APPLICATION TO CROWN (Hansard, 4 May 1970)

§ The Attorney-General (Sir Elwyn Jones)
I beg to move, That the Clause be react a Second time.
It is, as you have indicated, Mr. Speaker, convenient for Amendments Nos. 29 and 30 to be considered with the New Clause 1, since the new Clause is intended to replace Clause 35 and the Amendment in Clause 33, page 27, line 19, is consequential.
Clause 32(2) of the Bill enables the High Court in an action for damages for personal injuries to make an order for the inspection, photographing, preservation, etc., of property which does not belong to a party to the proceedings but which is the subject matter of the proceedings or as to any question that arises in the proceedings. By virtue of Clause 35, this provision binds the Crown, ex- 106 cept the Queen in her personal capacity, although the court is precluded from making an order if the court considers that it would be injurious to the public interest.
Clause 32(2) gives effect to a recommendation of the Winn Committee on Personal Injuries Litigation and is complementary to Section 21 of the Administration of Justice Acts 1969, which enables the High Court, before the commencement of proceedings to make an order for the inspection, photographing, preservation, etc., of property which is likely to become the subject matter of proceedings or as to which any question may arise in the proceedings.
Section 21 is not confined to prospective proceedings for personal injuries but, on the other hand, it does not bind the Crown. A confusing and anomalous situation will therefore result when Clause 32(2) comes into operation. Both Section 21 and Clause 32 will have to be supported by rules of court prescribing the circumstances in which an order may be made, and it is obviously desirable that there should be a single rule or set of rules providing for the inspection etc. of property before the commencement of proceedings and against a third party during the course of proceedings. But as matters stand this could not be done without introducing qualifications which might easily be overlooked.
The new Clause accordingly provides for Section 21 of the 1969 Act to bind the Crown, in relation to claims for personal injuries, to the same extent as Clause 32(2) and other provisions of Part II of the Bill. That is to say, in prospective or pending proceedings or personal injuries the court will be able to make orders in respect of property belonging to the Crown, other than the Queen in her personal capacity, unless the court considers that compliance with the order would be injurious to the public interest. The substitution of "this Part" for "sections 31 and 32" in Clause 33(3) is a consequential Amendment to enable the definition of "personal injuries" to apply to the new Clause.

§ Sir Peter Rawlinson (Epsom)
The House of Commons is indeed a strange place in that immediately following on our previous proceedings the Attorney-General is now moving what can only be described as an esoteric piece of law, 107 but it is important and useful. The new Clause is sensible since it includes procedures which are to be dependent to an extent on rules of court. On other parts of the Bill we have criticised reliance on rules of court rather than on the express determination of the House of Commons, but this seems to be an appropriate provision to be included in rules of court.
Obviously, in actions for personal injuries property belonging to the Crown Office can be involved and it may be necessary to inspect, to disclose and to examine. It would be wrong if we could not make the appropriate provision on behalf of the Crown. Therefore, this new Clause will improve the Bill and I support it.

§ Mr. Niall MacDermot (Derby, North)
I welcome the new Clause. I also welcome the rather sudden change of heart by my right hon. Friend the Attorney-General from what he said in the debate on the Freedom of Publication (Protection) Bill. As I understand it, subsection (3) of the new Clause will mean that it will be for the court to determine whether compliance with the order, if made, would be likely to be injurious to the public interest. This means that it will be for the court, and not for a Minister or for Parliament, to decide what is in the public interest.
The Attorney-General may remember that during our short debate on the Freedom of Publication (Protection) Bill I took him up on his argument that that Bill ought to be rejected because, among other reasons, Clause 8 of the Bill would require to be determined by a court the question whether the public had been injured or prejudiced. The Attorney-General said that was not an issue which could be satisfactorily determined by the courts and that to ask the courts to adjudicate on public interest was what he described as an "unruly horse" upon which the courts were extremely reluctant to pronounce. I urged him to reconsider that matter since I am interested in the Right of Privacy Bill. I am delighted to see that it is thought right that in this instance the court should be free to determine what is the public interest. I hope that the Attorney-General will continue along those lines.

§ Sir David Renton (Huntingdonshire)
Although I welcome the new Clause, I 108 should like the Attorney-General to clear up one puzzling point. There is a cross-reference to Section 21 of the 1969 Act and we must depend on the meaning of the word "property" as described by Section 21 of that Act. May I take it that "property" includes documents of any kind? This would seem to be basic to what the hon. and learned Gentleman has said. If it does include documents of any kind, this would seem to be a welcome departure from the rules relating to Crown privilege.

§ The Attorney-General
I am obliged to the right hon. and learned Member for Epsom (Sir P. Rawlinson) for his approval of the new Clause and the Amendment. If I may deal briefly with the intervention by my right hon. and learned Friend the Member for Derby, North (Mr. MacDermot), he will see that there is a distinction between the issue of public interest in relation to the inspection of a document and the larger and wider matters which we were discussing on the Freedom of Publication (Protection) Bill.
On the point made by the right hon. and learned Member for Huntingdonshire (Sir D. Renton) "property" does in fact include documents of any kind, and the ambit of the Clause is as wide as I think he would wish it to be.

§ Mr. Speaker
I understand that the hon. and learned Member for Dulwich (Mr. S. C. Silkin) does not intend to move his new Clause No. 2 (Interest on damages).

§ Mr. S. C. Silkin (Dulwich)
Yes, Mr. Speaker.