CLAUSE 4.—(Construction and citation.) (Hansard, 17 February 1944)

§ Mr. N. Maclean
I beg to move, in page 2, line 33, after the second "Act" to insert "shall be retrospective."
I do so for the reason that I have already put before the Committee, and I must say quite definitely that the Lord Advocate was not fair to himself in the manner in which he has explained the matter. He said there were three parties to the action, but he must bear in mind that this particular Bill we are now discussing was brought before the House of Lords by Lord Simon for the specific purpose, he said, of safeguarding any future condition like that which led the Tritonia Company to take action in the Court of Session. So there is a division of legal opinion, Scottish opinion against English opinion, the Lord Chancellor's against that of the Lord Advocate. The Lord Advocate to-day is bringing into this Committee a Bill which was sponsored by the Lord Chancellor, whose speech states specifically—

The Deputy - Chairman
Perhaps I might remind the hon. Member that he is moving a very narrow Amendment, asking that the Bill should be made retrospective. He should not go into the whole history of the Bill.

§ Mr. Maclean
I can give reasons why it should be made retrospective, and they are fairly wide. The Lord Advocate said that he may have been wrong but did not think he was wrong; the facts that transpired proved that he was wrong. If he was not wrong the company would not have lost their money. The factory lost a court case, and this part of the Bill is trying to prevent it for the future. Surely that is the strongest argument against his statement that he did not think 487 he had been wrong. It was lack of foresight on his part, and to guard against that in the future the Bill has been brought forward. It is a safeguard in the future against any similar action. The words in the Bill are practically the words of the Lord Chancellor in another place. A firm is doing war work, engaged only in productive work for Government Departments; why should a money-lending firm, whether English or Scottish, come down on top of it, try to demand the last ounce of flesh and blood out of it, put that firm in a difficult position, advertise the factory for sale when there was an emergency order making it a criminal offence for that to be done without the permit of the Government Departments for which the factory was working? That is why Parliament should make the Bill retrospective. Whether it be a large firm or a small firm, it is not right that it should have to suffer from the oversight of any person in this House or elsewhere. The large firm particularly is more in need of money than any other and has the best right, I should think, to the protection of this House, against what has been done to it by this Equity and Law Life Assurance Society.

§ Mr. Tinker (Leigh)
It appears to me that there is some substance in the appeal made by my hon. Friend. I know that Parliament very seldom acts retrospectively, but we have had experience in other matters in which the House of Commons has made a mistake. It ought not to be beyond our power to say that we will put it right. According to the account given by my hon. Friend, there has been a grave mistake, and if it is admitted by the Government they ought to say that they are not too big to put the matter right. I feel inclined to go to a Division in support of my hon. Friend.

§ Mr. Sloan (Ayrshire, South)
My hon. Friend the Member for Govan (Mr. N. Maclean) has put up a very strong and reasonable case. Surely it is not outside the ability of the Lord Advocate to right a matter like this. My hon. Friend complains that it was the fault of the Lord Advocate, who had not the foresight of the English people to see that the Bill was passed in time to prevent the loss which has fallen on this firm. It is incomprehensible to me that the House of Commons is unable to rectify a small 488 matter like this. I do not think that the Lord Advocate will carry any weight at all if he merely reiterates that he cannot do anything in the matter. There ought to be some method of indemnifying people who have suffered fairly substantial loss. I feel strongly inclined to support my hon. Friend's Amendment.

§ The Lord Advocate
Let me try to explain what the position is under the Bill as it stands. If anyone tries again now after the Bill becomes law to take property of this particular firm or any other firm which is in similar circumstances, and indeed in any other circumstances covered by the Bill, of course, they cannot do it without going to the Court for permission, and permission will not be granted in the circumstances described in the original Act of 1939. I should gladly take any step that seemed practicable to meet the point of my hon. Friend the Member for Govan (Mr. N. Maclean), but frankly I do not see how this Amendment of his can work. Let me explain. For this one case there have probably been others under other Clauses of the Bill, many of them in which—I think I am in Order here in referring to the great bulk of cases which the Bill will affect so as to show what the retrospective change would mean—any person who has pursued his debtor under a post-war contract and has perhaps had to take steps to sell up property, has been entitled to do that up to now without going to the court for authority. He will now have to go to the court for authority before he can do that.
If I were to accept an Amendment like this it would seem to open up all these transactions which up to date have gone through quite legitimately and without anybody making any complaint, because I have had none. All these transactions would have to be opened up, because if you make this retrospective it means you must go now and get the authority of the court for those things you have already done but for which you did not need the authority of the court at the time. That is not a practicable proposition. It is not possible for people who have concluded business and sold up property to go to the court to authorise the thing after it has been done.
That seems to me what this Amendment means, and I cannot see how even in the case the hon. Member is dealing 489 with we can make the Bill retrospective. You cannot undo what has been done. You cannot reverse a decision which has been come to in another place. All you can do is to do something. I do not know what could be done to assist this firm. You cannot even give the firm back their property, because I understand their property was never taken away from them. They have had to pay a sum in legal expenses, it is true, but surely we cannot ask the successful party to whom it was owed to pay it back. I do not understand how by any Amendment of this Bill, certainly by this Amendment, we can put the matter right. I have tried to give my attention to the hon. Member's proposal. I see his point. I sympathise with it, but we cannot make the Bill retrospective to the extent of undoing something which has been done already and require the repayment of money which has been paid already to another private individual, and short of doing that I have been unable to find any practicable method of achieving the result which the hon. Member has in mind.

§ Mr. Mathers (Linlithgow)
The Lord Advocate has some control over certain legal actions taken in Scotland. I do not know whether in the kind of action that was taken in respect of the case to which my hon. Friend has referred, and upon which he bases his case for making this Bill retrospective, the Lord Advocate could authorise action to be taken in the courts. Perhaps that happens only in criminal cases.

§ The Lord Advocate
indicated assent.

§ Mr. Mathers
That meets my point. If the action had come under the jurisdiction of the Lord Advocate, he could have withheld his permission, while he went through the processes necessary to put Scotland in the position which England has been in for some time in respect of matters of this kind.

§ Mr. Boothby (Aberdeen, East)
I do not want to make any complaint against my right hon. and learned Friend, but I do not think that anybody listening dispassionately to this Debate could help being convinced that a very serious injustice has been done to one company. If an injustice had not been done, I think it would not have been necessary to introduce this Bill at this particular moment. 490 Parliament is never willing to see injustice done if it can be avoided. I see my right hon. and learned Friend's objection to the Amendment moved by my hon. Friend the Member for Govan (Mr. N. Maclean). I see that it would be very difficult to make this Bill retrospective; but, without wishing to apportion any blame, I would beg my right hon. and learned Friend, in view of the fact that practically every Member is aware that an injustice has been done, to consider very seriously bringing in an indemnity Bill in respect of this company. I think this House would pass that Bill in five minutes, without a Division.

§ The Lord Advocate
Let there be no misunderstanding about this. Indemnity means that you absolve somebody from having to pay something. But these people have had to pay, and presumably have paid, something, not to the Government but to other private people. No indemnity can cure that; the only thing which can is a payment of money from somewhere to these people. I am bound to consider the expressions of opinion here to-day, and I shall most decidedly do so. I do not think that any Amendment of this Bill can put the matter right, but I am certainly ready to consider whether there is any other method of doing it. I cannot promise that I will find one—I have not see one yet—but I will consider all the suggestions which have been made. I should point out this to the Committee. If I had acted earlier and the House had been willing to accept the Bill, these people would have had some chance of establishing their point, which they did not have as it was, but a great many other people would have had to spend a great deal of money on legal processes which have never had to come before the courts at all, and I ask my hon. Friends to bear that in mind in making up their minds about this question. I will consider whether there is any feasible method, but it cannot be done by indemnity, because it is not a matter between the company and the Government.

§ Mr. Maclean
I am not making any harsher suggestion against the Government than that there has been an oversight on the part of the Law Officers of the Crown, but, as they are Crown servants, an indemnity should be given to those who have suffered because of their 491 oversight. That is my point and that is all I want. I am not accusing the Solicitor-General or the Lord Advocate of doing these things wilfully, but, through an oversight, one person in my constituency has suffered severe financial loss, and all I am asking from Parliament and the Government is that he shall be indemnified—I do not say in the Bill or in any other way—but at least that the Government shall see that he shall be indemnified for the loss to which he has been put through the oversight of the Law Officers of the Crown in Scotland.

§ The Lord Advocate
I will certainly undertake to consider that, but I cannot possibly give any promise, or, indeed, any indication that I can find a way out, because at the moment I cannot see one. I shall do my best, and perhaps my hon. Friend will consult with me to see if there is any possible way out. At the moment I do not see one.

§ Mr. Maclean
In view of that generous offer, I beg to ask leave to withdraw my Amendment.