HL Deb 04 February 1947 vol 145 cc392-8

5.0 p.m.

VISCOUNT SIMON asked the Lord Chancellor what progress is being made in the preparation of the Bill which it is understood that he intends to introduce dealing with remedies against the Crown, and what are the prospects of such a Bill reaching the Statute Book in the course of the present Session? The noble and learned Viscount said: My Lords, I wish to put to my noble friend on the Woolsack the question which is on the Paper. Very briefly, I would remind the House of the recent history of the matter. It has long been realized that the immunity of the Crown from proceedings directly taken against it for damages and the like, though historically explicable, has somtimes created difficulty. In the ordinary case where a claim is for compensation—that is to say, for an accident in the street, a case where an Army vehicle has been driven too fast and dangerously—the method which has been followed, and followed for many years, has been, since the Crown could not be sued, to find the name of the driver (which the War Office would give) and to sue him. On proof that he had been negligent, judgment was given against him and the amount of the damages was paid by the Crown. Indeed, the case was usually defended by the Crown. That is a very cumbrous method, but it provides a remedy. Recently, however, another class of case has been given publicity in which not only is it unfortunate that we should continue the present arrangement but, if present arrangements are not altered, there will be an absolute denial of the possibility of justice in the courts. It is the case where the Crown is the occupier of premises, and of course the Crown is becoming more and more the occupier of a great many premises.

If a private person was the occupier, and if a person who went there was a person with a licence to go there, and he was injured owing to the defective condition of the premises, to an unlighted, dangerous staircase, to a hole in the floor, to something falling out of the window and hitting the individual on the head as he walked by, then as against the private occupier there would be a remedy; it would be a breach of duty of the occupier. But as against the Crown there is no remedy at all. That was called attention to prominently when the House of Lords was sitting in a judicial capacity as long ago as last September, or early October. It led to a great deal of correspondence in The Times in which the difficulties were pointed out and a claim for remedy was very urgently made.

It is right to add that under a Commission appointed some time ago, there has already been an elaborate investigation of this whole subject, including the case of the occupier. Although that Commission made no recommendation, it did produce a draft Bill which the Lord Chancellor and his advisers did not think was in the proper shape. The matter was continued at the time of the gracious Speech last November, when a number of members of the House pressed the Government on this subject. They pointed out that the King's Speech contained no undertaking or promise or reference to the introducing of any legislation of the kind, although it was obviously very urgent that the matter should be put on the proper footing. I do not blame my noble friend for saying what he had to say at the time, in view of the Government's programme. He said that unfortunately it was not possible to put it in the King's Speech.

It was pointed out that, at least in the case where the Crown is the occupier, the private citizen has no remedy at all, and I noticed that The Times on October 12 said that in the interests of justice the present position was untenable. Later, when the matter was raised again in the House, the Lord Chancellor showed real interest in the subject. On November 13 he said he might be able to introduce a Bill on the subject and he hoped to find a loophole to get it in. I have reason to believe he has pressed his colleagues on the matter to the very best of his ability and his authority.

This afternoon, I have taken a course which I do not think has been taken for many years, but which is still permitted to members of this House: that of introducing a Bill of my own, dealing only with the single point about the occupier. That is an extremely urgent matter, because people are being denied their rights and no one wishes that to continue any longer. I have not done that with the idea of endeavouring to interfere with the Lord Chancellor's project. What I Viscount is: what are the prospects of a want to know from the noble and learned Bill covering the whole subject, as no doubt his Bill will do? Is it really being introduced and, what is more important, what are the prospects of the Bill reaching the Statute Book? Because introducing a Bill in itself gives no one any remedy; it has to get on the Statute Book. I need hardly say that nothing would please me better than to see the Lord Chancellor's Bill reaching the Statute Book and containing the clause which I indicated; then my little Bill could be thrown in the waste paper basket.

I will again say that the real question is not whether he is willing to introduce the Bill, because I know he is. I know his heart is in it. It is not a question whether he and his advisers have been working at it, because I know they have. What I desire to know, and what I think in the public interest ought to be asked, is: what can he tell the House now about the extent to which the Bill is prepared, and have all difficulties been overcome? Departments raise difficulties and they may have to be overcome. What can he tell us of the prospects of its being passed into law this Session? Of course it does not depend on this House; it depends on both Houses and the time available in another place. In the meantime, I very much hope he will be able to give us an assurance that the Bill which he has at heart will be introduced and carried through this House in good time, so that there is every reasonable chance that it goes on the Statute Book.

5.10 p.m.

VISCOUNT CECIL OF CHELWOOD

My Lords, I will not detain the Lord Chancellor more than a moment, but I should like to take the opportunity of expressing my very warm support for what has fallen from my noble friend, Viscount Simon. He has touched on an actual case and I do not propose to repeat what he has said. Everything he has said is absolutely right and true. In my own personal capacity I have come across very serious inconvenience, and in some cases even injustice, from the present state of affairs. It is really a pure survival; there is nothing to be said in its favour except that it exists. That is an argument which I do not think will appeal to the Lord Chancellor; it certainly does not appeal to me. I venture to think that the supremacy of the law is the principle on which we all rely for progress and free- dom. This solitary exception to that great principle ought to be swept away.

THE LORD CHANCELLOR

I concur with my noble friends in what they have said. The principle we ought to adopt is this: we should treat the Crown just as we do any ordinary employer, either in contract or in tort. I should like to see exactly the same procedure available against the Crown as against any individual. There are, of course, certain exceptions; the analogy does not quite hold because, of course, no private individual has to run a Post Office, to maintain an Army or a Navy, or fire guns or anything of that sort. Therefore it is quit obvious that there must be same exceptions. But the broad, general principle which I would like to introduce is that in all matters the courts shall be open to anybody who has a claim against the Crown in the same way as they are open to anybody who has a claim against an individual.

What I am going to say now as to my progress is subject to the difficulty which has arisen over the introduction of the noble and learned Viscount's Bill to-day. He, of course, knows the rule about two Bills dealing with the same subject matter not being able to proceed at the same time. I have not had time to look it up, but he will find the material passages, I think, on page 491 of the 14th Edition of Erskine May.

VISCOUNT SIMON

I consulted the Authorities at the Table.

THE LORD CHANCELLOR

What I am saying is that I confess I very much wish the noble Lord had delayed introducing his Bill until after he had heard my answer at a quarter past five, because I think that he might then have not wished to introduce his Bill. As the noble Lord knows, and as he was good enough to say, I have been working on this matter for a long time. I do not propose to make a promise, to which I can be held if anything unforeseen happens, but the ship, after a stormy passage, is so near port that it is there but for tying up at the quay. I very much hope—and I firmly believe that I shall be able to do so—to introduce a Bill on the lines I have indicated, certainly in the course of this month. Indeed, if this question had been asked in a week's time I might have been able to give your Lordships something more specific than that. But I must not treat as a mere formality some consents which I still have to get. So far as I know, all Departmental objections have gone. For a very long time I have been anxious to get the Bill drafted, and I have used all my ingenuity to get it drafted. I think that I may now say that all is well.

VISCOUNT SIMON

I would like to say at once—indeed I think it goes almost without saying—that if indeed it should be the case that my Bill sets up the smallest obstruction to that which the Lord Chancellor is ready to introduce, I should never allow it to continue as a Bill before the House at all. But this is an entirely new point to me, and at present I am not at all sure—nor do I think the Lord Chancellor is—that that is so.

THE LORD CHANCELLOR

I am not absolutely sure myself, for I have had no advice on this, but I looked up Erskine May. As I have said, it is a pity that the noble and learned Viscount's Bill could not have been introduced say tomorrow, after the noble and learned Viscount had given me a chance of answering his question on the Order Paper. I cannot quite understand why he did not do so. I am now asked, as a further question, what are the prospects of this Bill. Well, I hope to be able to introduce this Bill, and I think I have good grounds for trusting that it will prove to be non-controversial. I had intended to send the Bill round to some noble Lords who have particular knowledge of this matter before I introduced it, but in view of the present situation I think it will perhaps be better to introduce it and, if necessary, to incorporate their suggestions by means of Amendments. I hope that the Bill will prove non-controversial, and that it will be possible to get it through your Lordships' House in a very short time. When that has been done, it will, of course, go to another place. There, I think, it depends entirely on the Opposition whether it is to be non-controversial. Personally, I see no reason why it should not have an easy passage. But if the Bill is going to be controversial in this, that or the other respects, of course it might not get through.

There are in the Bill, as I have indicated, certain safeguards. I mentioned the Post Office. That is one illustration. Unless we had some safeguard in that respect we could not go on with the Bill. It must obviously be made impossible for anyone to say: "I posted a letter containing a lot of money and it has not arrived at its destination," and to proceed to make a claim against the Post Office. The case of a registered letter, of course, is different. We must also have some protection for the Armed Forces, and a few other points which are fundamental to the Bill. I believe that those matters will be clearly set out. They certainly were in the draft Bill of 1927. As I have said, I have no reason to think that it will prove controversial, and I very much hope that the Bill will be passed. I anticipate that it will, though I am not going to be held liable for breach of contract if it is not. But I anticipate being able, in a very short time, to introduce my complete Bill dealing both with contract and with tort, on the lines which I have indicated, into your Lordships' House.

VISCOUNT SIMON

Does it not deal with occupation?

THE LORD CHANCELLOR

Yes, it deals with the whole subject matter. A great difficulty that arises to-day not only in the case of occupation—that is a very common illustration—is exemplified where you cannot designate the particu- lar servant of the Crown that you say is a wrong-doer. If, for instance, some one while walking along a country road is run down by a lorry which all the witnesses say is an Army lorry, and then the fullest inquiries fail to show which lorry it was, or who was the driver, the injured man is in the position of not having a remedy. I shall, in due course, rely on the assistance of the two noble Lords who have spoken to help me to get the Bill through, and to mould it so that we can get a really satisfactory instrument for doing justice as between the Crown and the subject.