HC Deb 07 December 1934 vol 295 cc2051-4

3.34 p.m.

Mr. DENMAN

I beg to move, in page 10, line 28, to leave out paragraph 5.

As I wish my hon. Friend opposite to be able to move his Amendment the Committee will forgive me if I deal very briefly with a not unimportant matter.

This paragraph states that the functions of the Commissioners and their servants shall be exercised on behalf of the Crown. In modern times we create boards and commissions for all kinds of special subjects, and it has been our normal practice to leave them within the jurisdiction of the ordinary law. This year we have adopted a curious innovation. We have begun to make these Commissioners agents of the Crown, and that is a process of which the Committee ought to take note, because it may he developed to a very undesirable extent. It is not the case, as far as I know, that there is any increase or administrative efficiency by making these bodies agents of the Crown. Let me take some past examples. We have the Forestry Commission, the Coal Commission and the Electricity Commissioners, and I do not think that anyone here would say that any of those bodies would act more efficiently were they agents of the Crown. It may be suggested that by making them agents of the Crown, we afford them some new dignity. I doubt it. I doubt whether the Forestry Commissioners would be any more dignified if they were agents of the Crown.

But there is one very real effect which this provision has. It deprives subjects of the Crown of their normal processes of remedy in cases where these bodies commit some unlawful act. That is not a mere theoretical point. It was examined by the Donoughmore Committee, though it was not quite within the main stream of the subjects they considered, and they made very specific observations upon it. As I have mentioned the Donoughmore Committee, may I remind the Committee that only a few days ago the Prime Minister asserted that though there had been no Debate on the Report of that, Committee, nevertheless it was the practice of the Government to have regard to the decisions of that Committee in legislation now being introduced. The Committee observe on this subject that the main defect in the subject's remedies against the executive government, that is the Crown are: (a) That, owing to the peculiar procedure in cases in which the Crown is litigant the subject is to some extent placed at a disadvantage; (b) That there is no effective remedy against the Crown in the County Court;— a most important point.

(c) That the Crown is not liable to be sued in tort. Elsewhere, they remark upon this encroachment on the jurisdiction of the courts and restriction on the subject; unimpeded access to them. Finally, they make this most definite comment: We desire to record our opinion that, unless and until the Crown Proceedings Bill or a similar Measure is passed into law, there will still remain a gap in the structure of the Constitution, where the supremacy of the Law does not prevail, even if all our recommendations are wholly carried out. That is to say they recognise the undesirability of this special immunity given to the Crown's Agents. In spite of that, here we are in this Bill unnecessarily extending the area of this bureaucratic immunity and thereby diminishing the area of the rule of ordinary law. This is a big subject which I cannot expect my right hon. Friend to discuss in detail now. I do not suppose he can accept the Amendment at this stage, but I would ask him to convey what I am sure is the feeling spread fairly generally, from conversations I have had with Members of this House, that it is high time that the recommendations of Lord Hewart's Committee as to the Crown Proceedings Bill should be carried through and that the procedure under actions in which the Crown is litigant should be assimilated as far as may be to the procedure as between subjects. If the Government would take that into consideration and would pass that Bill, then a Clause of this kind would cease to be in any way objectionable.

3.41 p.m.

Mr. HUDSON

This paragraph 5 which my hon. Friend is moving to omit follows almost exactly paragraph 9 of the Sixth Schedule to the Unemployment Act passed this year, and, unless my memory serves me false, my hon. and learned Friend the Solicitor-General went very fully into the reasons which caused us to insert that particular paragraph I think that the same reasons apply here. The Commissioners are going to perform functions which can properly be regarded as belonging to the category of a national service, and we think it very desirable that that being so they should have as it were the position of a Government Department. With regard to the legal points raised, I am at some disadvantage in replying, but I understand that in fact where a tort is committed proceedings can be taken against the actual individual who commits the tort, and in accordance with the usual practice of Government Departments the Commissioners will no doubt make ex gratia payments in appropriate cases. In the matter of contracts the subject can proceed by Petition of Right in the usual way. Another effect of this paragraph is that land owned by the Commissioners, being in the occupation of the Crown, will be exempt from the payment of rates. In fact, however, Government Departments always make contributions to local authorities in lieu of rates, and I imagine the Commissioners will do so, too. As regards the question of what may happen in the case of workpeople who may be in the employ of the Commissioners under a contract of service and who may be injured, they, of course, will come under the Workmen's Compensation Act.

3.43 p.m.

Mr. DENMAN

While thanking my hon. Friend for his reply, I must point out to the Committee how dangerous a precedent becomes. We are now merely referred back to the case of the Unemployment Assistance Board, which, in the opinion of many of us, was a most unfortunate precedent. All the arguments then adduced as to the national character of the service were equally applicable to the Forestry or the Coal Commission, and why we should suddenly this year be changing our practice I have not yet been able to understand. However, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.