§ 5.32 p.m.
§ Order of the Day for the Second Reading read.
§ THE CHANCELLOR OF THE DUCHY OF LANCASTER (VISCOUNT ALEXANDER OF HILLSBOROUGH)
My Lords, this Bill will commend itself, I am sure, to all sides of your Lordships' House, as it is in line with the general wish that everything that can reasonably be done should be done to ease the lot of men and women who are called up for service or training in the defence of our country. The Bill is one of some length and complexity, but its simple purpose is to give reasonable protection in respect of their civil rights and liabilities to men and women who are called up from time to time for service or training with the Forces, or who volunteer in similar circumstances. The types of service which attract the protection of the Bill are set out in detail in the First Schedule. Broadly speaking, the Bill may be said to cover practically all forms of service or training except Regular service, since the Regular soldier may reasonably be expected to adjust his domestic and civil affairs to suit the Service career which he elects to follow.
In framing the Bill, the Government have tried to balance two interests which are often conflicting. On the one hand, there is the interest of the Reservist or other Service man who is required, or has volunteered, to leave his home and family and his employment—possibly to go abroad. On the other hand, there is the interest of the creditors or landlords of those men, who may well be placed in difficult circumstances if they are unable to exercise their just rights as they could have done had the men not been called up for service. Where hardship arises, therefore, it is not necessarily all on one side, and no hard and fast rule can be laid down for each case, since this might act unfairly in all the many and various circumstances which arise when personal rights and privileges are in question. Thus, the Bill provides for the consideration by the courts of individual circumstances, and gives them discretion as to the cours, of action which should be taken. The protection for the Service man is that the court must give leave 959 before a judgment can be enforced, and the protection for the creditor or landlord is that, in the individual case, the hardship to both parties can be weighed up.
It follows from the general conception of the Bill, as protecting the many and varied interests of the Service man, that it must cover wide ground, and it is in fact in seven Parts, six of which deal with separate problems and the seventh with certain general and administrative matters. Briefly, these problems are as follows: first, debts and other obligations; secondly, the security of the Service man's home; thirdly, the security of his business premises; fourthly, his superannuation rights; fifthly, the balance of his civil pay; and sixthly, industrial assurance and friendly society policies. Your Lordships would probably wish me to refer briefly to each Part of the Bill, showing the type of protection afforded, who is protected, and the nature of the machinery proposed.
The first Part of the Bill deals with the debts or other obligations of a Service man, and of other people affected by his call-up. Broadly speaking, it provides that payment of debts may be enforced only with the leave of the court. The court will consider whether the failure to meet the obligation is due to the performance of service, and may either give or refuse the creditor leave to proceed, or may give leave subject to conditions. This protection is given in respect of service of every kind described in the First Schedule. The structure follows very largely that of the Courts (Emergency Powers) Acts, which were in force during the war and applied generally to the whole population. The courts will thus have the advantage of their wartime experience. It has, however, been found desirable to include in this Part a provision that if, in the view of the court, a creditor has acted honestly and reasonably he may be exempted from any damages which might result from his having executed a judgment or exercised a remedy in error as a result of this Bill.
The second Part of the Bill protects the Service man's home. For persons performing service for three months or more this protection takes the form of extending the Rent Acts to premises, occupied by the Service man and his 960 dependants, to which those Acts do not already apply. These are, in the main, houses of high rateable value, local authority houses, houses on Crown property, houses where the rent payable is less than two-thirds of the rateable value, and houses let with agricultural land exceeding two acres in extent. In the case of persons performing service of less than three months, the protection takes the form of protecting them from eviction without the leave of the court. There are certain provisions, also, for furnished lettings. In these cases the rent tribunals will be given powers to extend the tenancy for periods not exceeding three months at a time. The protection afforded by Part II is provided only where the man has one or more dependants living in the premises at the time of his service, and where they continue to live in those premises. Bearing in mind that this protection is necessarily at someone else's expense, I think your Lordships will agree that it should not be extended to a man living alone, but should be confined to the serving man who needs an assurance that, while he is away on service, his wife and children will not be turned out of their home.
There is one point of importance in relation to protection of the home which should be mentioned—namely, that of the employment tenancy: for example, the tied cottage. Here, the general principle is that a man's dependants cannot be evicted while he is away on service unless alternative accommodation is available. The Bill provides, however, that the court may grant possession without proof of alternative accommodation if the landlord is a statutory undertaker or a local authority or a development corporation, and if the premises are required in the public interest to accommodate an employee of the landlords required in connection with their public utility functions. The sort of case we had in mind, and which is intended to be covered here, is that of the lock-keeper's cottage or the signalman's cottage, where it is essential in the public interest for the man who is to do the work to live near it and where no other accommodation is available.
Part III of the Bill protects business premises. Here the aim has been to protect the small man, the working proprietor, from termination of the tenancy of the place where he carries on his 961 business or profession. This does not apply to men called up for short periods of training, that is to say, for less than three months. The machinery followed is very much that of Part II of the Leaseholds Act. If the tenancy expires, the Service man, or someone acting on his behalf, can apply for a new tenancy. The business must, of course, still be carried on in the man's absence, and the court will have a wide discretion, subject to certain guidance, to decide whether the grant of a new tenancy is reasonable. The court may also fix the rent and other terms of the new tenancy.
In Part IV the protection is given in respect of a man's superannuation rights while on service. This protection has already been given to National Service men in the Superannuation (Miscellaneous Provisions) Act, 1948, and in the Police Pensions Act, 1948, and this Part of the Bill extends that same form of protection to all the other persons performing the classes of service mentioned in the First Schedule; the purpose is to permit public authorities and trustees of private pension schemes in industry and commerce generally to treat for superannuation purposes the period of service defined under the Bill as though it were a continuation of the man's normal occupation.
Part V of the Bill confers on public authorities the power, if they wish, to make up the balance of civil pay for all employees in the First Schedule, except those called up for fifteen days, who can already be dealt with under existing powers, and National Service men. The provisions do not, of course, require the authorities to make these payments, but they make it legally possible for them to do so. The services in respect of which these powers are conferred are set out in the Second Schedule, and comprise, broadly, local authority services, including education services; police and fire services; officers of the various judicial services of the country; the National Health Service and employees of development corporations. The provisions follow generally those which worked well during the war through the Local Government Staffs (War Service) Act, 1939. In Part VI protection is given against loss of benefit where owners of life and industrial assurance policies are unable to pay premiums because the owner or some other person is on service. There are 962 certain limitations, such as that a minimum of one year's premium must have been paid, but, broadly, policies may not be forfeited because of non-payment of premiums due to service, and there is also provision for reinstatement of any policies already forfeited in similar circumstances before the passing of the Bill.
The most important matter arising on Part VII, which deals with certain miscellaneous and general matters, relates to the means by which the eligibility of individual men and women for the protection of this Bill can be established. Whenever legislation is undertaken which imposes liabilities on, or gives protection to, a limited class of person, there is always a clash between what is theoretically desirable and what is practicable. In many instances the facts of a man's service will be well known to the creditor or landlord, but where they are not readily ascertainable locally arrangements will be made by which the Service Departments will assist, to the best of their capacity, in identifying the men and women concerned, and certifying the necessary particulars.
I hope that I have said sufficient to give your Lordships a general indication of what the Bill is designed to achieve. The Bill is, as I have said, somewhat lengthy and complex, but when I read, as I have done, the debates in another place, and find to what extent the joint wisdom of all the Parties in the House downstairs has contributed to an improvement of the Bill, to try to make it more fit to serve the general purpose we have in view, I feel confident that your Lordships will readily give it a Second Reading to-day.
§ Moved, That the Bill be now read 2a.—(Viscount Alexander of Hillsborough.)
§ 5.45 p.m.
THE MARQUESS OF READING
My Lords, the noble Viscount has treated your Lordships to a somewhat blithe canter over a very considerable field. This is, after all, a Bill of large scope, substantial volume and extreme intricacy. I find it difficult to see how your Lordships can be expected to do justice to a Bill of this kind in the circumstances in which it is presented to us. It is a Bill which contains no fewer than sixty-five complex clauses in the form in which it left another place. It emanated from the Ministry of Labour, and I think it is right 963 to say that there are also concerned in it the Treasury, the three Service Departments, the Ministry of Agriculture, the Ministry of Town and Country Planning, the Home Office, and probably one or two other Departments as well. Certainly the Law Officers took a very close interest in guiding it through the various stages in another place. It was first read in another place as long ago as April 16: it was given a Second Reading on May 3; it then proceeded upstairs, where it took eight days. On July 10 it said farewell to another place, having acquired ten new clauses on the last day of its appearance there, and for the first time on Friday last a complete copy of this Bill was available to members of your Lordships' House. Four days later we are expected to conduct an informed discussion on the Second Reading stage of this Bill.
I am bound to observe that I do not think it is fair to treat the House in that particular way. After all, we are still part of the Legislature, and we ought to have a reasonable opportunity to make our contribution to a Bill of this magnitude and importance, with a chance to give it beforehand proper examination and scrutiny. We have to accept it as it comes to us, and make the best of it. At the same time, I cannot help saying this: that for some weeks past your Lordships' House has not been greatly overburdened with legislation. It is perhaps a pity that this Bill did not start its progress in this House rather than in another place, which was actively engaged during protracted periods of the day and night in considering the Finance Bill, whereas we might have had time, opportunity and desire to give it very close examination here. That course was not taken and, as I say, at short notice we must do our best to deal with the Bill.
Another reason for bringing it first before this House might well have been that in purpose it is an entirely uncontroversial Bill. In the interests of the Service man we are all desirous of seeing the objects which this Bill sets out to attain achieved and the sooner the better. I suppose that all of us who have at any time had any connection, however tenuous or temporary, with one of the Services have been brought up against what it became the fashion to call the "anxious soldier," I imagine that the 964 problem is not only one for the Army, but is common to the Navy and Air Force as well: that of the man who quite genuinely is unable to discharge his duties in the Service with his full power, because his thoughts are distracted by worries about his domestic situation—his family, the payment of the rent, the keeping up of his insurance premiums, and various considerations of that kind. But, over and above that particular class of case, there is, I entirely agree, an overriding duty for Parliament to do what it can, in the shape of a Bill of this kind, to relieve Service men as a whole, so far as is practicable and just, of every consideration which may afflict them as the result of their absence on service.
The noble Viscount was, of course, quite right in saying that always in these matters we have to hold a balance, and we have to hold that balance, not only in the interests of the civilian population. but in the interest of the Service men themselves. As regards the civilian population, a Bill of this kind inevitably creates a preferential class; a section of the population, limited in number, who will be accorded preferential treatment because they are members of that particular class, which is the Armed Forces of the Crown other than the Regular soldier. I do not think the Service man would ask or expect or welcome that the civilian should be unduly and unreasonably penalised in his interest. After all, when you are dealing with Service men of this kind, the Service man of to-day is the civilian of yesterday, and also the civilian of to-morrow. Therefore, he cannot approach the subject solely from the Service angle.
The problem, from the Service men's point of view, seems to me also to be this. If you ever over-weight the scale in favour of the Service man, it maycreate an atmosphere amongst the civilian population in which people will say to themselves: "Service men have so great privileges as regards the discharge of debt or the retention of their houses that we have to be very careful unless we ourselves, who have made our own arrangements on a certain basis, are to be penalised. In order to avoid being penalised we will avoid entering into arrangements with Service men." They will say to themselves: "No, we are not going to give a tenancy to a Service man, or a 965 man who is liable in the immediate future to enter the Service, because we may well find that, When we want the money that we can reckon to receive as a result of this contract, he has gone off on service, and because of this Act which is now being passed we shall be unable to recoup ourselves." One has to be very careful from that point of view, just as much as in the interests of the civilian community, not to over-weight the scales in the interests of the Service man himself.
A certain amount has been said at various stages of this Bill to establish a sort of analogy between the provisions of this Bill aid the Courts (Emergency Powers) Act, which was brought into operation in both wars in slightly different forms and was only recently brought to an end. But that analogy can easily be taken too far, because, of course, the Courts (Emergency Powers) Act was an Act which, in face of the threat and the existence of war over a period of time, applied to the entire population of the country. The Parts of this Bill which are to some extent analogous to the provisions of the Courts (Emergency Powers) Act apply only in these cases to that special section, the Service men; and what may be perfectly legitimately applied to the whole country, putting everybody on the same basis, is not necessarily by any means the same type of measure as should be applied to persons who are merely—and I say "merely" without any offence in any way to the Service man—parts of one particular section of the community.
As I say, we are anxious that everything possible should be done in this respect to make the lot of the Service man easier, and to free him and his dependants from anxiety. Of course, this Bill goes a long way, because in various portions of it it allows those who have, to come to a decision on these matters to take into account not only the Service man himself, but other persons who may be connected with him in business, and who may plead the provisions of this Bill in order to escape from what would otherwise be their liability by saying: "I am associated with a Service man. By reason of his service I am put in this difficulty, and therefore I desire to invoke the protection of this Bill." So the protection given extends beyond the actual Service man to the person who is working in collaboration with him. In certain circumstances 966 it allows courts to take into account other financial obligations of the man, as well as the one that they are actually considering, although how those obligations are to be ascertained if the man happens to be serving somewhere in Korea is not, on the face of it, entirely plain. The Bill also provides for protection where the disability or inability to discharge his debts has arisen either directly or indirectly as a result of his service. I am not saving that all those are not necessary additions to the Bill. What I am saying is that they make the construction and the operation of the Bill a matter of very considerable difficulty. That is the aspect which I confess I find very worrying.
This is a Bill which is designed to define and clarify certain advantages accorded to a man or a woman because he or she is serving in the Forces, and, of course, also incorporating the protection of dependants. Now the first necessity is that those persons for whose benefit this Bill is designed should understand what their rights are, and how they can obtain them. And how the ordinary member of the Services, confronted by this Bill, is going to ascertain what privileges it does extend to him, and how he can put them into practice, I confess causes me a great deal of perturbation. It was said in the course of discussions in another place that the proposal was to distribute leaflets setting out the provisions of the Bill. I cannot help thinking that it would be more in the nature of a brochure than a leaflet when it comes into existence—if it ever does. In whichever form it is, such a document will be perfectly useless—first, because the Service man will not understand it, and, secondly, because he will lose it.
I imagine that in the end the bulk of the work of interpreting and operating this scheme will have to fall on such organisations as S.S.A.F.A., the British Legion, the Forces' Help Society and the other societies which deal with advice and help, if not to Service men directly, to Service men and their dependants as well. Those societies may be able to cope with the dependants—with the home end of the problem— but they will not be able to cope with the problem of the man who is himself serving, say, overseas. Presumably that matter will have to be coped with from two sources: first, the regimental officer and, secondly, the Army or other Services welfare services, on their 967 own. I always feel that it is a pity when anything happens which makes it difficult for the regimental officer to be the first adviser and counsellor of the men under his command. But I find it a matter of some difficulty to see how the ordinary regimental officer can ever master the situation created by this extremely complicated Bill. Nor do I think that seven the welfare societies will find it easy to undertake to give daily advice to persons seeking to know their rights and the protection given under the Bill. It may be that it was impossible to produce a measure of this kind in any less complicated form. At the same time, I cannot help saying that the mere bulk and technical complexity of the Bill is a very great disadvantage to its working, particularly bearing in mind the prime purpose for which it is designed.
I do not propose at this stage to deal with the individual clauses of the Bill, though at the next stage we may have some suggestions to make as to alterations which might still be made in the Bill to make it more efficient, in spite of the labours which were devoted to it in another place. There is one aspect of the matter to which I should like to call attention—the noble Viscount, Lord Alexander, referred to it when he spoke about the position of statutory undertakers, local authorities and new town development corporations. These bodies are given a special position under, I think, Clause 20 of the Bill in regard to obtaining possession of dwelling houses; they are exempted, when reclaiming possession, from the necessity of giving evidence of alternative accommodation if they can show that it is in the public interest that they should have possession and that the man and his family should be evicted. The test is to be that of the public interest.
The noble Viscount gave the perfectly proper example of a lock-keeper. There must be someone to look after the lock or level-crossing, and to operate the particular piece of mechanism with which he is charged, and it may well be right that, from that point of view, the statutory body should have that power. But when you talk about the test being the public interest, where do you stop? Probably one of the most frequent examples of the tied cottage is that of 968 the cottage of a cowman on a farm. Surely it is in the public interest that the public should have milk. There is a considerable anticipation that it may not be very easy, as the months advance, for the public to obtain milk. From any point of view it is surely desirable that the public should have milk, and that cows should continue to exist. But the protection does not extend to the dairy farmer, because, although the cowman may be just as essential to the public interest, since he produces milk for the public, the person to whom he is responsible for the occupation is not a public corporation, or a local authority, or a new town development corporation, but is merely an ordinary everyday landlord, who happens to keep cows and therefore has a cowman to look after them. The cowman is placed in an entirely different position from the lock-keeper and the level-crossing keeper, because, apparently, he is not regarded as performing any service which can be classified as being in the public interest. I do not think that all your Lordships would be prepared to accept the distinction which is established by the Bill between those two separate categories of people.
The other clause of the Bill which causes me considerable mental agitation is Clause 59, which was very lengthily discussed in another place. That is the clause which deals with the furnishing of certificates by the Service Department as to the fact that a particular individual has served, or is serving, in one of the branches of the Forces on an engagement covered by the First Schedule of this Bill. The situation for which that particular clause was designed arises only in certain circumstances, and is dealt with, I think, in Part I of the Bill. The creditor, the person who has proceeded to take legal steps against a debtor, has reached the stage when he is ready to enforce a judgment. He is then met with the provision in the Bill that where the person against whom he desires to enforce is a Service man, he can proceed to enforce that judgment only if he obtains the leave of the court. In those circumstances, apparently, under this Bill it is for the creditor—the person who is taking the proceedings and seeks to carry them through to a conclusion, if he can get the leave of the court to do so to ascertain whether or not the person against whom 969 he is proceeding is a person covered by the provisions of this Bill. That, it seems to me, is an extremely burdensome task to lay upon a person who, up to a certain moment, may have proceeded quite normally to take legal steps against another person who was in his debt for the amount of money claimed. Before he takes the last fence he has to he sure that he is riot proceeding against a Service man protected by this Bill; otherwise he may come up against the provisions of Clause 13; and if he has not taken proper steps he may find himself subjected to exemplary damages such as are contemplated under Clause 13.
In these circumstances, how does the creditor satisfy himself, and then the court, that the person against whom he desires to proceed to the end, to enforce the judgment that he has obtained, is a Service man? He has not to show that he is not a Service man; he has to show that he is; and for that purpose there exists this machinery under Clause 59, by which a certificate can be given by one of the Service Departments—I say deliberately "can be Own" because, as I understand the position. there is no mandatory duty upon a Service Department to give a certificate of this kind. Under this Bill as it stands it is perfectly open to these authorities to say, "No: to-day is Monday and we do feel like giving certificates on Monday: we give them out on Tuesdays and Fridays only." Or they may say, "We do not like this man's name and we are not going to give him a certificate." I am not saying, of course, that they would act on those principles; but the fact remains that there is no mandatory obligation on any of these Ministries to give a certificate when they are asked for it.
The business of furnishing these certificates seems to me one which may cause your Lordships considerable thought as to whether this is the best system which can be devised. The creditor—the person, as I say, desiring to enforce his rights—before he takes the last step of proceeding to enforce the judgment, applies for a certificate. If he knows where the man is, maybe it is easy enough to get one. If he knows that the man is serving in the Army, he may apply to the War Office. He may not apply but may merely give evidence, though I am not sure how far that will go with the court. If he believed that the man against 970 whom he was proceeding was serving in the Army, it might be the merest hearsay, but cogent evidence acceptable to the court would be the production of the certificate. If he has reason to believe, or even if he has not reason to believe, he thinks it wise to make an effort to ascertain whether his debtor is, in fact, serving. Therefore, he sits down and writes four separate letters: one to the War Office, one to the Admiralty —I beg the noble Viscount's pardon, one to the Admiralty, one to the War Office, one to the Air Ministry and one to the Ministry of Labour in case the man may have been called up as a conscientious objector.
Having done that, he sits back and waits for one or other of those Departments to produce or not to produce the certificate which is required. He does not know if the man is serving at all or in which Service the man may at the moment be employed. The Service Departments say—and I hope that their optimism is justified—that, in those circumstances, if the man is serving, they can produce a certificate, I take it with the aid of the Record Offices, in something between ten and fourteen days. As I say, I hope that that view is justified, but some of us have had experience of the working of the official machine in general. and even of the Record Office official machine in particular, and it does not always produce information quite so speedily as may be hoped. Is this really the most satisfactory way in which we can deal with this particular and very difficult matter? I feel that the burden upon the creditor, the man who is only seeking to enforce his just rights, of having to sit down and conduct this preliminary inquiry from these four quarters as to whether or not the man against whom he desires to proceed is or is not a person of the kind protected by this Bill, is really a very heavy burden to lay upon him and, in addition, is not necessarily one which is likely to produce the most effective,. adequate and acceptable results.
I have no desire, as I say, to criticise in any degree adversely the principle in this Bill, but I am concerned at some of the machinery which is set up by it. Above all, I am concerned at the immense, volume and complexity of it, bearing in mind that it is supposed to be primarily for the protection of the Service man and his dependants and the difficulty of bring 971 ing home to the Service man and his dependants what their rights are under the Bill—what they are entitled to claim and how they are entitled to claim it. As I say, we may have suggestions to make which will, I can assure noble Lords, be designed only to promote the clarification of the terms of the Bill. It may even be that we can follow the procedure which was so beneficially adopted in the case of the Courts-Martial(Appeals)Bill and discuss the points before we come to the next stage. With those reservations, which are, I agree, critical and serious but are not, I ask the noble Viscount to believe, in any way designed to be unhelpful. we shall of course readily accord a Second Reading to the Bill.
§ 6.15 p.m.
§ THE EARL OF SELKIRK
My Lords, I should like shortly to underline one or two of the points which the noble Marquess, Lord Reading, has made. First of all, let us remember that this is a permanent Bill, a permanent addition to the legal structure of this country. It is quite unlike anything that has gone before it and, although its effect is, I think I can say, temporary in every case, none the less, it will be a permanent Act. It is quite misleading to see the word "Korea" mentioned in the First Schedule, as if the Bill were designed to meet some immediate emergency which this country was facing at the present time. It is for that reason that the way in which this Bill has reached this House strikes us as rather peculiar. In the first place, neither the Law Society of Scotland nor that of England. I understand, were ever consulted about the structure or the form in which these objects were to be attained. Considering the fact that it is almost entirely a question of working out the detailed position as between creditor and debtor, I say, with respect, that that is remarkable.
Secondly, there have been presiding at the birth of this Bill something like eight Departments, all of whom have spoken at various stages in the course of its reading in another place. Indeed, one of the Government Amendments was actually moved by the Opposition. Be that as it may, it gives the appearance slightly of chequered work all the way through. I would add that there is in 972 Parts I and II of the Bill a separate set of clauses which were never discussed in the Scottish Grand Committee. In fact, they were hardly discussed at all, because I think they were not very easy to understand in an almost entirely English Committee. What one is concerned with here is exactly what the noble Marquess has referred to. The complexity of the procedure makes it difficult to know whether we are not actually doing a great deal more than we should wish to do. The basic statement is that a debtor may be relieved of paying his debts because, indirectly, somebody else has had the relevant period of service. It is a very wide statement. With respect, I say that the position should be watched carefully to see that we do not in fact tilt the scales in the opposite direction. For instance, as the noble Marquess has said, we may make the soldier an undesirable tenant, someone to whom credit will be particularly narrowly restricted for fear that he might take advantage of the situation here.
The second point I should like to make is this. I am not quite convinced why it is that the Regulars are excluded. If the purposes of this Bill are so essential—and we have had very little to show us that they are essential—why are the Regulars excluded? There are now two years of National Service, and there is a Regular engagement for three years in the Royal Air Force. It is common knowledge that there are many Regulars who are living in civilian quarters at the present time, due to various reasons. It may be that after the war we have not proceeded with our housing policy for the Services as quickly as we have in other directions. It may be due to the fact that county council houses and local authority houses are not particularly easy for ex-Regulars to obtain. In any event, they are in many cases living in civilian quarters and might, through change of circumstances, be put in rather a difficult position. I say with respect that I think that point might be more adequately met. There may be a very good reason but, at the present time, the mere fact that they are expected to adjust their Service conditions to civilian conditions does not seem to me to meet some of the problems which exist at the present time.
Of course, Part II is particularly in point. It deals specially with housing. 973 I should like to ask two questions—I do not know whether it is possible to ask them now: Supposing that a man is running either an agricultural property or a business and is away, maybe in Korea, what happens to that property in the meantime? I take it that a serving man —unless the court gets evidence that he does not want it—can sit on the property and it can stagnate. I think it is important that we should have some idea as to the effect this Bill will have on various businesses and agricultural properties which do not improve by standing still. So far as I can see, no one can step in, or it is very difficult for anyone to step in, to put the affair right. It is true that a man may get compassionate leave. It may be that he does not want compassionate leave, or possibly that it will not be granted. I merely submit that it is not in anybody's interest, whether it Concerns a small business or an agricultural property, that it should be permitted to stand completely still.
If I may emphasise again the question of rights, I am not quite clear why different periods of service apply in different parts of the Bill. I do not see why it should not apply straight through to all non-regular personnel, if it is decided to exclude regulars. For instance, under Part III a period of three months becomes essential. The Royal Auxiliary Air Force has just been called up for three months. How is that time going to be measured? Is it going to be three calendar months? Supposing a man is released for compassionate reasons two or three days earlier, is he excluded from the Bill? Must he serve for a specified period of days on the station? I think there is that distinction, and it is worth considering.
I will not elaborate further on the two points which the noble Marquess has made as regards onus of proof and the nature of the certificate, but I am bound to say that there has been a remarkable reluctance on the part of the Service Departments to face the obligation of supplying a certificate which is given to a pursuer—a reluctance which it can only be assumed comes from the inability or the fear of inability to produce it. It has been said on behalf of the Service Ministries that if they were under an obligation to supply certificates it might be open to abuse. I really do not know 974 to what abuse it may be open. If a man had a certificate saying, "A/C. Jones has serveda—" it is difficult to know what advantage there can be. It is said that the Service Departments are not likely to fall down on the job because they are interested in Service personnel. Many of us have been associated with the Services and have experienced delay in replies to correspondence of quite an important nature.
It has been said, and I think this is probably more true, that it may be a complicated matter to decide whether a person who is applying comes within the scope of certain regulations. If it is complicated to a Service Department it is equally complicated to a civilian who, at law, has a right to execute a remedy of some sort; and it is really asking a great deal to suggest that he should not have an answer in regard to what may be an essential inquiry for him to carry out. I think there is a point there which the Service Departments have to answer, and I shall be interested to hear what the noble and learned. Viscount has to say on that matter.
May I move to one or two Scottish points? I really cannot apologise to the House for going into detail, because sometimes these Scottish points take a long time to work out. It may be that the noble and learned Viscount will not want to answer them to-day. I notice that in the procedure clause in Part the powers which appear to be given in regard to acts of sederunt are much narrower than those which the Lord Chancellor exercises. There may be a reason for that, but I suggest, with respect, that in applying this Bill when it becomes an Act the Court of Session should be given powers sufficiently wide to ensure that they can adapt the particular circumstances of the act as nearly as possible to the requirements of the courts.
In particular, I note that the Lord Chancellor is given power to make rules in regard to the evidence which may be admitted and also in regard to applications made by another person on behalf of Service personnel. It may be that it is unnecessary, but I should be grateful if the point could be considered. I may mention that the rules of the Lord Chancellor are subject to negative Resolution procedure in Parliament. I would empha- 975 sise that I would oppose strongly any suggestion that acts of sederunt should be so subjected, and I think the Lord Chancellor would agree that they are entirely unsuited for any form of Parliamentary procedure.
May I make one or two other points in regard to Scotland? There is no appeal under Clause 32 from the summary decision of the sheriff. In a corresponding instance there is an appeal from the court in England. An explanation was given of that matter. I am not sure that the point is of great importance, but the explanation given was not of a very convincing character. Clause 8 contains one or two points in regard to meaning which seem to me to be highly uncertain. I will bring those matters up in the course of the Committee stage. I would re-emphasise that this is not a Bill in regard to which anyone would wish to do anything except establish a fair balance. At the present juncture one is a little worried that it may do nearly as much harm as it does good. I am sorry that we have not more time this Session to permit a rather leisurely Committee stage for this Bill.
§ 6.27 p.m.
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, I am grateful to your Lordships for the reception you have given to this Bill. May I say at once that I entirely realise that what your Lordships have said is with a desire to help, and is designed to improve the Bill, rather than the reverse? Frankly, I think that the noble Marquess's grievance is well-founded. I am very sorry that, owing to circumstances, we have had so little time to study this very complicated measure. Being wise after the event, I think it would have been very desirable for us to have had the Bill here first, because this is the sort of matter with which we are able to deal perhaps even more efficiently than are Members in another place. They took a very long time to deal with this matter, and the result is that we have very little time. For that I am sorry.
But there is this to be said. For almost every clause of this Bill there is a precedent. For instance, Part 1 is founded largely on the old Courts (Emergency Powers) Act. Of course, we have all had ample experience of the way that Act worked during the war. It has always 976 to be remembered that all the Bill is doing by way of giving protection to a person is simply to say that, before a creditor exercises his remedy, he has to apply to the court: it does not mean that he will not be allowed to exercise his remedy. The court will look at all the circumstances, and decide whether or not it is fair that he should exercise his remedy. Some of the observations made may have led to the impression that the remedy was barred. That is not so at all. It is simply that a creditor has to go to the court and put the circumstances before the court, and ask the court what to do.
One noble Lord, I think Lord Selkirk, asked why this Bill does not apply to Regulars. The reason is that we have to hold the balance fairly. If, of his volition, a man determines to take on the profession of soldiering and so adjusts his circumstances, as it seems to me, he cannot then pray in aid this sort of legislation. He should have considered all these things when he made up his mind to be a soldier. It is no kindness to a soldier to allow him to get into debt and trouble, in order that he may not pay his debts as they arise. The position dealt with by the Bill, surely, is that here is a man who has acquired all sorts of obligations on the basis of his civilian life, and then finds himself called up and taken away without his consent. As everybody agrees, it is surely right in those circumstances that we should do what we can to help; and what we do to help is, broadly speaking, to say "Well, the creditor cannot exact his remedy without going to the court."
Let me explain that, because I think there has been a slight error here. Of course, if he likes, the creditor can exact his remedy without going to the court. But if he does that, he acts at his peril, because if, without going to the court, he chooses to exact his remedy and it turns out that he was careless or negligent, or that he ought to have known something which he did not know, or that he was not reasonable, then he might find himself with an award of exemplary damages against him. That, surely, is fair. If, for instance, without going to the court, he does what is commonly called the "snatch back" with regard to hire purchase goods, in the case of a soldier who has been called up, when he knew or ought to have known that the man was a soldier, and he ought to have 977 gone to the court and put the point before them and ask: "What shall I do?", it is only fair that he should have to pay exemplary damages. I agree entirely with noble Lords that what we have to try to do is to hold the balance fairly between the man called up and the civilian. And I agree, further, that if we let ourselves over-weight the Service men's side, then, in fact, it may come back like a boomerang, and may do them more harm than good. Therefore, we must be very careful to see that we do hold the scales fairly.
I am sorry that the Law Society were not consulted at the time. From what I know of the Law Society in England. I feel certain that they would have taken an active part in discussion of the matter. I have no doubt that they have made their views felt, and I should assume that the same applies to the Law Society of Scotland who, I presume. in their way, are as anxious to help as are our own Law Society. I have no doubt that in one form or another we shall get—indeed, I have little doubt that we already have had—the benefit of their views. I do not conceal from your Lordships that this is a Bill of great mass and great complexity. It deals with so many topics, and none of your Lordships, I am sure, would have any of these topics left out. Part I is practically the Courts (Emergency Powers) Act. The next part deals with the protection of homes or business premises. Then we have the passages dealing with the making up of civil pay and various other matters. They are all complicated matters which ought to be dealt with. It is therefore inevitable that, however simple the machinery may be, in the drafting of the Bill the actual matter and mass of these things must be considerable. That the measure must be complicated is also quite plain.
I am not going to deal with the Scottish points raised by the noble Earl, Lord Selkirk, if he will forgive me for not doing so. I would rather be specifically instructed about them, and find out to what extent my powers differ from those available in Scotland. It is the fact that we shall expound this Bill in simple language in he form of leaflets. I have no doubt that the Service man will lose the leaflet, and it is very unlikely that he will read it at all. But we shall make leaflets available for those who are 978 responsible for advising the Service man as to what he has to do—that is to say, available to the officers—and we hope that the leaflet will expound the position in simple language.
The noble Marquess, Lord Reading, raised two specific questions. The first was about Clause 20. The noble Marquess asked whether or not it was fair to give to statutory undertakers a privilege not given to other persons. I agree that it may be logical, if we are to give a protection or privilege to a public authority, to give it also to the farmer mentioned by Lord Reading. We have got here to take a broad general line, and it seemed to us that there was a very strong case for saying, for instance, that a house at a level-crossing must be available for the man in charge of the crossing, or the gates would remain shut and the public would be greatly inconvenienced. The situation may be the same in the case of some farmers, but it would not be so in the case of all farmers. Therefore, we must take a broad general line, and it seemed to us that this was the best sort of line to take.
The other point which the noble Marquess raised related to certificates. I am doubtful whether we should gain anything by having some sort of co-ordinating Department. I have had some experience of this sort of thing, and I know that where you set up another Department to co-ordinate the activities of three or four Departments it tends to proliferate, and you tend to get a large number of people there. The noble Marquess said that if there was one co-ordinating Department you would have to write only one letter instead of four letters to the four different Departments. My view is that it is better to write to the four Departments if you want help. They have an extremely difficult task to perform, and I have no doubt that the letters which come to them will frequently be rather illiterate. Often such letters will be almost impossible to understand. They will be misdirected and probably mis-spelt, but those concerned will have to do the best they can to see whether they can identify or trace the man in question. In the great majority of cases, local inquiries at home are likely to be far more effective and useful than information obtained from letters. Still, the fact of receiving a letter from one of 979 these Departments may put you on inquiry. And the fact that you have tried to get a letter from the Departments, even if you failed to get any information, would be a cogent circumstance in showing that you had not been reckless or careless, and that therefore exemplary damages should not be given against you if, by any chance, you went wrong. I do not think anything would be gained by making this a mandatory duty. The Service Departments will do the best they can, and I think we are likely to achieve more by good will and common sense than by imposing a statutory obligation, more particularly because in some cases it would be impossible to fulfil a statutory obligation.
I will look at the other points which have been raised, and I will do all I can to help your Lordships. I will, if I can, assist your Lordships, through my staff, or by means of documents, and I shall be very glad to do so. I will put myself entirely at your Lordships' disposal, so far as I may, in order that we may discuss and clear up points which may arise before we reach the next stage of the Bill. That, I think, brings me to the end of what I have to say, except to express my gratitude to your Lordships for the way in which you have received this Bill, notwithstanding all the difficulties.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.