HC Deb 30 July 1951 vol 491 cc1078-80

Lords Amendment: In page 16, line 23, leave out "such action or proceedings as aforesaid," and insert: action or proceedings which lie by virtue of any such omission, failure or contravention.

The Solicitor-General

I beg to move, "That this House doth agree with the Lords in the said Amendment."

This and the following Amendment, in line 25, are drafting Amendments to ensure that the defence of acting "honestly and reasonably," which was inserted in the Bill as a result of various suggestions made by the hon. and learned Member for Kensington, South (Sir P. Spens), should be available in all proceedings.

Mr. Manningham-Buller

The first Amendment, I gather, is to cover the possibility of a criminal prosecution as well as civil proceedings. I am a little puzzled to know whether the second Amendment is quite right. As I see it subsection (3) will now read: If in any such action or proceedings which lie by virtue of any such omission, failure or contravention the court is satisfied that the defendant acted honestly and reasonably, and ought fairly to he excused for it…. I am all in favour of using the word "it" where it can be used, but what does "it" refer to in this subsection? It does not seem to me that the drafting is quite correct. I would suggest to the hon. and learned Gentleman that it might have been better drafting to stop the sentence after the word "excused," rather than "excused for it," without saying what "it" is.

The Solicitor-General

I entirely agree that it is a drafting point and a very pertinent problem which the hon. and learned Gentleman has posed. It may be that if one is being excused, one is being excused for something and, therefore, why not for "it."

Question put, and agreed to.

Lords Amendment: In page 17, line 9, at end, insert: ( ) In relation to an action or other proceedings tried by a judge and jury—

  1. (a) the references to the court in sub- sections (2) and (3) of this section shall be construed as references to the jury, but with- out prejudice to the power of the judge to give to the jury directions whether there is any evidence of facts justifying an award of exemplary damages on the one hand or the granting of relief on the other hand, or to give them advice as to the making of such an award or grant;
  2. (b) the references to the court in subsection (4) of this section shall be construed as references to the judge alone."

9.45 p.m.

The Solicitor-General

I beg to move, "That this House doth agree with the Lords in the said Amendment."

This Amendment arises out of a matter raised by the hon. and learned Member for Northants, South (Mr. Manningham-Buller), on the Report stage, and its purpose is to define the functions of the judge and jury in dealing with exemplary damages and also with the question of the restoration of the status quo.

Mr. Manningham-Buller

I thank the hon. and learned Gentleman for the con- sideration given to the point which I raised on the Bill on the last stage in the House. I think it has met it satisfactorily, although very little indication is given in the proposed draft as to the criteria which a judge has to bear in mind in determining whether or not to give directions to the jury when awarding exemplary damages. It is possible that it might not have been convenient to do that with any precision, and no doubt it is the intention that such directions, when the jury can award exemplary damages, should only be given where it is clear that it means a deliberate disregard of the provisions of the Bill and a deliberate attempt to evade their operations.

Mr. J. Enoch Powell (Wolverhampton, South-West)

I notice that the Solicitor-General said that this Amendment was made upon consideration of the argument advanced by my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller). I think I would be in order in referring to the words of the Government spokesman in another place when this Amendment was proposed there.

It was described by the Lord Chancellor as the best I have been able to do in the interval of time between the day before yesterday and today. That suggests that the observations of my hon. and learned Friend were a long time incubating in the minds of the Government before they emerged into the realm of consciousness.

We ought to be quite sure that this Amendment will not cause any conflict with the Amendment which we have just agreed to in Clause 5, which was deliberately designed to enable the Lord Chancellor by rule to define the court referred to in Clause 13 (4). I take it that the definition of the court in subsection (4), which we are now inserting, will be the overriding provision, within which the Lord Chancellor's rules will be made..

Question put, and agreed to.