§ SUBSTANTIVE LAW.
§ 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
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.
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 364 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 365 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.