Lords Sitting of 24 June 1948

Preamble
The House met at four of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers.
  EGHAM URBAN DISTRICT COUNCIL BILL.
  Read 2a.
WHITSTABLE URBAN DISTRICT COUNCIL BILL.
Read 2a.
GREAT YARMOUTH PORT AND HAVEN BILL.
Read 2a.

PARLIAMENT BILL: SEPTEMBER SESSION.
4.5 p.m.
THE LORD PRIVY SEAL (VISCOUNT ADDISON): My Lords, it may be for the convenience of the House for me to make a statement on the arrangements proposed for bringing the present Session to an end, and on the dates of future Sessions. It is expected that all outstanding business required before the end of the present Session will be disposed of by Friday, July 30, and that Parliament will be prorogued on that day. The Government intend to take steps to secure the passage of the Parliament Bill, if necessary under the procedure of the Parliament Act, 1911. To satisfy the conditions of that Act, it is proposed to hold in the Autumn a short Session in which the Parliament Bill will be brought forward for a second time. This Session will be opened by His Majesty on Tuesday, September 14 next, and will be for the sole purpose of considering the Parliament Bill in both Houses.
The number of Sitting days will naturally depend upon the time required
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for the debate on the Address, for any incidental business which may be necessary and for the consideration of the Parliament Bill in both Houses. If it is found that the necessary business can be dealt with in both Houses in the first two weeks of the Session, then the Adjournment will be proposed not later than Friday, September 24, until Monday, October 25, when it is expected that the Session will be brought to an end by Prorogation.
The Session of 1948–49 will, it is expected, be opened on Tuesday, October 26.
THE MARQUESS OF SALISBURY: My Lords, I am grateful to the noble Viscount the Leader of the House for the information he has given us with regard to the Government's plans. I need not say that I am sorry—as no doubt he is—that the Government should have thought it necessary to embark upon this extra Session. We feel that the business might very properly have been concluded without that. But that is the Government's affair, not ours. At the same time, I would make one reservation. It is suggested in the statement that the business of the Session will be entirely confined to the Parliament Bill, and that that is the only matter which will arise on the King's Speech. But if Parliament is sitting, and should the situation require other matters to be raised, no doubt the Government will understand if they are raised.
VISCOUNT ADDISON: I have no doubt that those matters will be dealt with in the usual way, when the time arrives.

BUSINESS OF THE HOUSE.
VISCOUNT ADDISON: My Lords, I beg to move the Motion that stands in my name on the Order Paper.
Moved, That Standing Order No. XXXIX be considered in order to its being dispensed with for the purpose of passing The British Nationality Bill [H.L.] through its remaining stages.—(Viscount Addison.)
On Question, Motion agreed to, and ordered accordingly.

NURSERIES AND CHILD-MINDERS REGULATION BILL.
4.9 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(The Earl of Listowel.)
On Question, Motion agreed to.
House in Committee accordingly:
[The EARL OF DROGHEDA in the Chair.]
Clause 1 [Registration of nurseries and child-minders]:
THE MINISTER OF STATE FOR COLONIAL AFFAIRS (THE EARL OF LISTOWEL)THE MINISTER OF STATE FOR COLONIAL AFFAIRS (THE EARL OF LISTOWEL) moved to add to subsection (1):
"The registers kept under this subsection shall be open to inspection at all reasonable times."
The noble Earl said: The first Amendment standing in my name is to make sure that the registers of nurseries and child-minders are open for inspection by the public at any reasonable time of the day. It is clearly right that any person—for example, a mother who is thinking of placing a child in a day nursery, or in the care of a minder—should be able to find out by actual inspection of the register whether particular premises which are being used as a nursery, or whether a particular person who is minding children, are in fact, registered, and that the same individual should have access to any particulars contained in the register. That is the object of the Amendment. I beg to move.
Amendment moved—
Page 1, line 13, at end insert the said words.—(The Earl of Listowel.)
On Question, Amendment agreed to.
THE EARL OF LISTOWEL: The object of the next Amendment is to give the local health authority power to refuse to register a person as a minder if there is someone living in the premises whose presence makes it undesirable for the place to be used for children—for example, someone suffering from tuberculosis or other infectious disease. If this Amendment is accepted, it will add another power to that which is already provided for in relation to the fitness of the person who is asking to be allowed to act as a child-minder. I beg to move.
Amendment moved—
Page 2, line 14, after ("fit") insert ("(whether because of the condition thereof or for any reason connected with other persons therein)").—(The Earl of Listowel.)
VISCOUNT BRIDGEMAN: I agree that there should be power to exclude premises where there is living someone who is subject to an infectious disease, but on the face of it I should have thought that the words in the Bill provided sufficient power, and that this Amendment restricted the powers, instead of increasing them. However, if the view of the Government is that these words are necessary and do not limit the powers of inspection, I have nothing more to say.
THE EARL OF LISTOWEL: It is really a matter of drafting, and the view of the draftsman is that this form of words is necessary if the local health authority are to be in a position to exercise this power. It does not mean that the minder will be refused registration. It is quite probable that the local health authority will wish to satisfy themselves that all necessary precautions are taken, in order to prevent any contact between the infected person and the children. It means merely that the local authority are in a position to make absolutely certain that there is no serious risk of children being exposed to this infection.
VISCOUNT BRIDGEMAN: In that case, registration would be given under certain conditions?
THE EARL OF LISTOWEL: Yes.
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 [Power to impose requirements in connection with registration]:
THE EARL OF LISTOWEL THE EARL OF LISTOWEL moved, after subsection (2) to insert:
"(3) The local health authority may by order made as respects any premises or person registered under the foregoing section require the taking of precautions against the exposure of the children received in the premises to infectious diseases."
The noble Earl said: There is nothing in the Bill, as it now stands, to prevent either a nursery or a minder from taking in children suffering from an infectious disease, and that point is not covered by the existing law. This new subsection (3), which it is proposed to insert, will cover this contingency and will also enable

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a local health authority to require that persons working in a nursery or minder's home—including persons by whom the children's food is prepared—are carefully watched from this point of view. It gives to the children an added protection from infection, either by other children or by persons living and working in the premises. I beg to move.
Amendment moved—
Page 2, line 24, at end insert the said sub-section.—(The Earl of Listowel.)
On Question, Amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Certificates of Registration]:
THE EARL OF LISTOWEL THE EARL OF LISTOWEL moved, in subsection (2), to leave out "Where any such requirements are imposed, varied or revoked after the certificate has been issued," and insert:
"On any change occurring in the circumstances particulars of which are stated in a certificate issued under this section."
The noble Earl said: This subsection, as it stands at the moment without Amendment, does not provide for the issue of an amended certificate when a minder has changed his or her address. This is a matter of some importance, because a minder may move to far less desirable premises from the point of view of the surroundings in which it is desirable to place children. This Amendment puts right the defect by providing that an amended certificate shall be issued whenever a change occurs in the particulars stated in the certificate, and these particulars, in the case of a minder, include the address. A minder who changes his address will have to notify the local health authority, and if the local health authority approve, he will have that change inserted as an amendment in the original certificate of registration. I beg to move.
Amendment moved—
Page 3, line 24, leave out from beginning to the second ("the") in line 25 and insert the said new words.—(The Earl of Listowel.)
VISCOUNT BRIDGEMAN: I take it that this Amendment relates to the same purpose as the first Amendment?
THE EARL OF LISTOWEL: Yes.
VISCOUNT BRIDGEMAN: In those circumstances, we think that it is a necessary Amendment.
On Question, Amendment agreed to.
Clause 3, as amended, agreed to.
Clause 4:
Penalties for failure to register and for breach of requirements under section two.
A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding twenty-five pounds or, in the case of a second or subsequent offence, to imprisonment for a term not exceeding one month or to a fine not exceeding twenty-five pounds or to both such imprisonment and such fine.
4.20 p.m.
THE EARL OF LISTOWEL THE EARL OF LISTOWEL moved, after subsection (z) to insert:
"(3) Where a person has been registered under section one of this Act and while he is so registered he acquires a new home, then until he has given notice thereof to the local health authority he shall not for the purposes of the last foregoing subsection be treated as being so registered in relation to the reception of children in the new home."
The noble Earl said: Having heard that the noble Viscount opposite concurs in the object of this Amendment, I will not weary the House by giving my reasons for it, which are the same. I therefore beg to move.
Amendment moved—
Page 3, line 46, at end insert the said subsection.—(The Earl of Listowel.)
VISCOUNT BRIDGEMAN: The Amendment contains the words: "registered under section one of this Act." I imagine that that applies not only to subsection (1) (a) but to subsection (1) (b) of Clause 1. The object of the Amendment is to deal both with those who keep actual children's homes and with those who mind children in their own homes. I take it that it is desired to take these powers in respect of both those categories.
THE EARL OF LISTOWEL: The Amendment is intended to cover both subsection (1) (a) and subsection (1) (b) of Clause 1. If the interpretation we have put on it is wrong, I will see that the matter is rectified on the Report stage.
On Question, Amendment agreed to.
THE EARL OF LISTOWEL THE EARL OF LISTOWEL moved to add to subsection (3):
"Provided that in the case of a first offence under subsection (2) of this section the fine which may be imposed shall not exceed five pounds."
The noble Earl said: This Amendment is to reduce from £25 to £5 the maximum

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penalty that can be imposed for a first offence on the part of a child-minder. Through pure carelessness, and without a desire to defraud or deceive, a child-minder may not realise that registration is necessary; and it was felt that for an act of carelessness of that type a maximum penalty of £5 is more appropriate than a much larger one. I beg to move.
Amendment moved—
Page 4, line 6, at end insert the said proviso.—(The Earl of Listowel.)
VISCOUNT BRIDGEMAN: I think this is a distinct improvement. The noble Earl has put his finger on one of the danger spots in the Bill—namely, that the announcement of these penalties may deter a certain number of harmless old ladies who are in the habit of minding children and who, when they see these penalties, may discontinue their good work. Therefore I think this reduction is altogether a good thing.
On Question, Amendment agreed to.
Clause 4, as amended, agreed to.
Clause 5 [Cancellation of registration]:
THE EARL OF LISTOWEL: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 4, line 12, leave out from ("authority") to end of line 21 and insert ("as respects any premises or person registered under the said section one, that circumstances exist which would justify a refusal under subsection (3) or subsection (4) of that section to register the premises or person").—(The Earl of Listowel.)
On Question, Amendment agreed to.
THE EARL OF LISTOWEL: This is consequential upon the last Amendment. I beg to move.
Amendment moved—
Page 4, line 26, leave out ("(c) of this section") and insert—
("(b) of this section on the grounds that the premises are not fit to be used for the reception of children.")—(The Earl of Listowel.)
On Question, Amendment agreed to.
Clause 5, as amended, agreed to.
Clauses 6 to 12 agreed to.
Clause 13 [Short title, interpretation, and extent]:
THE EARL OF IDDESLEIGH THE EARL OF IDDESLEIGH moved, in the definition of relative, after
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"sister" to insert "half-brother, half-sister." The noble Earl said: In his speech on Second Reading the noble Earl, Lord Listowel, said that he did not wish to interfere with actual relatives who look after children of their own family. We now come to what I suppose is the legal definition of those in whom kinship may be presumed. I am suggesting that a half-brother and a half-sister should be included among those relatives listed in the interpretation clause as being those to whom this Act does not apply. I suggest that it would be convenient to include them because many cases must occur in which an older half-brother or half-sister is given the task of looking after the children of a second marriage by one of their parents. I beg to move.
Amendment moved—
Page 7, line 39, after ("sister") insert ("half-brother, half-sister").—(The Earl of Iddesleigh.)
THE EARL OF LISTOWEL: I think I can relieve the noble Earl's mind of what may have been a misapprehension. If he will read subsection (2) of the interpretation clause, he will see that it says:
"'relative' means a grandparent, brother, sister, uncle, or aunt, whether by consanguinity or affinity…"—
that is to say, whether related by blood or by law. A half-brother or a half-sister is clearly a relative by blood of the brother or sister for whom he or she wishes to be responsible. Those relations, therefore, are covered by the existing provisions of the Bill.
THE EARL OF IDDESLEIGH: I am grateful to the noble Earl for looking into this matter, and on his assurance I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
THE EARL OF IDDESLEIGH: It may be for your Lordships' convenience if I deal with the next two Amendments together. They are for the purpose of including in the clause great-uncles and great-aunts. Here I must declare an interest: I am a great-uncle myself, and my wife and I devote a certain amount of time to minding a family of great-nieces and great-nephews. We all know that in nursery mythology uncles are sometimes supposed to be wicked, but nobody has ever said a word about great-uncles or great-aunts. I beg to move.
Amendment moved—
Page 7, line 39, leave out ("or").—(The Earl of Iddesleigh.)
THE EARL OF LISTOWEL: I share the noble Earl's sympathy for great-uncles and great-aunts. As a potential great-uncle myself, I also have to declare an interest. But I feel that perhaps the noble Earl's fears are exaggerated, because these relations will not be obliged to register under the Bill unless they take in their great nieces or great-nephews both for profit and in conjunction with children from other homes. I am quite certain that, in the average case, relatives of this type either charge nothing at all or make only a small charge for looking after these fairly close relations. I do not therefore think that many of these great-uncles and great-aunts will be in the least affected by the provisions of the Bill. If we were to draw the provision more widely than it is at present drawn—as the noble Earl suggests—I think we should have to deal with a large number of borderline cases. The champions of the first cousins might come forward and say: "If great-uncles and great-aunts are to be included, why not the first cousins as well?" I hope, therefore, that the noble Earl will feel his fears are not so well-founded as he may have supposed, and that he will allow the matter to rest where it is.
THE EARL OF IDDESLEIGH: I will not put your Lordships to the trouble of dividing on this question. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Remaining clause agreed to.
House resumed.

AGRICULTURAL HOLDINGS BILL. [H.L.]
4.30 p.m.
Order of the Day for the Second Reading read.
THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF AGRICULTURE AND FISHERIES (THE EARL OF HUNTINGDON): My Lords, I beg to move that this Bill be given a Second Reading. It is a measure to consolidate the Agricultural Holdings Act of 1923, Part III of the Agriculture Act of 1947, and certain other enactments relating to
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agricultural holdings. It does not change the existing law in any way. I beg to move that this Bill be now read a Second time.
Moved, that the Bill be now read 2a.—(The Earl of Huntingdon.)
On Question, Bill read 2a, and referred to the Joint Committee on Consolidation Bills.

LAW REFORM (PERSONAL INJURIES) BILL [H.L.]
4.32 p.m.
Order of the Day read for the consideration of Commons Amendments.
THE LORD CHANCELLOR (VISCOUNT JOWITT): My Lords, I beg to move that the Commons Amendments be now considered.
Moved, That the Commons Amendments be now considered.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS.
[The references are to Bill 31.]
In the Title: Page 1, line 2, leave out from ("relating") to ("to") in line 3.
Clause 2, page 2, line 3, leave out Clause 2.
Clause 7, page 3, line 41, leave out ("sections one and two") and insert ("section one").
Clause 7, page 3, Line 45, leave out ("three") and insert ("two").
4.32 p.m.
THE LORD CHANCELLOR: My Lords, I beg to move that this House do agree with the Commons in their Amendments. Your Lordships will forgive me if I take a little time, but I think I owe it to you, and I owe it to myself, to make plain what has happened since we last had the Bill in this House. Your Lordships will remember that there were three material provisions of the Bill. The first was the provision in relation to common employment, to put an end to that ancient and rather discredited doctrine. The second provision altered the existing law, replacing the absolute liability which exists to-day by a more qualified liability—namely, that the person in charge of the factory, the employer, could escape from his liability if he showed that he had taken all possible steps to make the machinery safe. The third, and much

1231
the more complicated question, arose with regard to the measure of damages. On the latter question, no point now arises, and on the first question no point arises. But when we passed this Bill the second provision was included. It was put in because it was the unanimous recommendation of the Monckton Committee. Your Lordships will bear in mind that that Committee, as constituted, contained representatives of the employers and representatives of the Trades Union Congress.
The Committee recommended this alteration in the law of absolute liability, and I commended the matter to your Lordships in these words:
"To balance any extra burden on industry which may result from the abolition of the doctrine of common employment, the Bill proposes to remedy what may be thought to be an injustice to employers under the existing law relating to the safety of their workers. The Monckton Committee pointed out that under the Coal Mines Act, 1911, an employer who was sued for breach of the obligations imposed by that Act could plead that it was not reasonably practicable for him to avoid or prevent a breach, but under the Factories Act…there is no such limitation on an employers' liability, and…he can be held liable in damages, regardless of the fact that the contravention or non-compliance…is due to causes over which he had no control.… There seems to be no good reason for the continuance of this distinction."
As so often happens, I used rather unfortunate language when I said "to balance," because that has conveyed the impression that there was some kind of Parliamentary deal being done about this. Of course that is not the fact at all. Those of your Lordships who read the Report of the Monckton Committee can easily satisfy yourselves about that, because the recommendation in regard to the abolition of the doctrine of common employment was not unanimous and the employers' representatives dissented from that. It was not, therefore, a case of any deal being done.
It was the fact—and this is what I meant by my phrase—that the Bill, as introduced to your Lordships' House and as recommended by me, contained a first clause which would naturally be welcome to the workers, and a second clause which would naturally be welcome to the employers. In that sense there was a balance, but there was no balance in the sense of a deal. Everybody will agree
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with that. I confess that I had not given to this question any comparable consideration with that which I had given to the others because, as I have said, this was an agreed—indeed a unanimous—recommendation of the Monckton Committee. I supported it and commended it to your Lordships. I did not anticipate that there would be any considerable controversy upon this matter. It was only after the Bill had passed through your Lordships' House, and after it had received the amount of notice which was consequent upon that, that this storm arose. When these things happen, either in political life or in ordinary life, you must not, on the one hand, run before the storm, but, equally, you must not be stubborn in adhering to the views which you previously formed, if, on further consideration, you think there is real substance in the objection. I want to suggest to your Lordships now that there is real substance in the objection, which we did not sufficiently consider.
Before I do that, may I just make a statement upon the law as it stands today? There is no doubt that in the lower courts of this country it has been asserted that there is an absolute obligation on the employer, and that whether he can or cannot carry out that obligation, matters not. A circular saw is a good illustration of this difficulty. I am assuming—I do not know, but I should think it is probably the fact—that to make a circular saw absolutely safe is impossible. However carefully you fence it, and whatever design you may introduce, probably there must always be a risk of the worker's hand or the worker's fingers being exposed to danger. So far as the ultimate Court of Appeal is concerned—that is your Lordships' House—the position, however, is different.
I will read, if I may, a passage from a speech made by the noble and learned Viscount, Lord Simon, in which all the other noble and learned Lords concurred, which explains the position so far as the ultimate court is concerned. These are the words:
"Does Section 10"—
that is, Section 10 of the Factory and Workshop Act, 1901,—
"impose an obligation to provide such a degree of secure fencing for a dangerous machine as makes the machine no longer dangerous at all to a reasonably careful workman, even

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though this result could only be attained at the expense of making the use of the machine impracticable, and hence, in effect, prohibiting its use altogether? Or is a dangerous machine to be regarded as 'securely fenced' under Section 10 if the fencing protects the workman from danger so far as that can practicably be done, consistently with the machine being used? If the first of these two views were correct, this might amount to a prohibition of the use of circular saws altogether (even saws of the most modern type, such as this one, fitted with the best known safety devices), and I should be extremely unwilling to make the present case the occasion for a final pronouncement on this issue, which is so important to British industry alike in peace and in war, unless this were necessary for our decision. It is not so necessary and I desire to reserve my opinion as to the correctness of the view expressed by Mr. Justice Salter in Davies v. Thomas Owen & Co., which would interpret the section as meaning that 'if a machine cannot be securely fenced while remaining commercially practicable or mechanically useful, the statute in effect prohibits its use.'"
Then Lord Atkin, Lord Thankerton, Lord Romer and Lord Porter concurred in that statement of law.
I should add this further fact. There has recently been a decision in the Court of Session in Scotland in which a man was injured when an overhead belting broke in two. Part of the belting came down and struck the man working on the bench; and the Court of Session held that there was not a breach of the obligation to fence securely. What happened in that case was that the machine had got out, rather than the man had got into the machine. I say no more than that, because that case is now under consideration in your Lordships' House. But that was the decision of the Court of Session. Therefore, your Lordships will realise—and I am anxious to discuss this matter fully with your Lordships, as I thought it right that you should know—that there is some doubt (at any rate so far as the ultimate Court are concerned), as to what is the law on this topic. But for the rest, for the purposes of what I am now going to say, I shall assume that there is an absolute obligation. We proposed to qualify that absolute obligation. The Commons rejected our proposal and, on this difficult point, the question is whether they were right or whether we were right.
Let us now consider the proposition. I will take a circular saw as a good illustration. You are dealing with a case where, notwithstanding (and I am assuming this) that all precautions have been taken, a workman's hand is
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unfortunately hauled in with the piece of wood and he has lost his hand—or perhaps some fingers. On whom ought the loss to fall? Your Lordships will see that I am eliminating the case of negligence on the part of the workman; I am assuming that the fencing is as good as it can be made. On whom ought the loss fairly to fall? It is not a question of avoiding the loss; it is a question as to whether the loss should fall on the employer or on the worker. It is frequently argued that as between those two people, it ought surely to fall on the employer, because he is the man who is using the machines for the purposes of his own profit. Particularly in these days, when a great number of industries are run by the State, I do not think that is a very sound way of looking at it. I think a sounder way is this: that it is open to the employer—as, in practice, he always does—to cover this risk by insurance. It would be much more difficult for the worker to cover his risk by insurance.
On reflection, it seems to me that a risk of this sort, which occurs from time to time, ought to be covered by insurance. That is an argument for placing the risk upon the employer; and it has also been forcibly brought home to me that there is an added risk. The fact that the risk is absolute, and that it is to-day in practice covered by insurance, has this beneficial result: that it is of financial interest to the employer (if of no other interest), to see that his machines are as safe as possible. It is the inspector to the insurance companies who suggests every conceivable improvement that can be made, and the fact that there is this absolute obligation tends to bring the whole thing up to date and tends to bring about the adoption of every conceivable device. Whereas, if you had this put forward as "so far as reasonably practicable," it is said, it is thought and it is perhaps the fact, that the employer might lean back and rest, and might not be sufficiently up to date in his outlook on these matters and rely rather on the fact that it may never happen. That is the first consideration, and I think it is an important one.
I believe that this principle of the Factories Act is a very beneficial principle in our law. I was under the impression that this principle of the Coal Mines Act—the Coal Mines Act, as I have told your Lordships, has the more qualified liability—was generally accepted. But I find that

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I am wrong about that. There is a school of thought and an agitation in regard to the mines to try to bring them up to the Factories Act standard, to try to get away from the qualification which exists in the mines to-day and bring it up to the absolute obligation under the Factories Act. It is said—and said with some force—that if you look at the incidence of these industrial injuries to-day, including industrial disease, approximately one-half of the total injuries occur in the mines. It is said, and it is thought, that if there were this absolute obligation you might even be able to cut down the accident rate still further, by making people realise that there was an absolute obligation and they could not risk any qualification at all.
There is a third reason which I do not think any of your Lordships had in mind—namely, that this clause in our Bill deals only with civil liability. It said that it was to be a defence to an action for damages that every possible precaution was taken; but it did not deal with criminal liability. The breach of the obligation under the Factories Act with regard to fencing is not merely something which may give rise to an action for damages; it might lead to proceedings in a criminal court. What was said was this: How odd it is that with regard to the civil liability you are giving, as a defence in the civil action, this qualified obligation, whereas under the criminal law the obligation remains unqualified. I can understand the criminal obligation being less strict than the civil obligation, but it is indeed odd that we should have stricter criminal liability than we have civil liability, and this Bill does not attempt to deal with the criminal liability at all. It is quite outside the scope of the Bill.
For all those reasons, when this was pointed out to me, I confess that I went into the matter with much greater thoroughness than I had before because, as I have said, this was a unanimous recommendation to which both workers and employers had agreed. Having gone into it, and having heard the arguments, I say, quite frankly, that, contrary to my previous opinion, I believe your Lordships would do well not to tamper with the existing principle of the law of the absolute obligation, because I believe that the fact that we have an absolute obligation with a very high standard does mean that
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the tendency is to keep all these machines absolutely up to date, and to adopt every possible device to try to prevent these accidents happening. In the last resort, if these accidents do happen, it really comes down to which of the two sides has to bear the loss. I suggest that on the whole, the existing practice, whereby the loss is borne by the man who can cover himself by insurance, is the fairer and the better proposal. Therefore, my Lords, I beg to move that this House do agree with the Commons in the said Amendments—namely, to delete what was Clause 2 of our Bill and, of course, the consequential Amendments. I beg to move.
Moved, That this House do agree with the Commons in the said Amendments.—(The Lord Chancellor).
4.49 p.m.
VISCOUNT SIMON: My Lords, the Lord Chancellor has spoken very frankly to the House and has told us that he has changed his own view as to what is the right thing to do about this matter. It is manifest that he has changed his view, and nobody is to be reproached because, on further reflection, he has changed his view. If he will allow me to say so, I do not think he has presented one side of the matter to your Lordships quite so clearly as I am sure he would wish to do. It really is a little fallacious to say that the question is: On whom should the loss fall? The Workmen's Compensation Act is now being replaced by the Industrial Insurance Act, and the provisions of the Industrial Insurance Act provide most elaborately for the compensation of the workman who meets with an accident in the course of his employment, without any question as to whether the employer is to blame for it. So it is not really the case—if second thoughts were to be preferred—that the workman is left to bear the loss. Nothing of the sort happens. The whole scheme of social insurance, now vastly improved over what it was originally, is designed to secure that a workman who meets with an injury while at work shall be compensated. Of course the Lord Chancellor will be the first to agree with that.
The noble and learned Viscount has been so good as to refer to some observations which I made in a case in which I presided when I was Lord Chancellor. Perhaps I may spend a moment explaining the point. In the Coal Mines Act

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there are provisions for rules and regulations to be made for the purpose of securing the safety of the miners, and if those rules are broken the liability of the employer is—I speak subject to correction—absolute. If he is brought before the magistrates and prosecuted by the Inspector, it is no answer for him to say: "I did the best I could." That is the law, and no one is proposing to alter it, at any rate by this Bill. But when we come to the totally different question, which is not a question of criminal law but a question of compensation to the individual, then, in respect of coal mines, the law is that for the purpose of meeting the claim against the employer the employer may say: "I am sorry that this regulation has not been, in this particular, precisely observed. I will satisfy you that it was through no fault of mine or of anyone in a position to give directions. It was due either to a pure accident which I could not help—I was not at the bottom of the mine, nor was my manager—or due to some other circumstance which prevented there being a strict and absolute compliance with the rule; and that, I claim, is no reason for making me pay damages."
I hope that I have expressed the law in accordance with the Lord Chancellor's own views. No one could have stated it more clearly than he did on the occasion of the Second Reading of this Bill in your Lordships' House on December 4, 1947. When he spoke in justification of this very clause—Clause 2—the noble and learned Viscount said this. It was pointed out that, under the Coal Mines Act, an employer who was sued (that means of course who was having a claim made against him in a civil court for damages) for breach of the obligation imposed on him under that Act could plead that it was not reasonable or practicable for him to avoid or prevent that particular breach. That did not mean that if the employer was prosecuted before the magistrates he could not be convicted, because, as I understand, in the case of the Mines Act as in the case of the Factory Acts there is an absolute obligation which can be enforced by the magistrates.
But when the coal mines legislation came to be made, it was thought that it was not really fair to the employer that the injured individual should say: "You must pay me compensation as a result of
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damages in a civil action in any case." Parliament said: "If indeed you are able to satisfy the court that you have done everything which you could reasonably do, everything that was practicable to do, although in fact the regulation has not been precisely observed, that is a defence point." Parliament thought that a reasonable provision to make, and it stood as law.
What my noble and learned friend said on the Second Reading was that there did not seem to be any good ground for saying that that should be the situation in the case of coal mining but should not be the situation in the case of factories. And I confess I thought that what he then said was reasonable. I am sure he will not for a moment suggest to the House that he had not considered the matter carefully. No doubt he has gone into it further since then, as one would expect from any occupant of the Woolsack in dealing with a Bill of this importance. For, be it remembered, though it is very technical, this Bill is of great importance to tens of thousands of people. One would naturally expect that any Lard Chancellor would make it the subject of very careful reflection and, if necessary, of investigation, and no doubt my noble and learned friend has done so.
Now it is a remarkable fact that the Monckton Committee which reported on a number of these matters was never unanimous about any other topic. The members of that Committee did not all agree about getting rid of "common employment." I am one of the strongest supporters of that, but they did not all agree about it. Nor did they agree on the horribly complicated subject of alternative remedies. But that Committee, which, if I mistake not, included the present Minister of Labour, Mr. Isaacs——
THE LORD CHANCELLOR: Only at a very early stage.
VISCOUNT SIMON: That may well be. I do not wish to make any point of that, except to show that the Committee contained trade union representatives of standing. The Monckton Committee had upon it trade union representatives who knew the workers' point of view and it had upon it also people who knew the employers' point of view. There were a number of lawyers upon it. I think Dr.

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McNair was one, but certainly there were both professional and practising lawyers. Mr. Beney was a member, and there is no better practising lawyer on that particular subject than Mr. Beney. Now everyone on the Committee agreed that this Clause 2 was proper.
I had already read afresh what the noble and learned Viscount the Lord Chancellor said to the House on the Second Reading, and I had made my own emendation. I had written in the margin of the report, instead of "definition" the word "distinction," because I was certain that that must have been the word which the Lord Chancellor used. He said there is no sense in having two different rules for two different classes of cases which are exactly on all fours. I do not want to quote myself, but I followed him. I was a warm supporter of the Bill as a whole, and he expressed himself very kindly about the attitude of myself and others. I pointed out the good sense in this and I said how it seemed to me to be too stiff to say to an employer: "You are not negligent, you have done everything you could possibly do to stop this unhappy accident, you have proved (because the burden is on the employer) that in no possible sense can it be called your fault. You must pay damages for what is called breach of statutory duty, notwithstanding that now there is this elaborate system of industrial insurance and workmen's compensation." I was supported in this view—perhaps I should say the noble and learned Viscount the Lord Chancellor was supported—by the noble Marquess, Lord Reading, speaking from the Liberal Benches, and by the noble Lord, Lord Porter, a Law Lord who has great experience in this class of subject. The noble and learned Viscount ended by saying that he was very glad we all agreed, and he made another reference to Clause 2, making it perfectly plain what he proposed.
I am bound to say for myself that, though I appreciate that the arguments he has now advanced have to be weighed, I still remain of the opinion, not as a lawyer, but as a man who has had a good deal of acquaintance with this class of subject, there was very good sense in the clause as the noble and learned Viscount proposed it in this House. When
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it had passed in this House, which I think it did in December, it moved to the other House. Then there was a considerable pause. I do not think the Bill was taken on Second Reading in another place until April, and we learn from the noble and learned Viscount in his observations now what I had not known previously, that there was a "storm." I notice that in another place the Minister responsible, the Attorney-General, Sir Hartley Shawcross, was repeatedly asked to explain why the Government had decided to drop the very clause which the noble and learned Viscount the Lord Chancellor had commended to this House with such good reason. He said nothing about a storm. That may have been his prudence, but, taking it from——
THE LORD CHANCELLOR: A storm? That can mean a large number of letters and a large number of deputations. "Great public interest" is perhaps a better phrase.
VISCOUNT SIMON: I think I understand how it happened. At any rate, the result of it was, if I am not mistaken, that upon the Bill coming before the House of Commons for Second Reading, the Attorney-General, in charge of the Bill, before there had been any argument about Clause 2 at all, announced at once that the Government would propose to omit the clause. No argument—but that the Government had reached that conclusion. I am among the first to want to make sure that if machinery is dangerous, it should be made "as safe as possible," but it seems to me rather inconsistent with that to say that the employer has to pay damages even though he has done everything possible to make it safe. That was the reason why I thought that the Lord Chancellor's proposal to the House was right, and was to be preferred to the change which has been made, after the storm, in another place, and made very summarily.
However, I would certainly not suggest to this House that they should start disputing on this matter by sending the Bill back again. I think there is some force in the arguments now addressed to the House by the noble and learned Viscount, the Lord Chancellor. I respect him greatly for having stated so frankly that he has changed his view, and for giving us the reasons for this change. But I must say for myself, trying to get the

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law of the land in these important matters in the best possible order, that I think it is not the best course to say that an employer is to pay money compensation in a civil suit brought against him by his workman on the grounds of breach of statutory duty, when the employer proves that he has done everything he can to secure that the law is complied with. The fault may be due to the interference of some other person. If the fact is, for example, that the guard of a circular saw (I have tried the kind of case to which my noble friend referred, and for a time I knew quite a lot about circular saws) is the best that can be obtained, is it right that the employer should be made to pay, when he has provided that guard and done everything he can to keep the protection adequate, but where, as it happens, by an accident, the protection has been moved, perhaps to suit some workman's convenience and the employer has exerted himself in every possible way to secure that proper protection should continue to be given? I doubt whether that is a good principle, especially when we have got rid (and I am glad we have) of any idea that a workman should not be compensated if it is nobody's fault. A workman is compensated, and on a very proper scale, if he meets with any injury in the course of his work and no question arises as to whose fault it is.
In these circumstances I feel bound to be frank and candid with the House, because I took part in the shaping of this Bill and was able to suggest how some clauses might best be expressed. I most warmly support the Bill. I only thought it right to put on record that I think there is a great deal to be said for the noble and learned Viscount's original view, but I quite understand why the noble and learned Viscount has taken a different view. I do not want to challenge for a moment the sincerity of his present views.
THE LORD CHANCELLOR: Before the noble and learned Viscount sits down I should like to say this. He and I never differed on what the law proposes. I would remind him that I assented to his proposition with regard to the Coal Mines Act, 1911. I have the Act before me, so I have an unfair advantage over the noble and learned Viscount, and I will
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read these passages. Clause 102, subsection (3) deals with criminal liability:
"Nothing in this Act shall render the owner…liable to a penalty in respect of any contravention of or non-compliance with the provisions of this Act if he proves that the contravention or non-compliance was due, to causes over which he had no control and against the happening of which it was impracticable for him to make provision."
Subsection (8) deals with the civil liability:
"The owner of a mine shall not be liable to an action for damages as for breach of statutory duty in respect of any contravention of or non-compliance with any of the provisions of this Act if it is shown that it was not reasonably practicable to avoid or prevent the breach."
I do not know if he got it right, but we would both desire that a statement on the existing law should be clear.
VISCOUNT SIMON: I accept that at once. I took my law on that precise point from the speech of the noble and learned Viscount the Lord Chancellor on Second Reading. But I do not want to spend any more time on this matter, except to say that this is a change which I think many people feel is not justified. I do not consider it is a change on which we ought to have any further dispute with another place, because it is obvious, from what the noble and learned Viscount the Lord Chancellor has said, that there has been a good deal in the way of protest or demonstration, wherever it may have come from, and I have no doubt the opinion he has now offered is an opinion the House will not wish to challenge.
5.10 p.m.
THE MARQUESS OF READING: My Lords, having said a few words on an earlier stage of this Bill, I would like to add one or two now, though I hesitate to intervene in what is more or less a private discussion between two Lord Chancellors. The noble and learned Viscount on the Woolsack, perhaps ill-advisedly, as things have turned out, used the earlier mentioned word, "balance." It seems to me that the word "balance," though perhaps not exactly in the context with which he used it, rather aptly describes the situation. When we were first discussing this Bill, the balance was towards approximating this Bill to the existing provisions of the Coal Act, 1911. That balance seems now to have been tilted by invisible forces in the opposite

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direction, and the balance now inclines towards approximating in some other measure the Coal Act, 1911, to the provisions of this Bill. Like the noble and learned Viscount, Lord Simon, I followed this Bill with some interest in another place and, like him, I was unconscious of the storm that was raging. Observing nobody struck by the lightning which was flashing, I thought the matter had passed quietly. The storm seems, anyhow, to have been off-stage. But it has had its effect; and the position now is that the clause to which we devoted so much attention, and on which we attained so much unanimity, has departed.
I would like to ask the noble and learned Viscount on the Woolsack one question. He has given us, very frankly and characteristically, if I may say so, the arguments which had led him to reverse the view which he had previously expounded to your Lordships. I would like to know—and it might be of interest to other of your Lordships to know—whether the considerations which have now influenced him to change his view were presented to the Monckton Committee during their sittings, and were present to their minds when they drew up their Report.
THE LORD CHANCELLOR: I would tell the noble Marquess if I knew, but I am afraid I do not. Though I did, of course, consider the matter, I think I was rather put off my guard by the fact that this was a unanimous recommendation, to which both the workers and the employers had agreed. I think that that fact prevented me from going into the matter as fully as I otherwise would have done. I do not know what considerations the Monckton Committee had before them.
THE MARQUESS OF READING: I am obliged to the noble and learned Viscount Of course, one is unable to pursue the matter beyond this stage. I confess that I regard the conclusion which has been arrived at as an unfortunate one; but, like the noble and learned Viscount, Lord Simon, it seems to me to be a matter on which we ought to accept the decision of the other place, and to take it no further.
On Question, Motion agreed to.

EMPLOYMENT AND TRAINING BILL.
5.14 p.m.
Amendments reported (according to Order).
First Schedule:
National Youth Employment Council and Advisory Committees for Scotland and Wales.
CONSTITUTION OF COUNCIL AND COMMITTEES.
1. The members of the Council shall be appointed by the Minister and shall be thirty-four in number, consisting of—
(a) a chairman and four other persons (including the chairmen of the Advisory Committees for Scotland and Wales) appointed as being independent persons;
THE FIRST LORD OF THE ADMIRALTY (VISCOUNT HALL)THE FIRST LORD OF THE ADMIRALTY (VISCOUNT HALL) moved, in paragraph 1, to substitute for "thirty-four" the words "not more than thirty-six." The noble Viscount said: My Lords, this and the following Amendment carry out an undertaking given in Committee. Their effect is to appoint two additional independent members to the National Council, if the Minister thinks fit. I beg to move.
Amendment moved—
Page 14, line 8, leave out ("thirty-four") and insert ("not more than thirty-six")—(Viscount Hall.)
VISCOUNT BRIDGEMAN: My Lords, I would like to thank the noble Viscount opposite for having met us in this way. I think that the Amendment is likely to make the Council a better and more useful body than it would have been had we not made these small additions. Apart from anything else, the insertion of the words "not more than thirty-six" instead of "thirty-four" will probably save the Ministry of Labour from having to break the law by not filling every vacancy immediately it occurs, which I am sure they do not want to do. As to the numbers, thirty-six instead of thirty-four, and six instead of four, will, as was said on Second Reading, give an opportunity to appoint a certain number of outside and independent people, who we on these Benches, at any rate, feel will strengthen the Council. It nearly always happens that in a committee of this sort the people who have no labels on them, and are simply appointed because they are useful people who know the business, are the people who do the real work.

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In this case, the Amendment will give an opportunity to appoint nominees of the voluntary organisations, the probation service and, possibly, of the Armed Forces. Those people will be a source of considerable strength to the Council. In particular, I think a good representative of the juvenile organisations (that representative might be taken from the Standing Conference of National Juvenile Organisations) will be a particularly useful person. The Schedule as it stood provided for representation of the teachers and the youth employment committees in England and in Scotland. But the teachers and youth employment committees cover not the whole but only part of the field. They cover local authorities' youth service. But only a certain proportion of the boys and girls in this country are covered by the local authorities' youth service, and probably half are covered by the voluntary organisations. The voluntary organisations have been left out of this Bill in exactly the same way that the N.S.P.C.C. were left out of the Nurseries and Child-Minders Regulation Bill. This Amendment will give an opportunity for those people to be brought in.
The noble Viscount opposite undertook that the probation service would also be represented. I hesitate to repeat what I said on Second Reading, but the employment of delinquent children is at least as important as the employment of children who present no problem. As the number of delinquent children is growing, so this problem of employment will grow also. I am not sufficiently familiar with the figures to know how much extra work it takes to place a delinquent child compared with the placing of an ordinary child who presents no problem, but I should imagine that a great deal of extra personal work and interviews are required for a purpose of that sort. I will not take up the time of the House further on this Amendment. I will just thank the noble Viscount again for the action he has taken, which we support.
On Question, Amendment agreed to.
VISCOUNT HALL: I beg to move the next Amendment, which is a consequential Amendment.
Amendment moved—
Page 14, line 9, leave out ("four") and insert ("not more than six").—(Viscount Hall.)
On Question, Amendment agreed to.

NATIONAL INSURANCE (INDUSTRIAL INJURIES) BILL.
Read 3a (according to Order), and passed.

BRITISH NATIONALITY BILL. [H.L.]
5.20 p.m.
Amendments reported (according to Order).
Title [An Act to make provision for British nationality, and for citizenship of the United Kingdom and Colonies; end for purposes connected with the matters aforesaid]:
VISCOUNT SIMON VISCOUNT SIMON moved, in the Title of the Bill, to omit "for citizenship" and insert "to constitute a British nationality." The noble Viscount said: My Lords, I put down this Amendment, because obviously if the Bill is to be altered on the lines suggested, it is necessary to alter the Title, in just the same way as it was necessary to alter the Title of the Law Reform (Personal Injuries) Bill which we have been discussing, when Clause 2 of that Bill was omitted. It would not make sense to keep the title:
"An Act to make provision for British nationality, and for citizenship of the United Kingdom and Colonies.…"
It is a purely formal matter. I beg to move.
Amendment moved—
In the Title, leave out ("for citizenship") and insert ("to constitute a British nationality").—(Viscount Simon.)
THE LORD CHANCELLOR: My Lords, quite frankly, if this were a question of logic the noble Viscount has an unanswerable case, but I do not regard this as a mere question of logic at all. I regard this as dealing with a very fundamental question. Speaking for myself—and I think speaking on behalf of my noble friends—we feel that if we assent to this Amendment, logical though it may be, we shall be becoming accessories after the fact in a very unpleasant and unfortunate deed. The proposal is to

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strike out the words "for citizenship." I was surprised on the previous occasion to hear the words "citizenship" and "citizen" spoken of as though they had some kind of republican flavour. They are very old words. In Bunyan's Pilgrims Progress I think you repeatedly find the phrase "Citizen of Heaven"—I do not know whether Heaven is a Republic or a Monarchy. Oliver Goldsmith wrote a book called The Citizen of the World. Anybody who looks at the Oxford Dictionary will see that the word "citizen" is a word of the widest possible connotation—sometimes referring to a mere inhabitant of a city, as opposed to an inhabitant of a county, and sometimes referring to a citizen of a country. The word has always been used in America, where you talk about "an American citizen," and the word "citizen" is undoubtedly the right word. We can use it in either sense. But the words "nationality" and "British nationality" have a wholly different conception. The whole point of British nationality is that it is something which applies all over His Majesty's Dominions throughout the whole world, and that was one of the great forces, apart from the allegiance which we owe to the King, which bound us all together.
In my submission to your Lordships, it is undesirable to advertise in the Title of this Bill that you are going to enact "to make provision for British nationality and to constitute a British nationality of the United Kingdom and Colonies," differentiating in regard to nationality between the United Kingdom and Colonies and those great countries which have always stood with us and Come to our aid. I will not lend myself to this proposal. I would far rather that the Title were amended to read simply:
"An Act to make provision for British nationality; and for purposes connected with the matters aforesaid."
To insert these words at the very outset, which shows that we are detracting from the old conception of nationality as being a world-wide thing, and applying it to ourselves in contra-distinction to others, is, I think, a most grievous mistake. It is all the more grievous because it means that we are setting at nought an agreement which has been solemnly and carefully negotiated with all the representatives of our great sister States.
THE MARQUESS OF SALISBURY: My Lords, I am sure we have all appreciated the very moving statement made by the Lord Chancellor, but I think he made a little "heavy weather" of our Amendment. It was purely factual. He objects to the omission of the words, "for citizenship" but in fact the Bill, as now amended, does not make provision "for citizenship of the United Kingdom and Colonies." I am not going to argue whether we were right or whether we were wrong to make this Amendment—that is a matter which we discussed before, and no doubt it will be carefully discussed again in another place when the Bill reaches that place. If we retain the original title, we are in fact telling a lie, for that is just the thing the Bill, as amended, does not do. If we do not alter it, it will make the House look ridiculous. I would not expect the Government, in accepting this Amendment, to agree to all the Amendments which your Lordships have made; there will be another opportunity of discussing them. But to insist upon keeping these words in the Title, to say that the Bill makes provision for something which, in fact, it does not do, is to make an absurdity of Parliamentary procedure. I suggest to the Government, with all deference, that that would be mere "pigheadedness." It makes no sense whatever. If they accept this as a consequential Amendment, without prejudice to what they do in another place, they will be sending down the Bill in a form which a draftsman could understand, but which, as it is now, nobody can. They are in no way prejudicing their action when it reaches another place. The only purpose of this Amendment is to bring the Title in accord with the rest of the Bill. If the Government feel that they cannot do that, then, of course, they will resist this Amendment, but I think they will be making a great mistake, and they will make themselves look foolish.
VISCOUNT SAMUEL: My Lords, this is making a very great deal about a very small matter. I should have thought that this Amendment might have been moved as a consequential Amendment, and accepted as such, merely to bring the Title of the Bill into conformity with what is now in the Bill. The Bill, as amended, rightly or wrongly, does not make provision "for citizenship of the United Kingdom and Colonies." On the other

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hand, I understand that the Government may feel annoyed that this should be rubbed in by a second Amendment on the same lines. I would ask, therefore, why not accept the suggestion which was thrown out by the Lord Chancellor—not, incidentally, as a suggestion but as a parenthetical observation—that he would not object to leaving out the words:
"and for citizenship of the United Kingdom and Colonies."
The Title would then read:
"An Act to make provision for British nationality and for purposes connected with the matters aforesaid."
That would satisfy the Government and, I think, the Opposition.
THE MARQUESS OF SALISBURY: That would satisfy us entirely.
VISCOUNT ADDISON: Well it would not satisfy us. We are not "pigheaded"—I do not accept the reproof at all. We are objecting to the "Little England" Amendment which the noble and learned Viscount has moved. It is proposed to confine nationality to the United Kingdom and Colonies. We think that British nationality has a much wider connotation than that. Besides, it is in keeping—and I will have something to say about this later on—with the general form of the Bill. We object to it in principle, and we shall certainly not agree to it.
VISCOUNT SWINTON: My Lords, we have now suggested that we should leave out these words altogether. The Government made their position quite plain; they did not like the Amendments which were made, and they hoped to get them altered in another place. Last time, the Government accepted about twenty-four consequential Amendments following on the alteration we made in Clause 1 and said in effect: "While we do not like the alterations you have made in Clause 1, it necessarily follows, to make the Bill tidy, that we must agree to these consequential alterations." If the noble Viscount insists on retaining these words, he will in fact be saying something which, if I may say so with great respect, is not true. I do not know whether it is in order at the end of a Committee stage to alter the Title of a Bill; I think
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it is, and it was merely an omission on the part of the noble Lord, Lord Altrincham, that he did not move to alter the Title of the Bill. Of course he could have done it, and nobody would have had any objection. We shall make cur-selves ridiculous if we send down to another place a Bill with a Title which says that the Bill does a certain thing when, in fact, the Bill does nothing of the sort. Let us be silent rather than ridiculous.
VISCOUNT SIMON: My Lords, if I may be allowed to speak again, I should like to intimate, as I moved this Amendment, that I am prepared in place of it to move to omit the words: "and for citizenship of the United Kingdom and Colonies." The last thing I want to do is to evoke trouble on the Title; but no one wants to tie the wrong Title to the contents of the Bill. If I may, therefore, I would substitute for the proposal to alter these words a proposal that they should be omitted; and I beg to move the omission of the words: "and for citizenship of the United Kingdom and Colonies." That, I think, is in accordance with what the noble and learned Viscount the Lord Chancellor indicated just now.
THE LORD CHANCELLOR: I indicated only that an Amendment moved in that form would be less objectionable and offensive than an Amendment moved in the other form; but we could not accept it even in that form.
VISCOUNT SIMON: I still wish to substitute the omission of these words for the insertion of any new words. I think we are showing ourselves more concerned than need be about what is nothing more than an alteration to make the Title correspond with the contents of the Bill.
Amendment, by leave, withdrawn.
VISCOUNT SIMON: I beg to move.
Amendment moved—
In the Title, leave out ("and for citizenship of the United Kingdom and Colonies").—(Viscount Simon.)
On Question, Whether the words proposed to be left out shall stand part of the Title?
Their Lordships divided: Contents, 24; Not-Contents, 44.

CONTENTS

Jowitt, V. (L. Chancellor.)

Darwen, L.

Milverton, L.

Addison, V. (L. Privy Seal.)

Foley, L.

Morrison, L.

Hall, V.

Hare, L. (E. Listowel.)

Nathan, L.

St. Davids, V.

Henderson, L.

Pakenham, L.

Inman, L.

Pethick-Lawrence, L.

Ammon, L.

Kershaw, L.

Piercy, L.

Amwell, L.

Latham, L.

Shepherd, L.

Braintree, L.

Lucas of Chilworth, L.

Walkden, L. [Teller.]

Chorley, L. [Teller.]

NOT-CONTENTS

Reading, M.

Balfour of Burleigh, L.

Newall, L.

Salisbury, M.

Balfour of Inchrye, L.

O'Hagan, L.

Willingdon, M.

Carrington, L. [Teller.]

Oxenfoord, L. (E. Stair.)

Clanwilliam, L. (E. Clanwilliam)

Rennell, L.

Buckinghamshire, E.

Clydesmuir, L.

Rochdale, L.

Fortescue, E. [Teller.]

De L'Isle and Dudley, L.

Rotherwick, L.

Munster, E.

Hacking, L.

St. Oswald, L.

Portsmouth, E.

Hampton, L.

Saltoun, L.

Radnor, E.

Harris, L.

Sandhurst, L.

Hatherton, L.

Sinha, L.

Bridgeman, V.

Hawke, L.

Teynham, L.

Buckmaster, V.

Hutchison of Montrose, L.

Tweedsmuir, L.

Elibank, V.

Lloyd, L.

Waleran, L.

Samuel, V.

Montagu of Beaulieu, L.

Wardington, L.

Simon, V.

Moyne, L.

Wolverton, L.

Swinton, V.

Resolved in the negative, and Amendment agreed to accordingly.
Clause 2:
Continuance of certain citizens of Eire as British subjects.
2.—(1) Any citizen of Eire who, immediately before the commencement of this Act, was also a British subject shall remain a British subject by virtue of this section (whether or not he remains a British subject by virtue of any other provision of this Act) if he gives notice in writing to the Secretary of State claiming to remain a British subject on all or any of the following grounds—

(a) that he is, or has been, in Crown service under His Majesty's government in the United Kingdom;

(b) that he is the holder of a British passport issued by His Majesty's government in the United Kingdom or the government of any colony, protectorate, United Kingdom mandated territory or United Kingdom trust territory;

(c) that he has associations by way of descent, residence or otherwise with the United Kingdom or with any colony or protectorate or any such territory as aforesaid.

(2) If by any enactment for the time being in force in any country mentioned in subsection (3) of section one of this Act provision, corresponding to subsection (1) of this section, is made for enabling citizens of Eire to claim to remain British subjects notwithstanding that they may not be citizens of the country in which the enactment is in force, any person who by virtue of that enactment remains a British subject shall be deemed also to have remained a British subject by virtue of this section.
5.40 p.m.
THE MARQUESS OF SALISBURY THE MARQUESS OF SALISBURY had given Notice of an Amendment to leave out Clause 2. The noble Marquess said: My Lords, perhaps I may be allowed to say a few words in regard to the next group of Amendments in order to facilitate the business of the House. I am a little surprised that the Government are going to move these Amendments because, as they know, we propose in any case to move the deletion of Clause 2. The noble and learned Viscount the Lord Chancellor will remember that during the Committee stage last Monday he said:
"…for a man who has every reason to suppose that he is to be executed that evening, it is not much good discussing a dinner engagement for one day next week. In those circumstances";
the noble and learned Viscount said, with great good sense—
"not wanting to occupy your Lordships' time unnecessarily, I think I shall be meeting your Lordships' wishes if I do not move any of these Amendments.…"
We intend to-day, for reasons which seem good to us, to move the deletion of Clause 2, merely because we regard this again as consequential upon the Amendment to Clause 1 (4) which the House accepted on Monday. It seems rather a waste of time to adopt Amendments which will, in fact, be stillborn. If the Government want to move them, I suggest that they should do so formally, and we will

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let them go through formally so as not to take up the time of the House. But we do so without prejudice to our intention to move to leave out Clause 2 when the time comes. If that course is convenient, and is adopted, we may be able to make rapid progress with this little group of Amendments.
THE LORD CHANCELLOR: My Lords, we must not assume for certain that the execution is going to take place. It may be that the noble Marquess is susceptible to good reason and argument. I should be sorry to write him down as one who is not, if he is given convincing reasons. The Amendment to page 2, line 4, is drafting. I beg to move.
Amendment moved—
Page 2, line 4, at beginning insert ("Notwithstanding the provisions of the foregoing section").—(The Lord Chancellor.)
On Question, Amendment agreed to.
LORD CHANCELLOR: This is also a drafting Amendment. I beg to move.
Amendment moved—
Page 2, line 5, leave out ("remain") and insert ("be deemed not to have ceased to be").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: This Amendment is also a drafting one. I beg to move.
Amendment moved—
Page 2, line 6, leave out from ("subject") to ("he") in line 8, and insert,("by reason of that section if at any time").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: I beg to move the next Amendment, at page 2, line 21.
Amendment moved—
("(2) A claim under the last foregoing subsection may be made on behalf of a child who has not attained the age of sixteen years by any person who satisfies the Secretary of State that he is a parent or guardian of the child.")—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: This Amendment is drafting. I beg to move.
Amendment moved—
Page 2, line 27, leave out ("remains") and insert ("is").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: This Amendment is also drafting. I beg to move.
Amendment moved—
Page 2, line 28, leave out ("have remained") and insert ("be").—(The Lard Chancellor.)
On Question, Amendment agreed to.
THE MARQUESS OF SALISBURY THE MARQUESS OF SALISBURY moved to omit Clause 2. The noble Marquess said: My Lords, I think I can deal with this Amendment quite briefly. We regard it as entirely consequential. As your Lordships know, the House accepted an Amendment adding to Clause 1, subsection (4), which states:
"Nothing in this Act shall affect the status by existing law of the United Kingdom of a citizen of Eire in respect of his right to be regarded as a British subject."
They all have the right to be regarded as British subjects. Therefore, it seems slightly illogical that we should proceed to Clause 2, which states that a citizen of Eire shall have that right only if he writes to the Secretary of State and explains tie justice of his claim under all or any of three categories. I do not think I need say any more. I appeal to the Government. Of course, they can do what they like in this matter, just as we can, bat do not let us send down to another place a Bill which does not make any sense at all. When it gets to the other House, they have an absolute right to amend or re-amend the Bill, or put back into it what was there before; but do not let us send down a Bill which, as I say, does not make sense. I think that one of the greatest credits that we in this House have gained during the last three years is that we have proved ourselves to be accurate, skilful and practical draftsmen. The Bills that have gone from us have received the encomiums of Ministers in another place for the efficiency with which we have done our work. I did not for a moment expect the Government to agree to subsection (4) of Clause 1 but, at the same time, that having been inserted, it would be a little absurd to keep in Clause 2 which, even with the Amendments which the Lord Chancellor has moved, does not at present make any sense. I beg to move.
Amendment moved—
Leave out Clause 2.—(The Marquess of Salisbury.)
THE LORD CHANCELLOR: My Lords, this again is a case in which, even though the noble Marquess is perfectly logical, we feel that we cannot assist him in carrying out his purpose. This is a most grievous matter. Here there was a real effort on the part of the Irish Ministers to come to a compromise. I have no doubt that it required no little courage on their part to do it. Since 1935, the Irish law has been that, if a man becomes a British subject, he ceases to be a citizen of Eire. It is, of course, for this Government to make exactly what laws they like in the territory over which they rule. But just consider what the compromise was. It was said: Anybody who chooses to write and claim that he has (If I may put it broadly) British connections, can, by the mere fact of writing, make himself a British subject. And the Irish Ministers were prepared to agree to that. Of course, it was possible to say that he did not become a British subject but remained that which he was. For the rest, they were prepared to agree that, even though a man might not be a British subject, yet, if he was a citizen of Eire, he should have all the rights as though he were a British subject.
This right of making a declaration was to be a right not limited to to-day but, so far as his existing status at the time of the passing of the Act was concerned, extending into the indefinite future. That was a real effort at healing the unhappy state of affairs which has lasted far too long. After all, we have not so many friends in the world to-day that we should spurn a hand which is held out to us. The noble Marquess says: "This Amendment is merely consequential." I am not even sure that he is right there. Subsection (4) of Clause 1 deals with the existing law. Whatever else it does, it relates only to the law existing at the date of the passing of this Bill. But Clause 2 relates to the future. Subsection (2) of Clause 2 says:
"If by any enactment for the time being in force in any country mentioned in…section one of this Act provision, corresponding to subsection (1) of this section is made"—
for the purposes there set out, then the person is to be a British subject. We have altered it in this way, and it means that if in the future by, let us say, the law of New Zealand, provision, corresponding to subsection (1) of this clause, is made, then, following upon that law, these
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people would become British subjects, not only according to the law of New Zealand but to the law of this country, too. So you are not tied or clamped down to the past as you are in what I venture to think is this most unhappy subsection (4) of Clause 1. Clause 2 looks also to the future, and therefore I cannot regard this Amendment merely as consequential to Clause 1, subsection (4). I regard Clause 2 as one which looks hopefully to the future, and, for my part, I should be very sorry to see it deleted from the Bill.
VISCOUNT SAMUEL: My Lords, on the Committee stage I expressed my complete disagreement with noble Lords of the Opposition on this particular point, and I still think that they have made a very grave error of policy in regard to the action they then took. Whether the present Amendment is consequential or not seems in doubt. From what the Lord Chancellor says, it is not to be regarded merely as an obvious and consequential Amendment. But even if it were consequential, I do not think it stands on the same footing as the Amendment to the Title which was under discussion prior to the last Division, because to amend a Title is a small matter, and to make the Bill tidy and complete it certainly ought to be done, if it appears to be necessary as a result of some action taken on Committee stage. But even if this Amendment were, on the whole, consequential, to leave out the whole of this clause with its own title—Continuance of certain citizens of Eire as British subjects—would, I think, have a deplorable effect after the long negotiations that took place in and around the conferences that have been held. This clause was inserted in thy, Bill, and the public outside, certainly in Eire, would not understand why the House of Lords was striking it out if that were done merely for the sake of drafting and for making the Bill properly consistent with itself. For myself, I think I would rather have the Bill inconsistent with itself, with not merely a verbal amendment to the title but a question of substance. I would rather have that than that a false impression should go out that we were destroying so much of the Bill as related to the agreement which had been arrived at with the Government of Eire.
VISCOUNT SWINTON: My Lords, I also would be sorry should any false impression be created. I am not going to put forward again the arguments which appealed to the House on a previous occasion and led them to insert the Amendment to Clause 1, subsection (4), proposed by my noble Leader. I would say only that I think we took a perfectly simple and logical view. We are legislating here for what happens in the United Kingdom, and we have a perfect right to legislate, just as the Act of 1935 passed by the Irish Parliament was an Act that they were perfectly entitled to pass. As a matter of fact, in our illogical way things went along all right, and we did not regard the Act of 1935 as having the least effect upon any citizen of Eire if he came to this country; and if this ill-starred Bill had never been introduced nobody would have been a penny the worse. We should have gone on, with that Act of 1935 on the Statute Book of the Irish Parliament, and the whole thing would have worked in its illogical but perfectly suitable manner.
I can quite understand what would happen if we were moving here an Amendment to the Act which Eire passed in 1935. That is not what we are doing at all, nor should we have any right to do it. So far as I know, they have no intention of amending their Act. We are saying: How are the people of Ireland
Resolved in the negative, and Amendment agreed to accordingly.
to be dealt with here? And we say, quite simply, that we have every intention of treating Eire citizens as subjects of the United Kingdom, exactly in the way as we have treated them for the last twenty years and shall hope to treat them in the future.
Observe what would happen if we accepted this Clause. By accepting this clause we should put ourselves into a position which we have wholly declined to adopt. The effect of this clause is to say that certain selected people now living in Eire who write to the Home Secretary shall enjoy the status of British subjects, and, of Course, by implication, that the people who do not so write will not enjoy that status. That is a position we will not accept. We propose that the citizens of Eire in this country—which is where we have a perfect right and a duty to legislate—shall be treated in the future exactly as we have treated them in the past. But if we include this clause (having done what I think we have quite rightly clone by Lord Salisbury's Amendment to Clause 1), we should be saying, by implication, that we are excluding some of those people, and that we do not intend to treat them as we have treated them in the past.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 31; Not-Contents, 40.

CONTENTS

Jowitt, V. (L. Chancellor)

Darwen, L.

Moynihan, L.

Addison, V. (L. Privy Seal)

Foley, L.

Nathan, L

Reading, M.

Hare, L. (E. Listowel.)

Pakenham, L.

Hall, V.

Henderson, L.

Pethick-Lawrence, L.

St. Davids, V.

Holden, L.

Piercy, L.

Samuel, V.

Inman, L.

Rennell, L.

Kershaw, L.

Rochester, L.

Ammon, L.

Latham, L.

Shepherd, L.

Amwell, L.

Lucas of Chilworth, L.

Sinha, L.

Braintree, L.

Milverton, L.

Walkden, L. [Teller.]

Chorley, L. [Teller.]

Morrison, L.

NOT-CONTENTS

Salisbury, M.

Aberdare, L.

Lloyd, L.

Balfour of Burleigh, L.

Montagu of Beaulieu, L.

Buckinghamshire, E.

Balfour of Inchrye, L.

Moyne, L.

De La Warr, E.

Broughshane, L.

Newall, L.

Fortescue, E. [Teller.]

Carrington, L.

Oxenfoord, L. (E. Stair.)

Munster, E.

Clanwilliam, L. (E. Clanwilliam)

Rochdale, L.

Portsmouth, E.

Clydesmuir, L.

Rotherwick L.

Radnor, E.

De L'Isle and Dudley, L.

Saltoun, L.

Denham, L.

Sandhurst, L.

Bridgeman, V.

Hacking, L.

Teynham, L.

Buckmaster, V.

Harris, L.

Tweedsmuir, L.

Elibank, V.

Hatherton, L [Teller.]

Waleran, L.

Simon, V.

Hawke, L.

Wardington, L.

Swinton, V.

Hutchison of Montrose, L.

Wolverton, L.

Clause 12. [British subjects before commencement of Act becoming British subjects of United Kingdom and Colonies]:
THE LORD CHANCELLOR: My Lords, this is a mere drafting Amendment. I beg to move.
Amendment moved—
Page 7, line 41, at end insert ("subsection (1) of").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 13. [British subjects whose citizenship has not been ascertained at the commencement of this Act]:
THE LORD CHANCELLOR: My Lords, this also is a drafting Amendment. I beg to move.
Amendment moved—
Page 8, line 25, after ("to") insert ("subsection (1) of").—(The Lord Chancellor.)
On Question, Amendment agreed to.
6.5 p.m.
Clause 15. [Persons who have ceased to be British subjects by failure to make declaration of retention]:
THE LORD CHANCELLOR THE LORD CHANCELLOR moved to omit subsection (2) and insert:
"(2) In determining for the purposes of this section whether a woman who has married an alien would, but for her failure to make a declaration of retention of British, nationality, have been a British subject immediately before the commencement of this Act, the marriage shall be disregarded."
The noble and learned Viscount said: My Lords, during the Committee stage I promised the noble Viscount, Lord Samuel, that I would try to get the words here simplified. The noble Viscount had some difficulty, as indeed I had, in following what they were intended to do. The new wording is easier to follow than the old, but this is a mere matter of drafting and does not make any difference to the effect of this subsection. I beg to move.
Amendment moved—
Page 8, leave out lines 41 to 45 and insert the said new subsection.—(The Lord Chancellor.)
THE MARQUESS OF READING: My Lords, my noble friend Lord Samuel has unfortunately had to leave. He it was who expressed the opinion during the Committee stage that in the matter of the original wording we were rather, as it were, seeing through a glass darkly. I
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think, as does my noble friend, that the wording has now been greatly improved. He has asked me on his behalf to express to the Government his thanks.
On Question, Amendment agreed to.
Clause 16 [Persons who have ceased to be British subjects on loss of British nationality by parent]:
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, in subsection (1) to omit all words from the beginning down to and including "declaration" (where that word first occurs) and insert:
"(1) This section shall apply to any person who—

(a) ceased to be a British subject under the provisions of subsection (1) of section twelve of the British Nationality and Status of Aliens Act, 1914 (which provided, subject to certain exceptions, that where a person being a British subject ceased to be such, whether by declaration of alienage or otherwise, every child of that person being a minor, should thereupon cease to be a British subject), and

(b) would but for the provisions of that subsection have been either a British subject of the United Kingdom and Colonies or a British subject without citizenship under section twelve of this Act;

and in determining for the purposes of this section whether a woman who has married an alien would but for those provisions have been such a subject, the marriage shall be disregarded.
(2) If any person to whom this section applies makes a declaration in the prescribed manner."
The noble and learned Viscount said: My Lords, this also is an attempt to simplify the drafting. Apart from that, there is nothing in this Amendment. I think your Lordships will see that the new addition to Clause 16 is rather easier to follow than the old wording. I believe that I was asked to see whether I could get this part of the Bill simplified—at any rate, if I was not asked to do so, I myself asked that it should be made simpler. I beg to move.
Amendment moved—
Page 9, line 1, leave out from beginning to ("within") in line 5, and insert the said new words.—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, the next Amendment is consequential. I beg to move.
Amendment moved—
Page 9, line 9, leave out from the beginning to ("the") in line 12.—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, this also is consequential. I beg to move.
Amendment moved—
Page 9, leave out lines 18 to 23.—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 18 [Applications for naturalisation pending at the commencement of Act]:
THE LORD CHANCELLOR: My Lords, this is a mere drafting Amendment. I beg to move.
Amendment moved—
Page 9, line 34, after ("before") insert ("the date of").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, this again is drafting. I beg to move.
Amendment moved—
Page 9, line 34, after ("Act") insert ("but not granted at that date").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 19 [Renunciation]:
THE LORD CHANCELLOR: My Lords, your Lordships may remember that during the Committee stage of this Bill the noble and learned Viscount, Lord Maugham, made the point that if a woman married under 21 she would not be able to make a declaration of renunciation under Clause 19 at the time of her marriage, and would have to wait until she became of age. This Amendment is designed to meet that point. I beg to move.
Amendment moved—
Page 10, line 16, at end insert—
("(2) For the purposes of this section any woman who has been married shall be deemed to be of full age.")—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 25:
Certificate in case of doubt.
25. The Secretary of State may in such cases as he thinks fit certify that a person,
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with respect to whose citizenship of the United Kingdom and Colonies a doubt exists, is a British subject of the United Kingdom and Colonies; and a certificate issued under this section shall be conclusive evidence that that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an earlier date.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved to omit "certify that a" and to insert "on the application of any." The noble and learned Viscount said: My Lords, this Amendment and the two which follow were designed to meet two points which were raised during the Committee stage—one by the noble and learned Lord, Lord du Parcq, and the other by the noble and learned Viscount, Lord Maugham. I promised them that I would consider both points. Lord du Parcq pointed out that a doubt certificate—a certificate in case of doubt—should be issued by the Secretary of State only on application by the person concerned. That is clearly right. The Secretary of State should not make these certificates without the approval, consent and knowledge of the person concerned. The first two Amendments make that plain. The noble and learned Viscount, Lord Maugham, suggested that to make a certificate issued by the Secretary of State conclusive evidence would be a serious matter, because it might cover cases where there was fraud. Obviously, where there is fraud, or where the true facts are not revealed, the conclusiveness of the certificate should not hold. It is to meet these two points that the alterations contained in these Amendments are proposed. I beg to move—
Amendment moved—
Page 12, line 32, leave out ("certify that a") and insert ("on the application of any").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move.
Amendment moved—
Page 12, line 33, after ("exists") insert ("certify that that person").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move.
Amendment moved—
Page 12, line 35, after ("shall") insert ("unless it is proved that it was obtained by means of fraud, false representation or the concealment of any material fact").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 34 [Short title, commencement and repeal]:
VISCOUNT SIMON: My Lords, I beg to move the following manuscript Amendment. I think the correct form would be: Page 19, line 14, after the first "of" insert "subsection (4) of Section I and." For good or for evil, the Bill will leave this House with subsection (4) of Clause 1 in it. It refers to existing law. If that is to be given effect, may I not apprehend that, though in other respects the Act of 1914 will be rescinded—subject, of course, to the exceptions already in the Bill—we should also need to make it plain by inserting these words in the last clause of the Bill? It is simply a matter of drafting.
Amendment moved—
Page 19, line 14, after the first ("of") insert ("subsection (4) of Section 1 and").—(Viscount Simon.)
On Question, Amendment agreed to.
Second Schedule [British subjects without citizenship under Section thirteen of this Act]:
THE LORD CHANCELLOR: This Amendment is drafting. I beg to move.
Amendment moved—
Page 22, line 38, after the first ("to") insert ("subsection (1) of")—(The Lord Chancellor.)
On Question, Amendment agreed to.
Then, Standing Order No. XXXIX having been dispensed with:
THE LORD CHANCELLOR: My Lords, I beg to move that the Bill be now read a third time.
Moved, That the Bill be now read 3a—(The Lord Chancellor.)
VISCOUNT ADDISON: My Lords, we would like it to be finally understood that in our view the alterations which have been made in this Bill make havoc of an exceedingly carefully drawn and deliberately carried through Commonwealth conversation, resulting in an agreement both with regard to the Commonwealth and to Ireland. I think it is profoundly to be regretted that the Conservative Party should have taken this action.
THE MARQUESS OF SALISBURY: My Lords, while I recognise that the Government went into these conversations in good faith and reached certain agreements
1264
which they thought satisfactory, it is for the British Parliament to decide what it is good for this country to do, and it is the duty of any Party in this Parliament, having that opinion, to do what they think right. The Conservative Party will not accept the suggestion of the noble Viscount that the Government are more fitted than they to decide what is right for the Commonwealth. Our record in the past stands and we are proud of it.
On Question, Bill read 3a; Amendment (Privilege) made; Bill passed, and sent to the Commons.