HL Deb 24 March 1947 vol 146 cc655-64

4.40 p.m.

Amendments reported (according to Order).

Clause r:

Right to sue the Crown.

1. 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 grant 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.

VISCOUNT SIMON moved to leave out "a proceeding provided by Parliament in substitution for petition of right" and insert "any statutory provision repealed by this Act." The noble and learned Viscount said: My Lords, this really carries out the suggestion which I ventured to make on Second Reading: that Clause r, which was a most valuable clause, and very properly put in the first part of the Bill, was not perhaps in the most logical form or one most easy to understand. Clause r is really saying: "In the past there have been various special ways in which a man who thought he had a claim against the Crown could enforce it." Then it goes on to say, in effect, "But in the future there shall not be any special procedure; a man shall be able to enforce his claim against the Crown, broadly speaking, in the same way as if it was against another subject."

That, I recollect, was declared by the noble and learned Viscount, the Lord Chancellor, early in our discussions on this matter, to be the principle which governs the whole Bill. It does. The Lord Chancellor has carried out his assurance, I think, most thoroughly. But I rather doubt whether the wording at this place about how "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 for petition of right …" quite hits the bull's eye. The real point is that these special proceedings, or the clauses providing for them, are to be repealed. Therefore, logically, we should seek to draw the clause so that it says clearly that whereas in the past there has been special procedure, the provisions relating to that are to be repealed and substituted by the new and much better methods which this Bill lays down.

Therefore I beg to move to leave out the words: "a proceeding provided by Parliament in substitution for petition of right" and to substitute "any statutory provision repealed by this Act." If one turns to the Schedule, one finds full details of proceedings which are abolished, and the enactments which are repealed. My Amendment is not in itself of great importance. It is purely for the purpose of making quite sure that the first clause of the Bill will make it plain to any man, without any legal training, who chooses to look at it, what this Bill is all about. I beg to move.

Amendment moved— Page 1, line II, leave out from ("by") to ("then") in line 12 and insert ("any statutory provision repealed by this Act.")— (Viscount Simon.)

THE LORD CHANCELLOR

My Lords, I am grateful to the noble and learned Viscount for moving this Amendment. As he himself has said, it is not a matter of great substance but it is one of neatness and clarity of form and expression. I confess that I think his Amendment is an improvement on the wording at present in the Bill. I am grateful to the noble and learned Viscount, and I have pleasure in accepting this Amendment.

On Question, Amendment agreed to.

Clause to:

Provisions relating to the armed forces.

(3) A certificate of the Admiralty, or of a Secretary of State, to the effect:—

  1. (a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown;
  2. (b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment 657 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.

LORD SIMONDS moved, after subsection (2), to insert: (3) Where the defendant in any civil proceedings alleges that, in respect of any damages which may be awarded against him in those proceedings, he would be entitled to contribution from some other person if that other person were not exempted from liability by virtue of the preceding provisions of this section, the defendant may join that other person as a party to the proceedings; and if it is established that the defendant would be so entitled, the damages recoverable from him shall be reduced by such sum as appears to the court to be equivalent to the contribution which he would have been entitled to recover from the said other person if that other person had not been so exempted. The noble and learned Lord said: My Lords, the Amendment which stands in my name is intended to avert an undesigned, unexpected and very undesirable result of Clause to of the Bill. That clause, as your Lordships may remember, was the subject of some discussion, and was, I think, described by the noble and learned Viscount who sits on the Woolsack as being part of the price he had to pay to the Service Departments for this Bill. It is a clause which provides that nothing Clone or omitted to be done by a member of the Armed Forces while on duty, shall subject him, or the Crown, to any liability for injury or death caused to another member of the Forces of the Crown while he is on duty.

Now let me give your Lordships a concrete example of what may be one of the results of that clause as it stands. Imagine a soldier on duty being carried in an Army lorry, which is driven by a Service driver also on duty. There is a collison with an omnibus, and the soldier is injured. He complains that his injury is due to the negligence of the omnibus driver, and accordingly brings an action against the omnibus company, claiming damages for the injury that he has suffered. In the ordinary way, under our law as it stands, the omnibus company is entitled to say: "It may be the fault of our driver, but it was also the fault of the soldier-driver of the lorry, and, accordingly, the injured soldier is entitled to claim and, if he proves his case, to get compensation from the driver of the lorry." As our law now stands, the Crown cannot be sued as the employer of the lorry driver, but, in the ordinary way, the Crown stands behind the lorry driver and will pay, and as a result you get something that is quite fair. The omnibus company only pays what is its proper proportion of the damage which has been caused. The result of the new clause is favourable indeed to the omnibus company in the sense that they can, in a proper case, sue the Crown and not the lorry driver, but fatal to the omnibus company in that, as a result of Clause to, the lorry driver is under no liability at all to the fellow member of the Services who, like him, is on duty. Accordingly, the omnibus company will be deprived of its right to obtain a proportion of the damages from the lorry driver, with the result that it will have to bear the whole of the loss—a most undesirable and unintended result.

The Amendment which I am moving is a little complicated, but I think it is really clear and gives complete effect to what I was suggesting to your Lordships. It will leave the matter in this position: that the omnibus driver and the omnibus company, his employers, will be liable for only a fair proportion of the damage suffered, and the soldier who has suffered injury will recover that proportion from the omnibus company and will look for the rest to the Crown, whose servant he is. I beg to move.

Amendment moved— Page 9, line 9, at end insert the said subsection.—(Lord Simonds.)

THE LORD CHANCELLOR

My Lords, I am thankful to the noble and learned Lord for putting down this Amendment and for thinking of this odd situation. I quite agree with him that without this Amendment there would be a blemish in the Bill, and that it might work hardship. With this Amendment, I think that fair justice will be done. The bus driver, to use the noble and learned Lord's own analogy, will not be called upon to pay to the Crown what he would have to pay had there been no such exempting provision, because he will get the rest back from the other driver. He will not be out of pocket, therefore, to a greater extent than he would have been.

The soldier's position is that he, it is true, will not get the full amount of damages that would have been awarded, but, on the other hand, he gets pension rights—which are very valuable rights— for, by hypothesis, he was on duty; if he were not on duty the exemption would not arise. He will get his pension rights and, in addition, will get such part of the damages as is fairly attributable to the conduct of the driver of the omnibus. I think that is the fairest way to do it. If we had not dealt with this point, we should have been in a very awkward position. The Crown has agreements with many of these people on what is roughly described as the "knock for knock" principle, and it would be very unfair if we, by our legislation, should prevent the Crown having to pay its share of the contribution in some cases, with the omnibus companies having to pay their share in all cases. This is a satisfactory solution. I am grateful to the noble and learned Lord, and I have pleasure in accepting the Amendment.

On Question, Amendment agreed to.

4.50 p.m.

VISCOUNT SIMON moved, in subsection (3), to leave out "A certificate of the Admiralty, or of a Secretary of State, to the effect," and insert "The Admiralty or a Secretary of State, if satisfied that it is the fact." The noble and learned Viscount said: My Lords, this Amendment and the following Amendments in my name on the Order Paper carry out a suggestion made on the Second Reading. The noble and learned Viscount, the Lord Chancellor, then thought it would be a good Amendment to make. To some extent it qualifies the provision on Page 9 about certificates given by the Departments operating as final and conclusive proof of the facts certified. The Bill, as it now stands, provides that a certificate of the Admiralty, or of a Secretary of State, to the effect that a person was or was not on any particular occasion on duty as a member of the Armed Forces of the Crown … shall, for the purposes of this section, he conclusive.

This point was raised in a forceful speech by my noble friend the Marquess of Reading on Second Reading, when the noble Marquess objected,. as I objected, to the use of a certificate as a mode of proof in place of ordinary testimony given in a court of law. But one appreciates that there are special circumstances, and I believe my proposal makes it clear that the Admiralty or the Secretary of State are not expected to give any such certificate unless the authority concerned—the First Lord or the Secretary of State—is really satisfied as to the fact about which he is prepared to certify. If he is not satisfied—and there may be cases where he must say "I really do not know" then the matter ought to be left to be decided by the ordinary procedure of the law. That is the object of my Amendment. It does not go quite so far as some of us would like, but I appreciate the circumstances.

Amendment moved— Page 9, leave out lines 10 and 11 and insert the said new words.—(Viscount Simon.)

THE MARQUESS OF READING

My Lords, on the assumption that the noble and learned Viscount on the Woolsack is prepared to accept this Amendment, I would only say that I would like to thank the two noble and learned Viscounts who have come to my rescue over this matter. I confess that I was considerably disturbed about the position, but the noble and learned Viscounts, by prising open the mailed fist, have got in these few words which have effected a considerable difference. Before we leave this matter, I would like to ask the noble and learned Viscount on the Woolsack one question arising out of something he said on this clause during the Committee stage. He pointed out the advantage of a certificate, and said that if a certificate were given that a man was on duty at the time it would automatically be taken to ensure that his pension was granted. What I want to know is: Is the converse true? Is it going to be the position that if a certificate is given that a man was not on duty at the time, his pension is automatically barred.

THE LORD CHANCELLOR

Let me answer the question at once. That certainly would not be the case. It would have to be decided by appropriate proceedings whether the man should or should not have his pension, and he would not be barred by a mere ipse dixit given in this way when he had no chance of being there. I am grateful both to the noble Marquess, Lord Reading, who raised this point, and to the noble and learned Viscount, Lord Simon, who saw the way round it. I think this Amendment is a real improvement It is an improvement for the reason that it makes it plain, on the face of the Bill, that the certificate is not to be given unless the authorities are satisfied. Further, it makes it quite clear that the authorities are under no obligation to give a certificate unless they are so minded. If they are not satisfied, then, of course, no certificate could be granted and this matter would have to be litigated in the ordinary way. For that reason I corn—mend this Amendment to your Lordships as being a real improvement on the original clause.

On Question, Amendment agreed to.

Amendment moved— Page 9, line 13, at end, insert ("or").—(Viscount Simon.)

On Question, Amendment agreed to.

Amendment moved— Page 9, leave out lines 18 and 19 and insert ("may issue a certificate certifying that to be the fact; and any such certificate shall, for the purposes of this section, be conclusive as to the fact which it certifies").—(Viscount Simon.)

On Question, Amendment agreed to.

Clause II [Saving in respect of acts done under prerogative and statutory powers]:

THE LORD CHANCELLOR moved to leave out subsection (2) and to insert: (2) Where in any proceedings under this Act it is material to determine whether anything was properly clone or omitted to be done in the exercise of the prerogative of the Crown, the Admiralty or a Secretary of State may. if satisfied that the act or omission was necessary for any such purpose as is mentioned in the last preceding subsection, issue a certificate to the effect that the act or omission was necessary for that purpose; and the certificate shall, in those proceedings, be conclusive as to the matter so certified.

The noble and learned Viscount said, My Lords, this Amendment is to do for this clause what we have already discussed and done for the previous clause. The effect is exactly the same, and I need not repeat the argument.

Amendment moved— Page 9, line 30, leave out subsection (2) and insert the said new subsection.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, after Clause 31, to insert as a new clause: No abatement on demise of Crown. .—No claim by or against the Crown, and no proceedings for the enforcement of any such claim, shall abate or be affected by the demise of the Crown.

The noble and learned Viscount said: My Lords, there is some authority to the effect that there is an abatement by the demise of the Crown. I am a little doubtful whether it is correct or not, but, at the very least, there is a doubt about it. As we all desire that there should be no doubt about it, I think it is right to put in this new clause.

Amendment moved— After Clause 31, insert the said Clause.—(The Lord Chancellor.)

VISCOUNT SIMON

My Lords, I do not know whether I might be excused for occupying a moment or two, but from the point of view of a constitutional lawyer this is an interesting case. I thoroughly approve of the insertion of the new clause. I do not know whether all your Lordships realize that in the old days the demise of the Crown—the death of the sovereign—put a sudden stop to all sorts of things. It was impossible for the House of Commons to sit for another hour tinder the old law. Afterwards Statutes were passed which enabled the House of Commons to continue, at any rate for another six months. If my memory serves me aright, under the old law the demise of the Sovereign put a stop to every position as a Justice of the Peace and to every Commission held in the Army or the Navy. Indeed, it is within my own recollection that the death of the Sovereign—the late Queen Victoria—was considered a good reason why all Privy Councillors should be re-sworn. In the course of my life, Privy Councillors have become so numerous that it is no longer thought necessary that, on the demise of the Sovereign, they should be sworn all over again, but it was so when I was a young man, and before that, because it was thought that upon the death of the Sovereign everything had to be duly done in relation to the new Sovereign.

I am bound to say, so far as my own understanding of the matter is concerned, that I never quite understood why, since every one of us, when he undertakes a post under the Crown, either as Minister or I suppose as an officer of any sort, undertakes to be faithful to the Crown, his heirs and successors. One would have thought that the original Oath would have been good enough, even though the person of the Sovereign changed. I think I am right in saying that now, in this House, whenever there is a change in the Crown and we have a new King or Queen, all members of this House take a new Oath. That is one of the examples which still exists. Certainly it would be most undesirable if technicalities of this sort were to offer any obstruction to the excellent purpose of this Bill, and indeed Parliament has been very much concerned to secure that the death of the person concerned should not make a difference to claims which would otherwise be made. It has actually provided that if, unhappily, a baby is killed in a motor accident and it is the fault of somebody else, a claim may still be brought by the administrator of the baby's estate—usually the parent—not as a solace to the parent's feelings or anything of the kind, but simply for damages for the negligent act of the defendant in shortening the baby's life. No doubt, that is very right, because Parliament has said so. But on the present occasion do not let us raise any complications in connexion with the demise of the Crown.

On Question, Amendment agreed to.

Clause 44 [Provisions as to arrestment]:

LORD NORMAND moved, in paragraph (b), to leave out from "money" to the end of the paragraph and insert: which is subject to the provisions of any enactment prohibiting or restricting assignation or charging or taking in execution. The noble and learned Lord said: My Lords, this is a mere drafting Amendment bringing this part of the Scottish application provisions into exact conformity with Clause 27, subsection (1).

Amendment moved— Page 27, line 9, leave out from ("money") to the end of line 12 and insert the said new words.—(Lord Normand.)

On Question, Amendment agreed to. Clause 48:

Extent of Act.

48.—(1) Subsection (2) of Section eight of this Act shall be enforceable in any part of His Majesty's dominions in which the provisions of the Merchant Shipping (Salvage) Act, 1940, if it had not been repealed, would have been enforceable; and subsections (3) and (4) of Section five of this Act shall be of the like extent.

THE LORD CHANCELLOR moved to leave out subsection (r). The noble and learned Viscount said: My Lords, this is a troublesome little point. The original provisions of the Bill were that subsection (2) of Clause 8 should be enforceable in any part of His Majesty's Dominions in which the provisions of the Merchant Shipping (Salvage) Act, 194o, if it had not been repealed, would have been enforceable. The trouble is that the Merchant Shipping (Salvage) Act, 1940, is applicable in the Dominion of Australia, and if we passed Clause 48 in its present form we should be doing something which we all would be most reluctant to do—namely, legislating in this Parliament and altering the law of Australia. That would obviously be wrong. Consequently, we think the right thing to do is to confine the operations of this Bill to this country, and the Amendment which I propose, by leaving out subsection (1), has the requisite effect.

Amendment moved— Page 28, line 24, leave out subsection (1).—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, the second Amendment is, of course, merely consequential.

Amendment moved— Page 28, line 30, leave out ("to the provisions of the preceding subsection, and").—(The Lord Chancellor.)

On Question, Amendment agreed to.