HC Deb 17 April 1917 vol 92 cc1587-93

It is hereby declared that where the fulfilment by any person of any contract is interfered with by the necessity on the part of himself or any other person of complying with any requirement, regulation, or restriction of any Government Department, or of a competent naval or military authority, that necessity is a good defence to any action or proceeding taken against that person in respect of the non-fulfilment of the contract so far as it is due to that interference.

Sir G. HEWART

I beg to move, after the word "contract"["any contract is interfered with"], to insert the words "not being a contract of tenancy."

This Clause is supplemental to Clause 2. Clause 2 relates to contracts of tenancy, and Clause 3 relates to other contracts interfered with by requirement of a Government Department. The words of Clause 2 are, "Where, by virtue of any contract of tenancy, any person is bound to do or abstain from doing, or is under any liability if he does or abstains from doing, any act or thing," and so forth. And, in order to make Clause 3 come spond, I propose to insert these words, "not being a contract of tenancy," in Clause 3. The Clause will then read, "Where the fulfilment by any person of any contract, not being a contract of tenancy, is interfered with," and so forth. Clause 2 relates to a contract of tenancy, and Clause 3 does not, and I propose to make the distinction perfectly plain.

Mr. O'SHEE

Has the Solicitor-General considered the case of sureties to a contract? This Clause 3 does not appear to cover the obligation of the sureties. The person referred to in the Clause is the person whose contract is interfered with by the requirements of the Government Department. That does not affect the obligations of the sureties, and it seems to me that they could be sued in respect of that very contract. The right hon. Gentleman has omitted altogether, so far as I can see, to consider the case of sureties.

Sir G. HEWART

I am glad the hon. Gentleman has called my attention to this matter, which, however, has been fully and carefully considered. Where the principals are discharged from the performance of a contract, the sureties are not liable.

Mr. CLANCY

Before the House rose for the Easter Recess attention was called to this very point of sureties, and I had upon the Paper an Amendment dealing with it. I attended here for a week, night after night, in the hope that my Amendment would be reached and dealt with, but subsequently I found that on one night at ten o'clock the whole of the business of the House was finished while I was absent. I had gone away under the impression that something would be done in regard to this question of sureties, and I consider the Government have committed a great breach of faith. I hope it will not be considered a breach of confidence if I say that I spoke to the Solicitor-General about my Amendment, and I pointed out particular cases with regard to Dublin in which grave injustice would be done if some Amendment were not inserted for bringing in the sureties, so as to ensure that they should not be altogether scot free if any variation were made in the contract by the Court. The Solicitor-General pooh-poohed me, and I think he scarecely listened to it; but I had it in my mind that I would explain the Amendment to the House and submit my argument to hon. Members in support of it. As I said, I had waited for my opportunity night after night, but found that on one evening the Government had discharged their business at ten o'clock at night. This Bill was the next in order, but they refused to go on, and I therefore think that the proper course to pursue now is to invite the Chief Secretary to say whether or not we should not deal with this matter in another place, or, if that be not possible, he will take action now on this Clause. I acknowledge that my remarks may be somewhat irrelevant to the Clause actually under consideration, but I thought I would avail myself of this opportunity of drawing attention to the point, in regard to which there has been a departure from a pledge given on the part of the Government.

Mr. O'SHEE

I want to refer to what my hon. and learned Friend has just said. The Solicitor-General has said that there can be no proceeding against the surety where the principal to the contract under this Clause is not liable. But it is quite clear that on the words of the Clause that sureties are not relieved? At the end of the Clause the words are, "that necessity-is a good defence to any action or proceeding taken against that person in respect of the non-fulfilment of the contract so far as it is due to that interference." That is interference by a Government Department, and the person concerned is the party to the contract. The sureties do not take part in the business of the contract. The only point which concerns them is that they are under a penalty in case they become responsible under their obligation. There is no good defence for them, therefore, because the good defence is expressly confined to the person of any contract interfered with by the necessity of complying with the requirement, regulation, or restriction of any Government Department. I cannot see why the Solicitor-General, if he wants to have his law clear, should not now make it clear in the case of sureties.

Sir G. HEWART

Two points have been raised, one in reference to Clause 1 and one in reference to this Clause. I will deal, first, with the present Clause. If I follow the hon. Member, the complaint is that Clause 3 does not in express or in sufficient terms apply to the case of sureties, and I am asked to make the law more clear. If the hon. and learned Gentleman will again look at the Clause he will see that it is reasonably clear. It is provided by the Clause that certain events, if they happen, are to be a good defence to any action or proceeding taken against a person in respect of the non-fulfilment of a contract, so far as it is due to the kind of interference with which the Clause is concerned. If the hon. and learned Gentleman looks back at the early part of the Clause he will find that the interference which is spoken of is a necessity on the part of himself or any other person. I cannot imagine that in those circumstances a surety could be with success sued. With regard to Clause 1 I was a little surprised to hear that the hon. and learned Member was not satisfied with the attention I gave to the observations which he made about the Amendment he proposed to move. I thought I satisfied him that the point which he proposed to raise was not a point which it was necessary to raise.

Mr. CLANCY

The conversation lasted two minutes.

Sir G. HEWART

When the Bill came on the hon. and learned Member was not in his place, but he is entirely mistaken if he thinks that for that or any other reason his Amendment was not carefully considered. My answer to him was, and still is, that an Amendment that there should be power to bring the sureties before the Court is unnecessary, for this reason: If the sureties were not before the Court they could only be relieved by the action of the Court and if it was not desired that they should be relieved the party who thought so could and would bring them before the. Court.

Mr. CLANCY

Does the hon. and learned Gentleman seriously say that any Court of the land would make an order adversely affecting a party not before the Court?

Sir G. HEWART

So far from saying that, I have affirmed the exact opposite. What I said was that if the sureties were not there, and if the Court suspended or annulled the contract, that is not something adverse to the sureties, but relieves them.

Sir G. YOUNGER

May I ask whether the Clause as it stands goes so far as to protect people bound by debenture deeds in certain cases with regard to certain premises?

Sir G. HEWART

It is a little difficult to decide whether the terms of the Clause cover a particular case or obligation when all the materials are not before one, but if I rightly follow the question the hon. Baronet has put to me, that kind of case is covered.

Amendment agreed to.

Sir G. HEWART

I beg to move, after the word "authority"["naval or mili- tary authority"], to insert the words "under any enactment relating to the defence of the realm."

The Clause as it stands provides:" Where the fulfilment by any person of any contract is interfered with by the necessity on the part of himself or any other person of complying with any requirement, regulation, or restriction of any Government Department, or of a competent naval or military authority." In the Clause for which this was substituted there were words limiting its scope to acts done under Acts relating to the Defence of the Realm. I propose, therefore, to insert those words here. The effect is to limit the scope of the provision, and it was always intended that some such limitation should be inserted.

Mr. POLLOCK

I hope that the learned Solicitor-General will not introduce these words for this reason. As I pointed out on the previous Clause, this provision would not cover particular power which has been exercised by the naval authority or Admiralty. That is a sort of power or title paramount or prerogative, not dependent on any statute or any regulation, and not covered by the Clause as originally drafted. If you insert these words you limit the naval or military authority to the statutory powers. Thus you precisely avoid giving protection that was desirable and would have been useful in a case called to my attention in which the Admiralty insisted upon what I may call a prerogative right which did not depend on any statutory authority. That is one of the main reasons I had in my mind when I moved this particular Clause. I did so on a request made to me by one of the learned leaders in the Courts who directed my attention to this power of the Admiralty. I think these words proposed are unfortunate, because they bring back the restriction to those vested in the authority by Statutes. I can well believe that in the number of matters which he has had to attend to the hon. and learned Gentleman may have overlooked the point I put to him, but I hope he will look further into the words, and that if he proposes to put them in in the case of the military authority, he will limit the provision so as to cover the point which I put to him.

Mr. PETO

I desire to reinforce what has just been said. When this Clause was put in substitution for what was Clause 2 of the Bill the building trades, who are very much interested in this Bill, immediately wrote to me to know what this meant. They took the most careful and most thorough legal opinion on the Clause. They saw that it was a fair substitution and better than the Clause as originally drafted, and were satisfied with it. The House has not been sitting for the last ten days, and I really do protest against Amendments that are not. so far as I am aware, even in manuscript but merely read out on the Report stage, altering the words of a Clause which has been the subject of minute consideration by parties outside this House and which they have been prepared to accept. What reason is there why we could not have had these Amendments printed some time within the last ten days, and so know where we are? Therefore I must protest as strongly as possible against the Solicitor-General making this further Amendment in this Clause. The other was more or less verbal, but this is of substance, and I do not know that it is at all certain that it does not mean litigation and disputes as to whether particular interference with the contract is under Regulation of the Defence of the Realm or not. I do not know whether ordinary powers of requisition constantly exercised can be properly held to be under special Act passed for the period of the War only. It seems perfectly unnecessary from the lay point of view to introduce this limitation It does not matter to the contractor who has got to perform the contract if the Government stops the performance of the contract whether they act under one authority or another. I ask that the party should not be required to show the particular authority at all vested in the Government, but that the fact that the Government so interfered should be quite sufficient reason for the contractor getting relief provided by this Clause. I can see no reason for the Amendment, and I can see strong reason against it.

Sir G. HEWART

The words which I had first thought to introduce were these, "made or imposed for purposes connected with the present War," but I have proposed these other words. It is desirable that there should be a restriction of some kind. But I readily recognise the difficulty of discussing a matter of this nature upon an Amendment which has not been printed, and therefore I will not now persist with this Amendment. Before the Bill becomes law I will take another opportunity of considering words that may fulfil the object which the Government have in view.

8.0 P.M.

Mr. POLLOCK

Perhaps the House will allow me to thank the Solicitor-General for undertaking to 8.0 P.M. consider this matter. I quite appreciate the intention he has, and I am sure that if words can be found he will define the object the meaning of which he has stated.

Sir W. PEARCE

I hope the Solicitor-General will give due weight to this matter. The words "for the purposes of the War" seem to me to meet the situation, but I know cases in which instructions have been given which were not actually covered by any particular provisions in the Defence of the Realm Act. They were instructions which could not be disregarded, but it might be disputed whether they were covered by any provision in the Defence of the Realm Act. I think if the form taken is "for the purposes of the War" it will meet the objection, but I think something of the kind ought to be done.

Amendment, by leave, withdrawn.