Commons Sitting of 26 October 1979

Preamble
The House met at Eleven o'clock
PRAYERS
[Mr. SPEAKER in the Chair]
PETITION

  Fox Hunting
  Mr. Peter Lloyd: With your permission, Mr. Speaker, I beg leave to present a humble petition which contains nearly 500 signatures, collected by an energetic and determined 13-year-old schoolboy, Colin Lowe, from my constituency. He spent a large portion of his summer holidays on the task.
  The prayer is as follows:
  To: The Honourable the Commons of the United Kingdom of Great Britain and Northern Ireland in Parliament Assembled.
  The Humble Petition of we the undersigned showeth that foxhunting should be banned.
  Wherefore your Petitioners pray that your honourable House will pass legislation to ban foxhunting.
  And your Petitioners, as in duty bound, will ever pray, etc.
  I do not share the petition's objective but I hope that the House will agree that it is an expression of sincere and serious opinion, which should be received by the House and recorded, and in due time given an answer.
  To lie upon the Table.

  STATUTORY INSTRUMENTS, &c.
  Mr. Speaker: By leave of the House, I shall put together the three Questions on the notices relating to statutory instruments.
  Ordered,
  That the draft Social Security Benefits Up-rating (Amendment) Order 1979 be referred to a Standing Committee on Statutory Instruments, &c.
  That the draft Social Security (Maximum Additional Component) Amendment Regulations 1979 be referred to a Standing Committee on Statutory Instruments, &c.
  That the draft Social Security (Earnings-Related Addition to Widow's Allowance) (Special Provisions) Regulations 1979 be referred to a Standing Committee on Statutory Instruments, &c.—[Mr. St. John-Stevas.]

ORDERS OF THE DAY

  CHARGING ORDERS BILL [Lords]
  Order for Second Reading read.
  11.6 a.m.
  The Solicitor-General (Sir Ian Percival): I beg to move, That the Bill be now read a Second time.
  The Bill seeks to reform the law on charging orders. Its general aim is to help both creditor and debtor by providing new ways for the recovery of debts, and it is based on the recommendations of the Law Commission.
  Charging orders belong to that part of our jurisprudence which is concerned less with what the citizen is entitled to and more with when, where and how he is to go about getting it. In the present case, what he is entitled to is payment of the money due under a judgment. The charging order provides one method of enforcing payment. Other methods include execution against goods, attachment of earnings and proceedings in bankruptcy. That of itself is sufficient to emphasise the importance of this small Bill. It is no use whatever people having a right to go to court and obtain a judgment if there are no adequate means of enforcing it, and the Bill will improve the means of doing that.
  The idea for the Bill came from a joint memorandum submitted to the Lord Chancellor by the Law Reform Committee of the Law Society and the Bar in 1971. The then Lord Chancellor—who is again the Lord Chancellor—referred the matter to the Law Commission, which set up a working party in the following year. The problems involved appeared, on analysis, to go deeper than had been at first thought, and it was not until five years later, in 1976, that a report was published, with a draft Bill appended to it. That was presented to Parliament by the Lord Chancellor at that time, Lord Elwyn-Jones, in March 1976. This Bill is substantially the same as the Bill that was appended to that report. Such changes as have been made have been considered and approved by the Law Commission.
  The Law Commission's report is required reading for anyone who wishes to understand what the Bill is intended to

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  achieve. Considering the complexity of the subject, the report is remarkably short. It is only 35 pages long and is clear and helpful. The Law Commission is to be congratulated on an extremely practical set of recommendations. I believe that all hon. Members will join me in expressing that sentiment.
  When the court makes a charging order in respect of an asset of the debtors, it gives the creditor the same security for the payment of his judgment debt as if the debtor had voluntarily granted him an equitable charge. If a creditor obtains a charging order over some land or some shares owned by the debtor, his position is thereby secured. He becomes entitled to have his debt paid out of the proceeds of sale of the land or shares, and he also becomes entitled to force this sale by a further order of the court in order to realise his security. The charging order thus benefits the creditor by giving him security that he would not otherwise have had, and it helps the debtor by taking away the pressure for immediate payment and giving him a short interval in which to put his financial affairs in order. That may be not only to his benefit but to the benefit of that particular creditor and other creditors as well.
  The existing law on charging orders has four serious defects which the Bill aims to remove. First, it allows charging orders to be made in the High Court in respect of very small debts. For various reasons, which I shall come to later, it would be better to have applications for charging orders made in the county court in such cases.
  Secondly, the assets which may be charged are limited under the existing law to land, shares and funds in court. The Law Commission recomended, and the Bill thus provides for, other assets and interests to be chargeable. Thirdly, although the law allows for a charging order to be made when a judgment debt is due, it does not provide for the charging order to be unmade when the debts has been satisfied. The charging order secures the creditor vis-a-vis the debtor, but not vis-a-vis the other creditors. It does not by itself give him the right to retain his security in the event of the debtor's bankruptcy. Those are the four main targets at which the Bill is aimed,
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  and each of the first four clauses is concerned with one of those targets. The other four clauses deal with the power to make rules of court, with interpretation and with consequential matters.
  Clause 1 provides that, as a general rule, where the judgment debt is below the county court limit of £2,000 the charging order should be applied for in the county court. This would mean, under the existing rules of court, that the application would have to be made in the court in the district where the debtor lives. As for judgment debts of over £2,000, clause 1 requires the application to be made to the High Court. Under the present law, charging orders may be, and frequently are, applied for in the High Court although the sum involved is well below the county court limit. Indeed, it has been held that, if the judgment is obtained in the High Court, that is where the application for a charging order must be made, however small the sum involved.
  This is open to criticism for a number of reasons. First, the debtor seldom makes the journey from the country to the Strand in London to tell the court of his circumstances and why it might be unfair to make the order. Secondly, the debtor may be overawed by the thought of coming to London and attending the High Court, or the expense may be prohibitive. Again, he may simply feel that it is not worth while. Therefore, where the sum involved is fairly small and the application is made to the High Court, the charging order is almost invariably granted without a contest. This may be unfair to the debtor, but it may also be unfair to his other creditors. It is already part of the established case law that the court should not grant a charging order to one creditor if it would give him an unfair advantage over the rest. But, unless the debtor attends the hearing, the court will not discover how many, if any, other creditors he has. He is more likely to attend the court when the sum is small if the application is heard in the local county court.
  Therefore, clause 1 is intended to bring charging orders into line with the general principle that debts within the county court limit should be recoverable through the debtor's local county court. Debts above that limit will be recoverable by

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  proceedings in the High Court. Exceptions must be made, and are made, in the Bill for the recovery of maintenance, for the charging of funds in court and for consolidated applications. I do not think that the House would wish me to discuss those in detail at this stage.
  Clause 2 extends the range of chargeable assets in two directions. First, it adds to the existing list of chargeable securities by including, for example, unit trusts. Secondly, it extends the court's powers to charge equitable interests. This is of particular importance in the case of the debtor whose house or other land is co-owned by him and another person. Under the present law, a charging order cannot be made against the land itself, because that is trust property in which the other person is interested. This is as it should be. Nor can it be made against the debtor's individual interest in the land, because, although an equitable interest in land can be the subject of a charging order, the beneficial interest of a co-owner is technically an equitable interest, not in the land but only in the proceeds of sale of the land. This is a major loophole in the law, and clause 2 closes it by providing charging orders to be made on any interest held by the debtor beneficially "under any trust". These words ensure that charging orders can be obtained against the beneficial interest of all those who co-own land and against the interests of all trust beneficiaries.
  Mr. Graham Page: I notice that the list of assets in clause 2 that can be subject to a charging order can be extended by the Lord Chancellor by statutory instrument under clause 3, where the list, under clause 2(2), can be increased. It seems to be a pretty comprehensive list as it stands. Has the Solicitor-General any idea of how it could be increased, and has he anything in mind for a statutory instrument of that sort? On the other hand, has he anything in mind for removing anything from the list, such as a person's home? I gather that there can be a charging order on homes and a sale of the home under the charging order without the matter ever coming back to the court again.
  The Solicitor-General: I shall discuss this with my right hon. Friend in more
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  detail at a later stage. The answer now is specifically "No". The provision to which he refers is there to meet this situation. If the extensions made specifically are not apt to meet the situation, there is that general provision under which the situation may be dealt with without further legislation.
  Clause 3 makes good the third notable deficiency in the existing law by empowering any court which has made a charging order to vary it or discharge it if that is what the interests of justice require.
  Clause 4 tackles the bankruptcy point which was raised in the overseas aviation case of 1963. This was featured in the original memorandum from the Law Society and the Bar in 1971. In order to gain priority over unsecured creditors, the person who obtains a charging order must, under the present law, also apply for a receiver of the debtor's property to be appointed. This is expensive and, in many cases, inappropriate. Clause 4 rewords the relevant provisions in a way that meets this highly technical point and protects the creditor's security without the appointment of a receiver.
  Those are not the only points covered by the Bill, but they are the main ones. The measure is likely to be welcomed by all those who have business before the courts. It modernises and improves an important part of the law. I believe that the House will feel greatly obliged to the Law Commission for its assistance in the preparation of the Bill. I am sure that it will also feel pleased with the Government for bringing the Bill forward so speedily. Therefore, I hope that the House will be happy to give the Bill a Second Reading.
  11.19 a.m.
  Mr. Peter Archer: This is the first opportunity that I have had to congratulate the Solicitor-General on his appearance at the Dispatch Box. I wish him well. He and I may not always be as completely in agreement as we are today. But it may impose a discipline on each of us to recall that when we previously discussed legal matters in the House the only difference was that our places were transposed. I am sure that he will forgive me if I remind him that nothing remains static, as one of the pre-Socratic philosophers, Anaxagoras, I think, has reminded us.

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  Let me set anxieties at rest. We welcome the Bill. It would be inconsistent to do otherwise. It is a measure of law reform in which, as the hon. and learned Gentleman has fairly said, the former Administration played a part. The Lord Chancellor acknowledged that fact generously in another place. Indeed, my noble Friend Lord Elwyn-Jones expressed his welcome for the Bill. So all I need say is that we are grateful to the Solicitor-General for his clear and concise exposition of the matter. However, the fact that that is all I need to say will not inhibit me from saying more.
  There are two sorts of law reform: first, where there is a shortcoming in the legal system that is revealed in a dramatic way by events which evoke widespread shock and for which our lay colleagues understandably demand law reform. Secondly, there are those less traumatic instances which emerge in practice that are so technical that lawyers find difficulty in exciting the passions of their lay colleagues. I believe that both sorts are necessary and that they benefit not lawyers but their lay clients.
  As the Solicitor-General reminded us, the Bill began with a memorandum from the Law Society and the Bar setting out problems which they had encountered in practice. The noble Lord the present Lord Chancellor, in an earlier chapter of his biography, referred the matter to the Law Commission. The Commission considered it with its usual care and learning. As usual, it was not content merely to analyse the jurisprudential reasoning, but representatives of those who might encounter that branch of the law in practice were consulted in order that logic would not overrule practical convenience. I endorse what the hon. and learned Gentleman said in praise of the Law Commission. So he may not be utterly amazed to learn that I have no criticism of the Bill as it has emerged from another place.
  Last Monday I ventured to say in in another context that my most salient characteristic is not an uncritical adulation of the other place. However, on this occasion I cannot fault it. I should like to go one stage further. This is not the first time that this House has paid tribute to the Law Commission—may it not be
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  the last. I believe that measures of law reform are best considered when they are fully researched and consulted on and, where necessary, they are decided upon after proper debate in the House. After all, we are responsible to those who are on the receiving end—the electors. That is a better method of law reform than to leave it to judges to form social judgments with, perhaps, less opportunity for research and in a more emotive atmosphere where a specific case has arisen.
  The Solicitor-General will find that the Opposition will wish to encourage him and his noble Friend the Lord Chancellor to introduce measures of law reform and we shall try not to repay them in any niggardly coin when they seek so to do. I do not undertake to welcome every measure irrespective of its merits. We shall take each measure as we find it. But when meritorious if undramatic measures like this one are brought forward we shall not be in any mood to erect unnecessary obstructions. I would not wish Mr. Justice Kerr and his colleagues to feel that after their devoted work their reports will encounter a bottleneck on reaching Westminster. If they do, it will not be of our making. I wish the Solicitor-General and his Bill well.
  11.24 a.m.
  Mr. J. Enoch Powell: In his brief but competent analysis of the contents of the Bill, the Solicitor-General did not refer—as is common among those who introduce Bills on Second Reading—to the last clause dealing with commencement and extent. However, I wish to do so, with no desire to be tedious to the House. The last words of the Bill are:
  "This Act does not extend to Scotland or Northern Ireland."
  There are a number of Bills of which the extent is limited where the reasons for that limitation appear on the face of the Bill and it is quite clear that its purport is bound to be restricted to one part of the United Kingdom. That cannot be said of this Bill. From the speech of the Solicitor-General, it would follow that the Bill has the purpose of benefiting both debtors and creditors in obtaining results on a judgment of the court.
  Most of us are in the habit, when we see Scotland referred to in these exclusions, of recalling the provisions of the

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  Treaty of Union. We say to ourselves "Well, of course, the law of Scotland is different." However, that does not apply in anything like the same sense to Northern Ireland. In that Province, although the law, in recent decades, has been made by another Parliament, it—rightly—closely and increasingly follows the law of the rest of the United Kingdom, or of England and Wales, as the case may be.
  I do not mean this as a personal citicism of the Solicitor-General, but it is incumbent upon a Minister presenting a Bill of this character, which excludes Northern Ireland, to explain that exclusion and whether the provisions are unnecessary in Northern Ireland. Alternatively, he should explain how it is intended that the same benefits shall be conferred upon that part of the United Kingdom and when that will take place.
  The right hon. Member for Crosby (Mr. Page) raised a point with the Solicitor-General, and a lawyers' agreement to meet in chambers was made between them. I suggest to the Solicitor-General that if he is unable to give me an answer on the Floor of the House he should invite his Northern Ireland colleagues to address themselves to my two questions. First, are the corresponding provisions requisite for application to Northern Ireland? Secondly, how, if so, will that application be made? Will it be made in such a way and with such timing that it cannot be said that a citizen of the United Kingdom is at any disadvantage thereby compared with any other citizen?
  Mr. Graham Page: I should like to take the right hon. Gentleman one step further. I was questioning the alteration in the list of assets on which a charging order can be made. That can be altered by the Lord Chancellor. How will that apply to Northern Ireland?
  Mr. Powell: I think that that measure would probably be all right. The Lord Chancellor of Great Britain is now, and long may he remain, also the Lord Chancellor of Northern Ireland. I hope that, in spirit if not in the letter, that is an adequate response.
  I expected the right hon. Gentleman to refer to a specific point in clause 2, which may or may not assist my argument. In Clause 2(2)(b)(iii) reference is made to
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  "stock of any body incorporated outside England and Wales … being stock registered in a register kept at any place within England and Wales".
  It is possible for a debtor whose case had been before the courts in England and Wales, and from whose assets it was desired by a court in England and Wales to make a charging order, to have no suitable asset other than the stock of a body incorporated in Northern Ireland and not registered in England and Wales.
  The same argument could presumably apply to Scotland. Clearly, if there is to be corresponding and reciprocal legislation for the other parts of the United Kingdom, little or no inconvenience might occur, but perhaps reference to that provision will make my point that if we do have uniform law for different parts of the Kingdom, albeit enacted by different methods, it is essential that, on grounds of equity, it should come into effect simultaneously.
  I hope that the Solicitor-General will pick up that point, if not when he replies, at any rate in the consultations that I hope will result in an answer to myself which will be of interest in the part of the kingdom where I represent a constituency.
  11.31 a.m.
  The Solicitor-General: With the leave of the House, I should like to say a few words in reply. I thank the right hon. and learned Member for Warley, West (Mr. Archer) for his generous observations about myself. I greatly appreciate his good wishes. The right hon. and learned Gentleman was always very courteous and helpful to me when our roles were reversed, and I hope that he will not find me wanting in the same characteristics. As he said, nothing remains static for ever, but some things stay the same longer than others, and we have our hopes in that regard.
  I am sure that the right hon. Member for Down, South (Mr. Powell) will appreciate that the fact that I did not refer to clause 8 does not spring from a lack of interest in, or concern for, Northern Ireland. He has raised general and specific questions of interest and importance, and I hope that he will agree that it would not be sensible for me to endeavour to answer those questions off the cuff. They are too important for that. I shall respond to his request and

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  invite my colleagues to address themselves to those questions.
  Question put and agreed to.
  Bill accordingly read a Second time.
  Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills.)

  LIMITATION AMENDMENT BILL [LORDS]
  Order for Second Reading read.
  11.32 a.m.
  The Solicitor-General (Sir Ian Percival): I beg to move, That the Bill be now read a Second time.
  Limitation of actions is not perhaps the least technical matter of our law, but, like another technical aspect that we have just discussed, it is of importance not just to practising lawyers but to all whose business takes them into our civil courts.
  The prime object of the law in this area is to prevent the bringing of stale actions, to encourage plaintiffs to start proceedings as early as possible or not at all and to relieve potential defendants from the burden of defending claims on which the dust has settled.
  Plaintiffs must have a substantial time to enable them to make investigations, take advice, and so on, but if they were allowed to delay too long before issuing their writs, defendants might find that so long had passed that they could no longer find the witnesses or documents that would have helped them to resist the claims made against them. We are dealing with practical matters on which we have to try to hold a reasonable balance between the differing interests of the parties.
  The Bill implements most of the recommendations contained in the Law Reform Committee's final report on the law of limitation. The committee, which consists of a small number of judges, academics and practising lawyers, continues to make a valuable contribution to law reform and can boast implementation of 14 of its 21 reports—15 if the Bill becomes law.
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  I should like to take this opportunity to express appreciation of the work done by the committee and, in particular, of its detailed consideration of the law of limitation. That was an extremely worthwhile exercise, which has borne fruit in the Bill.
  I know that the committee is greatly helped in its deliberations by the evidence and advice that it receives from a number of outside persons and bodies. The practising profession has rendered valuable assistance, and the Law Society, as will be apparent from the debates in another place, took an active and helpful part in the passage of the Bill through the other place.
  Apart from the amendments in schedule 1, each clause implements one of the recommendations of the Law Reform Committee. I do not propose to describe each clause in detail, as I hope that hon. Members will find that they are adequately described in the explanatory and financial memorandum. However, I feel that clauses 1, 2, 6, 7 and 8 call for further elaboration.
  Clause 1 deals with the difficulty that has arisen in the law relating to loans—typically loans between members of a family or friends. The present law in England and Wales is that if the parties to a loan agree that the borrower is to pay the money back when he is in a position to do so, the debt is nevertheless treated as one which can be recovered immediately.
  The lender's cause of action accrues at the time when the loan is made, and the operation of the present law of limitation is such that he will lose his right to recover his money six years later. If, for example, an aunt lends money to a nephew and leaves the loan outstanding for six years, her right to recover it will have vanished completely.
  The effect of clause 1 is that time would not begin to run against the aunt until she had made a written demand to her nephew asking for repayment. That is a solution which seems more appropriate to relatively informal arrangements of the sort that prevail in some family circumstances.
  Clause 2 implements the Law Reform Committee's recommendation that where property is stolen the owner's rights against the thief should never be barred

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  by lapse of time. The present law is that an owner of stolen goods loses his rights of recovery, not only against a subsequent purchaser but against the thief, six years after his property is stolen. There is no justification in principle for giving a thief good title to property, as against the owner, at that or any other date. The clause remedies that injustice and contains protection of the sort suggested by the Law Reform Committee for a subsequent purchaser for value who has acted in good faith. He will be protected six years after his purchase.
  The clause was altered by a Government amendment in another place to simplify it as far as possible. It is still somewhat complex, but that is perhaps unavoidable in view of the need to distinguish between rights as against thieves, purchasers for value and other persons who may convert the goods.
  Clause 6 provides that no acknowledgment or part payment made in respect of a claim after the expiry of the relevant limitation period shall operate to revive a remedy that has already become statute-barred. That will reverse the existing rule that such acknowledgment or part payment can start time running again, for example in favour of a lender.
  It was suggested in another place that the words "confirmation or promise" in the new section 23(5) of the Limitation Act 1939 are unnecessary. The Government have considered that point and an amendment to delete the words will be tabled in Committee.
  Clause 7 is a restatement in modern language of the extension of time conferred when there has been fraud or what is presently known as "concealed fraud" on the part of the defendant, or mistake on the part of the plaintiff. The committee found that the language of the Limitation Act 1939 no longer reflected the principles on which the courts operated when determining whether there should be an extension of time in such cases. It suggested that the section should be revised in order to express more acurately the present case law. This difficult exercise—all who have considered it appreciate that it is very difficult—has been attempted, and I hope that the House will consider that success has been achieved in clause 7.
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  The new provision confers an extension of time where there has been a deliberate concealment of a fact relevant to the plaintiff's right of action. Deliberate concealment includes a deliberate commission of a breach of duty in circumstances in which the breach is unlikely to be discovered for some time.
  One change will be proposed by the Government. In view of representations, it has been decided that it is not necessary for the Bill to contain in the new section 26(2)(b) of the principal Act, inserted by clause 7, a requirement that the court should be satisfied that it would be unjust to allow the defendant to rely on a defence of limitation in a case where there has been deliberate concealment of a relevant fact. Consequently, an amendment will be moved in Committee to delete that paragraph.
  As my noble and learned Friend explained in another place, save in so far as clause 7 deals with concealed fraud and mistakes, there is no provision in the Bill relating to the difficult question of latent damage. The Law Reform Committee considered recent cases dealing with defects in buildings which come to light after a long time. It reached the conclusion that legislation was probably not now appropriate because the law on latent damage was still in the early stages of development in the courts. Any attempt to provide a specific solution to the difficulties that recent cases have shown to exist would involve amendments to the substantive law on negligence and would therefore probably be unsuitable for this Bill. Although concern has been expressed by both the Law Society and the Bar, I believe that they recognise the intricacy of these questions and agree that they do not admit of an easy solution. Accordingly, he Government have decided not to attempt a legislative solution but to await further judicial development.
  Clause 8 deals with some procedural aspects of limitation by making comprehensive provision for limitation where it is sought to make new claims in pending actions. As a result, the addition of a new cause of action or a new party will be allowed after the expiry of the limitation period only in those circumstances set out in subsections (5) and (6)

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  I have mentioned two amendments that the Government propose to put forward. In addition, I think that the Committee will be asked to consider a number of minor amendments to facilitate the much-needed consolidation of the statute law relating to limitation, work on which has now reached an advanced stage. I shall, of course, do my best to see that the right hon. and learned Member for Warley, West (Mr. Archer) has copies of those amendments as soon as the form in which it is proposed to put them forward has been decided. I do not think that there is anything controversial about the Bill. The right hon. and learned Gentleman and his right hon. and learned Friends have played such an active and helpful part in bringing it to its present stage that I expect that we can co-operate in seeing that it reaches the statute book at the earliest possible moment in the best possible form.
  I appreciate that the point of substance raised by the right hon. Member for Down, South (Mr. Powell) on the previous Bill may also arise on this Bill. However, I think that it would be wrong for me to anticipate what he might say about that, and I leave it to him.
  This is a small but useful Bill, dealing with what might be descrived as a technical area of our law but one of practical importance to litigants, and I commend it to the House.
  11.46 a.m.
  Mr. Peter Archer: I can confirm that this is another non-controversial Bill, if only because it is one in the ancestry of which the former Government shared. I fear that it is another Bill which will not lead to dancing in the streets. It is somewhat technical. In another place, the Lord Chancellor called it a bundle of Committee points.
  The Bill is an attempt to grapple with a number of problems which, while they will not affect the majority of people, may make a substantial difference to a few at some time. These are difficult points because when someone has to suffer hardship it is sometimes difficult to know where to give judgment.
  The problems have been discussed by the Law Revision Committee under the chairmanship of Lord Justice Orr. We are very grateful for the care and sensi-
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  tivity with which it considered them. I am not sure that I should necessarily have gauged every trembling balance in exactly the same direction as the committee did, but the committee gave the problems more consideration and greater expertise than I could have done, and I do not seek to differ from its conclusions. Like the Law Commission in connection with the previous Bill, it has not allowed legal logic to dominate practical common sense.
  I am grateful to the Solicitor-General for indicating his intention to move in Committee certain amendments to give effect to undertakings given in another place and for his kindness in agreeing to give me warning of the amendments. I may be able to reassure him by saying that I have not yet seen or heard anything that disposes me to be critical of his intentions, though I hope that he will not regard that as a firm undertaking.
  I do not seek to delay the business of the House by repeating what I said in the previous debate. I wish the Bill well.
  11.48 a.m.
  Mr. Richard Alexander: I am very much obliged to my hon. and learned Friend the Solicitor-General for his agreement to delete the new section 26 (2) (b) which would have been inserted in the principal Act by clause 7. In my view, and I am sure in the view of all my hon. Friends, the law should be certain. It caused me considerable concern when I saw that it was the preliminary intention that one had to prove that something was unjust.
  How does one prove injustice? It is a concept that is not often found mentioned in the statutes. For example, is it unjust to keep me here today on a two-line Whip? Is it unjust to my constituents that I should have to be here when they would normally have expected me to be in the constituency on a Friday? How does one define "unjust"?
  Because of these difficulties, I am glad that my hon. and learned Friend proposes to remove that subsection. I believe that it is dangerous to introduce into the law a concept that can be decided only when one comes before a judge. It would have been a minefield—
  Mr. Archer: Would not the hon. Gentleman agree that the essential point is that if a fact relevant to the plaintiff's

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  right of action had been deliberately concealed from him, it could hardly be just to preclude him from relying on that fact?
  Mr. Alexander: That was exactly my point, that the injustice already existed through the deliberate concealment, and it would have been unfortunate for the legal adviser to have to tell his client whether he thought that a judge would or would not find that something was actually unjust. So, although my hon. and learned Friend is to withdraw the subsection, I hope that we shall not see that word used again unless it is vital. Speaking as one who has practised as a lawyer for many years, I know the curse that we have in trying to advise clients how we think a judge will deal with a case when the matter gets before him. If we can make the law certain, we shall have made some improvement for our clients and for the nation.
  I am obliged to my hon. and learned Friend for the sensible way in which he dealt with this subsection. If he is not aware of it, he already has the support of the Law Society that he should withdraw it in this way.
  11.50 a.m.
  Mr. J. Enoch Powell: Repetition can be tedious, and it can be tedious even to the point of being disorderly in this House; yet paradoxically it is sometimes only by repetition that any political result can be obtained.
  The learned Solicitor-General anticipated that I might revert to the point implicit in the extent clause of the Bill, but I do so in a slightly different context from that of the Bill from which the House has just taken leave.
  This Bill descended to us from another place shortly before the recess. I wrote to the learned Attorney-General when it arrived saying that I was troubling him in his capacity as Attorney-General for Northern Ireland. I inquired how far the amendments proposed to the 1939 Act would be relevant to the corresponding Northern Ireland Act, the Statute of Limitations Act 1958. I added that
  "it occurred to me that if the latter Act required amondment, it might be convenient for these amendments, even if they had to be made by Order in Council, to be considered in the same context."
  Even Law Officers of the Crown have to take a short holiday in the summer.
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  and more than two months elapsed without an acknowledgment of my letter. But when I drew the attention of nodding Homer to this lapse, I received a most courteous and helpful reply from the Attorney-General on 12 October. He pointed out what the Solicitor-General did not say this morning in moving the Second Reading, namely, that there are really two subjects in the Bill which have little or no connection with one another. One is clause 10 under the miscellaneous and supplementary subdivision. The other is the amendments to the Limitation Act, with which the speech of the Solicitor-General was wholly concerned.
  I deal first with clause 10 and its application in Northern Ireland. The Attorney-General said:
  "clause 10 of the Bill amends the Administration of Estates Act 1925. There is a Northern Ireland Administration of Estates Order on the stocks which was published as a proposal last year and which will be laid in the foreseeable future, and any provision corresponding to clause 10 should be included in that Order."
  I was able to locate the order, which had been tabled in the form of a proposal at the end of 1978, together with its explanatory memorandum, but a diligent search revealed, at any rate to my unlearned eye, no corresponding provision.
  However, it so happened that this very morning there arrived the print of the draft order, which is amongst the "other orders" on the Order Paper. Sure enough, that contains in article 36 a corresponding provision. So, instead of raising a query, I am in this part of my speech expressing my satisfaction to the Attorney-General for having achieved simultaneously this improvement of the law on both sides of the North Channel. I will not be so naughty as to speculate whether this fortunate result had any connection with the correspondence which had passed between me and the Attorney-General.
  I come to the remainder of the Bill. The Attorney-General said:
  "The view is taken that it is not appropriate to extend the above Bill to Northern Ireland",
  but he added that
  "provisions corresponding to this Bill"—
  that is, to clauses 1 to 9—
  "will in due course be included in Orders in Council under the Northern Ireland Act 1974."

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  At this stage of the development of the legislative relationship between Northern Ireland and the rest of the kingdom I am not disputing, where the principal Act as it were is a different one in Northern Ireland, that it may be convenient for the assimilation or amendment to take place by way of Order in Council. Nevertheless, unless a specific interpretation is attached to the words "in due course", I do not think that the matter should be quite as vague as that. When legislation of this kind which it is intended to apply to Northern Ireland is introduced in this House, that fact and that intention should be announced specifically. That is only fair to those who have in any way to deal with the law in that part of the kingdom.
  I also submit that although the relevant Order in Council could not and should not anticipate the legislation in this House, we should have reasonable assurance that its effectiveness will be simultaneous with the effectiveness of the amendment of the law which this Bill brings about.
  There is at least one provision of the Bill which I do not regard as so relatively unimportant as both hon. and learned Members speaking from the Dispatch Boxes seemed to think. That is the alteration of the effect of limitation in regard to the thief in a case of theft. I should have thought that it was self-evident that it would be wrong that this alteration should be made in one part of the kingdom and not simultaneously in the other part when we have the legislative power to do so and when there is no other legislative source which can do it except this House. That can happen—and this is my plea—only if the corresponding Order in Council for Northern Ireland is ready to be taken soon after the relevant Great Britain or England and Wales legislation is disposed of, and this naturally would have to be foreseen well in advance by officials on both sides of the water.
  The Solicitor-General intimated one specific amendment and several others unspecified which he hoped the House would make before the Bill received the Royal Assent. Clearly it would be absurd for a Northern Ireland Order in Council to be before the House before the final form that the legislation for England and Wales was to take was known and
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  the Royal Assent had been given. On the other hand, clearly it is desirable that as soon as possible after that and before the bringing into force of this legislation the corresponding Order in Council for Northern Ireland should have gone through its stages, should be before the House in draft and should be approved by the House so that simultaneous application can be achieved. In many cases, this would mean that the proposal stage would need to overlap the legislative stages in the two Houses of this Parliament. It would mean that, as with the matter in clause 10 to which I referred previously, the proposals would not necessarily—what is the point of proposals it they do?—represent the final form of a draft order as it comes before this House.
  I hope, therefore, that the hon. and learned Solicitor-General will ensure that these points are taken into account by his Northern Ireland colleagues. I hope that if he cannot give me the assurance now—though I trust he can—that simultaneity of application will be achieved, he will nevertheless impress its desirability upon his colleagues and that these improvements—they are real improvements—will affect simultaneously all citizens of the United Kingdom, wherever they may be.
  12 noon
  Mr. Graham Page: I should like to thank my hon. and learned Friend the Solicitor-General for the points that he made about the three sets of amendments. He mentioned amendments that would be required for the purpose of consolidation. I am delighted to hear that consolidation is on the stocks.
  The Bill is what I call a paste and scissors amendment of previous statutes. That means that it is difficult, as it stands, to interpret and to apply to any particular case, so the sooner we get the consolidation the better. I am sure that we shall all welcome any amendments necessary to achieve that.
  The second amendment that my hon. and learned Friend mentioned was to clause 6. That is the clause that deals with the effect of acknowledgment or part payment. My hon. Friend the Member for Newark (Mr. Alexander) thanked the Solicitor-General for adopting a proposal of the Law Society to delete the last two

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  words of the addition to the existing legislation, but I wonder whether this amendment is necessary at all. My understanding is that if a debt is acknowledged during the six-year period of limitation, that extends the period. Yet, strangely enough, if we accept this clause as it stands and that acknowledgment is made when the six years have expired, it does nothing to revive the debt or to revive the right of action. That seems illogical.
  I should have thought that the present law was sensible and that the time could run from any acknowledgment, whether that acknowledgment was during the statutory period or afterwards. What is the difference in substance if the debtor acknowledges? Surely the time could run from that point. I should have liked to hear the Solicitor-General say that he intended to remove clause 6 altogether.
  The second amendment that my hon. and learned Friend mentioned—again initiated by the Law Society and very welcome—removes subsection (2) (b) of clause 7, the one that deals with the fraud or mistake and the period that should run from the discovery of the fraud or mistake. From reading the debates in another place, it became evident that paragraph (b) was unnecessary. It was not only unnecessary, but it would have encumbered action by requiring another set of proofs to be put before the court. This amendment will simplify the action and will not worsen the law.
  As I read the Bill, clause 7 is the only clause which deals with when the period of limitation starts in cases of latent damage. My hon. and learned Friend said that it was not intended to deal with this subject at all. It is a subject that was discussed by the Law Reform Committee in its report. It seems to me to be one of the most important subjects in connection with the limitation of period in which action can be brought. As I understand the position, my hon. and learned Friend put before the House what I would describe, with all respect, as the extraordinary proposition put before another place by the Lord Chancellor to the effect that the law was uncertain and that we must therefore not legislate on it but leave it to the litigant to get it legislated upon in court. That is to say that we are cowards enough not even to try to make the law certain in this respect
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  but propose to leave it to the individual person, at his own trouble and expense, to try to get the courts to decide the law for us. Surely it is right that we should legislate in those cases.
  Mr. Archer: I am grateful to the right hon. Gentleman for giving way. I would assent to his view that it would be deplorable to leave it to the individual litigants and the judges to ascertain what the law is before we undertake reform. But cannot something be said for seeing how the law is operating in particular cases before we make up our minds about how we want to legislate? Occasionally, the kinds of situations to which the present law gives rise are not in our minds if we legislate too early.
  Mr. Page: I could not agree less with the right hon. and learned Gentleman on this point. It is our job in Parliament to settle uncertainties in the law and not to leave it to litigants to pay for making them certain by making them go through the courts. My proposition applies particularly in this case. The Law Reform Committee was divided on this matter. The majority wanted to leave the law as it stands, so that the period ran from the accrual of the damage. A minority wanted the courts to have a sort of residual discretion to say whether it was fair that the period should be extended or reduced or something of that sort. This would have left the law extremely uncertain. I, for one, come down on the side of the majority.
  We should at least try to get some certainty by saying that the period runs from the date of accrual of the damage. We are then, of course, left with the uncertain position of when the damage does accrue. I understand that it accrues at the date of the discovery ability of the damage, the date on which a person ought to have discovered the damage or does discover the damage. Cases on that are where the uncertainty arises. The law is left vague at the moment because the law of both contract and tort is applied, and if a plaintiff fails on one he resorts to the other. Between the two, the courts have been very indefinite in their decisions. My view is that it is our duty and responsibility in this House to try to make certainty out of that. We should not sit back and look out of the window while the courts try to decide the matter. I am

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  not saying that the courts are not capable of deciding, but it is wrong to ask the individual litigant to pay for the job that we ought to be doing.
  12.9 p.m.
  The Solicitor-General: With the leave of the House, I should like to comment on one or two of the points raised by right hon. and hon. Members. I am greatly obliged to the right hon. and learned Member for Warley, West (Mr. Archer) for his observations. As he indicated, there may be more to discuss in this Bill. I look forward to that discussion in the spirit in which he put forward those matters.
  I am grateful to my hon. Friend the Member for Newark (Mr. Alexander) for his commendation about what we propose to do about subsection (2)(b). I am sure that that is right. One has only to look at the subsection to see how unattractive it is to suppose that where it was established that a plaintiff's right of action had been deliberately concealed from him by the defendant the court would still have to consider whether it was unjust to allow him to rely for his defence upon the expiry of the period of limitation. One would think that most people would say that once the requirements of paragraph (a) have been established it follows that it is unjust to allow him to rely on the period of limitation.
  The right hon. Member for Down, South (Mr. Powell) raised a number of new points. He spoke of the evils of repetition. I start with a little repetition by repeating the regrets already expressed to him for the fact that he did not receive an answer to his letter at an earlier date.
  I am happy that the right hon. Gentleman said that he is now content with what is being done about clause 10. I ask him to remember that I did not leave out a reference to it because I thought that it was unimportant. I did so because I was going to refer only to the five clauses to which I did refer, because I thought that in those cases it was right to add a little to the explanatory and financial memorandum. However, we are glad to hear what the right hon. Gentleman said on that.
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  If I gave the impression that I regarded clause 2, dealing with the running of time in the case of theft, as less than extremely important, I gave the wrong impression. It is of the greatest importance. There is no justification whatever for allowing time to run in favour of a thief.
  Mr. J. Enoch Powell: In that case, I am sure that I shall have the assistance, if it is necessary, of the Solicitor-General in impressing upon his colleagues the view that that injustice should be put right simultaneously throughout the kingdom, whatever the precise technical methods that we have to use to do that.
  The Solicitor-General: The general point that the right hon. Gentleman made related to the desirability of ensuring that the law is the same throughout the United Kingdom and that any changes come into operation simultaeously, so that it is not only the same but the same at all times. I shall certainly invite my colleagues to address their minds to the points that he has raised.
  The right hon. Gentleman will know that there is an additional consideration to be borne in mind—that Northern Ireland has its own law reform machinery. It has similar committees to those which we have here, consisting of judges, academics and practitioners, and I do not think that he would wish that that should cease to happen. It means that we have the assistance of similar bodies across the water which can consider what we are doing here and can also take into account any special matters which the right hon. Gentleman may think should be considered and ask whether there is any circumstance which provides a good reason for doing differently.
  At all events, so long as we have that machinery, it must be used. It would be the height of folly to have it and not to use it. So that means another consultation process to be followed in the achievement of what the right hon. Gentleman desires.
  Mr. J. Enoch Powell: I am obliged to the Solicitor-General for making that point, and I apologise for interrupting him again, which I do simply to say that what he has just said emphasises the importance, in the conditions which have

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  existed since 1972, and certainly as they are now developing, of even closer co-ordination between those who are considering the reform of the law in Northern Ireland and the law reform authorities in the rest of the kingdom.
  The Solicitor-General: Yes, but I am sure that my right hon. and hon. Friends will have that in mind as well. I thought that I should mention these processes because, although the right hon. Gentleman is aware of them, other hon. Members may not be.
  In considering these general questions, one should remember that these special machineries are available to ensure either that specific proposals come up through those channels or that the application of measures which it is proposed to apply to the rest of the United Kingdom, or to specific parts of it, are considered by specialists in the law and circumstances relating to Northern Ireland before they are in fact implemented. All of this has to be co-ordinated—one does not want to see these processes changed—to achieve the object which the right hon. Gentleman wishes to see.
  My right hon. Friend the Member for Crosby (Mr. Page) mentioned clauses 6 and 7. He will know that the question whether any change in this area was required was aired in another place. I understand that the Law Society takes the view that, although it would initially have preferred that nothing at all was done, it is glad that this one change will be made and recognises that there are two sets of arguments here, pointing in opposite directions. On the whole, the Law Society is content with what it is intended to do. However, this too can be raised in Committee, when no doubt all the arguments can be fully deployed again. I can only assure my right hon. Friend that if they are, they will be carefully considered.
  I thought, if my right hon. Friend will forgive me, that on clause 7 he was less than fair. He has described what my noble Friend said and what I am saying in this way: that the law is uncertain and that, therefore, we must not legislate but should leave it to litigants to clear it up at their own expense. I thought
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  that he would have known both of us long and well enough to know that nothing could be further from our minds.
  I would adapt his words in this way: yes, the law is uncertain and, therefore, we must consider the best means of ensuring certainty, but the one thing that we must not do is to legislate for the sake of legislating, and we must not legislate unless by so doing we can make it more certain and at the same time ensure that it is just. Nobody has yet managed to put forward a formula for meeting those tests, which in my book are the practical tests.
  The minute any of us can put forward a formula which satisfies those two tests, wherever that formula may come from, I have no hesitation in saying that it would have my support and, I imagine, the support of all who recognise that the position is unsatisfactory. But I stress that it is no good, when a position is unsatisfactory, simply saying "We must do something." It is no good doing something unless that something is better.
  The right hon. and learned Member for Warley, West will know whether I have got my terminology right, but I think that there is a figure of speech called a syllogism, the classic example of which was, I think "We must do something. This is something—so we must do this." It sounds splendid, but, of course, it contains a fallacy. I think that the argument of my right hon. Friend the Member for Crosby proceeds on that fallacy.
  Yes, we must all bend our minds to finding ways of improving the situation, but no one has yet found a way which would be of any benefit. One of the reasons for that is the fact, to which my right hon. Friend referred, that in this field—I am obliged to him for bringing this into the argument—we are not talking just about limitation. The difficulty, indeed, does not arise directly in connection with limitation or out of any provisions as to limitation. It arises out of either the uncertainty or the unsatisfactory nature of the law as to when the cause of action occurs. That is not something that can be lightly dealt with. It

  795
  requires the most careful thought it we are to get it right.
  I conclude by inviting the assistance of all concerned in helping us to do what I am sure everybody wants to do—to find a sensible solution to that difficulty.
  Question put and agreed to.
  Bill accordingly read a Second time.
  Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

  LIMITATION AMENDMENT BILL [LORDS]

    ADJOURNMENT
    Resolved, That this House do now adjourn.—[Mr. Le Marchant.]
    Adjourned accordingly at nineteen minutes past Twelve o'clock.