AMENDMENTS OF FOREIGN COMPENSATION ACT 1950 (Hansard, 1 May 1969)

§ The Solicitor-General (Sir Arthur Irvine)
I beg to move, That this House doth agree with the Lords in the said Amendment.

§ Mr. Deputy Speaker (Mr. Sydney Irvine)
Perhaps it would be for the convenience of the House if we also took Lords Amendments Nos. 4 and 5.

§ The Solicitor-General
The House will recall that subsection (4) of Clause 2 of the Bill, as it left this House, was added on Report without a great deal of discussion, to meet the situation created by a majority decision of the House of Lords, made on 17th December last, after the conclusion of the Committee stage. That decision was that notwithstanding the provision in Section 4(4) of the Foreign Compensation Act, 1950, that the determination of the Foreign Compensation Commission should not be called in question in any court of law, the courts were entitled to intervene if the Commission had misconstrued the relevant Order in Council and had thereby exceeded its jurisdiction.
It was explained, when we last considered the point here that since the task of the Commission is to determine claims and arrange for the distribution on an equitable basis to successful claimants of what are nearly always finite lump sums, it might not be possible to pay anything like a final dividend, or perhaps any worthwhile dividend at all, to successful claimants so long as there was a risk that the determination of the Commission might be challenged in the courts and perhaps taken right up to the House of Lords.
Claimants will often have been waiting a great many years for their money and it appeared to be in the interests of claimants as a whole that finality should be reached at the earliest practical moment. There could be no finality so long as there was a possibility of appeal, and it was feared that a decision to which I have referred would open up unlimited 1736 prospects of delay. It was said that we had to preserve a balance between the right of judicial review—and no one was questioning the inherent right of the courts to intervene when it was a question of a breach of natural justice or anything of that kind—and the need for early finality in the interests of the claimants generally in any particular distribution. With all this in mind, the House decided to insert into the Bill what became Clause 2(4).
This subsection subsequently attracted a certain amount of criticism from those who feel strongly that the citizen should not be precluded from having recourse to the courts in respect of the decision of a tribunal, even where it is a tribunal of so special a kind as the Foreign Compensation Commission. As my noble and learned Friend the Lord Chancellor emphasised in another place, the Government have nothing to gain or lose whether the solution of this matter is to leave the law as it stood after the House of Lords' judgment, to adhere to the subsection inserted on Report in this House or to adopt some middle course.
The Government have been concerned with what is best from the point of view of the claimants, should the determination of the Commission be final or should the successful claimants be kept waiting while perhaps a single claimant for a large sum of money consumes much time and potentially involves the fund to be distributed in substantial legal costs while he exercises his right to one, two or three appeals?
After very full discussion and consideration, and in the absence of much vocal support from claimants for the subsection previously adopted by this House, it was decided in another place that the best solution of this problem was that which is embodied in the Amendment. As I have said, the Government do not stand to lose or gain, whatever the solution. I can only hope that in the event—we can none of us be sure exactly how matters will turn out—claimants as a whole will not be found to have lost greatly either in time or money by the solution which I am putting forward and which I hope will commend itself to all quarters of this House.
1737 Regard has been had for the arguments which have been brought upon this matter, as the House, I am sure, will appreciate. I would summarise the effect of the new Clause as follows. It provides, in subsection (2), for a right of appeal from a determination of the Foreign Compensation Commission direct to the Court of Appeal, but subsection (8) precludes any right of appeal to the House of Lords from decisions of the Court of Appeal. There can thus be one appeal, but one only, from the Commission. This right of appeal will lie on any question of law relating to the jurisdiction of the Commission or any question as to the construction or interpretation of any provision in the relevant Order in Council.
The area in which it will be possible to appeal will thus remain, as is set out by subsection (9), relatively limited; in particular, the decisions of the Commission will be finite on all matters of fact, with which much of their work is in practice concerned. Notice of appeal will have to be lodged within the time limits set out in subsection (7), and it is intended that they should be strictly adhered to. In this way we shall, I hope limit the delays for other claimants inherent in any form of appeal where the distribution of a finite sum is involved.
These are the principal provisions of the new Clause. Subsection (1) differs from the original subsection (4) passed by this House only in conferring power on the Commission to determine a question of construction or interpretation instead of leaving the power to be conferred by Order in Council. Now that there is to be a new right of appeal against such determination there appears to be no useful purpose in leaving the new power to be conferred on the Commission to be dependent on the making of an Order in Council. Subsection (3) defines a determination so as to include a provisional determination or anything purporting to be a determination.
9.0 p.m.
As the House may know, rule 38 of the Foreign Compensation Commission rules, as amended in 1964, provides that all determinations of the Commission are to be provisional and subject to review, although there may not be more than one review of any determination. It is necessary 1738 to include within the definition anything purporting to be a determination in order to avoid the possibility of any appeal to the courts in future apart—from the new right of appeal conferred by the Clause itself—on the ground which succeeded in the Anisminic case; that is to say, that the Commission's decision was in no sense a determination but, being made wholly without jurisdiction, was a nullity.
There is no intention, as I have said, and as is underlined by subsection (10) to interfere with the power to bring proceedings to question a determination of the Commission on the ground that it is contrary to natural justice. Subsections (2), (4), (5) and (6) deal with the procedure required to enable proceedings to be initiated in a Court of Appeal inasmuch as it is not ordinarily the practice of the Foreign Compensation Commission to give reasons for their determinations. These are procedural subsections.
The broad effect is to enable a person aggrieved to appeal either against a provisional determination or a final determination of the Commission but not against both on the same matter. An aggrieved person may be either the claimant or a person appointed by the Commission to represent the interests of the fund out of which a claim would be met, that is to say the Commission's legal officer appointed for that purpose. It is perhaps unlikely that the legal officer would ever wish to appeal against a determination of the Commission, but, if a right of appeal is to be conferred, it seems appropriate to extend it to the person appointed to represent the interests of other claimants besides the one who may fall to be benefited by a decision of the Commission allowing his claim.
Finally, the effect of subsections (11) and (12) is to confine the new right of appeal to determinations of which notice is given after the Bill comes into force and to leave other determinations to be dealt with by the law as it stands at present.
I have endeavoured to indicate the purpose and effect of these Amendments, and I recommend them to the House.

§ Sir P. Rawlinson
The Solicitor-General said on two occasions that the Government have nothing to gain and 1739 nothing to lose by the particular Amendments with which he is asking the House to agree. He was quoting the words of his noble Friend the Lord Chancellor, in the House of Lords. I do not mind whether the Government gain or lose, but I do mind that the present system of law should gain. I believe that the law does gain by the introduction of this Clause. It should be a matter of importance to everybody that a tribunal should be able, on request, to state a case for review by a superior court. That is of immense importance.
When this proposal was made by the present Lord Chancellor's predecessor, Viscount Dilhorne, the Government first resisted it in another place. It took many determined Members of the other place, on a vote, to insert the original form of Amendment which introduced the power to go from the tribunal to the Court of Appeal.
It was only at a later stage that the Lord Chancellor again saying that he had nothing to gain and nothing to lose, introduced in the other place a very long Clause, as set out on the Notice Paper, and proposed that it should be inserted. It was a late, but true, repentance. I am glad that it was entirely due to the initiative of Viscount Dilhorne.
I thank the Solicitor-General for explaining the procedure of the Clause, which I have no doubt meets all the points which were raised in another place. I am principally grateful to Viscount Dilhorne for ensuring that this provision is in the Bill.

§ Mr. Douglas Dodds-Parker (Cheltenham)
I want to support what has been said by my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson). As one who laboured through the Bill about six months ago, and having read what happened some years ago when these problems were considered, it is encouraging to know that a satisfactory result can be produced, if not by this House. We laboured on Second Reading, in Committee and on Report attempting to do something about it, but it was the other place which produced the Amendment which is now before us.
I am grateful to those hon. Members on both sides who have laboured during the last month or so to sustain the other 1740 place unamended, because if the Government carry on in this way no results will be achieved from our side and we shall have to rely upon the other place to see that these Amendments are brought about. On that account and on others, I am delighted that the other place has seen fit to put forward this Amendment. Thanks to the present Lord Chancellor's predecessor, we are now to see justice done which we were unable to achieve.