§ Order for Second Reading read.
§ 4.0 P.M.
§ The SOLICITOR-GENERAL (Sir E. Pollock)
I beg to move, "That the Bill be now read a Second time."
The Bill covers a very considerable area of ground, and I will try to explain, to the best of my ability, the way it is desired in the Bill to meet the difficulties which have arisen. The Bill is one which has been very carefully prepared. It is not a Bill which has been suddenly and hastily drafted and brought to the House. It has been prepared with deliberation, and all information has been obtained as to what are the matters which must be covered. An Indemnity Bill is not uncommon after a war, but this War has been waged in so many parts of the world, and has covered so wide an area, that it is necessary to include matters in it, perhaps, which would not have been necessary in the case of other wars, and perhaps some complexity might appear to have been introduced.
Let me point out that the Bill really divides itself into two, or, perhaps, three parts. The first part deals with the indemnity granted to persons who have carried out duties for the purpose of maintaining discipline and order, and have done other executive acts; side by side with that the Bill proposes to validate certain acts of courts and of regulations made in various parts of the world. The second part or chapter of the Bill is that which deals with the question of compensation. In this War we have had hostilities not only in Northern France, but, it must be remembered, the War has been waged in Mesopotamia, Palestine, and in a number of still more remote regions, more accessible to our Dominions, and where the sons of our Dominions have shown their valour alongside the Imperial forces. The necessity for validating acts that have taken place there is because in some countries which are now being mandated to our colonies, or have been, and which will be, governed under the Foreign Jurisdiction Act, there has been an interregnum before the new Government was introduced, and what has taken place must be provided for. In German South-West Africa, for instance, German 1742 New Guinea, Samoa, German East Africa, and Togoland, quite apart from the hostilities that have taken place, there came the period when they were surrendered by our enemies, and during that time, varying in duration, there was a control exercised not merely by the military authorities over military persons subject to military law, but, for the purpose of the maintenance of good order and discipline, there was control exercised over civilians.
German New Guinea furnishes a good illustration of this kind of case. The law that prevailed in German New Guinea at the time was German law. When it was occupied by the Colonial or Imperial forces the law had to be administered on behalf of the Imperial authorities. During the course of that occupation judgments were given by various courts and ministerial acts took place, and indeed, internal law was administered in a manner not consonant with German law. I think I am right in saying that the provision existed in the colony at that time that all proceedings should take place in German. It will hardly be surprising that that specific Regulation was not adhered to. There were specific Regulations in being according to law as to marriages, transfers of land, and as to dealing with land subject to control, or which would be controlled by the competent authority. In all these matters there had to be the exercise of discipline and control by the forces that were there for the purpose of maintaining order and discipline, and that before any settled government had been instituted. The principle has now been adopted in many of these territories, such, for instance, as German South-West Africa, for which a mandate has been granted to the Union of South Africa. There are certain periods of time during which action has taken place, and in respect to which the validating powers of this Parliament may be necessary, or at any rate, it is better to have them in being.
Let me explain that where new territory is either taken over by our Dominions, or where a mandate has been granted to our Dominions, it would be perfectly possible for our Dominions, by an Act of their Legislature, to validate acts which have been done by those persons who are subject to their jurisdiction and control. But, as I have pointed out, 1743 there may be an intervening period for which it is necessary to have the sanction of the Imperial Parliament. It must not be supposed, coming to the persons who are to be brought within the ambit of this Bill, that it will be necessary merely to deal with the acts of soldiers or naval officers. There have been a great number of other persons engaged in various duties. As an illustration of such cases I may refer to the actions of the authorities acting under the Ministry of Munitions in France and in Belgium, and also the acts of salvage officers who have, since the War, been exercising powers in respect to salvage which had to be dealt with and cleared up.
For all these purposes it is necessary to have this Act of Indemnity. I, therefore, ask the House to allow me to call attention to the actual Clauses which are embodied in the Bill for the purpose of carrying out the purposes of which I have spoken. In Clause 1, Sub-section (1)—
No action or other legal proceeding whatsoever, whether civil or criminal, shall be instituted in any court ……. if done in good faith.The House will mark how wide and how important is the qualification
if done in good faith, and done or purported to be done in execution of his duty or for the defence of the Realm or the public safety, or for the enforcement of discipline, or otherwise in the public interest, by a person holding office under or employed … whether naval, military, Air Force, or civil, or by any other person acting under the authority of a person …If the House will turn to Clauses 5 and 6, hon. Members will see that in Clause 5
Any sentence passed, judgment given, or order made by any military court …. in connection with the War, or by any court established for the administration of justice within any territory in the occupation of any of His Majesty's Forces …. shall be deemed to be valid ….I hope the House will observe the important words I have omitted in my reading of that Sub-section. Those words are
(other than a court-martial constituted in pursuance of any Statute).I would mention these words for the purpose of making this comment. It was not, and is not, intended to introduce sentences of courts-martial within Clause 5, and for this reason: Courts-martial stand on quite a different footing. They are largely dealt with by Acts of Parliament. Whether naval or military, 1744 a code or system prevails in respect of them, and their sentences are subject to review either by the Judge-Advocate-General or the Judge-Advocate of the Fleet. It would not be right to alter this system. Courts-martial must be dealt with, and must continue to be dealt with, by the authority to which I have referred. If exception is taken to them on any of the usual grounds, that exception can still be taken, and it is not intended by any operation of this Bill to validate any irregularities of the acts of courts-martial. On the other hand, Clause 1 would cover cases of officers who have sat upon a court-martial which has been imperfectly convened. I do not know whether hon. Members are familiar with the difficulties, I might almost say the complexities, of convening various courts-martial. In one case the officers are one rank, and in another they have to be of a different rank, while in the case of another court-martial a man holding temporary rank, or perhaps not holding rank at all, has been summoned by the conveners to take part in a court-martial, and has done so. For that exercise of jurisdiction Clause 1 would indemnify him, and I think rightly so. He has been summoned, possibly against his will, in the belief that he was a competent person to sit upon the tribunal, and no action for malicious prosecution or false imprisonment ought to be brought against him. On the other hand, whatever the decision of the court-martial has been, that decision would be open to objection on the same grounds as any other court-martial, and would be no less exposed to revision and review by reason of the fact that the officers who sat upon it did not in fact hold the particular rank which it was supposed they had, and because of which they were invited to take part in the proceedings. Therefore, under Clause 1 we are giving protection to all persons who took part in proceedings, whether civil or military, in the various parts of the globe where their duty called them, and we are giving validity under Clause 5 to sentences passed by those courts set up in those territories temporarily occupied, and in which it was necessary to maintain order to secure civil freedom.
§ Sir F. BANBURY
Before the right hon. and learned Gentleman leaves 1745 Clause 1, may I ask him whether that clause would have the effect of upsetting a decision of one of His Majesty's Judges of the High Courts of this country?
§ Sir E. POLLOCK
I hope my right hon. Friend will allow me to proceed. I do not think that I have failed to deal with matters, but it is a little inconvenient for me to break away from the trend of my argument. I have to deal with a good number of points, and the point which he mentions will come better at a later stage of my statement.
§ Sir E. POLLOCK
I cannot imagine my right hon. Friend allowing me to forget a single point. Clause 6 validates laws, ordinances, and proclamations and other legislative acts made, issued, or done by the authority for the time being administering any territory in military occupation. I have, I think, sufficiently indicated to the House the sort of clauses and ordinances to which I am referring, and which have been passed by the authority which de facto was exercising control over the occupied territories. Let me also point out that in Clause 7 care is taken not to interfere at all with the powers of self-governing Dominions, because in many cases, and. perhaps in most cases, they will be able to pass Acts of Indemnity which will be sufficient to indemnify persons in their jurisdiction, and we have no intention by an Imperial Act even of appearing to invade the legislative territory which rightly belongs to them. At the same time, inasmuch as there may be a period during which acts may have been done by Imperial officers, or persons acting not with the authority of the Government of the self-governing Dominions, it is necessary to fill up that lacuna by validating the acts that have been done, and that is done in the manner in which I have pointed out in Clauses 1, 5 and 6 of the Bill. Clause 7 gives power, by Order-in-Council, to apply this Bill to India, and I observe that two or three hon. Members have put down a Motion to reject the Bill on the ground, as stated in the Motion, that it will prevent bringing to trial those responsible for the massacres at Amritsar. I must remind the House that at the present moment an 1746 Act has been passed in India for the purpose of granting indemnity for acts done during a considerable period, from March to August of last year. I do not know the actual terms of that Act, but an Act of Indemnity has been granted.
Amritsar was not in mind when the question of extending the Act to India was considered. Under the Indian system of government, there is no such thing as what is called a " Government Department," nor is there any officer holding the position which my right hon. and learned Friend the Attorney-General holds here, nor were the Defence of the Realm Acts or any of them which were passed here made applicable to India. There was a Defence Act of India passed in India, and special tribunals were set up to carry out the methods of compensation in India, because, under the powers of the Defence Act of India, the output of factories was taken, imports were restricted, and rules for public safety were made. All those were made under the special legislation of India. Hon. Members will know that the Secretary of State for India, I think under Section 65 of the Act of 1858, was made a possible defendant in actions which could have been brought against the East India Company. That power to sue the Secretary of State at home still exists. It has been preserved by Section 32 of the Government of India Act passed in 1915. Therefore, although actions were done in the matter of taking over factories, making regulations for public safety, and dealing with other matters which have been subject to special war legislation at home, and all of which were adequately dealt with under the system of Government in India and by Acts which applied to India, still there might be an opportunity to sue the Secretary of State for India at home under the powers which are preserved under Section 32 of the Government of India Act, 1915, and it may be necessary to apply the powers which are taken under this Act in order that the same defence may be open to persons who could be sued over here in respect of transitory actions for which there would be an indemnity under the legislation of India. It is for that reason that powers are taken under this Bill relating to India.
§ Lieut.-Commander KENWORTHY
The right hon. and learned Gentleman 1747 has dealt with cases of factory legislation, and so on, but our Amendment is aimed at the Bill because it prevents impeachment by this House of certain representatives of the Crown. Will the right hon. and learned Gentleman deal with that point?
§ Sir E. POLLOCK
I was coming to that matter. I cannot say everything at the same time. It is a little difficult to make oneself as clear as one would wish—I have to deal with all sorts and kinds of subjects—if one is not permitted to deal with the various questions in the places which he has assigned for them in his observations.
§ Colonel YATE
Might I ask whether the right hon. and learned Gentleman, when he referred to the massacre at Amritsar, alluded to the massacre of bank managers and certain other Europeans by the mob or to the military operations taken to quell the mob?
§ Sir E. POLLOCK
I did not use the word "massacre." I did not say any thing about it. Whether my hon. and gallant Friend (Lieut.-Commander Ken-worthy) did so or not I do not know.
§ Sir E. POLLOCK
I am much obliged to the hon. and gallant Member. I referred to the Amendment in the name of the hon. and gallant Member for New-castle-under-Lyme (Colonel Wedgwood), the hon. and gallant Member for Central Hull (Lieut.-Commander Kenworthy), and another hon. and gallant Member, which is in these words:prevents the bringing to trial of those responsible for the massacre at Amritsar.I am not responsible for the use of the word, I merely read it out. I hope that the hon. and gallant Member appreciates that I do not adopt the word at all. I was endeavouring to explain the necessity for having powers by Order-in-Council to make this Act apply to acts done in India. I now come to certain exceptions. They are very important indeed. Hon. Members will see that Clause 1 is drawn in wide and very large terms, and designedly so, because, when one comes to consider all the various acts which have taken place and which were necessary for the purpose of carrying on the Government by the military during the occupation of territories, one sees that it is neces- 1748 sary to draw the terms very widely indeed in order that all cases primâ facie may be covered. There are two primary and fundamental conditions, however, before the indemnity can be secured. First, that the act shall have been done in good faith, and secondly, that it shall have been done or purported to have been done in the execution of duty. If acts which have been done do not fulfil those two qualifications, then they do not fall within this Bill. There are excepted from that Clause very important matters. First of all, the institution or prosecution of proceedings on behalf of His Majesty or any Government Department. That enables proceedings to be taken by His Majesty in any case where we think it right in the public interest that proceedings should be taken. As to civil and criminal proceedings hon. Members will observe that there is no time limit. There is a power left for the purpose of instituting or prosecuting proceedings on behalf of His Majesty's Government or any Government Department, and it does not include a private prosecution, which is perhaps what was referred to by my hon. and gallant Friend.
§ Sir E. POLLOCK
I really do not know what is impeachment. I have been some time at the Bar, but so far as I recollect, I have never known a case of impeachment, and I do not quite know how you begin or how you proceed. I understand the manner of instituting proceedings, either criminal or civil, and I would observe to the House that there is this power reserved without limit of time to institute proceedings where, in the interests of the public, it is considered necessary to do so. In Clause 1, paragraph (b), there is the right and power of any subject to bring proceedings in respect of any rights under, or alleged breaches of, contract, if the proceedings are instituted within one year from the termination of the War or the date when the cause of action arose, whichever may be the later. This provision is made in order that matters should not be held over until it is impossible to get evidence on either side, but particularly on the side of a Government Department, because Government Departments now, after the War, are being largely curtailed, and those who have particular 1749 knowledge of these matters may have passed away somewhere else, and may not be available to give evidence. Therefore it is necessary to give some direction that the action should be brought within one year from the termination of the War, and that means the termination of the war which has not come yet, or the date when the cause of action arose, whichever may be the later.
In paragraph (c) there is an exception allowing the institution or prosecution of civil proceedings founded on negligence in respect of damage to person or property elsewhere than in a foreign country. A large number of accidents have taken place in the case of motor cars being driven by persons in military and naval employ. An hon. Member asked me whether that would cover the power to bring proceedings where collisions occurred at sea. My answer is that those cases could still be brought into Court, because as I read this exception it is wide enough to include that case. If, however, there is any doubt about it, that is a matter for the Committee, and I should look sympathetically upon any Amendment that the hon. Member might move to that exception.
Then comes paragraph (d) which is a little more difficult. Cases have occurred where damage has been caused to persons or property in a foreign country and in respect of requisitioning property in a foreign country. For the purpose of dealing with those cases agreements have been entered into between ourselves and France, Belgium, and Italy under which, in order to make it more easy to bring proceedings where the witnesses are available and the cause of action arose, proceedings can be taken in those countries either against the French, the Belgian, or the Italian Government. The actions can be dealt with in the Courts available out there, and then the matter can be dealt with and adjusted as between the several Governments interested. A case may occur in Greece, Mesopotamia, or Palestine, where the conventions do not apply, and yet there may be good cause of action and the right to bring an action. Therefore this exception is drawn so as to enable the prosecution of civil proceedings in respect of damage to person or property in any foreign country if the Attorney-General grants his fiat for it, and if it is not a case in which other provision has already been made by 1750 treaty or convention. In other words, that means if it is not a case which arises either in France or Belgium or in Italy. In those three countries there is the right. It is not taken away in the other cases which I have particularly in mind, such as Salonika, Mesopotamia and Palestine. In those cases proceedings can still be taken, and only taken if the Attorney-General thinks it is a case in which the matter should proceed.
In paragraph (e) we have excepted the institution or prosecution of proceedings respecting the validity or infringement of a patent. A large number of patents have been used during the course of the War by the Government, and at the present time a Commission is sitting, under Mr. Justice Sargant, which is awarding compensation for the use of those patents to the owners of them, and that Commission will continue to sit until it has done its work. A Patents Act was passed last year, and special provision was made that the system which will eventually be our permanent system was not to come into operation until Mr. Justice Sargant's Commission had completed its labours. Of course, that Commission only grants compensation where a valid patent has been used. There may be cases in which the validity of a patent is contested, and it has been thought right to allow any owner of a patent to have the right to endeavour to establish the validity of his patent, and have an opportunity of asking for a claim before Mr. Justice Sargant's Commission. For that purpose we excepted under paragraph (e) the institution or prosecution of proceedings respecting the validity on infringement of a patent, in order that those who alleged that their patents had been used by the Government could make their claim good, and ask for adequate compensation from the Commission to which I have referred.
§ Sir JOHN BUTCHER
In cases where people have appeared before Mr. Justice Sargent's Commission and got compensation, will they be able to go to the law courts and ask for compensation on a higher basis with respect to that patent?
§ Sir E. POLLOCK
I am much obliged to the hon. and learned Member for giving me another ground showing the necessity for this Bill. I think he will agree that the words " the institution or prosecution of proceedings respecting the 1751 validity or infringement of a patent" are sufficient to exclude matters of compensation which have been dealt with before Mr. Justice Sargant's Commission. I am much obliged to my hon. and learned Friend for raising this point and I will consider it, and if other words are necessary, although I do not think they are, I will undertake to safeguard that point in Committee. I have pointed out the reasons why we have asked that the first Clause, together with Clauses 5, 6 and 7, should be accepted by the House.
There is one other Clause to which I must call attention very shortly. Clause 4 deals with the validation of proclamations which have been issued, or purporting to be issued, under Section 43 of the Customs Consolidation Act, 1876. Hon. Members will pass their minds back to the time when the submarine campaign was at its worst, and they will recall the present Prime Minister coming down to this House and for the purpose of making the best use of the tonnage available for bringing supplies, whether of food or raw material, to the United Kingdom, saying it was necessary to cut down the number of commodities which could be allowed to be imported, and a prohibition of imports was imposed by proclamation by an Order in Council under Section 43 of the Customs Consolidation Act, 1876. That power has been called into question, and at the present moment the decision of Mr. Justice Sankey stands that there is no power to make a general restriction or prohibition of imports. At that time the prohibition of imports was very important and essential, and it is by no means easy, if, indeed, it is right, to make a distinction, or to allow some actions to be brought by those persons who may desire to question that power while others freely and gladly acquiesced in that prohibition, because the ground on which it was based appealed to their common-sense as well as to their patriotism. Clause 4 is introduced to deal with that situation.
I now come to the other part of the Bill which brings me very nearly to the point with which the right hon. Baronet the Member for the City of London (Sir F. Banbury) wishes me to deal. I know why the right hon. Baronet wished me to deal with this point. I remember that when the Defence of the Realm Act, 1915 (No. 2), Bill was before the House he moved an Amendment, and so I thought I 1752 could get to the point at which I could find common ground between us. My right hon. Friend took great interest in this matter, and we are always fond of our own children. I recognise the watchful care which the right hon. Baronet has always shown on matters which so often present to other hon. Members some difficulty and complexity. When the Bill to which I refer, which is now an Act, was before the House, it was known as the Defence of the Realm, 1915 (No. 2), Amendment Bill, and it gave power to the executive to requireAny work in any factory or workshop to be done in accordance with the audit of the Admiralty or the Army Council to regulate or restrict the carrying on of work in any factory or workshop, and removing plant therefrom with a view to increasing the production of War material in factories and workshops and to take possession of occupied premises and so on.It was an Act passed for the purpose of enhancing the production of the country with a view to increasing the supply of munitions. When that Bill was before the House my right hon. Friend asked whether it was determined to give compensation in all these cases. I do not suggest that he actually moved the Clause, but he put one down which, as he must have known, was out of order. What I want to call attention to is the fact that he raised the point in the only way he could raise it. He put a Clause down for the purposes of discussing what sort of compensation was to be given in these cases. The matter of compensation was very carefully discussed in the House and the present Prime Minister, who was then Chancellor of the Exchequer, on the question of what compensation should be paid, said:Instead of 'business as usual ' we want ' victory as usual,' and you cannot have that unless everybody in the community is prepared to suffer all kinds of inconvenience, and, if necessary, sacrifice. I do not think you can therefore hope to have the same complete measure of compensation which you would enforce in time of peace, where you take one man's property for the benefit of the public. After all, this is for the general defence of the Realm."—[OFFICIAL REPORT. 10th March, 1915; Vol. 70, col. 1460.]Then the right hon. Gentleman went on to refer to M. Thiers' well-known speech in 1871 in which he discountenanced compensation for injuries received in France. My right hon. Friend the present Leader of the House carried the matter a little further:—Nobody has the right to expect that he is going to be scot free, not only from incon- 1753 venience, but from loss of money in a case of this kind. All I would ask is that what the Chancellor of the Exchequer has said should be quite clear to all the officials responsible for administering these powers."—[OFFICIAL REPORT, 10th March, 1915; Vol. 70, col. 1463.]Then, a little further on, some other hon. Members, including, I believe, the then hon. Member for Cork (Mr. T. M. Healy), said that compensation ought to be given as of right. The then hon. Member for Exeter (Mr. Duke), now the president of the Probate and Divorce Division, pointed out the great difficulty that would arise if compensation was given in all cases and to the full. The Prime Minister had put it in this way, thatthe doctrine of compensation can be so over-elaborated that a demand can be put forward on behalf of a man who indirectly suffers from the effects of engineering works being taken over. If you begin that you would find that the whole community suffers. If you began to limit your engineering output, the community suffers undoubtedly. But we have all to contribute in the measure of inconvenience which we bear towards bringing this terrible War to a successful and triumphant issue for our country."— [OFFICIAL REPORT; Vol. 70, col. 1462.]To avoid the over-elaboration the suggestion which was made by the then hon. Member for Exeter was this, that a Commission should be set up by statute, and that the statute should declare that the duty of the Commission was to ascertain what payment, in its opinion, ought to be made ex gratia by the Crown in relief of the burden which the War had thrown upon the individual citizen. The hon. Member for Exeter said:That would, I believe, avoid any of the danger, which I regard as a serious danger, of enormous costs of arbitration arising out of the statutory scheme of compensation."— [OFFICIAL REPORT, 10th March, 1915; Vol. 70, col. 1,491.]These were the views expressed to the House on that question when the issue was directly and clearly raised by my right hon. Friend (Sir F. Banbury) as to what compensation should be paid in cases where factories or factory machinery was taken over, or where accommodation was taken over for those who worked at the factory. In consequence of that Debate a Commission was set up which has been known as the Duke Commission, and the Prime Minister announced the terms of reference, namely, to give to applicants compensa 1754 tion for direct and substantial loss incurred, and damage sustained by reason of interference with their property or business in the United Kingdom, in the exercise by the Crown of its rights and duties under the Defence of the Realm Act. On that occasion the Prime Minister said:We rather want to get out of expert lines. They have been so much in the habit of estimating compensation upon very elaborate and settled principles which introduce all sorts of elements that we are not anxious to have introduced into the determination of this question. We thought, on the whole, it would be better to get men whose standing would commend them to the confidence of the country generally as fair-minded men rather than men who were experts in any particular line."—[OFFICIAL REPORT, 10th March, 1915, vol. 70, col. 1,847.]I have called attention to these passages for this reason, that I want to remind the House that on this question of compensation it cannot consider itself uncommitted to the principle which underlies the system of the Duke Commission. It is not fair to say that the whole system of compensation is one which has been set up in defiance of private rights by the Executive. What would be much nearer the mark would be to say that this House in the consciousness that private rights would be invaded, considered after Debate that an invasion of private rights should not receive compensation for indirect damage but would only receive it for some direct or substantial loss. This House assented to the passing of the Bill on the terms of the Duke Commission, and that Commission was set up to give compensation on those grounds only.
§ Mr. RONALD McNEILL
Did the House at that time understand that they were taking away the right of resort to the Courts?
§ Sir E. POLLOCK
I think the passage which I read and which I may now repeat from the speech of the Member for Exeter covers that point:—I venture to suggest to the right hon. Gentleman, as something of a new departure is going to be made, as the Government is going to recognise by its public promise in the House of Commons its duty of considering the question of compensation, whether it should not set up by Statute a Commission, and that the Statute should declare that the duty of the Commission is to ascertain what payment, in its opinion, ought to be made ex gratia by the Crown in relief of 1755 the burden which the War has thrown on the individual citizen. That would, I believe, avoid any of the danger, which I regard as a serious danger, of enormous cost of arbitration arising out of the statutory scheme of compensation."—[OFFICIAL REPORT, 10th March, 1915, vol. 70, col. 1,491.]If hon. Members will only read a little more of the Debate, they will see that a definite promise was made that the names of the Commissioners would be given to the House in the course of the Debate on the adjournment for the Easter Recess. This Commission was set up and accepted by the House for this purpose of compensation, and those of us who were in the House at the time will well remember the circumstances. I can remember my right hon. Friend the Member for Exeter speaking from his place at the time, and the question was raised by the right hon. Gentleman the Member for the City of London, who was not a member of the Government—I believe at the moment he was a critic of the Government.
§ Sir E. POLLOCK
He is so often a critic of the Government that I had for the moment forgotten that he was a supporter of it at that time. At any rate, he was not a member of the Government. But when I recall these passages I think I am entitled to say that this House cannot free itself from responsibility for setting up the Duke Commission and of accepting the methods then laid down whereby compensation should be granted.
§ Sir F. BANBURY
My question was not as to what happened under the Duke Commission. I must point out that they could not go to a court of law to get its decision in accordance with the provisions of that Act. What I ask is, does Clause 1 override the decision already given by a judge of the High Court.
§ Sir E. POLLOCK
I have not forgotten that question. I am dealing with the matter at some little length and I have every intention of dealing with that particular point, but at a more convenient moment, as it does not fit in so conveniently with my argument just now. There was another Commission—well perhaps Commission is not the word—but another system set up whereby compensation was paid to those whose property was taken for the purposes of the war. By Proclamation on the 3rd August, 1914, immediately on the 1756 outbreak of war or if I remember rightly the night before, practically the whole of the British tonnage in territorial waters was proclaimed, and under that Proclamation an enormous amount of British tonnage has been from time to time requisitioned for hire. Lord Mersey was Chairman of the Board of Arbitrators who were to consider the question of compensation to be paid to the shipowners for the hire of their vessels. He set up in the course of August and September, 1914, a number of sub-commissions, and upon their recommendation what are known as the Blue Book rates were introduced, and the tonnage that has been requisitioned has been done so at Blue Book rates. Enormous sums have been paid to and accepted by the owners on the basis of those rates. The question that arises at the present time is—are we to continue that system now in operation in the cases of the Admiralty shipping for a period of six years, or in the cases of those losses which have been sent before the Duke Commission for a period of five years or are we going to alter it? Let me point out that during the course of the War large numbers of shipowners and large numbers of other persons have settled claims on the basis of compensation awarded by those two tribunals. Certain persons have reserved their legal rights. I am not making any complaint against them; they may be right. They may be persons under some disability, who are unable to forego their rights, and they may, therefore, have felt compelled to wait until the matter was finally put right by an Act of Parliament which covered their case. This House must not forget, however, that a large number of claims have been dealt with and settled on the basis and standard of compensation which was meted out by those two tribunals. Shipowners, I think, as a whole, have acted quite patriotically, and have accepted the rates. They have suffered great losses, but, broadly speaking, have bent their energies to the common weal. I should be very sorry to make any distinction, or to suggest that that was not true of any class, but I am pointing out the difficulties which particular classes may have had. I think, however, that what this House, and those who have already settled their claims, would deprecate, is that there should be a new and larger measure of compensation in the future for 1757 those persons who have not been ready, so far, to accept the compensation which others have accepted, and that those persons who, so to speak, stood out for their rights, should get those rights, while those who were prepared, for the public weal, to take less and make an end of the matter, should be paid less compensation.
As we stand here to-day there is only this one course that I can see. You must either re-open the cases for all alike, or you must stand by the principles which have been drafted and put in operation for so long a period. To re-open the whole system for those who waited would be to do an injustice to those who settled their claims, and I think I am on firm ground when I say that in fairness to those who, during the period of five years, made as little difficulty as possible, it is right that we should continue that system. We are taking powers under Clause 2 to say that the system of the Admiralty Arbitration Board, presided over by Lord Mersey, shall still continue, and that the system of the Duke Commission shall still continue. Under these circumstances a person who has the power to go before the Duke Commission, or before the Admiralty Commission, will not have the right to go to the Courts. That right will be definitely taken away. That is to say, the Duke Commission and the Board of Admiralty Commission will have definte legal authority, and the compensation will be settled in that way and not in the Courts. Further powers are given to both Commissions. Power is given to both to administer oaths, which they have not at present, and to call for documents and deal with matters in the same manner as before arbitrators. There is also a legal right to the payment of the compensation. It will not be an ex gratia payment. Hon. Members will notice that the words are "shall be entitled." Therefore, although the measure of the compensation will be settled before the tribunals I have referred to, the legal right to payment of that sum is authorised and given by this Bill.
§ Sir F. BANBURY
I am sorry to interrupt the hon. and learned Gentleman again. I am sure it is due to my stupidity, but I do not think he has yet answered my point, which is whether this overrides a decision already given by one of His Majesty's Judges in a court of law?
§ 5.0 P.M.
§ Sir E. POLLOCK
Perhaps I had forgotten in thinking that I had answered my right hon. Friend, but I want, first of all, to point out what is the alternative. The alternative is to give a right, not only to go to the courts, but to re-open all matters, and the effect of that would be this. In the case of shipping we have already paid £331,000,000 on the Blue Book rates for the purpose of the hire of vessels. The Ministry of Shipping have powers under their Act, as well as the Admiralty, to requisition shipping at Blue Book rates. I have had inquiries made as to what would be the sum we should have to pay if we were to pay market rates in respect of all shipping that has been requisitioned, and not merely in respect of those cases which have been compensated at Blue Book rates and no more. If we had to pay for all the shipping that has been taken at what might be called market rates, the increased cost of that to the country would be no less than £350,000,000. Are we prepared to pay that? Can it be said that shipowners as a whole have done very badly? Further, I would like to ask the question, Would the shipowners ask us to pay that? My belief is that the right and true answer which ought to be given to that question is, "No, they would not." There is another large item. During the course of the War a large number of vessels have been sunk by submarine action, and compensation has been paid for them, but not at market rates, because we all know that shipping went up to an impossible price. That compensation has been paid, perhaps inadequately, at rates based upon the sums for which the vessels were requisitioned, that is to say, the Blue Book rates. If we were to pay at full market rates for the tonnage lost, that would add another £28,000,000, making a total, if the system were abrogated, of £378,000,000. Again, I ask, are we prepared to pay, and do the shipowners desire that we should pay?
I pass to the next big branch, which will bring me to the point, I hope, of answering my right hon. Friend's question. Among the Regulations during the course of the War was a certain Regulation called " 2B," and to that was added a clause under which the sum to be paid for food or material taken was standardised, not at market rates, but at cost plus a reasonable rate of profit. It was found that, by the mere requisitioning itself, 1759 the price in what was called the market went up to an absurd extent, and it was, therefore, necessary to put some limit to what was called the market price. Hon. Members will recollect that finance was by no means the least of our difficulties during the course of the War. Regulation 2B was, therefore, passed, and it has been questioned in the law courts. There are some half-dozen decisions which have dealt with these matters. There was the original case of Rex v. Halliday, which practically established in the House of Lords the power to make Regulations on any question which involved the liberty of the subject. In the case of the "Zamora" Lord Parker gave the unwelcome decision—or perhaps it was not a decision, but he made the unwelcome announcement that the municipal law of this country does not give compensation to a subject whose land or goods are requisitioned by the Crown. In the case of the Newcastle Breweries, it was held by Mr. Justice Salter that that portion of Regulation 2B to which I am referring, giving the cost plus a reasonable rate of profit, was invalid. The commodity in that case was rum, and was requisitioned, if I recollect aright, for the War Office; and, inasmuch as, by the chain of statutes which have been passed during the course of the war, the system of payment made for goods requisitioned under those statutes involved assessment by a County Court Judge, Mr. Justice Salter held that the amount must be decided by the county court judge and not by his court; but he also held that Regulation 2B, which involved the payment of not more than the cost plus a reasonable rate of profit, was invalid. That case at the present moment stands for appeal. On the other hand, Mr. Justice Greer, in the case of Hudson Bay Company v. Maclay, had to decide whether the powers under Defence of the Realm Act Regulation 39BBB, to give directions to vessels to proceed to certain places under the directions of the Shipping Controller, and load freight and so on, were valid or not; and the question directly arose whether or not this power under Regulation 2B to pay cost plus reasonable profit was valid or not. Mr. Justice Greer definitely held that it was valid. He said that at that time the question was one in which one had to consider the national finances and 1760 the burden of taxation, and the question of inflated prices at the market rate, and he held that it was a perfectly fair exercise of power under the Defence of the Realm Act to make this Regulation. He said:The power to restrict the use of the carrying power of ships to commodities that the country specially requires, and the power to control the remuneration to be given to the shipowner and to mitigate the intolerable burden of high prices caused by the War, seems to me not to be beyond the powers which the Legislature contemplated might be given to the Shipping Controller in the interests of public safety and the defence of the Realm.And he goes on to say:It seems to me, therefore, that the power to fix prices was within the powers that may be granted by Regulations made for securing the public safety and defence of the Realm.When he comes to refer to Mr. Justice Salter's decision, he definitely and in terms decides that he cannot follow it. He says:With great respect, I do not agree with the view thus expressed.In another case only a fortnight ago, before Mr. Justice Bailhache, who considered this power under 2B, he said the Regulation was a perfectly good one in itself. The result is that 2B stands in this way. One judge has held that its power to limit the sum to be paid makes it invalid, and two other judges have expressed confidence in the validity of the Regulation. The Regulation is of great importance, because under it requisitions of food and materials have been made, and if we had no power to limit the sum to be paid the amount which would have to be paid when the matters were re-opened would be very large indeed.
There is one other case, the De Keyser case, in which, under the exercise of the Defence of the Realm Regulations, the premises on the Thames Embankment were taken. The owners asserted their right to go before a court. In the Court of Appeal their claim was allowed, and for the purposes of the Bill, and standing here to-day, I accept that decision as binding. It is quite true that the case has been argued in the House of Lords, and I have no doubt the decision will be delivered before long, but it is my duty, standing here, with the respect due to the Court of Appeal, to accept the decision as it stands and, for the purpose 1761 of this Bill, I accept the direction of law that there was no power to do what was done in the De Keyser case. The De Keyser case, in my opinion, has but little bearing on the question I am dealing with, because if Regulation 2B, which was not in question there, is held to be invalid in the other cases I have referred to, much larger sums are involved than ever would be the case in the De Keyser case. If my right hon. Friend means am I taking away the right of the De Keyser Hotel to have their judgment, I am not. My own belief about the De Keyser case is this. Judgment in the House of Lords will be given long before this Bill passes into law, and if so the Bill will not make invalid that judgment so given, and therefore I have not taken away, and am not proposing to take away, the fruits of the judgment.
§ Sir F. BANBURY
I was not dealing with the De Keyser case. What I want to know is this. If a decision has been given by one of His Majesty's judges in a Court of Law—not whether my hon. and gallant Friend will accept it; with all deference to him, it is the Act of Parliament which will have effect and not his decision—will that Act over-ride that decision? The reason I ask the question is that " if any such proceeding has been instituted, whether before or after the passing of this Act, it shall be discharged and made void." That is in Clause 1. Does that have the effect of over-riding a judgment given by His Majesty's Courts of Law, and if not, what effect does it have?
§ Sir E. POLLOCK
It would over-ride the decision in the Newcastle case and decisions which depend upon it. The Newcastle case is at present on its way to the Court of Appeal. If the Court of Appeal took the same view as to 2B, which has been taken by Mr. Justice Greer and Mr. Justice Bailhache, there would be no judgment to be reversed, but certainly the intention of the Bill is to say that although proceedings have been taken and gone so far as to have been heard in the Court of first instance and the Court of Appeal, the persons who have got judgment are not entitled to have any priority or difference in payment. The whole subject is being dealt with under the Bill as a whole, and those persons who have held back in order to assert their legal rights ought not to receive, and will not receive, 1762 greater compensation than those who have been ready to agree and to accept the compensation. I do not make any distinction about the judgment obtained in the Court of first instance because, particularly in the Newcastle case, it is very doubtful whether that judgment will ultimately stand if it was ultimately to go to the Court of Appeal. I hope no one will think I wish to speak with any disrespect of a Court of Law. I could hardly be where I am or be myself if I was wanting in respect for a Court of Law. But one must not look at individual cases and individual rights. One must look at this from a broad point of view in regard to those whose claims have been settled or are in course of being settled, and are in a position to be settled hereafter. Unless one keeps one's mind on the broad considerations it is quite easy to raise a criticism by looking at a particular case, but I ask the House to look at the whole range of the problem in question.
For instance, take the Newcastle case itself. The facts are not uninteresting. The Newcastle Breweries case asked for payment for rum which had been requisitioned in October, 1917, for the purpose of being supplied to the troops. The effect of requisitioning rum and giving it to our troops abroad was that you at once brought into the market a purchaser, who was buying very largely, who had never been there before, and you sent up the price very considerably, In February, 1917, owing to the restriction of imports, the import of rum had been stopped, and my recollection is that some dealers had actually taken it off their lists because it was not a commodity in which they had freedom to buy and sell. The price of a proof gallon in November, 1914, was 1s. 7d. The price actually paid, without prejudice, to the Newcastle Brewery was 6s. 5d., and the claim on the part of the Newcastle Brewery was for 16s. odd—£10,000 beyond what they were paid—on the ground that that was the market price. In the course of period of two months rum had risen from 16s. to 50s. per proof gallon. Is it to be said that that is the market price in the commonsense of the word? Is there really any serious ground for saying that compensation should be paid in that claim on the basis, which basis alone existed, of the necessities of the nation at large? If there had been no power 1763 on behalf of the public authority, if the market had been free, no one could suggest that anything like the price that rum reached could have been secured, and this House is again up against this problem. When you talk of market price, are you talking of something which is a genuine market price or are you talking of something to which a fictitious value has been given by the needs of the community at large? I received a circular from a society, of which I wish to speak with great respect, and they made this remark:In buying goods the relevant question in fixing the price is what the market price is and not how it was caused.Is that quite true? If the market prices is caused by the nation's needs, is that to be the standard on which payment is to be made? The whole question of control, the whole of our rationing system is really involved in that problem. If you are to take the market price as being that to which it has been enhanced by our difficulties and pay accordingly, you are once more creating a difficulty and putting a burden upon the community at large which it is not well able at present to bear. The charge is made that sales had been made of this very rum at controlled prices. That is not so. The rum which was requisitioned was used, and subsequent purchases have been made at requisition prices, and I think, on the whole, the probability is that a considerable loss has been made, because the controlled price on 1st May, 1918, was 20s. and the controlled price on 20th April this year was 16s. 8d. These purchases have been made, therefore, at a subsequent sum, and the probability is that whoever has the disposal of the rum is making a loss, because the controlled price has gone down.
§ Sir H. NIELD
The allegation that the identical rum which was bought at 5s. 6d., and requisitioned at the time it was 4s. 6d., was offered by the Government at 10s. 2d. is not true?
§ Sir E. POLLOCK
Absolutely not true. All the rum which was requisitioned was used long ago, and if there has been any sale at all it has been a sale of rum purchased at quite a different price. Such information as I have is that it was rum which was bought at a time when the controlled price was much higher, and which 1764 will have to be sold now at a loss. I have not the actual details of the sum, but I have made inquiries regarding what is the real gravamen of the charge, and have been able to answer respecting that.
§ Major HAYWARD
Will the learned Solicitor-General tell us what the circular is from which he is reading?
§ Sir E. POLLOCK
The circular has been received by a number of hon. Members, and if the hon. and gallant Member is anxious to see it I will let him see it. The circular goes on to quote from a speech by the Prime Minister, in which he said that if the State took a man's property, in whatever form, it must pay the proper price for it. I agree. The question is, what is the proper price? My view would be this, that it is not a proper price to say that where artificial circumstances have pushed the price up a person is necessarily entitled to be paid that sum as being the market price, without careful consideration of the various factors which contribute to that price. I will give an illustration of what this means. Supposing the Newcastle case was to stand without question, and supposing we had to pay at what are the so-called market prices. We should have to pay for the various commodities very much larger sums. Almost at once after the Newcastle case a question arose in regard to canned salmon. Canned salmon was largely used by the troops abroad, and a certain amount of canned salmon had been paid for at whatever the controlled price was, under the supposed validity of Regulation 2B, and the matter had been satisfactorily settled. A demand was then made that in accordance with the Newcastle case, Regulation 2B being supposed to be invalidated, the matter should be re-opened and that payment should be made at the full price. That full price involved the payment in that particular case of an additional £505. In order to see what all this amounted to, I wanted to know what would be the effect in the two cases of rum and of canned salmon of cutting away Regulation 2B, and putting in what is called the market price and paying on that enhanced value. In the case of rum, the extra sum which would have to be borne on re-opening this matter would be £750,000, because that is calculated on the same basis as the Newcastle Brewery case, and in the case of the canned salmon, the re-opening 1765 of the matter and paying on the enhanced price would involve an extra sum of £2,000,000. Is it possible to do that?
Let me give the House a few figures which make up the figures in the Memorandum of the Bill. If you re-open the cases and say that every man should go to Court and should be paid what is called the market price, we should have to pay an increased sum to the shipowners of £350,000,000 and £28,000,000 more in respect of sunk ships. We should have to pay, in addition to that, in respect of the item for leather alone, £22,500,000, in respect of munitions an increased sum of £200,000,000, and in respect of raw materials used in those munitions, which was got at the controlled price, another sum of about £200,000,000. That makes a total of £800,000,000 and, in addition to that, there are large sums like £2,500,000 for wool—even for hospital supplies the extra cost would be £4,000,000— in the case of flax £9,000,000, meat £40,00,000, and imported timber £12,000,000. I am now giving figures which approximately come to something like £850,000,000 or more. The Memorandum of the Bill puts the figure at £700,000,000, and that figure is undoubtedly not too large, and was intended not to be a sort of scarecrow or signal of danger, but to indicate the measure of the principle involved.
Beyond all that there is a question which undoubtedly would be reopened in the courts of law and that is the question of indirect loss. Brokers, insurers in shipping, etc., have all lost money in consequence of ships being requisitioned and taken from their control. The Port of Southampton was closed for commercial shipping and that caused a great deal of loss to those who were accustomed to use it. The indirect loss has been enormous. Onions were prohibited from export and a great deal of loss was caused by that. Indirect loss of all sorts has taken place, and beyond the amount of the claim for direct loss you must put the measure of indirect loss which would undoubtedly be brought forward in a court of law. We can rely upon Magna Charta and our rights to go to a court of law, and nobody would wish in any way to suggest that that is not one of our great privileges as part of our liberties; but when we go to a court of law we must go there on the understanding that the standard of compensation must have the interests of the 1766 community in sight, and must not be one which asks for something which is, beyond all question, outside the range of all practical claims that can be made.
§ Sir E. POLLOCK
If the hon. Member will look at the Bill he will see in Paragraph(b) of Clause 1 there is a provision forThe institution or prosecution of proceedings in respect of any rights under, or alleged breaches of, contract, if the proceedings are instituted within one year from the termination of the War.Therefore within a year proceedings can be taken. We have already in the case of the Acquisition of Land Act laid down the principle that the special position and equipment of land for public purposes is not to be made a factor in enhancing the price. The same principle is one which we are now asking the House to adopt: in validating a system which has been in vogue so long and which on the whole has been acceptable. The figures which I have given, no doubt, are large. I should be very sorry in anything that I have said to suggest that on the whole the principle of compensation has not been accepted readily, and, I think, particularly in regard to shipowners accepted very readily and very loyally. We cannot put back to the days before the War. It is quite impossible to give everybody their rights, direct and indirect. We must look at the subject as a whole, and at the point of view of the community as a whole. Shipowners on the whole have done well, and many persons have made money during the War. We have all suffered losses. I ask the House to agree to this Bill because of the necessities of the case and the need of either going forward or going backward. The material losses which we have suffered are, perhaps, not the greatest losses of the War. Perhaps the largest, or, at any rate, one of the largest, figures which I have given is the figure for shipping. What we owe to the shipowners, especially to the mercantile marine, is priceless. But there is another side to this question of material loss and material compensation:—The stately ships pass on To their haven under the hill.1767 These two lines remind us of the two later lines of the stanza, and recall the fact that there have been other losses, against which no Bill of Indemnity can avail.
§ Mr. LESLIE SCOTT
I beg to move to leave out the word "now," and at the end of the Question to add the words " upon this day six months."
I am anxious to put the points of criticism, and they are serious, against this Bill, shortly. The Solicitor-General has dealt with the whole problem at considerable length, but he has not drawn attention to one or two of its salient aspects, and I am going to ask the House to look at the Bill in one or two of its Clauses. In Clause 1 the essential provision is not that actions against individuals merely are prevented, but that actions against the Government are prevented. The Government under that Clause asks for complete immunity for everything they have done during the War. It does not merely ask that acts done without authority should be given validity, but it asks that for everything it has done it should be under no legal obligation to make any payment so far as that Clause is concerned. To that extent this Bill is a taxing Bill, and if the estimates and memorandum are right, and, still more, if the estimate of the Solicitor-General is right, viz., the £850,000,000, it means that, broadly speaking, £850,000,000 is to be taken out of the pockets of individuals in general alleviation of the Exchequer. Hitherto in this country, I believe, the commercial community have not regarded the law as a measure of damages as excessive. People who go to the Courts do not, as a rule, expect to get nearly as much as they ask. They usually come away complaining that the measure of the damages allowed by the law is a good deal less than the real losses they have suffered. That law has been worked out in the course of centuries, and is accepted, I believe, by the whole nation as approximating to every rule of law.
This Bill means that the Government consider that unless they pass this Bill they will have to pay, in order to meet what the community in general regards as a fair measure of compensation, a sum of £850,000,000. In other words, they ask the House to consent to a Bill on the express ground that they want to pay £850,000,000 less than the Courts of justice 1768 in this country would grant. That is the character of the Bill. My own view, for reasons which I will give shortly, is that the estimate is ridiculously inflated, and very largely groundless. That there may be substantial claims preferred I am prepared to admit, but in a question which I put to the Prime Minister to-day the only answer was that it was an estimate made by Departments, and when I asked for particulars that the House might know the items, no information was given. The matter is so essentially one which depends on these figures, as well as on the other aspects of the case, that the House ought to have some clear information about these figures before passing judgment on the Bill. The truth is that the figure on the memorandum is put forward as a reason, and the main reason, for passing this Bill. I feel positive that it is put forward as a temptation, an attraction, and a seduction to the House to pass the Bill lest there should be a very grave addition to the Estimates. In order that the House may be able to deal with the figure I repeat the request which I made this afternoon that we should be given the full information, because as it stands it is an attempt to tax individuals chosen by accident in regard to the war, and not to distribute the burden of those individuals evenly over the community. It is none the less a tax because the tax is not distributed evenly over the community. That is the big proposal of this Bill.
The aspects of the Bill to which criticism ought to be directed are the proposals in Clause 1, that acts done by the servants of the Crown or others acting under their authority for any purpose in the public interest during the War should be validated, and the proposal in Clause 4 that any Proclamation or Order in Council issued or purported to be issued under the Customs Consolidation Act during the War, prohibiting or restricting the importation of goods, should be deemed to be valid. Those two provisions relate not only to the past, but to the future. The War is not yet over technically from the point of view of an Act of Parliament. In the Act which was passed regulating the termination of the War, the House will remember that the War does not come to an end until an Order in Council has been issued announcing that it is at an end. That will be when the Treaty of Peace is ratified with Turkey. That 1769 event has not happened yet. In those two Clauses, perhaps inadvertently as the Bill stands at present, the Bill is validating proclamations and other things as if the War were continuing, which Parliament has never sanctioned. For instance, under Clause 4 it might be possible to have a proclamation issued abolishing Free Trade. The effect of the Anti-Dumping Bill might be produced under Clause 4. I do not think that that has been the intention.
The real big purpose of the Bill, which in my view is wrong, is to tax in the way it does, to make the Government wholly immune for what it has done in the past, only giving the subject the very limited measure of compensation which appears in Clause 2, under the Defence of the Realm Losses Commission, the difference between the two being, on the Government's own showing, the figure of £700,000,000. The other great objection to the Bill as it stands is that access to to the Courts is denied to those who have suffered losses; those who, not having suffered loss in the sense of having suffered an injury, have had their property taken during the War either for use or permanent acquisition, are told to go to the tribunal which is not the Courts of the King's Justices. I submit that one cardinal rule of legislation in this country ought to be to preserve the right of access of the King's subjects to the King's Court, and that on very large questions of this type to send His Majesty's subjects to arbitration or commissions, or odds or ends of that kind without the full right to insist upon their legal rights, when they consider themselves aggrieved, of access to the King's Courts is a bad system of legislation. The grave danger of democracy, I submit, is the risk of bureaucratic government, bureaucratic tyranny of the executive taking upon itself autocratic powers and powers not in any way safeguarded against undue exercise by resort to the Courts of law. Those are the two big drawbacks to the Bill as it stands.
It is unprecedented in history. There was after the Napoleonic war no Bill giving the Government a general indemnity. There was no such Bill after the Crimean War. There never has been in the history of this country a Bill giving the Government a general indemnity from the payment of claims or meeting its obligations on the lines of this Bill. I quite 1770 admit that this War has been unprecedented. But the kind of claim that has arisen during this War, the kind of loss which individuals have suffered during this War for the good of the community must have been of the same kind as during the Napoleonic war, yet there was no attempt to introduce a Bill of this kind then. The very title of this Bill is a title which is inappropriate to the main object of the Bill. An Indemnity Bill is introduced when the Habeas Corpus rights of the subject have been suspended. In those cases an Indemnity Act has been passed in order to prevent officers, warders and others who have arrested individuals, from being personally liable in actions at the suit of those individuals. This is not an Indemnity Bill. This is a Bill to allow the Government to get out of their legal obligation which the law itself has placed on them.
The House ought to be very slow to allow a Bill of that revolutionary character to be passed without the fullest explanation from the Government and the fullest safeguard that the measure of compensation which this House intends shall be given shall be decided by this House and not as suggested by the phrase of a department chosen in the early years of the War which was never adequately considered by this House, which was never embodied in a Bill and never debated in Committee. The reference Defence of the Realm Losses Commission was framed by the Executive Government. The phraseology of it was considered by them to be sufficient. This House has never addressed its mind to the question as to whether the terms of compensation contained in the warrant to that Commission are satisfactory or not, and if between the measure of liability and the legal measure they are given there is a difference, as the Solicitor-General said just now, of £850,000,000, is not that difference sufficient to make the House consider very carefully whether the Defence of the Realm Losses measure of compensation is entirely right?
What the Solicitor-General has said trenches very largely on a previous decision and a recent decision of this House. This Bill asks—I suppose quite correctly —that all the D.O.R.A. regulations and proclamations shall be given ex post facto validity, but that was the subject of a separate Bill introduced into this House a very few months ago—the 1771 Emergency Laws Continuance Bill. It was discussed in detail here. In that Bill there was a schedule of the regulations which the Government sought to validate, and that was only to the 31st of August next, not until the end of the War, which may be a great deal later having regard to what we know about the state of Turkey. But whatever the date to which that Bill was to extend, whether the near date or the distant date, what the House did in that Bill was to insert an amendment in Committee. In the original Bill the Government asked that all regulations should be made absolutely valid as if enacted in the Act. This House said " No," and inserted a proviso that no such regulation as is continued shall have greater validity than it had before the time when, but for this Act, it would have expired. The Bill received the Royal Assent on the 31st of March last, and yet when, as I might say, the ink has scarcely gone from the Royal pen we are asked to pass this Bill giving validity to all that the Government did, not only to the list of the regulations contained in the Act, but every other regulation which was not discussed on that measure. I submit that that is a matter to which this House will hesitate to assent. It is couched in different language, no doubt.
§ Mr. SCOTT
As my right hon. Friend says, he kept off it, with even greater skill and with less difficulty than he kept off the question of what happened to the King's judges. He did not refer to it. Indeed, this Bill provides that even where judgment has actually been given the decision is to be reversed, because the words at the end of sub-clause (1), lines 17 and 18, can hardly mean anything but what they so very plainly say—If any such proceedingthat is, every possible kind of proceeding, whether against the individual or against the Governmenthas been instituted, whether before or after the passing of this Act, it shall be discharged and made void.The Solicitor-General referred to the case of de Keyser's Hotel, and he said he thought that case would not be affected. But even if the decision of the House of Lords is given before this Bill is passed 1772 I very much doubt that. Whether it would be affected or not, it is the fact that the case of de Keyser's Hotel was treated as a test case, both by the Crown and by a vast number of litigants affected, and that there are many hundreds of similar petitions of right pending, waiting for the decision of the de Keyser Hotel case in order not to increase costs by superfluous litigation. To my own knowledge and to the knowledge of many commercial men and of all lawyers, there are pending a great number of actions for petitions of right in which important questions of constitutional principle or questions of right or wrong are involved, and in regard to which, in my view, it would be a great injustice to say to these parties, " You have sought redress from the King's Courts. We will take your rights from you and will send you to a tribunal which assesses compensation on a basis that has never been considered by Parliament and has never been open to serious public debate or criticism."
The Solicitor-General referred to the Newcastle brewery case, and he gave the House some figures in regard to it. I am not able to deal with his particular figures, but I did take the trouble, before I came to the House, to write to the solicitors who acted in that case, and to ask them for certain facts about it, and the facts, they tell me, are these: That at the time the rum in question was requisitioned the price under the Defence of the Realm Losses Regulation measure was 5s.—that is, costs plus certain profits —that at the time the market price at auction sales was between 14s. and 15s.— that is, three times the Defence of the Realm price—and that the control price was 20s., and then was reduced to 18s. 6d. The hardship was that the owners who had their rum requisitioned had in most cases made forward contracts to other people besides the Government. In order to fulfil these contracts they had to go into the market and buy at the market price, while the Government took from them their stocks at the D.O.R.A. price. The result was that although they could sell to the Government at only 5s., if the Government were right, they would have to replace their stock at 15s. or thereabouts. It may be in a sense indirect loss, but it is a very real loss to the parties concerned.
In order to dispose of the idea that this is a matter merely affecting that wicked 1773 trade which supplies the community with beer and spirits, I may say that I have been told by the solicitor in that case that the Crown Solicitor informed them that the reason why the case was made the subject of appeal to the Court of Appeal was that the decision affected such a very large number of other trades. It may be that the House will think it right that some lesser measure than the full market price might properly be paid. I offer no opinion upon that. I can conceive circumstances in which the market price had been forced up by the scarcity of supplies during the War to a point where it would be wrong and not fair to allow the whole of the market price where goods were requisitioned. But surely that must depend upon the facts of the individual case. Suppose that the particular person whose goods were requisitioned had made a forward contract at that time for practically the whole of his stocks. He had to go into the market and to buy against his contract or else pay damages, not on the basis that the Government suggest, but on the market basis. In a case like that how can it be fair to say that there shall be a hard and fast measure of loss, such as is laid down in Regulation 2B? No person can say that that is fair, or that, if it is done, it is not taxing that individual subject and taking his money for the purpose of assisting the general public. I pay my taxes gladly, and so, I believe, does everyone, in spite of a few grumbles, but I submit that unequal taxation such as this is repulsive to the British character. It is quite true the Solicitor-General said that in the bulk of cases that have gone before the Admiralty, before the Board, or arbitrators, in connection with agricultural matters, or the Defence of the Realm Losses Commission, the applicant has patriotically, and often with satisfaction, accepted the awards that have been made. The suggestion that if this Bill is not passed it will be necessary to re-open all those awards I characterise as chimerical.
I will make a definite statement as to the majority of the shipowners of this country. I say deliberately that if this Bill is not passed there will be no claim such as is indicated of £350,000,000 sterling for the differences between Blue Book rates and the theoretical measure of damages which the Common Law might have given them. I have been in close touch with the Parliamentary Committee 1774 of the Chamber of Shipping of this country, and, though I am not in the position of having express authority to make the statement, I am satisfied that if the matter stays as it is there will be practically nothing heard of any claim to have more than the Blue Book rates for the ordinary requisitioning of either the steam or sail tonnage of this country during the War. Therefore, to put that in as it is in this memorandum, though inadvertently perhaps, is most misleading to the House on the question of the figures that are involved. I cannot help believing that very much the same observation applies to all agricultural claims. I believe that, on the whole, the farming community accept the rough with the smooth, and are broadly satisfied with the awards made. I believe that is true of the great bulk of the community who are concerned in these claims. But over and above that ordinary line of cases, where people accept what has been done and shrug their shoulders, I believe that there are substantial numbers of additional cases where it would be gravely unjust to deprive the parties of compensation to which they are entitled at law, and that there are many cases where it is not a question of amount, but a question of right, of liability, as to whether or not a given party has a right which can be satisfactorily settled only by a Court of Law.
Let me give one illustration. Under the ordinary charter for Blue Book rate chartering during the War, there is a Clause under which the Government accept the liability as insurers when the vessel is lost by war risk. The question has arisen in the Courts, and been very much litigated, and is now pending in the House of Lords as to whether, if two merchant vessels sailing at night without lights under Admiralty orders to avoid detection by enemy submarines, collide because they have not got lights, that is a war risk or an ordinary marine risk. My view is that it is a war risk. The House of Lords will deal with it. That is essentially a question where you want a commercial judge, who is familiar with marine insurance questions, to decide. The whole history of marine insurance law is a technical history in which the underwriting community have rested the whole value of their business on legal decisions. We want a legal decision there. Take another illustra- 1775 tion. Under the D.O.R.A. Commission, where houses were vacant at the time of requisition, the D.O.R.A. Commission said, " You lose nothing, because you are not taking any risk." There are vast numbers of cases where all compensation has been refused by the D.O.R.A. Losses Commission for that reason. A great many have said that they do not recognise that as a reason, and that they think they are entitled to compensation because the time would very quickly have come when they could have let the property and could have earned an income from it. Those cases would all be taken away by this Bill, and the parties would get nothing.
The point I want to make upon the measure of damages or compensation is not to discuss here on Second Reading whether that measure is right or whether it is wrong, because the House is familiar with the measure and knows there are many cases where complaints have been made that it has acted unfairly. My point is that it is for this House to decide if people who have had their business or property, or whatever it may be, interfered with by the Executive, and properly for public purposes during the War, are to have their legal rights recognised, or if they are to have something less, then it is the business of the House to address its mind to the question as to how much less they ought to have. It may be that the House will take the view that it is not for us to attempt to frame a phrase that would meet every case, because obviously that is an extraordinarily difficult thing to do. It may be that the right thing to do is to send the parties to the courts, and intimate to the court, in the Bill giving the court legal power under the Bill when it is an Act, that in these cases we think it would be fair to give the party something less than the ordinary measure of damages or compensation which he would get at common law. That would do no harm, and it would save the party from injustice and preserve intact the rights of access to the courts. In my view all risk of that right of access to the courts could be got over by giving power to the Judge to give costs as between solicitor and client against a claimant who had unnecessarily brought his case into the courts. The present Defence of 1776 the Realm Losses Commission could continue, and the present Admiralty Arbitration Board could continue, and the present machinery for dealing with agricultural claims could continue, while at the same time giving the parties, where they thought they had a legal right, and that they would not get justice from one or other of those unofficial and informal tribunals, the right to go to the courts if they thought they could only get justice in that way, but always with the risk of having to pay the whole of the costs of the litigation instead of merely part of the costs, in the event of it being deemed that the case had been brought unnecessarily. My own suggestion is that on these aspects of the Bill the House ought not to be content with doing what the Government ask, and that we ought to ask for real information, and information much more actual and much more closely in touch with the facts as to how these very large figures are arrived at, and that we ought not to give this Bill a Second Reading unless the Government say that they are willing to limit the Bill to the period of the War up to date and not to ask for additional powers for the future, and unless they are willing to preserve access to the courts and to preserve the rights of the subject to the compensation which the law of this country allows him, only taking such steps as may be necessary to prevent claims being brought without foundation by the right to obtain extra costs against the parties who abuse the right. For these reasons I submit that the House ought not to give an unqualified Second Reading to this Bill.
§ Sir WILLIAM RAEBURN
I beg to second the Amendment. This is a highly legal and technical Bill, and as my hon. and learned Friend has dealt with the legal aspects of it I will leave that alone, but I rise to refer particularly to the Bill as it will affect shipping. With regard to the suggestion that if this Bill is not passed there may be unlimited claims of the kind mentioned in the Memorandum, amounting to hundred of millions, may I say that I know of very few cases in which the shipowners have not willingly accepted Blue Book rates. There may be a few cases of some variation from the ordinary circumstances, but I am sure I can say, speaking for the Chamber of Shipping, that, in the great majority of cases, there is no idea that if some shipowners takes a 1777 case to the Courts and succeeds in getting current market rates—a most remote chance—that the whole body of shipowners will then demand to be put on the same level. Most of our accounts were finished long ago, and nobody surely imagine that, because in some exceptional case someone obtains a better rate, that that would open the door to the re-opening of all those cases. I would like to have an exact computation from the Minister in Charge as to the number of pending cases. The fabulous sum mentioned in the Memorandum is a mere bogey to frighten Members of the House who know nothing about the subject. I think the other cases must be very few, and that the whole amount involved must be very small. What I contend is, not that the question of Blue Book rates should be opened up by the courts, but that in other cases where there are special circumstances shipowners should have full liberty to apply to the courts for decision. My hon. and learned Friend who has just spoken gave an example of one class of case, namely, collision, where the point arises as to whether war risks or marine risk is involved. Those are surely cases which should be decided by the High Court. The point is, are shipowners to be paid their loss by the Government or by their marine underwriters? We are referred by the former to the latter, and they, in turn, deny liability, and throw us back on the Government, who, when they requisition a vessel, assume the war risk. In some of them great hardship is involved, and they are not cases in which it is a question of putting money into our pockets. The Solicitor-General in his speech said that there was a proviso in the Charter Party as to what the Government were to pay for the loss.
§ Sir E. POLLOCK
I did not refer to Charter Party, and I do not think I even mentioned Charter Party. I did refer to Blue Book rates.
§ Sir W. RAEBURN
I understood the learned Solicitor-General to say the Charter Party contained an agreement as to the amount of compensation for loss, but I am sorry if I mistook him. Now, cases for compensation for loss of a vessel taken into court have been very few indeed. The Government appointed two well-known shipping valuers, and the shipowners appointed two, also. If their valuations did not agree we did not go to 1778 law, but took the mean of the two, or four, valuation, as the case might be. I am surprised to hear that many, if any, of those cases are outstanding. But if there are some cases in which compensation cannot be obtained short of law proceedings, why should the parties be debarred from going to law? I know of one case that has been decided against the shipowners, and that is being appealed against. If the provisions of this Bill were adopted that appeal would be barred. In another I know of the shipowner has won. That decision in his favour would be swept away. Then what about the costs in these cases where shipowners have succeeded? Are they to lose these by this Bill? Not a word is said on that subject. We do not complain as shipowners of the rates of remuneration which have been paid for our ships. There is a class of case on which shipowners have taken a test. I mean what is called the restricted voyage.
The Government do not take the vessel out of the shipowner's hands. They intimate that this ship has to bring home a cargo say, of grain from the River Plate, and they name the rate of freight at which the cargo is to be carried. For a long time the rate was ridiculously low, and it is not at all to be wondered at that the shipowners said, "We contest your right at the present time to make us carry cargo under the market rates." The shipowners went to Court and lost, and I understand my brethren are prepared to let it rest at that. But we do ask for protection in those cases of damage done by the Government to ships requisitioned by them. There is a clause in all commercial Time Charters to the effect that the charterers are to redeliver the vessel in the same good condition as she was when they took her. That is not in Charter T 99, and few shipowners signed that charter because it had been compiled by the Government without consultation or consent. But the Government refuses to make good certain kinds of damage, and falls back on the absence of any reconditioning clauses. We demand the right to appeal to the Law Courts for redress. The most extraordinary things have been done under war conditions, and the most extraordinary cargoes have been carried, and stowed at times in the most unusual way. We submitted because of the necessities of the case, but we 1779 desire redress of the damages caused. I will give only two instances. A vessel sent alongside a man-of-war to coal or store her. Weather not good; damage done to the coaling vessel, which, of course, is much more vulnerable than the warship. Log book entries forbidden; difficulty of proving damage at the time, but discovered after dry docking. Cases of this kind have been turned down. Are we to be denied recourse and submit to these decisions being covered under this Bill? Then the case of discharging by grabs, great heavy instruments which invariably do damage to the tank tops of the double bottom of a ship. We had no power to refuse to allow these grabs to be used. We are denied the costs of repairing the damage, and are made to lose hire while these repairs are being carried out. We maintain our right to have a legal decision. This Bill would deny it. In every case, let it be remembered by the House, we have got to prove our damages, and the Courts are not, in my experience, in the habit of giving more than we ask, or even of giving what we do ask. There is always something cut off. I think it would be a very great hardship indeed, after all we have done and submitted to, and willingly submitted to because of the needs of the country, that the one defence we have against autocratic injustice, namely, appeal to the Courts, should be denied us. I hope I have made it perfectly plain that I am not here to argue for a greater amount of hire. We have settled all that long ago. What I am contending for is access to the Courts of Law for damage done to or loss of our property, which the Bill seems to me to deny us, and that the Government will at least make some provision in the Bill that will give reasonable protection.
§ Mr. RONALD McNEILL
Nothing from a personal point of view is more distasteful to me than to offer opposition to a measure introduced by the Solicitor-General and supported by my right hon. Friend beside him (Sir L. Worthington-Evans), but, at the same time, it is quite impossible for me to support the Second reading of this Bill as it stands at present. My hon. and learned Friend the Solicitor-General, in introducing the Bill, appeared to me to give much less attention than he might have done to that part 1780 of the Bill which is most open to attack, namely, the requisition, not of shipping, but of the property of small property owners throughout the country, and the principle on which compensation has been given for that requisition. He asks us to accept the proposition that this House is in some way committed to the constitution of the Losses Commission because of the way in which it was set up in 1915. I have not had an opportunity of refreshing my memory as to that Debate, but my recollection of it is very different from the impression I could gain from my hon. and learned Friend's speech, but apart altogether from that, it is surely a rather far-fetched proposition to say that this present Parliament is in any way committed to accept everything that was done in 1915 under totally different circumstances. My impression of the Losses Commission is a very different one from my hon. and learned Friend's. Requisition of property, as I understand the matter, has been allowable under our Constitution from the very earliest times, and it has been sometimes by Royal Prerogative and sometimes by statutory enactment, but whether by one process or the other, it has always been thoroughly understood and accepted that compensation—I will not say anything for the moment about market prices or anything of that sort—should be given to the property owner. During this War the attitude taken up by the Government, and by all Governments which have held office since the beginning of the War, has been that the property owner had no right whatever to any compensation at all for the requisition of his property, and the Losses Commission was set up, as we are now told, in order that an appeal might be made ad misericordiam to the Government, and that then they would allow this Commission to grant what they might think right as a matter of grace. I believe that was an entirely false position for this Commission to take up, and it has been since proved, I think, by the proceedings in the Courts that that was so.
As a matter of fact, this Losses Commission, if my recollection is correct, has no statutory authority at all. It was merely set up, no doubt, with the assent of this House, by the Prime Minister of that day to perform certain functions, which were to award fair compensation 1781 in those cases where there was no real legal right at all, where, out of the circumstances of the War, damage or loss was occasioned to people in the country where it would have been very difficult, or perhaps impossible, for them to establish any legal claim to damage at all. Then the Government turned it into something quite different. They made this Losses Commission into a judicial tribunal, which it never was and never ought to have been, and then they told the country that, where property was requisitioned, owners might submit their claims to this Losses Commission, and that if they did not go there they would not get anything at all. My right hon. Friend several times in the course of his speech made a great deal of the point that if the matter were left now for decision by the courts, those who have, to use his expression, " stuck out " for their rights would get an advantage at the expense of those more patriotic people who settled their claims, and were apparently contented to do so, at earlier periods. My right hon. Friend entirely left out of account that there were thousands and thousands of people in this country who submitted under duress. They submitted to have their claims settled by the Losses Commission because they thought they had no other resort. They were very often grossly mishandled by that Commission, very often they got very inadequate compensation, and very often they got no compensation at all, after interminable delays; and when they were told by the Government that they had no sort of remedy except to submit to the tyrannical decisions of this Commission, which was not a court at all, naturally they said, "Well, we had better take what we can get, as we have got no remedy," and consequently they did. All over the country there has been the very gravest dissatisfaction with the decisions of that Commission, and now the Government come down here, and to begin with they are going to constitute it by this Statute as a legal tribunal, and to justify, ex post facto, all those high-handed proceedings of which that Commission has been guilty during the War. How does it stand with regard to the decisions of the courts? I would like to remind my hon. and learned Friend of a case that attracted a good bit of attention at the time—I think it was in 1916 or 1917—and the way the Government handled it; I mean the Shoreham 1782 aerodrome case. In that case very valuable property was requisitioned, and because the owners were not so powerless as some of the smaller and poorer people, they decided to try their luck in the courts, and not to accept the dictum of the Government that they had no remedy. They went to the courts, and in the Court of Appeal they got a decision against them.
§ Mr. McNEILL
And below, and they went to the House of Lords, and the proceedings in the House of Lords had not gone very far before it was clear to the Government that the decision of the House of Lords would probably be against the Government. What did they do? They thereupon settled that case by agreement, so that they escaped a decision against them in the House of Lords, and enabled the decision of the Court of Appeal to stand in their favour. That was a deliberate manœuvre on the part of the Government to mislead the people of the country with regard to the true legal position, and to put it out of the power of other people, who could not afford to go to the House of Lords, to assert their legal rights. Then, of course there came along the De Keyser Hotel case, and my hon. Friend says the decision will probably be given in this case before the Bill passes. I do not know if that is so or not, but he says if that is so, the fruits of the judgment will not be taken away from the parties in the case. Yes, but the rights of other people, who ought to stand in exactly the same position, will be taken away, because the Government by this Bill are seeking to destroy what is the real state of the law, if the decision in that case is what we anticipate it will be.
I am not concerned with the questions of shipping with which my hon. Friend dealt just now. I quite admit that, under the circumstances in which we find ourselves, some Indemnity Bill will be required, but what I am concerned about is the rights, which have been very much disregarded, of a very large number of poor property owners, who can very ill afford to be treated in the way they have been. Let me give one example. In my constituency a very large number of people make their living by taking visitors into their houses. I know a case of a very poor woman who, last July, took a 1783 house for the purpose of taking in visitors. It was at that time in the occupation of the military, and she was assured that the military in a few weeks would be out. As a matter of fact, they did evacuate all the premises with the exception of two rooms on the ground floor, and—will the House believe it?—that poor woman has not got the military out of those two rooms up to the present moment. The reason why they have retained those two rooms is, as the local officer responsible has said, because he wants one of the rooms, as it has got a telephone in it. This house is in one of the very best positions on the sea-front of a watering place, and the poor woman, who is herself invalided and crippled, has ever since last July, been living practically upon the charity of a friend in another house, and she even now cannot get these two rooms from the military, and they have done a great deal of damage in addition. I want to add one circumstance, which, I think, shows the highhanded methods in which property is dealt with in these cases. Because this poor woman went back into this house before, strictly speaking, she had the right, before the time had expired for which the military took it, she has been treated as a trespasser, and from that day to this not even a sixpence has been paid to her for the occupation of her house or the damage done.
That is one case out of thousands, and now my hon. and learned Friend comes down with a Bill of Indemnity in order that these high-handed proceedings may be painted over by a veneer of legality, and people are to get no satisfaction from the Government. Under these circumstances, I altogether decline to vote for the Second Reading of the Bill as it stands. I think the Government ought to set up an inquiry of some sort, before bringing in a Bill of this sort, first of all to find out how the Losses Commission have been doing their work, and how they have been dealing with these cases; and, secondly, to inquire as to what would be the best method of dealing with the larger aspect of the case about which such very high figures have been mentioned. We have been told by two hon. Members, who spoke with knowledge and authority, that the figures mentioned in the Government Memorandum attached to the Bill give no sort of correct idea of 1784 what the effect would be if this Bill were defeated, and I certainly think those are all circumstances which ought to be inquired into by some quite impartial authority, and that fuller information ought to be given to the House before we are asked to pass a measure of this sort, which will give great dissatisfaction, and, in my belief, will legalise an immense amount of injustice.
§ Mr. RAE
I rise to address the House on this Bill with some hesitation, for the simple reason that I have a case against the Government which is unsettled. I have consulted some of my Friends who have been for many years Members of this House, and they have advised me to be perfectly frank with the House, and then to state what I know of the particular requisitions that have taken place. After the Government bought the Australian and New Zealand clips of wool, the markets left open to those who bought merino and worsted wools were those of South Africa and South America. A number of traders still continued to buy wool in South America, and brought it to this country under very great difficulties, believing that wool would be a material which would probably be wanted during the War as much even as ammunition would be wanted at the Front, and believing that in requisitioning wool a Government Department would, at all events, deal fairly by those who took the risk—and it was a considerable risk—of bringing wool from South America to this country at that time. The reference I shall make in my remarks will not be to outside speculators. I know nothing whatever about them, and I am not here in any way to defend them. My reference will be to men who were in this trade, and had been in this trade for many years, so that they were simply carrying out what was a legitimate part of their business when they were importing this wool from South America. I have amongst my friends some who would not continue the importation of wool from South America to England, but diverted their purchases in that country to the United States of America. I asked them why they were doing this, and their reply was, "We have no faith whatever in the men who, we believe, will settle the price if the Government requisition this wool from us, as they will, and therefore we are not taking the risk of bringing it 1785 here, but we are sending it to the United States of America."
What was the different treatment that these men got who sent their wool to the United States as against men who, like myself, brought it to this country? I will take one set of shipments, the particulars of which I hold here, the whole of which were requisitioned by the British Government. The loss which the merchants sustained in this country through that requisition was between £10,000 and £12,000—not a loss of profit, but an actual loss, taking the cost price and putting it against the price at which the Government requisitioned the wool. If that wool had been sent to the United States and sold there in the open market at the time it was requisitioned by our Government, the profit which would have been obtained would have been £70,000. There was £70,0000 profit in the ohe case and there was a loss of £10,000 in the other case. I remember quite well, some considerable time after these importations took place, Mr. H. W. Forster, then Financial Secretary to the War Office, coming to Bradford and addressing, perhaps, the largest meeting of commercial men that ever met together in Bradford during the whole of my lifetime on the serious state in which this country was placed through lack of raw material. I remember his words:There is no news that would put more heart into, and give greater pleasure to, the German Emperor and the German people than what I am going to tell you this afternoon.He went on to tell us how low the stocks were in this country. I disputed those stocks, and so did a good many people in Bradford, and, as a result of that meeting, a committee of inquiry was appointed, and we proved to the country that there were £100,000,000 worth more wool in this country than the officials of the Government said there was. But that is by the way. One would have thought, after the speech of Mr. Forster and after his doleful prediction with regard to the stocks of wool, that those people who had taken the risk of bringing wool to the country would have been well treated by the Government, but some of my friends were a little astonished, and are still astonished, to see Honours List after Honours List come out, and themselves left out, while others, who did not bring a pound of wool to this country, receive these honours. I understood the whole 1786 tenor of the Solicitor-General's speech was that, at least, cost price, plus a reasonable rate of profit, was to be paid.
§ Sir E. POLLOCK
The terms are in 2 (b). The second portion provides that, and a number of other regulations provide the standard of compensation.
§ Mr. RAE
I have always thought the cases of which I am speaking sue under 2 (b), and so they do. Therefore, I am very glad I understood the Solicitor-General aright. I will read out some of these Government valuations, and the prices at which they have actually taken wool. Here is a list of some 461 bales, representing some 460,000 lbs. of wool—
I hope the Solicitor-General will bear this in mind.
- Government price 20¼d., cost price 24¾d.;
- Government price 24¼d., cost price 30¾d.;
- Government price 26d., cost price 31¼d.;
- Government price l8½d., cost price 24¼d.;
- Government price 25¾d., cost price 28d.;
- Government price 24d., cost price 26½d.;
- Government price 22¾d., cost price 28½d.
§ Sir E. POLLOCK
May I ask my hon. Friend a question? Are the prices that he is reading out controlled prices, are they prices which are agreed now as controlled prices—which is a very different matter?
§ Mr. RAE
If there is to be a cost price with a reasonable profit, surely that is to be a cost price with reasonable profit all round, and no less. Not only has one had' to put up with this sort of thing, but these monarchs, who have had this power under the Defence of the Realm Act, wield it in a way that follows the spirit of Louis Quatorze, who said, l'etat c'est moi. I myself was threatened with 28 days in Wakefield Gaol. I went to my solicitor, and told him I was quite willing to serve the 28 days if I could only beat this rascally requisitioning department. My solicitor said, "It is no use, you would only be wasting your time in Wakefield Gaol, because under these Orders-in-Council any mischievous rascality can be carried out; therefore, when you came out of Wakefield Gaol they would still take your wool from you." I gave evidence 1787 before the Committee of this House that sat at the War Office under Mr. Herbert Samuel. I told that Committee what I will tell the House if Mr. Speaker will allow me. That was that many of the deeds done under the Defence of the Realm Act were deeds which made the profession of a highway robber, by comparison, that of a gentleman. Not only was one treated with scant courtesy but one was treated with far scantier justice. If one went into a Court of law against these people the costs of the other side were paid out of one's own pocket in the way of taxation. I know perfectly well that we had power to go before the Losses Commission.
On this matter we took the opinion of the best counsel that we could get in the country. What was the advice we got? "Do not go before the Losses Commission, for they take an extremely narrow view; not Only that, but they are advised that they have no need, or rather the Government has no need, to give any compensation at all: it is merely an act of grace if they do something: keep away from the Losses Commission." That is what we have done. I understand that under this Bill our rights, which, I believe, date centuries back, are in danger. I would suggest to the Solicitor-General that he should take a walk down and through the lobbies, and he should do what I have done with many of the visitors whom I have had in this House. I consider it one of the privileges I have as a Member to show strangers around the House. I suggest that the right hon. and learned Gentleman should take a walk into the Central Hall, and beyond, where he will stand on historical ground, where old St. Stephen's Chapel stood for hundreds of years, and where Parliament met for hundreds of years. First of all, he should take a look at the picture on his right hand, where he will see Mr. Speaker Lenthal held down in the Chair while Members passed resolutions that the Speaker was afraid to take to Charles I. He can then cross over to the other side and see the Five Members escaping from the Palace Yard. Let him remember that those men, men like Pym, Hampden, and others, suffered cruelly, both mentally and physically, in order to keep for us the rights that this Bill unless it is altered will take from us.
§ Mr. PRETYMAN
The House has listened with great pleasure to the very strong case made by the hon. Gentleman who has just spoken. I think he put his finger on the spot when he suggested that this Bill was really legalising the taking away of rights from the subject which the Government had previously contended the subject did not possess. I think in that sense I should not be wrong in saying that the necessity for this Bill arises out of the De Keyser case, on the decision which has been given in the Court of Appeal, and in case it may be confirmed in the House of Lords. My hon. and learned Friend will correct me if I am wrong—because I think the point is one of some importance—but I take the matter to mean something like that. My hon. and learned Friend said, in the explanation he made to the House, that the House had set up this Commission. I do not think the House set up the Commission at all. The Commission was set up by the Prime Minister under a Regulation which was based upon the Defence of the Realm Act. That, I believe, was the genesis of the provision, which had no statutory authority at all. It was contended, as I understand by the Solicitor-General, that the right of the Commission to make these awards and of the Government and the Crown to enforce these awards, rested upon the primary right of the Crown in a condition of emergency such as the War to take anything without payment and requisition anything from the subject. If that be so, then any award given by the Commission is an ex gratia payment given to the subject—something to which he is not entitled. That is the position, or supposed to be, as I understand it. If the decision of the Court of Appeal is confirmed by the House of Lords, the position is absolutely reversed, and instead of the Commission giving the subject something to which he was not entitled, the Commission had been giving him a great deal less than that to which he was actually entitled under the law of the land. Therefore, in order to legalise that deprivation of the subject of the legal rights that he actually possessed, this Bill has been introduced. That, I take it to be the real fundamental position here and now. I agree entirely with what was said by my hon. Friend the Member for Kent (Mr. R. McNeill) when he said that some Bill of this kind was absolutely necessary. I do not think anybody in this House would 1789 suggest that anyone who had received compensation either by the awards of the Defence of the Realm Losses Commission, or by the arbitration Court set up to deal with matters of shipping, should have a right to go back and claim compensation on a scale that would give them inflated war prices for articles taken from them. Nobody would advocate that. I am quite certain if the Government had introduced a Bill to the effect that this sort of claim should not be made good, this House would have supported them; the House will support them if they do that, or limit this Bill in that sense.
I really rose, however, after making that general case against the Bill, which I do with great diffidence, because really to deal with a Bill of this sort requires a legal knowledge which I do not possess, it is really a lawyer's case, to deal with the fundamental aspects of the Bill. I could not, however, resist as a layman putting from a layman's point of view what I thought was the fundamental position of the Bill. What I really rose to do was to re-enforce as strongly as I could the case made by the hon. Member for Kent in a much more able way than I can make it, of the actual effect of the work of this Royal Commission upon small property throughout the country. The point which I wish to make is this: If hon. Members will look at Clause (2), Sub-section (2), par. iii, they will see:The compensation shall be assessed in accordance with the principles upon which the Commission appointed by His Majesty under Commissions, dated 31st day of March, 1915, and 18th day of December, 1918 (commonly known as the Defence of the Realm Losses Commission), has hitherto acted.…Had those principles been absolutely fair and just nobody would have objected. The real question for the House to consider, it seems to me, is whether those principles were or were not fair and just, because the House is now asked to make them statutory. I want to make this point quite clear: that this is the first time the House has ever been asked to confirm that principle. The House is committed to nothing at present, and on that I venture to suggest that what the House originally intended to do has been very much stretched by the Executive. What the House originally intended, in appointing this Commission so far as I recollect, was where there has been 1790 actual loss, where property had been destroyed, that instead of people being able to claim moral and intellectual damages, à la Paul Kruger, they should only get actually what they lost, or what damage or injury they had sustained to their goods. This is what the House agreed to in principle. That was then stretched and carried to this point: that when property was requisitioned, not only was no inflated price paid for it, which it might have acquired during the War, but nothing at all was paid for it. The word "contract" was construed in this way. In a group of properties, say a village or a small town, where through military action people were forbidden going into that town, and the houses were not able to be let to visitors, the military requisitioned those houses and said: "Because by general military order visitors have been precluded from entering these houses, you, the occupiers of these houses who are now letting lodgings, will have no opportunity to do so, and therefore your property is of no value; therefore we will give you nothing for it, but take it and give you no rent." That is what actually happened. My right hon. and learned Friend, who gave us a most clear and excellent explanation of the Bill, I took notice—I think he must have had some experience in horse-dealing—laid great emphasis on the strong points and very little on the weak points, over which he passed quite gingerly. He seemed to me to talk aboutShips, and shoes, and sealing-wax, And cabbages and kings.But he said nothing about landladies. The small seaside landlady has a real hard case, with which the House ought to deal. I could give the House actual cases which have come within my own knowledge. Let me give one. There was on the South Coast a boarding-house occupied by two ladies in poor circumstances.
This house was requisitioned, and the matter was investigated by the Losses Commission, and they went into it on the basis of loss. They said, "We have figures to show that these two ladies have received in a year about £500 from boarders. Of that, about £400 has been expended upon what they have supplied to the boarders, and they made a profit of £100." One of those ladies was an invalid who could not work, and the other lady had been in the habit of waiting upon the visitors 1791 and working in the house. The Losses Commission decided that this £100 should be divided as the profit made by these two ladies. The invalid was allowed £50, but in regard to the other lady, who could work, it was decided that as she could transfer her work somewhere else, she could not have the £50. I know that this decision was reversed afterwards, and they did get the £100 in the end, but that kind of decision really cannot be made legal by this House.
I was interested in what my hon. and learned Friend said about goods which had been requisitioned, and he appeared to make a strong point by looking at it from a broad point of view. He said that the question was, " Was the market price to be paid, or were we to pay a fictitious value caused by the nation's need?" I agree that we ought not to pay a fictitious value, but that is paid upwards and downwards. The War in some cases created a fictitious high value, and in other cases, like the one I have quoted, it destroyed them. Where by direct action the Crown precluded people from using their property, it still had its old pre-War value on the rate book, but it had a fictitious low value created. As my hon. and learned Friend refuses to give a fictitious value when the War has created it, he should not demand that where the War has created a low value the Crown should take advantage of that by paying nothing at all. Surely the principle in favour of the Crown is equally good in favour of the subject. If he would amend this Bill and say if the simple principle could be followed that where property has been requisitioned and where it is claimed there is no loss, I do not think anybody whose property is taken should have less than its pre-War rateable value.
My hon. and learned Friend thinks that it is hard that one person should be treated differently from another. In the same town you have houses taken by agreement for which the actual rateable value was paid as rent, and you have houses alongside them taken by requisition for which no payment at all is made. I think it would be fairer if a proviso could be inserted that where property has been taken by the Crown they should pay a rent for it while they occupied it of not less than its rateable pre-War value. I think that would go a long way to meet 1792 these hard cases, particularly in towns where houses were taken, which might have been let, and yet the claim before the Commission, which was not a legal tribunal at all—if anybody reads the speech of Mr. Duke, as he then was, in the Debate which has been quoted, it will be seen that the whole tenor of his speech was that the subject ought to give up his property to the Crown anywhere for very little or no compensation at all. The principle on which the Commission acted was that the Crown should pay as little as possible in the way of compensation. That is a part of their work, and it is in the national interests that inflated compensation should not be paid to anybody. I agree with what has been said as to losses other than property losses. If property is taken, and they are really given anything which they have actually lost directly, and, to some extent, indirectly; if it includes such a case as I have given as indirect, whereby people by one order are forbidden to use their houses, and by another order those houses are requisitioned, that seems to me to be sufficiently direct to entitle those people to some reasonable consideration and compensation.
This Bill actually deprives a subject of his petition of right. I speak with great diffidence on such a subject as this, but it does seem to me that the subject is deprived of his petition of right and his right of appeal, and that is going a very long way. The Government in this Bill seem to me to have thought only of guarding themselves and the nation against loss, a principle in regard to which the House will support them in the main, but it is carried so far that it appears to deal with the future as well as the past. I hope my hon. and learned Friend will deal with that point when he comes to reply, because that is a very important matter. We know what they have done, but we do not know what they may do in the future if they are given full powers to do anything they like and then it is legalised in advance. That is really an impossible claim, and all I ask is whether it is possible to amend this Bill in such a way that it will do that measure of justice both to the nation and the subject which I am sure the House desires. My own feelings are that it would be much better if the Government would withdraw this Bill and bring in another, because it goes 1793 so far and legalises things of which this House so little approves. That is the course I should prefer them to take. I feel disinclined to vote for the Second Reading unless we get a clear understanding that the Bill will be drastically amended and that it is capable of being so amended. Unless this is done I shall feel it my duty, in the interests of those people whose case I have put to the House; to vote against the Second Reading.
§ Sir EDWARD CARSON
As a humble taxpayer I feel very grateful in a sense to the Government when they tell me that this Bill will relieve the taxpayer of £700,000,000, but I do not believe a word of it. I object, not only to this Bill, but especially to the Memorandum which introduces this measure. This £700,000,000 is a bogey. It is intended to give the idea all over the House that the pockets of the taxpayer are going to be saved to the amount of £700,000,000, which was being unfairly demanded, or would be unfairly demanded, by certain people. There are added in the Memorandum two other bogeys. There are the shipowner and the brewer. During the 28 years I have been a Member of this House the shipowners and the brewers have always been trotted out as people who ought to have no consideration. If these people are wrongly claiming £700,000,000, then deal with them, but do not, simply because a brewer is a rapacious person or a shipowner is a rapacious person, take away every right that exists at law from every one of them and from the many thousands of people who have had to struggle to live under the difficulties of the War. Here is what the Memorandum says:The effect of Clause 1 would be to take away any remedy by petition of right or other legal process in a Court of law, whether pending or not yet commenced, in cases where property has been requisitioned or businesses interfered with.That is a pretty sweeping proposal. It is said that these conditions have been created by reason of the War. If we were dealing with excess profits or something of that kind I could understand an Indemnity Bill, but to sweep away wholesale the right of every subject, either as regards his property or his business, in the interests of the State and to say they are to have no legal remedy, is a proposal which is not to be found in any Section which has yet been placed 1794 in any Act of Parliament. Hon. Members must not take it, in the short speech I am going to make, that I am an advocate of inflated prices. I do not want to pay a penny more than I can help as a taxpayer. An hon. Member said he was glad to pay his taxes, but I am not glad when I pay my taxes. What we have to take care to see is that we are fair all-round as between the taxpayer and the persons whose property has been requisitioned.
We heard a great deal during the War about equality of sacrifice. Why should one person, because he or she had a house and that house was taken and probably the means of livelihood taken away at the same time, have to pay and the rest of the community contribute nothing towards it. That is an injustice, and it is not equality of sacrifice. It might be the case of a man or a woman who has had a great struggle to live during the War. We are apt to talk as if every owner of property is a millionaire, but that is the greatest mistake in the world. The businesses which were interfered during the War were not all large businesses. It should be remembered that you interfered with people who all the time you were holding their property were compelled by mortgagees and others to contribute out-goings, and had to borrow to provide those out-goings, and now you say having struggled through the War and after having possession of your property and business under those circumstances, you are to have your legal remedy. I hope the House will never submit to a Bill of that kind.
What do they propose to substitute for the courts? Let the House take notice of this. They say, "You can go before the Defence of the Realm Losses Commission." I want to make this clear to the House. What was the Defence of the Realm Losses Commission set up for? It was set up to deal with cases where there were no legal rights, and therefore no legal remedies, and anything given-by that Commission was ex gratiâ. They thought it was so hard on people in certain cases that they had no legal rights or remedies that the Prime Minister said, "We will set up a Commission to which those who have no legal remedy can go and claim compensation." It was in cases only where there were no legal rights or remedies that decisions 1795 were given by this tribunal. But what do the Government say now? They say, " You who have a legal right, who have a legal remedy, are to go and be treated in exactly the same manner and on the same principle as men who have neither a legal right nor a legal remedy." These are the exact terms of this Bill. Was there ever made so unfair and so unjust a proposition? I challenge my hon. and learned Friend the Solicitor-General to deny that that is the effect of the Bill. The Defence of the Realm Losses Commission would not listen to the people with legal rights. I have been before them several times, and I remember on one occasion that I stated so strongly a case in which I had probably no legal rights that the Commission suggested to me, "Are you not proving a legal right"? I had at once to draw in my horns or they would have told me to go to the courts.
All the people who stood back waiting to go to the courts are now told that they are to go to the same Commission as dealt with people who had no legal rights or remedies at all, and are to get the same compensation for their legal rights as men who had no legal rights obtained. Is that not an unheard-of proposition? I wonder at the Government bringing it forward. I understand the learned Solicitor-General said it would be a great hardship if these people got more compensation than the others who went before the Commission. But what relationship is there between the two sets of people? The moment this House begins to deal wholesale with legal rights and legal remedies in a Bill like this, sweeping them all away, it will be impossible to estimate the amount of injustice that will be done or the extent of the grievances that will be set up. I hope the Government will not go on with this Bill, and I would most earnestly ask them to appoint a Committee to investigate this matter. Put plainly into the Bill the class of cases you mean to hit. Put plainly into the Bill the way in which you mean to hit them. Put plainly into the Bill that there is to be no profiteering caused by the War, and no excess profits. Do all these things, but do not pass an Act in the dark without the House knowing of the infringements of legal rights to which it is proposed to subject many poor people.
§ Mr. ALEXANDER SHAW
I think the majority of hon. Members by now have come to the conclusion that this Bill ought to be withdrawn. That conclusion was forced upon me by the very moving speech to which we have just listened, and I cannot help thinking that the learned Solicitor-General and those who were engaged with him in drafting this measure, have left altogether out of sight the vast multitude of humble people whose rights are proposed to be swept away in a single Clause. I would view with some apprehension a position in which every decision come to by the Defence of the Realm Losses Commission is swept away. But I understand from what was said by my right hon. Friend that no such proposal is in contemplation. I agree that the Government had better withdraw the Bill, and consent to the advisability of setting up some tribunal to act by way of appeal for the really hard cases to which reference has been made. I wish to deal with one point not yet mentioned, but which I think is of some importance. In the words of Professor Dicey, in his monumental work on the Constitution, an Act of Indemnity is the highest exercise and crowning proof of the sovereignity of Parliament. It is the legalisation of illegality and, therefore, a process to which the House of Commons has in all ages paid the most scrupulous attention.
What do we find in Clause 4 of this Bill? What was the position? During the War and after the War, until comparatively recent months, there existed in the Board of Trade an Import Restrictions Department. I am very sorry my right hon. Friend the President of the Board of Trade was not here to listen to the eloquent speech of the last speaker, and I should have been glad, too, had the Leader of the House been present. The object of this Import Restrictions Department, as the Solicitor-General has said, was to counter the submarines. But after the German submarines were safely stowed in British ports the Department continued to carry on its work, and business people in this country still went about with fetters upon them, especially those engaged in the import trade. Goods a person desired to obtain from abroad could not be obtained because a barrier had been raised which inevitably increased prices and accentuated the scarcity of the commodity. But the Government are now saying to the people who set up these barriers, and who did 1797 so without reference to Parliament, "You were right" Business men at that time were mazed and struggling in a tangle and jungle of red tape accompanied with the simian clamour of contradictory Regulations shouted from a hundred Departmental typewriters. That was the position before the War was over, and it is being maintained. Why? The Sankey judgment altered the whole situation.
I remember very well going on a deputation to Sir Auckland Geddes, the then President of the Board of Trade, who received us with his usual courtesy. That was in the days before the Sankey judgment. We said to him that we, as Members of the House of Commons, and some of us as men engaged in commerce, objected to the import restrictions, which we deemed to be both unnecessary and irritating. We were told by Sir Auckland, with a solemnity which it would be impossible to exaggerate, that the restrictions were absolutely necessary. I am within the memory of some present when I say he told us of the existence of a great head of German goods ready to flood our markets and to stamp out our industries if only the restrictions of the Board of Trade were removed. Where is that great head of German goods to-day? I rather wish we had it, for the sake not only of this country but of the world. Its existence was a pure fiction from beginning to end, yet on it was founded the British trade policy which was kept so dark that it was said to be concealed in a locked box. This is a unique example of departmental absurdity in founding on a pure fiction a policy which varied up and down from day to day, and which involved the making of a host of Regulations which, according to the intensity of the supposed menace, were changed in character from day to day. That is what the traders of this country had to contend with.
If the House will look at Clause 4 of this Bill it will find that the orders which imposed these import restrictions are to remain, it may be for months, until peace has been made with Hungary, and until the necessary steps have been taken under the existing statute. The Department, too, is to remain. But what is the justification for the Department? It may have had some justification before the Sankey Award while the supposed bogey existed, but none of the terrible consequences which were feared have 1798 taken place. British commerce and British credit have been far better since. The only possible justification, so far as I can see, for setting up these restrictions and this tangled scheme of licenses would be that the menace had been in some way revived. My right hon. Friend the Member for Duncairn referred to some of the bogeys set up by the Memorandum of this Bill. I cannot see against what bogeys Clause 4 of the Bill is directed. As a teetotaller, I must confess that I have never had delirium tremens, and so I am unable to see some of the horrors to which the Clauses of this Bill are directed. I remember hearing an old marine say to a young recruit, " Did you think you had D.T.s because you saw rats last night? Just you wait until you see peacocks sitting on the end of your bed playing cornets." I was quite unable to see Sir Auckland Geddes' rats, and I am simply longing to see the peacocks of the right hon. Gentleman the President of the Board of Trade. I regret exceedingly that he is not here. After all, Clause 4 has nothing to do with an Indemnity Bill. An Indemnity Bill is a Bill to which none of us would object. Its scope would be to indemnify the servants of the Crown against the legal consequences of acts which they have done in good faith. It is a Bill which draws a line at the past, and says that if within that line you have acted in good faith in the interests of the country you are protected. This Bill goes into the future. Its character throughout is such that, although in this Session of Parliament I have never voted against the Government, I shall, in the absence of very distinct assurances on this matter, feel compelled to join my friends in the Lobby against the Bill.
I do not remember during this Parliament a Bill which has met with a similar reception to this, with the one exception of the first Coal Mines (Emergency) Bill. That Bill, I remember, met with opposition from all parts of the House, and this measure is taking very much the same course. With the exception of the Minister in charge of the Bill, no one has yet risen to say a word in its favour. There is a more striking resemblance still to the Debate on the first Coal Mines (Emergency) Bill. I remember that, after that Debate had proceeded for some considerable length, the destiny of the measure was settled 1799 by a speech made by the right hon. Gentleman the Member for Duncairn. I have listened with a great deal of interest to his speech on this occasion, and I shall wait with interest to see whether the Government on this occasion take the same course as before. I think they would be well advised to do so. So far as the Debate has gone, and allowing the fullest weight to the speech of the learned Solicitor-General, I do not think any adequate reasons have been put before the House for the passage of this measure at this present time. If there were any Minister to whom the House might induced to surrender its own liberties, or the liberties of the country, it would be the Solicitor-General, who is so persuasive and poetic, and so much the essence of sweet reasonableness. If it were possible to grant the measure on the merits of its introducer, he would certainly get it. It emphasises still more than would otherwise be the case the demerits of this measure, when, in spite of its introducer and introduction, we find that it has met with such determined opposition. It seems to me that it is essentially a measure which should meet with opposition from private Members, because it is a measure to grant an indemnity to the Executive. If this House stands for anything, it appears to me that it should stand as the guardian of the liberties of the people of this country against the Executive. It is not easy nowadays to visualise the position as it existed when the Petition of Rights was introduced. It is rather curious to reflect that, after two or three hundred years, we should be contemplating in this House the passage of a measure which would very largely abrogate the rights and liberties secured for the people of this country when the Petition of Rights was passed through the House. That, however, is the case.
I think it is Walt Whitman who speaks of the "never-ending audacity of the executive person." [An HON. MEMBER: "Elected person!"] For my purpose the other version will be more apposite. During the last two or three years we have had countless instances of the way in which the powers of the Executive have been used, with probably very little opposition and without much comment, to infringe and override the general liberties of the subject. The 1800 House probably, during this Parliament, has had no more important measure before it than the present one. I think the Solicitor-General said that Indemnity Bills were a common feature after a War, and I have been endeavouring to find a Bill that was at all similar in character to the present one. I do not find that any Indemnity Bill was passed after the South African War. There may have been one passed after after the Napoleonic Wars; I do not know; but I have not come across any precedent for a measure of this character. The people of any country, if they are to preserve their liberty, must be continually watching and criticising the actions of the Executive. The price of liberty is eternal vigilance, and, in this country at least, the subject has, by long established right, protection, against the Executive. That protection is by an appeal to the courts. The courts stand there to protect the subject and to administer justice, not only as between individual and individual, but as between the subject and the Executive of the country. This Bill does everything, it seems to me, that could possibly be done to withdraw that protection. Clause 1 says that no action or legal proceeding at all shall be instituted in respect of any act if it is done in good faith. How is it to be determined whether the act was done in good faith? The position is that, in a claim against the Executive, the Executive is to be protected if its action was done in good faith, but according to this extraordinary measure that is to be decided by the Executive itself. Sub-section (3) of Clause 1 provides that a certificate by a Government Department—the very Department that is impugned, that is, in a sense, on trial—shall determine whether the action was done in good faith.
§ Sir E. POLLOCK
May I say that that is a very grave misreading of the Bill? Let me point out the purpose of the certificate. The Sub-section says that in the case of any act or thing done under the authority of a person holding office or employed as aforesaid, the certificate shall be sufficient evidence of the facts therein stated, and any such matter or act done under such authority shall be deemed to have been done in good faith unless the contrary is proved. The result is that the certificate merely covers the question whether or not the person is acting under the authority of someone holding 1801 office. Good faith would be deemed to follow unless it is proved otherwise, and that is a question of fact which would have to be dealt with in the court in which objection was taken to the proceeding.
It is rather presumptuous for a layman to intervene in this Debate at all. It is a matter on which lawyers have a great advantage, but we have had some considerable differences of opinion, even in this Debate, between lawyers of equal eminence, as to what the construction of this Bill is. I understand that no action can be instituted in respect of any act if it has been done in good faith. The certificate is given by the Government Department, and is in itself proof that the act was done in good faith unless the contrary is proved. Where is the contrary going to be proved?
§ Sir E. POLLOCK
I hope my hon. Friend will not think I wish to be dogmatic. I am perfectly ready to meet suggestions. If the Bill needs amendment in Committee, I shall be perfectly ready and glad to hear any criticism which may make a point. If the proceedings are instituted, then a proceeding then would be before the court. An objection can be taken to the action on the ground that it will not lie and cannot be proceeded with, because it has been already provided for under this measure. There would have to be a summons or other proceeding before the court to stop it. Upon that, the question of proving or disproving the allegation of good faith would be a question of fact. It really does not go to the root of the Bill, but is a matter for possible amendment in the Section, and I shall be interested to hear what the hon. Member has to say, and, if necessary, to consider the matter.
It did appear to me to go to the root of the Bill, but, from the explanation that my hon. and learned Friend has given, it appears to me that that is not so. What I thought was happening under this Bill was that the subject was being barred from the courts by the fact that a certificate was being given by a Government Department which was to be taken as evidence of good faith unless the contrary was proved, so that the contrary must be proved to the Government giving the cer- 1802 tificate. I now understand that proceedings may be instituted, but that they may be stopped if it is shown in Court that the act was done in good faith. I do not know how that affects other hon. Members, but it does appear to me to make a difference in the effect of the Bill. Most of what has been said in the Debate up to the present bears upon the effect that this Bill is going to have on property. The Executive has no more rights in respect of property than of persons, but some of us on this side of the House feel that insufficient attention has been given to the effect which this measure is likely to have upon the treatment of persons during the War, and our opposition to this Bill as it is drawn is very largely based upon that rather than upon the effect it is going to have upon claims in regard to property, although we think that in that respect injustice might perhaps be done under the provisions of this Bill. I do not think my hon. and learned Friend gave us any really adequate reason for introducing the Bill at this time. The War is not ended, and the effect of passing this Bill is to give as it were a blank cheque to the Executive, that is to say, not only an indemnity for acts committed in the past, but for whatever may transpire between now and the termination of the War. That appears to me to be an unreasonable thing to ask for. One imagines that the proper time for bringing in a Bill of Indemnity would be after the termination of the War, when the House would have, as far as it could have, cognisance of the kind of things it was intended to grant an indemnity for. Perhaps we shall be given some adequate reason before the Debate closes for the introduction of the Bill at this period.
There are two other matters that appear to some of us to be reasons for not passing it at present. In Egypt and in India there have been happenings of a very serious kind. They have been such as to justify the appointment of two inquiries, Lord Milner's Commission in Egypt and Lord Hunter's in India. Neither of them has reported. We are asked now to pass a Bill of Indemnity which would prevent the House from taking any action upon those Commissions when they report.
§ Sir E. POLLOCK
I do not think the hon. and gallant Gentleman could have 1803 heard what I said upon that question or else I must have failed to make myself clear. I pointed out that there was an exception, so that in the case of Amritsar there could be the institution or prosecution of proceedings on behalf of His Majesty or any Government Department, and also in the case of Amritsar that there is an Act of Indemnity in force in India. How far it goes I do not know, but inasmuch as these matters took place in India they are covered by that Act of Indemnity. The reason why the Bill includes powers in reference to this was because of the transitory actions which may be brought against the Secretary of State for War in respect of matters which were ordinances in India which are specified, and as to which "Regulations shall be made under the Defence of India Act"—the question of taking the output of factories in India, restriction of imports, and a number of other things which I detailed.
I listened with fairly close attention to what the hon. and learned Gentleman said, and I thought I gathered the points he was making, but I do not think he quite met my point. It is true this Bill reserves to His Majesty's Departments the right to institute proceedings, but that is not quite the same thing. That is simply adding to the power of the Executive in the matter. What I think one would desire to preserve would be the power, not of the Government, but of this House to act. It is felt that it should do so on the presentation of those Reports. I think I have said enough to show, not only along the lines of the effect of the Bill upon claims in regard to property, but also of the effect it will have upon executive actions affecting the lives and liberties of His Majesty's subjects during the War, that it is open to very serious objection from our point of view, and we are inclined to join very strongly indeed in what has been said to the Government as to the advisability of withdrawing the Bill and proceeding with such portions of it as are necessary at such time as is proper, but separating entirely the question of compensation for requisitions of property from these larger questions which affect the lives and liberties of people under His Majesty's rule.
1804 May I say one word with regard to the claims of property? I do not think any of us take objection to these claims being referred to a properly constituted Commission, but I think there is an objection to the fact that under the Bill as it stands such a Commission can refuse to state a case to a court of law unless it is disposed so to do. At present, as far as my knowledge goes, in any arbitration a case must be stated if it is desired by the party, and it seems to me that the Government are lending to their action an appearance of an ex parte treatment of the matter by putting a Clause of that kind in, and while a Commission might be the tribunal for dealing with questions of compensation, if on matters of law they were prepared to allow those who appeared before them to have access to a court, that would meet the objection. With regard to trade, the introduction of Clause 4 is an entirely gratuitous thing. If the Government wants to deal with the question of the restriction of imports and the re-establishment of embargoes, they should not associate it with a measure of this kind. It has all the appearance, under cover of a very much larger issue, of slipping this sort of thing through. I do not think the hon. and learned Gentleman really made out a case for that when he was dealing with the Clause.
§ Sir E. POLLOCK
Clause 4 is not intended to confer future powers. The real purpose of it was that which I explained, namely, to validate things which had been done. If the hon. and gallant Gentleman has a misgiving in his mind that this intended for the purpose of carrying forward some fresh powers and using it for fresh purposes, I am quite willing to say that that is not the intention. If it requires amendment in Committee, we shall be perfectly ready to deal with it. There is no sinster intention in the Clause. It is drawn only for the purpose I stated.
An ordinary Member reading the Bill, especially the last Clause, would assume the effect of it to be to continue in operation up to the termination of the War any proclamation or Order in Council prohibiting or restricting the importation of any goods. The Sankey judgment simply said that proclamation was illegal. But I do not understand by that, that it is in fact withdrawn. It has simply made it inoperative. I take it that the effect of the 1805 passage of this Clause would be to give it fresh life.
§ Sir E. POLLOCK
The intention undoubtedly was to deal with Orders already issued. The hon. and gallant Gentleman would like the words "purporting to have been issued." Those are really points which may be carefully considered in Committee. I am very much indebted to him for the various observations which he has made, of which I am making a careful note for the purposes of the Committee stage.
I should like to make an observation on the Newcastle case. The hon. and learned Gentleman says the facts of the case are not uninteresting, and I quite agree with him. I think the speech he made about them renders them still less uninteresting, because out of the illustrations and arguments he used against the charge for rum I felt I could make a very excellent tract for the taxation of land values if I only omitted the word "rum" and inserted the word "land." I was rather wondering whether the hon. Member (Mr. Pretyman) would make any comment on the arguments which were used. The argument the hon. and learned Gentleman used against paying this excessive price for rum was in the first place that there had been brought into the market a purchaser who was not there before, and therefore the price of rum has gone up. That is precisely what happens when a public authority comes into the market for land. He protested against a basis of value being taken for fixing the price of the rum which existed alone in the necessities of the country at large. He asked whether the value of the rum was a genuine value or a fictitious value given by the efforts of society at large. All these arguments appear to me to be admirable arguments applied to the other subject.
The Bill contains a great many things which should not be there, but there is one matter that it should have contained, but does not. It is brought in to grant an amnesty to the executive. The Government feels that it has done a great many things which are probably wrong, and wants to be forgiven and let off. There are other people who require an amnesty, and we are of the opinion that when the Indemnity Bill is brought forward again—I am assuming that this is going to be withdrawn—the proper 1806 course, the course which will present them to the whole community in the generous light in which a Government should be presented, would be to accompany the Indemnity Bill, which grants an amnesty for all their acts, with an Amnesty Bill which would relieve, not criminals, not people who have committed actions which merit punishment, but those individuals in the Army and elsewhere who " under the stress of War "—words which are used in commending the Bill—did things which made them for the time being fit and proper subjects for punishment. I commend that to the hon. and learned Gentleman as perhaps the most important thing I have said yet. If the Government will withdraw the Bill and introduce it at a later date, at the proper time, and accompany it with an Amnesty Bill, they will meet with the undivided support of the House, as they are apparently meeting now with general opposition.
§ 8.0 P.M.
§ Sir H. NIELD
Not for the reasons which I apprehend are lurking in the mind of the last speaker, I oppose this Bill. I tell the Government most sincerely, as an old and vigorous supporter, that if my allegiance is to turn upon this Bill, that allegiance goes, for I intend to vote against it and do everything I can to defeat it as being one of the most mischievous measures ever introduced. I accept the Solicitor-General's disclaimer in regard to the price of the rum. The information which I gave by interjection was information given to me as to the price at which the rum had been commandeered, and the price at which the Government were trying to sell it, but I am assured by the Solicitor-General that the rum that was sold was not bought at the price I mentioned. There are so many things that are dealt with in this Bill, and so many injustices which it is likely to cover, that I am bound to make my protest as vigorous as I possibly can. The right hon. Member for Duncairn (Sir E. Carson) has already drawn attention to the number of humble persons who have been treated most unjustly and most cavalierly by the Government in regard to the commandeering of houses. I will add to those particulars. Here is the case of a widow with an unmarried daughter of middle age who depended upon certain property which they had in 1807 the neighbourhood of Haslemere. Their house was commandeered. It was a house in which they did not live, and was of a very fair size. It was commandeered by the Army, who took possession and put soldiers in. There was no control. These men broke up fixtures, destroyed an enormous quantity of the valuable portion of the house, the greenhouse, the outhouses, and so on, and when they were finally got rid of and a claim was made, a most paltry compensation was offered, so paltry that it would not have covered the cost of decorating one of the rooms. That is one of probably tens of thousands of cases all over the country. Here is another case of a working-man, a small tradesman who had been successful in pre-War days and had got a certain amount of money, which he had invested in land with the hope of developing it. The land is situated at Shoreham, in Kent, and at Ashford, in Middlesex. It would have been built upon but for the War. This land was commandeered and treated just as the Department pleased, and not a farthing's compensation has been offered, nor can the man get the least indication that he is ever likely to get compensation. That is a high-handed proceeding which cannot be justified. At any rate, I should be interested to hear if any justification could be offered for such proceedings.
There is also the case of the commandeering of premises belonging to the Cannon Brewery Company and to a public authority with which I am connected. The premises were taken summarily at, I believe, seven days' notice by the Central Control Board under the Munitions Act. The houses in question were in the neighbourhood of the Enfield Small Arms Factory. The Public Authority deemed it better to agree with their adversary quickly and they felt compelled to take what the War Losses Commission chose to give them rather than to litigate and go further. But even in this case the Control Board, though all the while in possession of these premises and carrying on a lucrative business by its legal advisers, raised fine controversies at points upon the title, one of which was to claim that the vote of the stockholders representing many thousands of pounds should be taken. They were not dealing with an ordinary trading company, but with a body constituted under Act of Parliament 1808 whose members were all elected, representative of County Councils and grouped lesser authorities of the counties of London, Middlesex, Essex and Hertfordshire, the City of London and others, so that it was in fact a public authority. Thus this authority was kept out of its money until it was able to get a vote of its stockholders in general meeting. Fortunately the annual meeting was close at hand and the two things were able to be dealt with on the one notice. They acted in that way and kept us at bay for months refusing to pay the interest while they kept the money. They showed such animus and such bureaucratic conduct that it was quite sufficient to cause anyone to refuse to allow this Bill to pass without protest.
The Cannon Brewery Company fought their case. When the Department entered into possession the Brewery Company refused to accept the War Losses Commission's decision and proceeded to the Courts. The Government authorities were not content, however, to take the judgment of the Court of First Instance, which was given by an eminent judge, now a Lord Justice of Appeal, then Mr. Justice Younger, but they proceeded to the Court of Appeal in order to justify the taking of these premises, which they claimed to do under the Munitions Act. In the Court of Appeal it is true they had one judge in their favour, a minority judge, but two other judges were against them. Not content with that they went to the House of Lords. And there a unanimous judgment was given against them by four learned lords. In the end there were seven judges against their high-handed proceeding against one for them. I find from a question which I put to the Attorney-General last August that the taxed costs—and those who know anything about litigation know what relation taxed costs bear to the full indemnity costs which the party has to undertake—amounted to £1,200, while the costs of the Central Control Board amounted to something like £2,500. The total costs of both sides were £3,718. Such a proceeding is not one which ought to be wiped out by an Indemnity Act, without first inquiring as to the conditions under which the litigation was persisted in, notwithstanding the overwhelming weight of judicial opinion. I am told that the Government have managed to evade full compliance with 1809 the decision of the House of Lords, and have compelled the litigants, if the matter is really settled, to accept less than is right in their own judgment. The learned Solicitor-General shakes his head. I should be glad to know that that is an intimation that the information which I have received is not correct.
§ Sir E. POLLOCK
I have no knowledge. I do not know what has happened since the judgment of the House of Lords, and I cannot say without further inquiry.
§ Sir H. NIELD
I hope that inquiry will be made. At any rate, there was a perversity shown in regard to this case which I hope may not be the general course of conduct of the Central Control Board and of those who have the duty of advising the Government in regard to litigation. I am not by any means unsympathetic to that portion of the Solicitor-General's speech in which he referred to the extraordinary inflation of profits. He stated that when the Government came to buy there were speculators who got into the transaction, and the result was that the profits were very much inflated. He spoke of the Newcastle case and the judgments which were in conflict as to the validity of Regulations dealt with in Clause 2 (b), and he spoke about the market price at the time of the transaction not being necessarily the proper measure of damage to give. But I would like to remind him that in matters dealing with the administration of profiteering the Board of Trade have actually issued instructions to local profiteering committees that the cost of replacement of an article might fairly be regarded as the basis upon which to found their decision. So that if goods are commandeered by Government Departments from merchants, if there is to be anything like similarity of treatment, they at least ought to have the reasonable costs of replacement. And I can only presume that the claims which have hitherto been made against the Government by those persons have been based upon something of that principle and such reasonable margin of profit as was obtainable in the trades in which they were concerned.
It is an intolerable thing that the Government are at liberty to interfere, as they have interfered in the businesses referred to by my Friend from the West 1810 Riding (Mr. Rae) in relation to wool. It is monstrous to suggest that conduct of that kind should have taken place and that it is proposed coolly to legalise it by a Bill of this sort. I hope sincerely that before this Bill is allowed to proceed further the Government will refer it to a Commission or Committee which may have before it the fullest information of the kind of transaction which it is proposed to deal with under this Bill. There should be schedules of transactions that have already been concluded. It is reasonable that the Bill introduced shall provide that transactions which have been settled in good faith shall not be reopened by reason of the terms of the Bill, which will enable those who have not yet been willing to come to an agreement to go on in that way. They have a right to do that, and it would be a dangerous thing if we are in this way going to limit access to the Courts. This Bill will do that. And I am not at all satisfied with the explanation of the Solicitor-General in answer to my hon. Friend the Member for Newcastle, when he was construing the operation of Clause 1 in relation to the later Clauses in the Bill, because it seems to me that if a person wants to proceed under the indemnity he has to present a petition of right, a cumbrous business for which you have got to get various consents, but he might have had a summons taken out with all costs right away from the beginning before he had any reason to know that the Government were going to raise any objection. I hope that the Government will take into consideration setting up at once a duly constituted Committee to examine carefully what is in their minds, to examine witnesses, and have before them a schedule not only of the claims that have been settled, but the claims that are pending, and what it is proposed to do, so that we may know once for all the line which they propose to take before we sign a blank cheque, as we are asked to do under this Bill.
Members in all parts of the House have taken part in this Debate, and with one exception, the spokesman of the Government, it has found no friend. I am quite sure that the hon. and learned Gentleman will agree that many of the points that have been dealt with go far beyond what may be called the Committee stage of the Bill. He has indicated clearly that on many 1811 matters he will be prepared to meet hon. Members in the Committee stage. On the other hand, he would be the first to admit that it would be impossible for him to meet some of the points in Committee. I recognise fully that at some stage or other there must be an indemnity given. Members in all parts of the House recognise that it would be a serious thing for the country if certain acts were not indemnified. But one cannot listen to the various legal Members of this House who join issue on principles of interpretation with the hon. and learned Gentleman, without realising that there are some very serious flaws in the Bill. It is generally assumed that so far as the Labour Members in this House are concerned, they are indifferent to the rights of people when property is concerned. Nothing is more fallacious than that. We recognise to the full that a legal right ought to be clearly established, but we also recognise that it is a very dangerous thing to take away the legal right of an individual—
Yes, in the stress of war. My hon. Friend will speak later, and he will probably deal with any sins of omission and commission of mine, but I will proceed in my own way. And in this particular circumstance I can visualise clearly a situation something like this. If I, as a worker, meet with an accident in the course of my employment and have a legal right to compensation, and another individual meets with an accident, but there is no legal right established, nothing is more absurd than to talk about equality by putting us both in the same category. That is exactly what this Bill does. It is something that cannot be justified. But this is called an Indemnity Bill, and the personal objection of the men that I speak for is on other grounds. It is this. You say to the House of Commons, " After all there were many things done during the stress of war that must be looked over." That is what my hon. and gallant Friend said just now.
I want the House to visualise another circumstance. There were nearly 6,000,000 men who became soldiers for the first time. Millions of them never anticipated that they would be soldiers. Millions of 1812 them never wanted to be soldiers, and never trained for a soldier's life. Now we all know, probably every Member of this House knows, many cases where these lads did things and committed offences in circumstances, that, after all, were the stress of war. At this moment there are men serving terms of imprisonment for crimes committed during the stress of war. A real Indemnity Bill ought to include an amnesty for them as well. It has been our business to draw the attention of the authorities to many individual cases, and, seeing that conscription is now abolished, I think it would be a wise thing for the Government to bring in a Bill which would restore to liberty such persons as I have described. It is obvious that the Government are in a difficulty. I submit that they ought to avail themselves of this opportunity of withdrawing the Bill and of bringing in, in its stead, a Bill which clearly lays down what the indemnities are to be, so that Members may know exactly for what they are voting. It is no good using the glib phrase that we are in favour of the profiteer. It is clearly known that we are not in favour of the profiteer. At the same time, we Labour Members are not prepared to indemnify property or anything else unless at the same time the Government recognises fully and frankly that now the War is over prisoners of war should receive a general amnesty.
§ Mr. LORDEN
I have been a fairly consistent supporter of the Government, but it is quite impossible for me to support this Bill. The point that strikes me is that it proposes to take away from the citizen his right to go to the Courts, and to substitute for that the decision of a Losses Commission. I have taken the trouble to find out the reference to the Losses Commission and it is this:Whereas we have deemed it expedient that the Commission should forthwith issue, to inquire and determine and report what sums, in cases not otherwise provided for, ought in reason and fairness to be paid out of public funds to applicants who, not being subjects of an enemy State, are resident or carrying on business in the United Kingdom, in respect of the direct and substantial loss incurred and damage sustained by them by reason of the interference with their property or their business in the United Kingdom through the exercise by the Crown of its rights and duties under the Defence of the Realm.That was the intention when they were appointed, but the Commission did a 1813 very extraordinary thing. They immediately set to work to minimise those powers, and in the first Report they issued they said this:We have further been satisfied that, on the true intent of the language of the terms of our appointment, it was not within the power entrusted to us by the Crown to make a determination for payment out of general funds in respect of losses arising through the enforcement of an Order or Regulation of general application.That is where most of the injustice has come in. Take, for instance, the case of people whose houses have been commandeered when it has been a general Order. They have got no compensation whatever. We have been talking a lot about equality of sacrifice, but that is not equality. Yet when you get a specific case on identical lines, where only one person has been affected, the case has been considered and compensation has been given. I am pleased to say that I do not happen to be a shipowner or a brewer and I do not happen to have any shares in either a shipping company or a brewery. I can, therefore, speak with regard to these matters without any feeling. I do not know of any case in which I should claim compensation from the Government. We have all had some little things in which we think some injustice was put upon us, but those we pass by. This Bill, however, I must characterise as an absolutely dishonest Bill, and I feel sure that if the Government proceed with it they will certainly get the rebuff which they richly deserve. We are all in sympathy with the idea of an Indemnity Bill, but it should be specific and deal with cases in a proper way. The Memorandum puts in an amount of false issues, and makes those who read it think they are going to do a very great service to the taxpayer. I think there is not a taxpayer in the country but would rather pay his just dues than be unfair or dishonest, as I believe this Bill to be.
Lieut.-Colonel JOHN WARD
For the last two hours I have been listening to the speeches, and I wondered if there was any possibility of anybody making a statement on the other side. I assumed that someone would stand up and say that there was another opinion besides that expressed from all parties in the House. Even the right hon. Gentleman the Member for Derby (Mr. Thomas) thought it necessary to get up and sup- 1814 port what is really after all the wealthy element of the House in opposition to this measure. Let us make no error about it; all the speeches, including even that of the hon. and gallant Member who spoke for the Liberal Opposition, had as their main burden the rights of property. The reference to the amnesty of military offenders now in prison is just a mere bit of spice upon the plate. Everybody who has listened to the discussion knows that it is purely a question of pounds, shillings and pence from beginning to end. What is really the suggestion of all the speeches against this Bill? It is that, so far as damage to property by virtue of the necessities and stress of war is concerned, they should have the advantage of the full legal process as if there had never been a war. The poor cases, we may safely assume, have been dealt with because people of that kind would not be able to hold out, and this question, therefore, is one which really concerns wealthy co-operations and wealthy people who have been able to stand their losses and to remain practically indifferent to the decisions of the Departments. We are now seriously asked that in the case of all the things that a nation is obliged to do when fighting for its life, and when the whole property and lives of the citizens are thrown into the scale, to have the ordinary legal processes applied to rectify all the injuries that were bound to occur in the stress of war. The people who claim that have waited until the War is over. If this suggestion is adopted, what amount, will the country be saddled with? I expect it will total hundreds, if, indeed, not thousands of millions. That is the idea that gentlemen have of economy.
I am surprised at Labour Members being brought into the swim, and I am astounded that they have also taken the side of the propertied people who want, like Shylock, to get their last pound of flesh out of the State. But that is the position they have taken up and the chorus has been so unanimous and the tale has been told so spendidly the whole of the afternoon, that there is the tendency for men even in the Labour party to try and swim with the crowd when it looks as if it is impossible to stem the demand. So far as I am concerned if I were the only man to do so, I should certainly go into the Lobby in favour of a Bill to relieve the State of what would be almost an impossible burden under the present 1815 circumstances. The Solicitor-General has offered to give consideration on questions of details. My hon. Friend who has just spoken said that what is wanted is a Bill giving all the details. It would take possibly three years to get a Bill of that kind through the House, and I imagine that a book about three times the size of the Bible would be necessary for the Act of Parliament alone. That suggestion is so absurd that you may take it from me it is merely a debating point to try and get rid of the principle of an Indemnity Bill altogether. As I am obliged to speak to almost empty Benches I do not suppose I can bring any influence to bear on the decision of a House which I have heard described since my return as a purely plutocratic House. As I have said, this is a Bill which must concern the wealthy classes as the claims of poor people have in all probability been satisfied. I understand that some two or three millions of money alone would have to be presented to the shippers if this Bill were not passed, while there are other huge and wealthy corporations waiting with their mouths open in the hope that this Bill may be defeated and that they may be able to go to the Courts in spite of the War and seek the ordinary processes of law. As to amnesty, a Bill of that kind I imagine would be very small and could be passed almost unanimously. It is nothing less than a trick for these monopolists to fasten on the question of an indemnity for the prisoners of war and get our Labour friends to support them so that they might clear off with the swag. The necessity of an Indemnity Bill such as this after a great war is so patent and so definite that I should not imagine for one moment that you could have an intelligent set of men opposing it unless they have got something behind which they do not state in public. That is my opinion, because I venture to think it is a natural corollary of the events through which the country has passed during the last six or seven years to have such a Bill as this. I daresay I myself may have done something which was not perfectly legal more than once during the War, and I am not a bit concerned whether you have it out by legal process or any other process, because it is done, and it is a moral certainty that I could prove to any intelligent man that had he been 1816 in the same position as I he would most likely have done the same; but everybody knows that that would be no defence against a real legal action under ordinary law. The mere fact that through the stress of war I was obliged to act as I did would be no defence under the ordinary law such as these gentlemen want all their claims to be settled under. So far as I am concerned, not only am I going to raise my voice in favour of this Bill, but I am going to give it my support in the Lobby.
§ Mr. MADDOCKS
I regret to have to join in the opposition to this Bill, but there are so many principles involved in it that strike one as being unconstitutional that I must give my reasons for opposing it. The Bill is divided into two parts: "Restriction on the taking of legal proceedings against persons acting in good faith" and also "Right to compensation for acts done in pursuance of prerogative and other powers." This is really a Bill for legalising illegalities, and therefore this House must look very carefully into the circumstances before it passes such a Bill. If no illegality has been committed, no Act of Indemnity is needed, and I think one will find very few Acts on the Statute Book that go anything like the extent to which this Bill proposes to go. If you take Clause 1—and it is to that Clause that I principally take exception—you will see that it deals with the restrictions on taking legal proceedings against persons. One has to remember that throughout the War the duty of carrying out the work of the Government was placed in a great many hands, and under this Clause every one of those persons who acted in an illegal, high-handed, unauthorised manner would be protected. He may have caused damage to any number of persons, he may have brought ruin to some persons, but that person would be protected by this Bill. It is necessary for hon. Members who are not lawyers to understand the principle upon which the law of England is based with regard to wrongful acts done by the Crown. The Crown can do no wrong, and if an act is done by an officer or a member of one of the Government Departments which is unauthorised or amounts to what we lawyers call a tort, that is, a wrong, as distinguished from a breach of contract, the Government is not liable, the Crown is not liable, and no petition of right 1817 will lie to the Crown in respect of a wrong, although that wrong may have caused ruin to an individual. The only remedy the subject has is to bring an action against the individual who authorised the wrong. If he happens to be a colonel in a regiment who has taken a very high-handed manner and broken the law, it must be against that colonel; if it happens to be a member of a Government Department who has given instructions for an illegal act to be done, it must be against that individual. The Crown is not responsible and the Crown cannot be approached by Petition of Eight in respect of a wrong; it is only in respect of a breach of contract that it can be so approached.
Under Clause 1 of the Bill it is proposed to whitewash and protect every one of those individuals; however highhanded his action may have been, however improper, under whatever sense he acted, that man is to be allowed to go free, without any inquiry. No compensation is to be asked from him, and no action is to be brought against him in respect of it. Under Clause 1 he is to be protected, and probably this answer would be given by the Solicitor-General. He would say, "You are protected in this way, that it only relates to persons who acted in good faith and in respect of acts done or purported to be done in the execution of duty, or in the public service, or otherwise in the public interest." I want the House fully to understand the meaning of those words " in good faith," and I am quite sure the House will agree with me that this is altogether too wide a protection to afford to any individual. What is the meaning of " in good faith "? It must mean that he was actuated by a proper motive, that he had in his mind that he was doing the public duty, that he thought it was for the best, but the Bill itself later on goes on to provide that the person against whom proceedings are threatened, the person who has done this illegal act, is to be deemed to have done the act in good faith unless the contrary is proved. So that you see the dilemma in which a person is placed who has a cause of complaint against an officer or a person in the employment of a Government Department. He has to prove that the act of which he complains was not done in good faith, a thing that is almost impossible to do in law. The burden of proof, if it 1818 were shifted and put in this way, that a person should be excused for doing an illegal act against another if he proved that he did it in good faith, is quite another matter, but the Bill, as drawn, puts the onus of proof upon the person bringing the complaint.
May I give an illustration? I know these facts to be true, and they speak more eloquently than any argument, especially a legal argument addressed to laymen, can do. A certain person, a lady of about thirty years of age, kept a boarding house at one of the seaside towns, and she had lodging with her a newly-made captain, with his new honours upon him. The captain desired that the electric light should be left on till 11 o'clock at night. At the seaside town in question the Regulations were that the electric lights were to be turned of at 10. He gave instructions to the landlady that they must be left on till 11, and went out to a concert. Returning before 11 o'clock, and finding that the light was out, the captain immediately went outside and called in the nearest officer of the guard. Proceeding to the lady's bedroom, he put the lady under arrest, and she remained under arrest for an hour and a half in her nightdress, until he was graciously pleased to allow her to go. If this Bill were law, that man would be excused.
§ Mr. MADDOCKS
Unless the lady was able to prove that it was not done in good faith—and he would not have to go into the box to explain it; she would have to go into the box and show it was not done in good faith—that is what would happen if this Bill were to become law. That is an actual case, and I know the truth of it, and none of the Law Officers of the Crown can deny it.
§ Sir L. WORTHINGTON-EVANS
The Law Officers of the Crown are not present at this moment. My hon. and learned Friend has already dealt with a some what similar case and denied it. If such an action were brought, it would not be stayed, unless the Court came to the conclusion that the individual officer had acted in good faith.
§ Mr. MADDOCKS
I am sure my hon. Friend must be under some misapprehen- 1819 sion. What does he mean by the action being "stayed"? You cannot stay an action in the way he suggests, by merely making a suggestion that it was done in good faith, and have a trial on that issue first. My right hon. Friend must know that. It would have to proceed right up to trial, and the person making the application would have to show that the person against whom the action was brought was not acting in good faith. That would be the effect if this Bill were passed into law. Throughout the country there have been a great many hardships caused by irregularities from various causes, and people, rather than interfere when the War was on, preferred to pass by these hardships and to leave them to be dealt with when the War was over. Now that the War is over, you are meeting them with this Bill, which would at once put a stop to any investigation, and effectively prevent any of these matters being inquired into in public. Even assuming that you are going to get over the difficulty with regard to the point of good faith, where is the inquiry going to be held? Not in the courts of law. It is to be something entirely different. Why should it be so? The Law Courts of this country are regarded as one of the finest institutions in the world. One looks upon the judges as the most impartial body any country in the world possesses. Why depart from the ordinary law? Why depart from the ordinary principles of law in assessing compensations or in conducting an inquiry? Why mistrust the institutions already existing? The Law Courts are provided for dealing with disputes and difficulties between subjects of the realm and also between subjects and the Crown. Why set up another tribunal altogether when the Law Courts are there, and the persons there are independent of the Ministers of the State, independent of the Crown, and hold office during good behaviour? I am not suggesting for one moment that the persons who would constitute that Tribunal would not be honest or would not be most competent people, but I am saying that when you are dealing with a matter of this kind you ought to be above suspicion, and the Law Courts are above suspicion, and are the only institution in which such matters should be tried.
With regard to the question of compensation for damage, I was not at all 1820 impressed with the arguments of my right hon. Friend as to shipowners, for shipowners are very wealthy men, and they appear to have made quite a considerable sum of money. But I am impressed with this fact, that to substitute, as is substituted in Clause 2, another principle of assessing compensation is a violation of the laws of the land. It is an alteration of the principles upon which we lawyers have always acted. It is giving another standard which we do not understand, and I am more impressed by that than by any question of loss by shipowners. I am sure you will find that the big shipowners, about whom we have heard so much, and the people who deal, as the Solicitor-General said, in 259 puncheons of rum and have a profit of £10,000, are not the people who will suffer hardships. The people who will suffer hardship are the people who have had a house commandeered, and the income from that house is the only income they possess. I say without fear of contradiction, because I know it to be true, that if you were possessed of a house during the War, and that house was unlet, as it might easily be during the War, and you had no prospect of a tenant, and it was commandeered by the Government, if you went before the Duke Commission and asked for compensation, you were asked: "Is the house let?"—"No." "Have you a prospective tenant?"—"No." "Then you suffer no loss," and the Government take your house and keep it for three or four years, and you get not one penny compensation. That is the principle upon which the Duke Commission acted in regard to assessing compensation. That presses more hardly upon people who have small properties than any other class of the community.
Now let us look at what is to be adopted in dealing with claims. Under the proviso to Clause 2, Sub-section I (iii)Nothing in this Section shall be construed as conferring on any person a right to compensation in any case where, in accordance with the principles on which the tribunal has hitherto acted, he would not have been awarded any compensation.So that in the case which I have just mentioned even now no compensation is awarded. The claimant is not entitled to compensation in any case unless he would have been entitled hitherto to compensation by the Commission. That is 1821 obviously unfair and obviously wrong. Then I ask: what is the principle upon which the Commission is going to act? I have told what I know to be the fact. I could not tell you, Sir, what the law of the Commission is, because there is no law of the Commission. The law officers of the Crown could not tell you what the principle is because they do not know. It is not the law of the land. The hon. Gentleman beside me said truly, that if you went before that Commission that Commission said: "If you have got a legal cause of action go somewhere else: we shall not deal with it; we are only giving ex gratia payments." Now that kind of payment is not given on any principle. These payments are given in cases of hardship, and according to the circumstances. There is no rule to guide these ex gratia payments, and there are no rules of law to guide the Commission. I want to examine this, because I am quite sure hon. Members will be interested to know how anybody is to try and gather something from the principles laid down in this Bill! Let us see what principles there are to direct them. Clause 2, Subsection (2), paragraph iii, tells us that the compensation is to be paid on the principles hitherto adopted by them. Then I notice that Sub-section (3) says:(3) A certificate by the said Board of Arbitration or Commission as to the principles upon which they have acted hitherto shall be conclusive.May I ask whether that certificate is to be given before or after hearing the case? If it is to be given, on what principle is it to be given? What is to be said in the certificate? If the Board or Commission are giving a certificate on the principles upon which they have hitherto acted they have got to set down a code of law! They are giving that certificate, and it has to be conclusive and binding. As I suggested to the House, that certificate may easily be given after the event. It has to be conclusive and binding upon the parties to the arbitration. I hope the hon. and learned Gentleman in his reply will deal with that point.
Just one other item, and then I will cease. In Clause (1), Sub-section (3) hon. Members will find another matter that is entirely wrong, and opposed to the principle of justice. It reads:(3) For the purpose of this section a certificate by a Government department that any act, matter, or thing was done under the authority of a person so holding office or 1822 so employed as aforesaid, shall be sufficient evidence of the facts stated in the certificate.It does not state what facts. There is no limitation on the facts that it states, and the Government department may state the facts, and that is conclusive or sufficient evidence for the court to act upon. There is no limit put upon it. I have detained the House some time in explaining this matter, very imperfectly from my point of view. I can only say that I have not disturbed the harmony of this House for nearly 12 months, and that is my apology; and because I feel so strongly upon a matter of this kind, I could not keep my seat. When I have heard arguments put forward in this House so much better than I could put them forward myself, I have been content to listen. When, however, a Bill is opposed to every principle that I hold dear, when I find a Bill that is subversive of the common law, of the law of the Realm, a Bill that upsets the constitution, a constitution of which we are proud—then I cannot resist addressing the House, and saying that so far as I am concerned I strenuously oppose that Bill, and shall oppose it in the Lobby.
§ Major MACKENZIE WOOD
It is seldom, I think, that a Bill is received with such a chorus of condemnation as the Bill we are discussing now. I am not going to oppose it on the ground which has been put forward mostly to-night, on the ground that all the speakers have opposed the Bill—on the compensation which is to be paid for goods and other things requisitioned by the Government. There is a great deal to be said for that particular section of the Bill. I, for my part, would be quite prepared to support a Bill drawn on those lines. What is the principle we are asked to lay down in this Bill? It is simply this: that when the Government takes the property of any individual during a war, for the purposes of the war, presumably they should compensate that individual by paying to him the cost of the property whatever it may be, with a reasonable profit over and above. [HON. MEMBERS: "No, no!"] That seems to me the principle underlying this part of the Bill. It may be that the principle has been very ill-expressed so far. I think there is a good deal to be said for the point which was made earlier in the Debate by the hon. Member opposite (Mr. Pretyman). His point, as I understood it, was that if the Government 1823 are going to refuse to pay war-inflated values, they ought not to claim the right to pay deflated values, if the value which is put upon the property in question has been reduced by the War. That seems to me to be a good argument in favour of the principle, and if the Commission has not been acting upon it heretofore, it would be quite easy to embody in this Bill an instruction to the Commission to act in that way in the future. But that is a Committee point, and for my part I would not oppose this Bill on that particular ground.
The objection I have to this Bill is that it drags into it a large number of questions which ought to have been kept separate. We cannot deal with all these questions in one Bill. The chief objection I have is that the indemnity is going to be prospective. My experience in this House is not very much, but I do not think that it is usual for this House to give prospective indemnity. The Bill is not merely going to legalise past illegalities, but invites officers and other people to commit illegalities in the future. It is telling them that they will be relieved from all the consequences of their acts if they do certain things. It tells them that no matter how careless they may be in future, how negligent, how incompetent, if they act in good faith nothing will come of it. Can you imagine anything which will be more likely to cause trouble or injustice to a man, particularly a man in the rank and file of the Army? There is another point. I cannot understand why Clause (1) is required at all. There is at the present moment in the Army Act a Section which specially relieves officers from the consequences of their actions unless proceeding are brought within six months of the time when the action complained of was committed. Section 170 of the Army Act says:Any action, prosecution, or proceeding against any person for any act done in pursuance, or execution, or intended execution of this Act …. or in respect of any neglect or default in the execution of this Act shall not lie or be instituted unless it is commenced within six months after the act, neglect, or default complained of.The Public Health Protection Act, 1893, seems to me to go even further, because it says:Where, after the commencement of this Act, any action, prosecution, or other proceeding is commenced in the United King- 1824 dom against any person for any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority in respect of any alleged neglect or default in the execution of any such Act or duty, the following provision shall have effect: (a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months of the act, neglect, or default complained of, or, in the case of a continuance of injury or damage, within six months next after the ceasing thereof.That gives any officer or public servant all the protection to which he is entitled or that he ought to get. I should like to know from the Government why they think it necessary to introduce these particular Clauses, which go further than anything ever proposed in such a Bill before. The Solicitor-General, in the speech with which he introduced the Bill, hardly did justice to the case against Clause (4). He said that during the submarine campaign the import of certain commodities was prohibited and that it was loyally accepted by most patriotic members of the community. That was an injustice to those people who called these Proclamations in question. Nobody, as far as I know, ever questioned the Proclamations until after the Armistice. After hostilities had ceased they were called in question, because it was believed that they were being used, not for the original intention, but for political and fiscal purposes, particularly in the interests of Protectionists. The Solicitor-General said that the import of certain commodities was prohibited. The word " commodities " does not describe them properly, because the things that were prohibited were just those mentioned in the Schedule to the Anti-Dumping Bill of last year, showing that it was wholly a question of protection.
We object to this particular Clause, not because we object to relieving the Government of any action which might be taken against them for seizing goods which they thought had been prohibited, but because it gives them power not merely to re-enact the Proclamations, but to continue to enact other Proclamations till the end of the War. The result will be that there will be no necessity for the anti-Dumping Bill at all. We can have it all done by this method. Some time after the Sankey Judgment the Board of Trade issued a notice saying that they were withdrawing the Proclamations, but 1825 they meant immediately to re-enact or republish them, or at any rate to give them validity in some way or other, so that traders might take it that they were not to be repealed entirely. We are entitled to ask in what way the Government are going to re-enact these Proclamations. Are they going to re-enact them by means of this Bill and by means of Clause 4, or are they going to do it by means of an anti-Dumping Bill? These Proclamations, as the law at present stands, are illegal. If the Government want to be empowered to do what the Proclamations purported to do, then they ought to come here and ask for permission in the ordinary way. No one who really is determined to assert the power of Parliament can possibly give his support to this particular Clause. There are some parts of this Bill which I am prepared to support, but I cannot support it all, and I think most Members are in the same position. I hope, therefore, that the Government will consider the difficult position in which Members find themselves and follow the only possible course by withdrawing this Bill, introducing it in another form, and not binding up in one measure all these different subjects.
§ Sir RYLAND ADKINS
I am very glad to see that my right hon. Friend the Leader of the House has just come in, because the supporters of the Government, who are anxious to help in every way and who realise and believe that it is for the interests of the country that the Government should be as strong as possible, are being placed in a most difficult and unfortunate position by this Bill. This is a Bill brought forward to deal with a problem which always arises in every country after a war, and there is no problem connected with that difficult and painful passage from war to peace which requires more careful and adroit treatment than the problem as to when, how far, and in what degree ordinary law can return to the position which it always forfeits when a country is engaged in war. Members of all political parties and all schools of political thought were agreed that in a war, and particularly when the War was at a stage in which the whole future of the nation was concerned, many things not only might be done, but ought to be done, which are intolerable in times of peace, and the supersession of law and procedure by administrative action is one of those inevitable circumstances of 1826 war which no constitutionalists can ever like, but all constitutionalists may have to put up with in an emergency. Surely it is the duty of the Government to take the earliest opportunity of returning to normal methods and do all they can to see that those methods are applied with the greatest equity and in the widest possible manner. Here we have a Bill, part of the object of which is obviously right. You must have an Indemnity Bill to a certain extent and for certain purposes, but it is of the greatest importance that such a Bill should not in its very national considerations for individuals injure the freedom and constitutional rights of His Majesty's subjects.
My hon. Friend the Member for Nuneaton (Mr. Maddocks) addressed an argument to the House, the weight and fairness of which commended it to those hon. Members who have not the same legal acumen and profound knowledge of what the exact law of our country was in times of peace. He has pointed out in reference to the question of asking for an indemnity with regard to the individual the whole point is on whom is the burden of proof to lie of proving that wrongful acts were done in good faith. If you put that burden upon the person who has done wrongful acts the courts of our country can be trusted to see that when any individual in a moment of crisis is proved to have acted honestly, he shall not be punished as if he had been guilty of a wilful and wrongful act. As put forward in this Bill that is entirely impossible of defence, and I ask the Government to see whether this necessary part of an Indemnity Bill could not be so drafted, constructed and framed as to avoid that to which I have referred, and the ridiculous position of such cases as my hon. and learned Friend quoted where some poor woman who had been arrested because she obeyed the ordinary civil law of the neighbourhood is to have the burden of proof to show that the officer who was suffering from imperfect judgment was really acting in good faith or not.
A more important point involving criticism is the tribunal to decide what happens when a man's property is taken, and legitimately taken during the War for Government purposes. My right hon. Friend pointed out that no one wants a person whose house or warehouse or factory has been taken to have inflated 1827 profits which arise out of the War. It would be far easier for those skilled intelligences now grouped on the Treasury Bench and for such gifted human beings to have devised a Bill which entirely prevented any such improper benefits arising to persons whose property had been taken during the War. It would be far easier to devise that than to have brought forward the complicated and unsatisfactory provisions which this Bill contains. I believe that there is unanimity in this House on this great principle, that so far as we can prove it we wish no one in our country to benefit by the country's suffering in War, and no one personally to suffer more than can be legitimately avoided. That is surely a proper principle to adopt.
If the place where a man carries on his business is taken, what is the true measure of compensation? The point is that he may have lost his ordinary livelihood; he may have been put to a great and continuous loss, and you want to put him back as far as you can in the position in which he would have been in if there had been no War. This Bill stereotypes the decisions of the Losses Commission, of which I would say the principles they act upon are known to no one except themselves, and it is an unheard-of thing in the legal history of our country to put in an Act of Parliament a group of unknown and undisclosed principles developed by three or five gentlemen and to say that in future they shall become the law of the land, Parliament not knowing what they are. That surely is unnecessary.
With regard to what my hon. and gallant Friend the Member for Stoke (Lieut.-Colonel J. Ward) said, I can assure him that there is not disposition in the Judiciary of this country to award fancy compensation in cases of this kind. So far from this matter affecting the rich people only, the poor people have already suffered, and there will be many other poor people left to suffer if the unwisdom of this Bill becomes an Act of Parliament. But whether a person be rich or poor, they are equally entitled to justice. Is it not possible for the Government to have an Indemnity Act to cover the actions of individuals who can prove their bona fides, and, in the inevitable necessity of having some legislation, is it necessary to deprive His Majesty's subjects of their 1828 ordinary rights under the ordinary law and substitute the continuance of a method which is inevitably haphazard, to which the nation quite cheerfully submitted in war time, but to which, when you once get rid of war, we want to get rid of altogether? Clause (4) seeks to maintain the Orders in Council for restricting imports until the termination of the War. Where are we now as regards the War?
§ Sir E. POLLOCK
I do not think the hon. Gentleman was in the House when I pointed out that it was not intended under Clause (4) to pass new regulations or new restrictions. I have already made a statement that that was not the purpose, but it was in connection with action which has already been taken.
§ Sir R. ADKINS
No one knows better than my hon. Friend, that most of the mistakes made by preceding Governments have been made through good intentions being improperly applied. I accept fully what my hon. and learned Friend says, but I repeat, that under Clause 4, regulations in restraint of trade may be continued until the time technically known as " the termination of the War," which may be many months ahead, and business retarded; and this is embodied in a new statute at a moment when war with Germany is over, when war with Austria is over, when our war with Turkey is on the eve of concluding, and when the only nation with which we continue at war is Hungary, with whom our trade is comparatively unimportant, and will be still more so when, under the Peace Treaty, she has a very small seaboard. The point is, that we are to-night in an international position which is far more that of peace than of war. Our war relations are over, thank God. Is it necessary therefore, is it wise, is it in the interests of the country or of the Government itself, to bring into this Bill a Clause which takes power to continue the restraint on trade behind the back of the House, and to do this at the moment when the war conditions which alone justified the restraints are almost entirely at an end? On these grounds I urge the Government to-night, in view of the almost unanimous disapproval with which their Bill has been met, to realise that that disapproval does not proceed from factious or sectional opposition, but from a desire felt by everyone in the House 1829 that the transition, inevitably difficult from war to peace conditions, should be done with the greatest amount of consideration for popular rights and constitutional practice. If that be the feeling of the House, as I am confident it is, I hope it will be reflected in the utterances of the Government, and that they will show their willingness to amend it in the interests of the nation's good.
§ Sir F. BANBURY
I have no interest in this Bill either direct or indirect except as a taxpayer, and although I do not, like one hon. Member who spoke, pay taxes gladly, I must say I would far sooner pay them than commit an act of injustice. What is the history of this Bill? This is not the first time it has been introduced. It was brought in before with a different title. It was introduced last August, on a Bank Holiday, when there were very few Members in the House and most of those were watching a water pageant on the river, and it was hoped that it would pass through unobserved. It was called by a different name: it was called the Defence of the Realm (Continuation of Regulations) Bill. Fortunately I happened to read it, and I represented that, though it was called by that name, it did a very important thing which was not mentioned in the title, because it took away from the subject a right which was one of the things Magna Charta secured for us and the Stuart kings tried to take away. I succeeded in inducing the Government to postpone its further consideration until the Autumn Session, and in the Autumn Session I raised a point of order that the particular object which was perpetuated under another name in this Bill was out of order and that the Bill was outside the scope of its title. Mr. Speaker ruled that I was right but added that it was not possible to stop the Second Reading, providing that an alteration was made in Committee. That alteration was made in Committee and confirmed on the Report stage. Now the same thing is brought in again under camouflage. The hon. Member for Central Aberdeenshire, is, I believe, the only Member who has supported the Bill, and he did so by advancing an argument which was not germane to the Bill at all. He said he would not like to see inflated values given. But there is nothing in the Bill about inflated values. The Solicitor-General said he was prepared to give compensation provided it was not on an 1830 inflated basis, but if this Bill were passed and the hon. Member or anyone else interested had to appear before the tribunal, that body would not listen to what was said in the House, and therefore his argument would be quite worthless.
§ Major MACKENZIE WOOD
I suggested that the Bill could be amended in Committee to meet the criticisms.
§ Sir F. BANBURY
But why not bring in a Bill which does not need amendment in Committee? The Solicitor-General dealt with the remarks I happened to make on the 10th March, and quite inadvertently, I am sure, misrepresented me in regard to what actually occurred. The occasion on which those remarks were made had nothing to do with the appointment of the Defence of the Realm Losses Commission, it was on the Defence of the Realm (Amendment) (No. 2) Bill, in the Committee stage, and there was nothing about giving compensation. What I said was, that I should like to move an Amendment, but I was afraid it would be out of order because it would impose a charge. I was afraid that in this Defence of the Realm (No. 2) Bill the Government might want to give compensation if it took property or goods belonging to anybody, and that there was no fund out of which it could give compensation. That was why I said it would be out of order, because it would impose a charge. What did the Prime Minister reply? The Solicitor-General has read what the Prime Minister said. The right hon. Gentleman stated that my fear was groundless, not because he was going upon the Defence of the Realm Losses Commission, but because it was provided for under the Vote of Credit. Then he went on to quote the phrase "Business as usual." I was not responsible for that phrase. He said, "Instead of business as usual, we want victory as usual, and we cannot have that unless everybody in the community is prepared to suffer." What did the Prime Minister mean by that? He went on to say:Those who remember the French Parliament in 1870 or 1871 will remember M. Thiers' remarkable speech when similar proposals were placed before the French Parliament. There were suggestions of compensation to people whose property had been destroyed and business interfered with, and he delivered one of the most remarkable speeches in his career, in which he objected in toto to the idea of giving compensation to anyone for anything which was necessary 1831 in order to defend the integrity of France."—[OFFICIAL REPORT, 10th March, 1915, col. 1,460, vol. 1xx.]That meant that if we were invaded and I, for instance, hapened to have a property destroyed by the German guns, I could not come down to this House or go to a court of law to get that property put right, but should have to wait until I got compensation from Germany, which, in the present circumstances, would probably mean waiting a very long time. My hon. and learned Friend said that the present Leader of the House took the same view, but there again he only read a little bit. The present Leader of the House was all in favour of compensation, and this is what he said:I have a letter from a friend of mine in which he states that he had a building taken over and that this deprived him of his means of making his livelihood. This is his experience as described to me. He went to an official of the War Office and said, ' My damages are so and so.' He was told, ' That is far too high. I will give you so and so.' He replied, ' That is nonsense,' to which he got the reply, ' You are not entitled to anything. If you get anything it will be as an act of grace.' "—[OFFICIAL REPORT, 10th March, 1915, col. 1,463, vol. 1xx.]That is what we want to do away with. I hold, although as a taxpayer I may have to pay, that if my property or someone else's—fortunately for me the Government have not taken any of mine—has been taken, there is a right to compensation, such compensation to be fair and just. I would ask the House and the country where should we be more certain of getting fair and just compensation—not inflated compensation; no one wants that—than to a Judge of the High Court? My hon. Friend and the Government agree with me. See what they do. Subsection (1) of Clause 1 provides that, except in cases where a right to compensation is provided by Section 2, this Section shall not prevent the institution or prosecution of proceedings on behalf of His Majesty or any Government Department. What does that mean? It means that the Government can go to a Court of Law, if they choose, but a subject may not; they preserve to themselves the right which they take away from the subject. Can any House of Commons support a Bill which does that? A greater piece of injustice I cannot possibly imagine. I do not know if it is correct, but a Member of this House wrote to me this 1832 morning—he has, unfortunately, had an operation and cannot attend—that he did not think it was not largely known, but the Defence of the Realm Losses Commission have no legal power to award any damages at all. All they can do is to make a recommendation to the Treasury. If the Treasury do not choose to accept their recommendation, there is nothing to compel them to do so. I am inclined to believe that my hon. Friend who gave me this information is correct. We must remember that in this case we are not dealing with the Government; we are dealing with subordinates and officials in a Department. That means that if any official in a Department chooses to go round and purchase someone's ground or someone's wood—and whatever my hon. and learned Friend says about not selling the rum at a profit, they certainly sold the wood at a profit—or to take someone's house, and to say, " We will give you nothing at all for it," and if that person wishes to try and obtain some compensation for being deprived of his house or his goods, he goes to a Commission appointed by the Government. They are judges in their own case.
§ Sir F. BANBURY
They cannot remove the Judges, and they do not appoint them all at once, nor for a given object. This Commission are appointed for one particular object, and, even though the Government appoint them themselves, they take good care that, if their decision is a little bit against what they they think they ought not to pay, they need not pay any attention to it. That is really a travesty of justice. I want just to make one further point. My hon. and learned Friend is always courteous, and, if he will allow me to say so, the relations which have existed between him and me for many years have always been of the most pleasant kind. Therefore, I ventured to interrupt him to ask a question, and I think that by accident I must have asked rather an awkward question.
§ Sir E. POLLOCK
My right hon. Friend is never unpleasant or awkward, and I delight in answering him.
§ Sir F. BANBURY
At any rate, he took an hour and a half to answer, and then, no doubt owing to the lapse of time, he had not remembered my question, and, 1833 therefore, he gave me an answer to a question which I had not put. I then had to repeat the question, and then I got the answer I thought I was going to get, namely, that any decision, either of a Judge of the High Court or of the Judges of the Court of Appeal, can be reversed, but that if a case had been decided by the House of Lords—and I believe at the present time there is not a single case in that category—that could not be reversed. It was a very ingenious gentleman who drafted this Bill. If it happens to be passed before the House of Lords give a decision, it is a question pending and, according to the words of the Bill, if any such proceeding has been instituted, whether before or after the passing of this Act, it shall be discharged and made void. If, therefore, it has been instituted and not decided upon, it can be discharged and made void. The result of that at once would be that in all those cases which had been decided against the Government they would give notice of appeal, and as it was being instituted it could be discharged and made void. I have always objected to hon. Members opposite saying judge-made law was a bad thing, which being interpreted meant that they had lost their action, and that an Act of Parliament should be introduced to override that law. I am not sure, but I think in the old days, when my hon. and learned Friend was on that side of the House, if I had said that he would have cheered it vociferously, but now, following the bad example set him by hon. Members opposite, he is endeavouring to evade a decision which has gone against him in a court of law. I believe only one Member has spoken in favour of the Bill during the whole Debate. I earnestly hope the Government will take to heart the opinion of the House unanimously expressed, withdraw the Bill, and bring in another which may possibly be necessary to meet emergencies that may have arisen.
§ Captain W. BENN
Like other speakers, I find myself in some difficulty because while there are some parts of the Bill which appear to be reasonable, there is a great deal of it which certainly is open to the very gravest objection. I should like to ask the Government exactly what is the status of these Memoranda which are now prefaced to some Bills brought before the House. Memo- 1834 randa are often very useful, but what validity and what authority may they be said to have? Are we, for instance, to assume that the £700,000,000 named is an official statement of the case or has the validity of an answer given in Parliament, or exactly what authority has it, because, although the practice of putting a Memorandum before a Bill is useful in assisting us to form a judgment as to what is in it, and tells us about matters which we can only find after personal research. Yet if a Memorandum is going to become merely propaganda on behalf of the Government, or another form of urging the House to take a Bill putting forward statements which appear to be of an ex parte character, that is an innovation, a thing I have never seen done before with any Bill introduced into this House. The new rules of procedure, too, put us in a much more difficult position than we should otherwise be in. For example, provisions to compensate people for loss of property and also contains provisions for indemnifying people for acts done in good faith are obviously two quite separate things, and in the old days we might have moved an Instruction to the Committee to divide the Bill into two parts, and the result might very likely have been that the part to which the least objection was taken might have been passed, and the other part put under closer scrutiny and very likely rejected. I am informed that, although in theory there is nothing to prevent us moving an Instruction to the Standing Committee, in practice there is no moment of time when that can be done, and therefore this Bill may go upstairs without any Instruction or any hint as to what the opinion may be about it, with the result that twenty or thirty hon. Members will pass the most important stage of it upstairs without any control from the House of Commons at all. On that ground, if the Bill receives a Second Reading, I propose to move that it be referred to Committee of the Whole House. In that way those who object to some parts of it may have an opportunity of uniting in an effort to keep it down here where we have some control over its individual provisions.
We are in a great difficulty, not being lawyers, but I hope the Attorney-General will make all allowances for any mistakes due to ignorance of the law. I understand that the Bill substitutes for the ordinary 1835 petition of right, or appeal to the Court, the jurisdiction of a special Commission which is to act on certain limited principles. In fact, I understand, instead of paying on what we have been entitled to, it makes an ex gratia payment. Paragraph (b) of Clause 2 says:A person shall be entitled to compensation who has incurred or sustained any direct or substantial loss in consequence of the War.Supposing the owner of a one-man business was conscripted. Everyone would be anxious to see him compensated for the losses he has sustained. Would he be entitled to compensation? If not, it makes the Clause even worse than I thought it was. The Government are substituting a new principle of compensation. The law, as I understand, is to be replaced by this new principle. Supposing in the couse of the next five years a Labour Government got into power and wished to nationalise railways or coalmines, and their opinion was that people whose property was nationalised should be compensated, and supposing they took words out of this Bill and say " they shall be entitled to compensation assessed on the principles and by the tribunal hereinafter mentioned, and the decision of that tribunal shall be final." Surely in this Bill they will find an absolute precedent for taking people's property and paying them on some system hitherto unknown to the law of this country?
Another thing which is not referred to in the Memorandum is the peculiar treatment accorded to the owners of land. Why is it that in paragraph (b) of Clause 3 a landowner is not to be subjected to this peculiar form of assessment for damage which he may have suffered? There was a Bill, to which we offered very strenuous resistance, called the Land (Assessment of Compensation) Act, 1919. We considered that the basis of compensation in that Act was excessive. We were greatly surprised that the Prime Minister, who played such a prominent part at one time in land reform, and an hon. Gentleman like the Attorney-General, who supported him, should have produced such an Act, and now we find that the special treatment there accorded to the landowner is to be continued, and although other people, boarding-house keepers whose houses have been requisitioned, or school teachers whose schools 1836 have been taken away on account of the War, are to have the rough and ready treatment of the Losses Commission, there is a special provision to prevent any of that harsh, rigorous, or niggardly compensation to be paid to the landowner. It appears to me that while the landowner is to have a right of compensation on one basis, other people have to submit to have their property which they have lost assessed on a different basis altogether. With the exception of the hon. and gallant Member for Stoke (Colonel J. Ward), no one has supported this Bill except the right hon. Gentleman who moved it. It must be perfectly obvious that it is much too wide in scope. I very much regret that an engagement in my constituency prevented me from hearing the right hon. Gentleman's speech; but I should be surprised to learn that he was able to give us any precedent after the great wars of the past, for such general forms of indemnity as are set out in this Bill. I believe there was no such precedent. In the past, Bills have been adopted giving indemnity to individuals for what they had to do, which is very proper, and everybody would desire to give such indemnity; but a general indemnity of this kind, so wide as this, is a complete innovation in the history of our country.
§ Mr. L. SCOTT
In moving the rejection of the Bill, I said it was absolutely without precedent, and that there was no such Bill after the Crimean War and no such Bill after the Napoleonic Wars.
§ Captain BENN
I am very grateful to the hon. and learned Gentleman. That puts the matter from the legal point of view absolutely beyond doubt. I was only expressing the lay opinion. There is another serious point in this Bill, and that is the prospective quality. The War is not over. It will be highly inconvenient for the Government when the War is over. As soon as the War comes to an end, the Home Rule Act, for example, comes into force. There are many excellent reasons why the end of the War should not be hurried from the point of view of the Government. They enjoy special powers under the Defence of the Realm Act so long as the War can be kept going. With ordinary luck there is no reason why the War should come to an end for a very long time, and yet this 1837 Bill permits all these acts to be done with impunity so long as the War goes on. I do not know whether the hon. Member for Liverpool could tell us whether there is any Indemnity Act that has ever been passed in respect of prospective.
§ Captain BENN
Then we are clear on that point. This Bill prevents any civil or criminal actions being brought against anybody who gets one of the precious certificates named in sub-section (3) of Clause (1). It invalidates any action that may be brought before or after the passage of this Bill. Will the Attorney-General tell us what will be the position of the boy Patrick Foy, who was imprisoned under the Defence of the Realm Act on suspicion, without any charge? Action was taken for his release, but it failed. A short time afterwards he was released, and given a railway ticket home and sent away rather like the Apostle Paul was discharged from prison. I do not think that the Government has ever suggested that this youth was arrested except in error. It is commonly known that his arrest was entirely a mistake. Why should that boy be deprived of his right, if he can get it, of compensation for being detained two or three months in an English prison for no offence? Take the case of the boy Connors. He was arrested by the police, and when taken before the court the magistrates complained of what they called the lack of candour on the part of the witnesses for the administration. The boy has been awarded £75 compensation. Would this Bill deprive him of that?
§ Captain BENN
Why should he be deprived of that? He was confined in a barracks for some weeks, and the Court awarded him £75 compensation. Take, then, the Sankey judgment on the embargo question. Does this Bill retrospectively invalidate that decision or dispose of the appeal which we are told is going to be brought? The Bill raises a very interesting question of trade embargo in Clause 4. The Solicitor-General explained more than once that Clause 4 is going to be amended in accordance with what he said are the intentions of the Government. The worst of it is that we shall not have anything to do with that. 1838 I hope that the Government will withdraw this Bill, but if it does not, and if the Bill gets a Second Reading to-night, we shall have absolutely no control over it, save what is afforded by the very limited opportunity given by the Report stage later on. The question of embargoes is extremely interesting, especially to members of the Liberal party, especially in view of the statement by the President of the Board of Trade on the eve of the Spen Valley election, that Sir John Simon had given a certain opinion, and the fact, which we only learned after Sir John Simon had been defeated, that that was also the opinion which had been given by the Attorney-General, but rather of more recent date.
But what we object to in connection with embargoes is that the trade policy of the Government was being dictated by the Board of Trade without any reference to this House or the opinion of the electors of the country. Some of us are in favour of tariffs, and others are free traders, but we are all united in the determination that whatever trade policy is adopted must be adopted with the consent and approval of this House, and not on the mere ipse dixit of some member of some obscure Department of the Board of Trade. The position at present is this. The Government, the Board of Trade, are very anxious, I understand, to re-impose the embargoes, but they cannot do it. I have asked the Leader of the House more than once why they do not introduce a Bill to re-impose embargoes. We had a speech from the Financial Secretary to the War Office (Sir A. Williamson) in Glasgow on Friday, and he told us that the Bill had not been introduced because of the opposition of Coalition Liberal Members. I do not know what the Attorney-General thinks about that, but I believe that he has expressed the same opinion himself. If that is so, is it—I do not like to use any word that is in the least offensive—but is it not rather surprising that having difficulties with a straightforward Anti-Dumping Bill, they should try to achieve the same object by an obscure Sub-section of a Bill which is alleged to be an Indemnity Bill?
There are two other points which I might bring to the notice of the House. This Bill, both retrospectively and prospectively, indemnifies officers for everything that has been done, not only during war and the stress of battle, but also in 1839 respect of all these odious things that were done in suppressing the liberties of some people since the War terminated. I shall certainly never say a harsh word without trying to ascertain the facts, or being anything but helpful, but there have been cases in Egypt, Ireland and India which, primâ facie, have given the greatest shock to the good feeling and sympathy of the people of this country. When we raised the question we were told that inquiries were being held and we must wait for the result of the inquiries. We said we would wait, and we never heard the result. In the meantime an Indemnity Bill is being introduced, and it indemnifies the people who may or may not have been guilty of the things to which we object. That seems to us absolutely wrong.
What about the people who have been responsible for shootings in Ireland? What about the soldiers who have been turned loose in the towns now and again and have fired at random? Why bring in a Bill specially to indemnify them? Why are they not sufficiently protected by the existing Acts of Parliament? If it is important to have property safeguarded, it is equally or more important to see that personal liberty is safeguarded as well. The same Bill which specifically indemnifies all these officers for whatever acts they may have done, fails to give an amnesty to those men who may be in gaol for breaches of rules or for acts which partake of no criminality, but which had to be repressed during the War for military reasons. It says in Clause 5:Any sentence …… shall be deemed to be and always to have been valid.So that at the time you are indemnifying the persons who may have been guilty of indiscretions, you are validating the sentence on the victim of indiscretion or brutality. You are doing that, not only for the past, but for the future. Suppose the troops are sent to put down a strike, and suppose that they fire and people are wounded and killed. Will the Attorney-General deny that under this Bill there is a specific indemnification for the persons who are responsible? Then what is the good of producing a propaganda memorandum in front of the Bill saying that it will prevent shipowners from getting £300,000,000, and not mentioning such facts as I have indicated? I feel that the claims of property affected 1840 during the War should be subject to some form of special assessment, but at the same time there is a great deal in this Bill which should not be there. I would respectfully suggest to the Attorney-General and to the Leader of the House, in reinforcement of the suggestion made by far more authoritative voices than mine, that this Bill should be withdrawn and be re-introduced in a better and amended form later in the Session.
§ The ATTORNEY-GENERAL (Sir Gordon Hewart)
The House has now debated for something like six hours the questions relating to this Bill, but I am bound to remind the House that at the moment the only question before us is whether this Bill should be read a Second Time. There appears to be a general belief, which, the hon. and gallant Gentleman who spoke last shares, that there must be an Indemnity Bill. It is quite true that he went on to say—he tossed the ball to my hon. and learned Friend the Member for the Exchange Division (Mr. L. Scott), who, con amore, tossed it back—that there has never been such an Indemnity Bill as this. Be it so. I would add that there has never been such a war as this.
§ Sir G. HEWART
Before I come to the points which are specially urged against the general scheme and method of this Bill, may I refer briefly to some of the particular questions that have been asked? The hon. and gallant Member who spoke last asked what is the force and effect of the Memorandum of the Bill. It is exactly what it describes itself as being. It is a Memorandum; it is a note describing the general purposes of the Bill. It is issued with the authority of the Government. Of course, what my hon. and gallant Friend means is this: Are we adopting something which hereafter may be quoted in the Courts as explaining what is the effect of the Bill? He knows as well as I do that it can have no such effect. He complains that it was a statement of an ex parte character. "Ex parte" is a phrase very often used for the purpose of prejudice, but how could it be otherwise than a statement of an ex parte character when put forward by those who are responsible for the Bill? Then the hon. Gentleman urged, at least I think he urged, that 1841 this Bill should not be read a Second time unless it was to be sent to a Committee of the Whole House. He knows, and I do not need to tell him why, that cannot be done. [HON. MEMBERS: "Why?"] There is another Bill, and one of even more far-reaching scope than this Bill, which will continue for some time to occupy the attention of the House, and it would be quite impossible to put this Bill before a Committee of the Whole House if we are to deal adequately with the Home Rule Bill. But that does not mean that this House will not have further and ample opportunity of dealing with the main provisions of this measure. There will be a Third Reading stage, and there will be, no doubt, a Report stage after the full and minute investigation which the Bill is likely to be subjected to, and I cannot doubt that everything with the Bill that needs to be explored will be explored. The hon. Gentleman, anxious as he appears to be to seize what looks like a promising opportunity to get a score against the Government for the reason that the Bill is so reasonable that its supporters have remained silent and listened to the objections, went on to say that the Bill gave some special terms to landowners, and in support of that referred to Clause 3 (b), which of course deals with quite a different subject-matter, the Acquisition of Land Act. My hon. Friend has an imperfect recollection of that measure. It is a measure which provides for the expropriation of land compulsorily. It provides not now in an emergency, but permanently the terms upon which land may be compulsorily acquired for public purposes. It is quite rgiht and proper that the provisions of that Act should be kept apart from the provisions of an emergency measure.
§ Captain BENN
In so far as land assessment compensation does not refer to the War at all, what is the need to put it in at all? If it does refer to the War, will that land compensation be assessed on a different basis?
§ Sir G. HEWART
It was put in out of an abundance of caution to provide that there should be no error, and that it should not be thought that the foregoing provisions referred to that measure. Reference was made to the case of Foy, arrested on suspicion, and it was said that this Bill would take away compensation. I happen to have a lively recollection of 1842 that case, where a writ of habeas corpus was moved in the King's Bench Division. What was the decision of the judges? The decision of the judges was that that writ was not to be granted, and why? It was for the reason that the authorities in that case had acted within the scope of their power, and whether this Bill is passed or not, there would not be in such a case as that any remedy against the authorities.
§ Sir G. HEWART
My hon. Friend must not ask me why he was released. Is he complaining that he was released?
§ Sir G. HEWART
It is said he was arrested without guilt, but, at any rate, he was arrested under circumstances which the Judges of the King's Bench thought were sufficient.
§ Sir G. HEWART
If the War had not been over, the power would not still have been in existence, but that which was done was held to be within the powers that were possessed. What, after all, are the two main objections to this measure? It is not denied that after a War of this magnitude and this duration an Indemnity Bill there must be; it is not denied that there must be provision to protect what has been done by military officers and civil officers in good faith and in purported execution of their duty; but two points are singled out for criticism. The first is this. It is said that under this Bill, if and when it becomes an Act of Parliament, the property of persons which has been taken by the authorities, chiefly the military authorities, will not be paid for at the market price, but will have to be paid for at some price less than the market price and that thereby those persons will be damnified. May I say at once that it would be a surprising thing if, after all the sacrifices of this War, it should be a pecuniary sacrifice which would excite this degree of feeling? Let me give a particular instance. It is a little difficult to discuss this matter, because there are certain cases still sub 1843 judice, still in certain stages, at any rate, of judicial determination, but let me take one case, the case of the supply of rum to the Forces. What happened there?
It was believed that a large supply of that spirit was necessary. That fact was perceived by everybody who was interested in the sale of that commodity; the greater the demand was, the higher the price became. It is quite true that under the Defence of the Realm Regulations you had, in theory at any rate, the power to requisition; but the power to requisition becomes meaningless and ineffective if it is a power to requisition at whatever price you may raise the market price to by the demand which you have to satisfy. Therefore it became apparent to everybody who had to deal with the matter that if real effect were to be given to the power to requisition, it must be accompanied by some power to limit the price, and accordingly, in the Defence of the Realm Regulations—I think it was 2B—it was provided that persons who supplied that spirit should not be able to demand, or to demand with success, the market price, but should go to the Defence of the Realm Losses Commission and should there obtain a price to be determined upon lines set out in that Regulation. What was the effect of that provision? It was that the go-by was to be given to the market price, but a reasonable price was to be paid, and, speaking generally, the basis was cost and a fair profit. What was the result? The vendors of that commodity got a very large profit, but if it had not been for that Regulation, they would have got an enormous profit more. Is that what is desired? [HON. MEMBERS: NO!] If the power to requisition is to be of real utility, it must, in my submission, be accompanied by a reasonable power to control the price that is to be paid. We desire to be reasonable, but we do not desire to be unfair. The right hon. Baronet the Member for the City of London said how much more willing he would be to pay heavy additional taxation than be guilty of injustice. I have not the least doubt he means exactly what he says, but does he not believe that is true of us also? Does he impute unfairness to us? I venture to assure him we also desire to be fair, but what we do not desire to do is to disburse an excessive 1844 sum of public money in the satisfaction of claims which ought to be dealt with on a different basis.
May I come to what appears to be the real gravamen of this matter? Criticism has been addressed, and in particular by my right hon. and learned Friend the Member for Duncairn (Sir E. Carson), to the work of the Defence of the Realm Losses Commission. It is not for me to defend the work of that Commission, but if I may say so, without presumption and without offence, that Commission in the course of the War has rendered, in circumstances of great difficulty, the greatest possible public service. May I remind the hon. Gentleman, who seemed to speak somewhat lightly of the work of that Commission, that it owed its origin, not to those who now sit upon this Bench. That Commission came into existence upon a certain day in March, 1915, when the head of the Government was the right hon. Gentleman who commands far more respect at the hands of the hon. Member opposite than does the present Prime Minister. What was the purpose for which that Commission was set up? It was set up to grant compensation in cases, as was said in the Royal Warrant, "not otherwise provided for.'' But do not let us judge that statement ex post facto after five years. We have to put ourselves, if we can, in imagination from that point of view. There was a widespread belief at that time that the powers of the Crown, the powers of the Prerogative, apart altogether from the powers in the Defence of the Realm Regulations, were powers of a wider character than in one or two cases have been held to be. There is now pending—and I speak of it with diffidence and with reserve, because judgment has not yet been delivered—a leading case which may have a great deal of bearing on the terms upon which the user of land may be taken in time of war for the purpose of the Defence of the Realm; but whatever may be the view which is held now—and I am not in the least going to pre-judge the decision in that, because I do not know in the least which way it will be decided—but whatever may be the view held now among the public and the lawyers, it must not be forgotten that in those days, even in the opinion of so learned a judge as Lord Parker of Waddington, in a case in the Privy Council, it was held that user of land 1845 may be taken by the Crown in case of emergency for the safety and defence of the Realm, without giving rise to a legal position to pay any compensation whatsoever. I am not saying—and it would be premature to say—whether that view was really right or wrong.
There is a very great deal to be said, no doubt, upon both sides, and I shall not presume to anticipate what the ultimate finding of the final appellant tribunal may be, but that was the kind of atmosphere, that was the kind of view in which the Defence of the Realm Losses Commission was set up. What followed was that an enormous number of people, believing that they came within the terms of the Warrant, believing, that is to say, that their property on the one hand, or their business on the other hand, had been directly interfered with by the exercise of the powers of the Crown, and that by reason of the exercise of these powers they had suffered direct and substantial loss, and went to the Defence of the Realm Losses Commission in order to have their compensation assessed. It is quite true that the Commission, in the form which it came to employ, not perhaps at once, though very soon after its public-spirited work began, came to use a term, a most reasonable and proper term—on entering upon the adjudication of any matter to the effect that the claimant should waive any legal claim—that was done. In a number of cases—the number of which I will not attempt to conjecture—in an enormous number of cases the claimants were paid upon that footing. There are to-day in this country thousands of people, I think it would be accurate to say, who had taken the awards of that Commission in payment of the compensation which they claim. I am not going to criticise. I am far from doing that, the work of that Commission. Let it be said that there are some hard cases. Yet, upon the whole, I do not think that any Member of this House, speaking with a sense of responsibility, would venture to deny that the findings of that Commission have been sound and fair.
What then is the result? Are we to have two classes of persons in this country, who have given up, voluntarily or involuntarily, their property for the defence and the safety of the realm; those who have taken their compensation at the hand of the Losses Commission, 1846 and those who have waited for the ultimate fighting out of certain cases, and then want by Petition of Right to insist upon their pound of flesh, and insist with with success! I think that would be a deplorable result. I submit that in this case, as in all cases, the only proper standard for the Government is that there must be one weight and one measure. What is the practical conclusion of the matter? I submit it is this; that this should remain the appropriate tribunal for determining of the amount of compensation payable to individuals for the user of their property during the War, subject to the distinction I am now about to make. The right hon. Gentleman in one of the early passages of his speech said that what the Royal Commission did was to make a recommendation to the Treasury, which, however, the Treasury might neglect to fulfil at its wish. The reason of that, he alleged, was because the persons who went to the Commission were those who had no legal claim but were asking for an ex gratia payment. I am bound to recognise, and I do recognise, that when this Bill becomes an Act of Parliament it will be no longer true to speak, at any rate, in a certain class of cases, of ex gratia payments. On the contrary the position then will be that whether the claim is legal or not, that, falling within certain categories of the Act of Parliament, the Act will point out to the claimant the tribunal to which he has to go. The award then will be a different kind of award. It will be either in the category of cases in which the claimant does not waive his official right, or in that in which the claimant has accepted a particular mode of satisfying the legal right, because the statute has pointed out to him what is the mode. [Laughter.] Hon. Friends smile at the distinction.
§ Sir E. CARSON
May I ask my right hon. and learned Friend whether what he means is this: that this Bill is to be altered, and that in cases where there is a legal right, as distinguished from ex gratia cases, the assessment of the compensation will be on the basis of the legal right, and thereby discriminate the compensation that has been previously given by the tribunal? Will the Bill be altered to this effect?
§ Sir G. HEWART
I am much obliged to my right hon. and learned Friend for asking me that question. It was the very 1847 point to which I was coming. I think that is right. I think that the Bill ought to recognise that difference, and that words may well be inserted in Committee which will make it plain that in that class of cases there would have been, but for the passing of this Act, a legal right, and that that is a matter to which regard must be had by the Defence of the Realm Losses Commission in assessing the compensation.
§ Sir G. HEWART
Yes, certainly. I think it would be right in Committee—I am sure it would not pass the wit of my right hon. and learned Friend to suggest suitable words for the purpose—on the face of the Bill that that discrimination should be clearly recognised.
§ Mr. INSKIP
Will those principles be applied by a lay Commission of that character or by the Committee which are trained in the principles which constitute a legal right?
§ Sir G. HEWART
My hon. and learned Friend has anticipated my next point. My hon. and learned Friend is engaged, as I am, day by day in a contentious profession which both of us love, and we, at any rate, shall never be accused of hostility to the multiplication of legal claims. Let us, however, distinguish. It is quite true that the Committee, as it is now formed, is a comparatively small body. There have been arrangements whereby the Committee can sit in more than one panel and in more than one place, and it will, no doubt, be a necessary consequence of the passing of this Bill that the Committee shall be enlarged and reinforced, and reinforced, no doubt, by the addition of a very considerable legal element. Let me come to the further point which I know is in the mind of my hon. and learned Friend. It is provided by the Bill, as it now stands, that the Committee may state a case for the opinion of the High Court. If hon. Members will be good enough to look at Clause 2 they will see a proviso, but it is a permissive provision—
§ Sir G. HEWART
We are on points of law. It is a permissive provision for 1848 the statement of a case for the decision of the High Court. I am very anxious to meet the kind of appeal which has been raised, and I think I can indicate, on behalf of the Government, that in Committee we are prepared to remodel that provision so as to give not merely the power to the tribunal to state a case upon questions of law, but also power to the claimant, with the assistance of the High Court, if need be, to require the statement of a case.
§ Sir E. CARSON
This is a very important matter. May I ask whether in stating such a case on the application of the claimant it would be a legal point which could be raised before the superior Court as to whether this tribunal had assessed compensation having regard to the legal rights of the claimant?
§ Mr. L. SCOTT
Would my right hon. and learned Friend also say whether the right of appeal would be one which could take important questions of principle to the House of Lords, because he will recognise that as proposed in the Bill there would be no appeal from the High Court. In view of the difference of opinion that there has been between different judges of the High Court, I suggest to him that it is vitally important that on questions of principle there should be an ultimate appeal to the House of Lords.
§ Sir G. HEWART
With regard to the second point that is a matter which ought to be considered. I do not think I ought, on the spur of the moment, to pledge myself to a course which might have the effect of carrying litigation up to the House of Lords. My right hon. Friend knows that the case which is stated from the judgment of the King's Bench Division is a case upon a question of law, and not a question of fact. No doubt if the evidence were of such a character as to give rise when compared with the award to the view that the tribunal had misdirected itself on a question of law so as to exclude the provision that regard should be had to the existence of a legal claim, that is a matter which could be raised.
§ Sir E. CARSON
This is a matter of such vital importance as to the course we ought to take this evening, that I should like my right hon. Friend to tell me, in language that laymen can understand, whether I am right in assuming 1849 that on the case stated it would be open to the court to say that the damages for compensation have been or have not been fixed in accordance with the legal rights of the claimant, that is, legal rights as existing under the ordinary law as distinguished from the methods of compensation which have been hitherto applied by this Tribunal?
§ Captain W. BENN
Would the right hon. Gentleman tell us what the effect of this concession to his supporters will have upon the figures contained in the Memorandum?
§ Sir G. HEWART
I am quite sure that my hon. and gallant Friend does not expect me to do that sum, and I shall not make any attempt to do it. In reply to my right hon. and learned Friend, I am sure that he is not asking me to say that a case stated would be granted by the Bill whereby a claimant would be enabled to represent to the High Courts that the damages were not sufficient. Short of that, if it were apparent from the evidence that the Court had misdirected itself on a point of law on the question of a legal claim, that might be the subject of the case stated.
§ Sir E. CARSON
I am sorry the right hon. Gentleman used the word "might." I would be satisfied if he would say if, should the Committee be of opinion.n the action was decided on a wrong legal principle, in that case there should be an appeal.
§ Sir G. HEWART
Undoubtedly. I should have thought that that was involved in what I said. These are the two main matters, and I end as I began by saying it is quite clear that an Indemnity Bill there must be, and when the Amendments I have indicated are made in the Bill in Committee, there will, I hope, be little cause for concern. But the matter does not end there. The control of t0068e House as a whole over this Bill continues on the Report stage and the Third Reading, and on those occasions the House will be able to review all the larger questions that are involved.
§ Sir R. ADKINS
Will the right hon. Gentleman tell us anything about the burden of proof of good faith raised in many parts of the House and which is 1850 germane to the question of personal liability?
§ Sir G. HEWART
Yes, it is quite true that under the Bill an act is to be made the subject of indemnity if it is done in good faith and in execution or purported execution of the duty of the officer concerned. But it will not be enough to allege that the act was done in good faith or in execution or purported execution of duty. I conceive that will be a matter for the Committee to adjudge.
§ Mr. PRETYMAN
But is the onus of proof not put on the claimant? Has he not to prove that the act was not done in good faith?
§ Sir F. BANBURY
What is to happen to cases already decided by the Courts? Are they to be over-ridden?
Lieut-Colonel J. WARD
And will the right hon. Gentleman see that the decisions to which the right hon. Member refers are made retrospective for smaller cases decided years ago, as well as for those gentlemen who can hang out for their £700,000,000?
§ Lord R. CECIL
May I venture to make a suggestion to the Government on this point? The whole matter is felt to be very complicated, and the House and the Government must both feel that there is a natural suspicion of any Bill which closes the door of the Courts of Justice to the subject. Everyone must view with great apprehension a Bill which shuts out from the subject the normal recourse to an independent tribunal in which everyone has confidence. I do not think that the Government ought to ask Parliament to give the supreme exercise of its power—
§ Sir G. HEWART
May I be allowed to proceed? More than one speaker has referred to Clause 4, relating to Proclamations and Orders in Council. It is quite true that as that Clause is framed the effect of it is to apply to any Proclamation or Order in Council made during the War. As has been pointed out, the War is not 1851 yet over, and will not be over until the Order in Council under the Termination of the War (Definition) Act has been made. It will be quite right to limit these Orders and Proclamations to those which were made before the introduction of the Bill.
§ Sir G. HEWART
The judgment which is called the Sankey Judgment is already the subject of appeal. The attempt would be, no doubt, to get rid of the adverse effects of that judgment.
§ Sir G. HEWART
That will depend upon the making of fresh Orders in Council and Proclamations. As my hon. and learned Friend is aware, those powers have been very largely extended, but I do not think there would be any revival of them. In these circumstances, after the concessions which I have mentioned on the part of the Government to meet the various objections which have been taken—I know we shall not be able to meet them all, but I think the most substantial ones have been met—I do ask that the House will now give a Second Reading to this Bill. It is said that there is one more matter to which I ought to have referred. Under the practice of the Defence of the Realm Losses Commission, where a claim has been made in respect of the user of premises and it has been proved that, at the time when the premises were taken, no loss has been suffered and no compensation is payable, in the new circumstances which I have indicated that will no longer be the case, and there will be, in such a case, as I imagine, a claim by the occupier or whoever is the interested person. The House has now had a long and detailed discussion on this Bill, and, after all, most of the points I have had to meet have been really Committee points. I do ask that the House will now, without further Debate, proceed to give this Bill a Second Reading.
§ Lord HUGH CECIL
The suggestion I was about to make when the right hon. Gentleman, no doubt through inadvertence, interrupted me was that the Government should send this Bill, after 1852 it has been read a Second time, either to a Select Committee of this House or, which probably would be better, to a Joint Committee of the two Houses. These matters are very intricate, and, with the best intentions in the world, we do not quite follow the nature of the Amendments which the Government contemplate making in their own Bill, but they are, naturally, important. They could be put in before the Select Committee or before the Joint Committee. A Bill of Indemnity can only be justified when there is a conflict between law and justice—when the strict interpretation of the law involves the infliction of injustice. I have not heard any case which showed that, if we did not interfere and if the ordinary Courts were left to their ordinary operation, any great injustice would follow. That is the only ground on which a Bill of this kind can be justified. I suggest that the Government might put their case very much better before a Joint Committee of the two Houses, which would be able to go into the details of the matter and look closely into it, and would then be able to say whether there really was a case for closing the door of the ordinary Court of Justice, and if there was such a case precisely what was the best language to carry out the purpose of Parliament. If the Government assents to a Select Committee or a Joint Committee I shall vote for the Second Reading, but if not I shall vote against it.
§ Mr. ACLAND
May I make this suggestion to reinforce what the Noble Lord has said, which may make it a little easier for the Government to accept. We have had from the Attorney-General an extremely adroit speech which seems to have met—I think some of us doubt a little about it—a good many of the points which have been raised. I suggest that before the House gives a Second Reading, the Government should put on paper, so that it can be circulated, what will be the real effect of the Amendments which have been adumbrated by the right hon. Gentleman. I believe there will be a large concensus of opinion that if those Amendments meet the general views which have been expressed, there would be no prolonged discussion before giving a Second Reading, and I believe that would be much more satisfactory.
§ Mr. BONAR LAW (Leader of the House)
I desire to say exactly what the 1853 attitude of the Government is in this matter. The principle on which we have tried to frame this Bill, the only principle on which it can be justified, is the principle laid down by my Noble Friend, that substantial justice should be done in the exceptional cases of the great War through which we have passed. The Debate has dealt in detail with many of the points which could in the ordinary course be dealt with in Committee. Some Bill of the kind is absolutely necessary if you are to give substantial justice to many who have suffered to a greater extent than those who now have legal claims, and who would have no legal claim, and would have to bear their share of taxation we should have to raise in order to meet these legal claims. The House must recognise that the Bill is necessary, but we desire it to be as fair as substantial justice can make it. I have therefore no objection whatever; indeed, I think on the whole it will satisfy the House and the country better, that
§ it should be referred to a Select Committee, and before it goes to that Select Committee we will undertake to put in a clear form the ideas to which expression has been given. [HON. MEMBERS: "Befor the Second Reading?"] No, it will not be before the Second Reading. The Government have a great programme this Session. We have to get through with it, and I ask the House of Commons to realise that to have the Second Reading now is absolutely necessary.
§ Mr. L. SCOTT
In view of the promise of the Government to circulate in a White Paper the gist of the Amendments they are prepared to concede and also to commit the Bill to a Select Committee, I ask leave to withdraw my Amendment.
§ Question put, "That the word now' stand part of the Question."
§ The House divided: Ayes, 210; Noes, 28.1855
|Division No. 101.]||AYES.||[11.0 p.m.|
|Adair, Rear-Admiral Thomas B. S.||Craig, Colonel Sir J. (Down, Mid)||Hohler, Gerald Fitzroy|
|Amery, Lieut.-Col. Leopold C. M. S.||Craik, Rt. Hon. Sir Henry||Holbrook, Sir Arthur Richard|
|Archer-Shee, Lieut.-Colonel Martin||Croft, Brigadier-General Henry Page||Holmes, J. Stanley|
|Astor, Viscountess||Davidson, Major-General Sir J. H.||Hope, James F. (Sheffield, Central)|
|Baldwin, Stanley||Davies, Alfred Thomas (Lincoln)||Hopkinson, A. (Lancaster, Mossley)|
|Barnes, Rt. Hon. G. (Glas., Gorbals)||Dawes, James Arthur||Howard, Major S. G.|
|Barnston, Major Harry||Dean, Lieut.-Commander P. T.||Hume-Williams, Sir W. Ellis|
|Barrie, Charles Coupar||Edgar, Clifford B.||Hunter, General Sir A. (Lancaster)|
|Bell, Lieut.-Col. W. C. H. (Devizes)||Edge, Captain William||Hurd, Percy A.|
|Benn, Com. Ian H. (Greenwich)||Elliot, Capt. Walter E. (Lanark)||Hurst, Lieut.-Colonel Gerald B.|
|Bennett, Thomas Jewell||Eyres-Monsell, Commander B. M.||Inskip, Thomas Walker H.|
|Birchall, Major J. Dearman||Falcon, Captain Michael||James, Lieut.-Colonel Hon. Cuthbert|
|Bird, Sir A. (Wolverhampton, West)||Fell, Sir Arthur||Jephcott, A. R.|
|Blake, Sir Francis Douglas||Finney, Samuel||Jones, Sir Edgar R. (Merthyr Tydvil)|
|Borwick, Major G. O.||FitzRoy, Captain Hon. E. A.||Jones, Sir Evan (Pembroke)|
|Boscawen, Rt. Hon. Sir A. Griffith-||Flannery, Sir James Fortescue||Jones, G. W. H. (Stoke Newington)|
|Bowerman, Rt. Hon. Charles W.||Ford, Patrick Johnston||Jones, Henry Haydn (Merioneth)|
|Bowles, Colonel H F.||Forrest, Walter||Jones, J. T. (Carmarthen, Llanelly)|
|Bowyer, Captain G. E. W.||Foxcroft, Captain Charles Talbot||Kellaway, Frederick George|
|Bridgeman, William Clive||Fremantle, Lieut.-Colonel Francis E.||Kelley, Major Fred (Rotherham)|
|Brittain, Sir Harry||Geddes, Rt. Hon. Sir E. (Camb'dge)||Knights, Capt. H. N. (C'berwell, N.)|
|Broad, Thomas Tucker||Gibbs, Colonel George Abraham||Law, Rt. Hon. A. B. (Glasgow, C.)|
|Brown, Captain D. C.||Gilmour, Lieut.-Colonel John||Lewis, T. A. (Glam., Pontypridd)|
|Buckley, Lieut.-Colonel A.||Glyn, Major Ralph||Lindsay, William Arthur|
|Bull, Rt. Hon. Sir William James||Gray, Major Ernest (Accrington)||Lister, Sir R. Ashton|
|Burdon, Colonel Rowland||Green, Joseph F. (Leicester, W.)||Lloyd, George Butler|
|Burn, Col. C. R. (Devon, Torquay)||Greenwood, William (Stockport)||Lloyd-Greame, Major P.|
|Butcher, Sir John George||Greer, Harry||Lort-Williams, J.|
|Campbell, J. D. G.||Gregory, Holman||Loseby, Captain C. E.|
|Campion, Lieut.-Colonel W. R.||Greig, Colonel James William||Lynn, R. J.|
|Carson, Rt. Hon. Sir Edward H.||Gritten, W. G. Howard||Mackinder, Sir H. J. (Camlachie)|
|Casey, T. W.||Grundy, T. W.||McLaren, Robert (Lanark, Northern)|
|Cecil, Rt. Hon. Lord H. (Ox. Univ.)||Guinness, Lieut.-Col. Hon. W. E.||M'Lean, Lieut.-Col. Charles W. W.|
|Chamberlain, Rt. Hn. J. A. (Birm., W.)||Hacking, Captain Douglas H.||Macnamara, Rt. Hon. Dr. T. J.|
|Clay, Lieut.-Colonel H. H. Spender||Hailwood, Augustine||McNeill, Ronald (Kent, Canterbury)|
|Clough, Robert||Hall, Lieut.-Col. Sir F. (Dulwich)||Mallalieu, F. W.|
|Coates, Major Sir Edward F.||Hamilton, Major C. G. C.||Matthews, David|
|Coats, Sir Stuart||Hanna, George Boyle||Middlebrook, Sir William|
|Cobb, Sir Cyril||Hanson, Sir Charles Augustin||Moles, Thomas|
|Cockerill, Brigadier-General G. K.||Harmsworth, C. B. (Bedford, Luton)||Mond, Rt. Hon. Sir Alfred M.|
|Colvin, Brig.-General Richard Beale||Henderson, Major V. L. (Tradeston)||Montagu, Rt. Hon. E. S.|
|Conway, Sir W. Martin||Henry, Denis S. (Londonderry, S.)||Moore, Major-General Sir Newton J.|
|Coote, Colin Reith (Isle of Ely)||Hewart, Rt. Hon. Sir Gordon||Moore-Brabazon, Lieut.-Col. J. T. C.|
|Courthope, Major George L.||Hilder, Lieut.-Colonel Frank||Moreing, Captain Algernon H.|
|Cowan, D. M. (Scottish Universities)||Hills, Major John Waller||Morris, Richard|
|Morrison, Hugh||Roberts, Rt. Hon. G. H. (Norwich)||Tryon, Major George Clement|
|Mount, William Arthur||Roberts, Sir S. (Sheffield, Ecclesall)||Turton, E. R.|
|Munro, Rt. Hon. Robert||Robinson, S. (Brecon and Radnor)||Wallace, J.|
|Murray, Lt.-Col. Hon. A. (Aberdeen)||Rodger, A. K.||Ward, Col. J. (Stoke-upon-Trent)|
|Murray, Major William (Dumfries)||Royce, William Stapleton||Waring, Major Walter|
|Neal, Arthur||Samuel, A. M. (Surrey, Farnham)||Warren, Lieut.-Col. Sir Alfred H.|
|Newbould, Alfred Ernest||Sanders,Colonel Sir Robert A.||Whitla, Sir William|
|Newman, Sir R. H. S. D. L. (Exeter)||Scott, A. M. (Glasgow Bridgeton)||Williams, Lt.-Com. C. (Tavistock)|
|Nicholson, Reginald (Doncaster)||Seager, Sir William||Williams, Col. Sir R. (Dorset, W.)|
|Nicholson, William G. (Petersfield)||Sexton, James||Williamson, Rt. Hon. Sir Archibald|
|Nield, Sir Herbert||Shaw, Hon. Alex. (Kilmarnock)||Wilson, Colonel Leslie O. (Reading)|
|Norris, Colonel Sir Henry G.||Shaw, William T. (Forfar)||Wilson, Lieut.-Col. M. J. (Richmond)|
|O'Neill, Major Hon. Robert W. H.||Short, Alfred (Wednesbury)||Wilson, W. Tyson (Westhoughton)|
|Parker, James||Shortt, Rt. Hon E. (N'castle-on-T.)||Wood, Hon. Edward F. L. (Ripon)|
|Parry, Lieut.-Colonel Thomas Henry||Sitch, Charles H.||Wood, Sir H. K. (Woolwich, West)|
|Peel, Col. Hn. S. (Uxbridge, Mddx.)||Sprot, Colonel Sir Alexander||Woolcock, William James U.|
|Pinkham, Lieut.-Colonel Charles||Stanley, Lieut.-Colonel Hon. G. F.||Worsfold, Dr. T. Cato|
|Pollock, Sir Ernest M.||Strauss, Edward Anthony||Wothington-Evans, Rt. Hon. Sir L.|
|Prescott, Major W. H.||Sturrock, J. Leng||Yeo, Sir Alfred William|
|Pretyman, Rt. Hon. Ernest G.||Sutherland, Sir William||Young, Sir Frederick W. (Swindon)|
|Pulley, Charles Thornton||Sykes, Sir Charles (Huddersfield)||Young, Robert (Lancaster, Newton)|
|Purchase, H. G.||Talbot, G. A. (Hemel Hempstead)|
|Raw, Lieutenant-Colonel N.||Taylor, J.||TELLERS FOR THE AYES.—|
|Reid, D. D.||Thomas, Sir Robert J. (Wrexham)||Lord E. Talbot and Mr. Dudley Ward.|
|Remer, J. R.||Thomas-Stanford, Charles|
|Renwick, George||Thomson, Sir W. Mitchell (Maryhill)|
|Acland, Rt. Hon. F. D.||Lorden, John William||Thomson, T. (Middlesbrough, West)|
|Barnes, Major H. (Newcastle,E.)||Lowther, Major C. (Cumberland, N.)||Tootill, Robert|
|Benn, Captain Wedgwood (Leith)||Lunn, William||Walsh, Stephen (Lancaster, Ince)|
|Bramsdon, Sir Thomas||MacVeagh, Jeremiah||Wignall, James|
|Briant, Frank||Malone, Lieut.-Col. C. L. (Leyton, E.)||Williams, Aneurin (Durham, Consett)|
|Griffiths, T. (Monmouth, Pontypool)||Morgan, Major D. Watts||Williams, Col. P. (Middlesbrough, E.)|
|Hartshorn, Vernon||Myers, Thomas|
|Hayward, Major Evan||Palmer, Charles Frederick (Wrekin)||TEELERS FOR THE NOES.—|
|Hegge, James Myles||Preston, W. R.||Major Mackenzie Wood and Dr. Murray|
|Hopkins, John W. W.||Raffan, Peter Wilson|
|Lawson, John J.||Swan, J. E.|
Question put, and agreed to.
§ Motion made, and Question, "That the Bill be committed to a Select Committee," put, and agreed to.—[Mr. Bonar Law.]