§ Mr. Selwyn Lloyd
I beg to move, in page 49, line 14, to leave out "on a claim."
890 This Amendment goes with the following Amendment, in line 15, which I understand is not to be selected.
§ Mr. Deputy-Speaker
I understand that this Amendment goes with the next half-dozen or so Amendments in page 49, lines 15, 16 and 45, and page 50, lines 1 and 3. It would be for the convenience of the House, perhaps, if they were discussed together.
§ Mr. Selwyn Lloyd
I am not in any way challenging your Ruling, Major Milner, but am seeking further information. I understood that you did not intend to select the first Amendment in line 15.
§ Mr. Deputy-Speaker
I assume that that Amendment and the others to which I have referred, are consequential to the one which the hon. and learned Member has moved.
§ Mr. Selwyn Lloyd
Perhaps I may speak to the Amendments to which you referred, Mr. Deputy-Speaker, and if any of them do not strictly follow perhaps there will be a chance of discussing them at a later stage. I think the point of general principle is fairly clear and, as I spoke on this matter for half an hour during the proceedings in Standing Committee, I can move this Amendment in very short terms.
Clause 44 deals with the procedure and enforcement of orders of the Arbitration Tribunal and subsection (3) provides that the tribunal may state a special case for determination by the Court of Appeal relating to any question of law which may come before themand an appeal shall lie to the Court of Appeal on any question of law or fact from any determination or order of the arbitration tribunal on a claim under Section eighteen.…Section 22, Section 24 or Section 25 of the Act. Clause 18 of the Bill deals with the question of thecontrol of dividends, interest and other paymentsand the sort of matter which presumably might come before the tribunal under that Clause is whether the directors of any company were likely to have to repay any moneys which have been wrongly distributed by way of dividends. So far as Clause 22 is concerned, it deals with the transfer of iron and steel works and enables the Corporation to recover before 891 the tribunal sums sufficient to make good any loss which the Corporation have suffered by iron and steel works, or any rights under them, being wrongly transferred. Clause 24 deals with the dissipation of assets and again, under that Clause, there is provision for recovery from directors of any sums wrongly distributed. Clause 25 deals withOther transactions resulting in the dissipation of assets.In all those Clauses under which the Corporation have the power to recover, provided the tribunal so orders, loss or moneys distributed through the directors, the Government have seen fit to incorporate a right of appeal on questions of law and fact. We on these benches do not quarrel with that decision because it seems to be perfectly right and proper in relation to such matters, particularly in view of their complications; it is only just that there should be an appeal on both questions of law and fact. In the Bill, however, there are a number of other Clauses which deal with proceedings in front of the Arbitration Tribunal, and two Clauses to which we refer in particular are Clause 13, which is dealt with in the second of these Amendments, and Clause 23. In relation to proceedings concerning the provisions of those Clauses, as the Bill stands there is appeal only, on matters of law; there is no appeal on matters of fact.
If we look at Clause 13 we shall see that that Clause relates to the disclaimer of agreements and leases. As the House has already discussed the provisions of that Clause to some extent, I will not delay proceedings by relating them in any great detail, but the House may remember that under that Clause any contract or any agreement of any sort or kind which has been varied or made by one of the companies concerned can be declared by the Corporation, in certain circumstances, in effect to be frustrated. In other words, parties to such agreements or contracts lose all their rights under them, however innocent they may be. That Clause includes a provision that if such a notice having the effect which I have stated may be served on the parties to an agreement, then they have the right to go before the Arbitration Tribunal and the tribunal has to come to conclusions, subject to certain conditions set out in the Clause, and to decide whether the 892 notice given by the Corporation is to be revoked or not.
What we say with regard to such matters is that there ought also to be an appeal on questions of law and of fact from the decision of the Arbitration Tribunal. The argument which the right hon. Gentleman, or one of his assistants, adduced in the Committee was that it was unnecessary to make that provision with regard to Clause 13, because it really would not penalise the parties concerned to anything like the same extent. I do not think I am doing injustice to the Government's argument in trying to compress it into that sentence. The frustration of an agreement or a lease may have the most devastating effects on the persons participating. It may affect their whole livelihood and future, and may have the most serious consequences. Therefore, on the ground of the extent of the damage that may be done, I suggest that there is no reason at all for differentiating between this Clause and the other Clauses mentioned here.
The other point which is material is that of complication. It seems to me that some of the matters that may have to be decided under Clause 13 can be of the utmost complexity. In those circumstances it is a very wise provision to make it possible for an appeal to be made. We were asked, "What is the use of having the Arbitration Tribunal at all if we permit an appeal on a question of fact from it?" In the High Court, if a judge tries a case alone, it is possible for the Court of Appeal to consider that case and decide, on the evidence adduced before that judge, if it would have come to the same conclusions. In fact, broadly speaking, there is an appeal on a question of fact when a judge is sitting alone. I see no reason why there should not be precisely the same position in relation to this tribunal. The matters will be of great complexity, and it may be difficult impartially to sift the evidence. I would say that there should be an opportunity for an appellate tribunal to consider whether, on all the evidence which has been adduced, it would have come to the same conclusions as the Arbitration Tribunal. That goes for Clause 13.
The other Clause to which I will refer, quite briefly, is Clause 23. That Clause is the one which deals with the recovery of assets transferred by a company which 893 comes into public ownership. The important part of that Clause, from the point of view of my argument, is that which says that the Minister can recover under it any rights of ownership, or rights in respect of the user of any works, or any rights in respect of the user of any invention or registered design. He can authorise the Corporation to serve a notice of acquisition on a person in whom such rights are vested, stating that they are to be vested or surrendered in accordance with the Sixth Schedule. The Clause defines the expression "user," and says:the expression 'user,' in relation to an invention means any making, use or vending of the invention and, in relation to a registered design, means any manufacture or sale of the articles to which the design has been applied; and the expression 'registered design' means any design registered under the Patents and Designs Act, 1907.I mention that to show to the House the very great complexity of the matters which may come before the tribunal, in particular in relation to derived rights. I do not want to bore the House with a long argument on the matter. I am trying to compress it. Under this particular Clause there may be a series of most complicated matters of fact, and, indeed, also of law, to be decided by the tribunal. There again, if justice is to be done, I think it is necessary for there to be the safeguard of an appeal to an appellate tribunal on questions of fact as well as of law. I think it is necessary there should be that appeal in the interests of both parties, because the Corporation, the taxpayer, is also interested in these matters; and I think that justice can be done only if there is some set-up for dealing with these matters, as I suggest there is in the High Court for dealing with matters which are tried by a judge sitting alone.
§ Mr. H. Fraser
I beg to second the Amendment.
I am in no way a legal expert, but it seems perfectly clear, from what my hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd) has said, that matters of fact can and do arise to a very marked degree under both these Clauses. I would point out to the Solicitor-General that the two Clauses to which my hon. and learned Friend has referred are possibly the most retroactive provisions of this very retroactive and restrictive Bill. Clause 13 is retroactive to 21st October, 1947. We do not know 894 when the vesting date will be, but it may not be until some time in 1951. That will mean a very long period of time—between 1947 and 1951—during which companies may enter into agreements and leases, to be frustrated later by the Corporation when it is set up. The Corporation will thus be responsible for causing companies to disclaim many things they will have done between 1947 and—shall we say—mid-1951, which is a very long time.
The same consideration applies to the recovery of assets. In this case the time is from 1948 to some date in 1951. In a discussion we had about this in Standing Committee, the Solicitor-General tried to establish the point that as long as appeals were made on questions of law, all would be well. However, under Clause 23, as my hon. and learned Friend has pointed out, many cases must occur in which the question is a question of fact, and on which there should be appeal. In a period of as long as four years, there may even arise the question, which may prove a difficult one to answer, whether a notice of acquisition was served, or whether it was withdrawn or revoked. The period of time involved is a very considerable one, and it is perfectly clear that questions of fact may arise.
In other matters, as, for instance, those concerning the paying out of dividends, the transfer of iron and steel works, certain other transactions, and the dissipation of assets, the Government have agreed that there should be an appeal on fact as well as an appeal on law. It seems only logical that that provision should also apply, and apply just as much, to Clauses 13 and 23, as to Clauses 18, 22, 24 and 25. I hope I have made my point clear as a non-legal person. It stands out most clearly, perhaps, to someone with no knowledge of the law that here a manifest injustice is being done—unless the Government accept our Amendment.
§ The Solicitor-General
The issue raised by the Amendment, as has been clearly stated by the hon. and learned Member for Wirral (Mr. Selwyn Lloyd) and the hon. Member for Stone (Mr. H. Fraser), is simply whether there should be the right of appeal on fact as well as on law, in these two additional Clauses, 895 Clause 13 and Clause 23, or whether the appeal on fact or law should be limited to the Clauses specified in the subsection, namely, Clauses 18, 22, 24 and 25. The Amendment—or the argument of the hon. Members—seems to me to overlook one important consideration in all arbitrations. One of the purposes of arbitration is to get finality. People who go to arbitration instead of going to the courts do so largely because they regard it, rightly or wrongly, as a way of getting finality sooner than if they go through the ordinary processes of appeal from one court to another. We had that in mind in framing this Clause as we have done.
We have selected the Clauses under the Bill which may result in persons against whom a finding is made being called upon to pay large sums of money, and we have thought it right, in the case of such Clauses, where persons may find themselves faced with a large money judgment against them as a result of arbitration, to say that an appeal should be not only on law but on fact. We say that the appeal should be completely unlimited: that the whole case from A to Z can be gone into again. We have limited that to the cases where persons are liable to find themselves faced with very heavy penalties. No one is going to criticise that.
In the case of persons who come within the purview of Clauses 13 and 23, where they are not likely to find themselves faced with a large liability—indeed they cannot—we say that an appeal should be only on law. Under Clause 13, it is true that arbitration may declare that a contract in which a person is involved has become frustrated with the result that the person has to pay a certain amount of money back. Under the Law Reform (Frustrated Contracts) Act, 1943, and cases of that sort, all, to put it broadly, that individuals can be called upon to pay is the amount of benefit which they have actually received or the value of some advantage which they have actually enjoyed. It is a very limited liability which can be imposed on a person against 'whom a finding is made under Clause 13. They are not at all in the same situation as the person who comes within the ambit of Clause 22 and the others. 896 The same argument applies with regard to Clause 23.
Clause 23 is the Clause which enables the Corporation to get back assets which have been transferred by Third Schedule companies to others. In the case of Clause 23, there is again special reason why we have not given an unlimited right of appeal. It is this: paragraph 3 of the Sixth Schedule provides a right of compensation to persons who are affected by Clause 23. It gives them a right of compensation in quite generous terms. Therefore, again we say that a person who comes within the ambit of Clause 23 cannot and should not be entitled to an unlimited right of appeal. With regard to persons affected by Clauses 13 and 23, I am not saying that they are necessarily put in a more disadvantageous position. They may be people who are glad to get an issue of fact finally decided.
The hon. and learned Member for Wirral said that the issues raised are complicated issues. They are complicated issues, but there is a right of appeal by way of case stated for those persons who, as a result of the application of Clause 13 and 23, may find themselves adversely affected. They may well be, and we think that they would be, in the ordinary case, desirous of getting the issue of fact, which is a troublesome matter to decide in the first instance, decided by the Arbitration Tribunal once and for all. It is for that reason that we have drawn the line where we have.
We could go on adducing arguments on one side or other of the line almost for ever. One could instance cases that seemed to point one way and cases that seemed to point the other. We feel that it is in the interests of the litigants themselves that they should not be faced with the prospect of an appeal on an issue of fact in a case of that sort. They would not be the only persons who would be given the right of appeal if there were a right of appeal on an issue of fact. The Corporation would equally have the right. Persons who get involved in proceedings under Clauses 13 and 23 may well think that they would rather that neither side was able to re-open the issue of fact. They would sooner get the issue of fact decided between them and the Corporation once and for all, so that neither side could take it farther. People very often feel if they can be taken 897 up by way of appeal by the opposing party, that they are considerably harassed and they would rather get the matter decided once and for all.
Therefore, we accept the position that complicated issues are likely to arise. That we do not dispute, and it is for that reason that we give a right of appeal on questions of law by way of case stated in all the Clauses concerned, but in the cases mentioned in the Amendment we have thought that the persons involved in them would far sooner that neither they nor the Corporation had the right of reopening the issue on fact and would rather get that decided once and for all. It is for that reason that I ask the House to say that we have arrived at the most reasonable solution of this problem and that the Clause should remain as it is.
§ Mr. David Renton (Huntingdon)
It seems to me that the distinction made by the Government and so lucidly described by the learned Solicitor-General is an illogical and arbitrary one. The Clauses with which we are dealing, namely, Clauses 13, 18, 22, 24, 25 and 23 are all of a very similar nature, and, not only that, but it seems to me, they could overlap to such an extent that when it came to enforcing them those authorities who had to enforce them might not be able to make their selection in any one set of circumstances as to which of several Clauses they should act upon. For instance, Clauses 23, 24 and 25 are so similar and, I suggest, so obviously overlap that if the authorities trying to recover property or money in certain circumstances to which each of these Clauses may apply decided that they wanted to exclude the possibility of an appeal to the Court of Appeal, they would, as the Bill now stands, obviously act under Clause 23 and refrain from proceeding under Clauses 24 and 25, which is hardly just.
The question arises whether important and difficult questions of fact are likely to come up and have to be decided by the Tribunal under proceedings under Clause 13. Hon. Members who were present on Thursday night of last week when the discussion on Clause 13 was stopped by the Guillotine, just when it was reaching an interesting stage in the middle of the speech of my right hon. and learned Friend the Member for West Derby (Sir D. Maxwell Fyfe), will remember that the Minister of Supply and 898 my right hon. and learned Friend did point out that that Clause was intended to stop, as the Minister said, any "funny business"; in other words, anything in the nature of fraud. I am sure that hon. Members on both sides who are in the legal profession will agree with me that the courts have come up against very great controversy and considerable difficulty when deciding any question of fact in which fraud is alleged.
§ Mr. G. R. Strauss
I am sorry to interrupt the hon. Gentleman, but I think that he is misrepresenting what I said. I never mentioned fraud. I was talking about action taken in anticipation of the Act with the purpose of disadvantaging the Corporation and advantaging the company concerned.
§ Mr. Renton
If that does not come pretty near to a statement by the right hon. Gentleman that he was trying to prevent fraud, I do not know what he means. What is "funny business" if it is not something very close to fraud? It may be that my right hon. and learned Friend the Member for West Derby was right when he suggested that "funny" in this connection should be read as "funny ha, ha" and not "funny peculiar." At any rate, leaving that aside, I think it is perfectly clear that the questions of fact which will have to be decided under Clause 13 are quite as difficult as those which will arise under Clauses 18, 22, 24 and 25. Therefore, why make this quite ridiculous distinction? I hope that the hon. and learned Member for Wirral (Mr. Selwyn Lloyd) will press this Amendment.
§ Mr. John Foster (Northwich)
The question before the House is whether there should be an appeal on fact with regard to Clauses 13 and 23. The House will remember that the Solicitor-General maintained that the object of arbitration was to get questions of fact settled without a right of appeal, so that people could have finality. I think he overlooked the fact that arbitration is voluntary, whereas here the Government are forcing people into arbitration. There is a great difference between that and a person agreeing with his opponent in the City of London to submit, say, the quality of wheat to an arbitrator in the wheat market, because it is very likely that he would want that question of fact to be 899 finally decided by an arbitrator skilled in determining different types of wheat. In this case the Government are laying down that, on questions of fact under Clauses 13 and 23 there shall be no appeal to the Court of Appeal.
If we look at the composition of the tribunal we find that the very weighty questions of fact alluded to by my hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd) are submitted to a tribunal which—without any disrespect to the lawyer who may be chosen as head of it or the two businessmen—is not of a standing comparable to that of a judge of the High Court. Obviously, in most cases there is no appeal from a judge of the High Court on questions of fact; but it must be remembered that those judges are chosen after very careful selection by the Lord Chancellor, and are persons of very high standing. On no argument could the lawyer who is to preside over this tribunal be one of those. Even judges of the High Court sometimes make what in the general opinion is a mistake about facts; but the disadvantage of that is outweighed by the advantage of which the Solicitor-General was speaking—the getting of finality.
It has always been said to be a curious anomaly that everybody is supposed to know the law except His Majesty's judges, who have the Court of Appeal set over them to put them right. That is a curious fact, but it is justified on the principles on which we run our system of justice. But with an arbitration tribunal very grave questions of fact can be decided once and for all. It is rather in the philosophy of the present Government to fall into the error of thinking that people want a kind of people's court, or even a court with a lawyer of high standing, to decide questions of fact finally; but if in the opinion of the litigant or of his advisers the question of fact is wrongly decided, there is a burning sense of injustice if there is no right of appeal.
The Solicitor-General's argument that these litigants want finality, that they do not want a right of appeal, is another example of "Whitehall knows best." He is saying: "We are doing this out of kindness to them. They do not really want an appeal, although they may think they do. That is why we do not 900 allow it." Even that argument can be met, because the litigant who does not like this right of appeal and does not want it, can always agree with the Corporation that in his particular case there shall be no right of appeal. That is all he has got to do. If there be a large or a small class of these persons to whom the Solicitor-General refers, they can, before starting their arbitration, agree with the opposing side that there shall be no right of appeal on questions of fact. But in all the other cases, unless there is a High Court judge sitting as permanent president of the tribunal, there is no argument for making questions of fact non-appealable. In another century somebody said of a particular judge: "He was courteous; he was slow; he was always wrong: he had the qualities of a great judge." That does not apply nowadays. On important questions nothing less than a person of the standing of a High Court judge is sufficient to decide that question of fact once and for all, without the right of appeal.
Except to a lawyer of great experience it is very difficult to arrive at the distinction between law and fact; there is a very thin dividing line between the question of law and the question of fact where they are mixed; it is very difficult for a lawyer who is sitting with two laymen to extricate questions of law from questions of fact. It is in those cases, in which, as my hon. and learned Friend said, incalculable results may come from a notice of acquisition under Clause 23, that we urge the Government to extend the right of appeal on law and fact, which they have granted under the other Clauses.
In my submission, it would be very wrong to apply certain principles to one set of Clauses, where the Government have provided for a right of appeal on law and fact, and to have another principle under Clauses 13 and 23. The distinction which the Solicitor-General sought to draw between cases where the person might find himself under a heavy liability—namely, those Clauses under which he was arguing a right of appeal on law and fact is granted—also applies to some aspects of Clauses 23 and 13.
The right hon. and learned Gentleman invoked the Law Reform (Frustrated Contracts) Act. As I understand it—I am sure he will correct me if I am wrong 901 —if a very large sum has been paid in advance for a lease or under a contract which has been frustrated, there may be a very large liability to pay it back; it can amount to a very large sum, and I do not see how the Solicitor-General can say that under Clauses 13 and 23 there will be no big liability. I can imagine a case arising where a very large down payment has been made, where the contract is deemed to have been frustrated, and where the financial re-arrangement, owing to the Bill, might be very large. It seems to me that in this case the Government are just digging their toes in because they feel that they do not want to give way, or that if they do they might lose face. They should accede to the reasonable argument of my hon. and learned Friend and the hon. Member for Stone (Mr. H. Fraser).
§ Mr. Maclay (Montrose)
Like the hon. Member for Stone (Mr. H. Fraser) I enter this discussion with some fear as it is undoubtedly a legal problem, on which I am no expert. However, as I understand we are discussing the Scottish application and the Amendments dealing with the Scottish situation, I think it necessary that I should say a little about that. Members of Parliament know how highly valued in Scotland is the right of appeal on questions of fact particularly where business is concerned. Every word that has been said by my hon. Friends applies with greater force to Scotland. The problem we have to face is that increasingly this Government are making people feel that their right of appeal is being taken from them in Act after Act, and the Minister should pay attention to such arguments. It is a very serious thing for this Government that that feeling is growing strongly and particularly is that so throughout Scotland. I hope the right hon. Gentleman will pay attention to Scottish feeling in this matter.
§ Mr. Attewell
We have listened to the case put forward by the Opposition by an array of members of the legal profession. As a layman, I want to place before the House some of the facts which appear to me to arise from the other side of the case and which meet the arguments from members of the legal profession. I would ask hon. Members to decide whether they consider that the case put forward from the Opposition benches denies the ability of the ordinary layman selected as members of the tribunal to de- 902 cide questions of fact. In regard to questions of law I make no dispute, but on questions of fact, it is quite possible for three men chosen by the Lord Chancellor to come to a just conclusion as to whether a certain action performed under Clauses 13 or 26 was a matter of fact.
This is not a new thing. For many years many of us have been on arbitration boards under the Unemployment Acts which decided questions of fact. All through those years the legal profession has protested and asked that these matters be made questions of law in order that they should go to the courts, but the average person appearing before these tribunals knows that it is quite possible for three persons around a table to come to a decision on a question of fact.
What has the tribunal to decide and what is the composition of the tribunal? First the chairman has to be a member of the legal profession. He has to be selected by the Lord Chancellor. The Lord Chancellor will not select a person who is without a knowledge of legal matters, but he will choose one who has an adequate knowledge of the law as it affects the business life of this country. As to the other two members, it will be seen that one of them shall be a person of experience in business and the other a person of experience in finance. With those three persons sitting round the table is it seriously contested that they will not be able to decide whether a lease or agreement has been broken. It is quite possible for those three persons to decide that matter.
The hon. Member for Stone (Mr. H. Fraser) put forward the suggestion that these Clauses were retrospective in their action. He mentioned 1947 in one case and 1948 in another. Are the Members of this House to believe that when an announcement was made as to the Government's intention to nationalise the iron and steel industry these captains of industry did not realise that that would become an actual fact?
§ Mr. Renton
Is the hon. Gentleman saying that a mere Ministerial statement, which may never be fulfilled or at any rate perhaps not for several years, is to be taken by the citizens of this country as a warning that at some possible future date the whole of their rights at the time of the statement shall be altered?
§ Mr. Attewell
I am trying to destroy the case put forward by the hon. Member Stone that this Clause is retrospective, in its action, and that in 1947–48 it was to be expected that the people concerned with business would not realise what were their obligations. These are not ordinary commitments or undertakings that would take place in the ordinary run of business. There would be some ulterior motive behind them.
The Minister was asked whether certain persons were dishonest. It may be within the recollection of Members that there is dishonesty in business no matter how small it is, and if they do not believe that, then let us have the facts of life presented to us. We are legislating for people who commit these acts. When the Minister asks us to reject this Amendment his request should be agreed to by Members on this side of the House, because I believe that it is quite possible for any three persons with the qualities laid down in this Clause to be capable of deciding a question of fact.
§ Mr. Henry Strauss (Combined English Universities)
The hon. Member for Harborough (Mr. Attewell) complained that this discussion had been conducted mainly by lawyers. Having regard to the particular Clauses which we are considering that is a natural thing, and it was eminently proper that the right hon. And learned Gentleman the Solicitor-General should have replied for the Government. The case was admirably put by my hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd) and I shall only add a few words on two points. I cannot help thinking that the advantages which the Solicitor-General thinks he will derive by rejecting our Amendments are in fact illusory. I cannot avoid thinking that he would have been very much happier if he could have made a speech accepting our Amendment.
The first point in which he was demonstrably wrong was pointed out by my hon. Friend the Member for Northwich (Mr. J. Foster). The Solicitor-General said that people go to arbitration in order to get a final determination of fact. Surely there is all the difference in the world between people voluntarily 904 giving up their rights of going to the courts by choosing arbitration and their being compelled to do so. Here the arbitration is not one entered into willingly by the persons concerned; it is the sole tribunal compulsorily laid down by the Act. It is equally true, as I think the Solicitor-General will agree, that one of the reasons why people often decide not to go to arbitration but to go to court is that they will have a very much greater right of appeal.
Except as regards two Clauses of the Measure, the Government and the Opposition are at one in thinking that there should be an appeal to the Court of Appeal on questions of fact and of law. In those two instances, the Government at present say that the appeal should be on questions of law only. The hon. Member for Harborough assumed, and it is perhaps natural for a layman to do so, though I assure him that his assumption is wrong, that it is always easy to determine whether a question is one of fact or of law, or of mixed fact and law. The fact that that will often remain quite uncertain will not prevent parties going to the Court of Appeal, even under Clause 13, though it may ultimately be decided against them that the questions involved are questions of fact, because that will not be clear to them in advance.
Let me draw the attention of the Solicitor-General to this point: If he will look at Clause 13 he will find that under the extremely important proviso to subsection (2) we have an almost perfect example of a case where there may be a dispute as to whether the matter is one of fact or law or whether it is a question of mixed fact and law. The proviso deals with the case wherethe arbitration tribunal are satisfied of the matters aforesaid but are also satisfied that the making or variation of the agreement was a proper transaction made in the ordinary course of business.I suggest that it would be very difficult even for a lawyer to find a provision which would be more likely to involve questions both of fact and of law and of mixed fact and law, and I suggest further that, very few appeals will be shut out by the persons having no hope that the matter might be considered one of law.
905 Therefore, there will be, if the Government resist our Amendment, no likelihood that it will prevent there being appeals under Clause 13 even where the question is ultimately held to be a question of fact, because it will be arguable that it is also a question of law. No actual litigation will be avoided. All that will happen is this: I do not know how many contracts the Government assume these provisions under Clause 13 will affect, but I gathered from the Minister of Supply the other night that he does not think there will be very many. The people who have entered into these few contracts which are frustrated will have a sense of grievance which is wholly unnecessary. The Government will have no sufficient compensation in any advantage either to themselves or to the public for refusing the Amendment.
§ Mr. Selwyn Lloyd
I only want to say about three sentences with regard to the argument which has been put forward on behalf of the Government. We have seen the Government reduced to some pretty sorry straits, so far as their arguments have been concerned, but my opinion is that the Debate to which we have just listened is about the "all-time lowest" in regard to Government arguments. There have been three arguments put forward. The first one was from the hon. Member for Harborough (Mr. Attewell), who said that the object of those who moved the Amendment was that we were anxious to get more work for the legal profession.
§ Mr. Attewell
The hon. and learned Member should not take a flippant remark quite as seriously as that.
§ Mr. Selwyn Lloyd
If I might pay a flippant remark the courtesy of a serious reply, it would be to say that the number of complicated and obscure Bills which this Government have put upon the Statute Book will provide all the work for all the lawyers that this country can conceivably raise for many years. There is nothing in that argument.
The second point, by the Solicitor-General, was that the people were very anxious to get these matters settled and that it would be doing them a disservice to give them a right of appeal on questions of fact. The people who may be affected by the provisions of this Clause are those who have had their property 906 or rights filched away from them by the Bill. They are not the ordinary parties to proceedings. They may have suffered very severe damage. They may have had their whole livelihood ruined by the Corporation's clawing back certain rights which it says are essential to it. This is not a case of ordinary proceedings in a court of law. These people ought, as a matter of justice, to have a right of appeal on questions of fact.
The other argument which the Solicitor-General used seemed to be the most extraordinary of all. He said that the reason the Government had given the appeal on questions of fact to directors and other people under other Clauses was that they might be under very heavy liabilities. Therefore, when the liabilities might be very heavy and when very rich people are concerned, we give an appeal on questions of law and fact, but if only very small men, or persons who may not be called upon to pay very large sums of money, are concerned, we do not give an appeal on questions of law and fact. I should be very surprised if the hon. Member for Nelson and Colne (Mr. S. Silverman) permitted his judgment on this matter to be decided purely by a question of quantity. Apparently, if there is a large quantity we give these rights but if there is only a small one we do not. That seems to be wholly contrary to the principle of British justice by which we say that what is done has to be done in a proper manner, whether a large sum or a small sum is involved and it is a most extraordinary argument to come in this House from a Law Officer of the Crown.
§ Mr. Turner-Samuels (Gloucester)
I should like to say a few words about this matter. I have been listening with considerable interest to Bar colleagues of mine discussing arbitration. With due respect to all of them, it has seemed to me that they have placed their arguments on this occasion on an entirely fallacious basis. What is the complaint they have? The complaint is partly that in two cases, under Clause 13 and under Clause 23, the person concerned is being, deprived of a right to go to appeal on the facts. They have put the case forward as though every arbitration of a voluntary nature was one in which there was a right of appeal on the facts.
§ Mr. Turner-Samuels
In point of truth. the very contrary is the case. In the ordinary arbitration held by the voluntary choice of the parties, there is ordinarily no appeal on fact at all. If there is a substantial case, there can be an appeal on law. What happens here? What the Government are doing seems eminently reasonable. Clause 44 states when there may be an appeal, and it does that because we have exceptional circumstances here. Consequences may occur which impose very heavy liabilities on the persons concerned, and the Government have gone out of their way, contrary to the ordinary user of arbitration proceedings, to give the facilities and the right in these cases for the parties to appeal on questions of fact.
What it says in particular is that in regard to Clauses 13 and 23 there should not be that right of appeal. Why? Clause 13 refers to the disclaimer of leases and agreements, and it refers only to those cases where they are held to be not reasonably necessary for the purposes of the business. Are not business men, on a tribunal, with a presiding barrister capable of deciding matters of fact as to whether the disclaimer of the lease or the making of the agreement has been reasonably necessary for the purpose of the business? Why there should be a right of appeal on facts contrary to the established practice in these proceedings, I cannot see. On the second point, where it is a question whether there has been an unreasonable lack of prudence, the same argument applies to a case of that kind.
Clause 23 deals with the case where there has been a transfer of rights which is not in the public interest. That is a matter the test of which is decided in the first place by the Minister. It seems to me that he is the only person who, primarily, can decide that, but secondly in that case there is a right to compensation. Apart from that, the matter may go to the arbitration tribunal who will also decide whether the Minister is right and that the transfer of these rights has not been in the public interest. That and the right to compensation are second cases where there ought not to be an appeal on fact. The Government have made an unusual concession here in allowing an appeal on fact at all. Arbitrations were introduced, and are invariably 908 used, in order to get a rapid and final decision, and what is the case there should be the case here.
§ Mr. Harold Macmillan (Bromley)
I am rather unwilling as a layman to rush in where lawyers have trodden so wide afield but I must say that my hon. Friends are very disturbed and disappointed that the Solicitor-General has not been willing to accept this comparatively small change. Hon. and learned Gentlemen have maintained that to allow an appeal at all is contrary to the practice of arbitration but this is not a voluntary arbitration between two litigants who, having made a contract, have fallen out as to its interpretation.
§ Mr. Turner-Samuels
That is exactly what applies to voluntary arbitration. Why make a difference here?
§ Mr. Macmillan
I am trying to show. The so-called litigants before this arbitration are not people who have voluntarily come to arbitration to settle some legal difference arising out of contracts they have entered into voluntarily. This arises because the Government in their wisdom have decided to nationalise the iron and steel trade. It is not fair to compare this with arbitration used by agreement by both parties to settle a dispute arising between them.
There appear to be only two cases where an appeal on fact is not to be allowed and I still hope that on reconsideration this concession may be given in another place. In the long run it would probably save time and money because I can imagine many cases in which there would be an appeal as to whether it was a question of law or a question of fact. Considering that the matters under Clause 13 are rather important—they involve every contract entered into since October, 1947, which is the date of some great ministerial pronouncement on this matter and they involve the personal liability of a large number of third parties—I hope that the matter may still be further considered. There are many other questions still to come before us in the remaining two or three hours before the end of this procedure and we did not really wish to press this but if we cannot get a concession we must at least register our opinion in the Lobby.
§ Question put, "That the words 'on a claim' stand part of the Bill."910
§ The House divided: Ayes, 290; Noes, 140.911
|Division No. 123.]||AYES||[7.17 p.m.|
|Adams, Richard (Balham)||Follick, M||Macpherson, T. (Romford)|
|Albu, A. H.||Foot, M. M.||Mainwaring, W. H.|
|Allen, A. C. (Bosworth)||Forman, J. C.||Mallalieu, J. P. W. (Huddersfield)|
|Alpass, J. H.||Fraser, T. (Hamilton)||Mann, Mrs. J.|
|Anderson, A. (Motherwell)||Freeman, J. (Watford)||Manning, C. (Camberwell, N.)|
|Attewell, H. C.||Gaitskell, Rt. Hon. H. T. N||Manning, Mrs. L. (Epping)|
|Austin, H. Lewis||Ganley, Mrs. C. S.||Mathers, Rt. Hon. George|
|Awbery, S. S.||Gibbins, J||Medland, H. M|
|Ayles, W. H.||Gibson, C. W.||Mellish, R. J.|
|Ayrton Gould, Mrs. B.||Glizean, A.||Middleton, Mrs. L|
|Bacon, Miss A.||Glanville, J. E. (Connect)||Mikardo, Ian|
|Balfour, A.||Gooch, E. G.||Mitchison, G. R|
|Barnes, Rt. Hon. A. J.||Goodrich, H. E.||Moody, A. S.|
|Barstow, P. G||Grenfell, D. R||Morgan, Dr. H. B.|
|Barton, C.||Grey, C. F.||Morris, P. (Swansea, W.)|
|Battley, J. R.||Grierson, E.||Mort, D. L.|
|Bechervaise, A. E.||Griffiths, D. (Rother Valley)||Murray, J. D.|
|Benson., G.||Griffiths, W. D. (Moss Side)||Naylor, T. E.|
|Beswick, F.||Guest, Dr L. Haden||Neal, H. (Claycross)|
|Bing, G. H. C||Gunter, R J||Nichol, Mrs. M. E. (Bradford, N.)|
|Binns, J.||Guy, W. H.||Nicholls, H. R. (Stratford)|
|Blackburn, A. R.||Hale, Leslie||Noel-Baker, Capt. F. E. (Brantford)|
|Blenkinsop, A.||Hall, Rt. Hon. Glenvil||O'Brien, T.|
|Boardman, H.||Hamilton, Lieut.-Col. R.||Oldfield, W. H|
|Bottomley, A. G.||Hannan, W. (Maryhill)||Oliver, G. H|
|Bowden, Flg. Offr. H. W.||Hardman, D. R.||Orbach, M.|
|Braddock, Mrs. E. M. (L'pt. Exch'ge)||Hardy., E. A.||Paling, Rt. Hon. Wilfred (Wentworth)|
|Braddock, T. (Mitcham)||Harrison, J.||Paling, Will T. (Dewsbury)|
|Bramall, E. A.||Hastings, Dr. Somerville||Palmer, A. M. F|
|Brook, D. (Halifax)||Haworth, J.||Pargiter, G. A|
|Brooks, T. J. (Rothwell)||Henderson, Rt. Hon. A. (Kingswinford)||Parker, J.|
|Broughton, Dr. A. D. D.||Henderson, Joseph (Ardwick)||Parkin, B. T.|
|Brown, George (Belper)||Hicks, G.||Paton, Mrs. F. (Rushcliffe)|
|Brown, T. J. (Ince)||Holman, P.||Paton, J. (Norwich)|
|Bruce, Maj. D. W. T||Holmes, H. E. (Hemsworth)||Pearson, A.|
|Burke, W. A.||Horabin, T L||Perrins, W.|
|Callaghan, James||Hoy, J.||Popplewell, E.|
|Carmichael, James||Hubbard, T.||Porter, E. (Warrington)|
|Castle, Mrs. B. A.||Hudson, J. H (Ealing, W)||Porter, G. (Leeds)|
|Chetwynd, G. R.||Hughes, Emrys (S. Ayr)||Price, M. Philips|
|Cluse, W S.||Hughes, H. D. (W'lverh'pton, W.)||Pritt, D. N.|
|Cobb, F. A.||Hynd, H. (Hackney, C.)||Proctor, W. T|
|Cocks, F. S.||Hynd, J. B. (Attercliffe)||Pryde, D. J.|
|Collick, P.||Irvine, A. J. (Liverpool)||Pursey, Comdr. H|
|Collins, V. J.||Isaacs, Rt. Hon. G. A.||Randall, H. E.|
|Colman, Miss G. M.||Janner, B.||Ranger, J.|
|Comyns, Dr. L.||John, W.||Rankin, J.|
|Corbet, Mrs. F. K. (Camb'well, N.W.)||Johnston, Douglas||Rees-Williams, D. R|
|Corlett, Dr. J.||Jones, D. T. (Hartlepool)||Reeves, J.|
|Cove, W. G.||Jones, Elwyn (Plaistow)||Reid, T. (Swindon)|
|Crawley, A.||Jones, Jack (Bolton)||Rhodes, H.|
|Crossman, R. H. S.||Jones, P. Asterley (Hitchin)||Ridealgh, Mrs. M.|
|Cullen, Mrs.||Kenyon, C.||Roberts, Goronwy (Caernarvenshire)|
|Dagger, G.||Kinghorn, Sqn.-Ldr. E||Robertson, J. J. (.Berwick)|
|Davies, Edward (Burslem)||Kinley, J.||Robinson, K. (St. Pancras)|
|Davies, Harold (Leek)||Kirby, B. V.||Rogers, G. H. R.|
|Davies, Haydn (St. Pancras, S.W.)||Kirkwood, Rt. Hon, D.||Ross, William (Kilmarnock)|
|Davies, R. J. (Westhoughton)||Lang, G.||Royle, C.|
|Davies, S. O. (Merthyr)||Lavers, S.||Sargood, R.|
|Deer, G.||Lawson, Rt. Hon. J. J||Scollan, T.|
|de Freitas, Geoffrey||Lee, Miss J. (Cannock)||Scott-Elliot, W|
|Diamond, J.||Leonard, W||Segal, Dr, [...]|
|Dobbie, W.||Leslie, J. R.||Shackleton, E. A A|
|Donovan, T.||Levy, B. W.||Sharp, Granville|
|Driberg, T. E. N.||Lewis, A. W. J. (Upton)||Shawcross, Rt. Hn. Sir H. (St. Helens)|
|Dugdale, J. (W. Bromwich)||Lewis, J. (Bolton)||Shurmer, P.|
|Ede, Rt. Hon. J. C.||Lewis, T. (Southampton)||Silkin, Rt. Hon. L.|
|Edwards, Rt. Hon. Sir C. (Bedwellty)||Lipton, Lt.-Col. M.||Silverman, J. (Erdington)|
|Edwards, John (Blackburn)||Logan, D. G.||Silverman, S. S. (Nelson)|
|Edwards, Rt. Hon. N. (Caerphilly||Lyne, A. W.||Simmons, C. J.|
|Edwards, W. J. (Whitechapel)||McAdam, W.||Skeffington, A. M|
|Evans, E. (Lowestoft)||McAllister, G.||Skeffington-Lodge, T C|
|Evans, John (Ogmore)||McGhee, H. G||Skinnard, F. W.|
|Evans, S. N (Wednesbury)||Mack, J. D.||Smith, C. (Colchester)|
|Ewart, R.||McKay, J. (Wallsend)||Smith, Ellis (Stoke)|
|Fairhurst, F.||Mackay, R. W. G. (Hull, N.W.)||Smith, H. N. (Nottingham, S.)|
|Farthing, W. J||McKinley, A. S.||Smith, S. H. (Hull, S.W.)|
|Field, Capt. W. J||McLeavy, F.||Snow, J. W.|
|Fletcher, E. G. M. (Islington, E.)||MacPherson, Malcolm (Stirling)||Solley, L. J.|
|Sorensen, R. W||Timmons, J.||Wilkes, L.|
|Soskice, Rt. Hon. Sir Frank||Turner-Samuels, M.||Willey, O. G. (Cleveland)|
|Sparks, J. A.||Ungoed-Thomas, L.||Williams, D. J. (Neath)|
|Steele, T.||Usborne, Henry||Williams, J. L. (Kelvingrove)|
|Stokes, R. R.||Vernon, Maj. W. F.||Williams, Ronald (Wigan)|
|Strachey, Rt. Hon. J.||Viant, S. P.||Williams, Rt. Hon. T. (Don Valley)|
|Strauss, Rt. Hon. G. R (Lambeth)||Walker, G. H.||Williams, W. R (Heston)|
|Stross, Dr. B.||Wallace, G. D. (Chislehurst)||Willis, E.|
|Swingler, S.||Wallace, H. W. (Walthamstow, E.)||Wise, Major F. J.|
|Sylvester, G. O.||Warbey, W. N||Woodburn, Rt. Hon. A|
|Symonds, A. L.||Watkins, T. E.||Wyatt, W.|
|Taylor, H. B. (Mansfield)||Webb, M. (Bradford, C||Yates, V. F|
|Taylor, R. J. (Morpeth)||Weitzman, D.||Young, Sir R. (Newton)|
|Taylor, Dr. S. (Barnet)||Wells, P. L. (Faversham)||Younger, Hon. Kenneth|
|Thomas, D. E. (Aberdare)||West, D. G.||Zilliacus, K.|
|Thomas, George (Cardiff)||Wheatley, Rt. Hn. J. T. (Edinb'gh, E.)|
|Thomas, I. O. (Wrekin)||White, H. (Derbyshire, N.E.)||TELLERS FOR THE AYES:|
|Thomas, John R. (Dover)||Whiteley, Rt. Hon. W.||Mr. Collindridge and Mr. Wilkins.|
|Thurtle, Ernest||Wigg, George|
|Agnew, Cmdr. P. G.||Henderson, John (Cathcart)||Odey, G. W.|
|Amory, D. Heathcoat||Hinchingbrooke, Viscount||Orr-Ewing, I. L.|
|Baldwin, A. E||Hogg, Hon. Q.||Peto, Brig. C. H. M|
|Barlow, Sir J.||Hollis, M. C.||Pickthorn, K.|
|Beamish, Maj. T. V. H||Hope, Lord J.||Poole, O. B. S. (Oswestry)|
|Bennett, Sir P.||Howard, Hon. A.||Price-White, Lt.-Col. D|
|Birch, Nigel||Hudson, Rt. Hon. R. S. (Southport)||Prior-Palmer, Brig. O|
|Boothby, R.||Hulbert, Wing-Cdr. N. J.||Raikes, H. V.|
|Bower, N.||Hurd, A.||Rayner, Brig. R.|
|Boyd-Carpenter, J. A.||Hutchison, Lt.-Cm. Clark (E'b'rgh W.)||Reed, Sir S. (Aylesbury)|
|Braithwaite, Lt.-Comdr. J. G.||Hutchison, Col. J. R. (Glasgow, C.)||Renton, D.|
|Bromley-Davenport, Lt.-Col. W||Jeffreys, General Sir G.||Roberts, Emrys (Merioneth)|
|Buchan-Hepburn, P. G. T.||Keeling, E. H.||Roberts, H. (Handsworth)|
|Bullock, Capt. M.||Lambert, Hon. G.||Robinson, Roland (Blackpool, S.)|
|Butcher, H. W.||Lancaster., Col. C. G||Ropner, Col. L.|
|Butler, Rt. Hn. R. A. (S'ffr'n W'ld'n)||Langford-Holt, J.||Scott, Lord W.|
|Byers, Frank||Legge-Bourke, Maj. E. A. H||Shepherd, S. (Newark)|
|Carson, E.||Lindsay, M. (Solihull)||Smith, E. P. (Ashford)|
|Challen, C||Linstead, H. N.||Snadden, W. M.|
|Clarke, Col. R. S.||Lloyd, Selwyn (Wirral)||Spearman, A. C. M|
|Clifton-Brown., Lt.-Col. G.||Low, A. R. W.||Stanley, Rt. Hon. O.|
|Corbett, Lieut.-Col. U. (Ludlow)||Lucas, Major Sir J.||Stoddart-Scott, Col. M.|
|Crosthwaite-Eyre, Col. O. E.||Lucas-Tooth, S. H.||Strauss, Henry (English Universities)|
|Cuthbert, W. N.||MacAndrew, Col. Sir C.||Studholme, H. G|
|Darling, Sir W. Y.||McCallum, Maj. D.||Sutcliffe, H.|
|De la Bere, R.||McCorquodaie, Rt. Hon. M. S.||Taylor, C. S. (Eastbourne)|
|Digby, Simon Wingfield||McFarlane, C. S.||Taylor, Vice-Adm. E. A. (P'dd't'n, S.)|
|Dodds-Parker, A. D.||Mackeson, Brig. H. R.||Thomas, Ivor (Keighley)|
|Dower, Col A. V. G. (Penrith)||McKie, J. H. (Galloway)||Thorneycroft, G. E. P. (Monmouth)|
|Drayson, G. B.||Maclay, Hon. J. S.||Thornton-Kemsley, C. N.|
|Drewe, C.||MacLeod, J.||Thorp, Brigadier R. A. F|
|Dugdale, Maj. Sir T. (Richmond)||Macmillan, Rt. Ham Harold (Bromley)||Turton, R. H.|
|Eccles, D. M.||Macpherson, N. (Dumfries)||Tweedsmuir, Lady|
|Elliot, Lieut.-Col. Rt. Hon. Walter||Maitland, Comdr. J. W.||Vane, W. M. F|
|Fletcher, W. (Bury)||Manningham-Buller, R. E||Walker-Smith, D|
|Foster, J. G. (Northwich)||Marlowe, A. A. H.||Ward, Hon. G. R.|
|Fraser, Sir I. (Lonsdale)||Marsden, Capt. A.||Webbe, Sir H. (Abbey)|
|Galbraith, Cmdr. T. D. (Pollok)||Marshall, D. (Bodmin)||White, Sir D. (Fareham)|
|Galbraith, T. G. D. (Hillhead)||Marshall, S. H. (Sutton)||White, J. B. (Canterbury)|
|Gammans, L. D.||Maude, J. C.||Williams, Gerald (Tonbridge)|
|George, Maj. Rt. Hn. G. Lloyd (P'ke)||Mellor, Sir J.||Willoughby de Eresby, Lord|
|George, Lady M. Lloyd (Anglesey)||Molson, A. H. E.||Winterton, Rt. Hon. Earl|
|Gomme-Duncan, Col. A||Morris, Hopkin (Carmarthen)||York, C.|
|Gridley, Sir A.||Morrison, Maj. J. G. (Salisbury)||Young, Sir A. S. L. (Partick)|
|Grimston, R. V.||Mott-Radclyffe, C. E.|
|Hare, Hon. J. H. (Woodbridge)||Neven-Spence, Sir B.||TELLERS FOR THE NOES:|
|Harvey, Air-Comdre. A. V.||Nicholson, G.||Major Conant and|
|Headlam, Lieut.-Col. Rt. Hon. Sir C.||Noble, Comdr. A. H. P||Colonel Wheatley|
§ Mr. Manningham-Buller
I beg to move, in page 49, line 15. to leave out from "eighteen," to "section," in line 16.
This Amendment raises a somewhat different point. The House will see on looking at lines 14 and 15 of page 49 of the Bill that the right of appeal on a question of fact is limited first of all to 912 a claim under Clause 18 against the directors of a company and, secondly, to an application under Clauses 22, 24 or 25 in respect of any transaction. The effect of this Amendment is twofold. First, it widens the scope of an appeal on a question of fact under Clause 18 to cover any claim which comes within that Clause, whether or not it is against 913 a director. I think it does that, but if it does not widen it, then the words "against the directors of a company" are unnecessary.
The real substance of this Amendment arises not with regard to Clause 18 but with regard to Clause 25. The right hon. Gentleman will appreciate that this subsection (3) gives an appeal on a question of fact only where there is an application under Clause 25 of the Act in respect of any transaction. If the right hon. Gentleman will turn back to Clause 25, he will see that it deals not only with applications in respect of any transaction but also with claims. If he will look at subsection (5) of that Clause he will see that where an application is made to the tribunal in respect of any transaction, and the application is determined in favour of the Corporation, the tribunal shall have exclusive jurisdiction to determine any claims outstanding in respect of the transaction. I think it must be by an oversight that, where it determines claims outstanding in respect of the transaction, the person affected by that determination is excluded under subsection (3) from any right of appeal on a question of fact.
It seems quite illogical that that should be so. The substance of the Amendment is to provide that in respect not only of major transactions, but also of outstanding claims in respect of a transaction, there should be an appeal on fact as well as on law. I hope I have made the point clear to the right hon. and learned Gentleman, although it is somewhat complicated.
During the Committee stage the Solicitor-General for Scotland said:I can give the right hon. Gentleman the assurance he asks for. 'Exclusive' refers exclusively to courts of first instance, and express provision is made by Clause 42as it then was—for an appeal on questions of law or fact under Clause 24."—[OFFICIAL REPORT, Standing Committee C, 17th February, 1949; c. 1078.]In my opinion the hon. and learned Gentleman was wrong in that no right of appeal on fact is given in respect of claims under Clause 25. This is rather more than a matter of drafting, and I suggest that it is necessary to make the Amendment in order to give affect to the statement of the Solicitor-General for 914 Scotland and also in the interests of justice.
§ Mr. J. Foster
I beg to second the Amendment.
The Clause, without the Amendment, provides that there shall be an appeal on fact in respect of claims under Clause 18 and applications under Clauses 24 and 25. The very fact that the words "claim" and "application" are so contrasted must, I think, mean that under Clause 25 claims do not have the right to an appeal on fact, and that if applications were made under Clause 18 they also would be excluded. I do not think that can have been the intention of the Government, because it would result in an injustice and would be contrary to the assurance given by the Solicitor-General for Scotland. He was evidently under the impression—and so, I think, was the hon. and learned Member for Kettering (Mr. Mitchison)—that Clause 44 allowed for appeals on law and fact in respect of claims under Clause 25.
On referring to the OFFICIAL REPORT of the Proceedings upstairs, I certainly got the impression that both the Solicitor-General for Scotland and the hon. and learned Gentleman were under the impression that all questions arising under Clause 25 were susceptible to appeals on law and fact. If that is so, it may well be that the Government will agree with the Amendment and will agree to remedy what looks, on the face of it, to be an injustice and in no sense a party or specious point.
§ The Solicitor-General
I follow entirely the reasoning of the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller) and the hon. Member for Northwich (Mr. J. Foster). Although we will certainly consider what they have said, and see whether the view I am about to express is right or wrong, they have not satisfied me that there is a mistake in the drafting. I will explain why. Clause 18 speaks of the initiation of claims. If hon. Members will look at subsection 6 of that Clause, they will see that it speaks ofAny claim under this section against the directors.…The words "against the directors" are not necessary, I agree, but their presence does no harm; it does not shut out any thing which would otherwise be included. 915 Then, on looking at Clause 25, one sees that under subsection (2) the matter comes before the court in the guise of an application. Clause 25 (5) reads as follows:Where an application is made to the arbitration tribunal under this section…the tribunal shall have exclusive jurisdiction to determine any claims outstanding in respect of the transaction.Therefore, the claims are brought before the Arbitration Tribunal, as it were, in the train of the application. I should have thought, therefore, that the right way to reflect that in the wording of Clause 44 (3) was to choose the wording which has been adopted.
When talking about Clause 18 we are talking about a proceeding which comes before the tribunal in the form of a claim. It is so described in that Clause. When talking of Clause 25, we are speaking of proceedings which come in the guise of an application, because it is so described in Clause 25. The claim arises as something which is incidental to the application. The words used are:on a claim…or on an application.…I should have thought, as a matter of drafting, having regard to the form of Clause 25, that that would cover claims which arose incidentally to an application which was made to the tribunal under that Clause. That, I submit, is the effect of the wording which is used. We see the point which has been made, however, and I follow the reasoning which has been put forward, and we will look again to see whether the wording is, in fact, appropriate.
§ Mr. Manningham-Buller
I am sure the House is grateful to the right hon. and learned Gentleman for what he has said. Quite frankly, I am not convinced at all by his argument. I think the matter ought to be put beyond any doubt whatsoever, particularly as it will be possible to found an argument on Clause 25 (5) that the effect of the words "exclusive jurisdiction," coupled with the word "application" in subsection (3), would be to exclude any appeal on such claims to the tribunal. Obviously, however, there is no division between the two sides of the House about what is intended to be achieved by Clause 43 (3). I think the matter should be put beyond any shadow of doubt and I hope, therefore, that when the right hon. and learned 916 Gentleman reconsiders it, an Amendment will be tabled to make it absolutely clear. In view of what he has said—and I am grateful to him for that—I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Selwyn Lloyd
I beg to move, in page 49, line 19, to leave out subsection (4).
I can deal with the Amendment very briefly, because only a fairly small point is involved. I am not sure whether the right hon. and learned Gentleman is prepared to look favourably upon it. If subsection (4) remains in the Clause, the Minister has a statutory right to be heard in all proceedings before the Arbitration Tribunal. No one will quarrel with the Minister's coming before the Arbitration Tribunal in an appropriate case when the tribunal considers that it will be helped by the representation of the Minister; but that he should have the statutory right to appear adds an unnecessary person to the proceedings. After all, the Corporation will always be there and will always be represented as a party to the proceedings. In those circumstances, we prefer to have subsection (4) eliminated.
§ Lieut.-Commander Braithwaite
I beg to second the Amendment.
Unlike my hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd) I was not a member of the Standing Committee, but I have read the proceedings and I hope the Government will have had second thoughts on this matter since then. In resisting the very forceful arguments in favour of this Amendment, the right hon. and learned Gentleman did not show his usual enthusiasm. I hope that tonight we may have a favourable answer from the Government.
§ The Solicitor-General
We have also carefully re-read the arguments used during the Committee stage and have rethought over all the considerations. Although we still think it would possibly be desirable that this power should be retained, we are prepared to accept the Amendment.
§ Mr. H. Macmillan
In this interlude of happy and agreeable position before the final Guillotine falls upon us, may I thank the right hon. and learned Gentleman for his kindness?
§ Amendment agreed to.