§ The Coal Controller or the President of the Board of Trade may be sued for any breach of the above recited agreement, or for a judgment declaratory of any rights thereunder.—[Mr. Roch]
§ Brought up, and read the first time.
§ Mr. ROCHI beg to move, "That the Clause be read a second time."
I do not know what the Solicitor-General will say to this, but I think he will agree that if he were not a law officer of the Crown and any aggrieved person came to him and said: " This agreement has been broken, and what am I to do? " he would have difficulty in advising him whom he should sue. So far as my knowledge of the law goes, I believe you cannot sue a servant of the Crown in contract unless it is specifically stated in the statute that creates him that he can be sued. The Solicitor General will recollect that in the recent shipping case both he and the Attorney-General specifically took the point that the Shipping Controller could not be sued, and that no action would readily lie against him. The learned judge ruled against them because the Shipping Controller was sued in tort and not under contract. To the shipowners themselves this is a very serious contract which is enforced upon them with the Food Controller, and they should have a clear right of action for any breach of the contract into which they have entered. The second point of the Amendment is that they should have the power to ask for judgment declaratory of their rights. I have looked through this agreement more with a practical knowledge of accountancy than as a lawyer. I should be very sorry 1955 to give any opinion as a lawyer, but I think the coal-owners have taken two of the very best opinions that can be taken outside the Solicitor-General and the Attorney-General, who, of course, are accepted as giving the best two legal opinions that it is possible to have on any question of law; but, unfortunately, we cannot discuss the agreement or amend it, and it is only on the question that the Schedule stand part that we shall have an opportunity, as we hope, to-night of having some guidance from the Solicitor-General. That being so, and a very grave question being involved, I think we should give a clear and specific right to these owners to obtain from the judges of the land a declaration of what exactly are their rights under this agreement. The Solicitor-General may say, "You have your remedy by a petition of rights "; but a second legal advice which has been taken is to the effect that the petition of rights could be taken to the House of Lords with a sporting chance to win it. The Solicitor-General used a sporting phrase when he spoke of a thousand to one chance, but I do not know whether taking the petition to the House of Lords would have a thousand to one chance to win. I think it should be made clear what rights these people will really get under this contract, and they should be told whom they can sue, and who will have the right to do it. I think that should be shown perfectly clearly. The Solicitor-General, speaking according to the honourable traditions of his position, and as legal adviser to the House of Commons, irrespective of the Government of which he is a member, should make clear, before the Bill passes into law, that the remedy that everybody has under this contract shall be precisely the same as under any ordinary commercial contract.
§ Sir G. HEWARTThis proposed new Clause deals with two quite different things. It deals, first of all, with the question whether the Coal Controller or the President of the Board of Trade may be sued for breach of agreement; secondly, it deals with the question whether these officers shall be liable to be sued for judgment declaratory of rights,. I assure my hon. Friend, with regard to the second of these provisions, that it is quite superfluous. It cannot be denied that the Food Controller could be made defendant in, an action for declara- 1956 tion of rights. I do not think anyone will seriously contend the contrary. Therefore I venture to suggest that that part, at any rate, of the new Clause is superfluous. With regard to the antecedent part, " The Coal Controller or the President of the Board of Trade may be sued for any breach of the above recited agreement," I respectfully agree with what the hon. and learned Member said that in the absence of statutory provision to that effect those officials could not be sued in respect of damages for breach of contract. And I agree that it is right and in consonance with recent legislation that officials holding such positions should be expressly made liable to be sued But the Statutes that contain such a provision not only provide that such persons may be sued but they also provide that they may sue. Therefore I would suggest that the new Clause should be moved in this form: "The Coal Controller or the President of the Board of Trade may sue or be sued for breach of the above recited agreement." I leave out the word "any." I hope that that suggestion will meet the point of substance raised.
§ Mr. ROCHI am very grateful to the Solicitor-General, and I will, of course, accept his suggestion.
§ The CHAIRMANIt is better to read the Clause a second time, and then insert the amending words.
§ Clause read a second time.
§ Amendments made: After the word "may" ["may be sued"], insert the words "sue or";
§ Leave out the word "any" ["any breach "];
§ Leave out the words "as from a judgment declaratory of any rights thereunder."—[Mr. Roch]
§ Clause, as amended, added to the Bill.
§ The CHAIRMANWith regard to the two Clauses (Power to Make Levy in Special Cases) (Arbitration), I think those are both variations of the agreement.
§ Sir W. BEALEAs to the first proposed new Clause, I gather that you hold that although it is collateral in adding to the agreement, yet it refers to the terms of the agreement. I do not wish to argue that point, but that is what I understand to be your ruling. The second proposed new Clause has nothing to do with the 1957 agreement. It was put in consequence of suggestions made in another place. One of the reasons for it, as I explained to the Solicitor-General, was that he might find it a way of mitigating the rather absolute powers which are given to the Controller, and which he has represented that he is going to take into consideration, and therefore I do not move.
§ The CHAIRMANI have already dealt with the subsequent Amendment (Mr. Holt). As to those proposed by the hon. Gentleman the Member for Inverness Burghs (Mr. A. Bryce), the same ruling applies. The Clause of the hon. Member for Pembrokeshire (Mr. Roch) (Saving Rights, Under Section 41 of the Act) clearly is in the agreement, if it is not itself a variation of the agreement. The same applies to the Clause of the hon. Member for South Wolverhampton (Brigadier-General Hickman) (Information Given Under the Agreement, etc.) I have already dealt with the suggested Clause of the hon. Member for Barnsley (Sir J. Walton) (Appeal to Referees as to Payment of Dividends or Repayment of Loans).