§ Amendments reported (according to Order).
§ Clause 13:
§ [Effect of failure to observe restrictions under Part I]
§ (2) In any action for damages for conversion or other proceedings which lie by virtue of any such omission, failure or contravention, the court may take account of the conduct of the defendant with a view, if the court thinks fit, to awarding exemplary damages in respect of the wrong sustained by the plaintiff.
§ (3) If in any such action or proceedings as aforesaid the court is satisfied that the defendant acted honestly and reasonably, and ought fairly to he excused for the omission, failure or contravention, the count may relieve the defendant from liability in respect thereof.
§ (4) In so far as it appears to the appropriate court to he practicable to remedy the results of any such omission, failure or contravention as aforesaid specifically without prejudice to the interests of third parties, the court may give any such directions for restoration of property, repayment of money or other measures as may appear to the court to he requisite for that purpose.
§ THE LORD CHANCELLORmoved, in subsection (3), to leave out "such action or proceedings ns aforesaid" and insert "action or proceedings which lie by virtue of any such omission, failure or contravention." The noble and learned Viscount said: My Loris, the first of the Amendments in my name is to Clause 13, to which my attention was directed during the Committee stage by the noble and learned Viscount, Lord Simon, who suggested that I might profitably look at it again. There has been precious little time since the Committee stage and I have not had an opportunity for those consultations which I should have desired. Accordingly I have had to act as best I could. The first Amendment and the one following deal with this point. When we commenced our consideration of this clause, it was pointed out to me that it was just possible, barely possible, that criminal proceedings might here be involved. If there can be any question of criminal proceedings, obviously it is right that the defence of having acted reasonably and honestly, which is available in civil proceedings, should also be available in criminal cases.
1319 I confess I am exceedingly doubtful whether criminal proceedings could lie for a breach of the terms of this Bill. For breach of a statutory prohibition to give rise to a Common Law misdemeanour, it would usually have to be shown that the prohibition is for the benefit of the public at large, whereas in this case it is for the benefit of only particular persons—namely, Service men and their families. I do not think the point is a very real one, but it has been drawn to my attention, and I thought I ought to make the matter quite certain. The Amendment has no other effect at all and does not prejudice other parts of the Bill. It is only to make plain that the defence of having acted reasonably and honestly should he available if there were any criminal proceedings, though I frankly say I find it difficult to see what criminal proceedings could be laid.
§
Amendment moved—
Page 16, line 23, leave out ("such action or proceedings as aforesaid") and insert ("action or proceedings which lie by virtue of any such omission, failure or contravention").—(The Lord Chancellor.)
§ VISCOUNT SIMONMy Lords, there is nothing like being sure. I share the view of the noble and learned Viscount that this is an improbable hare. Still, let us be quite sure.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment is merely consequential on the first. I beg to move.
§
Amendment moved—
Page 16, line 25, leave out ("the omission, failure or contravention") and insert ("it").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORmoved, after subsection (4), to insert the following new subsection:
§ "(5) In relation to an action or other proceedings tried by a judge and jury—
- (a) the references to the court in subsections (2) and (3) of this section shall he construed as references to the jury, but without prejudice to the power of the judge to give to the jury directions whether there is any evidence of facts justifying an award of exemplary damages on the one hand or the granting of relief on the other hand, or to give them advice as to the making of such an award or grant;
- (b) the references to the court in subsection (4) of this section shall he construed as references to the judge alone."
§ The noble and learned Viscount said: My Lords, this is an Amendment of more substance. In discussion, the noble and learned Viscount, Lord Simon, pointed out that we were apt nowadays to slip into the habit of assuming that all these cases are to be tried by a judge alone. In our young days these cases were tried by judge and jury, and there is no reason why they should not be tried by a judge and jury now. The noble and learned Viscount thought it was desirable, and I respectfully agree, to try to make clear what were the functions of a judge and jury in such a case. I expressed the view that the functions of a judge would be to lay down whether there was any evidence for consideration by the jury that a man had acted otherwise than unreasonably, and then it would be the function of the jury to decide what was their view of the fact. Difficulty arose also in subsection (4), where the words used are "the court" and it was difficult to see what "the court" meant there. In consequence, we have put down the Amendment to make the matter plain. This is the best I have been able to do in the interval of time between the day before yesterday and to-day. I think it clarifies the matter and I hope your Lordships will agree that it makes plain the meaning of this clause on the lines which I tried to expound on the last occasion. I beg to move.
§ Amendment moved—
§
Page 17, line 9, at end, insert—
("(5) In relation to an action or other proceedings tried by a judge and jury—
§ VISCOUNT SIMONMy Lords, I am grateful to the noble and learned Viscount the Lord Chancellor for giving his attention to this point. I am glad to find he agrees with me that something should be put into the Bill to clear up ambiguity. If we take the Bill as a whole, we find constant reference to "the court." In 1321 Clause 2, it is "the leave of the court," and reference to "the court" again appears in Clauses 22 and 30. In all these cases, except in those dealt with in Clause 13, there can be no doubt at all that the court is authorised, in the sense that the judge is authorised to do something—to give leave to proceed, for example. One does not ask a jury for leave to proceed; one asks the judge. It is true of the Courts (Emergency Powers) Act, which constantly uses the words "the court," that it is quite plain that that means the judge, and the same is true of the Rent Restrictions Act. But Clause 13 of this Bill, which I observed on the last occasion was an unusual clause—nothing of the sort is to be found in the Courts (Emergency Powers) Act—really raises issues of the kind which may well be tried by a judge and jury. Therefore, in Clause 13, though in no other clauses of the Bill, we need to put in clearly what is meant. I venture to say that I think the way it is done is satisfactory, and I am glad that we shall improve the Bill in this manner.
§ On Question, Amendment agreed to.
§ Clause 22 [Facilities for action on behalf of men serving abroad in proceedings as to tenancies]:
§ THE LORD CHANCELLORMy Lords, this Amendment, and the two following, are designed to clear up the complicated structure of this clause. The noble Marquess, Lord Reading, said he was somewhat puzzled by a first reading of this clause. I had been somewhat puzzled after reading it several times, and I promised I would do what I could to have it cleared up. These three Amendments, all of which are drafting, make it a little easier for he who runs to read. I beg to move.
§
Amendment moved—
Page 30, line 24, leave out ("or has purported to take").—(The Lord Chancellor.)
THE MARQUESS OF READINGMy Lords, I am much obliged to the noble and learned Viscount. On the Committee stage I suggested that the words should be sorted out in order to bring the verb tenses in relation one to the other. That has now been successfully done and I hope it improves the Bill.
§ On Question, Amendment agreed to.
1322§ THE LORD CHANCELLORMy Lords, this is a drafting Amendment. I beg to move.
§
Amendment moved—
Page 30, line 25, leave out ("or was").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment is also drafting. I beg to move.
§
Amendment moved—
Page 30, line 26, after ("abroad") insert ("or has purported to take a step in the proceedings on his behalf at a time when he was so serving").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 42 [Provisions as to firemen's pensions]:
§ THE LORD CHANCELLORMy Lords, this Amendment is to meet a point to which our attention was called by the noble Viscount, Lord Bridgeman. The confusion arose over the fact that a period of service might include training and something else as well. The noble Viscount's keen military eye spotted this difficulty, and he called our attention to it. I promised on the last occasion to put clown an Amendment to deal with the point, and I hope he is satisfied with what I have clone. I am grateful to him for calling our attention to what was an obvious blemish on the Bill. I beg to move.
§
Amendment moved—
Page 51, line 37, leave out ("by way of training") and insert ("for the purposes of training only").—(The Lord Chancellor.)
§ VISCOUNT BRIDGEMANMy Lords, the Amendment just moved by the Lord Chancellor entirely meets my point, and I am grateful to him.
§ On Question, Amendment agreed to.
§ Clause 46:
§ General provisions as to payments to make up civil remuneration
§ (4) In determining for the purposes of this section the remuneration which a justices' clerk or employee of a justices' clerk who is performing relevant service to which this Part of this Act applies when section nineteen of the Justices of the Peace Act, 1949, comes into force would have received if he had continued to be occupied in that capacity, the consequences which would have ensued in his case upon the coming into force of that section shall be left out of account.
1323§ THE MARQUESS OF READING moved to omit subsection (4). The noble Marquess said: My Lords, my noble friend Lord Llewellin stated in moving this Amendment in Committee that he was merely doing so in order to obtain a short expression of opinion on it from the noble and learned Viscount on the Woolsack. Therefore, I bee to move formally the Amendment in his name.
§
Amendment moved—
Page 53, line 40, leave out subsection (4).—(The Marquess of Reading.)
§ THE LORD CHANCELLORMy Lords, when, in dealing with this vast Bill, the question was shot at me, I was bound to say that I did not know what the answer was, and I expect that became patently obvious to all your Lordships who saw me in my difficulties. I have now had the advantage of looking at the point and being advised upon it, and this is the explanation. The point concerns, and concerns only, a justices' clerk or one of his assistants who has been called up before April 1, 1953, and is serving as a soldier on that date. The date is April 1, 1953, because on that day it is proposed by Order in Council to bring into force Section 19 of the Justices of the Peace Act. As from that day, the justices' clerks will have a different employer. Whereas before they used to be clerks to the borough justices, or clerks to the county justices, being servants of the borough justices or of the Standing Joint Committee, as the case might be, they will, as from April 1, 1953, have a wholly new employer—namely, the magistrates' courts committee, who will very likely have a totally different scale and standard of remuneration.
The subsection leaves the existing justices responsible for determining the balance of civil pay in the case of a clerk to the borough justices, and the Standing Joint Committee in the case of the clerk to the county justices. Let me make it plain that it does not debar those present authorities from granting an increase. It does not follow that the salary will be frozen throughout the man's service at the level it was before he went away. It will be quite competent for the old authority to grant an increase in the salary while he is away, and so raise the balance of civil pay. It would not be practicable to transfer the responsibility for deciding whether the balance of civil 1324 pay should be made up, and for deciding the salary, to the new authority—the magistrates' courts committee—while the man is away, because when Section 19 comes into force the salary of many justices' clerks will be determined according to a new basis, and the review which will have to be made by the magistrates' courts committee will undoubtedly involve discussions with the clerk.
Further, the local authorities may not like the way in which the new basis has been applied, and may wish to appeal to the Home Office. These matters could not be settled satisfactorily while the clerk is away in the Armed Forces. It is therefore necessary to leave things as they were until he returns, and to leave him still (if I may put it shortly in this way) under the jurisdiction of his old master, who will be entitled to grant him whatever he thinks proper in the way of increase of salary, and consequently higher payment in making up his emoluments. It would be impracticable, we think, to put him under the new body of the magistrates' courts committee, which did not exist when he was called up for service. Your Lordships will see that the subsection applies to a limited class of people: it applies only to justices' clerks called up before April 1, 1953, and who are still serving on that date. If any justices' clerk is called up after April 1, 1953, then it will be his new employer, the magistrates' courts committee, who will decide what is the right thing to do. I hope that is a satisfactory explanation to the noble Lord, Lord Llewellin, of the purpose of this clause. I am only sorry that I could not give it to him on the last occasion, because, as I said before, in a Bill of this magnitude it is difficult to know all the points.
§ LORD LLEWELLINMy Lords, I am obliged to the Lord Chancellor for that explanation. I am only sorry that I did not know that this Amendment was coming on so quickly, and consequently was not here to move it myself Also, as I think I indicated before, I am sorry I did not give the noble and learned Viscount notice of my question; but it was brought to my attention only a few minutes before I raised the matter in your Lordships' House. On the whole, I believe the explanation we have now received will be considered a satisfactory one. Looking at it from a practical 1325 basis, one finds there are not a great number of justices' clerks who are likely to he called up. Largely, they are, as befits that office, more experienced, and there for older, men. But they were slightly concerned, and felt that they were being singled out for treatment that was not to be applied to other types of persons in, for instance, local government service, who would automatically receive a rise when the rates for the job were increased. If, as the noble and learned Viscount has assured us, the justices' clerks' salaries can be increased while they are away (for instance, on a review of salaries over a whole county) in the same way as those of their colleagues who have not been called up, then that will show them that they are not being singled out. The matter will arise only in cases where the magistrates' courts committee, a new employer, as t were, comes into the picture, and I have no doubt that they, being sensible and public-minded people, will see that something is done to meet these cases, although it will not automatically be done under the provisions of this Bill when it becomes an Act. Therefore, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ First Schedule:
§ Service Relevant for the purposes of the Act
§ (iv) Service in pursuance of any enlistment for a period not exceeding eighteen months with a view to service in Korea.
§ THE LORD CHANCELLORMy Lords, when I asked the noble Viscount, Lord Bridgeman, to withdraw his Amendment on the Committee stage, I said that we should probably have to make other consequential Amendments. This is one of them. It is the same point that we discussed a moment ago. I beg to move.
§
Amendment moved—
Page 72, line 10, leave out ("otherwise than by way of training") and insert (", other than for the purposes of training only,").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ 3.38 p.m.
§ THE LORD CHANCELLORMy Lords, this Amendment raises a further point mentioned by the noble Viscount, Lord Bridgeman. We specified in the 1326 Schedule service in Korea. The noble Viscount said (I am paraphrasing): "You are putting that into a Bill which is expected to become a permanent piece of our legislative machine. Korea may pass out of the picture altogether, and for 'Korea' you may have to read some other place in a few years' time. It is very odd that in this permanent piece of legislation you should tie yourselves exclusively to Korea." I thought at the time that it was a sound point, and the military authorities now appreciate the soundness of it. Therefore, what we propose to do is to leave out the word "Korea" and insert the words appearing on the Marshalled List of Amendments. I hope that meets the point made by the noble Viscount, and I am grateful to him for raising it. I beg to move.
§
Amendment moved—
Page 72, line 24, leave out ("Korea") and insert ("the Korean operations continuing at the passing of this Act or in other operations designated for the purposes of this subparagraph by His Majesty by Order in Council").—(The Lord Chancellor.)
§ VISCOUNT BRIDGEMANMy Lords, once again I should like to thank the noble and learned Viscount. The Amendment now moved completely meets my point and I am grateful to the Lord Chancellor for moving it.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment is consequential upon an Amendment already discussed. I beg to move.
§
Amendment moved—
Page 72, line 25, leave out ("otherwise than by way of training") and insert (", other than for the purposes of training only,").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment is also consequential. I beg to move.
§
Amendment moved—
Page 73, line 3, leave out ("Korea") and insert ("such operations as are mentioned in sub-paragraph (iv) of this Paragraph").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this Amendment deals with a point we have discussed before. I beg to move.
§
Amendment moved—
Page 73, line 30, leave out ("by way of training") and insert (",for the purposes of training only.").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Then, Standing Order No. XXXIX having been dispensed with (pursuant to Resolution):
§ THE LORD CHANCELLORMy Lords, I rise to move that this Bill be now read a Third time. In so doing, I have it in command from His Majesty to acquaint the House that His Majesty, having been informed of the contents of the Bill, is pleased to give his consent so far as His Majesty's interest is concerned on behalf of the Crown, the Duchy of Lancaster and the Duchy of Cornwall, and that the House may proceed thereon as they shall think fit. I beg to move.
§ Moved, That the Bill be now read 3a.—(The Lord Chancellor.)
§ On Question, Bill read 3a, with the Amendments, and passed, and returned to the Commons.