CIVIL AVIATION (CROWN AIRCRAFT) (Hansard, 27 April 1970)

§ Mr. F. V. Corfield (Gloucestershire, South)
I beg to move, That the Civil Aviation (Crown Aircraft) Order 1970 (S.I., 1970, No. 289), dated 25th February, 1970, a copy of which was laid before this House on 3rd March, be withdrawn. It is one of the peculiarities of our procedure that one sometimes has to move for action in theory which might embarrass one if it were carried out in practice. I find myself in that position tonight. It is to the advantage of everyone, particularly the general public, that the right hon. Gentleman the Minister of State should have an opportunity to explain in greater detail what this Order does and its likely effect. I understand that a Motion that the Order be withdrawn is the only means we have of providing that opportunity.
Although it makes no mention of Concorde at all, I understand that the Order is designed to bring the Concorde prototypes and, no doubt, some of the pre-production models which will follow within the provisions of Section 40 of the Civil Aviation Act, 1949, in effect, to cover the test flying. Once a production model, or even a pre-production model, actually passes to an airline, it must cease to be an aircraft belonging to or exclusively employed in the service of Her Majesty.
The flight testing of Concorde, particularly at supersonic speeds, is, rightly 989 and naturally, a matter of considerable concern to the public at large, especially to that section of the public likely to be immediately affected in the forthcoming tests of Concorde 002 at speeds substantially over Mach 1. The problem arises mainly because no one can at this stage know the precise effects of the so-called sonic boom. It is essential, therefore, that the House of Commons, and the Government in particular, should so far as possible insure the public against the effects, even if they turn out to be more or less than foreseen.
The aspect of the Order with which I am mainly concerned is the question of compensation. The Explanatory Note tells us that the Order applies the provisions of section 40 of the Civil Aviation Act 1949 to civil aircraft belonging to or exclusively employed in the service of the Crown. Subsection (1) of section 40 precludes actions for trespass or nuisance by reason only of the flight of aircraft over property at a height above the ground which is reasonable in the circumstances or the ordinary incidents of such flight, so long as the provisions referred to in the subsection are complied with. Subsection (2) of that section imposes liability without proof of negligence, intention, or other cause of action, on the owner of the aircraft for material loss or damage caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft in flight. That is all very well concerning subsection (2), but when we turn to subsection (1), which says that as a general rule no action shall lie for what is, in effect, trespass over air space, we find that that is dependent upon compliance with the provisions, or other provisions, of Part II of the Act and of Part IV, which includes Section 40. The first impression, therefore, is that, by bringing these aircraft within the provisions of Section 40, we are also bringing in the other relevant provisions of Part IV.
One of the relevant provisions of Part IV is Section 42, which places a financial limit on the liability for damage. I have little doubt that the effect of the Order is not to bring in that financial limitation. Nevertheless, there is a school of thought—perhaps not very expert, but one which has as much right as anybody else to be concerned—which is worried that this might not be so. So, if we achieve nothing else tonight but to give the right hon. Gentleman an opportunity to make abundantly clear that if there is damage 990 caused by the flight of Concorde there will be no financial limitation other than the cost of replacing the damage, that will have been worth doing.
The second problem, which again I believe is more imagined than real, is that there has been no precedent in the courts of a claim under this subsection where the damage is alleged to have been caused by the aircraft in flight. All the cases that have been brought concern damage either by the aircraft falling or things falling from the aircraft, or perhaps damage on the ground. However that may be, it seems that the section clearly applies to damage caused by the aircraft in flight.
In that interpretation we are assisted, unusually, by the fact that we have some relatively grammatical punctuation in the section. Reading it as an ordinary bit of English, it is clear that it is intended to apply to damage caused to any person or property on land or water by an aircraft while in flight and, indeed, taking off or landing, and so on. Therefore, despite the lack of precedent, I hope that the Minister will be able to assure us that his legal advice coincides with mine and that damage caused, for example, by the sonic boom is clearly covered by the section.
My third point, which is more difficult, refers to the later part of subsection (1) which, in effect, says that damage shall be recoverable without proof of negligence unless the person who complains of the damage has contributed towards it. In other words, it can be a defence to say that there was contributory negligence of some kind. This matter deserves to be dwelt upon for a moment when we think of the kind of damage which can reasonably be anticipated as a result of the Concorde boom.
The obvious and most vulnerable thing is a window. Collectively the most vulnerable thing is probably a horticultural glasshouse with acres of glass. For example, I understand that a glasshouse in an absolutely slap up condition of repair is likely to be less vulnerable than one which has some loose panes in it. It is important to establish that we are not going to have arguments, when people put in claims, that some of the panes were a little loose and that is contributory negligence, and therefore no damages are payable. Obviously there will be degrees of defective repair, and 991 although I am not advocating that the Government should do a lot of free repairs on the basis that things were about to fall down anyhow, and fell down when the Concorde went over, it is important that we should avoid as far as possible endless arguments over claims of this sort, leading perhaps to expensive arbitrations, all of which will leave behind a feeling of resentment and probably injustice.
I, and I know that many hon. Members to, regard the Concorde as a great achievement, both in advanced technology and in air transport. I believe, too, that it has an exciting commercial potential, most of which has the advantage that it will be in the form of current exchange. It is an achievement of which we can be proud. I hope that the British people will be proud of that achievement, but it will be a tragedy if that justifiable pride is marred by damage to individuals, however minor, becoming the source of resentment and leading to a sense of injustice.

§ Mr. John Ellis (Bristol, North West)
The hon. Gentleman has obviously studied these cases, and he knows more about this subject than I do. He has stressed that damage will be paid for, and that the Minister will not be niggling about it. If compensation is to be paid, why does he think it is necessary for the Minister to have this Order? I find this baffling. Presumably the Minister will tell us, but I should be grateful for the hon. Gentleman's opinion.

§ Mr. Corfield
The aircraft is owned by the right hon. Gentleman's Ministry, and therefore in law it is owned by the Crown. Unfortunately, there are difficulties in bringing an action against the Crown even if it is represented by Government Departments. I take it that the reason for this Order is to make it abundantly clear that a person injured has the same rights as if it was not a Crown aircraft. I expect that the Minister will elaborate on that, but that is my assumption about the need for the Order.
That brings me to another question on which I think it would be useful if the right hon. Gentleman could expand a 992 little. How will people be instructed to prepare their claims, to whom will they be invited to present them, and what machinery will be set up for settling disputes? Human nature being what it is, there will be disputes. People are apt to put a rather higher figure on their damages than is always justified, and obviously some machinery of this sort will be necessary.
I hope that the Minister will be able to give us some information about what the French experience has been with the flight testing of 001, admittedly up to Mach 1.5, which is lower than the speed which is about to be achieved, we trust, by 002, but nevertheless one at which a considerable over-pressure is created. As I understand it, it is over-pressure which creates the boom. It would be helpful if we could be told what sort of claims have been made, both in numbers and extent, to the French authorities, and the general sort of reaction which has been manifest in France to the boom and any other effects of Concorde.
Obviously that will not be a complete guide, because one of the many variables on which this over-pressure depends is speed. If we see the speed accelerating to Mach 2, or later to the aimed operational speed of Mach 2.2, clearly the boom may be of a somewhat different nature, and presumably it will produce a higher over-pressure. Figures of 2 lb. per sq. ft. have been mentioned. I have heard it suggested in certain technical quarters that the effects of the sonic boom can be cumulative—in other words, that although the first two, three or perhaps a dozen flights may produce no visible damage to a piece of property they can nevertheless produce a weakening, which can result in the damage occurring perhaps on the thirteenth or fourteenth flight, even though that flight is at a much lower speed, therefore producing a much lower over-pressure.
According to that school of thought the cumulative effect could be such that even the pressure produced by a strong gale could be the last straw that breaks the camel's back, the weakening having occurred invisibly and undetectably as a result of flights carried out previously. If that is true we shall obviously face some difficult problems of adjudication. It will not be easy to say, in any one case, 993 what is the cause of the damage. If I remember my law on this subject correctly we are in the difficult area of distinguishing thecausa causans from the causa sine qua non.
I hope that the Minister can tell us what is known about the possibilities of the cumulative effect of a series of supersonic bangs—produced by Concorde or any other aircraft—and that he will also be able to assure us that in view of the immense onus of proof that would rest upon a claimant if he were required to prove beyond all reasonable doubt that this cumulative effect had taken place, even though the final damage had occurred in a gale, all claims under this head will be received sympathetically and treated generously, without demanding too rigorous a standard of proof—because that could nullify the whole objective of the Order, which is to ensure that the individual shall be properly compensated if damage can reasonably be said to have been caused by the flight of Concorde.
I shall also be grateful if the Minister can assure us that any legal or surveying costs that may be incurred by the claimant in preparing his claim and, if necessary, arguing it, will also be covered by the compensation.
I repeat my belief that this is a great technological break-through, of which we can be proud, and that we can have high hopes of its success as a commercial aircraft. Nevertheless, we have to face the fact that its development has highlighted the proper concern of people for the effects on the environment that started with the transfer to jets, has continued with the growing number and size of jet aircraft and the controversy about the third London Airport, and is now something of which we have rightly to take account. We shall certainly not secure the full benefits of our technological achievement in the production of Concorde, let alone such further exciting development that I believe are within our grasp—such as V.T.O.L. aircraft—unless we accept the corollary, that the effect out environment of the many is no less important than the benefit to the few.

§ Mr. John Ellis (Bristol, North-West)
Earlier I intervened to ask a question because I must admit that, having studied this Explanatory Note, it seemed that the 994 Order precluded actions for trespass and nuisance and that subsection (2), having precluded people who had suffered damage from sonic booms from their full rights of action in respect of trespass or nuisance, then gave it back in a limited from. When I put the point to the hon. Member for Gloucestershire, South (Mr. Corfield) he seemed to think that the Order was advantageous to people and that somehow, because these aircraft were Crown property, there was an immunity from responsibility for damage caused by them as the Crown has immunity in other respects. I may have it wrong, and I will willingly give way to the hon. Gentleman if he wishes to correct me.

§ Mr. Corfield
If the hon. Gentleman reads subsection (1) he will see that there is no mention at all of the word " damage ". It simply says that no action shall lie in respect of trespass etc. by reason only of the flight of the aircraft over any property. Subsection (2) goes on to say that if that flight causes damage then there is an action provided that there is no contributory negligence.

§ Mr. Ellis
It also mentions nuisance. I am still far from clear whether the aggrieved person—who has perhaps had his glasshouse damaged by a sonic boom —has his absolute rights restricted by the Order. Is he in a worse or a better position as a result of the Order? From my reading it seems that a person is in a less advantageous position to pursue his rights for damage or nuisance by reason of the Order.
I have heard the hon. Member for Gloucestershire, West putting questions on the subject from the Opposition Front Bench, and I disagree with some of his statements. I represent many workers who work on Concorde, too. It is a great project and I want it to be a success, but we must solve the technical problem of the sonic boom so that it does not inconvenience people. There is evidence that it causes serious damage. If this project is to be the great success it deserves to be we must solve these technical questions. I do not go along with the hon. Gentleman when he says that people might expect to be inconvenienced and should accept it

§ Mr. Corfield
I am sure the hon. Gentleman will accept that we cannot tell 995 whether people will be inconvenienced until we have had some test flying. This is the problem. My interpretation of the Order—and although I am delighted to help the right hon. Gentleman I will leave him to defend it for the rest of the evening—is that it can apply only while the aircraft are owned by the Crown and that will happen only for flying purposes while they are testing. This is what we are concerned about tonight. I accept the hon. Gentleman's point that, if as a result of these tests it is shown that there is danger and damage or intolerable nuisance in terms of noise and that sort of thing, we have to see about the operating procedures. But people who say that we should assume the worst and never give the people who have made this aircraft a chance to fly, or alternatively say that it must happen over the sea so that if anything happens there will be no hope of saving the pilot, are wrong.

§ Mr. Speaker
Order. Interventions must be reasonably brief.

§ Mr. Ellis
I can go along with a lot of what the hon. Gentleman says, but an Order like this is assuming the worst and that is why we are discussing it. I read in my paper that certain insurance companies are refusing to insure people.

§ Mr. John Nott (St. Ives)
The hon. Gentleman must be right. Otherwise why would the Government lay the Order at all if it were not for the risks that he suggests?

§ Mr. Ellis
We are discussing this Order which foresees a situation which may not develop. Reassurances will be given to the critics of the programme and there are critics in this House. They express the worst fears and take a pessimistic view about the amount of money spent on the Concorde and the damage it will do. They are the real enemies. It is a pity that some of them are not here tonight, because—

§ Mr. Speaker
Order. If they were here, they would not be able to discuss the Concorde programme.

§ Mr. Ellis
I take the point, Mr. Speaker. We are very much discussing the damage that might result from sonic tests. If those hon. Members were here, 996 they might make very different noises to the one that I am making.
Nevertheless, we should not let the point go without saying that this is an imaginative project, that we believe in it and that we think it will do a great deal for the country, but that as we go into the test programme people who may be affected with problems of damage or noise should be covered by the law and that there should be no exception to this. In the event of something unforeseeable, which is what a test programme is all about, they should be entirely covered and the community as a whole must make good their loss.
We have had limited experience in this country when we had sonic tests over certain cities. I understand that various claims were made and that the business of paying out was done expeditiously. It certainly did not come to my attention that people were being over-compensated. Nevertheless, it also seemed to go smoothly without an Order like this. I therefore question the need for it.
The hon. Member for Gloucestershire, South has presented a very different light and applied a gloss that certainly deserves a little more explanation—and that is being charitable about it. I hope, therefore, that when my right hon. Friend replies, he will make quite clear where we stand. I would like him to say that we believe in the Concorde project, that we believe it should go forward and that we hope and believe that it will be a great success, but that any—

§ Mr. Speaker
Order. We are not discussing the Concorde project. We are discussing the application of Section 40 of the Act to certain aircraft, which include the Concorde.

§ Mr. Ellis
Yes, Mr. Speaker. The Explanatory Note at the foot of the Order, which states would include Concorde aircraft falling within those categories "— specifically refers to the Concorde. My contention would be that the problem of sonic booms and damage arising is germane to the reason why the Order is before us tonight. Naturally, I shall follow your wishes, Mr. Speaker, but I would find myself in difficulty in not referring to Concorde.

§ Mr. Speaker
Order. I am not preventing the hon. Member from referring to Concorde. But the question of whether we have a Concorde or not is not the subject of this debate.

§ Mr. Ellis
Yes, Mr. Speaker, but the fact that we have a Concorde and that it is capable of making a sonic boom is one of the material reasons for the Order and is what worries me about it.
However, I have made the point that I wish the aircraft well. A lot of my constituents work on it. Nevertheless, I am jealous also that people who live in my constituency and throughout the country shall not suffer damage or inconvenience by reason of the test programme. It is important to make clear from this House tonight that the passing of the Order, if we agree to it, will not in any way prejudice any rights to compensation that people may have had in the past, that those rights will continue to apply and that we say to those concerned that we must overcome the technical problem so that people are not incommoded. I hope that my right hon. Friend will be able to reply forcibly to that effect.

§ Mr. John Nott (St. Ives)
I have listened with interest to the speeches of the two hon. Members who represent Bristol constituencies, my hon. Friend the Member for Gloucestershire, South (Mr. Corfield) and the hon. Member for Bristol, North-West (Mr. Ellis). Both have a large number of constituents who work on the Concorde project. Without in any way wishing to offend my hon. Friend, I agree more with the slant put on the debate by the hon. Member for Bristol, North-West than with the view of my hon. Friend, but I will come to that later.
We are discussing the interpretation which one might put on the underlying reason for the Government laying this Order. It seems to me—and here I wholly agree with the hon. Member for Bristol, North-West—that people who might suffer damage as the result of Concorde will be worse off as a result of this Order than they would have been had it not been laid. I will give the reasons for this view shortly.
I wish at the outset to make it absolutely clear that I am making no judg- 998 ment whatever on the Concorde project. I am an agnostic on the issue, although I am a militant opponent of the Order. Every so often a Statutory Instrument is presented to the House—often it is debated late at night—which could—I put it no higher because I have not heard the Minister's answer—offend against the traditional conception of British justice. We are here to protect the rights of the individual against arbitrary action by the Crown. We must ensure that Instruments do not override the rule of law.
I define the rule of law in this context as the right of every citizen to have an impartial hearing and consideration of his claims and an opportunity of appeal against any compensation which may be awarded against him. Under this Order the Minister of Technology, who, we agree, has a vested political and personal interest—I am not making any unreasonable charges against him—in the success of Concorde, may be effectively removing the right of the individual to sue for damages against harm to his person or property. [Interruption]I have no experience of the law. I am giving my interpretation of the legal aspects of the Order. It is possible that the Minister is setting himself up as judge and jury, without any sort of civil appeal, in the settlement of eligibility and degree of compensation for those whom he has already admitted could possibly be harmed.
The Government will probably say, in their innocence, or pretended innocence, that they are merely seeking the same protection for Concorde as exists for other private owners, airlines or State corporations. In other words, they may say that as under the Civil Aviation Act there is protection for ordinary airlines. State corporations and private owners, the same protection should exist for the Crown, in this case specifically Concorde. Although this may be the case legally, the Civil Aviation Act, 1949, was never intended to give immunity against damage caused by sonic booms. The Minister knows that; I know that; the country knows that.
The Civil Aviation Act, 1968, includes specific new provisions to enable the Government to ban civil supersonic flying over land. I therefore make the practical point that the Civil Aviation 999 Act, to which the Order relates, was never intended to protect people from damage against supersonic booms. The supersonic boom was not contemplated. The reference is to the Act of 1949. We are dealing with entirely new circumstances, so I hope that the right hon. Gentleman will not seek a legalistic interpretation and say that he is merely claiming Crown immunity under Section 40(1) because private airlines have immunity now.
The Minister has on one or two occasions written very excellent letters to me in which he has said that the United States Administration has said that it will ban commercial supersonic flying over land in the United States. I do not here refer to testing. It seems to me to stretch imagination or horror too far to think that the Government will say that they will allow the protection of the Civil Aviation Act for airlines flying commercial supersonic aircraft over the British Isles. Surely that is not contemplated. The Government have taken power in the 1968 Act to exclude it, so I do not think that it is contemplated. The prospect would be horrific.
We have heard from hon. Members who represent constituencies where the Concorde is being manufactured, but I represent a constituency over which it will fly. I have no constituents who work on the project, but over my constituency at certain times of the day and night there is a constant stream of foreign aircraft passing across the Atlantic. I can see them on a clear day. The Government cannot contemplate allowing supersonic aircraft, with this sonic boom, to have the immunity of this Act, and they cannot claim immunity for the Crown should there ever be Crown aircraft flying constantly over Cornwall.
I may have dwelt on that point rather too long, but I have to make it as I shall not have an opportunity to answer the Minister should he say " We are merely seeking what civil airlines have now." These airlines are not flying supersonically over the country at this time. The Government have repeatedly claimed that the fears expressed by individuals are exaggerated and that little damage will result from the testing of Concorde. If that is so, why do the Government 1000 seek to limit or stifle or amend in any way at all individual rights to sue through the courts. I do not understand it.
The Minister will probably refer to subsection (2) of Section 40 and tell us that that subsection does not remove immunity. Section 40 is headed Liability of aircraft in respect of trespass, nuisance and surface damage ". What legal opinion I have had is that subsection (2) of Section 40 has never been tested in the courts. As the hon. Member for Bristol, North-West has rightly said, it is subsection (1) that we are discussing because that relates to a global immunity given to the Crown through the Order in respect of trespass, nuisance and surface damage. Subsection (2) has never been tested in the courts, but I believe that it would be interpreted by the courts as applying to aircraft falling from the sky or objects falling from aircraft.
If there is unlikelihod of damage from Concorde, one has to ask why the British Insurance Association, which represents all the principal insurance companies, has said: …the majority of B.J.A. members have decided that cover against this risk (i.e. sonic booms) will be excluded from most clauses of new policies and from most classes of existing policies as they become due for renewal after a given date. Is the British insurance industry in capable of assessing risks? I suggest not.
Again I pose a question which was posed by the hon. Member for Bristol, North-West. Are individuals in my constituency better off and more able to sue through the civil courts for damage done to their persons and property than if the Order had not be laid?
On 26th January in answer to a Question by my hon. Friend the Member for Honiton (Mr. Emery) the Parliamentary Secretary said: " buildings over the test route in an unsafe condition should be attended to."—[OFFICIAL REPORT, 26th January, 1970; Vol. 794, c. 997.] Some of these buildings are in my constituency. I have an old house, and I have been told by the Parliamentary Secretary that my old house " should be attended to ". That is kind of him. The Government are to be the dispenser of compensation under the Crown immunity 1001 of Section 40(1) provided by this Order. Are they to be the judge of whether buildings were or were not in an unsafe condition prior to test flights of Concorde? Will compensation be refused, reduced or denied to those who cannot prove that their property was well maintained? On whom does the burden of proof rest? On whom does it rest in the case of Crown immunity? How will " good maintenance " be defined?
This is a matter of enormous importance to my constituency, and this is the first opportunity I have had of debating it. I have in my possession regulations issued through the National Farmers Union to livestock owners and producers in Cornwall for claiming compensation from the Crown. The one extract which I take refers to horses.
Section A deals with abortions, and says that if an abortion is the result of a supersonic boom: (1) A veterinary surgeon should be consulted immediately. (2) Where an X-ray is produced or an aborted foetus it should be sent to the equine research station at Newmarket in a polythene bag. Then this official publication of the National Farmers Union in Cornwall says that the veterinary surgeon's report must contain precise details of the identity of the mare with breed or type, name and registration number, age, height and bodily condition and that if a foal or foetus is concerned the sire of the foal should be clearly identified and the date of the last service given. In the case of Section B, injury or death, it is stated that where injury has occurred the veterinary surgeon should take steps to examine the horse without loss of time and have it treated and, if necessary, diagnostic procedures should be carried out. Will the Ministry deny liability where no X-ray is produced or an aborted foetus is not despatched in a polythene bag to the equine research station at Newmarket? I want to know the answers, because I represent a constituency which has more intensive livestock production than any other in the United Kingdom.
If the Government are justified in obtaining Crown immunity under Section 40(1), why at the O.E.C.D. meeting in Paris on 3rd February, 1970, which for all I know the right hon. Gentleman may 1002 have attended, did Sweden, Norway, Holland, West Germany and Switzerland all claim that they were banning supersonic overflying over their countries?
The Minister may say that we are talking only about testing. It makes no difference to my constituents whether Concorde is only tested or flown commercially over my constituency. If there are to be 50 tests, it is just as bad for my constituents as its being flown commercially. The Swedish delegation at the O.E.C.D. meeting stated that sonic bangs exceeding 0.2 lb./sq. ft. must be judged intolerable to people living underneath. Concorde's booms may be up to 10 times the intensity of 0.2 lb./sq. ft. I know that there is an argument about what they will be; they may be 1.5 lb. The Swedes have great experience in this matter: they have carried out the most intensive research.

§ Mr. Speaker
Order. Passing or rejecting this Order will not decide whether Concorde flies.

§ Mr. Nott
I respectfully agree, Mr. Speaker.
I fear that Concorde—these are the implied answers I have had from the Government up to now—has become a sort of symbol of British patriotism. I have said that I am an agnostic about its future. So much money has been spent on Concorde that I hope that it succeeds so that we can get some of the money back, but it has become a sort of symbol of British patriotism and of the Government's technological virility. The implied answer to my previous complaints about Crown immunity is that I am being rather tedious and unreasonable when so much national prestige and money are at stake.
Not a word has been heard from the Secretary of State for Local Government and Regional Planning, who is responsible for the pollution of the environment, about supersonic overflying and this Order. It is he who has classified noise as a major element in the pollution of the environment. The Civil Aviation Act was never intended to protect, or provide benefits for that matter for any aircraft by whomsoever owned against claims for damages for injury caused by supersonic booms. Certainly it was 1003 never intended to give Crown immunity under Section 40(1) of the Civil Aviation Act without any right of appeal in the courts for the testing of an aircraft whose sonic booms are of unknown intensity and kind.
I claim that the Order, if my interpretation is correct, is stifling individuals' rights, and I do not understand how a Government with an allegedly democratic system of social priorities can allow it to be laid.

§ Mr. Michael McNair-Wilson (Walthamstow East)
I have two questions to pose to the Minister. What height is reasonable? After all, it is on this point that the individual loses his right of legal redress. By the same token, what wind strength and what weather conditions are acceptable? We are not told these things. It is important that we should be given this information, because, obviously, if the aircraft flies below what is considered to be a reasonable height, presumably an individual has the right of legal redress against noise nuisance by the aircraft.
Secondly, I wish to touch on the question of negligence. No reference is made to negligence in the Order. The Explanatory Note claims to give a brief account of Section 40 of the Civil Aviation Act. It may be that that section has been amended since I last read the Act but if it has not, negligence is written clearly into that section and this, therefore, raises the question: what is negligence? This is obviously a crucial matter.
If a man owns a glasshouse and, through his leaving several windows open, the glasshouse is more likely to be destroyed by sonic boom, is that negligence? If it is, should not instructions be issued to the owners of such property to let them know that this is a danger against which they should take action?
I wish to come to the point raised by my hon. Friend the Member for St. Ives (Mr. Nott) about insurance. The glasshouse produce committee of the N.F.U. is concerned about compensation and what owners of glasshouses should insure against. The members of that committee have asked why insurance companies 1004 have been referring to adding sonic boom cover to policies. If this Order provides all the right to compensation that is necessary, why is a particular insurance premium needed for this risk? Whet: we are subjecting people to all sorts of noise nuisances and the risk of damage to their property, it is important that they should know that we in this House are concerned about the damage to themselves and to their property and that we are not trying to find a way out of giving them the compensation to which they have a right and which we have the duty to see they get.

§ Mr. Corfield
If I may interrupt my hon. Friend, it is abundantly clear that if I thought for a moment that we were taking away rights, I would be against this Order. I am convinced that we are doing the reverse. [Interruption.]

§ Mr. Speaker
Order. We cannot have two interventions at the same time.

§ Mr. McNair-Wilson
The next point I wish to make—it was also raised by the glasshouse produce committee of the N.F.U.—is that of compensation for sonic boom damage as a permanent liability on all those who fly supersonic aircraft. The question of cumulative damage is crucial. The Minister of Technology has suggested that some of the cumulative damage and vibrational stress would be no greater than that caused by a cathedral bell tolling out. What a way out that would be for denying a reasonable claim. It is difficult to assess cumulative damage. Boom after boom over a three-year test period—how can we be sure that we know what we are talking about? May I also ask about the limits of compensation that will be paid? Is the sky the limit or have we to decide a figure that we consider is fair?
I should like to refer to one other point, which was raised by the Welsh National Farmers' Union, which said that it thought that some sort of seismographic equipment should be installed to give a clear impression of what has happened during a test flight. It were left to the impression of one man or another, one can imagine the sorts of argument that would arise and the endless litigation as well. Therefore, we should set up testing equipment to back any claim that is made either one way or the other. 1005 By the same token, should we make a special allowance for the Concorde when manoeuvring because I believe a sonic boom can be focussed to a greater extent when the aircraft is manoeuvring than when it is over-flying? I have raised the question of height because it is important. The British Aircraft Corporation has said that if Concorde flies above 35,000 ft. there may be no sonic boom. What a welcome relief that would be to all those people who think that their lives will be made hell during the next two or three years.
Can we know whether that is the reasonable height? Whatever it is, let us write the rules clearly for people to know, so that if their lives are to be made miserable by the aircraft, no matter how important it may be to Britain's technology and future, they will receive adequate redress.

§ The Minister of State, Board of Trade (Mr. Goronwy Roberts)
I have listened with great interest and respect to everything that has been said in this important debate, and particularly to the opening speech of the hon. Member for Gloucestershire, South (Mr. Corfield). Perhaps it would be helpful to the House if I first explain the purpose and effect of the Order before going on to answer as many of the questions raised as I can.
The purpose of the Order is to introduce a small but useful reform in civil aviation law. Despite the limited nature of its effect, it makes an important change; but one which should not give rise to any misgivings. Nearly all aircraft other than Service aircraft of the Ministry of Defence are already covered by the provisions of Section 40 of the Civil Aviation Act, 1949. It has perhaps been anomalous that, hitherto, the very small number of Crown civil aircraft have not been covered by these provisions. The Order simply remedies this situation. It does so by extending to Crown civil aircraft the same protection against actions for trespass or nuisance that is already afforded to other civil aircraft by Section 40(1). The Order also provides, by virtue of the application of Section 40(2), a statutory basis for claims in respect of material loss or damage caused by Crown civil aircraft, without proof of negligence.
1006 Military aircraft—aircraft belonging to the naval, military or air forces of any country; there are friendly countries that rightly use our skies and ground establishments—remain outside the relevant provisions of the Act.
The Crown civil aircraft to which section 40 will now apply are defined in the Order as aircraft belonging to or exclusively employed in the service of Her Majesty ". These include aircraft of the Board of Trade's Civil Aviation Flying Unit and other aircraft which the Board of Trade and the Ministry of Technology may have from time to time for research and similar purposes, such as the aircraft of the Blind Landing Experimental Unit.

§ Mr. Michael McNair-Wilson
Is the Minister saying that what I said seems to be in the Act is not in it, and there is not a question of negligence?

§ Mr. Roberts
I appreciate the importance attached to the question of negligence by hon. Members, and shall come to it a little later. The question of whether Concorde pre-production aircraft come within the definition of Crown aircraft is a matter of some doubt, which would in the last resort be for the courts to resolve. It is one of the purposes of the Order to put it beyond doubt that Section 40 applies to Concorde test aircraft. The position is that if these Concorde aircraft are Crown aircraft—they are certainly civil aircraft—the Order will apply the provision of Section 40 to them. If, on the other hand, these Concordes are not Crown aircraft, then Section 40 applies irrespective of the provisions of the Order. That is the two possible circumstances regarding ownership which are both covered.
The practical effects of the Order are twofold. As the law previously stood, it was open to any person to bring an action under common law against the owner of a Crown civil aircraft for trespass or nuisance, although it was not possible to do so against the owner of other civil aircraft. At least in theory, therefore, the public's right of redress has been removed to this very limited extent. On the other hand, it has been widened in regard to loss or damage.
Of greater practical significance is the second consequence of the Order. Hitherto, there has been no statutory 1007 basis on which a member of the public was entitled to bring actions seeking compensation in respect of material loss or injury caused by Crown civil aircraft. The application, by means of the Order of Section 40(2), provides a statutory basis for compensation, without proof of negligence, where loss or damage is caused. That would include, in relation to individuals, injury or loss of life.

§ Mr. Corfield
One would have great difficulty in mounting an action against the Crown for trespass and, even if it were successful, one could not get anything out of it unless one proved damage.

§ Mr. Roberts
The hon. Gentleman has put it precisely. I said that in theory, there was a limited removal of the right of redress. In fact, as the hon. Gentleman says, there is almost nothing to it in practice. On the other hand, we are providing what he is most concerned about, which is a claim in respect of a material loss or injury.
The significance of subsection (2) in relation to Concorde test aircraft may be inferred from the statement in the House by my right hon. Friend the Minister of Technology on 17th February in which he explained the arrangements for certain test flying over some western areas of the United Kingdom and dealt with the question of claims for compensation for any damage that might be caused by sonic booms.

Mr. Noft
Are we to take it that there is nothing to prevent an individual whose property, person or cattle are damaged suing the Crown in a court of law, and that this Order makes it easier for him to do it than before? In other words, now he does not have to prove negligence, whereas before he had to. Is that correct?

§ Mr. Roberts
I think that the hon. Gentleman has put the position correctly. The effect of the Order is to make it possible for a person to make a claim and, if he is still aggrieved, to have recourse to the courts in respect of loss or injury.

Mr. Noft
I understand that, if necessary, I can divide the House on this. Before deciding whether to do so, and bearing in mind that the individual 1008 could always sue for negligence in the courts and did not need this Order, is the Minister saying that Section 40(2) makes it easier for an individual to sue the Crown than was the position before the laying of the Order?

§ Mr. Roberts
I think that I follow the hon. Gentleman's point, and that I can give that assurance. The effect of the Order is to enlarge and not diminish the possibility of an ordinary citizen moving in whatever way he chooses in relation to any loss or injury he may suffer. If I may proceed—

§ Mr. Ellis
I hope that my right hon. Friend will not be impatient, but this matter is crucial. I want to take him one stage further.

§ Mr. Speaker
I hope that the hon. Member for Bristol, North-West (Mr. Ellis) will intervene briefly; he has made a speech.

§ Mr. Ellis
Yes, Mr. Speaker. May we have an assurance that by passing the Order we shall not in any way reduce a man's rights, that it will not be a question of roundabouts and swings, of losing here and gaining there, that a man will not lose anything?

§ Mr. Roberts
My hon. Friend will have heard my statement and that of the hon. Member for Gloucestershire, South with which I instantly agreed. Subject to the point of theory which we both made, the answer to my hon. Friend is clearly, " Yes ".
The statement of 17th February referred to certain test flying over some western areas of the United Kingdom and dealt with claims for compensation for any damage which might be caused by sonic booms—hon. Members wanted an assurance that this statement referred to sonic booms. The statement made that perfectly clear. I assure the House that careful consideration has been given to what damage might be caused by sonic booms. I stress that personal injury is not expected to occur, although, of course, it would be open to anyone who believed that he had suffered personal injury to take the matter to the courts by virtue of the clear statutory rights in Section 40(2). Typically, the damage which may unfortunately but inevitably result from supersonic test flying would be some broken glass. That is the advice which 1009 I have. It is the view of my right hon. Friend the Minister of Technology and my right hon. Friend the President of the Board of Trade.
As my right hon. Friend the Minister of Technology has announced, notice will be given of Concorde supersonic test flights over the United Kingdom and the flights will be strictly limited so as to ensure that there is as little disturbance as possible to the public. Full arrangements have been made by my right hon. Friend for claims of compensation for any damage caused by sonic booms. Such claims should be made to the Concorde Division of the Ministry of Technology.
I was asked for a description of how this would work. I cannot give the mechanics at the moment, but no doubt they will be made absolutely clear by my right hon. Friend the Minister of Technology, who will be concerned with dealing with the claims, but I take this opportunity to state that a claim giving details of the nature of the damage and the time and the circumstances in which the damage occurred should be forwarded to the Ministry of Technology, Concorde Branch, St. Giles Court, 1–13, St. Giles High Street, London, W.C.2. If necessary, an inspector will visit the site of the damage.
More than one hon. Member raised the subject of the procedure for any appeals. As Section 40 of the Civil Aviation Act, 1949, is by virtue of the Order being extended to cover Crown civil aircraft, it will be open to anyone who feels that an offer of compensation is inadequate, or whose claim has been refused, to have recourse to the courts of law against the decision. This is the appeal procedure which hon. Members want—an assertion that recourse to the courts is open to the aggrieved person who feels that the amount is inadequate, or who has been refused any compensation at all.
The hon. Member for Gloucestershire, South, if I may say so without presumption, asked the right questions and I hope that I may cover at least the most important. He asked, for example, about the limit on liability. There is no limit on the amount of compensation which may be paid in consequence of a claim under Section 40(2), whether in respect of damage caused by supersonic flights during the Concorde test programme or 1010 otherwise. When I say " otherwise ", I carry the hon. Gentleman with me in saying that whether commercial supersonic flights shall be permitted or restricted has yet to be decided.
I shall now address myself to the question raised by the hon. Member for St. Ives (Mr. Nott) about the position in the United States. We ought to have this clear. I am not sure whether the hon. Gentleman was quoting from a letter of mine. Perhaps he issued a somewhat unauthorised version. We already have power to regulate or prohibit commercial flights over land, and we are considering to what extent we should use these powers. As has been said, is it right and sensible that we should engage in the proper kind of test before coming to a conclusion on the matter. I understand the position in the United States to be that draft regulations have been introduced for consideration and comment by interested persons, but no ban is yet in force.
The attitudes in European countries are as the hon. Gentleman indicated them, but I have no evidence that these have been promulgated. It may well be that this has by now happened. The general approach is much like the British, namely, to have power to restrict or prohibit, and to decide in the light of experience, our own experience and experience of what happens in other tests.
That brings me to the question of the French experience in this matter. We have not much evidence of the position in France so far. However I would wish to comment on reports in the Press that a number of deaths occurred at the time of tests in France which were in some quarters attributed to those tests. My information is that none of the deaths which happened at the time of the tests in France were directly caused by boom. But we are keeping in close touch with our French colleagues and partners in this matter to learn from their experience, as they are with us.
As to French experience in dealing with claims, their policy is one ofexgratiaprocedure. With every respect to our French friends, I do not think that we can learn much from that. I hasten to give the further assurance that my right hon. Friend the Minister of Technology will organise and carry on the 1011 procedures for considering claims—I use the phrase which has been used in the debate—as sympathetically and generously as possible. I fear that it is not possible tonight to set out in detail how this will be organised. However the House and the country have a right to expect that it will be set out in fair detail and be made widely available through the public media and in other ways so that people in all parts of the country, and particularly in the test areas, so to call them—including my own constituency—will know exactly where they stand. All the other points on questions of negligence and so forth will also be made clear.

§ Mr. Nott
The Minister would leave me completely happy as a result of the debate—because I am satisfied with what he has said so far—if he would say that the surest and quickest way of ensuring that there will not be any claims for compensation, either through the Crown or through the courts, is that should damage be caused to buildings and property in the test areas then the Minister of Technology will forthwith give an order that Concorde will not in future fly over inhabited areas of the British Isles. Will he say that?

§ Mr. Roberts
The hon. Gentleman really does not expect me to go that far

§ Mr. Nott
Why not?

§ Mr. Roberts
—but he is right to expect me to say that, in the light of our experience of these tests and what we learn from abroad, we shall be coming to a decision as to how far we shall avail ourselves of Section 19 of the 1968 Act to restrict and possibly to prohibit commercial flying of the Concorde.

§ Mr. Nott
And testing?

§ Mr. Roberts
That will no doubt affect future testing. The decision whether to proceed with further tests will rest partly on the experience of the results of completed tests. The hon. Gentleman's question was addressed to the long term commercial position.

§ Mr. Nott
May 1 clarify the point? The Minister is being generous and I hope that I am not presuming on his generosity. My point is that the Order 1012 would not be required apropos Concorde and the immunities and benefits of the Civil Aviation Act would not be required either. If, should the first test cause substantial damage to property or to people or to livestock, the Minister of Technology would say that further tests will not take place over inhabited areas, I should be satisfied. This is not asking a lot, is it?

§ Mr. Roberts
Obviously in any circumstances a decision on what to do in future will have to be taken. Really I could not go beyond that, and I do not think that the hon. Gentleman expects me to do so.
The hon. Member for Gloucestershire, South asked a number of other questions which I am anxious to try to answer. I hope that he will forgive me if I do not cover every point. Perhaps he will prompt me if there is one in particular that I have left out.

§ Mr. Corfield
The cumulative effect is the most important problem.

§ Mr. Roberts
Our minds move on remarkably parallel lines. I have in fact spotted the point on cumulative effect. The evidence to date is contained in the results of the work done by Southampton University. In its report it says that numerous isolated bangs will have no immediate effect on substantial buildings, such as cathedrals, and that even 25 bangs per day might have little or no effect on major structures. We shall be studying very carefully what Southampton University or any other research agency will be telling us about this matter in the next few weeks and months.
I do not want to put this too high—I do not wish to mislead the House or myself, because I have a constituency interest—but so far it is pretty clear that the cumulative effect will be, not nonexistent, but minimal. My right hon. Friend may have to qualify this later, but this is the state of our information at the moment.
Another point raised was whether the costs of preparing a claim to be considered would be taken into account in assessing the claim. A very simple procedure will be operated, calling for only the essential information. The claim will necessarily have to be described by the claimant. While there will be forms, they 1013 will be as simple as possible, so that the need for expert assistance in preparing a claim need scarcely arise. I do not think, therefore, that this rather difficult question whether costs in preparing a claim will affect the final settlement of the claim will arise.

§ Mr. Corfield
I am sure the Minister will accept that, on occasions, one may need an architect's assessment of damage to a building, and that would have to be paid for.

§ Mr. Roberts
As I understand it, it is my right hon. Friend's intention to deal with claims as sympathetically and generously as possible. I should not rule out a submission by a claimant that in making his claim he had been involved is probable expense of that kind. I hope that I am not committing my right hon. Friend unduly. I think probably that, because of the approach which my right hon. Friend will adopt to these claims, 1014 such submissions will not be ruled out. Legal costs could be awarded in the event of successful recourse to the courts.
I believe I have now covered practically all the points which were raised during the debate, even if not in the order in which they were raised. If hon. Members feel that I have omitted any point and would like me to deal with it, I shall be glad to try to do so.

§ Mr. Corfield
In view of the purpose of the debate from my point of view, and of the right hon. Gentleman's answers, I beg to ask leave to withdraw the Motion.