Lords Sitting of 13 March 1947

Preamble
The House met at four of the clock. The LORD CHANCELLOR on the Woolsack.
Prayers.

  BUSINESS OF THE HOUSE.
  4.5 p.m.
  LORD AMMON: My Lords, owing to the large number of noble Lords who have given notice, through the usual channels, that they propose to take part in the debate on the Economic Situation which stands on the Paper for Wednesday next, the r9th instant, in the name of the noble Lord, Lord Rennell, it has become clear to the "usual channels" that it will be necessary to allot a further day to that important subject. We have agreed, therefore, to propose to your Lordships that the Economic debate should be continued on the following Thursday afternoon, the 2oth, and that the principal business now on the Paper far that afternoon—namely, the Committee stage of the Polish Resettlement Bill—should be postponed until the following Monday, March 24, when we shall ask the House to take it before the Report stage of the Companies Bill is opened that afternoon. If your Lordships are agreeable to this proposal, we shall put a formal Motion down on the Paper for Tuesday next, to give the Committee stage of the Polish Resettlement Bill the necessary precedence on the following Monday.
  VISCOUNT CRANBORNE: My Lords, I rise only to say that the arrangement is perfectly convenient to us, and we are most grateful.

INDIA.
4.8 p.m.
VISCOUNT CRANBORNE: My Lords, I beg to ask His Majesty's Government the following question of which I have given them private notice: To ask His Majesty's Government whether in view of the Congress Resolution reported in The Times of Monday last, March 10, pro-
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posing, notwithstanding the provisions of the Government of India Act, that the Statutory Powers and duties of the Viceroy should be abrogated, His Majesty's Government are giving any, and if so what, instructions to the new Viceroy as to the attitude to be adopted to such proposals.
THE SECRETARY OF STATE FOR INDIA AND BURMA (LORD PETRICKLAWRENCE): My Lords, as was pointed out in the recent White Paper, inevitably, as the process of transfer of authority proceeds, it will be progressively more difficult to carry out to the letter all the provisions of the Government of India Act, 1935. This situation was, of course, foreseen at the time of the visit of the Cabinet Mission to India last year, and was the subject of discussion and correspondence with the Indian leaders. In his letter of May 3o last to the President of the Congress Party, the Viceroy made it clear that the Interim Government would not have the same powers, as a Dominion Government, since the whole constitutional position was entirely different. He said, however, that His Majesty's Government would treat the Interim Government with the same full consultation and consideration as a Dominion Government, and would give it the greatest possible freedom, in the exercise of the day-to-day administration of the country. This statement, which was laid before Parliament many months ago, still remains the position. Naturally the matter has been fully discussed with the Viceroy-designate as to how best the situation can be handled.
VISCOUNT CRANBORNE: My Lords, I should like, if I may, to ask the Secretary of State for India one further question for the purpose of elucidation. Is the House to understand from his answer that there is no alteration in the position envisaged in the White Paper, under which, if an agreed Constitution had not been worked out: by a fully representative Assembly before June, 1948, the decision as to whom the power of central government should be handed over on the due date remains with His Majesty's Government here?
LORD PETHICK-LAWRENCE: I think the situation is as set out in the White Paper.
VISCOUNT SIMON: My Lords, might I ask this question bearing on what the

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Secretary of State has just said? The noble Lord has referred to paragraph II of the White Paper which, as he has reminded us, says that it will become progressively more difficult to carry out to the letter all the provisions of the Government of India Act, 1935. The question I should like to ask is: Does he consider that the provisions of the Government of India Act, 1935, which, by Statute, throw a personal responsibility upon the Viceroy in the discharge of his special responsibilities to minorities, to civil servants, and in regard to some other matters, arc provisions which may be dispensed with because it would merely be brushing aside the letter of the Statute; or do they remain part of the duty of the new Viceroy until there is a change in the law?
LORD PETHICK-LAWRENCE: I think the position is quite clear. The Statute, of course, remains, but I think the noble and learned Viscount will recognize that in the progress towards self-government there are changes which are made by convention. I think he will remember that in the famous Simon Report, with which we are all familiar, that matter was referred to, and something of this sort was said: that constitutional progress should be the outcome of the practical experience and progress of the self-governing parts of the British Empire, and would be dependent on conventions, rather than on changes made at intervals in the formal language of Acts of Parliament. Therefore I am not ruling out the possibility of conventions, but it is not proposed to change the main Act until the time comes when a formal proposal is made to Parliament to that effect.
VISCOUNT SIMON: I am greatly obliged, but the noble Lord has really not quite understood my question. I certainly would agree that conventions may have to be established, so long as they are not in breach of the law. What I wanted to ask was a perfectly simple and specific question with regard to the responsibilities of the Viceroy. Does not the noble Lord agree that the Viceroy has statutory duties, and can these duties be set aside by what is called a convention?
LORD PETHICK-LAWRENCE: I think I have made it quite clear in my original statement. I do not think I can add to it.
VISCOUNT CRANBORNE: It is a very important point. We have all read this Resolution of Congress, and no doubt the Secretary of State has also read it. It is clear that what is envisaged there is that the Interim Government should attain immediately the status of a Dominion Government. That would mean that with regard to the future of the country all power would be immediately transferred from the Viceroy to the new Dominion Government. Do His Majesty's Government accept that position, which appears to us to be a complete breach of the meaning of Article 10 of the White Paper?
LORD PETHICK-LAWRENCE: I think I have made that perfectly clear in my original answer, and I believe that when the noble Lord reads it he will see it is quite clear. What I have said is:
"In his letter of May 30 last to the President of the Congress Party, the Viceroy made it clear that the Interim Government would not have the same powers as a Dominion Government, since the whole constitutional position was entirely different…."
Later on I said:
"This statement, which was laid before Parliament many months ago still remains the position."
VISCOUNT CRANBORNE: I wonder if I may ask the Secretary of State one more question. Could he give us an assurance that this country and Parliament will be consulted before any binding commitment is reached with regard to the future of India? I think that is a perfectly clear and simple question.
LORD PETHICK-LAWRENCE: No commitment can have final force until it is laid before Parliament and receives the sanction of Parliament. The usual constitutional procedure would be followed.
VISCOUNT CRANBORNE: There is a little more to it than that. Suppose that the Government, without informing Parliament, were to enter into a private commitment with the Interim Government, or with the Congress Party, or whoever it might be, and tell Parliament afterwards, then clearly Parliament would not be in a position to intervene effectively. What I am asking is this: If there are any developments, if there are any proposals which the Government think might be acceptable, before they enter into any commitment themselves, whatever the

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situation is, will they inform, and if possible consult, Parliament?
LORD PETHICK-LAWRENCE: Parliament will have to be consulted at the appropriate time. I do not think I can answer a hypothetical question of that kind until the position arises.
LORD RANKEILLOUR: May I ask the noble Lord whether it is possible for the reserve powers of the Governor-General and of the Provincial Governors to be abrogated without an amendment of the Government of India Act, 1935?
LORD PETHICK-LAWRENCE: I think I have made that position clear.
THE MARQUESS OF SALISBURY: May I take it from the answers of the Secretary of State that the two famous conditions—previous agreement between the Parties and the protection of minorities—form part of the instructions of the Viceroy-Elect?
LORD PETHICK-LAWRENCE: We had a debate on this question, and I think we dealt with all that.
LORD HAILEY: May I ask the Secretary of State one simple question? Taking it for granted that the statutory powers and responsibility of the Viceroy will remain as before, are we to understand that His Majesty's Government will not give him any instructions not to discharge those duties?
LORD PETHICK-LAWRENCE: That seems to be rather a complicated question. Obviously he can receive no instructions contrary to the provisions laid down.
VISCOUNT SIMON: Contrary to the law.

LOCAL GOVERNMENT (SCOTLAND) BILL. [H.L.]
LORD MORRISON: My Lords, I beg leave to introduce a Bill to consolidate with amendments the enactments relating to authorities for the purposes of local government in Scotland, and to move that it be read a first time.
Moved, that the Bill be now read a.—(Lord Morrison.)
On Question, Bill read Ia; and to be printed.

CROWN PROCEEDINGS BILL. [H.L.]
4.17 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself Committe.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Earl of Drogheda in the Chair.]

PART I.
SUBSTANTIVE LAW.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, at the beginning of Part I, to insert the following new clause:
Right to sue the Crown.
"Where any person has a claim against the Crown after the commencement of this Act, and, if this Act had not been passed, the claim might have been enforced, subject to the gram: of His Majesty's fiat, by petition of right, or might have been enforced by a proceeding provided by Parliament in substitution for petition of right, then, subject to the provisions of this Act, the claim may be enforced as of right, and without the fiat of His Majesty, by proceedings taken against the Crown for that purpose in accordance with the provisions of this Act."
The noble and learned Viscount said: This is the first Amendment I desire to move, and, in moving it, may I say something that is applicable to this and to many other Amendments—that they are not the result merely of my own thought. Nearly all of them are the result of the pooling of effort which I and many other noble Lords in this House accustomed to dealing with these matters have given. I should like at the outset to recognize the debt of gratitude which I, and all those interested in this matter, owe to my noble and learned friends for the services and help which they have given.
It was pointed out to me—and I entirely agreed—that this Bill was defective in that, although if one analyzed and studied it carefully one realized that it applied to contract as well as to tort, it was rather a matter of digging out that result from the Bill. We therefore thought it right to make it clear at the very outset of the Bill that it applies to contract as well as to tort, Consequently, I beg to move to insert an opening clause to this effect:
"Where any person has a claim against the Crown …"—
Your Lordships will see it is a claim of any sort—
"after the commencement of this Act, and, if this Act had not been passed, the claim

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might have been enforced, subject to the grant of His Majesty's fiat, by petition of right, or might have been enforced by a proceeding provided by Parliament in substitution of petition of right, then, subject to the provisions of this Act, the claim may be enforced as of right, and without the fiat of His Majesty, by proceedings taken against the Crown for that purpose in accordance with the provisions of this Act."
I think these words are quite plain.
I might, perhaps, say something about the phrase, "or might have been enforced by a proceeding provided by Parliament in substitution of petition of right." If your Lordships will turn to the Second Schedule, on page 29, you will see set out a series of sections of previous Acts which are being repealed. You will see we are leaving out of Section 6 (r) of the Ministry of Pensions Act, 1916, the words: "sue and be sued and may." That also applies to the Air Force Act, and, though it is rather hidden, it applies to the Ministry of Health Act and to the Forestry Act. All those Acts of Parliament made a special stipulation that the Minister might sue and be sued in his own name, and by Clause 35 of this Bill—that is the clause on page 22—your Lordships will see that those enactments are being repealed. Those provisions having gone, only the old petition of right proceedings remain to be dealt with, and they are dealt with in this first Amendment. I beg to move.
Amendment moved—
Page 1, line 6, at end insert the said clause—(The Lord Chancellor.)
VISCOUNT SIMON: I have no doubt that the House will receive this proposal of the noble and learned Viscount, the Lord Chancellor, with much satisfaction. It is gracious of him to say that the form of some of these Amendments has been the subject of discussion between himself and others who belong to the House who perhaps have some reason to think they have special knowledge of the subject. It is by no means limited to myself. We have done it in a purely co-operative spirit. I thought it a great improvement in the Bill that, right at the beginning, it should be stated in simple terms that if you had, or thought you had, a claim against the Crown, arising out of a contract, or a claim against the Crown because you said the Crown had got your property, you would be able under this new Bill to proceed by issuing a Writ
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in the way hereafter provided. I do not think it would have been easy for everybody to find that out in the form of the Bill as it was originally drawn, though I am sure it was always intended that one should. I think it a great advantage that this clause should be put in right at the beginning. Of course, the provision about claims in the nature of tort cannot be put in at the beginning at the same time, because that clause comes immediately afterwards, but when you read the two clauses together you have the broad scheme of the whole legislation which I think all agree we should promote as quickly as we can.
I have one small query to indicate to the Lord Chancellor. I would sooner have indicated it to him privately, but both of us have been much occupied. I do not intend to do more than ask that he and those who specially advise him should look into it. This is far from the first draft, but I feel a little doubt, even now, as to whether it is quite right. In substance what it says is that until we make this alteration in the law, at any rate in matters of contract, there are two ways in which one might hope to get at the Crown. One is by the Petition of Right, which requires the fiat which the Attorney-General recommends, and the other is the rather exceptional case, such as in those instances which the noble and learned Viscount, the Lord Chancellor, has just mentioned. I wondered whether it was correct to refer to the second case as a case where Parliament had provided a proceeding in substitution for the Petition of Right. I am not sure about it, and I merely mention it in order that it may be looked into. I rather think the Statutes do not say so, and that they give an additional rather than a substituted remedy. I mention this only to be sure that before we get to the final disposal of the Bill the noble and learned Viscount, the Lord Chancellor, may be satisfied that it is in exactly the right form.
In the same way I believe one can now issue a Writ against the Postmaster-General for at any rate certain kinds of claims. I do not think—I have not, at any rate, noticed it—that that Act has been repealed, though I am not completely sure on the point. Of course, if that were so, it would seem that this clause is not in the right form, because it proceeds on the assumption that the old remedies

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are gone and the new remedies substituted. I am sure that the noble and learned Viscount, the Lord Chancellor, will see that the matter is looked into. I was rather under the impression that it was not necessary, or might have been enforced by a proceeding provided by Parliament in substitution for Petition of Right. Now the substance of it is that we put in the new and much better procedure in substitution for the old procedure. That is purely a technical comment, not in the least intended to modify my own unqualified satisfaction that the noble and learned Viscount, the Lord Chancellor, should have found it possible to put down this Amendment in this form on the Paper.
VISCOUNT MAUGHAM: I have only one query to offer in addition to those which my noble and learned friend Viscount Simon has just mentioned. I have a doubt as to whether the first line, "Where any person has a claim against the Crown after the commencement of this Act," is just what is needed, in this otherwise admirable clause, to show precisely what cases can now be enforced without a Petition of Right or anything of that kind. My doubt is of this nature. The claims against the Crown during the last hundred years have in some respects been greatly diminished by Acts of Parliament which have provided claims against Departments of State, and such officers as Postmasters, General. I am not quite sure whether the first line of this clause ought not to be construed strictly as meaning persons who have at the present moment a claim against the Crown, and not including those who have claims by Statute against certain Departments of State and other people of that kind. I do not want to argue this, and I do not want to put the noble and learned Viscount, the Lord Chancellor, to the trouble of considering it at this moment. All I am suggesting is that this point might be looked into to see if there is anything in it. It is only a matter of words, because we all know what is wanted. I thought I would mention it before we passed the clause. I would like to add my gratitude to the noble and learned Viscount, the Lord Chancellor, for inserting the clause, which I think, so far as it goes, is very much in the interests of security.
THE LORD CHANCELLOR: I am very grateful to the noble and learned Viscounts, Lord Simon and Lord Maugham. I think it will be found that it is a well understood principle of the general law that where an alternative remedy is provided the Petition of Right does not apply. I will look at the points raised by the noble and learned Viscount, Lord Simon, and also the point mentioned by the noble and learned Viscount, Lord Maugham, to see whether they do require any amendment.
On Question, Amendment agreed to.
Clause 1
Liability of the Crown in tort.

PART I.
SUBSTANTIVE LAW.
(6) No proceedings shall lie against the Crown by virtue of this section in respect of any act, neglect or default of any officer of the Crown, unless that officer has been directly or indirectly appointed by the Crown and was at the material time paid in respect of his duties as an officer of the Crown wholly out of the Consolidated Funs of the United Kingdom, moneys provided by Parliament, the Road Fund, or any other Fund certified by the Treasury for the purposes of this subsection.
4.27 p.m.
LORD LLEWELLIN LORD LLEWELLIN moved, at the end of subsection (6), to insert:
"or was at the material time holding an office in respect of which the Treasury certify that the holder thereof would normally be so paid."
The noble Lord said: This Amendment is meant to provide for one simple set of circumstances, and that is where a civil servant is unpaid. In a number of Departments, and certainly in two or three of those in which I was during the war—the Ministry of Aircraft Production, the Ministry of Food and the Ministry of War Transport—there were quite a number of civil servants who came in to act in wartime without receiving any salary at all. I believe there are still some people in those Ministries who are working under those conditions and giving their services voluntarily to the State. Whether there are or not, this Bill when it becomes art Act is going to be a permanent Act and, if I may say so,. I think a very good permanent Act. We want to provide in it that people who are employed in that capacity without receiving salaries shall be considered in exactly the same way as though they were being paid. It is to

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meet that point that I put down and now beg to move this Amendment.
Amendment moved—
Page 2, line 36, at end insert the said words.—(Lord Llewellin.)
THE LORD CHANCELLOR: I am grateful to the noble Lord for his ingenuity in thinking out this point. I quite agree it. is a point that needs to be met, and I have great pleasure in accepting the Amendment.
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
THE LORD CHANCELLORhad given notice to move to insert, after Clause 1, the following new clause:
"Provisions as to industrial property.
(1) Where after the commencement of this Act any servant or agent of the Crown infringes a patent, or infringes a registered trade mark, or infringes any copyright (including any copyright in a design subsisting under the Patents and Designs Acts, 1907 to 1942), and the infringement is committed with the authority of the Crown, then, subject to the provisions of this Act, civil proceedings in respect of the infringement shall lie against the Crown.
(2) Nothing in the preceding subsection or in any other provision of this Act shall affect the rights of any Government Department under section twenty-nine or section fifty-eight A of the Patents and Designs Act, 19o7, or the rights of the Minister of Supply under section twelve of the Atomic Energy Act, 1946.
(3) Save as expressly provided by this section, no proceedings shall lie against the Crown by virtue of this Act in respect of the infringement of a patent, in respect of the infringement of a registered trade mark, or in respect of the infringement of any such copyright as is mentioned in subsection (i) of this section."
The noble and learned Viscount said: When I had drafted this Bill and sent it out to various friends I was anxious to see whether I had dealt satisfactorily with that rather mysterious branch of the law—mysterious to me, at any rate—patents, designs and trade marks. I consulted my friends, Mr. Kenneth Swann and Mr. Lionel Heald, two experts at the Patent Bar, in order that they might help me about it, and this clause is really the joint efforts of those two gentlemen and the draftsman. Your Lordships will remember the position. Under Section 29 of the Patents and Designs Act, 1907, a patent is good against the Crown, but the Crown has in effect a licence to use as though the patent were endorsed "a
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user as of right for the service of the Crown." Under the recent war-time Acts not only did the Crown have that right but also the right to vend. If there is a dispute as to what compensation shall he paid to the patentee, that is referred to the Courts, and they have the right, if they so desire, to send it to arbitration.
We are all anxious to preserve that right—that is, the Section 29 right—and also to preserve the corresponding right under Section 58 which relates to designs. It is possible that the Crown might exceed those rights, and we desire to make it quite plain that if the Crown does authorize any individual to exceed those rights, then the Crown can be sued in an ordinary action by issuing an ordinary Writ. The matter is a little complicated. The first section makes it plain that if the infringement is committed with the authority of the Crown, then civil proceedings shall lie against the Crown. I apologize for one clerical error at line 5. "Patents and Designs Acts, 1907 to 1942" should be "Patents and Designs Acts, 1907 to 1946."
Subsection (2) preserves the provisions of Sections 29 and 58A of the Patents and Designs Act, 1907, and also the provisions of Section 12 of the Atomic Energy Act, 1946, which are to the same effect; that is to say, if anybody takes out a patent which, on the face of it, seems to deal with atomic energy, that patent must first of all be offered to the appropriate Minister before anything is done with regard to it. We are preserving that. The effect of subsection (3) is to make' it quite plain that all the law on this subject is to be embraced in this clause. As I have said, these three subsections have been approved by these distinguished members of the Patent Bar, and they are satisfied that these subsections give the patentee all the protection they desire. I beg to move, with an Amendment of the clerical error to which I have referred.
Amendment moved—
After Clause I insert the said new clause as amended.—(The Lord Chancellor.)
VISCOUNT MAUGHAM: This was a topic on which I once knew a little, and although I know less now, I think I know enough to be able to say that, having read the clause, it seems to be an admirable one and one that may safely be accepted by the House.
LORD LLEWELLIN: My noble friend the Earl of Munster had an Amendment down which was passed over. He unfortunately could not be in the House today. It seems to me that this meets the point which he tried to cover by his Amendment.
Amendment, as amended, agreed to.
Clause 2 [Application of law as to indemnity, contribution, joint and several tortfeasors, and contributory negligence]:
THE LORD CHANCELLOR THE LORD CHANCELLOR moved to leave out subsection (1) and insert:
"(1) Where the Crown is subject to any liability by virtue of this Part of this Act, the law relating to indemnity and contribution shall be enforceable by or against the Crown in respect of the liability to which it is so subject as if the Crown were a private person of full age and capacity."
The noble and learned Viscount said: This Amendment is necessary because of the insertion of the new clause relating to industrial property. In that clause the infringement of patent and copyright is not spoken of as tort, arid indeed it is not a tort if: the ordinary sense of the word, although some authorities have so spoken of it. Subsection (I) of the present Clause 2 applies the law relating to indemnity and contribution in cases where the Crown is liable in tort. In view of the doubt as to whether infringement of copyright is a tort, it has been thought wiser to amend the subsection so as to remove all reference to tort. That is the effect of this Amendment, which I beg to move.
Amendment moved—
Page 2, line 37, leave out subsection (1) and insert the said new subsection.—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Liability in respect of Crown ships, etc.]:
THE LORD CHANCELLOR: This drafting Amendment corrects a slip. The Office of Surveyor General of Ships in the United Kingdom has been vacant for a long time and the work is done by the Chief Ships Surveyor of the Ministry of Transport We are putting in the gentleman's right title. I beg to move.
Amendment moved—
Page 4, line 31, leave out from ("the") to ("shall") in line 32, and insert ("Chief Ships
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Surveyor of the Ministry of Transport, or the officer for the time being discharging the functions of the said Surveyor,")—(Lord Chancellor.)
On question, Amendment agreed to.
Clause 3, as amended, agreed to.
Clauses 4 to 6 agreed to.
Clause 7:
Liability in connexion with postal packets.
(3) Not more than one action shall be brought under the last preceding subsection in respect of any particular postal packet, and the following provisions shall have effect with respect to any such action:—

(a) except by leave of the court, no person may be plaintiff in the action unless he is the sender or addressee of the packet or the representative of the sender or addressee; and

(b) the plaintiff in any such action shall be entitled to recover the whole of the damages recoverable under the last preceding subsection in respect of the packet, and, in so far as those damages would, apart from this subsection, have been recoverable by any other person, they shall be held on trust for that person.

VISCOUNT CECIL OF CHELWOOD VISCOUNT CECIL OF CHELWOOD moved to leave out subsection (1). The noble Viscount said: I have put down this Amendment at the last moment, and I trust that it has not proved very inconvenient. I had hoped that it might not be necessary to move it. The Amendment is to strike out subsection (1) which is the subsection giving protection to the Crown in respect of postal packets. The point I want to raise—and I have put the Amendment down in order to raise it—is this. If a van is driven on behalf of some private person and if, owing to the negligence of the driver, it knocks down somebody and injures him, an action lies against that private person provided certain conditions are fulfilled. It is plainly stated that the purpose of this Bill—a very admirable purpose which I warmly support—is to pm the Crown in such cases in the position of the employer; that is to say, to make the Crown, generally speaking, liable for tort. Suppose a mail van is being driven and that owing to the negligence of the 'driver it causes an injury to some person or property.
In those circumstances, would an action lie against the Crown supposing that the driver was in the course of his employment as a. servant. or agent of the Crown? As I understand the general principle, it would; but this subsection provides that i if the act is done in relation to a postal

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packet, then no action lies. If the mail van contained a number of postal packets, I presume that the driving would have been done in relation to those postal packets. I do not know whether that is right, but that seems to me to be the ordinary sense of the language. Could it not be contended, therefore, that no action lies in respect of the negligent driving of a mail van which causes injury to a third party? I imagine that that certainly is not the purpose or object of my noble and learned friend, the Lord Chancellor. It may be that the point I have raised is quite valueless, but I thought I should raise it in order to get an assurance from him that that is not the intention and that he will deal with the matter if he thinks any amendment is required in order to preserve the general purpose of the Bill.
Amendment moved—
Page 6, line 4, leave out subsection (t).—(Viscount Cecil of Chelwood.)
THE LORD CHANCELLOR: I am very grateful to the noble Viscount for raising this point. I entirely agree with him that if that is the result of the language used it is the very last thing that is intended. The noble Viscount was good enough to write me a letter raising the point, in order that I might consider it. Having considered it without any guidance from my advisers, I felt quite confident that in the case he put it could not possibly be said that what was done was something done in relation to a postal packet. If the driver of a mail van is driving negligently and bumps into a pedestrian walking along the pavement, he may or may not have some postal packets in the van but what is done is done to the pedestrian who has, shall I say, his leg badly injured; I cannot think that that is anything done in relation to a postal packet, unless you call the pedestrian's leg a postal packet. Since then I have asked the Parliamentary draftsman and my advisers about it, and they all feel quite confident that that is so. They have assured me, and I agree with them, and I may in turn assure the noble Viscount without any hesitation at all (I speak in very learned company and if there is any doubt, I shall be corrected) that there is no doubt about this matter. I think the noble Viscount may feel assured that we have not used words which
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would have what I fully agree would be a most unfortunate result.
VISCOUNT CECIL OF CHELWOOD: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD SIMONDS LORD SIMONDS moved, in subsection (2), to leave out "at any time after the commencement of this Act." The noble Lord said: This is little more than a drafting Amendment, for, as your Lordships see, the words which I suggest should be left out here I propose should be inserted a little later on in substantially the same form. As it links up with a more substantial Amendment, perhaps I might explain it to your Lordships. You will see that in subsection (2) of Clause 7 there is, for the first time, provision for taking proceedings against the Crowd in respect of loss of, or damage to, a registered inland postal packet, not being a telegram. That is followed by these words:
"in so far as the loss or damage is due to any wrongful act done or any neglect or default committed, at any time after the commencement of this Act, by a person employed as a servant or agent of the Crown while performing or purporting to perform…."
and son on. As a matter of drafting it will be found more convenient if the words, "at any time after the commencement of this Act" are omitted, and the new proviso put in. As you Lordships see, my next Amendment suggests these words:
"(a) no proceedings shall lie under this subsection in respect of any postal packet registered before the commencement of this Act."
That will link up with a subsequent Amendment which I shall move. I beg to move.
Amendment moved—
Page 6 line 17, leave out ("at any time after the commencement of this Act.")—(Lord Simonds.)
THE LORD CHANCELLOR: I think this group of Amendments, of which this is the first, are definite improvements in the Bill, and I am pleased to accept them.
On Question, Amendment agreed to.
LORD SIMONDS: I have already spoken to this Amendment, and I do not think I need say any more about it. I beg to move.
Amendment moved—
Page 6, line 22, at end insert—
("(a) no proceedings shall lie under this subsection in respect of any postal packet

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registered before the commencement of this Act.").—(Lord Simonds.)
On Question, Amendment agreed to.
4.42 p.m.
THE LORD CHANCELLOR: This Amendment and the next are merely technical. The form of action I think is what the lawyers would call action in detinue, to recover the parcel or its amount. I think the word "amount" is better than "damages." I beg to move.
Amendment moved—
Page 6, line 23, leave out ("damages") and insert ("amount").—(The Lord Chancellor.)
On Question, Amendment agreed to. Amendment moved
Page 6, line 28, leave out ("damages") and insert ("amount").—(The Lord Chancellor.)
On Question, Amendment agreed to.
LORD SIMONDS LORD SIMONDS moved, at the end of subsection (2), to insert:
"For the purposes of any proceedings under this subsection it shall be presumed, until the contrary is shown on behalf of the Crown, that the loss of or damage to the packet was due to some wrongful act done, or some neglect or default committed, by a person employed as a servant or agent of the Crown while performing or purporting to perform his functions as such in relation to the receipt, carriage, delivery or other dealing with the packet."
The noble and learned Lord said: This Amendment is more substantial. I have already read to your Lordships the words which, for the first time, provide that an action will lie against the Crown in so far as loss or damage is due to any wrongful act, or some default or neglect, committed by a person employed by the Crown in respect to a registered postal packet. But that will be of little use to the person who suffers the loss if it is incumbent upon him to prove that his loss is due to a wrongful act. All he will know will be that he has registered his postal packet and has put it in the proper place. If it is lost he will not know why it is lost, and if the burden is upon him to prove a wrongful act, in ninety-nine cases out of a hundred he will not be able to do so.
Accordingly, I propose that what we lawyers call the burden of proof should be shifted, and for that purpose I suggest to your Lordships that these words should be inserted in the Bill:
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"For the purposes of any proceedings under this subsection it shall be presumed, until the contrary is shown on behalf of the Crown, that the loss of or damage to the packet was due to some wrongful act done, or some neglect or default committed, by a person employed …."
The position of the Crown will he that if the loss of a registered postal packet is due to a fire, or flood, or anything of that kind, they will be able to prove it and escape liability. But if they cannot, it will be presumed to be the wrongful act of their servant, and the subject who has suffered loss will be able to recover. I beg to move.
Amendment moved—
Page 6, line 38, at end insert the said words.—(Lord Simonds.)
THE LORD CHANCELLOR: I think this is fair, and it makes a considerable difference. The ordinary law in regard to a bailee, as I understand it, is that if you bring your action against the bailee he has to explain why it is that he cannot return your property. As the noble and learned Lord has said, in these cases the unfortunate person who has posted his packet, and lost it, can prove no more than those facts. Therefore I think it is fair that the onus should be upon the Crown, and that they should have to justify their non-production of the packet. Accordingly, I accept this Amendment.
On Question, Amendment agreed to.
LORD SIMONDS LORD SIMONDS moved to leave out subsection (3) and insert:
"(3) No relief shall be available under subsection (2) of this section except upon a claim by the sender or the addressee of the packet in question; and the sender or addressee of the packet shall be entitled to claim any relief available under the said subsection in respect of the packet, whether or not he is the person damnified by the injury complained of, and to give a good discharge in respect of all claims in respect of the packet under the said subsection:
Provided that where the Court is satisfied, upon an application by any person who is not the sender or addressee of the packet, that the sender and the addressee are unable or unwilling to enforce their remedies in respect of the packet under the said subsection, the Court may, upon such terms, as to security for costs and otherwise as the court thinks just, allow that other person to bring proceedings under the said subsection in the name of the sender or the addressee of the packet.
Any reference in this subsection to the sender or addressee of the packet includes a reference to his personal representatives.
(4) Where by virtue of the last preceding subsection any person recovers any money

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property which, apart from that subsection, would have been recoverable by some other person, the money or property so recovered shall be held on trust for that person."
The noble and learned Lord said: This is a very troublesome matter. I do not know that any clause or subsection of the Bill has given those who have been trying to assist the noble and learned Viscount, the Lord Chancellor, more trouble than this subsection. As drawn, I venture to think it contains two obvious defects. The first is that there are a great number of claims made each year in respect of registered postal packets—claims which are not founded upon any liability of the Post Office, because liability is strictly excluded, but which as a rule meet with a favourable reception. I am told that there are something like 40,000 claims a year. The vast majority of such claims, of course, would never be the subject of legal proceedings, but as it stands the clause does not provide at all for that vast majority of cases in which the Post Office will wish to meet their liability and to get a full discharge.
The second defect is that while providing that there shall not be more than one action—for clearly it is essential that there should not be a multiplicity of actions in respect of the loss of the same registered postal packet—it does not provide what is to happen if the action is brought by the wrong person, the person who has not really suffered loss. In the new subsection, which I suggest should be substituted for that as drawn, we have endeavoured to meet both those defects. I do not know whether your Lordships would wish me to read it out in order that you may follow it, but what we provide is this:
"No relief shall be available under subsection (2) of this section except upon a claim by the sender or the addressee of the packet in question …"
"The sender", of course, is an expression which might be a little ambiguous. It might be the person who actually registers, or the person who sends somebody else to take it and register it. Accordingly, as your Lordships see, we propose that the word "sender" should have the meaning ascribed to it from time to time by the appropriate regulations, so that it is only upon a claim by the sender or the addressee of the packet that relief can be given.
My Amendment continues:
"and the sender or addressee of the packet shall be entitled to claim any relief available under the said subsection in respect of the packet, whether or not he is the person damnified by the injury complained of, and to give a good discharge in respect of all claims in respect of the packet under the said subsection."
That is necessary for the protection of the Post Office. Then we have a proviso, because there may be cases which that first part of the subsection does not adequately cover, and we go on:
"Any reference in this subsection to the sender or addressee of the packet includes a reference to his personal representatives."
That is necessary, for he may have died. Finally we provide:
"(4) Where by virtue of the last preceding subsection any person recovers any money or property which, apart from that subsection, would have been recoverable by some other person, the money or property so recovered shall be held on trust for that person."
That must be right, for if you deprive the true owner of the article contained in the registered postal packet of his right recourse to the Courts, and allow somebody else to recover, it is clear that the other person must hold the proceeds in trust for him. It is a very complicated matter and it may be that my Amendment is not perfect, but I think it is as good as, in difficult circumstances, it can be.
Amendment moved—
Page 6, line 39, leave out subsection (3) and insert the said new subsections.—(Lord Simonds.)
VISCOUNT MAUGHAM: I beg to support this Amendment with a very slight further amendment which I would commend to the attention of the noble and learned Viscount, the Lord Chancellor, if he thinks well of this matter. I am troubled about handing over to people who are not well off, or who are not well educated, sums belonging to a third party, because many people who are going to recover £5 and have to hand over £2 to someone else will not have read this Bill, and though everyone is supposed to know the law a great many of them will not know that they are the trustees of £2 for someone in the next street or the next county. Therefore the clause does require some little tightening up. I would further venture to suggest that substantially you would get what you wanted if in the last lines of the first paragraph of the Amendment—

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"shall be entitled to claim any relief … and to give a good discharge in respect of all claims in respect of the packet under the said subsection …"
there were some words such as the following—
"Subject to an undertaking signed by the person and witnessed by one of the officials "—
or whoever it may be who hands over the money—
"that he will, as soon as possible, discharge the claim of the person to the money or property so recovered which he shall hold on trust for that person."
In other words I believe that many trustees in cases such as I am considering will not be very suitable. Though the clause is quite right, if some solemnity were attached as a condition to the handing over of the money or property, in ninety-nine cases out of a hundred there would be no trouble at all. That is a matter which might be considered. Otherwise it seems to me that the clause is an improvement on the difficult Clause 8 and will probably achieve the object which the noble and learned Viscount, the Lord Chancellor, has in view.
THE LORD CHANCELLOR: The noble Lord, Lord Simonds, said he did not know whether this Amendment was perfect; I confess that I do not know either. It is a very difficult subject matter and it has given me and my colleagues much cause for thought. I am certain of this: that it is more nearly perfect than the original clause in the Bill. Therefore I have no hesitation in accepting it. I will gladly look at the point which the noble and learned Viscount, Lord Maugham, suggested. I am not at all satisfied, and I do not think the noble and learned Lord, Lord Simonds, is satisfied, that the last word has been said about this matter. I do not know whether we shall be able to think of some improvement, but we will bear in mind what the noble and learned Viscount, Lord Maugham, said. In the meantime, I am happy to accept the Amendment, and I thank noble Lords for the trouble they have taken over it.
LORD LLEWELLIN: Would it not be a good thing if the money were paid into the County Court? Could that point be looked into?
VISCOUNT MALTGHAM: They are very small sums.
THE LORD CHANCELLOR: Yes, they are generally very small sums of
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money, and it would be making rather a bother of it to do so.
On Question, Amendment agreed to.
LORD SIMONDS: It appears to be necessary to have the word "sender" defined, and this seems an appropriate way to do it. I beg to move.
Amendment moved£
Page 7, line 26, at end insert ("the expression 'sender,' in relation to a postal packet, has such meaning as may be assigned to it by Post Office Regulations").—(Lord Simonds.)
THE LORD CHANCELLOR: I gladly assent to this.
On Question, Amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8:
Provisions relating to the Armed Forces.
(3) A certificate of the Admiralty, or of a Secretary of State, to the effect:

(a) that a person was or was not on any particular occasion on duty as a member of the Armed Forces of the Crown;

(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said Forces;

shall, for the purposes of this section, be conclusive as to the matter so certified.
THE MARQUESS OF READING THE MARQUESS OF READING moved to leave out subsection (3). The noble Marquess said: The noble Viscount was very frank, on the Second Reading of this Bill, about the difficulties he had had in obtaining assent to this and the previous clause, and I should be reluctant if any wind of criticism came to disturb his delicate balance on the high fire. At the same time, I cannot pretend that I am altogether happy at this insistence on the production of a certificate instead of relying on evidence. As I understand it, Clause 8 applies to the Armed Forces, in a somewhat extended form, the doctrine of common employment provided that both persons are on duty. It is confined to cases of personal injury, where both the person guilty of negligence and the person injured are on duty, or the person guilty of negligence is on duty and the person injured, although not on duty, is at the same time on certain premises, or in a ship, vehicle—and so on—in use in connexion with the Armed Forces.
This, as I understand subsection (3), gives the Admiralty or Secretary of State

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power to state whether or not an action will lie, because in effect he can say "This particular person was, or was not, on duty at the particular time." That is a very stringent power and one which I should have thought ought not to be given in this wide farm if it were possible by any reasonable expedient to avoid it. What happens in these matters is that the Secretary of State is asked whether he will give a certificate. The communication goes through what the noble Lord, Lord Ammon, described as the "usual channels" to the Commanding Officer of the individual concerned. The Commanding Officer, by the reverse usual channels, sends his reply, and in most cases that is presented to the Secretary of State and is the basis of his certificate. There are two things to be said on that. There is the possibility—though the great majority of Commanding Officers would be too conscientious to permit it—that, through some mistaken idea of loyalty to their men, the scale would be tilted a little in their favour; and there is the other point that Commanding Officers may differ greatly in their view as to whether at a particular moment a man is or is not on duty.
That, after all, is not the simplest of questions. Is a man getting up in a barrack room or dressing for a particular parade on duty? Is he on duty between the barrack room and the parade ground? Or is he only on duty when he actually falls in? That is the sort of thing that will have to be decided by the Commanding Officer, because he is the person whose word is going to be accepted in most cases. And it is not at all the easiest of questions to decide. I should have thought, with respect to the noble and learned Viscount, the Lord Chancellor, that instead of a certificate being put forward which was final and conclusive (for there is no going behind it) it would be one of the issues which the Judge at the trial ought to be allowed to settle. I should have thought it would have been for him to decide whether a man was on duty, or whether both men were on duty at the time, and not merely to have handed to him, or produced at some earlier stage, a certificate which was conclusive.
Suppose, in a particular case where no action would have lain if both men had been on duty at the time because it would
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have been ruled out under Clause 8, the Secretary of State had given a certificate to say that the plaintiff, the injured person, was not on duty. The Secretary of State having certified that the man was not on duty, the action could proceed and the evidence could be taken. Now suppose that in the course of taking that evidence the judge came to the conclusion that, whatever the Secretary of State had said about the man not being on duty, he was in fact on duty—what would happen then? Would the Judge have to accept as conclusive, under Statute, the Secretary of State's certificate against his own view, or would he try to make his own view on the facts prevail against the certificate? Presumably he would have to submit to the certificate, whatever conclusion he might come to on the evidence. It may be that there is no other way of dealing with the situation, but I confess I do not think it a satisfactory method. If the noble and learned Viscount, the Lord Chancellor, should find himself able to consider this favourably, I shall be greatly obliged and not a little relieved. I beg to move.
Amendment moved—
Page 8, line 10, leave out subsection (3).—(The Marquess of Reading.)
THE LORD CHANCELLOR: I told your Lordships on the Second Reading how I was placed in this matter, and I had better be quite frank about it now. The long and short of it is that, to overcome the apprehensions of the Service Departments, I had to agree to this subsection regarding certificates. Those apprehensions do not relate merely to the present. The Service Departments have had apprehensions with regard to this scheme for a very long time, and they have had the greatest misgivings about this particular question. This is what I have given. Have I given too much? I do not think so. I believe the noble Marquess went a little too far in saying that a certificate would really decide whether or not an action would lie. There is, your Lordships will observe, a proviso at the bottom of page 7 bearing upon this. It might be that both the men concerned were on duty at premises, and so forth, which is a necessary condition to the operation of the clause. Even so it might well be that the liability was not connected with the execution of those duties.

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Take a simple case, that of two soldiers in a barrack-room together. One of them, it may be, catches the other a blow and knocks him down. The man struck, hurts himself in falling. That would hardly be a case, whatever a certificate might say, where both the men were on duty. It would be open to the Judge to say: "I have a certificate that you were both on duty, but it is for me to decide whether the act or omission which caused the injury was in any way connected with that duty."
THE MARQUESS OF READING: It was because I saw that proviso that I put the reverse case where a certificate was given that a man was not on duty.
THE LORD CHANCELLOR: I agree that that is a possibility. I very much hope that if a really doubtful case arises the Secretary of State will say (and why not?): "I shall not give a certificate at all." If he does not do so the matter can be dealt with in the ordinary way. The certificate is merely one way—I agree that it is conclusive—of giving evidence. Suppose you did not: have this provision for a certificate, what would happen in practice? There might, of course, be an odd or bizarre case in which it would not happen, but in practically all cases you would have to call the Commanding Officer or somebody of that sort and he would come and give evidence. In the vast majority of cases the Judge would accept that evidence, because the Commanding Officer, or whoever was called, would be the best person to give it. But instead of going to all that trouble and expense we now propose to have the advantage of a certificate. There are many branches of the Law in which I am being asked to make rules to enable this sort of evidence to be given by certificates. One reason is that it will reduce the cost of litigation. Certificates of that sort, of course, would not be conclusive certificates, but certificates by way of evidence. This is different.
I very much hope that this clause will not work out badly. I hope that, in due course, the nervousness of the Service Departments will be allayed. It is not unlikely that we shall find we have some odds and ends to gather up, and probably that will lead to amending legislation. It may be that this is one of the points that will be amended. But I cannot give
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way here. This clause, as it stands, has been the subject of close negotiation between myself and the Service Departments, and I am not now a free agent. I cannot now go back on what I have agreed. The long and short of it is that I am under an obligation, either to get this clause as it is or to withdraw my Bill. That being so, I ask your Lordships to smile, so far as you can, on my efforts, and to let me have this clause even though you may think it has an imperfection. There is this further point. We must always remember that the result in the vast majority of these cases where a man is precluded from bringing an action will be that he will automatically, by virtue of the certificate, be entitled to his pension. A pension is a very valuable right, and, therefore, in this respect you will have a useful sanction against people too readily giving a. certificate. lf this certificate is given and a man is precluded from bringing an action, in ninety-nine cases out of a hundred, he will get his pension. For these reasons I ask your Lordships to allow the clause to stand.
VISCOUNT SIMON: My sympathies are entirely with the noble Marquess, but at the same time I do know, quite independently of what has been said by the noble and learned Viscount, the Lord Chancellor—which is, of course, conclusive—that a provision like this is really a thing that must be contemplated if we are to fulfil the purpose we have before us, which is to get the Bill through this House and through another place as soon as possible. I rise only to ask the noble and learned Viscount to consider this matter. He said—and I was very much struck by his statement—that he hoped there would be cases where the authority at the Admiralty or the Secretary of State would say: "I will not give a certificate because I do not feel sure about it, and I think it is a matter that ought really to be gone into." I hope that he will be able to keep within the four corners of the undertaking which he has given and yet give favourable consideration to this. If you read these words as they stand they might be understood by an officer concerned to mean that he must give a certificate. I wonder if the Lord Chancellor would he going beyond the letter of his pledge if he would consider putting it in this way and, I hope, getting the Service Departments to agree—that if the Admiralty or the Secretary of State

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is satisfied with (a) or (b) then a certificate given by that party shall be conclusive as to the matter so certified.
I do not know whether this is an instance where a particular passage is to be regarded as Holy Writ, and that it would be heresy to change a word, but at least I think my suggestion would meet the circumstances which the Lord Chancellor contemplates, and it is perfectly clear that there will be cases where the officer will say to himself, "Well, I am not obliged to give a certificate and I feel that in this case it really would not be right for me to give one, because the thing is so near the balance." That is a much smaller matter than my noble friend suggested, but, listening to him and to the noble Lord opposite, I wondered whether we could possibly secure that if the Admiralty or a Secretary of State is satisfied with (a) or (b), then a certificate to that effect can be conclusive.
THE LORD CHANCELLOR: I am exceedingly grateful for the suggestion, and I will accept it and see that the appropriate words are put in on the Report stage.
THE MARQUESS OF READING: I am much obliged to the noble and learned Viscount for his intervention. It has had the effect that the revolver held at my-head has at least one blank cartridge, 'out with the promise of the noble and learned Viscount, the Lord Chancellor, to look into the possibilities of inserting these words, and as I have ventilated my grievance, I ask leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clause 9:
Saving in respect of acts done under prerogative and statutory powers.
(2) A certificate of the Admiralty, or of a Secretary of State, to the effect that any act or omission was necessary for the purpose of the defence of the realm or of training or maintaining the efficiency of any of the armed forces of the Crown shall, in any proceedings against the Crown under this Part of this Act, be conclusive as to the matter so certified; and where any such certificate is given the provisions of the last preceding subsection shall have effect accordingly.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved to leave out subsection (1) and to insert:
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"(1) Nothing in Part I of this Act shall extinguish or abridge any powers or authorities which, if this Act had not been passed, would have been exercisable by virtue of the prerogative of the Crown, or any powers or authorities conferred on the Crown by any statute, and, in particular, nothing in the said Part I shall extinguish or abridge any powers or authorities exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of the realm or of training, or maintaining the efficiency of, any of the Armed Forces of the Crown."
The noble and learned Viscount said: This Amendment is due to the ingenuity of the noble and learned Viscount opposite. He pointed out that the original words dealing with prerogatives might have led to results which we had not contemplated. There was a very celebrated case during the last war, where the Crown took possession of a certain hotel and sought to hold possession without paying for it. It was held that that was something they could not do. It was legally done under the prerogative or, at least, it would have been legal if they had paid.
The words at present in the Bill are:
"Nothing in this Act shall be construed as giving any cause of action against the Crown in respect of anything properly done or omitted to be done in the lawful exercise of the prerogative of the Crown or any right conferred upon the Crown by any Statute."
It was pointed out that these words might mean that in future we might take our hotels without paying for possession and without any right to compensation. That being so, we have re-drafted the clause in order to deal with that point, and I think the re-drafting makes it quite plain that, although we are preserving the prerogative—for that we must preserve—we are preserving it in such a way as not to inflict that sort of injury to which the other words might possibly have given rise. It was not our intention that any sort of result like that should happen. I beg to move.
Amendment moved—
Page 8, line 20, leave out subsection (1) and insert the said new subsection.—(The Lord Chancellor.)
VISCOUNT MAUGHAM: May I add a a word on this, though I do so with some hesitation, because the whole Bill is very complex and one is never quite certain what a particular clause might mean unless one is something of an expert on Crown Law? In this new clause I suggest there should be these words: "subject to the provisions above contained" because

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there are provisions in the first eight clauses of the Bill which seem to me to affect the royal prerogative. The truth is that the royal prerogative is a phrase of the widest possible import. It refers to all sorts of things which we do not usually remember are based on the royal prerogative. If you look at any of the standard textbooks on the subject, such as Robertson. or the book by Professor Holdsworth, you see how wide it is. I am not satisfied that nothing in Part I of the Act prejudices or extinguishes the power of the authorities based upon prerogatives. I think it would be clear if it were subject to that, and if the words that I suggested were put in at the commencement of this clause. If I am asked for cases where the royal prerogative may be involved, I would suggest the matters of patents and breaches of copyright. There are also one or two others which I think, with a little ingenuity, could be shown to be qualifications of the royal prerogative. However, I leave it there; I only want the noble and learned Viscount to consider it"
VISCOUNT SIMON: I venture to think that if we distinguish, as the new clause clearly does, between the right of the Crown to exercise its prerogative, and the claims of private people which might result from that exercise, we get to the key of the subject. I am sure the Lord Chancellor will consider carefully, and so will all of us, what my noble and learned friend Viscount Maugham has said, but I think that is the key to it. This Bill is not at any point limiting the royal prerogative. The royal prerogative is such operation of the royal powers of the Crown as have not been cut down or reduced by Statute. It is not a fixed quantity, because it tends to diminish.
To take premises in times of war to help to beat the enemy is, or may be, part of the royal prerogative. It is not always so, because there are Statutes about it which allow the taking of ranges or the taking of land for military purposes. The whole question is—and there I think the Lord Chancellor is perfectly right—that nobody intended to say that the private citizen who had a claim should no longer have it. I am very grateful to the noble and learned Viscount, the Lord Chancellor, for making that modification, but I do not see at the moment that in the new earlier clauses there is any interfer-
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ence with the prerogative, which can be exercised as power on the advice of the Minister. There is, no doubt, a considerable change as to the remedies which a subject may have, but that is not in itself a modification of the royal prerogative; it is only a variation in the remedies which private citizens may have in the event of the prerogative being exercised. I do not wish to be dogmatic, any more than other noble Lords do. I can only say that I am very grateful to the noble and learned Viscount, the Lord Chancellor, for the attention I know he has given to this clause which, admittedly, was not quite in the right form.
VISCOUNT MAUGHAM: With great respect I do not quite agree with what has been said. I think the royal prerogative is affected when it is provided in substance that the Crown can no longer object to a particular proceeding by refusing its fiat. It is, in theory, a right of the Crown to grant leave by fiat to bring certain proceedings. Although it is true that that right is only exercised where the Attorney-General thinks it proper to do so, it is still, in theory, an interference with the prerogative of the Crown. It is no longer open to the Crown to say: "You shall bring no proceeding against the Crown in respect of a tort." That right is being taken away by this Bill. However, I am content if the noble arid learned Viscount examines this to see what is the right way in which this clause should be introduced. I confess that I cannot agree with the view that the prerogative of the Crown is not altered by these preceding clauses. I think that the Crown's rights are being greatly diminished in some respects.
THE LORD CHANCELLOR: It may be that the Crown's rights and perhaps immunity, are interfered with, but I take the view that the Crown's prerogative is not interfered with by anything which has gone before in this Bill. That the rights attaching to individuals in consequence of that prerogative are altered, I do not doubt at all. We desire to make it quite plain that the prerogative of the Crown, that residuum which rests in the Crown apart altogether from Statute, is not to be interfered with. For instance, patents have been mentioned. Patents nowadays are almost entirely the subject of Statute. The right of the Crown to use a patent is dealt with particularly by Statute. I do not at the moment recall anything in

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the sphere of patent law which is now the subject of the prerogative, and it is our intention to make it quite plain that, so far as the prerogative of the Crown is concerned, it must remain where it was before, untouched and uninterfered with. It is not an easy subject, as is shown by the fact that there is this difference of opinion which your Lordships have indicated. I will gladly look at it again, but that is my present view: that the prerogative here is not interfered with, and I think that the Amendment in this form is right.
On Question, Amendment agreed to.
5.20 p.m.
THE MARQUESS OF READING THE MARQUESS OF READING moved to leave out subsection (2). The noble Marquess said: This Amendment, in substance, of course, raises the same point that I raised with regard to subsection (3) of the previous clause. At the same time, I should like to point out that while the certificate under Clause 8 is restricted to the question whether a man was or was not on duty at a particular time, this subsection covers an extraordinarily wide field, because it covers all the proceedings against the Crown in the whole of Part I of the Act—contract, tort, patents and everything else with which we have been dealing—and it gives the Admiralty or the Secretary of State power to give a certificate saying that anything that has been done or omitted to be clone was "necessary"—that is the important word—"for the purpose of the defence of the realm"—that one understands from the Service point of view—"or of training or of maintaining the efficiency of any of the Armed Forces of the Crown." I should have thought that the Admiralty and the Secretary of State might under these extremely wide powers have quite a busy time signing certificates. I do not know whether the noble and learned Viscount, the Lord Chancellor, is prepared to give to this clause the same consideration, in the light of the suggestion of the noble and learned Viscount, Lord Simon, that he undertook to give to Clause 8. If he is, I should be very grateful. I do not propose to cover the whole ground again. I beg to move.
Amendment moved—
Page 8, line 29 leave out subsection (2).—[The Marquess of Reading.]
THE LORD CHANCELLOR: I am prepared to say that I will look at this matter, in view of the promise which I have given with regard to the last clause. I see rather greater difficulty about this Amendment, and I must not say more. With regard to many of these matters—that a certain act was necessary for the purpose of the defence of the realm or of training or maintaining the efficiency of the Armed Forces—by their very nature these are subjects for the Service authorities to deal with, and matters in respect of which it is exceedingly difficult for any Court of Law to embark on its own investigation. Take, for instance, the firing of the guns at Shoeburyness (which was one great case) which sometimes used to cause considerable damage to the windows in the neighbourhood. Whether it is necessary to fire those guns, and whether it is necessary to fire them at night in order to get practice, are matters which can hardly be debated in a Court of Law before an ordinary Judge. It is so peculiarly within the knowledge of the Service Departments that they must be able to give an answer. Therefore I think this matter stands on a different footing from the provisions of Clause 8. But, as I said before, I do not want to go back on my promise, and as I am going to look at the provisions with regard to Clause 8 so also will I look at the provisions with regard to Clause 9.
THE MARQUESS OF READING: In those circumstances, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 9, as amended, agreed to.
Clauses 10 to 16 agreed to.
Clause 17:
Venue and related matters.
(2) The trial of any civil proceedings try or against the Crown in the High Court shall be held at the Royal Courts of Justice unless the courts with the consent of the Crown, otherwise direct; so, however, that the provisions of this subsection shall be without prejudice to the right of the Crown to demand a local venue for the trial of any proceedings in which the Attorney-General has waived his right to a trial at bar.
LORD LLEWELLIN LORD LLEWELLIN moved, in subsection (2), to leave out from "otherwise" to the end of the clause and insert:

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"directs.
Where the Crown refuses its consent to a direction under this subsection the court may take account of the refusal in exercising its powers in regard to the award of costs.
(3) Nothing in this section shall prejudice the right of the Crown to demand a local venue for the trial of any proceedings in which the Attorney-General has waived his right to a trial at bar."
The noble Lord said: When I came to read this clause, as I mentioned in my speech on Second Reading, I did not like the words that appeared in subsection (2), that, even though the High Court directed that a case might be held outside the High Court, the Crown could say, "We do not consent to that." Since I made those remarks I have had the opportunity of some conversation, and I realize that there may be some cases where it is quite proper that. the Crown should want to be represented by one of their Law Officers who cannot, because of other duties, proceed to the various Assize towns up and down the country. Therefore it might be quite proper that they should be allowed to say that they do not consent. On the other hand, if the Court thinks that consent has been withheld where they would have given it, I think the Court should be entitled to take that matter into consideration when it comes to the question of awarding costs. I am strongly of the view that, because it is for the convenience of one party, even though it be the Crown, to have the case tried in a particular Court, the subject should not, for that reason, necessarily have to pay more costs than he otherwise would. That is the object of the Amendment which I have on the Order Paper. It looks rather a long one, but part of it merely reprints what is already in the clause with an additional subsection. I beg to move.
Amendment moved—
Page 12, line 19, leave out from ("otherwise") to the end of the clause and insert the said new words.—(Lord Llewellin.)
THE LORD CHANCELLOR: This is the point, or the substance of the point, to which the noble Lord drew attention in his Second Reading speech. I thought then that he had a real point, and on looking into it I think so still more. Therefore, I am happy to accept his Amendment.
On Question, Amendment agreed to.
Clause 17, as amended, agreed to.
Clause 18:
Removal and transfer of proceedings.
18.—(1) If in a case where proceedings are instituted against the Crown in a county court an application in that behalf is made by the Crown to the High Court, and there is produced to the court a certificate of the Attorney General to the effect that the proceedings may involve an important question of law, or may be decisive of other cases arising out of the same matter, or are for other reasons more lit to be tried in the High Court, the proceedings shall be removed into the High Court.
LORD LLEWELLIN LORD LLEWELLIN moved, at the end of subsection (1), to insert:
"Where any proceedings have been removed into the High Court on the production of such a certificate as aforesaid, and it appears to the Court by whom the proceedings arc tried that the removal has occasioned additional expense to the person by whom the proceedings are brought, the Court may take account of the additional expense so occasioned in exercising its powers ill regard to the award of costs."
The noble Lord said: This Amendment raises a very similar point. This applies where the proceedings are moved from the County Court to the High Court. It may well be that the Crown knows that similar proceedings are to be brought, and, in looking for a test case, considers that the test case ought to have the ruling of the High Court. For that reason the Crown asks that the case may be transferred to the High Court. Here again it does not: seem to me right that the subject concerned in the particular case should necessarily have to pay additional costs because it is desired that the principle should be decided in the High Court. My Amendment is designed to enable the Judge to take that factor into account and, if the subject has suffered additional expense, then costs should be awarded to him accordingly. I beg to move.
Amendment moved—
Page 12, line 22, at end, insert the said words.—(Lord Llewellin.)
THE LORD CHANCELLOR: I think this is almost a corollary to the last Amendment, and, therefore, I accept it.
On Question, Amendment agreed to.
Clause 18, as amended, agreed to.
Clauses 19 to 23 agreed to.
Clause 24 [Execution by the Crown]:
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, in subsection (I), to leave out the proviso. The noble and learned Viscount said: On

391
the face of it this looks little more than a drafting Amendment, but it is rather more than that. I am proposing to take out the proviso included in the first six lines on page 16, and to put it in at the end of the clause as a separate subsection. The difference is this. The proviso at the top of the page, as your Lordships see, is, "Provided that nothing in this subsection." The subsection comes before Section 2, and Section 2 is the Debtors Act, 1869. Therefore, the effect of putting at the bottom the words, "Nothing in this section" means "notwithstanding anything in the Debtors Act, 1869." I hope I have made myself plain. The substance of it is this. There are certain forms of offence—for instance, those of people who come here smuggling goods, who have to pay fines and that sort of thing—for which, at the present time, until you pay you go to prison. The desire is that that power should be retained. As a matter of fact we always knew that that was the intention, and I am sorry that by what is really a drafting slip up we did not carry out the undertaking which we have with the Treasury, which is to make it quite plain that for offences of that sort the existing power—which has existed for many years and which I think your Lordships will agree has not been abused—will continue. I beg to move.
Amendment moved—
Page 16, leave out lines 1 to 6.—(The Lord Chancellor.)
On Question, Amendment agreed to.
Amendment moved—
Page 16, line 19, at end insert—
("(3) Nothing in this section shall affect any procedure which immediately before the commencement of this Act was available for enforcing an order made in favour of the Crown in proceedings brought by the Crown for the recovery of any fine or penalty, or the forfeiture or condemnation of any goods, or the forfeiture of any ship or any share in a ship.")—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 24, as amended, agreed to.
Clauses 25 to 30 agreed to.
Clause 31.
Rules of court and county court rules.
(3) Provision may be made by rules of court for regulating any appeals to the High Court, whether by way of case stated or otherwise, under enactments relating to the revenue, and any rules made under this subsection may re-
392
yoke any enactments or rules in force immediately before the commencement of this Act which regulate any such appeals, and may make provision for any matters for which provision was made by any enactments or rules so in force.
5.35 p.m.
LORD LLEWELLIN LORD LLEWELLIN moved, in subsection (3) to leave out the first "which" and insert "so far as they." The noble Lord said: Here again on Second Reading I drew attention to the fact that in subsection (3) of this clause the Rules of Court "may revoke any enactment or rules in force immediately before the commencement of this Act which regulate any such appeals." As I said then, it seems to me to be rather sweeping that it refers to repealing the whole enactment by a Rule of Court which is not subject either to affirmative or negative Resolution of the Houses of Parliament. I do not say it would be the case, but under these words we might be giving power to make Rules of Court that would get rid of the appeal altogether. The Amendment I propose is that instead of the word "which" we should put in the words "so far as they" because in some of these enactments there are existing in the enactment itself actually rules of how the proceedings should be taken. It is right that the new Rules of Court should be able to repeal those parts of the enactment. I do not think it was ever intended that the Rules of Court should do more than that, and I suggest that we should make it clear that what we mean is that the Rules of Court may alter the enactments, so far as the enactments regulate the appeal. I beg to move.
Amendment moved—
Page 20, line 15, leave out ("which") and insert ("so far as they").—(Lord Llewellin.)
THE LORD CHANCELLOR: The noble Lord has explained his object very effectively. He has won his last two Amendments, and I should be very sorry to stand in the way of his getting his hat trick. I therefore have pleasure in accepting this Amendment.
On Question, Amendment agreed to.
Clause 31, as amended, agreed to.
Clauses 32 and 33 agreed to.
Clause 34 [Interpretation]:
THE LORD CHANCELLOR: The next Amendment is purely a drafting Amendment. I beg to move.
Amendment moved—
Page 21, line 33, leave out from ("to") to ("the") in line 34 and insert ("His Majesty in right His Duchy of Lancaster and to"). —(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 34, as amended, agreed to.
Clause 35 agreed to.
Clause 36 [Savings]:
LORD SIMONDS LORD SIMONDS moved at the end of subsection (2) (c), to insert:
"(d) Subject the Crown to any greater liabilities in respect of the acts or omissions of any independent contractor employed by the Crown than those to which the Crown would be subject in respect of such acts or omissions if it were a private person;"
The noble and learned Lord said: The necessity for the Amendment which l now propose arises in this way. The Bill is placing the Crown in the same position as the subject so far as the liability for its servants and agents is concerned. The Interpretation Clause in the Bill defines "agent," when used in relation to the Crown, as including an independent contractor employed by the Crown. Accordingly, it is necessary affirmatively in the Bill to provide that the Crown shall not be subject to any greater liabilities in respect of the acts or omissions of any independent contractor employed by the Crown than those to which the Crown would be subject in respect of such acts or omissions if it were a private person.
I will explain that in a few words. A man is responsible for the acts of his servant or agent. Therefore, if one of your Lordships goes for a ride in your own motor car, and employing your own chauffeur, and you run down somebody, you are liable. If, on the other hand, you engage a taxi, the taxi driver is an independent contractor and you are not liable if he should run down somebody. I do not want to encourage you to any recklessness, for if you induce your taxi driver to drive recklessly you may yet be liable as what is called a joint tort feasor. I hope that will not give any of your Lordships a bad night. I beg to move.
Amendment moved—
Page 22, line 33, at end insert the said paragraph.—(Lord Simonds.)
THE LORD CHANCELLOR: I am grateful to the noble and learned Lord. This Amendment is obviously necessary.
On Question, Amendment agreed to.
THE LORD CHANCELLOR: The next Amendment is a consequential Amendment. I beg to move.
Amendment moved—
Page 22, line 34, leave out paragraph (d)—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 36, as amended, agreed to.
Clause 37 agreed to.
Clause 38 [Exclusion of certain provisions]:
LORD NORMAND: This Amendment is consequential upon the Amendment which was moved by the noble and learned Viscount, the Lord Chancellor, when he added a new Clause I to the Bill. Clause I is not applicable to Scotland, where the Petition of Right is Unknown and where a direct action against the Crown already exist, at any rate in matters of contract. For the same reasons that actions against the Crown are quite well known in Scotland, It is appropriate to restrict the application of Part II so that the provisions relating to the making of Rules of Court shall not apply in Scotland, where the proceedings are already amply regulated by Rules of Court applicable to both the Crown and the subject. I beg to move.
Amendment moved—
Page 23, line 38, leave out from beginning to ("nineteen") and insert ("Section one Part II (except section eleven so far as relating to proceedings mentioned in the First Schedule) and section")—(Lord Normand.)
THE LORD CHANCELLOR: Whether or not we have just listened to a maiden speech, I am not quite sure. May I say in relation to this and succeeding Amendments how exceedingly fortunate we hope that both on this and many other occasions he will keep us straight, not only as to the law but as to the practice in Scotland? I need hardly say that I Shall accept this Amendment. I am very Grateful to the noble and learned Lord for the trouble he has taken about it.
On Question, Amendment agreed to.
Clause 38, as amended, agreed to.
Clause 39 [Interpretation for purposes of application to Scotland]:
LORD MORMAND: This is a mere drafting Amendment, making good an accidental omission from the original draft of the Bill. I beg to move.
Amendment moved—
Page 24, line 7, after ("pursuer") insert ("the expression 'defendant' means 'defender'").—(Lord Normand.)
On Question, Amendment agreed to.
Clause 39, as amended, agreed to.
Clause 40 [Proceedings against the Crown in the sheriff court]:
LORD NORMAND LORD NORMAND moved, at the end of the clause, to insert:
"and where any proceedings have been so remitted to the Court of Session, and it appears to that Court that the remit has occasioned additional expense to the pursuer, the Court shall take account of the additional expense so occasioned in deciding any question as to expenses."
The noble and learned Lord said: This Amendment is consequential upon the Amendment to Clause 18 which was moved a moment ago by the noble Lord, Lord Llewellin. It applies to Scotland the same provisions as that Amendment made applicable to England. I beg to move.
Amendment moved—
Page 24, line 28, at end insert the said words.—(Lord Normand.)
On Question, Amendment agreed to.
Clause 40, as amended, agreed to.
Clauses 41 to 43 agreed to.
Clause 44 [Application to Scotland of S. 31]:
LORD NORMAND: This is a mere drafting Amendment, making verbal alterations without any alteration of substance. I beg to move.
Amendment moved£
Page 26, leave out lines 4 to 7, and insert—
("(2) The following provisions shall apply as regards proceedings in the Court of Session or the sheriff court:—
(a) where decree in absence")—(Lord Normand.)
On Question, Amendment agreed to.
LORD NORMAND: The next is also a drafting Amendment. I beg to move.
Amendment moved—
Page 26, line II, leave out from ("Crown") to ("shall") in line 13 and insert ("(b) a person").—(Lord Normand.)
On Question, Amendment agreed to.
LORD NORMAND: This is also a mere drafting Amendment. I beg to move.
Amendment moved—
Page 26, line 21, leave out from beginning to ("shall") and insert ("(c) a person").—(Lord Normand.)
On Question, Amendment agreed to.
LORD NORMAND: The same remark applies to the next Amendment. I beg to move.
Amendment moved—
Page 26, line 27, leave out from ("brought") to ("in") in line 28 and insert ("(d) the Crown,").—(Lord Normand.)
On Question, Amendment agreed to.
Clause 44, as amended, agreed to.
Clauses 45 to 48 agreed to.
First Schedule agreed to.
Second Schedule [Enactments repealed]:
THE LORD CHANCELLOR: I propose to insert "The Naval Prize Act, 1864, Section 52" because that section gives the subject, in certain cases, the right to proceed by Petition of Right; and as under the earlier provisions of the Bill Petitions of Right are abolished, we desire to repeal this provision also.
Amendment moved—
Page 28, line 31, at end insert: ("27 & 28 Vict. c. 25. The Naval Prize Act, 1864, Section fifty-two").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: This Amendment is designed to correct an error in the original drafting. In the Schedule the whole of the Crown Suits Act has been repealed, but we must keep alive Part I of the Act, which contains a number of definitions, and also Section 46, which gives the Attorney-General, where he waives his right to trial at bar, the right to change the venue to any county which he may elect. I beg to move.
Amendment moved—
Page 28, line 34, at end insert ("except Part I and section forty-six thereof").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Remaining Schedule, as amended, agreed to.

CERTIFICATES FROM EXAMINERS.
The LORD CHANCELLOR acquainted the House that the Clerk of the Parliaments had laid upon the Table the Certificate from the Examiners that the further Standing Orders applicable to the following Bills have been complied with:

Commercial Gas. [H.L.]

South Metropolitan Gas. [H.L.]

and also the Certificate that the Standing Orders applicable to the following Bill have not been complied with:

Public Offices (Site).

The same Were ordered to lie on the Table.

COMMERCIAL GAS BILL. [H.L.] SOUTH METROPOLITAN GAS BILL. [H.L.]
Committed: The Committees to be proposed by the Committee of Selection.