§ Order for Second Reading read.
§ 9.0 p.m.
§ The Solicitor-General
I beg to move, "That the Bill be now read a Second time."
For the second time in six months it becomes my melancholy duty to move the Second Reading of this extremely complicated and difficult Measure. I do not propose to do so at any great length, subject to the permission of the House, for two reasons. The first reason is that it is a Measure of enormous complexity and the details would be very much better 488 examined in Committee, if the House think fit to send it there. I am the more confirmed in that feeling, because I took some pains to expound the Bill Clause by Clause on the previous occasion. Therefore, I have furnished some material upon which the Government can be attacked, if necessary, by those who care to refer to the OFFICIAL REPORT of last July, column 2158, and so on.
The aim of the Bill is to try and bring some order out of chaos. It is in the interests of the State that you should limit the period within which people may bring actions. That has always been recognised as a sound principle of jurisprudence. You cannot allow people to go on nursing grievances for ever, without asserting their rights. The trouble is that at the present time the field is a wilderness. Different Acts have grown up imposing different periods and limitations for different actions, and the result is a kind of crazy pavement. Into these circumstances the Law Revision Committee made investigations. To that committee, as I said on the previous occasion, a great deal of thanks is due for the voluntary service rendered by very busy professional men, and I say it with none the less enthusiasm with the memory that I was a member of it. The committee was set up in 1934 to report upon this difficult area of law. For two years it was hard at work, and it reported in 1936. This Bill was introduced into another place in June, 1938, and it came here in July, 1938, but was then withdrawn because it was introduced at a very late hour of the evening.
About 20 different Acts of Parliament are here involved, dating back to James I. The matter is further complicated by the fact that whereas a host of Acts limit the period of time within which you can bring an action, other Acts impose disabilities which have the opposite effect. If the disability is that of being in prison, or being an infant, or being of unsound mind, the time within which you can bring your action is extended until the moment that you get out of your disability, and then the time begins to run. Therefore, these two matters work together along very different. and difficult lines and produce awkward and discordants periods of limitation in one or other kind of action.
What we have tried to do, in the first part, is to prescribe, first, a uniform 489 period for common law action. We fix it at six years. We have done away, for example, with the silly anomaly by which a slander action, where the words were slanderous per se, as we call them in law, would only lie within two years, whereas otherwise it would be in six years. We have fixed a uniform period of six years. In the case of actions upon speciality we reduce the 20-year period which at present exists to 12 years, except for penalties where there is to be a uniform period of two years. In Clauses 4 to 17 we deal with limitation of actions in relation to land. There is not much new law in it: it is practically codifying and tidying up existing law. There is an exception in the case of the Crown and spiritual corporations. The period within which these actions can be brought is reduced from 60 years to 30 years, except in the case of the Crown and the foreshore. That is an exception which does not find any place in the recommendations of the Law Revision Committee, but it has been brought to the notice of the Government after the Committee had reported. It is an exception in favour of the Crown. The Crown can bring an action claiming a right to the foreshore although it has been in private occupation for 60 years; in most other actions in regard to land 30 years is to be the limit. It is obvious that this is the maintenance of a right which is very valuable to the Crown; the Crown should be entitled to assert a right in respect of the foreshore up to the existing period of 60 years.
Clause 18 deals with mortgage debts. There the limitation is to be 12 years and the period now extends to all mortgage debts including mortgages on personalty whereas mortgages on personalty enjoy at present an unlimited period. Clauses 19 and 20 exclude a limitation period to actions of fraud in relation to a trust, and make certain other standardisations. I ought to say a word about Clause 21 which from the public point of view is a Clause that will attract most attention. The position of public authorities is very curious. By the Public Authorities Protection Act, 1893, you cannot bring an action against a public authority, except under contract, outside a period of six months. Broadly speaking, the proposal of the Bill is that the period should be extended to 12 months. 490 There is a further matter which, I think, is of almost equal importance. I should say that the extension applies to criminal proceedings as well as to civil. It will not override the provisions of the Workmen's Compensation Act, which has to be read by itself and which prescribes its own period of limitation. The existing Act has been construed so strictly by the courts that it probably prevents some actions ever coming into being at all. There is one point of view, which I at present share, that many actions for subsidence cannot be brought against a local authority because by the time the action arises the period of limitation of six months has expired. By a proviso to Clause 21 we have enabled the time to run from the date when the right of action accrued.
There is another matter also in connection with local authorities. We have abolished the existing disability which rests upon a plaintiff where the defendant is beyond the seas. At the present moment if the defendant is beyond the seas the plaintiff can say that he can extend his time of bringing the action until he comes back, and there has been a tremendous amount of learned discussion on the question "when he comes back." There really is no necessity for this disability now. It dates to the days when travel overseas was very different, but in these days by a simple rule of court you can serve people, notwithstanding their being overseas, by the ordinary processes of the court. That particular disability is abolished.
Local authorities are given a benefit which nobody else gets under the disability period and it may be a matter which will emerge for discussion in the Committee stage. Under Clause 22, paragraph (d) in the case of actions by lunatics or children, the period of disability in the case of a local authority is limited to a period of 12 months from the date when the action first accrued. That is to say, that no advantage follows from the existence of the disability. Let me take a case. A child suffers an accident for which a local authority is responsible. The action, if the child has parents in whose custody it is, must be brought against a local authority within 12 months. On the other hand, if a child suffers an accident from a private bus company, the child can commence itself an action the 491 moment it becomes of full age, that is to say, when the disability finishes. It is a distinct advantage which accrues to local authorities in consequence of an Amendment which was inserted in the Bill in another place. It will be for the Committee to consider this question when the Bill comes before it.
§ The Solicitor-General
I will put it this way. First as regards the Law Revision Committee. It is vital that the recommendations of that Committee should not be recommendations which trench upon matters of controversy. The work of the Committee would be nullified if we had to present Bills they recommended which aroused party interest or caused great cleavages of opinion. They felt that the Public Authorities Protection Act was part of the deliberate policy of Parliament and that it was not for them to make any recommendation which would, for example, put local authorities on the same footing as private individuals. The Government accepted the Committee's view as being the right one on a non-controversial Bill. I understand that the public authorities are content with the Bill as it is at the present time. When the Bill was in another place, representations were made by the public authorities that this particular disability should be interpreted more favourably in the case of local authorities than it should be in the case of other persons, and the Amendment was inserted in order to meet those representations.
I am reminded that it was thought, in particular, that education authorities would be in a very difficult position owing to the enormous number of children with whom they have to deal. I am sure that is a reason which will commend itself to hon. and right hon. Gentlemen opposite. What is being done is this. Suppose that a child is injured and is in the custody of its parents; the parents will, under Clause 21, have one year within which to bring an action against the local authority. In normal cases, the parents will be alert enough to see that that right is exercised within a year. No doubt it would be a serious hardship if an education authority had to wait in the case of a child under five years for 16 years before it knew whether an action was 492 going to be brought against it. That is the sort of consideration that was, no doubt, in the minds of those who moved the Amendment in another place.
I think the remaining Clauses of the Bill are all of a tidying-up character. They deal with very recondite and complicated matters, and they are, I suggest, matters that can be more conveniently examined in Committee. Because this Bill does something to bring order into a branch of law of immense complexity, because it has behind it the recommendation of this extremely careful and prolonged inquiry by the Law Revision Committee, because it has passed through its stages in another place and once before been introduced here, and because any doubts and difficulties can be dealt with in Committee, I ask the House to give the Bill a Second Reading.
§ 9.18 p.m.
§ Major Milner
The hon. and learned Gentleman the Solicitor-General has moved the Second Reading of the Bill in such a persuasive way—if I may say so without offence, almost a soporific way—that one feels inclined to allow the good work to go on and to give the Bill a Second Reading without raising any points on it, but as it deals with matters of very considerable importance. I would like to make a few observations.
I entirely agree with the hon. and learned Gentleman that the matter of the limitation of actions is of very great complexity. I suggest that it would be a very great help if the hon. and learned Gentleman could issue a White Paper, or at any rate make available to the Members of the Committee, in the event of the Bill obtaining a Second Reading, some information as to precisely what alterations are made in the existing law by the Bill. Although I have some little knowledge of the subject, I find it impossible, in a short time at any rate, to ascertain in what cases the present law remains unaltered, in what cases the period of limitation is extended, and in what cases it is reduced. If some information of that sort could be given, I am sure that we should find it useful and that it would enable us to estimate the proper worth of the Bill. Even now, I gather, from a quick perusal of the Bill and from what the hon. and learned Gentleman has said, that there is still quite a number of different periods relating to different 493 causes of action, and one would like to reduce the number of periods as much as possible. I hope that some improvement in that sense may be made in Committee.
I am sure that, in general, the House approves the principle of the Bill and appreciates the great and continuing work which the Law Revision Committee is doing in so many important matters which come before the House at the present time. I wish that the Government would take action more quickly on the recommendations of the Committee. The hon. and learned Gentleman reminded us that in July last he moved the Second Reading of this Bill, but even then it was 18 months after the Committee had reported, and now it is over two years. Surely it should not be impossible for the Government to take action in less time, considering that the matters are really urgent and the alterations valuable. These are matters which are almost wholly non-controversial, and time ought to be found for them. I believe that six reports have now been isued by the Committee, but the Government are two years behind in these matters.
There are one or two points on which I am not quite clear. Obviously, the ideal position is that all litigants should be alike before the law, and that there should be no preference for the Crown, for municipalities or for anyone else. I am not altogether clear about the position of the Crown. My submission is that the Crown as plaintiff or defendant should be in precisely the same position as a private individual. I see that Clause 30 of the Bill states:Save as in this Act otherwise expressly provided and without prejudice to the provisions of section thirty-two thereof, this Act shall apply to proceedings by or against the Crown in like manner as it applies to proceedings between subjects.I should like to know in what matters this Act discriminates between the position of the Crown in litigation and the position of the subject. Perhaps the hon. and learned Gentleman could give particulars at a later stage as to the matters in which the Crown has an advantage. I notice also in Clause 30 the following words:That this Act shall not apply to any proceedings by the Crown for the recovery of any tax or duty or interest …Much as I wish the Crown to collect all proper taxes and so on, I am not sure 494 that, if the Crown by neglect or mistake has overlooked the collection of a particular tax, the Crown should be able for all time, as I understand it, to come on to the subject and claim the tax.
§ The Solicitor-General
That is because the periods are prescribed in the other Acts. They are not affected. The periods of limitation within which action can be brought are prescribed.
§ Major Milner
Then we come to the question of public authorities. Here, I think, probably the great majority of my party would probably hold as strong a view as I myself hold. At present the position is that, unless you bring an action against a public authority within six months, you are for ever deprived of your remedy. Fearful hardship has been caused to quite innocent people by reason of that restriction. It is true that the Bill extends that six months to 12. I am a former member of a local authority and vice-president of the Association of Municipal Corporations. I do not know the exact position of that body, but there may be some speaking for corporations who desire either a reversal of the present law or, at any rate, the retention of the period in the Bill, but I hope the House will eventually accept the position that a public authority should be in precisely the same position as a private individual. I see no reason why that should not be the case. The committee say quite clearly:We have carefully considered how far it is advisable to interfere with the policy of the Public Authorities Protection Act. That policy is quite clear, namely, to protect absolutely the Acts of public officials, after a very short lapse of time, from challenge in the courts. It may well be that such a policy is justifiable in the case of important administrative Acts and that serious consequences might ensue if such Acts could be impugned after a long lapse of time.There may be, perhaps, some justification for that, but they go on:The vast majority of cases in which the Act has been relied upon are cases of negligence of municipal tram drivers or medical officers and the like, and there seems no very good reason why such cases should be given special treatment merely because the wrongdoer is paid from public funds. We do not suggest that the Act should be dispensed with altogether, but we think its effects in two respects should be mitigated.495 Obviously they would like to dispense with it altogether. They recommended that the period should be extended to 12 months, and that the time should run from the date of the accrual of the cause of action. The position is clear. The committee thought there was no very good ground for giving this special preference to public authorities but they did not desire to effect any very serious alteration of the law, or perhaps any alteration of the law which might be very controversial. We shall, perhaps, hear whether there is any serious controversy on the point. I have not heard of any, but the hon. and learned Gentleman may have had representations on the matter. Having regard to the frequency with which we are confronted with accidents in which employés of municipalities or public authorities are concerned, there is no justification for public authorities in this connection being put in a special category. As they have more vehicles on the road, possibly, than other bodies, the great majority of claims may conceivably be made against public authorities. If I am run over by a Leeds Corporation motorbus, and have an injury, perhaps, to the head, and do not recover for six months, I am for ever barred from bringing a claim for negligence. That is a very serious denial of a right which His Majesty's subjects should have.
I cannot think of any reason why any preference should be given to public authorities. The Statutes of Limitations were introduced over 300 years ago—I believe the first was in 1623—quite properly, in order to prevent litigation going on ad infinitum and also to prevent stale claims being made, and possibly for the further reason that after a considerable lapse of time it is not always possible to produce evidence on one side or the other which would enable a case to be fairly and properly decided. In the case of public authorities, their evidence is usually the best that it is possible to obtain. Every driver of a bus or tram has to make a report of every accident, and it is kept on record, whereas a motorist who happens to run into someone frequently has no record and no witnesses. That is an advantage on the side of the public authority as against the individual who has had an accident. I hope that matter will have special attention. Public authorities have statutory duties 496 to fulfil and there may be difficulties in the matter, but there is no justification in this class of case for any special privilege.
I should like to ask whether this legislation will be retrospective. For example, suppose that I do not enter my claim against a local authority within six months of the cause of action accruing—that is, seven or eight months ago—and this Bill is passed into law in another month, making nine months from the cause of action accruing, the Bill gives me 12 months, as at present drawn, and I presume I shall still be at liberty to bring my action against a local authority and take advantage of the change in the law. Then I should like to be assured that no existing privilege or right is being taken away by the Bill. Is any litigant, or prospective litigant, going to be deprived of any existing right? Subject to these few points, as a piece of practical and useful work, following upon a similar piece of work where the law has been also codified, I think the House might properly give the Bill a Second Reading.
§ 9.35 p.m.
§ Mr. K. Griffith
I should like to add my support to what has been said by the hon. and gallant Member for South-East Leeds (Major Milner) on two points. First, I should like to see not only in this Bill but in all Bills of this kind, a preliminary "blurb" such as we have in front of certain Measures giving, as it were, a sketch of the main plot of the story and enabling one to follow it easily. That is particularly necessary in a Bill which is, at the same time, a consolidating and an amending Bill. We should know which is the consolidating part and which is the amending part. Otherwise, one of my hon. and learned Friends might be put into the humiliating position of treating as an amendment of the law, some provision which has been the law of the land since the reign of King Richard II. The other point on which I would support and even go beyond what the hon. Member has said, is with regard to the Public Authorities' Protection Act. I was not sure whether the hon. Member was satisfied with what the Bill does, that is to say with the extension of the six months' period to 12 months and the provision with regard to continuing them. Frankly I am not. I take the view, which the hon. Member did express, that there is no reason whatever for putting a 497 public authority in a different position from any other litigant. My own local authority may not like that view, but I am bound to state it.
I realise that it might be straining the position to ask too much at the present time and I know the difficulty of getting any kind of agreed Measure on the subject, but I certainly would suggest that we should have some provision which, while making 12 months the general rule, would give power to the court, upon reason given, to extend the time. I think there is precedent for that kind of procedure in other legislation, and I think it would be peculiarly appropriate in this case. I can imagine the most hideous injustices being done, just as much under the 12 months' rule as under the six months' rule. The matter of running down cases has been mentioned. It is not only the case that a person who has been injured may be slow in getting his action started. He may start off with the wrong defendant.
Imagine a case of this kind. An old lady crossing the street is knocked down by a private car. She is considerably shaken and is laid up for a long time. Proceedings are not started rapidly, but in due course a writ is issued. By the time you get to the defence, 12 months has elapsed, or nearly elapsed. Then the defendant says "Yes, it is true that I, the driver of a private car, ran into you, but it was not my fault. It was the fault of the corporation dust cart, which came right across me and the corporation are really liable." What is the poor old lady to do in those circumstances? If she goes on against the private car owner alone, she takes a considerable risk, because the private car owner may have discovered a lot of independent witnesses about whom she, in her dazed condition, did not know anything, and they may swear that it was not the fault of the private car owner, and he will ride off happily on the dust cart, the owners of which are not before the court at all. On the other hand, if the owners of the dust cart are joined as defendants they may say "It is true that the dust cart did it, but you cannot touch us because we are the council of the borough of St. Pancras" or something of that kind. Consequently the party who is really responsible is never brought to court although the plaintiff has proceeded on perfectly normal lines.
498 Why should a public authority, just because it is a public authority, have any special privilege like that? I agree that a public authority employs a large number of people, and it may be hard for them to find exact evidence about something which has happened a year previously, but it is also hard for other litigants. Suppose that the car which really caused the injury was not the municipal dust cart but a delivery van distributing evening papers. I do not take that example because they are specially liable to cause accidents. Far from it. I think they are very careful drivers. I only take that example because that is a case in which a large number of cars are employed on the road on six days out of seven. Consequently if the owners are asked to find out what happened at a particular point 12 months previously, it will be very hard for them to get evidence—just as hard as it is for the municipal corporation. Everybody is on the same footing in a matter of that kind. I suggest that this is an intolerable situation, and that the Government by the provision which they are putting forward here, although they undoutbedly improve the situation by extending the period, have not really met the point. It can only be met by giving a discretion to the court. The court should be able to consider the circumstances of the case, and while regarding 12 months as the normal period, and even being reluctant to extend it, unless good reason has been shown for doing so, it should have the saving discretion that where good cause has been shown, plaintiffs should be able to get their remedy from the party who is really responsible.
§ 9.41 p.m.
§ Mr. Quintin Hogg
There are three matters to which I should like to draw the attention of the House. In the first place, I wish to associate myself with the hon. Members opposite in what they have said about the Public Authorities Protection Act. It has been my experience that more than one public authority has deliberately made use of that limitation period in the course of negotiations, in order to lure prospective litigants into protracting negotiations over the period, and has then suddenly produced it as a trump card at the last moment. I feel sure that it is still open to them to do that as long as the limitation period remains as short as one year. Secondly, 499 I would ask the Government to consider, when this Measure goes to a further stage, the possibility of shortening the general limitation period for ordinary litigants. It is, I submit, absurd that a person should be entitled to bring an action arising out of a motor accident six years after the occurrence of the accident. It is absurd to suppose that justice is likely to be done by the oral testimony of witnesses at such a period of time after the cause of action. In my submission it is an impossibly long period. In fact I have never heard of the right actually being exercised, but the fact that it exists can only, in the last resort, give rise to the potentiality of a grave miscarriage of justice.
The third point which I would suggest is that there should not be removed from the law of limitation of actions the provisions relating to absence beyond the seas. The difficulty of suing a person who is abroad lies not in service but in assets. A shopkeeper who has a cause of action under a contract against a person who has gone beyond the seas is not deterred from suing by inability to sue that person but by the absence of assets in this country on which he can execute judgment. I submit that the Bill is wrong in so far as it seeks to remove the extension period applying to persons who go beyond the seas because the moment such a person returns there exists in the country, almost always, a body of assets against which a creditor can execute. I hope that these three points will receive the attention of the hon. and learned Gentleman.
§ 9.44 p.m.
§ Mr. Macquisten
I am sorry to speak for a second time on the same day, but this Bill deals with a matter on which I have always felt very strongly. I know the origin of Clause 21 of this Bill dealing with the Public Authorities' Protection Act. That was one of the most disgraceful Statutes ever passed. It enables public authorities to commit wrongs with impunity. It originated with a former Lord Advocate, later Lord Shaw. He was persuaded by a very clever depute town clerk of Glasgow who was an intimate friend of my own, to bring in that Measure. When it was passed very little was known about it and it slipped through in a very small House. 500 It was a dreadful surprise to members of the profession in Scotland when it came to their notice. They could not believe that the great Parliament which was supposed to protect the rights and liberties of the British people could ever pass such a Measure. The same depute town clerk used it pretty cruelly. He would negotiate for a long time till the six months were up and then found on the Act and successfully repudiate all liability. The Act enables public authorities to escape the fruits of their own wrongdoing. I may say that when I used to have a bad case for a man I used to endeavour to lure the opposing solicitor into correspondence, and if I could get him to write argumentative letters, after a certain period I made a tender to him of a much less sum than I thought my man should pay, and offer him his expenses and his client by this time was tired and combat had died down in him and he generally accepted, but I never allowed an enemy to do that with me. I served the writ and negotiated afterwards.
We had a very much better form of law in Scotland which was open to the ordinary citizen. When a man raised an action, it was open to the other fellow to use the plea of Mora, Taciturnity and Acquiescence, that is, undue delay, never raising the matter with the defendant and acting as if he had no complaint to make about it. The judge had the discretion in each individual case to throw him out, and did so, if he thought he had delayed unduly. It was infinitely better than a mere arbitrary limit of time. This limitation for local authorities operated with the most astonishing injustice. Time and again public authorities got away with it, and why should they? They are people with records, clerks, and offices, and everything that has happened has been due to causes which they know. The thing is not sprung as a surprise upon them. One particular iniquity about it is this, that they said that when a public authority got a case set aside, it should be allowed to tax its expenses between agent and client, which means expenses about double the ordinary expenses against the unfortunate person who has lost the case. When introducing the Bill it was said to strike at the speculative action, but it did not do so. It only intimidated the ordinary, respectable 501 citizen. The speculative person was not going to pay any way, no matter how much costs might be given against him. If you have a responsible client with a responsible income, the last thing you want to do is to lose a litigation for him. You must be very careful because you may have a doubly heavy bill of costs given against him.
There is no justice in it. Why should public authorities which have done a wrong not stand to it? There was recently a man in Scotland who raised an action against one of the Marketing Boards, where a levy had been imposed upon him which he said was ultra vires and not authorised by the Statute, and everybody laughed at him. It went to the House of Lords from the Courts in Scotland. The Lords were severe on the Scotch judgments and said they had decided on the Procrustean principle, that is, they had stretched the Statute to suit their idea of what the Act intended but did not say. The Scotch judges must have had a sleepless night after it. The Lords said, "The levy is a tax. You are going to take one man's income and give it to another man." Lord MacMillan said that if that was intended, it should have been clearly stated and that if it was intended it could not have been stated in a "less straight forward manner," and he said, in effect, "You do not take people's incomes and give them to others without being very clear about it."
It really was a very remarkable decision. This particular board had written one of the farmers to say that if the case was decided against the board, they would have to repay the whole of the levies to everyone. But afterwards they refused to do so and pled that as it was money paid in error in law, it was not recoverable. There were two or three hundred thousand pounds due to the unfortunate people who had had this illegal levy put upon them. So four of them brought an action to have the minutes of the board produced, and their resolutions to levy annulled. That must have been granted in terms of the Lords' decision. What happened? They went before the Court of Session, which had already been dealt with by the House of Lords, and they said, "We are a public authority," and the Court of Session judges sustained that plea. I do not propose to say anything about their decision, but the result was 502 that those two fellows who were two little farmers were landed in about £400 or £500 costs, and had to pay these before again appealing to the Lords. It seemed to me the board was not anything like a public authority. It was one of the Marketing Boards and they are not public authorities; they are public nuisances. So the poor little farmers could not go to the Lords.
I went to see quite a number of millionaires to raise funds for them, but you cannot get up much enthusiasm even in the bosom of a millionaire to pay a lawyer's bill. I did not go to Lord Nuffield, I may say. I thought of applying to the Wholesale Co-operative Society, who have immense amounts of money to spend on litigation, but I did not get it there. There was this wrong done, and these fellows could not proceed with an action because of this evil Statute. This law should never have been passed and this House should be ashamed to allow another period of time to pass without repealing it. Parliament should say to the public authorities, "You are quite able to stand up and pay for the wrongs that you have committed and you shall not shelter yourselves behind this arbitrary period of time." I say that in Committee this Clause 21 should disappear and the rights of the subject, that for generations we have fought for, should be restored to all citizens.
§ 9.54 p.m.
§ Mr. Hutchinson
I have been listening with particular interest to the account given by my hon. and learned Friend the Member for Argyll (Mr. Macquisten) of the origin of this special privilege which is given to public authorities, because I have recently been undertaking a certain amount of research into the question of how it ever came about that public authorities were given the very specially privileged position which they enjoy under the Act of 1893 and which they will continue to enjoy under this Bill, if it becomes law. My researches into this, matter have led me to believe that it is a fact that neither this House nor the other House has ever considered the question of whether this special privilege should be granted to public authorities or not. When the Act of 1893 was passed it came on in this House at a rather late stage in the evening. The Minister who was in charge of it was asked whether it was merely a consolidating Bill or whether 503 it effected any alteration in the substance of the law. His answer was that it was a consolidating Bill and made no alteration in the law. When one looks at it now one appreciates that that was not entirely in accordance with the facts. When it was passed in another place very much the same thing took place. The Act of 1893 was not, however, the beginning of this special privilege of the six months period of limitation. There was something of the same sort in the Public Health Act, 1875. In the Committee stage of that Measure I find that the clause establishing this six months period of limitation was passed in this House without any discussion. There was, I believe, a similar clause in the earlier Public Health Act of 1848.
My researches so far have not taken me back to 1848, but if this special privilege for public authorities has not been reconsidered, either in this House or in another place, since 1875, I am bound to say that it is high time the House asked itself whether, in view of the increased scope of the activities of public authorities, it is desirable that this privilege should continue to be extended to them upon the same terms on which it was first granted to the small urban and rural sanitary authorities in 1875. I have always been told, although my researches do not confirm this, that the reason this six months limitation was given was because it was considered in days gone by that a local authority should charge to the rate of the year the expenses of that particular year. Accordingly, as the expenses which arose in a particular year were charged to the rate in that year, the claims which were the preliminary to the expenditure should be made within a period of six months so that some provision could be made for them in the rate for the year.
If that is the origin of this special privilege which public authorities enjoy to-day, surely the time has come when the House ought to consider seriously whether the privilege should be continued in the unrestricted form in which it is proposed to continue it in this Bill. When one turns at the report of the Law Revision Committee, upon whose recommendation this Bill has been framed, one is entitled, in reading between the lines, to say that that distinguished committee were rather at a loss to know what the real justification was for limiting the right 504 of suing a public authority. I am tempted, even at this late stage of the proceedings, to read the passage in the report of that committee which deals with this matter. This is what they say:We have carefully considered how far it is advisable to interfere with the policy of the Public Authorities Protection Act. That policy is quite clear, namely, to protect absolutely the acts of public officials, after a very short lapse of time, from challenge in the courts. It may well be that such a policy is justifiable in the case of important administrative Acts, and that serious consequences might ensue if such Acts could be impugned after a long lapse of time. But the vast majority of cases in which the Act has been relied upon are cases of negligence of municipal tram drivers or medical officers and the like, and there seems no very good reason why such cases should be given special treatment merely because the wrongdoer is paid from public funds. We do not suggest that the Act should be dispensed with altogether, but we think that its effects in two respects should be mitigated.Then they go on to suggest the Amendment which is embodied in this Bill. On looking at that passage it seems to me to be plain that this experienced Committee really saw no good reason why a person who has been knocked down by a London Passenger Transport omnibus in Parliament Square should have to bring his action within six months, whereas if he is knocked down by a railway company's lorry he has six years.
Now, this Bill proposes that the period should be extended from six months to 12 months. Suppose that proposal were accepted by the House and the Bill passed into law; will that get over the hardship in which people are placed who desire to bring actions against public authorities? Let me illustrate the point that I am going to make, that the hardship is not overcome by extending the period, by giving the House a few particulars of a case which was recently brought to my notice. It was a case in which a woman brought an action for the death of her husband, who was killed while working on a building which was being erected for a public authority. He was killed by reason of an act which was undoubtedly an act of the grossest negligence on the part of somebody. The difficulty was to ascertain the particular person who had been negligent. On this particular building something like 63 contractors and sub-contractors were employed, and one of them had been responsible for this negligence. Faced with a position of that sort, in which this un- 505 fortunate woman had to ascertain which of these numerous persons had been guilty of negligence, she was compelled to bring her action against the person who was thought to have control of this building. She accordingly selected three contractors or sub-contractors who, according to the evidence which was in her possession at that time, were in control of the building.
When the matter came before the court it turned out that none of these three persons had control of the building for reasons which it was impossible for her to ascertain at the time she brought her action. The party who had in fact got control was the local authority. An action of this magnitude takes a little time to get under way, and this action had been in course of preparation for something like 14 months. Although in this case the period of limitation was 12 months under the Fatal Accident Act, and not six, for reasons over which this unfortunate woman had no control her action against the party who was really liable was barred by the operation of the limitation period.
I have ventured to put these matters before the House because it does seem to me that one does not get over the question of hardship by merely extending the period of time from six months to 12 months. I hope that on the Committee stage there will be an opportunity of discussing further whether in view of the increased activities and scope of the business conducted by public authorities today there really is any justification for continuing the specially privileged position which they now enjoy. I am bound to say that that position seems to be wholly inconsistent with the general principle of English law which, as I have always understood it, is that no distinction is to be drawn between a person who acts in an official capacity and a person who is a purely private individual. For these reasons I hope that when the Bill goes to Committee my hon. and learned Friend will reconsider Clause 21 and adjust it in accordance with what I believe to be the almost unanimous view of all who have had much experience of the working of the law in its present state.
§ 10.7 p.m.
§ Mr. Tinker
After listening to the explanation of the hon. and learned Gentleman and the discussion since I have been 506 wondering whether it would be wise of us to pass this Bill to-night. When a Bill comes from the other place I am always doubtful whether we ought to accept it or not. I was prepared to accept this one when I saw from the title that it was a consolidating Measure, but as one looks into it more fully one finds that it also embodies certain amendments of the law, and I am wondering whether, under the form of a consolidating Bill, Members of another place are trying to introduce some important changes. The proposal that the period of limitation in the case of local authorities shall be extended from six months to 12 months has been mentioned. I asked some of my colleagues whether that meant that under the workmen's compensation law a workman would have a right to bring a claim within 12 months, but I have been assured that the extension would not apply to him. It would appear, therefore, that in certain cases the other place is anxious to extend the period within which public bodies may be sued but not to extend the right to all cases. Then there is the question of the foreshore. The hon. and learned Member said it was a difficult question and his explanation was not clear to me, and I should like him to go more fully into that matter. Is it the case, for instance, that if a place like South-port recovered some of the foreshore that at some time or other that recovered land could be claimed by the Crown? In the Interpretation Clause we find this statement:'Duty' includes any debt due to His Majesty under Section sixteen of the Tithe Act, 1936, and a royalties welfare levy within the meaning of Part III of the Mining Industry Act, 1926;Looking through the Bill, I admit rather hurriedly, I have failed to find any reference to the Miners' Welfare Fund, and perhaps the hon. and gallant Gentleman will explain where there is any reference to that fund in the Bill. On the whole I am very much afraid that we are hardly doing the right thing in passing the Bill to-night. It is a big, comprehensive Measure and came on at a time when no one seems to have expected it, and I should like our Front Bench to assure me that we shall be justified in letting the Bill have a Second Reading.
§ 10.11 p.m.
§ Mr. Marshall
We have listened to a number of lawyers expressing their views 507 about this Bill, and in particular about the limitation as it affects local authorities. The very unanimity of the legal profession to-night has made me rather suspicious. The hon. and learned Member opposite referred to the limitation of six months as an infamous provision. As one who has had 20 years' experience of administration on a local authority, I have never known any infamous conduct on the part of a local authority in connection?with this matter. [HON. MEMBERS: "Oh!"] I know that members of the legal profession may have a different experience, but I am speaking from inside knowledge of the administrative work of some very important committees. It is said that, so far as litigation is concerned, a local authority has neither a body to be kicked nor a soul to be saved, and I think that litigants regard local authorities as a happy hunting ground for large payments of compensation. The misdeeds of local authority transport undertakings have been paraded before the attention of the House to-night, and the hon. Member for Middlesbrough (Mr. K. Griffith) gave some hypothetical instances, but my experience on a very important transport committee has been that the committee deals with compensation claims in a most generous manner. It always tries to keep those cases out of court. It saves much money by avoiding litigation. It never goes into court if it can avoid it, and that is an advantage both to the would-be litigant and to the local authority. It protects the public from the lawyers and from that point of view there is a great advantage.
§ Mr. K. Griffith
Does the hon. Member realise that one of the things we are trying to guard against is this—that local authorities are so kind and so nice that they keep the matter from going into court until the party has lost his legal right to go to court at all?
§ Mr. Marshall
I think that charge is entirely over-stated. I served for some years on the Sheffield Transport Committee and I know of no case where a claim has been turned down owing to the expiration of the period of limitation. I am not a member of the legal fraternity and I am speaking merely from the point of view—[An HON. MEMBER: "Of common sense"]—of one who has had some years of administration on a trans- 508 port committee. You can call it common sense if you will.
A reference was made by the hon. and learned Member to some market levy which was going to be imposed upon a certain individual. I want to put the other side of this matter. I have stated that local authorities are regarded by aggrieved parties as a happy hunting-ground for compensation, and I have in mind a case in which a local authority built a very fine place in which certain wholesale butchers could put their goods and have them locked up. The regulation stated that nobody but a wholesale butcher could go into the place, but on one occasion a certain amount of meat was stolen, and in spite of that regulation the aggrieved party from whom the meat was stolen sued the local authority for compensation for loss of meat. The local authority paid rather than go into court. That is an example of the generosity of local authorities who are anxious to do the right thing and to prevent litigation in such matters. The very unanimity of the legal profession has made me suspicious, and I ask the hon. and learned Gentleman not to concede the point until the local authorities have had an opportunity of examining the whole position and until a defence can be put up for them in this House.
§ 10.17 p.m.
§ Mr. Lyons
I hope that the hon. Member who has just resumed his seat will not take it as an act of discourtesy if I do not follow him on the many points which he raised. I wish to raise my voice in favour of abolishing this privilege for local authorities, because there seems no just reason why local authorities should be put into a privileged position by which they may well defeat the action of an injured person. The committee which dealt with this matter said that, although for the purpose of administrative acts some protection might be justifiable, there was no real case for giving any special protection in such matters to the local authority. It may very well be that a local authority and an insurance company become so much interwoven that, on the threat of the penalty of forfeiting the indemnity of insurance, the local authority may be forced to plead the Public Authorities Protection Act, to the detriment of a litigant.
I would ask the House to consider whether on any ground at all it can be 509 fair, just or equitable to deny to the citizen the right against a local authority which he has in every case against another individual. If the defence is there, the public authority will put it forward in the same way as any other defence, and I suggest to the House that it is wrong to give 12 months or any other benefit to a local authority which you do not give to any other defendant. I would go a little further and say that the time has come when any such protection which operates against the citizen should be swept away altogether and local authorities be put in the same position as anybody else who is faced with an action. Now that this matter is being dealt with generally in a somewhat comprehensive Measure I hope that the House will take a step such as will put an end to the unjustifiable privilege which local authorities have and which, in my judgment, can no longer be defended on any ground whatever.
§ 10.20 p.m.
§ Mr. E. J. Williams
I should like to ask the Solicitor-General a question with regard to Clause 4, which deals with the limitation of actions to recover land. That Clause will very seriously affect the foreshores of this country, in which, as the Minister of Transport will know, I have been interested for a long time. In my view the time has arrived when the foreshores of this country should be entirely under the jurisdiction of the Crown, but it seems to me that, owing to the inaction of the Board of Trade, the foreshores are slipping away from the Crown into the hands of private leaseholders, recreation companies and others. I am very anxious to know what is the meaning of this particular Clause. Whenever such a case arises, we hear all kinds of arguments as to what is the meaning of high tide, neap tide, and things of that kind, and whether the definition of a foreshore is conditioned by the height of the tide and so on. I hope we shall be told something about this Clause, and whether it affects the foreshores that now come under the jurisdiction of the Crown. A little while ago a large area of common land—some hundreds of acres—under the jurisdiction of the Crown through the Duchy of Lancaster, was sold to a private company, quite wrongly as I think, for just a few hundred pounds, and it seems to me that that private company, after a period of 60 years, will have the right to control the foreshore as well.
§ 10.23 p. m.
§ Mr. Silverman
I should not have ventured to trouble the House with any remarks on the Public Authorities Protection Act had I not been rather stimulated to do so by the remarks of my hon. Friend the Member for the Brightside Division of Sheffield (Mr. Marshall). He put it forward as his most attractive argument that, when he found lawyers in general agreement, it made him rather suspicious. I hope he does not mean that. There is no doctrine of the common law, I suppose, which has done more harm to people of the working class than the doctrine of common employment, and I think my hon. Friend would join with the rest of his party and many other Members of the House in rejoicing to see that doctrine abolished. I think he will agree with me, because he follows the Debates of this House very closely, that on every occasion on which an attempt has been made—usually from these benches—to bring about an alteration of the law which would abolish the doctrine of common employment, he has found virtual unanimity among lawyers in all quarters of the House in favour of the abolition of that doctrine. I did not hear him say on any of those occasions that the unanimity of the lawyers induced him to change his mind.
§ Mr. Marshall
May I say that I have heard in opposition to that proposal, when it was put forward from these benches, some of the same Gentlemen who have been speaking from the opposite side of the House to-night?
§ Mr. Silverman
I do not want to debate that with the hon. Member, but I think he is mistaken. I think he will find that the overwhelming majority of the speakers in those debates on common employment were lawyers, in all parts of the House, and I think he will find they were not quite unanimously in favour of its abolition, but that so close were they to unanimity in that sense that the one or two who took a different view were only the exceptions, who proved the general rule. I think that even on workmen's compensation they have been largely in agreement. [HON. MEMBERS: "No!"] It may be that hon. Members are right, and that they were not in agreement. Where they were not in agreement, no one can use their opinions as an argument either way; but the fact that lawyers have been in agreement on a proposal which 511 the hon. Member considers desirable rather militates against the argument that their unanimity is a suspicious circumstance. In fact, it is not. The hon. Member talked as though what lawyers and others were seeking to do in abolishing this special privilege was something to further their own interests. I think he will agree that lawyers usually get paid anyway. What I think lawyers are anxious, in this Debate, to see is that their clients get something for their money and that they get their rights, whatever their rights may be, against defendants, whether those defendants happen to be local authorities, insurance companies or private individuals.
The hon. Member would not say that where a certain local authority, by some negligent act of its employés, had performed great damage, the local authority, merely because it was a local authority, ought to be exempt from the law which requires such damage to be paid for. When the hon. Member said that local authorities are a kind of milch cow he was wide of the point. Very many of the local authorities affected do not carry their own insurance; they are insured by big insurance companies, exactly as other big employers are, and the benefit, if it be a benefit, does not inure at all to the local authority in those cases, but purely to the insurance company, which has taken the premium to insure the local authority against that kind of risk.
§ Mr. Marshall
I do not want the hon. Member to build a case on that statement. It is my information that most large local authorities conduct their own insurance.
§ Mr. Silverman
But the hon. Member must appreciate that his experience in this matter, although no doubt deep, is limited. He is a member of only one local authority. In fact, the tendency is all the other way. There is one big insurance company which exists solely to serve the interests of the municipal authorities. It does no other class of business. It is perfectly true that some local authorities carry their own insurance. It is true also that there are some local authorities—I am glad to hear that that one of which he is a member is among them—would scorn to take an unfair advantage of the privilege which it has under this Act. But to say that because there 512 are some local authorities who do not avail themselves of this privilege and who carry their own insurance, therefore the privilege itself ought to be preserved, is like saying that there ought to be no law against drunk and disorderly persons because there are persons who are never drunk and disorderly. It is a non sequitur. Nowadays local authorities are engaging in all kinds of commercial undertakings, and the hon. Member and I do not think that they engage in enough. We would like to see their powers extended and local authorities avail themselves to a larger degree of those powers to do these things. But now they are doing it, it is unfair to the public and to people who may be injured, and to other people engaged in the same kind of trade, if they are not to be liable for things done wrong on their behalf in exactly the same way as any other person.
§ 10.31 p.m.
§ Mr. A. V. Alexander
One of my hon. Friends asked me what was to be our general line to-night in voting on this Bill. As I understand that the Bill is going upstairs to Committee, there is no reason at all, from our point of view, why we should not give it a Second Reading tonight. A very large part of the Bill is consolidation, but there are the points to which the Solicitor-General has drawn attention, and if any Member wishes to take exception to some of them there will be ample opportunity to fight out the matter in Committee. But in view of the point of view which has been widely spread this evening on Clause 21, it would be interesting, quite apart from the legal arguments of hon. Members, if the Solicitor-General could tell us what communications have passed between the Government and, say, the Association of Municipal Corporations and the County Councils Association, and whether they considered the report of the expert Committee. I should like to know that before we come to consider what our attitude might be on Clause 21 between now and the Committee stage.
§ 10.33 p.m.
§ The Solicitor-General
With the leave of the House, may I first of all deal with some subsidiary points? The hon. and gallant Gentleman the Member for South East Leeds (Major Milner) who opened the discussion, asked why we had been 513 so long in introducing this legislation and expressed sympathy with the Law Revision Committee in having to wait two years to see this legislation introduced. I was, therefore, particularly alarmed when the hon. Gentleman the Member for Leigh (Mr. Tinker) suggested that this matter ought to be put back for a time and reconsidered. The whole of the material upon which this Bill is founded has been embodied in the report of the Law Revision Committee, and it has been available ever since 1936, so that there has been ample opportunity for everybody to know what the proposals of that Committee were. As the right hon. Gentleman indicated a moment ago, the discussion largely revolves round Committee points, and as the Bill is going upstairs, these points can be discussed in full if the House will give the Bill a Second Reading. But I am so anxious to reply to the hon. Member for Leigh that I will immediately approach the three very important points he raised. They will be further cleared up on the Committee stage. The Bill does not touch the position of workmen's compensation. That remains as it is at the present moment, namely, a period of six months, subject to the power to extend the time in case of error and oversight. Secondly, as regards the very important point of miners' welfare, he asked me what the reference was in the definition Clause 31 to "duty," where it refers to the royalties' welfare levy. The reference to "duty" there is to Clause 30, which expressly excludes duties from the limitations of the Act. Arrears of miners' welfare levy can be claimed irrespective of time, because they are a debt due to the Crown, and we are leaving it in exactly the same position. We are not subjecting it to any limitation whatsoever.
He also raised a point, which was raised by another hon. Member, and which has been a matter of general interest, as to the provision about foreshore. Hon. Members have put their case in regard to a matter with which the Committee itself did not deal. "Foreshore" is denned, and this is an answer to the hon. Member for Ogmore (Mr. E. J. Williams) as meaningthe shore and bed of the sea and of any tidal water, below the line of the medium high tide between the spring tides and the neap tides.The provision, as now amended, is this. At the present time the Crown can main- 514 tain the right to the foreshore up to 60 years. Unless user by somebody else has been shown for 60 years, the Crown can make a claim. By Clause 4 we are limiting to 30 years the right of the Crown to bring an action to recover land, cutting down the general period in most cases where the Crown claims land; but in the case of the foreshore we propose to leave the law where it is at present. That is to say, the period within which the Crown may make its claim will still remain 60 years That has been done at the instance of my right hon. Friend the President of the Board of Trade. We consider it dangerous that the 60-year period should be reduced, as in some cases there might be the loss to the public of their right to the foreshore. That applies especially in remote parts of the coast.
We are confirmed in that view because in Scotland the limitation period is only 20 years, and claims to the foreshore, which extend to over one-half the coast of Scotland, have been admitted by the Board since 1866. The Royal Commission on Coast Erosion recommended as long ago as 1911 that the period applicable in Scotland should be the same period as in England. Fortified with that example from Scotland we have expressly left the law where it is at present, and not cut it down to 30 years as in other claims of the Crown to land. The public interest has been the paramount consideration in doing that. This saving of the Crown's right is wholly beneficent in the interests of the public as against the interests of the individual subject.
I was asked whether the Act is to be retrospective. It is not. On the other hand it is not proposed that it should come into operation before 1940. That is provided for in Clause 34. There will, therefore, be ample time for everybody to acquaint themselves with the new periods of limitation where there are variations made by the Act. I was also asked by the hon. Member what was the position of a person who had a cause of action against a public authority and six months of his time, and more, had expired, but not quite the 12 months that the Act would prescribe. He put to me a difficult question, but I think the answer probably is, in fact I am fairly confident it is, that in such circumstances a person's right would have expired. Under the existing law his right at the end of six months would have expired. On the other 515 hand, if it was five months, very difficult questions would arise. It is a point upon which we do not want to have any uncertainty, and we shall have to deal with the question in the Committee stage. Hon. Members have suggested that the courts should have power to extend the time in public authority cases. That was considered by the Law Revision Committee and their reasons for not adopting it are given in page 11 of the report. I adopted that view in the committee, but looking at it in another capacity, I am not wholly convinced that the reasons we gave were conclusive, and in view of the discussion which has taken place to-day the matter shall be further looked into.
The hon. Member for Oxford (Mr. Hogg) had two or three complaints against the Bill. He wanted to know why it should be such a long period as six years and mentioned simple cases where six years is more than ample. The whole idea of the Bill is to get a uniform period for actions which are simple and difficult, and while in the instances he gave, cases of accidents, and slander and libel, six years may be more than adequate, there are many cases of great complexity where six years is not too long. He also objected to the abolition of the disability of being beyond the seas, and said that it was quite simple because the moment a person returned the disability disappeared. That is one of the difficulties in the matter. There has been a tremendous amount of learning as to when a person can be said to have returned. Suppose a defendant is beyond the seas and returns in a ship which puts into an English port for ten minutes or an hour, is that a return, and does the disability come to an end although he may know nothing about it at all? It is clear that if you do not abolish the disability of being beyond the seas, you must amend the law relating to return.
I have left till the last the most important matter which has been discussed this evening, and that is the question whether something more ought to be done as regards public authorities. The hon. and gallant Member for South-east Leeds was generous and understanding in recognising the difficulties that a mere Law Officer has in making any pronouncement on the subject, of administration. I have 516 told the House that these Law Revision Bills have been able to be brought forward hitherto because they do not raise matters of really serious controversy, but I observe that on this matter there is acute controversy even in the party opposite. I know that to be so. Although a case can be made which sounds easy, and to which there is no answer at the moment, as regards local authorities, I know that one of the matters that held up the Bill last July was uncertainty on the part of hon. Members opposite as to the situation in which local authorities might find themselves. A very wide area is opened up by the question of local authorities. It has been pointed out that they have had a curious vested right which other people have not had; they have had it at least since 1893 and probably longer; and it would indeed be a very formidable matter for one with no administrative responsibility to take the responsibility of saying to-night whether, in face of the recommendations of the committee and in view of the fact that we do not desire a controversial Bill, any alteration can or should be made in that position.
What I think I am justified in saying is that this discussion to-night has revealed on all sides of the House a great interest in the topic of whether the special position of local authorities ought to be reconsidered. That is a matter which will certainly occupy the attention of those who are responsible for the administration of local authorities. In particular, I will say that the views of the House will be brought to the notice of my right hon. Friend the Minister of Health, and there will be a further opportunity of discussing the matter in greater detail, after the local authorities also have had notice of the Debate, when we reach the Committee stage upstairs. I hope that with these remarks the House will now give the Bill a Second Reading.