HC Deb 19 November 1953 vol 520 cc1925-36
Mr. M. Turner-Samuels (Gloucester)

I beg to move, in page 2, line 17, to leave out from "effect," to the end of line 18, and to insert: as therein provided, and in the case of either of the air corporations where damage is suffered by any person as the result of a tort or tortfeasor liable in respect of that damage may recover contributions from either air corporation (as the case may be) who is, or would if sued have been, liable in respect of the same damage within the period provided by section two of the said Act of 1939. The object of this Amendment is to make Clause 3 accord with what the Tucker Committee said in their Report and also to accord with the hope that was recently expressed in the Court of Appeal.

The present law with regard to this matter is that in the case of contract and tort—a tort in its wider sense being a civil or private wrong or some breach of duty that somebody owes to someone else which gives that other person the right to damages for that breach—the period during which one can bring proceedings is normally six years from the date of the cause of action, but in connection with public authorities and Government Departments, as, for instance, a Corporation of the character which we have here, the period is limited to one year. So anyone who has a right of action against a public authority or a Government Department is confined to the period of one year, whereas if the action for damages were against any other body or any private person it could be within six years.

Secondly, in the case of a tort—a civil wrong to which I have just referred—one wrongdoer can usually recover a contribution from another co-wrongdoer if he is rendered liable within the period of six years, but in the case of a public authority or a Government Department the period of claim is time-barred after one year. In the case of the public authority and the Government Department the wrongdoer goes free, however responsible for the injury or liable for the damages he may otherwise have been. That is a shameful protection by law that rests on no cogent or ethical reason.

The Tucker Committee, in 1949, came to a definite conclusion on this and other cognate matters. They were unanimous that this distinction between public authorities and Government Departments, on the one hand, and ordinary bodies and private people, on the other hand, was completely indefensible. After receiving evidence and following the fullest consideration of the matter, they said most specifically that the period of limitation during which an action could be brought should be the same for public authorities and Government Departments as for other persons or bodies. The question whether the period should be shorter for nationalised bodies was also considered by the Committee and a shorter period was completely rejected. The Committee said that there was no reason at all why the period during which an action could be brought against a nationalised body should be less than in any of the other normal cases, and they said precisely the same thing in regard to actions against the Crown.

In the case of the public corporation, such as the two Air Corporations to which the Bill relates, it is clear that the Tucker Committee came down emphatically in favour of the period of limitation being identically the same as in the case where the six years' period applied. It is because the Clause leaves the two anomalies to which I have alluded that I have introduced the Amendment to remove them.

The Clause as drafted not only leaves the anomalies, but it re-enacts them. It protects the two Air Corporations against any citizen who is injured by neglect or default or breach of duty by either of the Corporations and whose life may be wrecked or whose financial position may be ruined. Secondly, the Clause shields the Corporations from making a contribution, and it leaves the whole burden to be borne by its co-wrongdoer if the shorter time should have elapsed during which the action can be brought.

As the Attorney-General well knows, this favoured and extraordinary immunity has caused hardship and again and again has defeated otherwise unanswerable claims. I recall a case with which I was familiar, in which no fewer than 29 plaintiffs had a claim for damages, to which there was no answer except this particular distinction. Those plaintiffs suffered grievously and every one of the 29 was unable to succeed in his claim merely because of this distinction. That case was clearly an example of the monumental injustice of this exception in favour of public authorities and Government Departments as a privileged section of the community. I want the Committee to appreciate that Clause 3 seeks to re-enact that very injustice.

Parliament ought not deliberately to legislate an anomaly such as it is doing here. A fortiori it ought not to do so if the anomaly has already been condemned by a Committee which has been purposely set up by Parliament to look into the matter and has pronounced upon it and condemned the distinction, and where the position has been criticised, as it has been over and over again, by judges, whose criticism was reinforced recently in the Court of Appeal. The Clause as it stands offends all principle as we should accept it, and it flouts judicial and every other authoritative opinion that has examined the matter.

In the case in the Court of Appeal, Lord Justice Denning, whose distinguished legal scholarship is marked by a progressive sense of practical justice, referred deliberately to the fact that the Tucker Committee were a strong Committee and that the evidence which they received had shown that manifest injustice often resulted from public authorities and Government Departments having this protection. He pointed out that four years had elapsed since the Tucker Committee had reported. Since that time, nothing has been done until we get this Clause, which seeks to re-enact the very anomaly the Committee said should be removed.

I hope that the Government will not emulate the case of hall-marking of gold articles, in which a committee 73 years ago recommended that the law should be consolidated and amended without delay, and nothing has yet been done. I point out to the Attorney-General that the case of the public corporation wrongdoer as regards contribution is beginning to get very near to that state of affairs. It is 14 years since the position was exposed in the Court—[Laughter.] I do not know why the Attorney-General laughs at this. If an injured person found himself incapable of bringing an action, there would be no reason to laugh. It is 14 years—

The Attorney-General (Sir Lionel Heald)indicated dissent.

Mr. Turner-Samuels

If the hon. and learned Gentleman looks at the case in the Court of Appeal to which I am referring, which is reported in 1953, 2 All-England Reports, at page 915, he will see that Lord Justice Denning specifically refers to the fact that it is 14 years since the position in regard to a co-wrongdoer and contribution was exposed.

The Attorney-General

Nineteen thirty-nine.

Mr. Turner-Samuels

It was 1935. Not only has the Attorney-General got his facts wrong, but his law is wrong, too. The Act to which I am referring is the Law Reform (Married Women and Tortfeasors) Act, 1935, which deals with this particular contribution in Section 6 (1). There is no doubt that gross injustice has been occurring again and again since that time, and it was in respect of this matter that the Court of Appeal said they hoped that Parliament would soon remedy the position. This was a call from the Court of Appeal to Parliament, but it looks to me as if the Government have no intention of answering it.

4.30 p.m.

It was said by the Joint Parliamentary Secretary the other day that Clause 3 is going in the right direction. I do not know whether enacting an anomaly can be described as going in the right direction, but it is perfectly clear that the Tucker Committee pronounced most definitely against this principle of three years. Of course, it may be that the Joint Parliamentary Secretary completely spurns the Committee's Report, or that he thinks it should not be given effect to, but I understood from the Attorney-General's reply that he himself was of the opinion that this distinction was quite untenable and ought to be removed.

The Committee were firmly against three years, and if the learned Attorney-General will glance for a moment at paragraph 19 of that Report he will see these words: We have given careful consideration to suggestions that have been made to us that the period of limitation in the case of all torts should be reduced to three years. On the whole, we have come to the conclusion that such a change is undesirable. Here we have a Clause which runs absolutely counter to the Report of this Committee, which so thoroughly investigated the matter and gave as their definitive finding upon the evidence before them a conclusion which was exactly the opposite to what is proposed here.

Paragraph 26 of the Report refers to the nationalised bodies, which is where the Joint Parliamentary Secretary is finding his justification for imposing this three-year limit, although they are in an entirely different context. The Tucker Committee came into existence after the nationalisation Acts in which this limitation appeared and, therefore, the case of these two Air Corporations is not similar.

Paragraph 26, in 1949, said this quite clearly, referring to the nationalised industries: Since such legislation is so recent, no evidence is available regarding the working of the limitation provisions contained in these Acts, but after full consideration of the matter, we can see no reason why the Authorities set up by them should be treated differently from the general public or other public bodies. In this connection we would point out that such Authorities have been made generally subject to ordinary legal liability, except in regard to the limitation of actions. Nothing could be clearer than that.

If one turns to paragraph 17, it will be seen that the Committee refer to large commercial and industrial organisations in these terms: At the present time, many large commercial and industrial organisations have activities as multifarious and diverse as public authorities, but do not enjoy the privilege under discussion, although subject to the same difficulties and open to the same type of attack as those mentioned by the public authorities who have made representations to us. Moreover, public authorities engage to-day to an ever-increasing extent in business in much the same way as the organisations above referred to, and do so for profit. The phrase: … the organisations above referred to … means public corporations such as those with which we are dealing here today.

The Committee go on to say: We see no reason to think that the system of reporting accidents and of the keeping of records by a public authority is less efficient than that of a commercial undertaking, or that such an authority is—in the absence of special protection—more vulnerable than a commercial undertaking in respect, for instance, of stale or bogus claims. Still less "— and this ought to be underlined— should it be in a position—

The Chairman

Perhaps it ought to be underlined, but it seems to me that the hon. and learned Gentleman is going beyond this Amendment.

Mr. Turner-Samuels

With great respect, I am trying to have included in this Clause an Amendment which enacts the very things I am referring to. However, I am finishing this quotation now. It ends by saying: Still less should it be in a position to rely upon this special protection to defeat honest claims. I think the Joint Parliamentary Secretary will agree with me that in a matter of this kind the only justification that Parliament could possibly have to cut down people's rights would be if there were some flagrant injustice which would ensue if it were not otherwise done. Certainly, there is no such thing applicable to these Corporations. On the contrary, the very opposite is the case.

This is not a matter of party or of politics. It is a matter of simple sense and justice, and I cannot understand why at this time of day the Government are seeking to protect powerful and profit-motivated Corporations such as are covered by Clause 3. There is no doubt about it that neglect or default by transport today can have the most appalling consequences for the ordinary citizen. Therefore, why should the dice be loaded against anyone seeking to bring an action for damages in respect of them.

Why should six years be the case in the ordinary way and only three for these Corporations. In my submission, State-owned Corporation ought to show an example to the community, and they ought not to shield themselves behind this privilege to defeat what the Tucker Committee calls "honest claims."

I want to conclude by saying that in my submission the Attorney-General has displayed a strange reticence in this matter, particularly on the Second Reading of the Bill. I asked him whether he had consulted the Lord Chancellor about the matter, because I could not believe, in face of the Tucker Committee's Report and in view of what the Court of Appeal said, that the Lord Chancellor could have been a party to this Clause being put into the Bill in order to make Parliament legislate an anomaly. Of course, I got no reply.

The Attorney-General

The hon. and learned Gentleman was not here after he had spoken. Therefore, it was not possible for me to reply to him.

Mr. Turner-Samuels

I sought to discover whether I ought to stay, but I was told there was no need to. I did get a written reply from the Attorney-General on 9th November and he said, in effect, that the distinction ought to be removed, but, he added quite naively that the Government had no time to do it. Apparently the Government have got no time to correct this objectionable anomaly in the interest of the community, but they can use up time manipuating television in the interests of their business friends.

The Amendment I have moved seeks to redress the two long-standing injustices to which I have referred. I hope the Government will adopt it, and I ask the Committee to support it.

Mr. Profumo

I have listened with the greatest interest to the lucid argument of the hon. and learned Gentleman the Member for Gloucester (Mr. Turner-Samuels) and I am only sorry that somebody inadvertently advised him that it was not worth waiting for the reply which, to the best of my ability, I gave on Second Reading—

Mr. Turner-Samuels

I did not say that it was not worth waiting, nor was it suggested that anything the hon. Gentleman might say was not worth listening to. I asked and was told that there was no need to wait. In any case, the Attorney-General had had time in which to answer and had not done so, and he was not going to be the last speaker for the Government.

Mr. Profumo

I accept the remarks of the hon. Gentleman and I only hope that in some measure I can make up this afternoon for what he inadvertently missed on the previous occasion. I shall not make so bold as to try to follow the hon. and learned Gentleman into the realms of legal intricacies but, with the greatest and most sincere respect, I suggest that the difference between us is perhaps one of misconception of logic.

In the opinion of Her Majesty's Government, Clause 3 would have been necessary whether there had been a report by the Tucker Committee or not. The requirement was there purely on the grounds of fairness to the general public. At present the Air Corporations are the only nationalised organisations regarded as public bodies which have enjoyed privilege from legal action against acts done in execution or intended execution or neglect of their duty after one year. We have recognised this anomalous position for some time and we were resolved to put it right as soon as a suitable opportunity presented itself. It was for that reason that we included it in this Bill.

The Committee will agree, I hope, first that in such a Bill as this, which deals solely with the Air Corporations, we are in no position to do more than deal with the problems inside the Air Corporations themselves. Therefore, we are limited in our action at this time to dealing with this problem only in so far as it affects the Corporations. Secondly, it would only have been getting rid of one anomaly by creating another if we had changed the period of one year to six years. This would have taken the Corporations out of a privileged position and placed them in an unfair position vis-à-vis the other nationalised bodies.

Thirdly, if we had waited until some general legislation might have been introduced in this House, we would have missed this opportunity of correcting something which we all recognise to be wrong. We might, indeed, have had to wait for some considerable time because, as my hon. and learned Friend the Attorney-General said in this House on 9th November, in answer to a Question by the hon. and learned Gentleman: … the Government recognised that there is much to be said for removing this distinction between public authorities and other defendants. That gave the hon. and learned Gentleman the Member for Gloucester what he wanted, which was Government recognition of this problem, but my hon. and learned Friend added: but I cannot hold out any hope that it will be possible for the Government to introduce legislation at an early date."—[OFFICIAL REPORT, 9th November, 1953; Vol. 520, c. 13.] Therefore, we felt we ought to take this opportunity, and I think that all hon. Members will agree that this is a step in the right direction. The hon. and learned Gentleman, however, persisted in his argument that this is a step in the wrong direction, and I hope that in the course of my remarks I shall be able to persuade him that this is not so. Indeed, I am reinforced and encouraged in my views by the words of his hon. Friend the Member for Uxbridge (Mr. Beswick) in his excellent speech on the Second Reading of this Bill, when he said: Taking Clause 3 first, the last one of which he made mention, I should say that that would not appear to be controversial at all. As far as it goes its effect in limiting the privilege so far enjoyed in law by the Corporations seems to be wholly good, and although at least one of my hon. and learned Friends seems to think it should go still farther, I do not suppose there will be any criticism of the direction it takes."—[OFFICIAL REPORT, 11th November, 1953; Vol. 520, c. 1009.]

Mr. Turner-Samuels

My hon. Friend had not heard the argument at that point.

Mr. Profumo

I understand that he had not heard the argument, but neither had he heard the counter-argument which I put later. However, it would be wrong for Parliamentary Secretaries to step in where even some lawyers fear to tread. On the other hand, the Amendment does not do exactly what the Tucker Committee recommended, since its effect would be to make the period of limitation six years in all cases, whereas the recommendations of the Tucker Committee were that whilst six years should be the period of limitation for actions in contract and tort, this should not apply to actions for personal injuries. In the case of those, they recommended a period of limitation of two years.

4.45 p.m.

Mr. Turner-Samuels

I agree, but what I am seeking to do here is to bring it into line with the law as it is at present. I agree that if a short Bill were brought in, which would need only three Clauses, it could be brought into line with the findings of the Tucker Committee. That would accord to some extent with what the Parliamentary Secretary has just said.

Mr. Profumo

I am glad the hon. and learned Gentleman agrees, because this brings me to the point I want to make, that circumstances have changed since he put down this Amendment in that, among the Private Bills of which notice has been given for this Session, there is one by my hon. Friend the Member for Yeovil (Mr. Peyton) which is designed to deal with the law relating to the limitation of actions. It is designed to give substantial effect to the recommendations of the Tucker Committee and, so far as I know at this stage, it does so in a manner which wholly meets with the approval of my noble Friend the Lord Chancellor. The argument I want to put forward here is that it seems to me that we have been right in including this Clause in this Bill. The hon. and learned Gentleman made a point in saying that this is not a party matter. Therefore, it is one eminently suited to a Private Member's Bill—

Mr. Ede (South Shields)

It is true that it is not a party matter, but it is a controversial matter, as previous discussions in the House have disclosed, and opinion on both sides of the House is divided on the issue.

Mr. Profumo

I recognise what the right hon. and learned Gentleman says—

Mr. Ede

I am not learned.

Mr. Profumo

Well, the right hon. Gentleman is most learned in my eyes. I fully appreciate what he says, but as this is not a matter of party controversy, it is one which is better suited to a Private Member's Bill which will be brought forward at an early stage in this Session. It seems to me that we have been right in putting this Clause in this Bill, and there should be no difficulty in amending it at a later stage, if necessary, to bring it into line with any change in the law which might seem right at that time in the eyes of the House.

For that reason, I ask the hon. and learned Gentleman if he will consider withdrawing his Amendment at this stage on the understanding that this other and more general, larger and extremely important Bill is to come before Parliament in the near future, and that we shall be able to bring this into line with the general conception of the future limitation of action.

The Attorney-General

I hope that the hon. and learned Gentleman the Member for Gloucester (Mr. Turner-Samuels) did not think that I was in any way discourteous to him. On the previous occasion I was prepared to say something on this matter but, as he had left the House, I thought he could not regard it as a matter of vital urgency, and at that time we did not know what the decision would be in regard to the Private Member's Bill.

We now have the position that the hon. Member for Yeovil (Mr. Peyton) has drawn a fairly good place—not exactly on the rails, but not a bad place—and yesterday he secured 4th December for the Second Reading of his Bill. It is not the first Order, but I believe there is every reason to hope that my hon. Friend will be able to get it on that day. If he does, I shall be prepared to agree with the hon. and learned Gentleman that we should give him every support in order to get the Second Reading.

When we get to the Committee stage, I think there will be some differences of opinion. There is the question of the precise number of years. There is also the question of the proposal of the Tucker Committee that there should be power for the court to extend the time. That is a proposal, however, of which my noble Friend the Lord Chancellor would not approve. But, if I may respectfully say so, it is highly desirable that matters of principle of that kind should be discussed in relation to all the Corporations and all the local authorities and all the private individuals, and then we can deal with them all together.

Mr. Turner-Samuels

I feel that the purpose which I had in mind has been achieved. I am not laying down any absolute rule about what the period should be, nor am I concerned with what my right hon. Friend the Member for South Shields (Mr. Ede) says about unanimity. What I should like to see in the law in this matter is some sense of uniformity, and if we could only hit on some period that applies to everyone concerned, all well and good. Broaching and ventilating this matter has brought some result, and in view of the fact that the hon. Member for Yeovil (Mr. Peyton) is bringing in a Bill, and I have the honour to be one of its backers, I am perfectly satisfied with what the Parliamentary Secretary and the Attorney-General have said.

I only want to say to the Attorney-General that he and I have been associated for a very long time and I should never accuse him of being rude and discourteous. I was charging him with being reticent, which is unusual in a lawyer and not necessarily a good thing. But on this occasion he has been more forthcoming, and I hope that the House can look forward to his support and that of the Government for a Bill which will amend and correct what has been an anomally so far. I therefore beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Clause 4 ordered to stand part of the Bill.

Bill reported, with an Amendment; as amended, considered; read the Third time, and passed.