§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, in moving the Second Reading of this Bill, I have it in command to acquaint the House that His Majesty the King, having been informed of the contents of the Crown Proceedings Bill, is prepared to place the interests of the Crown at the disposal of Parliament in connexion with the Bill. It gives me, I confess, some little satisfaction to be able to move the Second Reading of this Bill. It may be true, as people often say, that in the past reforms have been held up by lawyers and the legal profession, but I think I may fairly say that all the lawyers I know have been pressing for the introduction of this Bill, or something like it, for many years past, and it certainly has not been the fault of the legal profession that this measure was not passed some time ago.
The object of the Bill, in a sense, is to put the Crown, so far as may be, in matters of litigation in the same position as the subject, so that a subject who wants to bring an action against the Crown may proceed as though he were proceeding against another subject. It gives me some satisfaction, too, to think that it is my Party who are responsible for introducing this Bill, though I confess it is in no sense a Party measure.
61 Sometimes on both sides tempers are apt to be rather frayed and one side is apt to label the other with the name "Hitler" or some other like term of endearment; therefore it is satisfactory to think that if we are marching on the road to serfdom at least to-day we are having a little pleasant interlude and are doing something to facilitate proceeding against the Crown and to prevent the little man from being crushed by the juggernaut of the State. It gives me some satisfaction to realize that it is my Party who have produced this Bill after it has been projected for about twenty-five years and Jain in its pigeon hole for some twenty years.
On other general considerations, I have come to the conclusion that this path of law reform puts me rather in the position of a mountaineer who scales one peak only to discover when he gets to the top that there are a great many other peaks he also has to scale. It is not very much good facilitating procedure against the Crown unless we take the next step and see that no one is precluded by lack of means from bringing those proceedings. It is not my custom, as your Lordships know, to make promises, but I sincerely nope that in a not far distant future I may be able to bring in a Bill to implement the recommendations of the Rush-eliffe Report. I hope, further, that in the very near future I may have some announcement to make to your Lordships with regard to the question of the reconsideration of legal procedure, particularly with a view to seeing whether we can reduce the cost of it.
The Denning Committee have done a very good piece of work in connexion with divorce, and it occurred to me that a similar committee might usefully investigate the question of County Courts and also the other divisions of the High Court. Then I am very anxious to embark on a project of consolidation and of getting a branch of the Parliamentary Counsel's Office that really can devote its attention to the consolidation which is sadly needed. Another matter which we have neglected almost entirely between the wars is the reform of Statute Law—the clearing up of some of the mess on our Statute Book. That is really a task which calls for urgent attention. I mention these things so that you may be aware that my task is by no means done 62 after introducing and piloting this measure.
I will be as brief as I can and try to set out the circumstances in which this Bill has become necessary. Certainly as early as the Thirteenth Century the rule had become established that the King could not be impleaded in his own Court—that is a survival of feudal law. Another maxim of almost equal antiquity which has played a very great part in the development of our constitutional law and theory is that the King can do no wrong. The combined effect of these two laws or two maxims have made themselves felt, even to this very day In the Sixteenth Century it was decided that in so far as matters of contract were concerned the King, who is himself the fount of justice, should allow claims in contract to be brought against him. I have always found it difficult to explain why, by a parity of reasoning, the same principle did not apply to what we call torts, the private wrongs committed by one person against another. But these maxims to which I have referred were introduced at a time long before there was any appreciation of the distinction between the King in his personal capacity and the Crown as head of the State. Nowadays when the Crown—that is to say, the titular head of the State—is indulging in multifarious activities, trading and the like, I think it only fitting that all these old difficulties in the way of impleading the Crown should be swept away. Your Lordships will notice, of course, that nothing in this Bill affects the King in his personal capacity. It would foe inconsistent with the Royal dignity that the King himself, in respect of his own acts, should be impleaded in his own Courts.
So far as contract was concerned, the position stood in this way. You had a claim arising out of contract against the Crown, but you could not sue, as of right, in the ordinary way; you had to bring a Petition of Right, and you had to get the Petition endorsed with the words: "Let right be done." I confess that I think the grievance here was a matter of form rather than of substance. I became Attorney-General nearly twenty years ago, and I found that there was then a well-established tradition that the Attorney-General should always recommend that the fiat be granted in any case where tnere was any sort of case against the Crown. Sometimes, if he was in grave doubt as to 63 whether there was a case, he would recommend that the fiat be granted and demur to the proceedings. I think that the grievance has been rather exaggerated by the more modern textbook writers. Certainly, in my own experience, the fiat has never been refused, except in the sort of case which was so utterly misconceived that if it had come into Court the Judge would inevitably have dismissed the action, at much greater cost to the particular person concerned.
In Scotland—and I speak with great hesitation about the Law of Scotland—I understand that so far as the law of contract was concerned, it was well understood that if a person thought he was aggrieved by breach of contract he was able to start an action against the Lord Advocate, representing the Crown, and start it as of right and not as a matter of grace. The effect of this Bill is to apply to both contracts and tort. It is in matters of tort that the real difficulty has arisen. The doctrine was: "The King can do no wrong," consequently, you could not, and are not able to-day, to bring any action of tort against the Crown. That does not matter very much so long as you can designate the particular person who has done you wrong. To show what I mean, perhaps I may give your Lordships a very simple illustration. If you are run down through the reckless driving of a Post Office van, what you do is to bring your case against the driver. The Crown will stand behind the driver, will conduct the litigation in his name, and will, if necessary, pay costs and damages. But, of course, even in those cases, difficulties do arise, because there may be a question as to whether the employer in an ordinary case, would have a defence, when, for instance, a question of common employment arises, or supposing it is questionable as to whether the driver on the particular occasion was really acting on the Crown's behalf or was engaged on some joy-ride or frolic of his own.
Those matters cannot be investigated by the Courts, because whether the Crown does or does not stand behind a particular defendant is entirely a matter for the Crown to decide. It is not just an issue. Consequently, we have had considerable difficulty in knowing how to deal with these matters with regard to the defence of common employment. Therefore, a scheme has been invented whereby we 64 have, first of all, an arbitration to ascertain whether, in fairness, we ought to stand behind a particular defendant. Then, when we have got the arbitration concluded, if the answer is "Yes," we have an action, and we fight in the name of the particular defendant. So, even in those cases where a particular wrongdoer can be identified, some difficulty does arise.
But the real difficulty that arises is in those cases where a particular wrongdoer cannot be identified, for in those cases there is ex hypothesi no one behind whom the Crown can stand. You cannot bring an action against the Crown for a tort, and consequently the Courts are closed. Let me give your Lordships another illustration. Supposing that somebody is run down through the negligent driving of an Army lorry, and that he or she is unable to get the number of the vehicle. The injured person finds that along that road at that particular time there was a succession of Army lorries. Inquiries are made, and each particular driver is quite certain that he was not the one concerned in the accident. There is then no way in which that question can be litigated in the Courts. The most you can do is to have some kind of arbitration—friendly arbitration. Or take another case, of which an example arose quite recently. Some soldiers, carrying out an exercise with flame-throwers were alleged to have started a fire which burned some ricks, but no one could say which soldier, If any, was negligent. An action could not be brought against the officer in command of the party. He was not the employer of the solders, he was a mere fellow-servant of the Crown. In a case like that an action cannot be litigated in the Courts.
Take another illustration. A bomb is discovered to have been placed with some material which is being removed by a contractor. The material is removed to a place on the contractor's own land, and there, suddenly, the bomb explodes and does considerable damage. No one can say what individual is responsible for putting that bomb there. Take yet a further case. Some children wander on to what had been a minefield, a minefield which had been protected by fences, notice-boards and so forth. Owing to the shifting of the sand-dunes the fences have become covered with sand and the boards also, and the children are injured by the explosion of a mine. No one can 65 say what particular person was responsible for the state of affairs which led to the accident, and so an action in the Courts cannot be brought.
The Crown, who have been most anxious to have these matters heard in the Courts, have resorted to the device of nominating some defendant. But your Lordships' House held recently—and, if I may say so, the decision was manifestly right—that you cannot nominate a defendant. Such a thing is quite misconceived, and, consequently, there is no way in which these actions can be reviewed by the Courts. Although we do the best wc can to avoid injustice by means of friendly arbitrations and the like, your Lordships will agree that that is a very unsatisfactory state of affairs.
Now, just a word about the history of this particular matter. It was in 1921—that is more than twenty-five years ago—that the then Lord Chancellor, the Earl of Birkenhead; obviously thinking that steps should be taken to make the Crown liable alike in contract and in tort, set up a Committee. That Committee originally consisted of twenty-four people, and it was indeed an all-star cast. There never has been a stronger Committee appointed, and they started their work in 1921. I see in front of me my noble friend Lord Schuster. He was Chairman of the Sub-Committee of the Committee, and everybody who knows that noble Lord, and knows his eagerness and his energy, is aware that he was not designed by nature to drive fat oxen. Yet, my Lords, that Committee sat through the years 1921, 1922, and 1923, until in 1924 Lord Haldane had become Lord Chancellor. Lord Haldane said: "Never mind about considering whether it is desirable that the Crown should become liable alike in contract and in tort; assume it to be desirable and feasible, and prepare a Bill for me."
That may have shortened the proceedings. But 1924 passed, 1925 passed and 1926 passed, and in the year 1927 a Bill was produced. I am bound to say that the Bill then produced was, structurally, not a very satisfactory Bill. If the noble Lord, Lord Beaverbrook were here—I wish he were because he would enliven us all—he would here have his perfect example of his theory about a committee. Here was the most distinguished committee ever appointed; it sat for nearly six years.
66 and then produced a Bill which I am bound to say was not a very satisfactory Bill. Yet any single one of that Committee, had they devoted themselves to this question for six months, would have been able to produce a far more satisfactory Bill. There the matter was left. Some two years later I became Attorney-General, and I found this Bill. I was advised by the then Parliamentary draftsmen that the Bill in the 1927 form was not satisfactory, and I suspect that all my predecessors in this office have received the same advice. I further found there were great misgivings about the Bill on the part of the Service Departments. I found too, that amongst some very distinguished lawyers on the Opposition side of the House there were even greater misgivings. We were able to do nothing then, and it is a fact that from that date to this nothing has been done in the way of introducing or carrying forward any Bill dealing comprehensively with this subject.
I am perfectly certain that this thing calls for more than tinkering; what we have to do is to deal with this matter on thorough and drastic lines. When I became Lord Chancellor I found that, though they were very anxious I should introduce this Bill, my colleagues were quite unwilling, for very good reasons, that I should be able to avail myself of Parliamentary Counsel. As your Lordships can readily understand, with this mass of legislation Parliamentary Counsel are a very overworked body of men, and to ask them to undertake the very complicated and difficult piece of drafting was difficult. Fortunately for me, I discovered that mere was one of that select band who had been Parliamentary Counsel, but who had resumed his practice at the Bar—Mr. Cooke—and I was able to induce him to undertake the task of drafting this Bill for me. I enlisted the aid of the Treasury Solicitor, Sir Thomas Barnes, and he has been full of enthusiasm for this Bill and has been able, though not without some difficulty, to overcome the misgivings of the various Departments concerned, particularly the Service Departments. All the credit for this Bill is entirely due to these two men. They have done a really good piece of work.
I turn to the Bill to make a few observations about it. I am quite sure the Bill can be improved, and that it will be improved by the criticism and help your Lordships will give it. I might say at once 67 that I think one method of improvement would be to start a new opening clause to make plain at the very outset what is implicit but not plain in the Bill at the present time. I would start off the Bill with a clause like this:Where any person has a claim against the Crown after the commencement of this Act and, if this Act has not been passed, the claim might have been brought either—That makes it quite plain that this relates to contracts and to tort, and, indeed, to all these matters where obviously you would, had you been granted a fiat, have proceeded by Petition of Right. We must consider whether this is wide enough to extend to such matters as patent and copyright, because if it does not we must put in the appropriate words to see that it does. I am very anxious that this should be wide and all-embracing, and covering the whole sphere. That will be within the new opening clause. It is in the Bill already, but it is rather hidden away, and the Bill needs to be carefully looked at to see that it is there.
then the claim may be enforced as of right without the fiat.
- (a) upon the assumption that His Majesty's fiat were granted by petition; or
- (b) by an Action in the High Court against an officer of the Crown;
Then we come to what is now Clause I. Under subsection (I) (a) we deal with vicarious liability; in paragraph (b) with the responsibility of the Crown to its own servants, and in paragraph (c) with any other claim arising out of ownership or control of property. I am very anxious that this clause also should be all-embracing. I think I have covered everything, but if not I am, willing to enlarge it.
I pass now to the group of clauses, Clauses 3, 4, 5, and 6, dealing with shipping, which put the Crown in regard to ships in the same position as the subject. They are technical, but I am able to tell your Lordships that the industries concerned have expressed their agreement with these clauses. When we come to Clause 7, I should remind your Lordships that this experiment we are now making has already long been the law in some of His Majesty's Dominions and Colonies—particularly in Australia and South Africa. They have Acts on the lines of this Bill, and they have worked well. In Clause 7, I am proposing to give protection to the Post Office. For the first time we are making the Crown liable in law in respect 68 of the registered parcels, but, as your Lordships will see, in lines 9, 10 and 11 of page 6, we are protecting the officers of the Crown against civil liability except at the suit of the Crown. The Dominion Acts do not contain these words "except at the suit of the Crown", but I think it right that we should have them in, so that if there is any gross case the Crown can take the necessary proceedings. Until now, by reason of Section 13 of the Post Office Act, there has been no liability in respect of registered parcels.
Clause 8 of the Bill is drafted on the lines of Clause 29 of the Bill of 1927. In some respects, however, it is much less wide. Here arises rather an interesting question. (I put these observations in the forms of questions, and I shall not attempt to answer them.) I have often wondered what is the true legal position as between two persons in the armed forces of the Crown, one of whom is injured by the negligence of the other.
To give a simple illustration, let me take the Charge of the Light Brigade. Could a trooper who took part in that Charge, whose leg was shattered by a cannon-ball, have brought an action against Lord Raglan (I think it was), to recover damages on the ground that Lord Raglan had blundered? When the "Victoria" and the "Camperdown" came into collision, could a sailor who went down in the "Victoria" have brought an action against the Admiral for giving an order which, as he would say, brought about the damage? Have you to empanel a jury in the King's Bench Division to determine whether there was or was not a case of negligence? And consider the case of Passchendaele. Could a soldier who was injured through sticking in the mud at Passchendaele have brought an action against Sir Douglas Haig alleging that he had not properly considered the nature of the terrain or the effect of the bombardment on the drainage system? And would Sir Douglas Haig have been able to answer: "Well, I quite realize all those things, but I had to do this because the French were being hard pressed at the time"? Have a jury to be empanelled to try all those questions which are obviously quite unfitted for them? Therefore we make it quite plain here that there must be no action in respect of these matters, either against the Crown or against a servant of the Crown, behind whom of course the Crown would have to 69 stand if such an action were allowed in respect of these matters.
Let me be quite frank: this clause (together with Clause 7) is one of the clauses that I have been pressed and indeed compelled by the Service Departments to insert in order to overcome the misgivings or, if you like, the reluctance which they feel, and have traditionally felt, about the introduction of this Bill. Therefore, although I am quite prepared to consider textual Amendments to this clause, I must make it plain that this is one of the clauses which I have had to say I will see is in the Bill. Clause 9 deals with the prerogative, and with action under statutory powers—the prerogative is the residuum of the rights of the Crown, outside Statute, which are necessary in respect of such matters as the defence of the realm, the conduct of the Armed Forces, dealing with aliens, and so on, and an instance of the statutory rights is, of course, the billeting of soldiers. Clause 9 deals with these matters. Clause 10 makes the Bill retrospective to February 13, 1947. That was the date of the introduction of the Bill.
Then we get a group of clauses dealing with jurisdiction and procedure. Your Lordships will notice that Clause II abolishes all the proceedings mentioned in the First Schedule. Students of the law yet unborn will bless us if we do away with writs of capias ad respondendum, writs of subpoena ad respondendum. writs of appraisement, writs of scire facias, writs of extent, writs of diem clausit extremum and various other matters of that sort. I am quite sure that here I shall have the strong support of students of the law. In Clause 13 we allow the Crown to be impleaded in any County Court. In the 1927 Bill it was a particular County Court, but of course we attach to that certain rights regarding change of venue which come under Clauses 17 and 18, which raise points that may well be discussed in Committee. In Clause 24 (I am taking a few of the more important clauses) we abolish the right which the Crown technically have to imprison for debt. The effect of the Debtors Act, 1869 was to do away with imprisonment for debt, save in certain specified cases. But the Debtors Act did not apply to the Crown. People are imprisoned for debt nowadays because there is some evidence of means and it is established that they could pay but will 70 not pay. In respect of death duties and purchase tax alone do we provide that this right should remain in the Crown, and that is because in both those cases the person proceeded against has received the money into his possession and is in the position of having failed to pay over that which he has received.
Then a word on discovery. I am quite satisfied in my own mind that the Crown must have the right to say that certain documents or sometimes certain classes of documents shall not be produced either in litigation to which the Crown are a party or litigation between two ordinary parties. I will give your Lordships an illustration of the sort of case I have in mind. In many of the Service Departments there are periodical reports on the conduct and credentials of junior officers by their seniors, and if there was the slightest chance of those documents being made public or brought up in a Court of law you would at once lose that complete freedom which officers feel they have today in setting out exactly what they think, and the public interest would be the loser. I say further, having discussed this matter with the Judges, that I am quite satisfied that the Judges would think it most undesirable that they should have the task of deciding whether documents should or should not be protected from disclosure. Very often you cannot tell, merely by looking at a document, whether it should or should not be protected. You must know all the circumstances which led up to the document, and for a Judge to inform himself of all those matters might mean that he would have to be closeted, as it were, with one party to the litigation without the other side being there. This matter has been very fully dealt with recently in the case of the "Thetis," and anybody who thinks that the reason we do not entrust this matter to the Judges is that we do not trust them, must have failed to read the "Thetis" judgment.
Having said that, I must add that I think this particular jurisdiction which is vested in a Minister of the Crown, to say that a certain document is not to be produced—a document, mark you, which is relevant or no question could arise—is one of the most serious matters that any Minister can consider. The administration of justice is of the; greatest importance. Every relevant document ought to be produced, and it is only if the Minister 71 really applies himself to the particular question as to whether the public interest overweighs the ordinary principle of disclosure that he is justified in making an order. I make those remarks because in a recent case an ex-Minister did commit himself to a statement which seemed to me to indicate that he did not realize the risk and what a serious task a Minister was undertaking when he made this sort of order.
From my own experience, I can say that two of my colleagues have come to me with regard to litigation, and I have been pleased to find that obviously they have asked for advice. If I could not give them definite advice, I told them to whom they could apply. But they were obviously regarding it as a very serious matter indeed. I am satisfied that if this thing is so regarded by Ministers there is no danger of abuse, and I think we must leave it in that way. We contemplate in Clause 31 that there will be Rules of Court. The first subsection of Clause 36 makes it quite plain that this does not apply to proceedings by or against His Majesty in his private capacity. Part V has application to Scotland. This Bill, unlike the 1927 Bill, applies to Scotland and there are also facilities for applying it to Northern Ireland if the authorities want to do so.
My Lords, that is the Bill, and I ask your Lordships' help with regard to it. From the experience which I have had in the last week or so, since this Bill has been introduced, when I have had the most generous help that has been forthcoming from your Lordships in all quarters of the House—and this goes quite outside political activities—I have no doubt that I shall get that assistance. I want to try to get this Bill through with expedition. At the same time I want great care to be taken, and I am relying upon your Lordships to help me to get this Bill as perfect as we can. I want that because our chance of getting this Bill into law is to send it down in good time, and to send it down as a piece of projected legislation in which we have all taken our share and played our part. The chance of getting it on the Statute Book will be completely destroyed if this is regarded as controversial legislation. Our chance of getting it on the Statute Book depends upon all Parties pressing that it should be put on the Statute Book 72 and I sincerely hope they will. Your Lordships will find me very ready to consider any Amendments to improve the Bill. However, I do want you to realize, in regard to the protective clauses which 1 have had to concede to the Service Departments and to the Post Office, that my hands are somewhat, but not entirely, tied. I am grateful to your Lordships for having listened to me for so long, and I beg to move that this Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
The noble and learned Viscount having referred to my great grandfather by name, I would just like to say that his responsibility for the Charge of the Light Brigade is not regarded by historians as by any means so certain as the noble and learned Viscount suggested.
§ 3.11 p.m.
§ VISCOUNT SIMON
My Lords, I am very glad to have the first opportunity, after the interesting and exhaustive speech of the noble and learned Viscount on the Woolsack, of saying to the House that I welcome this Bill with all my heart, and I congratulate the noble and learned Viscount on being in a position to introduce it to-day. With his concluding observation I am in particular sympathy, for, after all, the thing which ultimately matters here is not a question of praise or criticism; what matters here is not the introduction of the Bill—though I praise the speed with which that has now been done—but the carrying of the Bill into law. We shall not alter the lot of people who find difficulties with the present law unless this Bill reaches the Statute Book. I wish to assure the noble and learned Viscount, the Lord Chancellor, at once, not merely on my own behalf but I am sure on behalf of many others, that he will find in us nothing except the most genuine desire to assist the end which he so rightly defined in his final observations.
It is true that the existing law inflicts embarrassment, and even a denial of ready justice, to a certain number of people who deserve better treatment. One may roughly divide the whole subject, not perhaps quite accurately, into cases where the claim is one that arises out of the contract which a man has with the Crown, or some analogous case, and 73 the cases where what he complains of is that he has been injured by the action of a Crown servant, though he had no previous contract with him. I am very giad indeed that the noble and learned Viscount, the Lord Chancellor, proposes to bring out clearly at the beginning of the Bill that this is a Bill that deals with both, because I have met one or two people who have found it a little difficult to appreciate that as a matter of fact the Bill does provide for both.
The claim which has been brought by what is now called a Petition of Right is, of course, a claim which is made against the Crown itself—the Crown is the respondent—and it is a claim which is brought where a man alleges that there has been a breach of contract with the Crown, or in certain other cases where he says that the Crown has got his property and he ought to have it back. It is quite true (and I am one of the ex-Attorney-Generals who know it very well) that at present, apart from the fact that the procedure is rather special, there is an obstacle in the way of a man who has a claim of that sort against the Crown, because he cannot launch his claim in the Courts until he has got what is called a fiat, whether it is correctly called a fiat of the Attorney-General or a fiat of the Crown I do not stop to say, but in practice the principle that is endorsed is: "Let right be done." Only when that has been done can proceedings take place. I ought to point out—the noble and learned Viscount, the Lord Chancellor, did not happen to mention it—that that is of course a very convenient procedure to stop silly claims. But I entirely confirm his statement—it certainly was so in my time as an Attorney-General—that the Attorney-General will always grant his fiat, although he may himself feel that the claim when it comes to be investigated is a great deal of nonsense. He will not, however, grant his fiat if he thinks that the man is really off his head and is talking complete nonsense, and that really for his own sake the matter ought to be stopped. One result of the change which is made in this Bill—a change which I thoroughly approve—is that that particular method of stopping what may be called a hopeless claim against the Crown, will no longer exist. Everybody is entitled now, under this Bill, to issue his Writ against the Crown alleging a breach of contract, although as a matter of fact his case 74 might be quite absurd. I am afraid there are quite a number of people in this country who do entertain the most curious notions as to when they have a right to claim damages for breach of contract with the Crown. Against that, of course, there is already in the law a provision which I think is called the Vexatious Action Act, so that if you have an individual who persists again and again in a completely foolish claim, there are methods under which it can be stopped, in the interests of everybody, including himself. I am glad that the noble and learned Viscount, the Lord Chancellor, says that he is going to make plain in the early part of the Bill that it does abolish the Petition of Right, and all that; and that even in cases where the claim is a claim for breach of contract, it will be started and continued, in exactly the same way as if the claim were a claim against a fellow subject.
As regards the tort provisions, they seem to me to be very good. If I may just mention one point to the noble and learned Viscount, the Lord Chancellor, it is as to whether he really needs to put in line 2 of Clause I, "in tort". However, that is a technical question much better reserved for the Committee stage. The broad purpose of this Bill is absolutely right. The noble and learned Viscount is, in my judgment, completely justified in saying that it is urgently needed. I am delighted that we have now the opportunity of considering it thoroughly, and, I hope, without much loss of time, and of sending it to another place early enough in the year to make it really clear that a Bill so carefully examined, and so universally supported in a House which contains many members well qualified to judge its terms, ought to be put on the Statute Book forthwith.
When this Bill first appeared on February 13 some of us took it upon ourselves to undertake a little preliminary examination of it. Such Law Lords as were available were good enough to join me. We went through the Bill in private, in advance of to-day's debate, in order that we might ourselves get on as far as possible, and thus save time in examining the clauses through which the noble and learned Viscount, the Lord Chancellor, has now taken us. I think that was a useful contribution, which I know my noble and learned friends and I were willing to make. I had the real happi- 75 ness of writing to the Lord Chancellor when our consideration—and it was a very thorough one-—was over, to tell him that he might he assured that especially those who are called the legal members of this House were satisfied that this was an excellent and well-drafted Bill, and that we should unitedly do everything we could to facilitate and promote its progress.
One of the matters to which we drew attention was the question whether it would not perhaps be desirable that on the face of the Bill the abolition of the old-fashioned way of making a claim against the Crown by Petition of Right should appear as clearly as there appears in the text the right of the subject to bring an action for tort against the Crown. I have no doubt that the same ideas have occurred to others and to the noble and learned Viscount, the Lord Chancellor, himself. And, as we have just heard, that is one of the things which he means to propose in Committee. I do not feel any doubt whatever that on this Bill we shall get complete co-operation and a common desire to see it carried promptly but carefully through this House.
As the noble and learned Viscount has referred to the matter, perhaps I may say a word on Clauses 7 and 8. Your Lordships will appreciate that although this Bill is primarily designed to secure that a citizen may bring his claim against the Crown by the same process and with the same ease as that with which he can bring a claim against a fellow subject, that is not the only matter which is dealt with. The last three lines of Clause 7 (I) are an example of that. Clause 7 is the Post Office clause. The first part of the clause provides that no proceedings in tort shall lie against the Crown in respect of things done with a postal packet. There is a new provision about registered letters, which I dare say will be some set-off, but lines 9, 10 and 11 on page 6 have nothing at all to do with claims against the Crown. They provide that no private citizen may bring any claim against a servant of the Post Office, so far as that claim is based on a civil liability, for anything a servant of the Post Office does in the course of his duties as a Post Office official.
I see the reason for that, and I shall not attack it when the Committee stage comes. I think, however, that we should 76 understand what it involves, because it has the merit of being rather amusing. Unless I misinterpret it, it means—I am putting a very unlikely case—that if I, with my own eyes and in the presence of witnesses, see die local postmaster collecting letters addressed to me at my private address and observe that he is engaged in tearing them all up or throwing them into the fire, I cannot bring any action against him for damages in a Court. That sounds rather severe, but the answer, I have no doubt, is, first of all, that that sort of thing is very unlikely to happen, and secondly, that in such cases the Crown itself could, and would if it thought proper, take civil proceedings. I merely call attention to it because the noble and learned Viscount, the Lord Chancellor, has done so. I do not think I have misinterpreted it, although I have quoted what may seem to be an extravagant instance.
As to Clause 8—about which my noble friend behind me very properly intervened on grounds of historical accuracy—it is extremely easy to justify that clause by imagining that the complaint of the soldier is in respect of something happening in the middle of a battle. But it applies to a great deal more than that; it applies, of course, to any case in which a soldier meets with an injury owing to the negligent conduct, it may be, of his superior officer. It says in terms that such a soldier (or a sailor or airman—and I think it was probably the case of the airman which was very much in the minds of those who drafted this Bill) shall not bring any civil action for damages against a colleague or a superior officer, even though that person has been negligent and has hurt him, so long as they are engaged in the performance of their duties and service.
To take a simple example, if a Government aeroplane crashes and it is found that the crash is due to the negligence of the pilot in landing, no member of the crew can bring any action against the pilot for damages, and, what is more, no action can be brought against the Crown. That, of course, is not really a provision for securing that individuals may bring proceedings against the Crown in the same way as they bring proceedings against anyone else; it is, so far as it goes, a provision which prevents a claim being made by one member of the Armed Forces against another member when they are 77 both engaged in the performance of their duties. Now that I have heard the reason for that from those who assisted the Lord Chancellor, I can only say that I have formed the judgment that the provision can be justified, and when the Committee stage comes I shall make no attempt to ask for it to be reversed.
I would like to say one thing in conclusion. While it is a very long time since this sort of subject was considered by that very distinguished Committee (I had nothing to do with it, so I can speak entirely from the outside), I think the acute need for this Bill has been increasingly appreciated in quite recent times. The two special cases which the noble and learned Viscount mentioned are both cases which have come very much to the front of lawyers' minds in quite recent times. During the last war, when there were road accidents occurring from time to time owing to the reckless driving of Army vehicles the method which was first adopted was one which had gone on for a generation and longer. The claim was made by the injured man against the driver and, as the noble and learned Viscount, the Lord Chancellor, said, it was left to the Crown to decide whether the Crown would stand behind the driver. Perhaps the Crown thought: "Well, this man was wearing uniform, but as a matter of fact he was not discharging his duty; he was taking his best girl for a drive round the country, and we are not responsible in any way for that, any more than a gentleman who has a private car and a private chauffeur is answerable for his man having run over somebody when he was simply on a joy-ride." It seemed very hard that a decision of that sort should rest with the Crown without appeal.
Therefore, when I was Lord Chancellor, with the assistance of the noble Lord, Lord Schuster, and others, we devized an arrangement which the Fighting Services accepted. It was really that the question as to whether a private employer would be liable for his servant's injury, on which the Crown might undertake to stand behind the negligent uniformed man, should not be left to be decided by the different Departments—the War Office or whatever the Department was—but that we would agree to refer the question in every case that arose to a distinguished King's Counsel who would be selected for the purpose, and who would simply report on 78 his own investigation: for instance, that if negligence was proved against the man, it was a case in which, according to their ordinary principles, the Crown should accept responsibility. We therefore tried to get over that obstacle, and to a large extent I think we did get over it.
A difficulty still remains, however, if you do not know who is driving the vehicle. You cannot start an action unless you know the person whom you ought to serve with the writ. The other difficulty, which the noble and learned Viscount, the Lord Chancellor, also mentioned, is a long inherent but only recently appreciated difficulty. It was last autumn, here in your Lordships' House, sitting in its judicial capacity, that the matter was first made entirely plain. There had recently been an attempt to say, "We will get over these cases where we do not know who ought to be sued, by nominating somebody who shall be treated as though he really was responsible and then, after we have tried the case, the Crown will pay." That is, as the noble and learned Viscount has said, in very firm language—and I was glad to hear him say so although I was largely responsible for it—very bad law. You cannot make a person responsible for negligence unless you prove his negligence, and there are cases in which you cannot even imagine a substitute for the Crown. That is so particularly in cases where the injury is one which arises from a failure of the Crown, on premises which they occupy, to take proper care of the people who are invited or permitted to go there.
All those difficulties are swept away by the noble and learned Viscount's Bill, and I think he is very greatly to be congratulated on having put before us so well constructed and so complete an instrument, as I can assure your Lordships this measure is. I have heard my noble and learned friend, in connexion with some other Government Bills, commend the Bill to the House by saying, "Well, of course, I hate this Bill"—we have all heard that, and it is a very good gambit—"it revolts my sense of everything which is decent and just, but it is absolutely necessary that your Lordships should pass it." If I may imitate a gentle rebuke which my noble and learned friend was pleased to administer to me, I think the Lord Chancellor has rather too much 79 of a habit of defending Government measures by that particular opening. But this time it is quite different. I am glad the noble and learned Viscount likes it, and I like it, too. I am perfectly prepared to give honour where honour is due. Whether or not it was a wise observation for him to say that he particularly liked it because it would contribute so much to the reputation of the Labour Party, remains to be seen. I admit, of course, that you may have a piece of excellence which covers a multitude of sins, and it will remain in the future to be decided by the people of this country whether some of the other proceedings of the Government which he adorns are sufficiently compensated for by this most useful piece of legislation.
Lastly, do let us all form up behind him. Never mind about arguments, about origins and the other difficulties; let us form up behind him and get this Bill through the House with real care, by common consent and after looking really closely into its provisions. When all is said and done, the introduction of this measure by itself does nothing at all to help the people who are suffering. The thing which will help them—and I believe the noble and learned Viscount, The Lord Chancellor, will succeed in this—is that the measure should find its way, with our united effort and with the good will of another place, on to the Statute Book. If that happens, any part that any of us have played in the past in trying to urge this reform forward will be most abundantly compensated.
§ 3.38 p.m.
THE MARQUESS OF READING
My Lords, I am genuinely glad to have an opportunity of contributing to the congratulatory chorus which has hailed the introduction of this Bill into the House by the noble and learned Viscount on the Woolsack. I am all the more glad because I have been in the recent past amongst those who have continuously assailed him for the failure of the Government to produce this Bill, the need for which has been so widespread and so long delayed. At the same time, we all realized that if we were anxious to see a Bill of this kind, so indeed was he; and if it has not made its first appearance at an earlier date the fault lies not with him but with circumstances beyond his immediate control. The more literary-minded amongst those who produce antique sundials by mass production 80 are apt to inscribe on their costlier products lines which may perhaps indicate what has been in the mind of the noble and learned Viscount:If time lets slip a little perfect hour O take it, for it will not come again.It would appear that advertently or inadvertently the Government have let slip an hour of this kind, and our thanks are due to the noble and learned Viscount for having been so alert to seize upon it.
This is, I venture to think, essentially a Bill to be first introduced into this House, where the great weight of legal knowledge and experience which is available can concentrate upon it and give it due consideration without undue delay. But the purpose of introducing the Bill is not to silence a few importunate critics, but to abolish an injustice which has existed for far too long and which has been not only an anomaly but indeed something of a scandal. The Bill goes a long way, if not indeed the full way, to establishing the position we should all wish to see. If it has been necessary for some time and is now long overdue, it is all the more urgent and important in these days, when the widening sphere of influence of Government Departments impinges on the individual citizen in so many ways and at so many times, and consequently the question of actions against the Crown has become a far more immediate and personal question than it may have been in the past.
I welcome the alternative opening clause which the noble and learned Viscount the Lord Chancellor has now suggested. I had intended to indicate to him that perhaps he had not dressed his shop window in the original Bill to the greatest advantage, because he did give the impression, even to those who read it quite carefully, that it might be confined to cases of civil wrongs or torts and not extend to other branches of the law. But by a clause in the form, or something approaching the form, he has now indicated, I think that that danger will be averted, and anybody, be he lawyer or layman, with an inquiring mind will discover at once its all-embracing character and the fact that at one attempt the whole of the existing obstacles have been swept away.
I do not propose to go into the actual clauses of the Bill at this stage although when the time comes for Committee we may wish to investigate them in more 81 detail. I would pause only to say this. I realize the necessity of something in the nature of Clause 8, both in the inherent facts of the situation and also from the pressure of the Service Departments to which the noble and learned Viscount on the Woolsack has very frankly referred. I cannot pretend to any great affection for it, but I would like to make one very brief observation in regard to particular aspects of Clauses 8 and 9. I am always slightly disturbed by the intervention in the course of litigation of persons entitled to decide in advance by giving a certficate matters which, in my view, should form part of the questions which ought to be decided at the actual trial as matters of evidence, and not be ruled out by the mere production of a certificate by some superior authority. When the Committee stage comes I will take the opportunity to say something on those lines. For the rest, I will only conclude, as I began, with congratulation to the noble and learned Viscount. It may be that in the course of time this Bill which he has been so largely instrumental in introducing may come to be known as Lord Jowitt's Act and in that way enshrine his name amongst those reformers who have given added prestige and stability to the great fabric of British law.
§ 3.45 p.m.
§ LORD WRIGHT
My Lords, I intervene at this moment to say a very few words of congratulations, which I feel I must say, to my noble and learned friend, the Lord Chancellor, who has at last succeeded in introducing this Bill into the House. There have been, as we all know, very considerable difficulties before that consummation could be reached; but we have the Bill here now, and I do hope that as the noble and learned Viscount on the Woolsack has been so successful in getting it here he will be equally successful in getting it on the Statute Book with as little delay as possible. Some of us have gone through the provisions of this Bill in detail, and there are only some very minor matters, so far as I know, which will need consideration at a later stage. I should certainly deprecate, with all my power, the interposition of any difficulties which might delay the passing of this measure into law. I wish to associate myself completely with the two noble Lords who have just addressed your Lordships.
§ 3.47 P.m.
§ LORD SIMONDS
My Lords, I hope the noble and learned Viscount on the Woolsack is not already weary of praise and congratulation, for in truth I rise only to swell that chorus. But I have a special interest. I was one of those to whom so long ago as 1921 the noble Viscount's predecessor in office entrusted the task of considering the whole question and ultimately presenting a Bill. I do not know whether, after what the noble and learned Viscount has said, I should describe myself as one of a star cast—certainly a star of a minor constellation—or as one of those, I am not sure whether it was fat oxen or lean oxen, which the noble Lord, Lord Schuster, was accustomed to drive. But we laboured in that task and eventually did produce a Bill, and we presented it to the Lord Chancellor. We were proud of that Bill, and I was not only distressed but surprised to hear the words in which the noble and learned Viscount, the Lord Chancellor, spoke of it, because no word of criticism ever reached us then or thereafter.
I suppose that the Government of the day had done nothing more than to pursue a traditional and recognized method of dealing with a difficult and an embarrassing, though urgent, business. They committed it to a Committee or Commission and then forgot all about it. Now, twenty years later, the noble and learned Viscount, the Lord Chancellor, has produced this Bill, and though there may be points to be dealt with in Committee I will do no more to-day than to give it my unqualified approval and welcome. It is obviously not a Bill which makes for popular appeal. There is no clarion call in the title. It brings fuel to no man's grate, but I think that it is a Bill of great constitutional importance. As I look into the future, and see dimly the shape of things to come, it seems to me that there is an ever-widening area in which it is all-important that every man should get justice, not as of grace or favour but as of right. That, in brief, is the purpose and the result of this Bill. So, my Lords, I do venture to congratulate the noble and learned Viscount, the Lord Chancellor. Those who know him best are most fully aware how heavy is his burden and how grave and manifold are his preoccupations. The more honour to him then, that he has found time to introduce 83 this Bill, and I congratulate him most sincerely upon it.
§ 3.52 p.m.
§ LORD SCHUSTER
My Lords, unless I interpose for a few moments between your Lordships and the Second Reading of this Bill, I fear that historians may take as wrong a view of my history as they appear to have taken of that of the great-grandfather of the noble Lord, Lord Raglan. I am not sure who were the oxen, fat or thin, which I was supposed to drive. Whether they included the slim figure of my noble and learned friend who now sits on the front Opposition Bench, or my noble friend Lord Simonds, I am not certain. But I can say this: they needed no driving. The obstacle to the introduction of a Bill on these lines did not lie in any reluctance of successive Lord Chancellors to put it forward, but in other causes, which, for the sake of harmony, I will not now describe. It is true that I was one of the pack that found this fox and hustled him out of the covert, but by whom and why and how he was headed back is best forgotten—if it is known.
On the Bill itself I wish to say three things. First, I think it was a source of great anxiety to everyone who had the handling of the Bill, or the proposals for the Bill, twenty years ago, lest having been introduced, it should be seriously amended in Committee in either House, because the old Bill represented an extremely difficult and delicate balance between the rights of the subject and the necessities of the Administration. If I might do so, I would venture to urge upon the noble and learned Viscount, the Lord Chancellor—if he needs any urging—that the clause, for example, which protects the Post Office, subject only to those few words to which the attention of the House has already been called by my noble and learned friend, and the clause with respect to discovery, are the extreme limit which the interests of the Administration can allow. It was largely the fear that analogous provisions to those might be altered in Committee that hampered and made difficult previous steps towards this very much desired legislation.
Of the other two things which I wish to say, the first is that I cannot remember now—it is a long time ago, and I do not know if my noble and learned 84 friend Lord Simonds remembers—what we were trying to save when we tried to save the Prerogative of the Crown. I understand even less now, when I see how our clause has been reproduced. It is a Committee point and I do not want to argue it now, if ever; I only want the noble and learned Viscount, the Lord Chancellor, to consider, between now and the Committee stage, whether that particular saving is indeed required and, if so, whether very appropriate words have been found for the purpose. My last observation but one is this: our old Bill was drafted by the most elegant draftsman of his time—if I may use such an expression. He was assisted in his work by his successor in the office of Chief Draftsman to the Crown. He had around him a cluster of people who were, at any rate, well versed in Parliamentary draftsmanship, and in justice to their memories (though many of them are still alive; one happens to be in India, and another in Switzerland) I cannot accept the suggestion that my learned friend (and I do not use that phrase in any conventional sense) Mr. Cooke has produced a measure that, from the point of view of artistry, is any improvement on that which Sir William Harrison and Sir Maurice Dwyer produced twenty years ago.
But I pass from that and, leaving aside all the pastoral epithets, forgetting the analogies about oxen and so on, I desire to say how grateful I am to the noble and learned Viscount, the Lord Chancellor, that this bantling, which was so largely my own twenty-six years ago, should now have had life breathed into it by him. I trust that he will continue the process of acting as bellows and that, finally, with its lungs well expanded, it will pass through not only this House but the House below and receive the Royal Assent at this Table.
§ 3.57 P.m.
§ VISCOUNT MAUGHAM
My Lords, I too join in approval of the Bill which is now before your Lordships. I am only afraid that there may be some suspicion in the public mind of the unanimity of lawyers on this subject! It really would have been some comfort to me to have heard some hearty attack on the Bill which I could have disposed of in a few short words, without any hesitation. But there it is. We all agree with the objects of the Bill, and I wish only to say a few 85 words with reference to some of the provisions in it and some of the speeches that have been made. May I first indulge in one little piece of history which your Lordships may care to add to your recollections of the Charge of the Light Brigade. The leading case, or practically the leading case, on torts by the Crown or officers of the Crown, which, of course, is the main subject of this Bill, was connected most closely with the House of Lords and with the other place.
In 1834 some officers of the Crown proceeded to destroy the Exchequer tallies which had accumulated into a very great pile, and they employed people to burn them in the stoves that then heated the House of Lords. By the negligence of someone, the House of Lords was burnt down, adjoining buildings were burnt down and the House of Commons was also destroyed. In the course of the con-fagration, furniture belonging to the Speaker of the House of Commons was involved. He lived in a house which was part of the House of Lords and which was, therefore, a portion of the Royal Palace of Westminster. After he had ceased to be Speaker, he brought an action to recover the value of his furniture, alleging negligence by the servants employed by the Crown to burn the tallies. He failed. That is, I think the most distinguished and leading case of modern times On the subject of torts by officers of the Crown. It is to be found reported in the first volume of Phillips Reports.
I have introduced that story to emphasize that, in my belief, the method of dealing with torts from which the Crown was free before this Bill constitutes the most important part of the operation of this Bill. I was exceedingly glad to hear, when the noble and learned Viscount, the Lord Chancellor, began his speech, that he proposes to introduce a new clause of an introductory character which will place it beyond any doubt that contracts as well as torts are dealt with by this Bill. In that respect I want to call the attention of the Lord Chancellor to one thing. Speaking without having had the opportunity of seeing the clause before me, I believe it would be unwise to think that all contracts are included within the area of this Bill. My knowledge of this branch of the law may be a little rusty, but my knowledge is to this effect: that although the great majority of contracts, and all actions for property, could have been brought by 86 Petition of Right with a fiat from the Crown, there were certain exceptions of great importance, and, in particular, the great exception that contracts of service made by the Crown with officers of the Army, the Navy and, more recently, the Air Force, and similar contracts with, civil servants of the Crown with the Crown, were not permitted to be brought by Petition of Right.
That, I would respectfully suggest to the noble and learned Viscount, the Lord Chancellor, ought to be looked into, because when I read the Bill I came to the conclusion, with that view of the law, that it was intended to observe that exception which had existed in the case of Petitions of Right so far as they were employed to implement contracts made by the Crown. I thought it was not intended to cover such cases as actions for salaries, pay, pensions, and breaches of contract of service, by soldiers, sailors, airmen, and civil servants who were direct servants of the Crown, and that they were to be left outside, to be dealt with according to the discretion of officers of the State. I confess that, having thought that was the view entertained by the promoters of the Bill, I was not prepared to say that they were wrong, and I see strong reasons to preserve that exception as regards soldiers, sailors, and airmen, although I am not so sure that I see any reason for preserving it in the case of civil servants. However that may be, I think your Lordships will all agree with me it ought to be clearly established, one way or the other, how far the Act extends in that respect. That is the most important point that occurs to me at the present time.
Having carefully considered what was said by noble Lords who have spoken before me, I should like to add that, for my part, having criticized it and having at first thought that I could improve it, I have come to the conclusion that Clause 8 is in substance good and is not, so far as I can see, capable of any substantial improvement. I would add, in regard to the doubt my noble friend Lord Schuster has expressed in reference to the precise area which Clause 9 is intended to cover, that I thought it would, cover the matter I have already referred to—namely, contracts of service with soldiers, sailors, and the others. If it does not, I would merely observe in passing that the word "prerogative" has an enormously wide range, and might be held to cover matters which 87 are not really intended to be applicable to, or to be covered by, the provisions of Clause 9. Having said that, I wish to add a word of congratulation to the noble and learned Viscount, the Lord Chancellor, for bringing this Bill forward. To remove any doubts in the minds of anybody who happens to be here, I will add that for my part I do not propose to embarrass the passage of this Bill by framing Amendments between now and the Committee stage. If anything occurs to me I shall be content to submit it to the consideration of the Lord Chancellor in a more or less private manner, and I will not weary your Lordships with it on the Committee stage.
§ 4.7 p.m.
§ LORD LLEWELLIN
My Lords, I feel it is rather bold of me to take part in a debate of this sort. Noble Lords who have so far spoken are either at present holding or have in the past held very high judicial office. At least, they are King's Counsel. I merely talk as an ordinary man. But this is a measure that will affect quite a number of ordinary men and, therefore, I think it is just as well that one of them should stand up in the House and welcome it, as I now do. I am extremely glad to hear that the noble and learned Viscount on the Woolsack intends to insert the clause which he outlined to us in his opening remarks this afternoon. When I read this Bill, I was in considerable doubt as to whether by getting rid of the old Petition of Rights we were securing something in its place so as still to enable the subject to sue the Crown in contract.
There is one point in regard to contractual liabilities to which I would refer and which is, so far as I can see, completely omitted from this measure. I see no reason why the Statute of Limitations should not run against the Crown, and we might well take the opportunity of having the same limit within which the Crown must bring an action if they wish to sue a subject. I am rather methodical with my receipted bills, and at the end of every six years I tear up the bills of the year that is covered by the Statute of Limitations. I have a pile—it is getting a very big one—in which I have receipts that I have kept for more than seven years. They are receipts for Income Tax, because I never know when an action may be brought against me for some Income Tax 88 I have previously paid. I think the time has come—and I suggest this to the noble and learned Viscount, the Lord Chancellor—when there should be some limit, so that the Crown will have to be as active as the subject has to be in bringing actions against the subject.
I look upon this measure as not only in some cases abolishing injustices, but as, in many more cases—I believe the vast majority, since a lot of the injustices were covered because the fiat of the Attorney-General was given and the case was brought—simplifying the procedure. The simpler the procedure in law, the cheaper is the law, and the more expeditious it is. And so I think one of the great advantages which this Bill will confer will be by making the law cheaper than it was under the cumbrous old method of Petition of Right. It will be more expeditious, and that is a very great advantage. Incidentally, I am delighted to see the abolition of some of these old forms. I remember being struck with alarm and despondency when I practised at the Bar in suddenly finding that if I wanted to pursue some action for a client I had to go by way of Latin or English information, things about which I must admit I knew very little. Indeed, I looked to-day at the forms to be abolished, and I quite frankly admit that there were one or two I had never heard of. I am very glad to see all those forms going.
There are one or two matters on which I should like to comment, not by way of making Committee points at this stage of the Bill, but merely to give an intimation of subjects it might well be worth looking at later. Perhaps, however, the noble and learned Viscount, the Lord Chancellor, can give answers to them now. In Clauses 3 (3) and 4—these are the shipping clauses—there is the expression: "This subsection shall be deemed always to have had effect." When one finds a sentence like that in the Bill, and it is affecting all sorts of legal rights, one would like an explanation as to why it is there. I appreciate that going back to the date when this Bill was introduced in February is all right, but when you see with regard to two new sections that they shall be deemed always to have had effect, goodness knows how many years back that may carry one and what the effect may be. There is no doubt some very good reason for putting that in, but it is the kind of reason I should like i to know.
89 With regard to two clauses that have been mentioned, I believe that Clause 8 is absolutely essential. I have no hesitation whatever—not that hesitation which the noble and learned Viscount on the Woolsack had—in saying that I do not think there can be any action by one member of the Services against another. They have just got to take the risk of that common employment in which they are all engaged.
§ LORD LLEWELLIN
When they are on duty, according to the way the clause is drawn. Coming to Clause 7, I have not looked up all the Post Office Acts, but I should like to know whether previously one could bring an action in tort against a servant of the Post Office, because those words at the end of Clause 7 (I), "except at the suit of the Crown," do not seem to me to alter the position very materially. To bring an action in tort (I shall be corrected here if I am wrong) some damages must have flowed from the tort committed, and I do not see what damages the Crown will have suffered. If the postmaster burns the letters of my noble friend sitting beside me on this Bench, I do not see how an action in tort would be grounded. So I doubt whether those words would be very effective. Of course, the Postmaster-General can get rid of the postmaster; no doubt he would, that is the normal way of dealing with the matter. But I doubt whether those words at the end of Clause 7 (I) could or would ever really be used.
Before I pass from Clause 8, I should like to draw attention to one phrase. I agree with the noble Marquess, Lord Reading, that certificates have to be very carefully dealt with, and although I am prepared to agree that "a certificate of a Secretary of State" is all right, I do not like the words "a certificate of the Admiralty." It ought to be (no doubt in practice it would be, but I would like to see it in the Bill) "a certificate signed by two members of the Board of Admiralty." "A certificate of the Admiralty" might be a certificate just from any clerk who could write on Admiralty paper. We ought to see that certificates of this sort are given only by the highest authorities. If I may refer to the words which the noble Viscount, Lord Maugham, mentioned, I must say that I think the words in Clause 9 (I), "in the lawful 90 exercise of the prerogative of the Crown or of any right conferred upon the Crown by any Statute," are extremely wide. I should have thought that those words were doing a great deal to get rid of the other benefits that are being brought by this measure.
I do not want to occupy your Lordships' time unnecessarily, but there are one or two points to which I would like shortly to refer. With regard to Clause 17 (2), I see no reason why the consent of the Crown should be necessary. The words are:The trial of any civil proceedings by or against the Crown in the High Court shall be held at the Royal Courts of Justice unless the Court, with the consent of the Crown, otherwise direct.I do not see why it is necessary to hamper the decision of the Court in that case, and why the assent of whoever is appearing for the Crown should also be required. With regard to Clause 18, though it may be quite right for the Crown to ask for the proceedings to be transferred to the High Court, I think we ought to put in some provision that, if that is clone, the parties concerned in a test action will not have to pay additional costs because of the action of the Crown in transferring the case from the County Court to the High Court.
The only two other matters on which I should like to comment are in Clause 31. I should like to see Clause 31 (2) (b) and 31 (2) (e) completely omitted, because I do not see why the Crown, more than anybody else, should have the power to impose interrogatories on the other side without the leave of the Court. In all these procedural matters, I should have thought that the whole point of this Bill was to try and put the two parties on a completely equal footing. We must preserve the right of the Crown to protect secret documents; and we must preserve immunities with regard to people in the services of that sort; but when we come to certain procedural matters in Court, we ought to put the Crown on exactly the same footing as any other party to a case. That is why I should like to see those paragraphs omitted.
Before I sit down, I cannot refrain from commenting on Clause 31 (3), where we get Rules of the High Court—Rules which are not subject to either affirmative or negative resolution of this House—made under this subsection which may revoke 91 any enactment. I think that is a bit sweeping. Revoking enactments by Orders in Council that have to be scrutinized by the Houses of Parliament may be one thing, but revoking enactments by Rules of the High Court, which have not to go through that procedure is the kind of thing that one ought not to let slip into the Bill. It is a bad provision in what I would otherwise describe as an extremely good measure. I have outlined those points only so that if he wishes the noble and learned Viscount on the Woolsack may take the opportunity of talking some of them over, if he does not deal with them this evening. I believe the wish of us all is to get this measure speedily on the Statute Book, and to have it go from this House to another place in so perfect a form that there may be no necessity to amend it in that other place. We all wish this measure success, and we will go forward in our determination to see it on the Statute Book before this session ends.
§ 4.22 p.m.
§ THE LORD CHANCELLOR
My Lords, I am very grateful to your Lordships for the reception which you have given to this Bill and for the kind things which you have said about it. The Committee stage of this Bill will, I hope, be taken on Thursday week. If any of your Lordships have any points of difficulty or any points which you would like to discuss, I am sure that the Treasury Solicitor will be only too willing to discuss them. There are just one or two points I would like to mention because I think they may assist some noble Lords. The noble and learned Viscount, Lord Maugham, mentioned a point about servants of the Crown which I will certainly look at. My understanding of the matter is that they serve at the pleasure of the Crown and nothing in this Bill is intended to interfere with that relationship.
I remember very well the noble Viscount, Lord Buckmaster, sitting in this House in a judicial capacity and presiding over a Court, being extremely indignant because, for some reason or other, somebody had managed to get a case before the House in which some servant of the Crown was suing for damages for wrongful dismissal, or something of that kind. The noble Viscount, Lord Buckmaster, was surprised that any 92 such action could be brought by any competent counsel and that he could argue that a servant of the Crown could possibly maintain such an action.
§ VISCOUNT MAUGHAM
If the noble and learned Viscount will allow me to say so, I have no doubt that they do serve at pleasure, and therefore it is obvious that they cannot sue for wrongful dismissal. But I was thinking of the other cases of suing for money which they had earned, or pensions to which they were entitled.
§ THE LORD CHANCELLOR
I understand that, too. But if you look at the form of the grant of a pension you will find that it is not paid as of right, but as a grace, and no action could be brought there at all. With regard to what the noble Lord, Lord Llewellin, said about limitations, I should like, if I may, to give him this advice. If he looks up the Limitation Act of 1939—I think it is Section 30—I believe he will find that it does bind the Crown. Except in regard to Income Tax, the Crown are bound by limitations. As to the questions he raised with regard to the Post Office clause, he will find that the Crown as bailees have the right to bring an action just as though they were the owners of the letters in question. I have forgotten the name of the case—I think it was Wingfield—where the mails which were in possession of the Postmaster-General were lost by negligence on a ship at sea, and the Postmaster-General, although he was not the owner of the mail but was merely carrying them, was as bailee entitled to recover the full value of the mail.
The noble Lord, Lord Llewellin, asked me about Clause 9, dealing with the prerogatives. The noble Lord will observe that the words are "in the lawful exercise." Directly you can establish that anything which has been done has not been done lawfully, then you are altogether outside the protection of that clause.
§ THE LORD CHANCELLOR
I think if the noble Lord has regard to the adverb and the adjective, he will find that that clause is not so very far amiss. With regard to the other points, I know the 93 answers to them but I do not think I need detain your Lordships at present; suffice it to say that I will look into them. With regard to the point made by the noble Lord, Lord Llewellin, about the Admiralty, I am inclined to think that we may need some small Amendment to deal with it. I am grateful to your Lordships for your consideration of this Bill.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.