HC Deb 05 July 1949 vol 466 cc2112-20

Motion made, and Question proposed, "That this House do now adjourn."—[Mr. Popplewell.]

11.0 p.m.

Mr. Swingler (Stafford)

I am raising the subject of the administration by the Minister of Pensions of his powers under the Crown Proceedings Act, 1947, and the issue of certificates of attributability in certain cases. I must open by explaining, or recalling, to the House the contents of Section 10 of the Crown Proceedings Act, 1947, about the administration of which I wish to raise certain points. This Section deals with the exemption of the Crown from liability in tort for causing fatal accidents or injuries in the Armed Forces. The provisions of this Section state that the Crown is not liable on two conditions to claims at Common Law in the case of accidents caused in the Armed Forces.

The first condition is that the person concerned—a soldier, sailor or airman—is on duty at the time of the accident occurring, and of the injury being sustained, and the second is that the Minister of Pensions certifies that the death or injury has been, or will be, attributable to service for the purposes of entitlement to pension of the person concerned, or the parents of the person in the case of death. The question I want to ask is how does the Minister of Pension administer the subsection of Section 10 of the Crown Proceedings Act which gives him power to issue these certificates of attributability to military service in the case of death or injury being caused in the Armed Forces.

Last autumn the son of a constituent of mine who had been called up for National Service was run over by a tank trailer while he was inspecting the vehicle, and he was killed. The circumstances of the accident were fully examined at the inquest, at which the father was represented by a solicitor. At the inquest the coroner made some pretty sharp comments about the circumstances surrounding this fatal accident. He said, for example, that it appeared to him that the method of inspecting vehicles at this unit was haphazard; that the accident disclosed an unsatisfactory state of affairs; that the system of supervision was hopeless, and that, in his opinion, it was only by the grace of God that accidents of this character had not in fact occurred previously.

I think that anybody reading the report of that inquest and what the coroner stated would clearly see that negligence on the part of an individual or individuals was implied. Furthermore, after the inquest had taken place the coroner drew the attention of the solicitor representing the father to his—the coroner's—right to hold certain photographs of the circumstances surrounding this case, so that if necessary they could be used in civil proceedings.

When this case was brought to my notice I had some correspondence with the firm of solicitors which represented the father of this lad at the inquest last October. I do not propose to read much of what was stated in that correspondence, but I should like to give the purport of one of them, dated 21st March, this year. After attending the inquest and perusing the evidence, the firm came to the conclusion that in normal circumstances a claim for negligence both against the driver of the vehicle and the authorities might be expected to prove successful, but any right of action was barred under Section 10 of the Crown Proceedings Act. Proceedings in this case were contemplated by the father and his solicitors, but they were immediately notified by the Treasury Solicitor——

Mr. Speaker

The hon. Gentleman mentioned just now that this was barred by Section 10 of a particular Act. Is he now talking of matters which involve legislation? If so, they are out of Order on the Adjournment.

Mr. Swingler

I think I can explain that point. My remarks were a paraphrase of the solicitors' letter to me. What they meant was that if the Minister of Pensions used his power to issue a certificate of attributability under Section 10 of the Act, then legal proceedings would be barred, and the solicitors knew at the time of writing that the Treasury Solicitor had in fact notified them that if legal proceedings were started against the Crown in this case, the Minister of Pensions would then use his power under Section 10 to issue a certificate of attributability, and that then proceedings would be barred. The point I am concerned with is the way in which the Minister of Pensions administers this power—not the question of legislation.

Mr. Leslie Hale (Oldham)

The hon. Gentleman has referred to the father. Was the deceased a single man?

Mr. Swingler

He was a single man—a young lad doing his National Service. The firm were the solicitors to his father. In fact, the Minister of Pensions did not issue a certificate, although the Treasury Solicitor informed the father of this lad that he would do so if legal proceedings were started. I raised this point with the Minister, and in a letter dated 18th May, he said: In actual fact I have not issued a certificate under the Act regarding Private X"— I do not intend to give the soldier's name— but if his father does institute proceedings against the Crown I shall undoubtedly have to do so, as both Private X and the man responsible for his fatal injuries were on duty, and under the Royal Warrant the death was accordingly attributable to war service. It seems to me, from what is stated in the Minister's letter, that it is there implied by the Minister that the issue of this certificate attributing the accident to what he calls war service is automatic. He says that the person concerned in the accident and the man responsible for the fatal injuries were on duty, which in fact is the first provision put into Section 10 of the Act. The same point was also made by the Minister in reply to a supplementary question of mine on 21st June, when I raised with him the number of cases in which he had used this power under Section 10 of the Act. I asked him: Will the Minister say whether the issue of these certificates is automatic if it is proved that the soldier, sailor or airman was on duty at the time of the accident? The Minister replied: If he is on duty I am obliged by the Statute to issue the necessary certificate."—[OFFICIAL REPORT, 21st June, 1949; Vol. 466, c. 23.] I hope the Parliamentary Secretary will tonight put this point right, because I think that, in reply to that supplementary question, the Minister made a slip. He had said, in answer to the original Question, that there was a case in which he had refused to issue a certificate on the ground that the injury was sustained during a brawl, and it is clear that in that case the persons concerned must have been on duty, otherwise the question would never have arisen of the Minister issuing a certificate. The issue is not automatic. The Minister considered the accident was not attributable to service, and therefore he decided not to issue a certificate in that case.

The principal question I want to ask is how the Minister assesses, in administering this power, what is attributability to service. It seems clear that it is not merely a question of being on duty or not on duty. The Minister is bound, according to the Statute, to consider the merits of the case. If, in the case of an accident leading to injury or death, there is negligence involved, or supposing there is gross negligence, should the Minister use his power to issue a certificate of attributability to service? Here was a case where presumably there was a brawl in barracks that led to the causing of an injury. Although the persons concerned were technically on duty as members of the Armed Forces, the Minister considered that he ought not to issue a certificate of attributability because there were other factors to be taken into account. I believe that in the case I have raised the factor of negligence on the part of the individual, or the authorities, ought to be taken into account. Where there is serious negligence involved, the Minister ought not to issue automatically a certificate saying that the accident was attributable to service.

The second question I want to ask is why the Minister cannot withhold his decision about entitlement to pension. Why must he, when legal proceedings are starting, or about to start—or when he knows, as in this case, that the father's solicitors are preparing a case against the Crown—why must he immediately say that he will issue a certificate if legal proceedings are started? There is nothing in the Statute which says that he must do that. The Statute says that the Crown is not liable in the case of such accidents if the Minister certifies that they are attributable to service. There is nothing to say the Minister must issue a certificate about entitlement to pension to stop legal proceedings against the Crown.

We all realise that the Armed Forces must be protected against actions, particularly where in the case of warlike acts and because special risks have to be taken in the Armed Forces; but it does not appear to me that either the intention or the letter of Section 10 of the Crown Proceedings Act means that the Minister of Pensions should protect the Crown where accidents occur in which there is serious negligence on the part of the individual or of the authorities. The intention was to allow as far as possible, in the case of the Armed Forces as in other cases, the citizens' right to make a claim on the Crown at Common Law.

I hope that the Parliamentary Secretary will take the opportunity tonight to explain the precise manner in which the Minister administers this power, which I think all would agree is an important responsibility in cases where, very often, grave hardship is felt; the manner in which he assesses the merits and factors causing accidents and injuries and, in particular, the reason why, in the case of my constituent, he proposes to use the power to issue a certificate of attributability to service to take away the right to make a claim against the Crown.

11.16 p.m.

The Parliamentary Secretary to the Ministry of Pensions (Mr. Simmons)

I apologise to my hon. Friend and to the House for having been a little late in coming in. The hon. Member is under a little misapprehension as to the position in relation to Section 10 of the Crown Proceedings Act in one or two instances. The purpose of the Act is to place the Crown, for the purposes of the law of torts, in the same position, so far as practicable, as a private person. It has the effect of enabling a person to bring an action against the Crown in the same way as against any other person. This is a practicable and proper arrangement over the field of activities of the Crown which have an analogy in private undertakings.

There are, however, some necessary functions of the Government in relation to Defence and the maintenance of the Defence Forces where the analogy between the Crown and a private person breaks down. The maintenance and training of the Armed Forces involves operations undertaken at risks which are essential for securing efficiency, such as the use of live ammunition in training, driving heavy armoured vehicles and operations of that kind. These operations, if carried out by a private citizen, would no doubt be extremely blameworthy, but it is impossible, as was accepted by the House in 1947 when the Crown Proceedings Act was passed, to apply the ordinary law of tort in these cases. Moreover, it would be impossible to risk prejudice to the efficiency and discipline of the Armed Forces by placing an officer or soldier in the position of feeling that, if he had made a mistake and personal injuries resulted to another soldier or man under his command, an action for negligence would lie.

Parliament has provided by Section 10 of the Act that the Crown and any member of the Armed Forces should be exempt from liability in respect of the death or personal injury suffered by another member of the Forces in certain circumstances: where both members were on duty; where the injured member, though not on duty, was injured by the act of a fellow member on duty if the accident causing injury or death happened on military premises or vehicles; and thirdly, where the injured member was injured in consequence of the nature or condition of any military land, premises, vehicles, etc.

This exemption is subject to the very important limitation, that it does not operate except where the event giving rise to death or injury is certified by the Minister of Pensions as attributable to service for the purpose of pension. In addition, the Act specifically withholds exemption from the defaulting member of the Forces where his act or omission was not connected with his duties as a member of the Forces.

In the case mentioned by the hon. Member for Stafford (Mr. Swingler), the soldier concerned was involved in a brawl. It cannot be said that if a soldier on duty indulged in a brawl, the brawl was connected with his actual duties as a member of the Forces. In the particular case in which the hon. Member is interested, the member of the Forces whilst on duty sustained fatal injuries which were a result of an act by another member, also on duty, the act being connected with the execution of those duties. Under the Royal Warrant administered by my right hon. Friend, the death was clearly attributable to service and if proceedings are brought against the Crown at Common Law for damages, my right hon. Friend will, in accordance with Section 10 of the Act, issue a certificate of attributability if requested to do so. All my right hon. Friend has to do under the Section is to issue a certificate in certain circumstances, stating whether or not an injury or death will be accepted under the Royal Warrant, or the corresponding instrument, as attributable to service. The hon. Member for Stafford raised the question of the automatic issue of these certificates. I should make it clear that a certificate is not issued automatically. Obviously it is required only when proceedings are contemplated, and it is furnished by my right hon. Friend only upon request.

I should like to take the three specific points referred to by the hon. Member. First, he contends that the accident which he has in mind was not properly attributable to military service. The ground upon which he bases this is that negligence and inefficiency on the part of the authorities were involved. Considerations of negligence are irrelevant to the question of the issue of certificates under Section 10. The Section does not specify the circumstances in which an injury is, or is not, properly to be regarded as attributable to service. This is a matter to be decided solely in accordance with the provisions of the Royal Warrant, or the corresponding instrument administered by my right hon. Friend, with due regard to the interpretation of these provisions given by the courts under the Pensions Appeal Tribunals Act, 1943.

Mr. Swingler

Surely, under this Section the right hon. Gentleman has the power to decide whether a man's suffering an accident is attributable to his service. In what way does the Minister decide whether that is attributable to service? Surely the causes of the accident must be taken into account. If negligence is involved as a cause of the accident, surely that is taken into account by the right hon. Gentleman.

Mr. Simmons

The sole point is whether the accident was due to service conditions. The question of negligence does not arise. The question is whether the man was on duty, and whether the accident was caused when he was engaged in carrying out that duty, or the person by whom the injury was caused was carrying out his duty. If a man is fatally injured in the course of military duties through no fault of his own, his death clearly is attributable to his service.

The second point which the hon. Member raised was the question of the automatic issue of certificates in cases where a man was on duty at the time of the accident. Where injuries are sustained by a man on duty, and in circumstances such as those which obtained in the case of Private X, acceptance of the injury as attributable to service is automatic. As I have explained, the actual issue of certificates under Section 10 is not automatic. They would be furnished on request. The hon. Member is not correct in his reference to conditions which must be fulfilled in order to relieve the Crown from responsibility. Section 10 also refers to injuries sustained, in certain circumstances, by a man when not on duty. Many off-duty injuries are accepted as attributable to service. On the other hand, an injury suffered by a man on duty may not be accepted as attributable to service, because it was caused by circumstances wholly within the man's own personal sphere. One example of that is the case of the brawl, which has been mentioned by my hon. Friend. Another example was one in which the High Court ruled that a soldier who died through heavy over-drinking could not be regarded as having died as a result of service.

The third question which the hon. Member raised was why not withhold a decision regarding entitlement where there is no application for pension, but an application against the Crown has been started. I must point out that the whole purpose of Section 10 is to relieve the Crown from liability for tort, and my right hon. Friend obviously cannot evade the responsibility placed upon him by this House. In conclusion, I would remind the House that many cases of difficulty concerning the question whether an injury is, or is not, due to service have come before the courts, and the principles involved are well settled. In the light of the decisions given by the courts, my right hon. Friend has no doubt at all that this death was attributable to service, and that his decision was the right one to have reached.

Question put, and agreed to.

Adjourned accordingly at Twenty-six Minutes past Eleven o'Clock.