieut.-Colonel Lipton

The reason I intervened in the middle of my hon. and learned Friend's remarks was that my first impression on seeing this new Clause was to feel, when it was proposed, that it was buoyant with uncertainty. It is so vaguely expressed that by itself it does not seem to carry us very much further or do very much more than propose a rather vague form of permissive procedure which the Minister of Defence may, or may not, follow if and when he thinks fit. I was the more surprised when I saw the Clause in the light of such studies as I have made of the agreement about the status of the forces of the parties to the North Atlantic Treaty. As my hon. and learned Friend the Member for Hornchurch (Mr. Bing) has pointed out, there are numerous matters in paragraphs (5), (6) and (7) of the agreement to which there is no reference whatever in the new Clause that we are asked to approve. In particular, I would draw the attention of the Home Secretary to sub-paragraph (6, d) of article VIII which states: Nothing in this paragraph shall affect the jurisdiction of the courts of the receiving State to entertain an action against a member of a force or a civilian component unless and until there has been payment in full satisfaction of the claim. 2.0 a.m.

It seems that if the Government really intended that the various provisions as set out in the Agreement were to be incorporated in the Bill, this new Clause relating to the settlement of claims against visiting forces could have been drafted in much more specific terms. For that reason, I hope that the Home Secretary will find it possible to accede to what in my view is a very reasonable suggestion which has been put forward, namely, to withdraw the Clause for the time being and see what can be done to ensure that it is redrafted in the much more specific terms provided for in the agreement itself.

The Attorney-General

I do not want to delay the Committee any more than I can help at this time of the morning, but I should like to say that the hon. and learned Member for Northampton (Mr. Paget) has been extremely helpful in this matter by putting it in very much better perspective. The hon. Member for Islington, East (Mr. E. Fletcher), with great respect, appeared not to be really tackling the point at all.

As the hon. and learned Member for Northampton pointed out, the position in law is that if there is some tortious act by one of these people, there is a legal right to sue him, but, as has been pointed out, it may very well be that that is quite nugatory and useless and one gets nothing out of it. As regards the agreement, the United States Government has agreed to do something which no one could compel it to do. That is why reference is made to the immunity of a foreign State. The hon. Member for Islington, East seemed to think it quite irrelevant, whereas it is the foundation of the agreement that in certain circumstances and subject to certain conditions as to which it has complete discretion it will assume responsibility.

As explained by the Home Secretary on Second Reading, certain provisional arrangements have been made—they have not yet been completed—for example with the United States, as to how this is to be done. I do not think it would be right for me to explain them in detail, but I would remind the Committee, first, that there is no reference to contractual claims at all. One is only dealing with torts, and different considerations must, of course, apply according to whether the acts occurred during the course of duty or not.

On the question of whether they occurred on or off duty in all cases it has been agreed, and the United States Government has made the concession—which is a very substantial concession—that the matter shall be dealt with by the British War Office Claims Commission. They are experienced people who have dealt with this matter for a considerable time. The result would be that if the Bill were passed anyone who had a claim against a member of a visiting force would be able to make his claim to the War Office Claims Commission in the same way as claims against British Government Departments have been made up to now. One would hope that in many cases the claim would be admitted and damages agreed and paid by the Minister of Defence by arrangement with the United States Government.

If the claim is not admitted the claimant has the right to bring proceedings in the courts against the member of the force and the Treasury Solicitor will appear for him. That applies to any case which occurs in the performance of duty. Where it does not occur in the performance of official duty, the claim may still be made in the same way, but the agreement provides that where no legal liability can be accepted the visiting force is prepared to make an ex gratia payment. Here again, the Claims Commission will examine the case and make a decision as to whether it should or should not make an ex gratia payment. If it decides not, or if it makes an offer which is not accepted, the claimant has the right to claim against the visiting force concerned. He is then back again in the original position anyone would be but for the agreement.

The result is really that, with regard to those who have put forward arguments to the contrary, one cannot make any more provision in the way of a Clause in a Bill. We are in the position of having to accept the best terms we can get and those which have been negotiated. Although nothing is perfect in the world, I think very substantial concessions have been made. People will be in a very different position, assuming the machinery operates properly, as we are entitled to think it will, by mutual agreement and co-operation, from that in which they would be under ordinary law. People who are here legally will be defendants in actions. This is an arrangement whereby one may get a substantial measure of protection.

It is said that it would be a good thing if they were all insured. It would be a good thing, but that is not possible to get. Her Majesty's Government, like previous Governments, have made the best bargain they could. I do suggest, with respect, that if hon. Members will appreciate that that is the position they will see it is not really a question of setting out a code in the Bill.

What we have provided for is that there is power to enter into an arrangement of this kind. The House has been informed that provisional arrangements have been made by which an agreement of that kind can be secured. We say that this is at any rate a very substantial concession on the part of foreign Governments which would otherwise normally be able to claim complete immunity, and we recommend the Committee to accept it.

Mr. Paget

The right hon. and learned Gentleman has told us of some very valuable rights which have been negotiated for individuals, but how does an individual find out about them? The normal place in which one finds one's legal rights is in the Statute that confers them. Why not put into the Statute something which will enable the citizen who is knocked down by a national of a foreign Power to find out what his rights are and act pursuant to them?

Surely it would be advisable to put the salient rights negotiated into the Statute? I cannot see what is the difficulty. It is now getting very late. A new Clause can be introduced on the Report stage as well as in Committee. Why not have a look at it and see whether one could not put in a Clause telling the ordinary individual who looks at the Act what his rights are?

The Attorney-General

I am sorry, but so far as I can see it is quite impossible to put into a Clause a statement of rights when what one is dependent on is an arrangement which has to be negotiated with a foreign Government which one cannot compel to carry it out.

Clause read a Second time.

Mr. E. Fletcher

I beg to move, as an Amendment to the proposed Clause, to leave out from the beginning, to "whereby," and to insert: Her Majesty may by Order in Council make such arrangements as appear to Her to be expedient. May I deal, first, with the concluding remarks of the Attorney-General? What do they mean? He suggested that if we had negotiated with a foreign Government, we could not put it into the Bill. But this is a domestic matter between our own citizens and our own Government, for the whole conception of the agreement on civil claims is that the British Government assume responsibility. We are concerned with the machinery by which our own people can establish their rights.

I had hoped that the Home Secretary would have risen to ask me not to elaborate the Amendment because he intended to accept it, and I still hope that he may do so. One of the first things which the right hon. and learned Gentleman said when he became Home Secretary—in dealing with a proposition to extend the Supplies and Services Act for a year—was that he was very anxious to help the House to devise methods by which there could be greater Parliamentary control over delegated legislation. He invited hon. Members to make suggestions as to how the House of Commons could exercise greater control over these legislative and semi-legislative matters.

I am responding to his invitation, because the whole purpose of the Amendment is to bring something within the purview and cognisance of Parliament which ought to be within its purview and cognisance. I am concerned to see that these arrangements, when made, should be put in a form in which they will come under the scrutiny of the House of Commons. Is there anything wrong in that? Is it not a reasonable request for a Member of Parliament to make? Why do we have this unusual method of making administrative arrangements? Nobody knows what effect they will have, what they will cost or where the public can get access to them. It is a most unusual method of dealing with a subject which could easily be dealt with by one of the recognised constitutional methods.

We do not know the cost. The Financial Resolution, which enables the Committee to discuss these things in such time as the Patronage Secretary allows, was drawn in very vague terms. This is one of the Clauses which will attract a claim on the British Government which will have to be borne by the British taxpayer. I do not complain about that, but it is an additional reason why we should consider——

The Deputy-Chairman

The hon. Gentleman is discussing the Clause and not his Amendment.

Mr. Fletcher

It was a little difficult to separate the two. I was trying to show that we shall be doing our duty very much better as a House of Commons if we take control of this matter by having these arrangements set out in an Order in Council which will come before us in the ordinary way rather than having them set out in arrangements which, it is said, might be made and which, presumably, will not come before us. If I am not right in the assumption that they will not come before us the Home Secretary would have corrected me. As he has not corrected or interrupted me, I think it must be obvious that under the Clause as it stands the Minister of Defence will be a free, uncontrolled agent, able to promulgate these arrangements in his own way.

I cannot understand why it should be done in this way. We are committed to expenditure without knowing anything of the procedure. The citizens of the country will not have the satisfaction of knowing that the methods of obtaining redress for injury suffered have had Parliamentary sanction. It offends my elementary sense of the constitutional proprieties in the same way as, if I may say so, it must offend yours, Mr. Hopkin Morris, and as it would offend that of the Home Secretary were he sitting on these benches. I have not heard, in the Second Reading debate on Friday or in the Second Reading debate on this Clause this morning—which admittedly was a little attenuated owing to the circumstances in which it had to be taken—any explanation of why it must be done in this slipshod, backstairs, underhand manner.

2.15 a.m.

Why cannot the Government come into the open? Why cannot this be published in the normal, straightforward way? This is a monstrous way to deal with the subject, and I am disappointed that the Home Secretary, who on so many other occasions has shown his willingness to be reasonable and conciliatory, and understanding on points which are loaded with constitutional importance, has not shown a glimmering of sense of the force of the arguments which we were trying to put to him. Maybe it is because he is tired.

Sir D. Maxwell Fyfe

I am sorry that I cannot meet the constitutional propriety of the hon. Gentleman, which he has urged so eloquently. It is constitutional propriety which prevents my considering adoption of his Amendment. In that Amendment he asks for an Order in Council. That is a legislative instrument, and it is not an appropriate instrument for making arrangements either with foreign Governments or with anyone else. One does not make arrangements by Order in Council. One legislates by Order in Council, giving oneself power, or whatever else one may require. We have considered this Amendment very carefully, but it is an entirely wrong use of the procedure and one which could not be adopted. I must advise the Committee to reject it.

Mr. Paget

I am puzzled by the arguments from the Home Secretary and the Attorney-General. In substance, they have said the basis of this is an agreement come to with a foreign country. Therefore, we cannot put it into the Bill or a statutory Order. What is this Bill about? We have come to an agreement with N.A.T.O. countries, and this Bill is precisely to give legislative force to the agreement. Now we have come to an agreement with America and the N.A.T.O. countries, as set out in this agreement, on how civilian claims and rights are to be dealt with.

Sir D. Maxwell Fyfe

The Amendment reads: Her Majesty may by Order in Council make such arrangements as appear to her … My point was not that an agreement could not be recorded in a legislative instrument, in such form as this House may like, but that it is not possible to make an arrangement by an Order in Council.

Mr. E. Fletcher

There is real misunderstanding here. The purpose of the amendment is to enable the Order in Council, not to make any arrangement with any foreign Power, but to set out the machinery whereby British citizens who are injured by a foreign force, or their civilian components, or dependants may recover the money which, according to the Home Secretary, it is the Government's intention to give them through the machinery of the British claims tribunal. The amendment asks that that machinery, a purely domestic matter, should be set up in an Order in Council.

Mr. Paget

The agreement how these civil rights are to be dealt with is an agreement between Governments. We ask for the legislative act which will bring the citizen into that agreement. It is precisely what the Bill does. Here, we understand an agreement has been made or is being negotiated with the American Government, and the Ministry of Defence is to make what is vaguely termed an arrangement that the Minister shall accept liability as a defendant and pay damages in respect of claims brought against American soldiers for injuries done to citizens in the course of duty.

Why cannot a legislative act—I would like a statute—give the citizen a right to sue the Minister, which is a matter between the citizen and the Minister, and set out what is necessary to recover the damages from the Minister of Defence? That, as I understand it, is the arrangement intended. I cannot see what legislative or constitutional impropriety there is in this, because it is only if it is firmly set out in some legislative act that the unfortunate citizen can discover what his rights are, and it is very important he should do so.

This is really a practical thing. You need it somewhere where he can look it up and see what his rights are, be advised what his rights are and be advised what procedure to take. There is a Clause—I cannot refer to it just at the moment—which debars the claim if he does not go through the right procedure. Where does he find out what the right procedure is if it is not in the Act or in the Statutory Instrument or somewhere else where he can find it?

We are not wasting any time here. I feel there has been a misunderstanding with regard to this and when, at a more reasonable hour, the Minister and the Attorney-General apply their minds to it, they will feel there is some force in what we are asking. Why not simply leave this to the Report stage? A new Clause can be introduced then just as well as in the Committee stage. The right hon. and learned Gentleman may feel there is some more suitable way to do it. I feel we have been very co-operative on this Bill in assisting by withdrawing Amendment after Amendment at his request. Right at the end of the proceedings can he not say he will look at this again. It will cost him no time at all.

Mr. Bing

I hope the Home Secretary will look at this again. If he looks first at the words this Amendment proposes to leave out, he will see how very unsatisfactory they are. The Minister of Defence may make arrangements. He may, or he may not. It is true it is provided that "Her Majesty may, by Order in Council"—but making arrangements may well apply to individual arrangements in relation to each particular case. This, for legislation, is an extremely vague phrase. This means that the Minister of Defence may make a series of expenditures which are not covered by any fixed system at all. We had no opportunity of reviewing or examining the matter on the Financial Resolution to see exactly what the costs are. It is a highly undesirable principle for a Minister to be able to make arrangements quite irrespective of any Parliamentary control other than having to come forward afterwards with—presumably—a Supplementary Estimate to justify what he has done. From what we have been told it is quite impossible to calculate what will be the exact sum required.

2.30 a.m.

So it will be impossible even to include in the Estimates what it is hoped to spend or what it is thought might be spent on this matter. I should have thought that under that heading it would be highly undesirable that we should thrust on any one Minister the responsibility of making arrangements. Nobody knows where the arrangements are to be recorded. If we have an Order in Council there is the great advantage that there is a document actually printed and available at which one can look, but here we are presented with a situation in which we are told when we make our claim, "I am very sorry, but that is not one of the arrangements which was made by the Minister of Defence," or "It is a case which the Minister of Defence arranged should not be settled," or "It is a case about which no arrangement has been made."

That is a very highly unsatisfactory situation. If the hon. and learned Gentleman says that there is some difficulty about the words which my hon. Friend suggests substituting, as they are drafted, very well—if there are those difficulties and if the only question is that it is not suitable to make arrangements by Order in Council—let us postpone the discussion of this matter and look at it again on the Report stage to find a form of words more appropriate to an Order in Council.

If the hon. and learned Gentleman says that the Amendment should read, "Her Majesty may by Order in Council make such provisions as appear to her expedient" I am sure that my hon. Friend the Member for Islington, East (Mr. E. Fletcher) would be prepared to withdraw his Amendment, or at any rate to consider doing so, so that such an Amendment could be made on the Report stage.

As I understand it there is no form of words which would satisfy the Attorney-General, however well they were drawn. What he insists on is that for some reasons which are not at all clear—at any rate to those hon. Members on this side of the Committee—we should at all costs leave this matter entirely in the form of a series of arrangements which are to be made by the Minister of Defence and which are not defined, set out or disclosed in any way.

The Attorney-General

They will be published.

Mr. Bing

I am grateful for the intervention of the Attorney-General. What I have said is quite wrong. These arrangements are to be published in some form. In what form does the Minister of Defence publish an arrangement? We have elaborate provisions for publishing Statutory Instruments and for making them known; but how does the Minister of Defence make known his arrangements?

Does he publish them on little notices? Are they sent out to the Press? Are they available in a duplicated form if one writes to the Ministry for them? How do they come forward?—as a Parliamentary Question inspired by the Minister, in answer to which he circulates in the OFFICIAL REPORT the arrangements which he has made? How are the public to know what are the arrangements made by the Minister of Defence—a Minister who, incidentally, is not even a Member of the House?

This is a matter which I am sure the Attorney-General would like to look at again. It would be far more convenient from everybody's point of view if we used the established procedure for setting out these things. There are a great number of Orders made by Ministers. If this form of words does not suit the hon. and learned Attorney-General let us make some provision for the Minister of Defence making an Order. Let us have an Order which appears and which is in a form which is at least accessible to people, which goes forward in the normal publications and goes into the hands of those people who are used to dealing with these matters and advising on them.

I hope that the hon. and learned Gentleman will consider this matter again. I know that it is late at night and difficult to hold his attention, particularly when he is being approached by the Patronage Secretary—a counter-attraction which I have noticed from long experience never fails to distract the Minister. But I hope, nevertheless, that he will give some attention to this matter and will suggest an alternative method—or at any rate will satisfy the Committee by explaining how these arrangements will be made public, how one will find them, what authority they will have and what authority they will give to anyone to demand a sum of money from the Ministry.

Suppose that a claim is satisfied—how does one establish one's claim against the Ministry? Does one have any legal claim or does one just trust to the good will of the Ministry that they will, in fact, pay the money over—because one knows the views taken by Ministries, that if one has no legal claim for something one should not have it, or should have it only after a long time? Under those circumstances, I hope that the Attorney-General will think that it is better to deal with the matter by some such course as is suggested by my hon. Friend, rather than have these very vague arrangements as set out in the Clause.

Amendment to the proposed Clause negatived.

Motion made, and Question proposed, "That the Clause be added to the Bill."

The DEPUTY-CHAIRMAN proceeded to collect the voices.

Lieut.-Colonel Lipton

On a point of order. I was on my feet before the Question was put, Mr. Hopkin Morris.

The Deputy-Chairman

I had not finished collecting the voices.

Mr. E. Fletcher

On a point of order——

The Deputy-Chairman

There is no point of order. I had not finished collecting the voices. Colonel Lipton.

Lieut.-Colonel Lipton

I was awaiting with interest such answers as would be forthcoming from the Attorney-General. I am inclined to think that in respect of this particular Clause both the Home Secretary and the Attorney-General have rather fallen below the usual standard of fairness and reasonableness that we expect from them.

Their attitude as far as I can gather is this. An agreement, or some agreement, or a series of agreements, may be made between H.M. Government and the United States Government on the subject of claims. The Clause which we are seeking to amend is to be a Clause which, when this Bill becomes a statute, will be referred to more often by lawyers and claimants than any other part of the Bill.

It is, therefore, of particular importance that this Clause at least should be as clear and comprehensible as possible for all those people who may have occasion to refer to it in pursuance of such claims as they may be justified in making. It may well be, as has been pointed out, that it is not possible for a variety of reasons, which have not yet been fully explained, to incorporate the agreement in the actual statute. It may well be that there is some technical difficulty in including the arrangement in an Order in Council.

We know from a very brief interjection by the Attorney-General that at least this agreement is going to be published. That is, so far, the only minute crumb of consolation we have been able to extract from the Government after some considerable argument. At least we know now that it is not to be incorporated in a statute, that it cannot be included in an Order in Council, and that it is to be published. Before we can decide whether the Committee should divide or not. [HON. MEMBERS: "Divide."] I was saying that, before I should feel justified in coming to a decision on whether I should ask the Committee to divide or not, I should like to know what the Attorney-General means by this brief intervention, when he said the agreement is to be published in some form. By some misunderstanding—I hope it is not more than that—he has so far been prevented from amplifying it to the Committee.

I appeal to the Attorney-General. I ask him to give just a little further information to the Committee on the manner in which this agreement is going to be published, so that claimants may know, without having to write to their Members of Parliament, and by reference to some easily accessible publication of some kind, what procedure to follow in order to establish their claims. I hope that before we leave this particular matter the Committee will have some information as to the form in which this agreement or knowledge of this agreement is available to the general public.

Sir F. Soskice

I do not want to intervene at any length at this stage of the discussion, but may I make this suggestion to the Attorney-General? What my hon. Friends want is simply to be able to see in the terms of some statutory enactment, that is to say, a Clause of this Bill or an Order in Council, the domestic arrangements, that is to say, not a foreign arrangement, but the domestic arrangement which the Minister is to make under the terms of which he will see the claims are satisfied.

I think there has been a certain amount of misunderstanding on the right hon. and learned Gentleman's part. The Attorney-General, in reply to my hon. Friends, said we cannot make an arrangement with a foreign country by Order in Council. Nobody on this side of the Committee has suggested we can. It is quite obviously the case that arrangements made with a foreign country cannot be made by an Order in Council, but that they must be the result of negotiation. Presumably, in due course the arrangement will be put down on a document or other form of understanding between Her Majesty's Government and the foreign Government in question.

All my hon. Friends want is something quite different from that. They do not want that to be made by Order in Council. They have not asked for that. What they are saying is that, no doubt, the Minister of Defence, in due course, must make certain arrangements, draw up some form of scheme, and that scheme will follow closely the agreement he has negotiated with the foreign Power concerned. What my hon. Friends want is that the citizen of this country shall know what his rights are in the scheme the Minister makes in respect of claims he has, and that they should be set out in the Order in Council.

The Attorney-General has steadily refused to make any concession. He has, as I understand him, refused to give even consideration to the arguments that have been advanced. I hope he will think over that again. I think he has been unreasonable about this. He has misunderstood the case put to him. If I may put it to him again, so that he can understand it, the case of my hon. Friends is that the scheme is set down on some piece of paper with the terms of the arrangements by which the citizens of this country are entitled to recover. It can be set out in a document. If that is set down the citizens of this country will know what their rights are and know where to look to find their rights.

2.45 a.m.

My hon. Friends naturally will press this, because as the Clause reads at present it does not provide for the domestic arrangement—I repeat, the domestic arrangement—to be set out in any way in which it will be available to the ordinary citizens. That is what my hon. Friends want. I hope that the Attorney-General will give further thought to it. He will have to consider the actual scheme. Surely it can be done. I put it to him that he is being obdurate and unreasonable in closing his ears to what is a perfectly sensible suggestion from this side of the Committee.

The Attorney-General

I should like to read what my right hon. and learned Friend said when he was moving the Second Reading of the Bill and which appears to have been overlooked. It is wrong to say it has not been dealt with. He said: When the Bill is passed and the agreement is ratified, and when these necessary supplementary arrangements are made, appropriate steps will be taken to give public notice of the procedure to be followed by persons who have claims against a member of a visiting force. In the meantime, however, I will explain to the House in general terms what arrangements are contemplated."—[OFFICIAL REPORT, 17th October, 1952; Vol. 505, c. 573] The view taken is that it is not appropriate to put that in the Bill. [HON. MEMBERS: "Why?"] Complaints have been made, and I hope I shall be allowed to answer them. In 1942, I understand, a public notice was issued, and we are perfectly prepared to see what is the most appropriate form. We do not consider the appropriate form is in to put it in the Bill.

Mr. Bing

Surely the hon. and learned Gentleman is misunderstanding what the Home Secretary said. The Home Secretary said, "We do not want to put it in the Bill," but the Amendment does not propose it should be put in the Bill, but that it should be stated in Order in Council which will be the appropriate paper and available to Parliament. The Home Secretary was objecting to writing details of the scheme in the Bill, and that is not what the Amendment proposed to do. It is suggested it should be done by Order in Council, and in those circumstances the whole procedure of Statutory Instruments would secure adequate publication of the details of how a claim came to be made. I hope the Attorney-General will look into it again. It seems a reasonable proposition. It is a poor service to the Home Secretary in his absence not to include in the Bill what he had thought of and hinted at doing himself.

The Parliamentary Secretary to the Treasury (Mr. P. G. T. Buchan-Hepburn) rose in his place, and claimed to move, "That the Question 'That the Clause be added to the Bill' be now put."

Question, "That the Clause be added to the Bill," put accordingly, and agreed, to.