HL Deb 04 August 1920 vol 41 cc744-75

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (LORD BIRKENHEAD)

My Lords, I invite your Lordships' attention to the consideration of a subject very far removed from that which has just been under debate. It is a subject technical in character and yet one, as may readily be understood, of the greatest possible importance. Many wars have been followed by Acts of Indemnity and the crises which arc produced by wars are almost certain, in the course of them, to lead to the commission of acts the legality of which is at least questionable and which must be put right when peace arrives, if confusion and public misfortune are not to follow. If that is true, as it undoubtedly has been true, of other wars, it must be more true of a struggle like that from which we have recently emerged; and for Many reasons. In the first place, the scale and the intensity of the struggle in which we were engaged involved, as everybody knows, the whole life of the nation and affected, directly or indirectly, almost every individual in the nation. In the second place, the sustained intensity of the submarine crisis made it indispensable, in the anxieties as to the sufficiency of our food supply and raw materials, that the Government should assert from time to time the most direct and drastic control over the available supplies of those commodities.

In these circumstances a vast complexity of transactions grew up. It was, of course, necessary that steps should be taken to determine the principles upon which compensation should be paid, as many of those who claimed it were unable to postpone their claims until the conclusion of the war; and, now that the war has concluded, it becomes necessary that an attempt should be made, in a general measure, to arrive at a solution of those questions which is honourable. It is the hope of the Government that with the Amendments which were made in the Commons, and with any suggestions they may be so fortunate as to receive from your Lordships, they have, on the whole, not completely failed in their attempt to produce a measure which will be acceptable in the main affairs and which will at the same time solve the difficult problems which, imperatively and at an early date, require solution.

The simple method in which I can attempt to explain the Bill will, I think, be to take it and to make such observations as seem desirable upon the more important provisions which it contains. In Clause 1 (1) it is provided that no action or other legal proceeding whatsoever, whether civil or criminal, shall be instituted in any Court of Law in respect of any act done during the war before the passing of this Act, if done in good faith, and done or purported to be done in the execution of his duty—and so forth—by a person holding office under, or employed in, the Service of the Crown in any capacity, whether naval, military, Air Force or civil. I omit the words that are not essential to grasp the main purpose of this provision. The scheme of the Act has been to lay down the principles which underlie the restrictions on the taking of legal proceedings against persons acting in good faith—widely ire the first subsection of Clause 1, then introducing a large number of exceptional cases, which of course must be safeguarded, in the form of provisos to that subsection, and then, more materially and substantially, by the provisions of Clause 2.

The provisos of subsection (1) are to be found on page 2 of the Bill. I need not deal with proviso (a). One or two of the other provisos require a word of explanation. It is provided under proviso (b) that this subsection shall not prevent the institution or prosecution of proceedings in respect of any rights under, or alleged breaches of, contract, if the proceedings are instituted within one year from the termination of the war or the date when the cause of action arose, whichever may be the later. That is meant to except cases where proceedings are founded upon a right alleged under contract. Proviso (c) permits the survival of proceedings founded on negligence in respect of damage to person or property elsewhere than in a foreign country. Such a case might be where the proceedings are pending or contemplated, for instance, against the servants of the Government who have been driving a motor car which has caused injury. Proviso (d) provides that the subsection shall not prevent the institution or prosecution of civil proceedings in respect of damage to persons or property in any foreign country, and it lays down the conditions under which this exception becomes operative. This is not a very important proviso, and it is perhaps sufficient to say that it is inserted as the result of conventional arrangements, to which the French and the Belgians are equally with ourselves parties, and that it is contemplated that a clearing house should be established in respect to those claims in the three countries. Sub-clause (e) deals with relatively small matters—proceedings respecting the validity or infringement of a patent, and I think I need not specifically deal with that.

Subsection (3) provides that a certificate by a Government Department that any act was officially done shall be accepted as sufficient evidence. Both Clause 1 (1) and Clause 1 (3) are, I believe, closely modelled upon the provisions of the South African Indemnity Act. Subsection (4) provides that "Nothing in this section, shall prejudice or prevent the institution or prosecution of proceedings for giving effect to a final judgment given before the passing of this Act by any Court of final resort or by any other Court where the judgment at the passing of this Act is not then the subject of a pending appeal." That subsection is intended to safeguard the position of many litigants who asserted while the war was actually pending, and successfully asserted, their view of various legal controversies that arose in opposition to the Crown. Where such litigants have, before the passing of this Bill, succeeded in the Law Courts, no attempt is made to deprive them of the fruits of their victory.

Clause 2 deals with very important matters. It deals with the position and the proper compensation to be given to parsons whose ships, or accommodation in whose ships, has been requisitioned at any time during the war, such requisition either purporting to be founded upon the Prerogative or on a power under the Defence of the Realm Acts. The second subject of the greatest possible importance is dealt with by subsection 1 (b), and I think that, as the words have been construed and are technical, I had better read those words— Notwithstanding anything in the foregoing section restricting the right of taking legal proceedings, any person not being a subject of a state which has been at war with His Majesty during the war and not having been a subject of such a state whilst that state was so at war with His Majesty— (b) who has otherwise incurred or sustained any direct loss or damage by reason of interference with his property or business in the United Kingdom through the exercise or purported exercise, during the war, of any prerogative right of His Majesty or of any power under any enactment relating to the defence of the realm, or any regulation or order made or purporting to be made thereunder, shall be entitled to compensation in respect of such loss or damage. What Clause 2 (1) in effect provides, therefore, is that, in spite of the general restriction which is contained in Clause 1 (1) of the Bill—the two principal cases where, in other words, a ship or part of a ship has been requisitioned—or where a subject has incurred or sustained direct loss or damage by reason of interference with his property or business in the United Kingdom, compensation shall be payable to such person.

Then the Bill proceeds to deal with the question as to the principles on which, and by what tribunal, the compensation shall be determined. Before I come to the principles it is proper to make one or two observations as to the tribunal. It is provided, in the first place, that there shall be an appeal to the Court of Appeal in England, or, in the case of a Scottish matter, to either Division of the Court of Session on a point of law, the decision of the Appellate Court in either country to be final unless the Court itself gives leave to appeal to the House of Lords.

Now I come to the principles in relation to which it is provided that the compensation shall be assessed. The following paragraphs require careful consideration and perhaps a word or two of explanation. The first is in these terms— Where under the Defence of the Realm Regulations or any order made or purporting to be made thereunder, any special principle for assessment of compensation or the rate thereof, is contained in the Regulation or order, compensation shall be assessed in accordance with that principle or rate: Provided that nothing in this provision shall prevent the tribunal in assessing compensation from taking into consideration any circumstances which, under the regulation in question, it would have been entitled to take into consideration. That principle is the result, and I am inclined to think the necessary result, of the practice, that was equally necessarily adopted over so long a period of the war, of arriving at some principle on which compensation should be assessed. Your Lordships will remember that when the submarine campaign was in its full vigour and intensity there was the gravest and the most completely founded anxiety as to whether or not it would really be possible, with the existing and available supplies to support the population with food and at the same time to supply in another branch of our anxieties the necessary raw materials for our industries. Under those circumstances, and by universally recognised necessity, Controllers were set up, and practically the national stocks of many of the most vital commodities in the country were placed under control and the prices at which they could be sold were regulated. How necessary this process was I think will be obvious at once to your Lordships.

Nobody ever disputed that the reasonable basis for compensation is the adoption of market value, and, in the early days of the war and before we obtained the experience which the war brought, this was the method that was, in fact, adopted. And for the first few months of the war property requisitioned was paid for at market rates. Nor was the practical difficulty for the purposes of a great war discovered until the war had been in progress for some considerable time. As it progressed and requisitions by the Crown increased, and as the submarine campaign developed, market prices rose to extreme heights, and in course of time market values became both extravagant and artificial. For instance, it is obvious that if there are certain commodities that are essential, those persons who are very rich would procure them at whatever price it may be necessary for them to pay. Therefore the most extraordinary and almost incredible fluctuations in values took place. No one, I think, doubted then, and I think no one has doubted since, that it became necessary to devise a new basis of assessment, and, after due consideration, the principle adopted for the payment of requisitioned property was laid down in the Defence of the Realm Regulation 2B, and the principle adopted was cost price plus the rate of profit usually earned before the war. This Regulation was issued on February 23, 1917, and thenceforth compensation was calculated upon that basis. No one, I think, will condemn this principle, although undoubtedly it may have caused hardship in a few cases; for instance, one trader might have had his goods requisitioned and have received only the cost price plus the pre-war rate of profit, whereas another trader who was fortunate not to have his goods requisitioned was free to obtain any price he could get. Such disparities were, of course, inevitable. But the assessment of compensation on the principle that was laid down in this recommendation has had the general effect of providing a reasonable rate of compensation to owners of property and goods requisitioned, and has also and incidentally had the effect of saving enormous sums to the Exchequer. I apprehend, therefore, it is probable that no one will quarrel with the claim that is made that where the Defence of the Realm Regulations have adopted special principles for the assessment of compensation we should not at this period attempt to re-open the cases.

The second sub-clause provides that "where the payment or compensation is claimed under paragraph (a) of subsection (1) of this section, it shall be assessed in accordance with the principles upon which the Board of Arbitration constituted under the proclamation issued on the third day of August nineteen hundred and fourteen has hitherto acted, which principles are set forth in Part I of the Schedule to this Act." Stripped of technical language, what happened in the case of ships may be stated quite shortly. It became necessary to requisition ships upon an enormous scale. A Court of Arbitration was set up, under the presidency of a most accomplished and experienced Judge in maritime, and, indeed, all other matters—a member of this House, Lord Mersey. They gave the most extended and careful attention to this matter, and evolved a practical method of dealing with these problems which I think I am entitled to say has been loyally accepted as reasonable by the overwhelming number of shipowners, which has secured to shipowners compensation for their exertions and activities that is certainly not inadequate, and at the same time has effected immense and incalculable economies in the finances of the country.

Let me summarise, first of all, the methods which they employed and the result of those methods. They adopted a certain rate of freight which, in principle, was reached in the way I mentioned when I was explaining the Defence of the Realm Regulation. They set themselves to discover a rate of freight which appeared to them in all the circumstances of the case to be a reasonable one. This was known as the Blue Book rate, and they followed that during the whole of the war. It is essential at this stage for your Lordships to understand the situation confronting the Government when the policy contained in this Bill was decided upon. The rates allowed, as I have said, have not been seriously challenged, in my judgment and observation, by the majority of the shipowners; in fact, I have the explicit assurance of the Controller of Shipping upon that point. The minority has, nevertheless, expressed dissatisfaction and had manifested an intention of challenging the legality of the basis upon which the decisions of the Court of Arbitration have been founded; and the decision of this House in the de Keyser's Hotel case has undoubtedly affected very considerably the whole legal basis of the action of the Crown during the relevant period of the war. If the claim of the minority of the shipowners (which, as I have said, is founded in my humble judgment entirely upon the fictitious increase in the price of ships, which was itself a fruit of the war and cannot, in my opinion, be admitted) was allowed, the consequences would be obvious. The majority of the shipowners would say, We are perfectly content not to embarrass the Government; at the same time if the minority, who have given all the trouble they can and made claims which we are prepared to admit are not reasonable, are to be paid, we see no reason why they should be treated better than we are.

Those who have helped me in this matter have had some correspondence with Lord Mersey upon this point. He greatly regrets that he is unable to be here to recommend this particular part of the proposals to your Lordships with all the immense experience he has of the matter. But either his Court of Arbitration or else the Shipping Controller has supplied me with some figures in relation to the requisitioning of ships which will not be without interest to the House, and which certainly possess great revelance to the debate. They have either made awards or arrived at settlements in their dealings with shipowners during the war which affect £390,000,000; I am not quite sure of the figure, but that at any rate is near enough to the actual' amount. I have no hesitation in laying down in this connection two propositions—the first is that the overwhelming majority of shipowners are quite content with what they have received; and the second is that they have received quite enough in all the circumstances of the case. If all those cases which were dealt with by the Mersey Commission were attempted to be re-opened and if either this clause or a similar one were not passed into law, you would have to add to the £390,000,000 the stupendous sum of £400,000,000 more, which would go into the pockets of the shipowners as the market value of the ships which were requisitioned in accordance with the necessities of the State.

Then there is the other case where, under the Defence of the Realm Regulations, a citizen has incurred or sustained direct loss of value by reason of interference with his property and business through the exercise of the prerogative or through the exercise of the Defence of the Realm Regulations. The method that was ultimately adopted has been explained by me, but I think I ought to state what the consequences would be if an Indemnity Bill, on lines comparable to this measure, was not attempted. The additional cost to the Exchequer, according to the finding of the Select Committee on the Indemnity Bill, over which I believe Lord Peel presided, in respect of claims in relation to goods requisitioned under the Defence of the Realm Act would be £596,162,000. I see that I slightly over-stated the claims under shipping; the Committee estimate that figure at £378,000,000. They also estimate that the claims arising under the head of land and buildings would be £11,200,000, making a grand total of the additional cost to the Exchequer, if the Bill is not passed, of £985,362,000. I cannot, of course, pretend that I have vouched these figures, but they are generally accurate and may be confidently assumed as the claim it would be necessary to meet if an Indemnity Bill of some kind was not passed by Parliament. We should have to meet these enormous payments while every member of this House and of the House of Commons knows perfectly well that in the overwhelming majority of cases compensation, which under all the circumstances of the case cannot be pronounced inadequate, has been received by those who are making further claims.

Let me give your Lordships one illustration of the kind of claim that is being paid now. This is a case in which the Admiralty—it is a typical case—in November, 1917, acting under the Defence of the Realm Act, requisitioned 239 puncheons of rum belonging to Newcastle brewers, and-paid a sum of £10,000 based on the cost price plus a reasonable profit. The brewers claim the market value of the rum, and claim that the value, failing agreement, should be determined by a Court of Law. They filed a Petition of Right and claimed an additional sum of £18,000, which represents extra profit pure and simple—war profit. It means this, that because our troops were fighting and rum was largely used in the field the firm was not only to receive the cost price plus a reasonable profit but also £8,000 representing a pure war profit. In law it has been held that they are entitled to recover this, but neither in equity nor in justice, so far as I am aware, are they able to establish any such claim. Therefore I am bold enough to think that these two proposals in their main outlines are not unreasonable and will receive the sanction of this House.

There is a general provision in subsection (2), paragraph (iii) (a), to this effect— If the claimant would, apart from this Act have had a legal right to compensation the tribunal shall take that right into consideration, and in assessing the compensation shall have regard to the amount of compensation to which, apart from this Act, the claimant would have been legally entitled, and to the existence of a state of war and to all other circumstances relevant to a just assessment of compensation. That is the result of a discussion and compromise among the legal members in the other House, and its object is to deal more indulgently with the case where, apart from this Act, there was a clear right to compensation. The last words were inserted in consequence of a judicial dicta emanating from this House in the course of these arbitration trials, to the effect that one must in dealing with these matters have regard to the existence of a state of war. Then paragraph (iii) (b) says that if the claimant would not have had any such legal right, the compensation shall be assessed in accordance with the principles upon which the Defence of the Realm Losses Commission acted.

In subsection (4) of the same clause we have these words— The tribunal for assessing compensation shall, wherce by any of the Defence of the Realm Regulations any special tribunal is prescribed, be that tribunal, and in eases where the claim is made under paragraph (a) of subsection (1) of this section be the said Board of Arbitration, and in any other case be the said Defence of the Realm Losses Commission. That is obviously a convenient arrangement. Some of the special tribunals have gained experience. In shipping the cases come before a Board of Arbitration, but in other cases they come before the Defence of the Realm Losses Commission, and it is of course of the greatest importance, as the House of Commons realised, that those who constitute the Court should be men of the highest experience and capacity. The Government are satisfied that as the Court is proposed to be constituted they have secured this essential result. Besides the two most experienced and public-spirited gentlemen who at this moment alone survive from the original members it is proposed that Mr. Justice A. T. Lawrence, whose knowledge of these matters is very great, should be the President of the Court, and to add to its members Mr. Justice Dunbar Barton, formerly a Law Officer of Ireland and Judge of the High Court in Ireland, and Judge Taylor, who has been for many years a Judge of the Court of Passage in Liverpool. Powers are given to the Court to compel the attendance of witnesses, and so forth.

Clause 4 validates all customs, proclamations, and orders which have been issued during the war and before April 15, 1920, prohibiting or restricting the importation of goods. Some Parliamentary controversy has taken place as to the validity of certain restrictive orders and proclamations that were made from the beginning to the end of the war, and it was ultimately decided by the Courts that these restrictive proclamations could not be supported in law. They were undoubtedly necessary for many purposes of the war, and it is indispensable that the matter should be put right in this Bill, and that what was done in so many cases with such beneficent public results should be validated.

Clause 5 deals with a different subject altogether. It provides that any sentence passed or judgment given by any Military Court (not being a Court-Martial) shall be deemed to be and always to have been valid, and to be and always to have been within the jurisdiction of the Court. These are provisions which I think you will agree are not unreasonable. Early in the war it happened that our troops had taken possession of enemy territory and had to improvise legal or semi-military tribunals, and they dealt with very large parts of the world by those means.

Clause 6 provides that all laws and proclamations, and so forth, made or issued by the authority administering any territory in the military occupation of the Army for the peace, order or good government of that country, shall be deemed to be and always to have been valid and of full effect both during such occupation and after the determination thereof, until repealed. That is a necessary provision when dealing with the proclamations which have been enforced in districts such as I have spoken of in connection with the war. For instance, Mesopotamia was governed in this method for a very considerable period. This section is required in these cases only.

I do not think it necessary, unless any noble Lord desires any explanation upon a particular point, to say more in the way of general explanation at this stage. I do not pretend that the subject-matter of this Bill has not caused me the greatest difficulty and by way of anticipation for the last four years, for I, in common with others who preceded me as Law Officers, had great and constant responsibility in this and cognate matters. It was frequently necessary for us to sanction actions, under the stimulus of fundamentally urgent necessity, in cases in which sometimes the very existence of the nation was at stake and on which we entertained ourselves at the time the gravest possible doubts as to the strict legality of that which as Law Officers we sanctioned. It was always, of course, known that an Indemnity Bill would some time become necessary.

I do not in the least pretend that the proposals of this Bill are perfect. It would be very difficult to frame a perfect Bill or a Bill which would not effect some injustice on some individual, but it is claimed that on the whole a real attempt has been made in this Bill to deal equitably with the subject as a whole, and at the same time with proper and necessary economy as stewards in this matter of the public purse. I very much hope that if any noble Lords have any suggestions to make we shall have the advantage of them, and I can promise that they will receive very careful consideration from the Government. I beg to move that the Bill be read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

LORD PARMOOR

My Lords, as the Lord Chancellor has pointed out in his very lucid explanation, this is a Bill which raises extremely important points of principle as well as technical points of detail. There are one or two of the technical points of detail on which I desire to ask a question or two, but I rather think that they are matters for the Committee stage, and I will only deal with them so far as I require them to illustrate matters of principle.

We have here three Bills in a certain sense. We have an Indemnity Bill, and so far as this is merely an Indemnity Bill I should have no criticism to offer on the terms in which it is drawn. In addition to that it deals, as it appears to me, in a very important matter with two other topics which need not necessarily be put into an Indemnity Bill at all—namely, the question of security of property under certain conditions, and the right of the liberty of the subject under certain conditions. It is rather to these two points that I propose to address myself this afternoon, because as regards these two points I am bound to say that in my view the Bill is reactionary in rather a malignant form, and in that respect I find myself in direct conflict of opinion with what has been stated by the Lord Chancellor.

There is only one thing that I want to say with regard to the indemnity part of the Bill, and that is that an indemnity is to be given where an official has acted honestly—which I think is a right principle—but he is to be taken to have acted honestly unless the contrary is proved, if he be given a certificate by the Depart- ment. Of course the Department is really what is attacked, and therefore I presume a certificate would be forthcoming. I do not want to suggest any impropriety, but if the onus of proof of dishonesty is thrown upon the other side and unless that onus is discharged the official is to be taken to have acted in good faith, it appears to me that there will be very strong difficulty in the way of getting redress, even in the case of dishonesty of action. As the noble and learned Lord has asked us to indicate points, I feel found to point out this difficulty, and will refer him to the top line of page 3.

Now with regard to one or two points in relation to the provisos to Clause 1. Those are provisos to the indemnity clause, which takes away any right of action in any form, by subjects under the conditions stated. First we have proviso (a). Although the right of the subject is taken away, this shall not prevent "the institution or prosecution of proceedings on behalf of His Majesty or any Government Department." Therefore the subject is open to attack by the institution of proceedings on behalf of His Majesty or any Government Department, and what I want to ask is this. Suppose there have been cross dealings, and the defence is that the action although honest was mistaken and illegal, will that defence be allowed to be raised against a claim made by the Government under proviso (a). It appears to me to be loading the dice if you specially reserve the right of the Government—which I think is right—but at the same time do not allow the subject against whom the Government have brought an action to say, In respect of what I did and in respect of which you bring an action against me, that was caused by the illegal although honest action of the official. That is a distinct question on which I think I can ask the Government to state their intention. To leave it on one side in favour of the Government Department only would be extremely unfair.

I do not think it is necessary to call attention to proviso (b) and (c). I agree with the noble Lord that contracts are saved, and that is right; also matters of negligence are saved, and that is right, although I do not think either of those matters deal with the real subject-mattes of the Bill itself. Now as regards (d), what I want to ask is this. Why is proviso (d) in the Bill at all? Of course, if there are treaties dealing with the matter it is unnecessary. In the ordinary course a subject of this country brings an action in a foreign Court subject to any disabilities which the foreign Court or Government may impose, but why should he be subjected to the further disability of obtaining the assent of the Attorney-General, which under certain conditions has to be obtained? Why should not a subject of this country go before a foreign Court and take his opportunity, according to the procedure of the Court and according to the principles administered by the Government of the country in which that Court is situated? I have looked at (d) several times, and I now cannot understand why a subject of this country, who otherwise has a right to obtain a remedy in a foreign Court, must for some reason go to the Attorney-General, who can intervene and say, "You are not to do it." I will go further. Suppose I had an action in a foreign Court and obtained a remedy there. What would it matter about the assent of the Attorney-General? The foreign Court would not care about it. It would be guided and determined by its own procedure. And if I got back home again, not having obtained the asent of the Attorney-General, I do not know whether he could commit me for proceeding in a foreign Court or not. At any rate it would be a wholly novel procedure if he did. I think the procedure is entirely wrong and that there ought to be no interference w4h the rights of a British subject to obtain what remedy he can in a foreign Court under conditions prescribed by the foreign government having jurisdiction over that Court.

The next point I want to deal with generally is the question of compensation. I think it is much more satisfactory to deal with it generally than by a special reference to the particular words of a particular section. The general principle that I suggest is this—that there ought to be as little interference as possible with recourse to the ordinary Courts, and that there ought to be as little interference as possible with the principles for assessing damages or loss which the ordinary Courts apply. Although the noble and learned Lord on the Woolsack is rather frightened by the figures—nearly £1,000,000,000 he said—I find the greatest difficulty in crediting those figures without an extraordinary amount of special enquiry into each case. I will say why I think that, and will try to make it clear. For this purpose I will deal with the question of shipowners. So far as the shipowner is concerned it appears to me that he is now being given compensation on what I may teen generous terms, and in accordance with accepted principles. It seems to me incredible that any shipowner under these conditions should be a critic. What I am going to criticise is this—not that the shipowner receives compensation under what appears to be an inadequate principle, but that the same compensation on the same basis is not given to other people in regard to their property or rights. The effect of this Bill is undoubtedly to place the shipowner in a privileged position. I am not like the dog in a manger. I am not objecting to his holding that position. But why should not the same principle be applied to the owners of other goods and of other property, in order that we may have consistency and equality? You have no equality directly you depart from the accepted principles and apply a mere bureaucratic or autocratic test in regard to the compensation to be paid.

Let us appreciate exactly what a shipowner gets. Look at the Schedule, Part I. The noble and learned Lord on the Woolsack referred to it in the earlier part of his speech, but it is summarised in Part I of the first Schedule. What do the words mean? Compensation is given in respect of the profits derived from the use of the ship. It is quite true, and I think quite right—I will deal with that in a moment—that the amount of the profit is estimated in accordance with the rights and conditions contained in what is called the Blue Book. Every shipowner in this country whose ship has been requisitioned is paid on a basis of fair compensation, estimated on the profits he might have made if he bad kept that ship in his own ownership and under his own control. I think there has been misapprehension in regard to the principles, of compensation. I agree that no one is entitled to extravagant war prices. That ought to be common ground. But it is a very different thing to give a shipowner compensation on the basis of the use of his property irrespective of how he is using it himself. What I complain of is that he is given compensation on a reasonable basis, while that principle is denied altogether in the case of other requisitioned properties taken under the terms of this Bill. I should like to make it absolutely clear that I have no special connection with shipowners. What I say is that they have nothing to complain of, but that they have been properly and adequately compensated in accordance with the general principles of compensation.

Let me turn to other cases where special property is taken, such as puncheons of rum, and more particularly to cases like de Keyser's Hotel, taken in order that it might be used for administrative purposes in connection with the war. What is the position here? The Bill adopts the principles of the Realm Losses Commission Report. It adopts a principle which has been adopted by the Commission that has dealt with these matters. That Commission entirely denied compensation on the basis of the profit which might have been made by the owner if theproperty had been left in his hands. They deal with what is called direct loss, and direct loss is on the insurance basis and not on an indemnity basis. Direct loss necessarily excludes any principle of what equity and certainly any principle of what accepted law would regard as fair compensation in any particular case. I will give an illustration of what I mean by taking the case of property. Compensation has been asked for property in respect of its value in user. That is quite right. I am not putting it on what I may still call war prices. A man says, " Normally my property would have been worth £100 a year. You have taken it for five years, and you ought to pay me on that basis." "No," say the Realm Losses Commission, "we will not give you compensation on that basis. The property when we took it was in the nature of an unoccupied property, and you will have to show on the insurance principle that there is direct loss or damage before we will grant you a penny in the way of compensation." I do not think any one could say that is fair. I am sure no one can do so who has had any experience of compensation. Why should a man whose property has been requisitioned under those conditions be fined, and be put in a worse position than a man who has been allowed to own his property and deal with it in the ordinary way during the war period?

There has been complaint as regards what has been done about compensation under the Realm Losses Commission. It is not a matter of asking for an exaggerated market price. When you are com- pensating on market price you do not take an exaggerated price—that is the very essence of our compensation Iaw—owing to particular conditions or exceptional opportunities of user; you take what is called the average market price, what the ordinary owner, if he held the property, might expect to make out of it, either as rental or annual value. Again, why should a man not have compensation on those terms? What the noble Lord has mentioned is not applicable to the cases of property to which I am referring. That is cost plus profit, which may be applicable to the case lie gave us, or to requisitioned goods, but no one can say it is applicable to property. The whole basis is distinct, and to try to apply that to property, which is what the Realms Commission did, I say without hesitation has created unjust and inequitable results—unjust and inequitable in the sense that people, apparently having the same claim—have been treated on very different bases indeed. When we come to the question of cost plus fair profit the noble Lord on the Woolsack is perfectly well aware that the difficulty has always arisen as to the ascertainment of what is called the rate of profit. There always will be that difficulty as regards what is really profit and what ought to be expended in order to keep up repairs and other various matters about which we hear so much in Income Tax and other cases, and, although it seems easy to talk about cost plus a fair rate of profit, if you seek to apply that in compensation cases—and I speak from some experience in these matters—every complication arises, and there is every difficulty in order to ascertain what a fair compensation would be.

No; the real principle is indemnity and not insurance. Let every man be indemnified against the loss to which he has been put, either as regards the taking of his property or the taking of his goods, and if you set to work to give a fair indemnity then, of course, he has no reason to complain at all. It is clear that on the principle of what is called "eminent domain," particularly in war-time, the State has power to requisition either real property or ordinary goods, but always subject to this in every civilised country—that there shall be a proper indemnity paid for the right thus exercised. I look on this as a matter of extremely important principle at the present time. No one can doubt that questions of the security of property and the value of property are veining very much to the front, and that there is a large school arising which thinks that the State should take property from particular individuals on some terms which, at any rate, are much less than the ordinary terms of indemnity. They do not realise the principle of security, and I seriously hope that on this point some amendment will he made before the Bill passes out of your Lordships' hands. I will not at present, however, indicate what is a matter for Committee, because I want to keep to questions of principle.

There is one point as regards the Court and also another matter upon which I would say a word. Every one knows that you could nut have a better Judge than Mr. Justice A. T. Lawrence, but I do not like Judges being put in an official, as against a judicial, position. Not only in this matter, but again and again Judges have been made officials, instead of being left in an impartial judicial position, and it is extremely important that there should be no doubt as regards the impartiality of a Judge in his judicial position because he has acted in a certain sense as an agent or representative of the State in his administrative capacity. I will not mention any name but, in my opinion, one of the greatest of our Judges has been most unfairly hampered by having been asked to serve on what since has become a rather notorious matter as regards questions of nationalisation.

Now I want to say a word upon another subject. Why is the appeal to this House cut out? There seems to be a tendency nowadays to interfere with what I should call the privileges of this House by taking away its position as an ultimate Court of Appeal. Why should people, having the right of appeal upon matters which, according to the figures given by the noble and learned Lord, may involve hundreds of millions of pounds, not have that right of appeal? If it is worth while to keep an appellatory tribunal at all—and I am prejudiced; my opinion is strongly in— its favour—why should von exclude from its purview matters of this kind, of enormous importance as regards principle and involving very large sums indeed?

There are two other subjects in connection with the Bill, a little distinct from those I have mentioned, but of the greatest importance. They are Clauses 4 and 5. I look upon Clause 5 as touching the most important matter of principle involved in the Bill. As regards Clause 4 I am bound to admit that I regret intensely that the illegal system, as it was found. to be, of prohibiting imports and giving special licenses should be sanctioned and validated. I do not think that Departments ought to have the power, proprio motu, Of introducing protective systems. I do not think that Departments, proprio motu, ought to have the very dangerous power of giving licenses to trade to some people and withholding them from others. There is no more likely source of corruption and there is no more likely source of discouragement to particular trades. If there are matters upon which the Legislature ought to be supreme they are these matters of trade licenses and trade Import Regulations. I think it may be necessary to have some provision in that form, with an indemnity, such as we find in Clause 4, but I regret it very much indeed.

Clause 5, to my mind, is much more important. So far, I have been dealing with the questions of security of property. I think what are much more important than security of property are questions of the freedom and liberty of the individual. In my opinion personal freedom ought to be regarded as the first purpose of all civilised life and civilised laws and civilised Courts. What is the provision of Clause 5? I will ask your Lordships to look at it. Put yourself in the position of a prisoner for the moment, imagine yours If to be in prison, and then apply the clause to yourself. I will use not technical words but words which can easily be understood. Clause 5 says that if you have been put into prison by Military Courts, or by military individuals, even if they had no more right to do it than you or I had—no right of any sort or kind—that judgment is to stand, and it is to be held that what was done was always within the jurisdiction of the Court, although in the case I give the Court had no jurisdiction whatsoever. Where a man puts another in prison, and holds him there, whether he had a right or title to do it or not, if he had no right or title to do it then the man is entitled to his liberty. That is one of the first principles of personal liberty if we really understand it. Do not allow a man to be left in prison, having been put there by a Court which had no jurisdiction either to try him or to interfere with him in any way whatever. The Lord Chancellor, in answer to that, said that there are certain difficulties in certain places. I think he instanced Stoke. If you have those special difficulties let them be defined on the face of the Bill. Let us know what they are and where they are, and do not consign a poor man, perhaps, to imprisonment for years when the person who put him there had no right whatever to do it.

There is this further matter upon Clause 5. It was very much discussed, as the noble and learned Lord will know, whether there might not at any rate be an appeal in these cases. It was discussed very much by the Solicitor-General in another place, and, after considerable discussion, it was left in this way, that he would see whether, when the Bill came to your Lordships' House, some right of appeal might not be granted so that the case of a man who was in prison under the decision of a Judge or a Court which had no jurisdiction to put him there, should be considered. I hope, when the noble and learned Lord on the Woolsack comes to consider further the clauses of the Bill, he will be able to suggest some appropriate form of appeal which will mitigate what appears to me to be the harsh injustice of Clause 5— and not only a harsh injustice, but an injustice quite incapable of being supported on any known principle of any legal system. Of course, if a man puts you in prison who has no authority to do it he ought to be punished, and why it should stop there, although he acted without jurisdiction at all, it is impossible for me to understand.

I have abstained from going into any further matters of detail, but on these principles of compensation, and on these questions of individual liberty let us cling to the protection of our Courts; let us have recourse to our Courts, and if we want particular principles laid down, lay them down. But do not sweep away what is the œgis of our liberty and what has been the principle on which we have always relied, which is called the English rule of law, and which means the right of every man, however poor, to have recourse to the Courts, open to all, free to all, and which should be equal to all.

LORD SUMNER

My Lords, I have not gathered from the speech of my noble and learned friend whether what he is proposing to ask your Lordships to do is ignominiously to cast this Bill out—

LORD PARMOOR

I do not ask that.

LORD SUMNER

—so that we may never see it again, or whether he is merely laying the foundation for an extensive evisceration of the Bill in Committee by radically altering those clauses which he does not propose to excise. At this hour I do not wish to detain your Lordships by anything that can be called a lawyers' discussion, but only to offer to your Lordships any assistance that is in my power in considering this highly technical Bill.

I wish to say at the outset that, after very carefully considering the Bill, I recognise the necessity for some such measure, and, especially after the very great improvements that were introduced into the Bill before it finally left another place it is, as it appears to me, one which fairly grapples with the very difficult problems which the Government had to face. This Bill does, at any rate, two valuable things. It recants those exaggerated notions of the Royal Prerogative, which, I am afraid, a great many subordinate officials acted upon during the war, and which, I am afraid, some superior officials felt themselves bound to defend when they found what had been going on; and it will save the Courts from being blocked up with cases, numerous in themselves and complicated and long in a great many instances, which are really nothing more than assessments of damages. If all the cases that could he brought were brought before the Courts I am afraid that the noble and learned Lord on the Woolsack would have to appear before us again in the same way in which he did a little time ago and establish a very good case for the creation of additional Judges.

The responsibility of introducing such a measure as this is undoubtedly great, because it does two things which, I am quite sure, the Government themselves would recognise as being usually objectionable. The first is that it closes the Law Courts to litigants who have the right of entering them. It says in terms—and that is the object of the Bill—that no action or other legal proceeding shall be brought, although the citizen may have been wronged and may have a legal remedy which he is entitled to bring before the Courts by means of an action. It says furthermore—and it has been very candidly explained to us by the noble and learned Lord on the Woolsack—that it proposes to lay down in certain classes of wrongs a rule as to compensation which docks the person entitled of a very considerable proportion of that which he might be entitled to if he were allowed to go to law. I think everyone would agree that any tendency—and there has been such a tendency at times—to withdraw various classes of legally contentious issues from the jurisdiction of His Majesty's Courts is a tendency very much to be deprecated. But this is an exceptional case. It arises out of wholly exceptional circumstances, and I cannot doubt that it is necessary to say that certain classes of litigation shall be transferred to the very experienced and, I have no doubt, excellent tribunal which is to be constituted for the purpose, and called the War Compensation Court.

Incidentally I should like to say that I do not appreciate what is the doubt of my noble friend who has just spoken about the position of a Judge of the High Court in presiding over that Commission or tribunal. He is no more official there than he was before. He will be no less judicial there than he always has been. His decisions, or the decisions of the Court, may be taken on questions of law to the Court of Appeal, and, by leave of the Court of Appeal, may be brought to your Lordships' House. That is just like bankruptcy cases. It has been thought wise to require that leave should be obtained in that class of case, to bring it before your Lordships' House, and I, as one of those who have to hear appeals, welcome restrictions of that kind, because I do not cherish as much as my noble friend does the prospect of having all matters brought before your Lordships' House where the funds will run to it. The tribunal is one in which, I am sure, every confidence may be placed. The real pinch of the whole Bill lies in the remedy which that, tribunal will have to administer.

As the noble and learned Lord on the Woolsack was good enough to ask for questions and suggestions, I should like to ask him two or three questions upon points that appear to me to be not sufficiently clear and, at any rate, worthy of his attention, with a view to making them more clear in Committee. What I regard as the most. important of these clauses is Clause 2 (2) and paragraph (iii) of that subsection. It is the one in which the compensation to be assessed is dealt with in the case of claimants who would have had a legal right to compensation—that is to say, people who have at this moment a right to come into Court, and who under this Bill, if it becomes an Act, will be relegated to the War Compensation Tribunal. In such a case "the tribunal shall take. that right into consideration." What does that mean? Of course, I am quite aware that if, as I should have guessed from its language, this clause is the result of some compromise, it may be an otiose and indeed an impossible question to ask exactly what it, means. Somebody will have to ascertain what it means when he comes to administer it, but it is better that it should be made clear if words can make it clear. Does it mean that the tribunal shall give effect to that right or does it not? To "take the legal right into consideration" and not give effect to it is taking away from the subject, who at present has something, a part of that to which he is entitled. If on the other hand it means, as I suppose it does, "shall take that right into consideration for the purpose of giving effect to it, subject to any express words that. may follow," would it not be very much better to say that when a claimant has a legal right to compensation apart from the Act the Tribunal to which he is sent in lieu of a Court of Law shall give effect to it, and let that be quite clear? Then the paragraph goes on— … and in assessing the compensation shall have regard to the amount of the compensation to which, apart from this Act, the claimant would have been legally entitled— That means, I suppose, that he shall have the same measure of compensation or damages before this Tribunal as he would have had in any Court of Law— and to the existence of a state of war and to all other circumstances relevant to a just assessment of compensation. Does that add anything to, or does it subtract something from, his rights? What is the relevancy of the existence of a state of war if he is to have the amount of the compensation to which, apart from this Act, he would have been legally entitled? I cannot help suspecting that, perhaps unintentionally, there lurks under this reference to the existence of a state of war some idea that you can cut down the compensation which, but for this Act, the claimant would be entitled to, and say, "This is due to the existence of a state of war and you must take less."

Then there is this proviso— Provided that this subsection shall not give any right to payment or compensation for indirect loss. I think "indirect loss" is not a very happy expression. I have no doubt what it means is that you are not to give, in Addition to money for the occupation of a man's house, general damages in respect of his business which result, not from his not having his house, but from there being a war in which he has to suffer like other people. The legal expression is that he is not to recover remote damages. But it is quite clear that a man might suffer real indirect loss as to which it would be just that compensation should be assessed. If you take away part of his premises And not the whole and thereby handicap him in the conduct of the rest of the concern he carries on, I should have thought it was not fair and probably was not intended that in such a case it should be said to him, "We have to pay rent for the use and occupation of the part of your premises that we do take, but it will be an indirect loss which you cannot recover if you suffer damage to your manufacturing operations in respect of the premises that we do not take." I have no doubt at all that this makes the point quite clear to the noble and learned Lord, and that, if he does not accept the view of it that I suggest, he will at any rate consider the advisability of making the matter clearer before we come to the Committee stage.

I would like to raise another question. Is it or is it not intended by this Bill to re-open any of the decisions that have been given, either by the Duke Commission or the Mersey Commission or any of the settlements that have followed the lines of those Commissions without actually going before them? What makes me uneasy is that enormous figures have been given to us, and I ask myself why these figures are brought before us and what they represent. There is no principle of law that I am aware of which says outright that if you take a man's property from him in time of war when you have no right to do it he is not to have the value of that property at the time when you take it but the value of it at the time when you did not take it—namely, before the war. I should have thought that any jury would have been told that if you take a man's horse or cart without authority, flagrante bello, the sum he is entitled to recover, if he is entitled to recover anything at all, is the value when it was taken away from him. That is where the tradesmen who complain of Regulation 2B have a real grievance.

I think it is a little unfortunate that rum happened to be the instance that was brought before your Lordships; it is an unsympathetic and adverse case to take. Those tradesmen say, "We had our rum and you took it. We had to replace it for the purposes of our trade. We very likely had sold it already or made forward contracts which we had to fill from this stock. We shall have to replace our stock at the market prices, and we shall have to go and buy it and pay whatever may be demanded for it. Therefore in taking it away from us and giving us what is to be given under Regulation 2B, you are really taking part of the actual value of our commodity and doing it in the name of public economy." Personally I think nothing else could have been done in this war, but it is at any rate desirable that those who have suffered in this way should have all credit for it; and instead of its being suggested, as my noble and learned friend has done, that shipowners have done mighty well on what they have got and never could have been entitled to more, I think it is due to the shipowners, to the rum sellers, and to other people who have had their commodities taken, to point out that in the case of the shipowners at any rate they seem to have been paid about half of what they would have had if they had received the real value of what was taken at the time it was taken, and that they have made the sacrifice like men. That was very noticeable in the House of Commons. Mr. Leslie Scott—who opposed the whole principle of the Bill—speaking in the name and on behalf of the shipowners as a body, disclaimed any desire on their part to insist on being paid more amply than they had been paid, and they deserve every possible credit for their magnanimity.

But when we hear figures like those which have been brought before us, we have to ask ourselves, What is the object with which they are put forward? I ask whether it is intended to re-open any of these settlements? In the case where a man has been before one of these Commissions and taken what he could get, or has settled his case without going before the Commission and has taken what he could get, is it intended that there should be any re-opening of the matter now upon the ground that after the war there should be inure extensive compensation given to some people under this Bill, and, therefore, there must be a more extensive compensation given to all people. When you wrote off the cases which had been settled long ago, where the money has been paid and pocketed, and grumblingly or willingly accepted, I should have thought there was no further necessity to go into the matter and that the number of cases still remaining to be settled in any form whatever must be remarkably small and could not possibly justify the huge figures which have been put before us. If these figures do apply, it must either be because the settled cases are entitled to be re-opened (as to which I must say I think that would lie very much outside the scope of any such Bill as this) or else it must be because there are far more cases pending than I, at any rate, have any idea of. Then we had better face the fact that our reason for passing this Bill will be that, although the country owes a number of private individuals a very large sum for their goods which were taken away from them, it cannot afford to pay it. That will be the only result. of that argument. If that is the intention with which the figures were brought forward, there is all the more reason why the exact measure of compensation which is enacted in this Bill should be very carefully considered. I would like, therefore, to ask the noble and learned Lord what is meant to be the scope of subsection (2) (i) which deals with the Defence of the Realm Regulations, and is in these terms— Where under the Defence of the Realm Regulations … any special principle for assessment of compensation … is contained in the Regulation … compensation … shall be assessed in accordance with that principle or rate. Is that intended to validate all the Defence of the Realm Regulations whether good or bad? At present there is a decision under appeal I am told, in which it is held that Regulation 2B was beyond the powers of the authority which purported to make it. Is it, without any further hearing in the Courts, to be taken tinder this Bill that, in spite of that judgment, Regulation 2B is good and the special principle which is laid down is to be enacted and to have statutory authority given to it, so that it is made better and more valid than ever before. If all it amounts to is that where there is a special principle laid down under the Regulations, and those Regulations are valid, then that special principle shall be applied, that is in my view natural enough.

There is one other point which I hope the Lord Chancellor will allow me to bring to his attention. I see no power under Clause 2 by which the new Tribunal can give costs. They can give compensation, but that is all they can do. It would be very hard indeed, and a great injustice, if they had no power to give costs. I think it must be an oversight; possibly it is covered by some other words which I have not noticed. I do not propose to carry the discussion any further. My only object is to endeavour to facilitate the progress of the Bill by bringing to the Lord Chancellor's attention now matters which may be dealt with perhaps without discussion in the Committee stage. I will not detain your Lordships further than to say that the strictures which the noble and learned Lord passed on the provision which validates sentences pronounced by Military Courts were, I thought, a little out of place. Officers generally sit on Military Courts, and if an officer happens to have no jurisdiction he is no less an officer, and I should have thought a person to be entitled to be protected so far as be himself is concerned. It is true that the clause provides that the sentences shall be validated, but is it really proposed that all the sentences that were passed in connection with the war are now to be revised in order that persons who can argue, perhaps successfully, that there was a lack of jurisdiction may be let out? There surely must be an end to controversies of that kind, and as far as I can see there is not likely to be much real injustice done under the Bill.

THE LORD CHANCELLOR

My Lords, the noble and learned Lord, Lord Sumner, has informed the House that his object is to assist in dealing with the admittedly difficult situation which this Bill attempts to meet, and no one is more competent than he is to afford assistance in such a matter. He has asked me a number of specific questions and I will attempt, as far as I can, to make a brief reply. He has asked me to give my view as the true construction of Clause 2, subsection (2), paragraph (iii), (a), which is as follows— If the claimant would, apart from this Act, have bad a legal right to compensation the tribunal shall take that right into consideration, and in assessing the compensation shall have regard to the amount of the compensation to which, apart from this Act, the claimant would have been legally entitled. and to the existence of a state of war and to all other circumstances relevant to a just assessment of compensation. I may tell him quite candidly. that these words rang for the first time in my ears in a manner that was novel and not altogether agreeable, and it was for that reason that I elicited the circumstances that they had been the subject of discussion amongst legal members in another place and were an attempt to embody a compromise decision in the Bill. He asks me how I construe it? I will tell him at once. I imagine that the original proposal was that persons who fell within this clause were to receive the full amount of compensation to which, apart from this Bill, the claimant would be legally entitled. Then I imagine those who took the, other view putting forth their arguments and saving "No, he must not have full compensation. That is to be the basis of the compensation to be given; the Court may start with this, that prima facie he is to have the full legal amount, but we are going to make deductions, having regard to the fact that a state of war has existed and to other circumstances which we think should be also taken into account." It seems an agreement was reached that in the main it should be on the legal basis, but that these other circumstances should be considered. The wording of the clause may be a little doubtful, and I will give it my attention before the Committee stage.

The next question Lord Sumner put dealt with the scope and proprietary of the term "indirect loss." I am informed, by those who have followed closely the decisions and the practice of the Duke Commission, that it has always been the practice to treat such cases as he instanced as being direct loss and that there are many cases on record in which that view has been taken. Whether the term "indirect" is the happiest that could be used I will consider before the Committee stage.

The third question which my noble and learned friend asked was whether it was the intention of the Government to re-open the many cases which have been dealt with. It is certainly not our intention to re-open those cases. I suppose there are hundreds of thousands of them, and I should contemplate with consternation any proposal to re-open them. The Parliamentary Committee which was appointed to consider this question reached the unanimous decision that it was wholly impracticable to re-open them. Then the noble and learned Lord says that the principle upon which it was ideally desirable that these persons should have been compensated was that they were entitled to the value of the commodity as and when it was taken. I do not in the least dispute that the great majority of the shipowners have behaved with as great magnanimity as any others of the community, and no one can quarrel with what the noble and learned Lord said as a generalisation. In normal times it is, of course, elementary, but I cannot in the least agree with him that any person is entitled to accuse this country of niggardliness if we say that under all the circumstances of the war this is a scale which cannot be founded upon any principle of fairness or justice. In other words the market value which I think he said we ought to apply to these cases throughout is a market value which is the direct and demonstrable and exclusive result of the war. If, because of the war alone, the value of a ship is increased say from £100,000 to £800,000 or £1,000,000, and if the necessities of the State require that the State, which after all is a form of protection for the vessel, says we must take it, I cannot agree that the owner is entitled to say the State is not treating him fairly because the war for which the State took the vessel has increased the value of his property from £100,000 to £1,000,000, and that that is the market value as and when the State took the vessel, and the State should compensate him on that basis. I cannot assent to the reasonableness of that view.

Then the noble Lord asked me to deal with another point—namely, with subsection (2) of Clause 2, paragraph (i). The words are— Where under the Defence of the Realm Regulations or any order made or purporting to be made thereunder, any special principle for assessment of compensation or the rate thereof, is contained in the Regulation or order, compensation shall be assessed in accordance with that principle or rate. The noble Lord asked whether this is intended to validate regulations pronounced invalid by the Courts. I do not so read it, and it is to my mind, I confess, inconceivable, though I will look into the matter more closely, that the clause would have been drafted in the manner in which it is drafted if it had been intended to produce that result.

Those are, I think, except the matter of costs, all the points raised by the noble and learned Lord who has just spoken. The matter of costs has caused me a little trouble, and it shall receive further consideration. I am informed that the Duke Commission always arrived in the first place at a sum of money which they thought the applicant should receive as compensation, and that having done that they added a round figure, not precisely calculated bat which I am told was not very ungenerously conceived, under the heading of costs, and they, added the two stuns together, and that was the amount of the award. I understand that it was contemplated that that practice would be continued. If the noble and learned Lord has a strong view that another system would be better you may be sure that that view will be considered.

I must make a few observations with regard to Lord Parmoor's speech. They shall be very brief indeed, but it would be disrespectful to a learned member of your Lordships' House if I did not make a short answer. The noble and learned Lord said that in Clause 1 (3), with respect to the indemnity, it was provided that the honesty of the Government official must be presumed. He complains very much of that, but it seems to me that it would be very strange if the Court wet e to begin by presuming dishonesty. If the official says, "This is the view which I formed honestly," it would be for those who impeached him to prove the contrary. I do not think that the noble and learned Lord has read the clause very carefully, because he stated that the Government Department concerned enabled itself to give a certificate of honesty. If the noble and learned Lord will real the Clause again he will fina, I think, that it is not so. It runs as follows— For the purposes of this section a certificate by a Government department that any act, matter, or thing was done under the authority of a person so holding office or so employed as aforesaid, or was done in the execution of a duty, shall be sufficient evidence of such authority or duty and of such act, matter, or thing having been done thereunder, or in execution thereof, and any such act, matter, or thing done by or tinder the authority of a person so holding office or so employed as aforesaid shall be deemed to have been done in good faith unless the contrary is proved. The certificate has nothing whatever to do with the good faith of the official, as I think the noble and learned Lord will see.

LORD PARMOOR

I had read it very carefully, but if that is the meaning I shall be satisfied.

THE LORD CHANCELLOR

Does the noble and learned Lord think he is right?

THE MARQUESS OF SALISBURY

No, he thinks you are right.

THE LORD CHANCELLOR

The noble and learned Lord also questioned the figures I had given as to the price which it would be necessary to pay if matters are reopened. All I know is that the Committee had before them very detailed reports from the Shipping Board and other expert bodies involved, and they put the figures quite positively and precisely as I have put them before your Lordships, and it must be presumed that they have some relation to facts. My object in quoting them was not to say to your Lordships that we owe this money and we cannot pay it and it is such a vast sum that we must not try to pay it. I tried to make it plain that in the exigencies and circumstances of the war we do not owe this money, but that if the question should arise whether we can afford to do a generous thing, I thought it only relevant to mention what the amount of that benevolence was likely to be.

With regard to the appointment of a Judge, a Judge was appointed entirely in deference to the view of those in the House of Commons who said, "Let this thing as far as possible be treated judicially and by one who is accustomed to deal with judicial matter:," and it would be as grossly improper for any member of the Executive to go to the learned Judge who will preside over this Court and attempt to influence his decision as it would be for him to go to any Judge sitting at the Courts in the Strand. I know of no Judge on the Bench who would resent such interference more effectively than the learned Judge who will occupy this position.

As to the proclamations, Lord Parmoor regrets that it should be necessary to adopt such a proposal as that which is contained in the Bill. I regret that it is necessary to adopt any of the proposals of the Bill, but I do not gather that Lord Parmoor disputes that it is necessary to deal with these matters in some such way as is suggested. He questioned me on two other points. The first was what was the justification for Clause 5 Lord Sumner answered most of the points. In the first place in many cases there was no provision possible of any legally instituted tribunal. Does the noble and learned Lord really say that all those persons convicted and sentenced to imprisonment who have long served their sentences should be allowed to bring actions for illegal imprisonment?

LORD PARMOOR

I never said anything about the officer being indemnified, but spoke on the question of the man being detained.

THE LORD CHANCELLOR

The Court does not consist entirely of officers. There are the other Judges and those who sit in a semi-judicial capacity. The noble Lord may be assured that every one of these cases has been most carefully and individually examined by the Judge Advocate-General and his Department. The Judge Advocate-General's Department has never had at its head an abler or more learned lawyer than Sir Felix Cassel, and he assures me that he has given personal attention himself to every one of these cases and that they have been reviewed by his highly-trained Department.

On Question, Bill read 2a, and committed to a Committee of the Whole House.